Berkeley City Council
December 10, 2024

Office of the City Manager

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Aram Kouyoumdjian, Director of Human ResourcesSubmitted by:

Subject: Revise Job Class Specifications – Communications Specialist

RECOMMENDATION
Adopt a Resolution (1) revising the Communications Specialist job class specifications to allow Charter departments and offices to utilize the classification and (2) providing a 5% differential to Communication Specialists assigned to the City Manager’s Office.

FISCAL IMPACT
The modification will add a 5% differential to the base pay of Communications Specialists assigned to the City Manager’s Office.

CURRENT SITUATION AND ITS EFFECTS
Communications Specialists – who are housed in the City Manager’s Office and report to the Communications Director – perform professional communication duties to facilitate dissemination of information to the public and media. Charter departments and offices, including the Office of the Director of Police Accountability, Library, and Rent Board, have also identified a need for professional public communication support.

Expanding the job class to include Charter departments and offices would allow them to hire and oversee employees who perform this work. Adding a 5% differential for Communications Specialists assigned to the City Manager’s Office would recognize the Citywide breadth of their duties, as opposed to department-specific communications.

BACKGROUND
The proposed modifications to the class specifications were unanimously approved by the Personnel Board.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

Revise Job Class Specifications – Communications Specialist Consent Calendar December 10, 2024

RATIONALE FOR RECOMMENDATION
These changes will ensure that Charter departments and offices are able to utilize the Communications Specialist classification for their communications and public information-related needs, and that Communications Specialists assigned to the City Manager’s Office are recognized for the Citywide breadth of their work.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Aram Kouyoumdjian, Director of Human Resources, (510) 981-6807.

ATTACHMENTS
1: Resolution
Exhibit A: Communications Specialist – Revised Job Class Specifications

Revise Job Class Specifications – Communications Specialist Consent Calendar December 10, 2024
RESOLUTION NO. XX,XXX- N.S.

REVISE JOB CLASS SPECIFICATIONS – COMMUNICATIONS SPECIALIST WHEREAS, the Human Resources Department maintains the Classification and Compensation plan for the City of Berkeley; and
WHEREAS, job specifications are foundational components of the City’s Classification and Compensation plan; and
WHEREAS, Communications Specialists are currently housed in the City Manager’s Office, report to the Communications Director, and perform professional communication duties to facilitate dissemination of information to the public and media; and WHEREAS, Charter departments and offices, including the Office of the Director of Police Accountability, Library, and Rent Board, have also identified a need for professional public communication support; and
WHEREAS, expanding the job class specifications to include Charter departments and offices would allow them to hire and oversee employees who perform this work; and WHEREAS, adding a 5% differential for Communications Specialists assigned to the City Manager’s Office would recognize the Citywide breadth of their duties, as opposed to department-specific communications.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the job specifications for the Communications Specialist classification are revised to allow utilization of the classification by Charter departments and offices, as shown in Exhibit A, effective December 10, 2024;
BE IT FURTHER RESOLVED that the Unrepresented Employee Manual be revised to add a 5% differential for Communications Specialists assigned to the City Manager’s Office.

Exhibit A:

Communications Specialist – Revised Job Class Specifications

Revise Job Class Specifications – Communications Specialist Consent Calendar December 10, 2024

EXHIBIT A

COMMUNICATIONS SPECIALIST

CLASS CODE
9011

SALARY
$49.24 - $58.41 Hourly
$3,938.99 - $4,673.03 Biweekly
$8,534.48 - $10,124.89 Monthly
$102,413.79 - $121,498.72 Annually

ESTABLISHED DATE
September 14, 2021

REVISION DATE
June 3, 2024

Description

DEFINITION

Under general supervision, performs professional public communication duties to facilitate Citywide initiatives that include the coordination and dissemination of information to the public and media; develops methods and techniques for accomplishing improved communication between the general community, special targeted audiences, the media and the City; and provides professional level support to the Communications Director/Assistant to the City Manager; or the director of a charter department/office.

CLASS CHARACTERISTICS

This is the journey level class, fully competent to perform responsible and difficult communications duties in support of various departments. Incumbents are expected to exercise independent judgment in the development and implementation of communications strategies.

Example of Duties

The following list of duties is intended only to describe the various types of work that may be performed and the level of technical complexity of the assignment(s) and is not intended to be an all-inclusive list of duties. The omission of a specific duty statement does not exclude it from the position if the work is consistent with the concept of the classification, or is similar or closely related to another duty statement.

1. Coordinates and performs professional public service communication duties involving the coordination and dissemination of information to the public and media; develops methods and techniques for accomplishing improved communication between the City and general community;

Revise Job Class Specifications – Communications Specialist Consent Calendar December 10, 2024

2. Collaborates with City staff to develop a comprehensive communication plan; outlines the City’s communication objectives, identifies tools and activities to implement those objectives; improves public access to timely, accurate, helpful information about the City and its services; provides the public with a variety of easy and accessible ways to engage with the City;

3. Develops and utilizes communication strategies to inform and promote City activities, both internally and externally, through written and visual communications with distribution through a variety of channels, including digital platforms such as the web and social media, and print; creates and writes daily content regarding City news and events;

4. Serves as back up to the Communications Director or the director of a charter department/office in crisis communications efforts in emergency situations; under the Incident Command System, would serve as lead PIO;

5. Develops, implements and coordinates outreach programs for community engagement; strengthens social media outreach; proactively addresses issues and misinformation through communication;

6. Analyzes the effectiveness of communications and outreach efforts via digital analytics and quantitative and qualitative data;

7. Coordinates the creation and dissemination of assets and resources designed to serve the public through information; writes and creates news and informational content via print, digital and multimedia platforms;

8. Responds to public, radio, television, print media and other electronic media and forums with Information about programs and services as well as unusual circumstances/situations of immediate public interest; will act as a City media representative and spokesperson;

9. Coordinates with departments to ensure information to the community is clear, accurate and Comprehensive; works with staff to plan, organize and launch programs; writes copy for materials of public interest;

10. Develops positive relationships with media by proactively reaching out to them with City news and information and preparing news releases; researches and organizes information and material and writes copy; be available to the media to ensure information is being provided in an effective and efficient manner;

11. Provides technical assistance to City management and staff on digital communications software, how to effectively talk with the news media, and social media best practices;

12. Builds and maintains positive working relationships with co-workers, other employees and the public using principles of good customer service;

13. Performs related duties as assigned.

Knowledge and Abilities

Note: The level and scope of the knowledges and skills listed below are related to job duties as defined under Class Characteristics.

Knowledge of:

Revise Job Class Specifications – Communications Specialist Consent Calendar December 10, 2024

1. Principles, best practices and modern techniques of public information, dissemination, communication program development, media relations, crisis communication, and content-marketing;

2. Techniques of effective interviewing, writing, layout, editing, and multimedia production;

3. Methods and procedures to utilize computer applications and technology related to the work, including but not limited to, web design and maintenance, photography, video production, presentation software, and image editing software;

4. Information dissemination techniques and method;

5. Methods and techniques of clear, concise and accurate oral and written communications.

Ability to:

1. Develop and manage complex communication projects in support of City operations;

2. Effectively prepare and deliver oral presentations and compose clear and organized correspondence, reports, press releases, proclamations, speeches, articles and other written materials;

3. Effectively represent the City with governmental agencies, news media, community groups, employee groups, and various business and professional organizations;

4. Communicate technical information including complex rules, regulations, legislation, and laws in a manner that is appropriate for the intended audience;

5. Use sound judgment in recognizing scope of authority;

6. Operate and use modern office equipment including computers and applicable software;

7. Establish and maintain effective working relationships with those contacted in the course of work;

8. Communicate clearly and concisely, both orally and in writing;

9. Work nights and weekends.

Minimum Qualifications

A TYPICAL WAY OF GAINING THE KNOWLEDGE AND SKILLS OUTLINED ABOVE IS:

Equivalent to a Bachelor’s degree from an accredited college or university with major coursework in journalism, communications, public relations, or a related field and four years of responsible professional public communications, media relations, public relations or content-development experience including the development and implementation of
communication programs.

OTHER REQUIREMENTS:

Revise Job Class Specifications – Communications Specialist Consent Calendar December 10, 2024
Must be able to travel to various locations within and outside the City of Berkeley to meet program needs and to fulfill the job responsibilities. When driving on City business, the incumbent is required to maintain a valid California driver's license as well as a satisfactory driving record.

Classification History
Established: 09/2021
Revised: 06/2024 – Add charter departments and offices

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Aram Kouyoumdjian, Director of Human Resources Subject: Personnel Rule 9.03 Revision: Promotion Through a Non-Competitive Process

RECOMMENDATION
Adopt a Resolution amending Section 9.03 of the City’s Personnel Rules and Regulations, “Promotion Through a Non-Competitive Personnel Action,” to add classifications including Deputy City Attorney I, II, III, and IV; Police Officer Recruit and Police Officer; Public Safety Dispatcher I and Public Safety Dispatcher II; Hazardous Materials Specialist I and Hazardous Materials Specialist II; and Housing Inspector I (Certified) and Housing Inspector II (Certified).

FISCAL IMPACTS OF RECOMMENDATION
Departments will absorb fiscal impacts of promotional advancement.

CURRENT SITUATION AND ITS EFFECTS
Section 9.03 of the City’s Personnel Rules and Regulations provides an administrative mechanism for internal promotion through a non-competitive process in certain classification series (e.g., Behavioral Health Clinician I to Behavioral Health Clinician II).

Proposed modifications to Section 9.03 seek to update the language of the rule and to add the following classifications to the list of job series eligible for internal promotion without a competitive process:
 Hazardous Materials Specialist I to Hazardous Materials Specialist II  Housing Inspector I (Certified) to Housing Inspector II (Certified)  Public Safety Dispatcher I to Public Safety Dispatcher II  Police Officer Recruit to Police Officer
 Deputy City Attorney Series (I, II, III, and IV)

BACKGROUND
Proposed modifications to Section 9.03 were considered by the Personnel Board at its meeting of November 4, 2024 and approved by unanimous vote.

Personnel Rule 9.03 Revision CONSENT CALENDAR
December 10, 2024

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
The recommendation is to improve the efficiency of an internal administrative mechanism to allow for flexibly-staffed classifications and permit employees to advance to the higher classification when an employee attains licensure, certification or experience, as an alternative to conducting a prolonged recruitment and establishing a promotional eligibility list.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Aram Kouyoumdjian, Director of Human Resources, (510) 981-6807.

Attachments:
1: Resolution
Exhibit A: Section 9.03 of Personnel Rules and Regulations (Tracked Revisions)

RESOLUTION NO. ##,###-N.S.

PERSONNEL RULE 9.03 REVISION: PROMOTION THROUGH A NON-

COMPETITIVE PERSONNEL ACTION
WHEREAS, the Human Resources Department is entrusted with the City’s classification and compensation (“class and comp”) function;
WHEREAS, Section 9.03 of the City’s Personnel Rules and Regulations provides an administrative mechanism for internal promotion through a non-competitive process in certain classification series (e.g., Behavioral Health Clinician I to Behavioral Health Clinician II);
WHEREAS, proposed revisions to Section 9.03 to update the language of the rule and to add eligible classifications would enhance efficiencies in promotional hiring and would boost workforce retention;
WHEREAS, the proposed revisions were considered by the Personnel Board at its meeting of November 4, 2024 and approved by unanimous vote.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that Section

9.03 of the City’s Personnel Rules and Regulations be revised in the manner set forth in Exhibit A and that the following classifications be added to the list of job series eligible for internal promotion through a non-competitive process: Hazardous Materials Specialist I to Hazardous Materials Specialist II; Housing Inspector I (Certified) to Housing Inspector II (Certified); Public Safety Dispatcher I to Public Safety Dispatcher II; Police Officer Recruit to Police Officer; Deputy City Attorney Series (I, II, III, and IV).

Attachment:

Exhibit A: Section 9.03 of Personnel Rules and Regulations (Tracked Revisions)

EXHIBIT A

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Aram Kouyoumdjian, Director of Human Resources Subject: Contract No. 32400151 Amendment: SDR Consulting for Classification and Compensation Services

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 32400151 with SDR Consulting for classification and compensation services to cover the period of February 26, 2023 through June 30, 2026, for a total cost not to exceed $150,000.

FISCAL IMPACTS OF RECOMMENDATION
Funding for the contract is budgeted in the Human Resources Department through its contractual services allocations.

CURRENT SITUATION AND ITS EFFECTS
Human Resources Analysts in the HR Department are a small cadre entrusted with assignments spanning recruitment, exams, employee transactions, benefits, and workers’ compensation, leaving little capacity for tasks related to classification and compensation (“class and comp”), which entails creating new job classifications (or updating them whenever necessary), performing salary surveys, and conducting desk audits.

As such, the HR Department collaborates with independent consultant Shelly Del Rosario (SDR Consulting) to expand its bandwidth and to provide these services to client departments in an efficient and objective manner. SDR Consulting has consistently delivered a high-caliber work product to the City.

BACKGROUND
As part of its reorganization over the last two years, the HR Department has engaged a pair of independent consultants – one of them being SDR Consulting – to ensure timely delivery of the City’s “class and comp” needs.

Contract Amendment: SDR Consulting CONSENT CALENDAR
December 10, 2024

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental effects or opportunities associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
Limited staffing in the HR Department’s analyst rank and the City’s ongoing needs for classification and compensation services necessitate the engagement of external consultants. Extension of a contract with SDR Consulting would bolster timely performance of classification and compensation studies that City departments need.

ALTERNATIVE ACTIONS CONSIDERED
None.

CONTACT PERSON
Aram Kouyoumdjian, Director of Human Resources, (510) 981-6807.

Attachments:
1: Resolution

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 32400151 AMENDMENT: SDR CONSULTING FOR

CLASSIFICATION AND COMPENSATION SERVICES
WHEREAS, the Human Resources Department is entrusted with the City’s classification and compensation (“class and comp”) function;
WHEREAS, limited staffing in the HR Department requires engagement of independent contractors to perform class and comp work – creating new job classifications (or updating them), performing salary surveys, and conducting desk audits – in an efficient and timely manner;
WHEREAS, independent consultant Shelly Del Rosario, providing services as SDR Consulting, has been performing such classification and compensation work for the City and consistently delivering high-caliber product;
WHEREAS, extension of the SDR Contract would facilitate timely delivery of class and comp work needed by City departments.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an amendment to Contract No. 32400151 with SDR Consulting for an amount not to exceed $150,000 for the period covering February 23, 2023 through June 30, 2026; and
BE IT FURTHER RESOLVED that a record signature copy of said contract and any amendments be on file in the Office of the City Clerk.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.BerkeleyCA.gov/Manager

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Jordan Klein, Director, Planning and Development Department Subject: Accept Grant Funds from the U.S. Department of Energy’s Zero Codes Award and contract with City and County of San Francisco to develop, implement, and enforce Building Performance Standards

RECOMMENDATION
Adopt a Resolution authorizing the City Manager or their designee to accept the U.S.

Department of Energy’s Assistance for adoption of the “Latest and Zero Building Energy Codes” in the amount of $5,729,943, and negotiate and execute a contract and any amendments, extensions, or change orders with City and County of San Francisco, to develop Building Performance Standards, for the duration of January 1, 2025 through December 31, 2033.

FISCAL IMPACTS OF RECOMMENDATION
There is no match requirement or leveraging of other funds required to receive this grant award. The total funding available for this project is $5,729,943, which will be deposited into Fund 336 (One-Time-Grant). The grant will fund City staffing, including a new Community Services Specialist III position, to manage Building Performance Standards (BPS) development and implementation, consultant fees for technical assistance and equitable development of BPS with the community, software improvements, supportive programs to help equity priority buildings comply with the new BPS requirements, and other eligible expenses.

CURRENT SITUATION AND ITS EFFECTS
The U.S. Department of Energy (DOE) has jointly awarded the City of Berkeley and the City and County of San Francisco $19.9 million over nine years to develop, implement, and enforce BPS for large multifamily and commercial buildings. Of the total amount, the City of Berkeley will receive $5,729,944 over the grant period. The City and County of San Francisco will serve as the prime recipient for this funding opportunity, and the City of Berkeley will be a subrecipient to the City and County of San Francisco.

Accept Grant Funds from U.S. Department of Energy’s Zero Codes Award CONSENT CALENDAR and contract with the City and County of San Francisco December 10, 2024

The DOE’s Latest and Zero Building Energy Codes award1, a program created under the Inflation Reduction Act, provides funding to cities and states to develop, implement, and enforce the latest building energy codes, zero energy building codes, or equivalents. These include Building Performance Standards, which are policies that require existing buildings to meet certain performance levels over time. They provide building owners with discrete energy and/or greenhouse gas emissions reduction targets that align with a jurisdiction’s climate action goals, allowing building owners to plan and incorporate upgrades within their building’s life cycle. The DOE’s Zero Codes funding will support Berkeley’s efforts to develop a local BPS to help reach climate action goals and equitably decarbonize existing buildings. The grant would require Berkeley to develop and adopt a BPS policy by the end of 2027.

The primary goals of the award are:

1. Adopt, implement, and enforce BPS in Berkeley and San Francisco

2. Work with community partners to ensure equity priority building compliance with the BPS requirements

3. Collaboratively develop a model BPS based on San Francisco and Berkeley’s efforts that could be adopted by cities across the Bay Area

4. Leverage existing regional expertise and infrastructure to support region-wide readiness for BPS adoption
This grant provides funding to conduct robust community engagement around the development of the BPS requirements and establish new supportive programs to ensure equity priority buildings have the necessary support to achieve future adopted BPS requirements. Equity priority buildings are likely to include building owners with less access to capital and less advanced building energy management systems, such as affordable housing, non-profits, religious worship, and public assembly buildings.

The grant will also support the development of a model BPS policy and new BPS resources, including case studies, retrofit guides, example building stock analyses, software configuration templates, and/or shared software resources, that could enable other Bay Area cities to work toward BPS adoption.

The work that will be completed under this grant is a Strategic Plan Priority Project, advancing the City’s goals to be a global leader in addressing climate change, advancing environmental justice, and protecting the environment.

BACKGROUND
In 2019, the Berkeley City Council declared a Climate Emergency and proposed a goal of becoming Fossil Fuel-Free City. In 2021, the Council adopted a resolution to join the 1 https://www.energy.gov/articles/biden-harris-administration-announces-530-million-building-energy-efficiency- and

Accept Grant Funds from U.S. Department of Energy’s Zero Codes Award CONSENT CALENDAR and contract with the City and County of San Francisco December 10, 2024

Cities Race to Zero Campaign, committing to reduce emissions 60.5% from 2018 levels by 2030. To reach these goals, further emissions reduction is needed from Berkeley’s building sector, which accounts for 43% of Berkeley’s greenhouse gas emissions.

In 2020, Berkeley City Council amended Berkeley’s Building Emissions Saving Ordinance (BESO), directing staff to develop energy upgrade requirements, such as Building Performance Standards, for Council’s consideration. Additionally, Berkeley’s Existing Building Electrification Strategy (BEBES) identified Building Performance Standards as a primary policy strategy to equitably decarbonize Berkeley’s existing buildings.

In early 2023, Berkeley joined the National Building Performance Standard Coalition to accelerate an equitable transition off fossil fuels. By joining the Coalition, Berkeley committed to inclusively design and implement equitable Building Performance Standards. The State of California also joined the National BPS coalition and, through Senate Bill 48, the California Energy Commission will develop a BPS strategy by July, 1 2026. Similar to the State’s energy benchmarking program, local BPS policies would be exempt from the State’s BPS requirements.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Building Performance Standards will support Berkeley’s efforts to ensure a just transition and achieve its climate action goals by developing equitable energy and/or greenhouse emissions reduction targets for Berkeley’s large buildings with the community. These targets allow building owners to plan and incorporate upgrades within their building’s lifecycle. BPS requirements will also help Berkeley become a fossil fuel free city and community by transitioning Berkeley’s large buildings away from fossil fuels to clean, renewable electricity.

RATIONALE FOR RECOMMENDATION
Accepting this grant funding would allow the City to advance necessary work to implement Berkeley’s Existing Building Electrification Strategy by creating Building Performance Standards for Berkeley’s large buildings. This grant would also provide funding to support equity priority buildings in achieving the new requirements.

Acceptance of this grant funding would not commit the City to any specific policy outcome; it commits the City to develop BPS consistent with the City’s goal to be net zero emissions by 2045, without dictating the specific content of the standards themselves. The BPS would be a product of robust community engagement and would require future adoption by City Council.

ALTERNATIVE ACTIONS CONSIDERED
None.

Accept Grant Funds from U.S. Department of Energy’s Zero Codes Award CONSENT CALENDAR and contract with the City and County of San Francisco December 10, 2024

CONTACT PERSON
Jordan Klein, Director, Planning and Development Department, (510) 981-7534 Attachments:
1: Resolution
2: Press release – San Francisco Office of the Mayor - September 13, 2024

RESOLUTION NO. ##,###-N.S.

RESOLUTION TO ACCEPT GRANT FUNDS FROM THE U.S. DEPARTMENT OF ENERGY’S ZERO CODES AWARD AND CONTRACT WITH THE CITY AND COUNTY

OF SAN FRANCISCO TO DEVELOP, IMPLEMENT, AND ENFORCE BUILDING

PERFORMANCE STANDARDS
WHEREAS, on June 2, 2009, the Berkeley City Council adopted the Berkeley Climate Action Plan to reduce greenhouse gas emissions by 80% of Berkeley’s 2000 emissions level; and
WHEREAS, on June 12, 2018, the Berkeley City Council declared a Climate Emergency and proposed a goal of becoming Fossil Fuel-Free City; and WHEREAS, on December 1, 2020, Berkeley City Council amended the Building Emissions Saving Ordinance (BMC Chapter 19.81), directing staff to develop energy upgrade requirements for Council’s consideration; and
WHEREAS, on November 30, 2021, Berkeley City Council adopted a resolution for the Cities Race to Zero Campaign to establish a 2030 emissions reduction target that reflects Berkeley’s fair share of the 50% global reduction in CO2e, committing to reduce emissions 60.5% from 2018 levels by 2030; and
WHEREAS, on April 30, 2024, the City of San Francisco, in partnership with the City of Berkeley as a co-applicant, submitted a joint proposal in response to the DOE’s Latest and Zero Building Energy Codes Round 1 opportunity to fund the development, implementation, and enforcement of Building Performance Standards; and WHEREAS, on August 26, 2024, the U.S. Department of Energy announced that the City of San Francisco and City of Berkeley’s proposal was one of nineteen winners of the Zero Codes Round 1 funding; and
WHEREAS, the grant funding will lead to the adoption of Building Performance Standards for Berkeley’s large buildings, develop new supportive programs for equity priority buildings, and support region-wide readiness for Building Performance Standards.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager or their designee is authorized to accept the U.S. Department of Energy Assistance for the adoption of the “Latest and Zero Energy Building Codes” in the amount of $5,729,943 and negotiate and execute a contract, amendments, extensions, or change orders with City and County of San Francisco for the duration of January 1, 2025 through December 31, 2033.

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News
San Francisco Awarded $14 Million Federal Grant to
Advance BuildingElectrification Projects
San Francisco, in partnership with the City of Berkeley, receives funds to modernize and cut carbon emissions in large buildings as part of the historic Biden-Harris historic Ination Reduction Act
September 13, 2024
San Francisco, CA – San Francisco and the City of Berkeley have been awarded a grant from the US Department of Energy $19.9 million grant from the U.S. Department of Energy (DOE) to transform and modernize large buildings, including commercial and multi-family buildings. The regional grant, $14.3 million ofwhich will go to San Francisco, will help develop and implement equitable building performance standards (BPS) that will electrify buildings and eliminate emissions, and help move the BayArea to a more resilient and equitable all-electric future.

Mayor London N. Breed has worked to expand access to clean and aordable electricityfor residents across San Francisco. Under her leadership, the City has advanced programs that reduce carbon emissions and promote equitable access to clean energy, including discounts for 100% renewable energyfor low-income customers and rebates to replace fossil fuel-powered appliances. This grant will help San Francisco achieve Mayor Breed’s goal of eliminating emissions from all buildings by 2040. “San Francisco has been a leader in pioneering bold climate solutions, reducing emissions by nearly 50% since 1990,” said San Francisco Mayor London N. Breed. “Our Climate Action Plan sets out the path to continue to this work, and this grant will set the stage for electrifying San Francisco, Berkeley, and cities across the BayArea, bringing us closerto a net zero emissions future. I want to thank President Biden 中文
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Attachment 2

and Vice President Harris for their continued investment towards a stronger, better future for San Francisco.”
Building Performance Standards (BPS) are designed to reduce the carbon impact of communities by requiring existing buildings to meet energy and/or greenhouse gas emissions-based performance targets. San Francisco and Berkeley are one of 19 state and local governments awarded the grant to implement BPS, modernizing buildings to reduce emissions, improve health outcomes, and enhance climate resilience. The award and amount from the DOE is preliminary, subject to negotiations and nal approval by the federal government. Once complete, the grant will run for a total of nine years. “We’re thrilled to be awarded this grant opportunity from the U.S. Department of Energy to develop building performance standards with our community and help move our large buildings to a more climate friendly future,” said
City of Berkeley Mayor Jesse Arreguín. “In early 2023, Berkeley joined the National Building Performance Standard Coalition to accelerate an equitable transition o fossil fuels.

Alongside San Francisco, we look forward to creating a model policy that could be scaled throughout the region.”
The cities of San Francisco and Berkeley will collaborate with community partners to help Equity Priority Buildings in disadvantaged communities meet BPS outcomes without undue economic burden. As part of this eort, they will work with smaller Bay Area jurisdictions to establish a region-wide roadmap for BPS adoption and building decarbonization.
“I am grateful to see our shared vision for greenhouse gas reductions and equitable climate action armed by the Department of Energy with their grant award to San Francisco and Berkeley,” said District 8 Supervisor Rafael Mandelman. “San Francisco already has a long history of enacting cleaner building code and building operation requirements than those outlined by the State. These Building Performance Standards will continue to ensure San Francisco is a model for its dedication to innovation, modernization, and equitable climate action.”
San Francisco has long been recognized as a global sustainability leader, with the City recently being recognized as the top U.S. city by the American Council for an Energy Ecient Economy (ACEEE) in their 2024 City Clean Energy Scorecard . Through Mayor Breed’s 2021 Climate Action Plan, the San Francisco Environment Department has continued to advance bold building policies and strategies that were informed by their Zero Emission Buildings Task Force–a broad group of labor, tenant, environmental, ownership, technical and municipal stakeholders.
“Reducing pollution from San Francisco’s oldest and largest buildings is a complex challenge that requires broad collaboration. This grant will not only cut emissions locally but also create a blueprint for cities across the nation. Our work will help millions tackle the climate crisis while improving the health outcomes and quality of life for communities nationwide,” said Tyrone Jue, Director of the
San Francisco Environment Department.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director, Public Works
Subject: Contract No. 112219-1 Amendment: Siemens Industry, Inc. for Fire and Life Safety Systems Maintenance

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract No. 112219-1 with Siemens Industry, Inc. for Fire and Life Safety Systems Maintenance, increasing the current contract amount of $100,000 for a total not to exceed amount of $700,000 and extending the contract term through December 31, 2025.

FISCAL IMPACTS OF RECOMMENDATION
Funding for this contract amendment is available in the FY2025 baseline Building Management Fund 636, General Fund 011, and Off-Street Parking Fund 627. Annual funding for subsequent fiscal years will be subject to appropriation.

CURRENT SITUATION AND ITS EFFECTS
The City’s current contract with Siemens supports compliance with the maintenance of the City’s fire and life safety systems, along with monitoring equipment. Siemens also performs required inspections and testing of fire alarm and sprinkler systems. These systems are essential for protecting both City staff and residents. Siemens also provides on-call assistance and repairs as needed.

Amending the existing contract supports the Strategic Plan Priority of providing state-of- the-art, well-maintained infrastructure, amenities, and facilities.

BACKGROUND
On September 17, 2015, Public Works released a Request for Proposal (Specification No. 16-10976-c) for fire alarm and safety systems. Three proposals were received and Public Works staff determined that Siemens was the most responsive and responsible bidder that met the specifications. On the authority of Resolution Number 67,343-N.S., the City contracted with Siemens Industry, Inc. for fire and life safety system maintenance.

Contract No. 112219-1 Amendment: Siemens Industry, CONSENT CALENDAR Inc. for Fire and Life Safety Systems Maintenance December 10, 2024

On November 30, 2021, City Council authorized the City Manager to execute a Contract Amendment to increase the contract’s not to exceed amount to $600,000 and to extend the contract term through December 31, 2024.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identifiable environmental sustainability or climate impacts associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
Contracted services are required as the City does not have the personnel or expertise to ensure compliance with testing and monitoring of the fire alarm and life safety systems in City buildings.

ALTERNATIVE ACTIONS CONSIDERED
None. The City must ensure that its fire alarm and life safety equipment is operational in City facilities to protect both staff and residents. If the City decides to not amend this agreement, the City will potentially need to look into procuring these services with another vendor, which could cause delays in service and increased costs. Public Works is planning to release an RFP for this service in 2025, so this amendment will give the department the necessary time to complete this solicitation.

CONTACT PERSON
Joy Brown, Operations Manager, Public Works, (510) 981-6629 Aaron Baker, Facilities Superintendent, Public Works, (510) 981-6452 Peni Basalusalu, Deputy Director, Public Works, (510) 981-6485 Tucker Brofft, Senior Management Analyst, Public Works, (510) 981-5375 Attachments:
1: Resolution

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 112219-1 AMENDMENT: SIEMENS INDUSTRY, INC. FOR FIRE

AND LIFE SAFETY SYSTEMS MAINTENANCE
WHEREAS, the City buildings require monitoring and testing of installed Fire and Life Safety Systems; and
WHEREAS, the City does not have the specialized training or staff to perform this work; and
WHEREAS, on September 17, 2015, Public Works released a Request for Proposal (Specification No. 16-10976-c) for fire alarm and safety systems; and WHEREAS, three proposals were received and Public Works staff determined that Siemens was the most responsive and responsible bidder that met the specifications; and WHEREAS on January 19, 2016, City Council authorized the award of the contract to Siemens Industry Inc., Resolution 67,343 -N.S.; and
WHEREAS, on November 30, 2021, City Council authorized the City Manager to execute a Contract Amendment to increase the Contract’s not to exceed amount to $600,000 and to extend the Contract through December 31, 2024; and
WHEREAS, funding is available in the FY2025 baseline Building Management Fund 636, General Fund 011, Off-Street Parking Fund 627 and annual funding for subsequent fiscal years will be subject to appropriation.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is hereby authorized to execute an amendment to Contract No. 112219-1 with Siemens Industry, Inc for fire and life safety testing, monitoring and service, increasing the contract’s total not to exceed $700,000 and extending the contract term through December 31, 2025.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director, Public Works
Subject: Contract: Terocons Inc. for Sacramento Street Pedestrian Safety Project

RECOMMENDATION
Adopt a Resolution:

1. Approving plans and specifications for the Sacramento Street Pedestrian Safety Project (“Project”), Specification No. 24-11643-C;

2. Accepting the bid of Terocons Inc., the lowest responsive and responsible bidder; and

3. Authorizing the City Manager to execute a contract with Terocons Inc. and any amendments, extensions, and/or change orders until completion of the Project in accordance with the approved plans and specifications, in an amount not to exceed $973,638, which includes a 15% contingency for unforeseen circumstances.

FISCAL IMPACTS OF RECOMMENDATION
The construction budget for the Sacramento Street Pedestrian Safety Project is $880,000, which includes a 10% contingency. Funding is available in the FY2025 budget from the funding sources indicated below:

Construction Funding for Sacramento Street Pedestrian Safety Project State Grants (Fund 306 – Highway Safety Improvement Program)……............. $250,000 Alameda County Measure BB (Fund 135 – Bike and Pedestrian)..…………….. $239,689 Alameda County Measure B (Fund 130 – Local Streets & Roads).…………… $483,949 Total Project Funding …………………………………………………………........$973,638 Low Bid by Terocons Inc. $846,642
15% Contingency $126,996
Total Not-To-Exceed Construction Cost $973,638

CURRENT SITUATION AND ITS EFFECTS
The primary purpose of the Sacramento Street Pedestrian Safety Project is to improve safety for pedestrians and bicyclists crossing Sacramento Street in south Berkeley, in

Contract: Terocons Inc. CONSENT CALENDAR
for Sacramento Street Pedestrian Safety Project December 10, 2024

accordance with the City’s Vision Zero Action Plan which establishes a strategy to eliminate all traffic fatalities and severe injuries by 2028 while increasing safe, healthy, and equitable mobility for all. The Sacramento Street Pedestrian Safety Project is intended to reduce collisions caused by driver violation of the pedestrian right of way by making pedestrians more visible as they cross the street and reducing the speed of turning vehicles at crosswalks. Sacramento Street is identified as a high-injury street in the Vision Zero Action Plan and 2020 Pedestrian Plan.

The project parameters include the Sacramento Street corridor from Fairview Street to Oregon Street. The Project will construct the following elements on Sacramento Street:
 Median modifications, including pedestrian refuge islands at Oregon Street, Julia Street, Prince Street, and Fairview Street;
 Curb ramps at Oregon Street;
 Solar-powered Rectangular Rapid Flashing Beacon (RRFB) installation, including pedestrian push buttons near curb ramps and bicyclist push buttons near curbs, for crossing Sacramento Street at Oregon Street, Prince Street, and Fairview Street; and
 Slurry seal and new pavement striping along approximately ½-mile of Sacramento Street, from Fairview Street to Oregon Street.

On October 3, 2024 seven bids were received and opened for construction of the Project, in amounts ranging from $846,642 to $1,539,426. The determination of the low bidder was based on the total price of all bid items, as described in the bid documents.

The low bidder is Terocons Inc., with a bid of $846,642, or $46,642 above the engineer’s estimate of $800,000. Staff have verified that Terocons Inc. is the lowest, responsive and responsible bidder in accordance with the Public Contract Code.

The Living Wage Ordinance does not apply to this project as the Public Works Department’s construction contracts are, pursuant to City policy, subject to State prevailing wage laws. Terocons Inc. has submitted a Certification of Compliance with the Equal Benefits Ordinance. The Community Workforce Agreement applies to this project because the estimated construction cost exceeds $500,000. As a result, the successful bidder and all subcontractors will be required to sign an agreement to be bound by the terms of the Community Workforce Agreement.

Sacramento Street Pedestrian Safety Project is a Strategic Plan Priority Project, advancing our goal to provide state-of-the-art, well-maintained infrastructure, amenities, and facilities.

BACKGROUND
On July 28, 2020, City Council adopted resolution no. 69,525-N.S. authorizing the City Manager to submit a grant application to the California Highway Safety Improvement Program (HSIP) for the amount of up to $250,000, accept the grants awarded, and execute any resultant agreements and amendments. On December 1, 2020 City

Contract: Terocons Inc. CONSENT CALENDAR
for Sacramento Street Pedestrian Safety Project December 10, 2024

Council adopted resolution no. 69,634-N.S., which updated resolution no. 69,525-N.S by identifying local matching funds.

An agreement between the City and Caltrans was executed on August 12, 2021 under contract no 42200002, providing administrative provisions for future Caltrans grants using State funds. $250,000 in HSIP construction funds were allocated to the City on December 21, 2023. A Program Supplemental Agreement (PSA) was executed on May 6, 2024 as contract no. 42200002-1 formalizing this funding.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
The purpose of the Project is to provide safer crossings for pedestrians and bicyclists on Sacramento Street, which will encourage these sustainable modes of transportation.

Increasing walking and biking would help the City comply with the 2009 Berkeley Climate Action Plan Policy 5.a that calls for expanding and improving Berkeley’s pedestrian and bicycle infrastructure. The Climate Action Plan further states that transportation modes such as public transit, walking, and bicycling must become the primary means of fulfilling the City’s mobility needs in order to meet these targets.

RATIONALE FOR RECOMMENDATION
The proposed Project components were designed to address pedestrian and bicycle crossing safety needs along Sacramento Street, in accordance with the 2020 Pedestrian Plan and the Vision Zero Action Plan. Furthermore, the Vision Zero Action Plan classifies Sacramento Street as a High-Injury Street in an Equity Priority Area. An Equity Priority Area considers historic data in prioritizing infrastructure projects that remedy systemic inequality. As a whole, the work of this Project is a significant step forward to improve safety at intersection crossings and for people of all ages and abilities to traverse the Sacramento Street corridor more safely by walking or biking.

Approval of the plans and specifications, accepting the bid of Terocons Inc. as the lowest responsive and responsible bidder, and authorizing the City Manager to execute a contract with Terocons Inc. will keep the Project on schedule in accordance with the grant funding agreement.

ALTERNATIVE ACTIONS CONSIDERED
Council could opt not to take the proposed actions at this time and instead defer this item to a future Council agenda. Such a decision would delay the construction of the Project. Delays to the onset of construction could jeopardize successful project delivery as the City currently has the funding to complete the work and a design team on board that can provide continuity through the construction process. Delayed construction may also contribute to increased construction costs due to inflation and the need to revisit design documents to address unforeseen future construction activity or design policy changes.

CONTACT PERSON
Wahid Amiri, Deputy Director of Public Works, Public Works, 510-981-6396 Kenneth Jung, Supervising Civil Engineer, Public Works, 510-981-7028 Jesse Peoples, Associate Civil Engineer, Public Works, 510-981-6449

Contract: Terocons Inc. CONSENT CALENDAR
for Sacramento Street Pedestrian Safety Project December 10, 2024

Attachments:
1: Resolution
2: Site Map
3: Abstract of Bids

RESOLUTION NO. ##,###-N.S.

CONTRACT: TEROCONS INC. FOR SACRAMENTO STREET PEDESTRIAN SAFETY

PROJECT
WHEREAS, the design of the Sacramento Street Pedestrian Safety Project (Specification No. 24-11643-C) consists of pedestrian and bicycle safety improvements across Sacramento Street at Oregon Street, Julia Street, Tyler Street, Prince Street, Woolsey Street, and Fairview Street; and
WHEREAS, the Project is identified as a priority project in the City’s 2020 Pedestrian Plan; and
WHEREAS, funds are available in FY 2025 budget in the Capital Grants – State Fund (Fund 306), the Alameda County Measure BB Bike and Pedestrian Fund (Fund 135), and the Alameda County Measure B Local Streets and Roads Fund (Fund 130); and WHEREAS, no other funding is required, and no other project will be delayed due to this expenditure; and
WHEREAS, City Council adopted resolutions no. 69,525-N.S. and 69,634-N.S. which authorized the City Manager to submit a grant application to the California Highway Safety Improvement Program (HSIP) for the amount of up to $250,000, accept the grants awarded, and execute any resultant agreements and amendments; and WHEREAS, the City applied for and received HSIP grant funding in the amount of $250,000 for construction of improvements on Sacramento Street; and WHEREAS, the HSIP construction funds were allocated to the City on December 21, 2023; and
WHEREAS, on August 30, 2024 the City released an Invitation for Bids for the work of this Project; and
WHEREAS, Terocons Inc. was found to be the lowest responsive and responsible bidder; and
WHEREAS, the City has neither the staff nor the equipment needed to undertake construction of this Project.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the Plans and Specifications for the Sacramento Pedestrian Safety Project (Specification No. 24-11643-C) are approved.

December 10, 2024

BE IT FURTHER RESOLVED that the Council of the City of Berkeley accepts the bid of Terocons Inc. as the lowest responsive and responsible bidder.

BE IT FURTHER RESOLVED that the Council of the City of Berkeley authorizes the City Manager to execute a contract and any amendments, extensions, and/or change orders until completion of the Project in accordance with the approved Plans and Specifications with Terocons Inc. for an amount not to exceed $973,638, which includes a 15 percent construction contingency for unforeseen circumstances. A record signature copy of said agreement and any amendments will be on file in the Office of the City Clerk.

Attachment 2
Sacramento Street Pedestrian Safety Project (Specification No. 24-11643-C) - Approximate location of project work
N

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director, Public Works
Subject: Contract No. 32000078 Amendment: DC Electric Group, Inc for On-Call Electrical Services

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to amend Contract No. 32000078 between the City and DC Electric Group, Inc. for supplemental On-Call electrical services to support the Public Works Electrical Unit, increasing the current contract spending authority by $250,000 for a new total not to exceed amount of $725,000.

FISCAL IMPACTS OF RECOMMENDATION
This is an On-Call Contract; costs are incurred when services are performed. Initial funding is available in FY25 Fund 134 and FY25 Fund 142. Additional funding will be appropriated as part of the FY25 Second Annual Appropriations Ordinance and in future fiscal years as needed.

CURRENT SITUATION AND ITS EFFECTS
The Public Works’ Electrical Unit supports the City’s electrical needs by installing, repairing and replacing electrical wiring and components in City facilities and maintains City assets which rely on electric energy to operate; assets such as Traffic Signals, Pedestrian Crossing Signals, Street Lights, Marina Pier Lights, and Park Lights. Public Works’ Electrical Unit has been utilizing the on-call services of DC Electric Group to help resolve a back log of damaged Traffic Signals and Street Lights as well as to support the Unit with ongoing need for the repair of Traffic Signals and Street Lights damaged by vehicles. Increased contract spending authority is needed to be able to continue repairing damaged assets while also performing preventive maintenance on working assets to ensure community safety.

Amending the DC Electric Contract supports the City’s Strategic Plan Priority of providing state-of-the art, well maintained infrastructure, amenities, and facilities.

BACKGROUND
On November 3, 2016, Public Works issued a Request for Proposals for On-Call Electrical Services to support the Public Works Facilities Electrical Unit (Specification

Contract No. 32000078 Amendment DC Electric CONSENT CALENDAR Group, Inc for On-Call Electrical Service December 10, 2024

No. 16-11076-C.) Four proposals were submitted and two vendors were selected: DC Electric Group and Colombia Electric. On the authority of Resolution Number 68,007- N.S., the City contracted with DC Electric Group on June 1, 2017 and continues to utilize their on-call services to supplement the work of the City’s Electrical Unit.

On July 26, 2022, City Council approved an amendment for a revised not to exceed amount of $175,000 and to extend the contract through June 30, 2025.

On September 19, 2023, City Council approved an amendment for a revised not to exceed amount of $475,000 and to extend the contract through June 30, 2026.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
There are no identified environmental or climate impacts associated with the subject of this report.

RATIONALE FOR RECOMMENDATION
DC Electric Group continues to on-call services for the City to support the City’s in- house Electrical Unit in maintaining the City’s critical electrical assets and infrastructure.

Without DC’s services, needed maintenance and repairs would face delays.

Public Works is planning to release a solicitation for Electric Services in 2025, so this amendment gives the department time to complete the RFP process without causing delays or interruptions in service. In addition, the Electrical Unit is in the process of extending offers to hire two electricians to backfill long term vacancies.

ALTERNATIVE ACTIONS CONSIDERED
None. Public Works Electrical Unit does not have adequate resources to keep up with the ongoing maintenance and repairs of deployed electrical assets. It also does not have the capacity to provide services to install electrical wiring and components in new or renovated City facilities. Therefore, no alternative actions were considered.

CONTACT PERSON
Joy Brown, Operations Manager, Public Works, (510) 981-6629 Aaron Baker, Facilities Superintendent, Public Works, (510) 981-6452 Peni Basalusalu, Deputy Director, Public Works, (510) 981-6485 Tucker Brofft, Senior Management Analyst, Public Works, (510) 981-5375 Attachment:
1: Resolution

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 32000078 AMENDMENT: DC ELECTRICAL GROUP FOR ON-CALL

ELECTRICAL SERVICES
WHEREAS, the City requires supplemental emergency and non-emergency on-call electrical services for the repair, maintenance and replacement of multiple types of electrical assets and for the maintenance and installation of electrical infrastructure in City facilities; and
WHEREAS, the City does not have sufficient resources to provide the required maintenance and repair of the City’s electrical assets in a timely or cost-effective manner; and
WHEREAS, the City issued a Request for Proposal (RFP) Specification No. 16-11076-C for on-call electrical services on November 3, 2016, four contractors responded to the RFP on December 8. 2016; two contractors met all requirements and conditions of the RFP; and
WHEREAS, staff reviewed and evaluated all proposals submitted and on authority of Council Resolution No. 68,007-N.S., contracted with DC Electric Group on June 1, 2016; and
WHEREAS, on July 26, 2022, City Council authorized the City Manager to execute a Contract Amendment to increase the Contract’s spending authority by $100,000 for a new not to exceed amount of $175,000 and to extend the Contract through June 30, 2025; and
WHEREAS, on September 19, 2023, City Council authorized the City Manager to execute a Contract Amendment to increase the Contract’s spending authority by $300,000 for a new not to exceed amount of $475,000 and to extend the Contract through June 30, 2026; and
WHEREAS, this Contract is for on-call services only; no costs will be incurred until applicable City projects or emergency needs are identified and Contractor services are requested; and
WHEREAS, funding is available in the Street Light Assessment District Fund 142 and Measure BB – Local Streets and Road Fund 134 and additional funding will be appropriated as part of the FY25 Second Annual Appropriations Ordinance and in future fiscal years as needed.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute an Amendment to Contract No. 32000078 with DC Electric Group for On-Call Electrical Services to increase the Contract’s spending authority by $250,000 for a new total not to exceed amount of $725,000.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director, Public Works, Director Subject: Contract: Stommel Inc., dba Lehr for Hybrid Police Patrol Vehicles Supplies, Equipment, and Installation Services

RECOMMENDATION
Adopt a Resolution satisfying bid requirements of the City allowing the City to participate in competitively bid contracts, authorizing the City Manager to enter into contract with Stommel Inc. dba Lehr, for Hybrid Police Patrol vehicle supplies, equipment, and installation services with a contract term from December 15, 2024 to December 15, 2026 for an amount not to exceed $400,000.00.

FISCAL IMPACTS OF RECOMMENDATION
Funding in the amount of $400,000.00 will be available for FY 2025 in the baseline Public Works Equipment Replacement Fund. Additional funding will be made available and appropriated as needed in future fiscal year budgets.

CURRENT SITUATION AND ITS EFFECTS
The Police Department replaces patrol vehicles on a routine basis. Police Patrol vehicles require specialized equipment and installation. The contract with Stommel Inc. dba Lehr will provide supplies, equipment, and installation services for twenty-one (21) vehicles that have been previously purchased by the City. The City’s competitive bidding requirements for contracting will be met utilizing the County of Orange contract No. MA-080-23011506.

These replacement vehicles are needed by the City’s Police Department Patrol Division in their work to provide public safety services in Berkeley. This contract will support the City’s Strategic Plan Priority Project, advancing our goal to create a resilient, safe, connected, and prepared city.

BACKGROUND
City Charter Article XI Section 67.2 allows the City to purchase goods without undergoing a competitive bid process if the City utilizes pricing obtained by another entity through a competitive process. On January 16, 2024, the County of Orange entered into a contract for Patrol Vehicle Equipment, Supplies, and Equipment

Internal
Contract: Stommel Inc dba Lehr for Hybrid Police Patrol CONSENT CALENDAR Vehicles Supplies/Equipment and Installation Services December 10, 2024

Installation Services, contract No MA-080-23011506. Attachment A, Section 15 states that this contract will be extended to other California local and state governmental entities wishing to use the pre-negotiated prices and terms of this contract.

Throughout the year, the Department of Public Works purchases vehicles and equipment for the City’s operating departments. These vehicles require specialized supplies/equipment and installation. This is paid for through the Equipment Replacement fund. If a purchase will exceed $50,000, the Department of Finance, General Services Division solicits bids or “piggybacks” off competitively bid contacts to ensure the City’s departments receive the best pricing.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Public Works Equipment Maintenance endeavors to procure the most fuel-efficient vehicles and equipment that are suitable for the required tasks. Equipment Maintenance also researches the feasibility and availability of fully electric vehicles and hybrid-electric powertrains to support the City’s transition away from fossil fuels toward an all-electric fleet, where technically feasible.

RATIONALE FOR RECOMMENDATION
Hybrid Police patrol vehicles have been overdue for replacement and have been previously purchased. The majority of current police patrol vehicles chosen for replacement is over eight (8) years old and the oldest vehicle is fifteen (15) years old.

The majority of these vehicles were purchased in 2016 with the replacement vehicles been purchased in 2023. Due to manufacturing delays, the replacement vehicles have been only recently available for delivery.

These vehicles require specialized supplies, equipment, and installation to ensure that they meet public safety and operational requirements. A contract is needed to secure additional supplies and installation services for these vehicles for the City. Piggybacking on pricing obtained through another public agency’s competitive bidding process ensures that the City is receiving the most competitive pricing.

ALTERNATIVE ACTIONS CONSIDERED
None. The previously purchased vehicles require specialized supplies, equipment, and installation to meet operational requirements. City staff do not have the capacity for the upfitting of twenty-one vehicles.

CONTACT PERSON
Joy Brown, Operational Manager, (510) 981-6629
Sara Rubio, Associate Management Analyst, (510) 981-5372 Marcus Dinkins, Police Annuitant, (510) 981- 5871
Attachment:
1: Resolution

Internal
RESOLUTION NO. ##,###-N.S.

CONTRACT: STOMMEL INC, DBA LEHR, HYBRID POLICE PATROL VEHICLE

SUPPLIES/EQUIPMENT INSTALLATION SERVICES
WHEREAS, vehicle supplies/equipment and installation services are needed by the City Police Department in their work to provide public safety services in Berkeley; and WHEREAS, twenty-one (21) hybrid Police patrol vehicles that have been previously purchased need specialized supplies/equipment and installation services to meet public safety and operational requirements; and
WHEREAS, City Charter XI Section 67.2 allows the City to purchase goods without undergoing a competitive bid process if the City uses pricing obtained by another entity through a competitive bid process; and
WHEREAS, County of Orange contract bid procedures satisfy the procurement requirements of the City of Berkeley; and
WHEREAS, On January 16, 2024, the County of Orange entered into a contract for Patrol Vehicle Equipment, Supplies, and Equipment Installation Services, contract No MA-080- 23011506. Attachment A, Section 15 states that this contract will be extended to other California local and state governmental entities wishing to use the pre-negotiated prices and terms of this contract; and
WHEREAS, funds are available in the FY 2025 Equipment Replacement baseline budget and will be appropriated in future fiscal years.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorize to execute a contract for Hybrid Police Patrol vehicle supplies, equipment and installation services with Stommel Inc. dba Lehr for a contract term from December 15, 2024 to December 15, 2026 in the amount not to exceed $400,000.00.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: https://berkeleyca.gov/

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director, Public Works
Subject: Purchase Order: Braun Northwest Inc. for Two (2) 2025 Ford F-450 North Star Engine Remount of Ambulance Bodies to New Chassis

RECOMMENDATION
Adopt a Resolution satisfying requirements of City Charter allowing the City of Berkeley (“City”) to participate in HGACBuy contract bid procedures and authorizing the City Manager to purchase two (2) 2025 Ford F-450 North Star Ambulance chassis with Braun Northwest, Inc. in an amount not to exceed $430,000.00.

FISCAL IMPACTS OF RECOMMENDATION
The purchase of two (2) 2025 Ford F-450 North Star ambulance chassis will not exceed $430,000.00. This purchase total includes document fees, California tire fees and delivery charges. Funding for this purchase is available in the FY 2025 baseline Equipment Replacement Fund 671.

CURRENT SITUATION AND ITS EFFECTS
This purchase will replace the chassis of two (2) ambulances Equipment ID 19001 and 19003 that are nearing the end of useful service life as front line, initial response vehicles. Both vehicles were put in service in 2020 and are planned for replacement in July 2026. The average time to remount and upfit and an ambulance is 12 plus months which is why the purchase is being requested at this time.

The existing ambulance bodies are customized for optimal use, are in good repair and will be remounted on new chassis. The practice of remounting ambulance bodies on new chassis rather than purchasing new ambulances is an effective cost saving measure as it will save over $100,000.

These vehicles are used 24/7 by the City’s Emergency Medical Services (EMS) Division in the course of their job duties.

This purchase agreement will support the City’s Strategic Plan Goal of creating a resilient, safe, connected, and prepared City.

Purchase Agreement with Braun Northwest, Inc. For CONSENT CALENDAR Two (2) 2025 North Star Engine Remount December 10, 2025

BACKGROUND
If a purchase request exceeds $100,000.00, the Department of Finance, General Services Division solicits bids or “piggybacks” off competitively bid contracts to ensure the City’s departments are receiving the best pricing.

The City of Berkeley has been a no-cost member of the Houston-Galveston Area Council (HGACBuy), a Cooperative Purchasing Program that has offered inter-local purchasing since 2008. HGACBuy provides procurement services that make the government procurement process more efficient by establishing competitively priced contracts for goods and services made available to local governments nationwide.

All products and services offered through HGACBuy have been subjected to a public competitive bid process. On June 9, 2023, HGACBuy released a Request for Proposal No. AM 10-23 for Ambulances, EMS and Other Special Service Vehicles. The solicitation was nationally advertised for forty-eight days (48). On August 10, 2023, twenty-three (23) proposals were submitted and reviewed. On October 1, 2023, Houston-Galveston Area Council selected Braun Northwest, Inc. as the best responsive and responsible proposers to meet the specifications, thusly awarding Contract No.

AM10-23
HGACBuy charges an order processing charge for each sale successfully completed through their contract. For this purchase a flat fee of $4,000.00 will be paid directly to HGACBuy by Braun Northwest, Inc.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
For fleet purchases, Public Works staff researches the feasibility and availability of fully electric vehicles and hybrid-electric powertrains to support the City’s transition off fossil fuels. Staff research found that there are no viable electric or hybrid electric ambulance chassis for consideration. The Fire Department would like to transition its fleet of front- line EMS vehicles to electric. This is likely to not be financially feasible until all firehouses are remodeled/rebuilt to include the appropriate infrastructure and/or the price of electric ambulance vehicles decrease or additional revenue is identified.

RATIONALE FOR RECOMMENDATION
The vehicles are in-service now and the chassis are past their useful life. These vehicle bodies are in good repair and can be remounted on new chassis. A purchase order is needed to purchase new chassis and transfer the current ambulance bodies.

Ambulances in good working condition are essential to respond, provide treatment and transport for members of our community that experience medical emergencies.

ALTERNATIVE ACTIONS CONSIDERED
None. The purchase of new ambulances is cost prohibitive.

Purchase Agreement with Braun Northwest, Inc. For CONSENT CALENDAR Two (2) 2025 North Star Engine Remount December 10, 2025

CONTACT PERSON
Joy Brown, Operations Manager, (510) 981-6629
Don Colbert, Sr. Equipment Maintenance Supervisor, (510) 981-6467 David Sprague, Fire Chief (510) 981-3473
Attachment:
1: Resolution

RESOLUTION NO. ##,###-N.S.

PURCHASE ORDER WITH BRAUN NORTHWEST, INC FOR TWO (2) 2025 FORD F- 450 NORTH START ENGINE REMOUNTS OF AMBULANCE BODIES TO NEW

CHASSIS
WHEREAS, this purchase will replace engine chassis that are nearing the end of their useful service life as front line, initial response vehicles. Ambulances in good repair are needed by the City of Berkeley Fire Department to provide ambulatory services; and WHEREAS, City Charter, by resolution, authorize the City to purchase goods without undergoing a competitive bid process if the City uses pricing obtained by another entity through a competitive bid process; and
WHEREAS, On June 9, 2023, HGACBuy released a Request for Proposal No. AM 10-23 for Ambulances, EMS and Other Special Service Vehicles. The solicitation was nationally advertised for forty-eight days (48). On August 10, 2023, twenty-three (23) proposals were submitted and reviewed. On October 1, 2023, Houston-Galveston Area Council selected Braun Northwest, Inc. as the best responsive and responsible proposers to meet the specifications, thusly awarding Contract No. AM10-23; and WHEREAS, funding in the amount of $430,000.00 is available in the FY 2025 baseline budget in the Equipment Replacement Fund (671); and
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the City Manager is authorized to execute a purchase order for two (2) ambulance engine remounts to new chassis in the amount not to exceed $430,000.00.

Office of the City Manager
2180 Milvia Street, Berkeley, CA 94704 ● Tel: (510) 981-7000 ● TDD: (510) 981-6903 ● Fax: (510) 981-7099 E-Mail: [email protected] Website: http://www.CityofBerkeley.info/Manager

CONSENT CALENDAR
December 10, 2024
To: Honorable Mayor and Members of the City Council
From: Paul Buddenhagen, City Manager
Submitted by: Terrance Davis, Director of Public Works
Subject: Agreement Regarding Allocation of Costs for Railroad Crossing Improvements for W-SW WBLS West Owner IX, L.P., a California limited liability company and the City

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an agreement and any amendments with the W-SW WBLS West Owner IX, L.P., (“Developer”) for payment for all improvements mitigating the impact of their Development (Project) at the Bancroft Way at-grade railroad crossing.

FISCAL IMPACTS OF RECOMMENDATION
Developer is responsible for all actual costs and expenses for the Union Pacific Railroad’s (UPRR) performance of the safety improvement work at Bancroft Way crossing pertaining to their Project. One main purpose of this agreement is to document the process pursuant to which Developer shall assume responsibility for all such railroad costs.

The agreement further confirms that Developer and its contractor(s) are responsible for complying with all UPRR insurance and other requirements applicable to any work performed by the Developer with respect to Developer’s portion of the Project Railroad Improvements.

Developer and City agree that Developer shall be responsible for making all payments to the UPRR. There is no fiscal impact to the City as a result of this agreement.

CURRENT SITUATION AND ITS EFFECTS
Within Project area there is an at-grade railroad crossing at Bancroft Way. The projected impacts of the Developer. The Development will require improvements to safely facilitate all road users through this intersection.

The City, Developer and UPRR have agreed on the Scope of Work for Developer’s Work Associated with the Railroad Crossing at Bancroft Way, shown in Schedule 1 within Attachment 2.

Agreement Regarding Allocation of Costs for CONSENT CALENDAR Railroad Crossing Improvements for W-SW WBLSWest Owner IX, L.P., December 10, 2024 a California limited liability company and the City of Berkeley

BACKGROUND
The Developer is constructing a new Project at 747 Bancroft Way, which consists of a 159,143-square-foot, three-story building containing 124,539 square feet of research and development space and 34,604 square feet of light manufacturing space, and a surface parking lot containing 76 off-street parking spaces and five loading spaces.

Pursuant to Use Permit # ZP2021-0096, the Project is subject to certain conditions of approval that require Developer to coordinate with the UPRR, the California Public Utilities Commission (CPUC) and the City to improve the safety of all travelers at the Bancroft Way at-grade railroad crossing next to Project site.

ENVIRONMENTAL SUSTAINABILITY AND CLIMATE IMPACTS
Ensuring that the developer works with UPRR to make the Bancroft Way railroad crossing safe is critical to supporting biking and walking in Berkeley. Biking and walking are the most environmentally sustainable modes of transportation, and the City’s Climate Action Plan seeks to make them the “primary means of transportation for Berkeley residents and visitors.” Bancroft Way is a key connection in the biking and walking network, bringing people of all ages and abilities to and from Aquatic Park and the pedestrian and bicyclist bridge over I-80 to the waterfront. What’s more, this development, and others nearby, will increase bike traffic, making it even more important to ensure safety for vulnerable road users.

RATIONALE FOR RECOMMENDATION
The UPRR does not enter into agreements with private entities. Therefore, the City will enter into an agreement with the UPRR on behalf of the Developer with the Developer is agreeing to pay all the associated UPRR costs.

ALTERNATIVE ACTIONS CONSIDERED
Since Union Pacific does not enter into agreements with private entities, the City is acting as the go-between between Developer and Union Pacific in order for the safety improvements to be implemented. If the City does not enter into this agreement, UPRR will not approve the project, therefore no alternatives are feasible.

CONTACT PERSON
Wahid Amiri, Deputy Director, (510) 981-6396
Hamid Mostowfi, Transportation Division Manager, (510) 981-6403 Attachments:

1. Resolution

2. C&M agreement with UPRR (Bancroft Way) DOT 751176H Berkeley CA

3. W-SW WBLS West Owner IX, L.P. Agreement re allocation of costs for railroad crossing

RESOLUTION NO. ##,###-N.S.

AGREEMENT: REIMBURSEMENT AGREEMENT WITH STEELWAVE
DEVELOPMENT FOR STEELWAVE’S CONSTRUCTION OF PUBLIC FACILITIES WHEREAS, W-SW WBLS West Owner IX, L.P. is engaged in the development of certain real property located at 747 Bancroft Way in the City; and WHEREAS, Within the development project area there is an at-grade railroad crossing at Bancroft; and
WHEREAS, The impacts of the W-SW WBLS West Owner IX, L.P. will require improvements to safely facilitate all road users through this intersection; and WHEREAS, Development of the project under the use permit requires construction of certain traffic improvements, which consist of the portion of Union Pacific Railroad crossings safety improvements pertaining to the SteelWave project at Bancroft Way crossing, collectively "Public Facilities" in the project area that will serve W-SW WBLS West Owner IX, L.P. as well as the public; and
WHEREAS, Since Union Pacific does not enter into agreements with private entities the City will act as the go-between between Developer and Union Pacific in order for the safety improvements to be implemented; and
WHEREAS, Developer acknowledges responsibility and will pay for all actual costs and expenses for the UPRR parties performance of the safety improvement work pertaining to Developer’s portion of the railroad improvements at the railroad crossing; and WHEREAS, City of Berkeley will submit invoices for implementation of “Public Facilities” by Union Pacific to W-SW WBLS West Owner IX, L.P. for payment directly to Union Pacific.

NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that a reimbursement agreement and any amendments with W-SW WBLS West Owner IX, L.P. for payment of implementation of Developer’s portion of safety improvements by Union Pacific at railroad crossings at Bancroft Way is accepted. A record signature copy of said agreement and any amendments will be filed in the Office of the City Clerk.

AGREEMENT RE ALLOCATION OF COSTS FOR RAILROAD CROSSING

IMPROVEMENTS FOR THELAB BERKELEY
This Agreement Regarding Allocation of Costs for Railroad Crossing Improvements for theLAB Berkeley (“Agreement”) is by and between W-SW WBLS West Owner IX, L.P., a Delaware limited partnership (“Developer”), and the City of Berkeley (“City”), and is effective this __ day of _____________, 2024.

RECITALS
A. Developer is developing a research and development campus at 2288 4th Street (fka 747 Bancroft Way), Berkeley known as theLAB Berkeley project consisting of a 159,143-square- foot, three-story building containing 124,539 square feet of research and development space and 34,604 square feet of light manufacturing space, and a surface parking lot containing 76 off- street parking spaces and five loading spaces. Developer (“Project”).

B. Developer is negotiating an agreement with the City regarding Developer undertaking certain off-site improvements (“Off-Site Work”), a small part of which Off-Site Work includes work which will take place on Union Pacific Railroad (UPRR) operating corridor within City of Berkeley. Developer has been coordinating with UPRR, the California Public Utilities Commission (“CPUC”), and the City to improve the safety of all travelers at the Bancroft Way at-grade railroad crossing near the Project site (“Crossing”). Developer, UPRR and the CPUC have agreed upon the nature and scope of the improvements which Developer will undertake on UPRR operating corridor all of which improvements are listed on Schedule 1 attached hereto (the improvements listed on Schedule 1 referred to hereinbelow collectively as the “Project Railroad Improvements”).

C. Because UPRR will not enter into an agreement with a private entity, the City and UPRR intend to enter into a Construction and Maintenance Agreement, in the form and substance attached hereto as Exhibit A, ( “C&M Agreement”) pursuant to which City will agree to reimburse UPRR and/or UPRR’s third party consultants and contractors (collectively, the “UPRR Parties”) for actual costs incurred by the UPRR Parties for all project and construction management costs performed by the UPRR Parties during the construction activities in the railroad operating corridor for the Project Railroad Improvements (such UPRR estimated costs being referred to herein as “Railroad Costs”), on Exhibit C-1 of the C&M Agreement. For clarification, the C&M Agreement affects a larger scope of construction work, part of which will not be done by Developer. One main purpose of this Agreement is to document the process pursuant to which Developer shall assume responsibility for the actual Railroad Costs with respect to the Project Railroad Improvements, in recognition of the fact that, if Developer undertakes the Off-Site Work, the costs related to completion of the Project Railroad Improvements shall be Developer’s responsibility. Developer and City hereby acknowledge and agree that Developer will only be responsible for reimbursing UPRR for the costs related to the Project Railroad Improvements listed on Schedule 1 attached hereto and not for any of the additional construction and/or improvements which are the subject of the C&M Agreement.

D. This Agreement is further intended to confirm that Developer and its contractor are responsible for complying with all UPRR insurance and other requirements expressly set forth in the C&M Agreement applicable to any work performed by Developer and/or its contractor with respect to the Project Railroad Improvements.

AGREEMENT

1. Under the C&M Agreement, City (as “Political Body”) will be responsible for one hundred percent (100%) of all actual costs and expenses for the UPRR Parties’ performance of the Project Railroad Improvements, as set forth on Schedule 1 attached hereto. Developer acknowledges that the Estimate, as such term is defined in the C&M Agreement, is only an estimate of the expected Railroad Costs, as further detailed and explained in the C&M Agreement. Developer and City hereby agree that Developer shall be responsible for making all payments to the UPRR Parties which City is obligated to make under the C&M Agreement but with respect only to the Project Railroad Improvements (and not any other improvements which are the subject of the C&M Agreement), on and subject to the terms of this Agreement; provided however, that the foregoing obligations to make payments shall not apply unless and until Developer has commenced construction of the Project Railroad Improvements. City covenants to promptly provide Developer with copies of all progressive billing and all final billing promptly upon receipt of the same from UPRR.

2. Prior to the execution of any C&M Agreement between the City and UPRR with respect to the Project Railroad Improvements, Developer shall furnish to City and UPRR reasonable evidence that Developer has procured the insurance required as described in Exhibit B.

3. Within five (5) days after receipt of any bill (progressive, final, or otherwise) from the UPRR Parties with respect to any portion of the Project Railroad Improvements, City shall deliver a copy of such bill by email to Developer at the email address(es) set forth in Section 12 below, and shall simultaneously send a copy of such bill to Developer by regular mail at the street address(es) set forth in said Section 12. Developer agrees to reimburse UPRR or other UPRR Party within thirty (30) days after receipt of the emailed copy of each bill from City.

4. Developer acknowledges and agrees that Developer shall be responsible for performing, or causing its contractor to perform, the Project Railroad Improvements. Developer further agrees that any contractor retained by Developer to perform any portion of the Project Railroad Improvements carried out on UPRR operating corridor shall comply with the conditions on such work expressly required under the C&M Agreement. Without limiting the specificity of the foregoing, Developer shall require any contractor performing work on UPRR operating corridor to execute UPRR’s then-current form of Contractor’s Right of Entry Agreement (“CROE Agreement”) and comply with the requirements set forth therein on Exhibit D of the C&M Agreement.

5. Developer shall require any contractor entering onto UPRR operating corridor to maintain all insurance required by UPRR under the CROE Agreement, or to be covered by an Owner Controlled Insurance Program (“OCIP”) policy providing such coverage. City acknowledges and agrees that such insurance requirements satisfy and supersede any insurance requirements which City would otherwise impose on such contractor and its work, except that Developer shall require its contractor’s or OCIP insurance to be endorsed as follows:
(a) For the commercial general liability and automobile insurance, the City (including its elected officials, employees, and agents) shall be named as additional insured, and the policy shall be endorsed accordingly.
(b) The contractor’s or OCIP insurance shall be primary to any other insurance, self-insurance or joint self-insurance available to the City with respect to any claim

arising out of this Agreement. Any insurance, self-insurance or joint self-insurance maintained by the City shall be excess of the contractor’s insurance and shall not contribute with it. (c) The contractor’s or OCIP insurance will not be cancelled, limited or allowed to expire until after thirty (30) days’ written notice has been given to the City, except in the event of nonpayment for premium, in which case ten (10) days’ advance notice shall be required. During the term of this Agreement, the contractor shall not materially alter any of the policies or reduce any of the levels of coverage afforded thereby.

6. The laws of the State of California shall govern this Agreement. The Parties agree that venue for any dispute shall be Alameda County, California.

7. The terms of this Agreement shall not be altered or otherwise modified except by a written amendment to this Agreement executed by City and Developer.

8. Developer is, and at all times shall remain, an independent contractor solely responsible for all acts of its employees, agents, contractors, or subcontractors, including any negligent acts or omissions. Developer is not City's agent, and shall have no authority to act on behalf of the City, or to bind the City to any obligation whatsoever, unless the City provides prior written authorization to Developer.

9. If any part of this Agreement or the application thereof is declared invalid for any reason, such invalidity shall not affect the other terms of this Agreement which can be given effect without the invalid provision or application, and to this end the provisions of this Agreement are declared to be severable.

10. Failure of City to insist on strict performance shall not constitute a waiver of any of the provisions of this Agreement or a waiver of any other default of Developer.

11. This Agreement shall be binding on and inure to the benefit of the heirs, executors, administrators, successors, and assigns of the Parties hereto.

12. The terms and conditions of this Agreement and any documents incorporated by reference represent the entire agreement between the parties with respect to the subject matter of this Agreement. This Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between City and Developer. No other agreement, statement, or promise relating to the subject matter of this Agreement shall be valid or binding except by a written amendment to this Agreement.

13. All notices and other communications which are required or may be given under this Agreement or any Exhibits hereto shall be in writing and shall be deemed to have been duly given (i) when received if personally delivered; (ii) upon receipt if sent for next day delivery by recognized overnight delivery service (e.g., FedEx); (iii) upon receipt, if sent by certified or registered mail, return receipt requested; (iv) upon receipt, if sent by email, with recipient confirmation; and (v) upon receipt, if the communication consists of a bill sent by email as permitted by Section 2 and the bill is also sent by regular mail as required by Section 2. In each case notice shall be sent to the respective Parties as follows:

To City: Hamid Mostowfi
Transportation Division Manager
City of Berkeley
1947 Center St., 4th Floor
Berkeley, CA 94704
Email: [email protected]

To Developer: W-SW WBLS West Owner IX, L.P.
c/o Steelwave, LLC
Bridget Metz
999 Baker Way, Suite 200
San Mateo, CA 94404
Email: [email protected]

With copy to:

14. This Agreement may be executed in one or more counterparts, each of which shall be considered an original, but all of which together shall constitute one and the same instrument.

An emailed or PDF or photocopy signature on this Agreement shall have the same legal effect as an original signature.

IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the date set forth above.

Approved as to form: CITY OF BERKELEY

By:

Deputy City Attorney Name:

Title:

DEVELOPER

W-SW WBLS West Owner IX, L.P.,
a Delaware limited partnership ,
Owner
By: SteelWave CDS, LLC,
a Delaware limited liability company,
as construction manager and agent for Owner

By: ___________________

Name: ________________

Its: __________________

1 UP Re
al Estate Project No.: 0783795

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Bancroft Way
DOT 751
176H
MP 5.92 – Martinez Subdivision
Berkeley, Alameda County, California

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 BERKELEY, a municipal corporation or political subdivision of the State of California to be addressed at 1947 Center Street, 2 nd Floor, Berkeley, California 94704 ("Political Body").

RECITALS:

Presently, the Political Body utilizes the Railroad’s property for the existing at grade public
road crossing over Bancroft Way, DOT Number 751176H at Railroad’s Milepost

5.92 on Railroad’s Martinez Subdivision at or near Berkeley, Alameda County, California.

The P
olitical Body now desires to undertake as its project (the “Project”) the reconstruction and widening of the existing at grade public road crossing to accommodate the reconstruction of sidewalks and installation of delineators as medians. The road crossing, as reconstructed and widened is hereinafter the “Roadway.”

The Railroad right of way being utilized for the existing at grade public road cr
ossing 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 at grade crossing) is shown on the Railroad’s location print marked Exhibit A and the Political Body’s type, size and location prints of the Project marked Exhibit A-1, with each exhibit being attached hereto and hereby made a part hereof (the “Crossing Area”).

In s
upport of its Project, the Political Body has requested the Railroad’s cooperation in connection with upgrading grade crossing protection devices in accordance with the design schematic marked Exhibit E, hereto attached and hereby made a part hereof (the “Designs”). Said work is to be performed at the sole expense of Political Body.

2 The R
ailroad 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 Ex
hibit B, are at
tached hereto and
hereby made a part hereof.

Section 2. RAILROAD GRANTS RIGHT

For and in consideration of the sum of THREE THOUSAND DOLLARS ($3,000.00) 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 construct, maintain and repair the Roadway over and across the Crossing Area.

Section 3. DEFINITION OF CONTRACTOR

For purposes of this Agreement the term “Contractor” shall mean the contractor or contractors hired by the Political Body 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.

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

3 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. 0783795

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.

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 ex
pense, is described in the Railroad's Material and Force Account Estimates dated M
ay 31, 2023, and June 7, 2023, marked Exhibit C, and October 4, 2023 marked Exhibit C-1, with each exhibit being attached hereto and hereby made a part hereof (the "Estimates"). As set forth in the Estimates, the Railroad's estimated cost for the Railroad's work associated with the Project is One Million Four Thousand Five Hundred Forty Four Dollars ($1,004,544.00).

4 B. The Railroad, if it so elects, may recalculate and update the Estimates 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 Estimates.

C. The P
olitical Body acknowledges that the Estimates 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 one hundred eighty (180) days after receiving written notice from the Political Body that all Project work affecting the Railroad's property has been completed.

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 Cont ractor), 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 and the Structure 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 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.

5 D. The R
ailroad'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 C ontractor 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, wirelines, 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 lim itation, 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 ter ms 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 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 8B, (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

6 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 Cros
sing 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 Contactor's Right of Entry Agreement.

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. Poli
tical 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.

7 Section 14. SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009

If the Political Body will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the Political Body agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The Political Body confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a "recipient" receiving ARRA funding directing from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the Political Body and not of the Railroad, and (ii) the Political Body shall not delegate any ARRA reporting responsibilities to the Railroad. The Political Body also confirms and acknowledges that (i) the Railroad shall provide to the Political Body the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing, and (ii) such standard and customary billing and documentation from the Railroad provides the information needed by the Political Body to perform and complete the ARRA reporting documents. The Railroad confirms that the Political Body and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project as provided in Section 11 of Exhibit B of this Agreement.

Section 15. TERMINATION OF ORIGINAL AGREEMENT

Upon the completion of the Roadway, the original agreement either governing currently, or any agreement to be found in the future at the existing at -grade crossing, shall terminate and the terms and conditions of this Agreement shall govern the use, maintenance and repair of the Roadway.

Section 16. ANNUAL SIGNAL MAINTENANCE FEE

A. Effective as of three years from effective date of this Agreement or the date of installation and/or the in- service date of the new and/or improved or existing Grade Crossing Signal System(s) ("Signal System”), the Political Body, in addition to maintaining at its sole cost and expense the portion of the Roadway described in Section 2 of Exhibit B, agrees to pay to Railroad the sum of Thirty Thousand Three Hundred Twenty Nine Dollars ($30,329.00) per annum, payable annually in advance, as payment for Railroad's maintenance of the Signal System that is installed at the Roadway. The annual signal maintenance fee is calculated as shown on the attached Exhibit F, attached hereto and made a part hereof.

B. The above annual signal maintenance fee for Railroad's maintenance of the Signal System is based on the number of current signal units installed at the Roadway. If the Signal System is improved and/or altered in any way, the Political Body must notify the Railroad in writing and the annual signal maintenance fee will be increased at a rate based on the American Railway Engineering and Maintenance of Way Association (AREMA) signal unit cost index. If the Political Body fails to notify Railroad of any improvement or alteration to the Signal System, the Railroad may increase the annual

8 signal maintenance fee at a rate based on the AREMA signal unit cost index any time after the date of installation and/or improvement of the Signal System. The signal unit base for the annual signal 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 signal maintenance fee was last determined or established. Any such changes in the annual signal maintenance fee referenced in Article 2 may be made by means of automatic adjustment in billing.

9 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 Tax ID #94-6001323)

By: _________________________________
Printed Name: ________________________
Title: ________________________________

CITY OF BERKELEY

By: ________________________________
Printed Name: ________________________
Title: ________________________________

EXHIBIT A
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit A will be a print showing the Crossing Area (see Recitals)

EXHIBIT A-1
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit A-1 will be the Political Body’s type, size and location prints of the Project (see Recitals)

COPYRIGHT © BKF ENGINEERS2021

BERKELEY COMMONS RAILROAD IMPROVEMENTS

BANCROFT WAY

CITY OF BERKELEY, ALAMEDA COUNTY

BKF ENGINEERS
255 SHORELINE DRIVE
SUITE 200
REDWOOD CITY, CA 94065
(650) 482-6300
www.bkf.com
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FACE OF CURB

PAINT RED, TYPICAL

INCREASED CURB RADIUS TO

ALLOW EFFICIENT TRUCK

BACKUP MOVEMENT

CENTERLINE

RIGHT OF WAY LINE RIGHT OF WAY LINE

CENTERLINE

EX FACEOF CURBPAINT REDTYPICALEX FACEOF CURBPAINT REDTYPICAL RIGHT OFWAY LINEPAINTDOUBLEYELLOWCENTERLINEPER MUTCDSTANDARDSCH 3B

RELOCATE RAILROAD CROSSING SIGN
W10 PER MUTCD STANDARDS CH 8BADD W48(CA) SIGNAGE TO INDICATE

NUMBER OF TRACKS
RESTRIPE RAILROAD CROSSING PAVEMENTMARKINGS PER MUTCD STANDARDS CH 8B

RELOCATED RAILROAD GATE UNDER SEPARATE PROJECT

16.5' FROM CENTERLINE OF EAST ACTIVE MAINLINE
24" WIDE WHITE STOP BAR
KEEP
CLEAR
KEEP
CLEAR159.47'± TO RAIL GATE

18.50'

17.65'±

23.90'

11.50'12.35'±
101.67'132.51'

18.50'

22.40'± DWY

TO REMAIN

20.74'± DWY
TO REMAIN24.98'± DWY

TO REMAIN

17.65'±
104' PER MUTCD STANDARDS CH 2C TABLE 2C-4
100' PER MUTCD STANDARDS CH 8B, SEE FIGURE 8B-6

52.89'

25.00'

8.00'

GAP FOR NEIGHBOR

DRIVEWAY ACCESS

GAP FOR NEIGHBOR

DRIVEWAY ACCESS

MOUNTABLE MEDIAN TO DISCOURAGE
MOVEMENT AROUND STOPPED TRAFFIC.

PROJECT TO MAINTAIN MEDIAN TO BE IN

OPERABLE CONDITION THROUGHOUT

MOUNTABLE MEDIAN WITH BOLLARDS

TO DISCOURAGE MOVEMENT

AROUND STOPPED TRAFFIC

MOUNTABLE MEDIAN WITH BOLLARDS TO

DISCOURAGE MOVEMENT AROUND STOPPED TRAFFIC

GAP FOR PROJECT AND

NEIGHBOR DRIVEWAY ACCESS

MOUNTABLE MEDIAN WITH BOLLARDS TO

DISCOURAGE MOVEMENT AROUND

STOPPED TRAFFIC

16.50'
60'
THESE DRAWINGS AND SPECIFICATIONS ARE THE PROPERTY AND COPYRIGHT OF WARE MALCOMB AND SHALL NOT BE USED ON ANY OTHER WORK EXCEPT BY AGREEMENT WITH WARE MALCOMB. WRITTEN DIMENSIONS SHALL TAKE PRECEDENCE OVER SCALED DIMENSIONS AND SHALL BE VERIFIED ON THE JOB SITE. ANY DISCREPANCY SHALL BE BROUGHT TO THE NOTICE OF WARE MALCOMB PRIOR TO THE COMMENCEMENT OF ANY WORK.

CAUTION: IF THIS SHEET IS NOT 30"x42" IT IS A REDUCED PRINT SHEET
PA / PM:

JOB NO.:

DESIGNED:

REMARKSDATENO.

Sheetof

FOR AND ON BEHALF

OF WARE MALCOMB
DATE:

PLOT DATE:PLOT DATE:
suite 300
4683 chabot dr
pleasanton, ca 94588
p 925.244.9620
waremalcomb.com

C I V I L E N G I N E E R I N G
747 BANCROFT

BERKELEY, CALIFORNIA

OFFSITE IMPROVEMENTS

FOR RAILROAD AND CPUC REVIEW
SNR21-4002
M. MURPHY
STAFF
June 2023
EX-1
11 06.09.2023

NOT FOR CONSTRUCTION
0 SCALE: 1" =
102040
20'
0 SCALE: 1" =
51020
10'

BANCROFT WAY

FOURTH STREET
SU - Single Unit Truck
SU - Single Unit Truck
KEEP
CLEAR
KEEP
CLEAR

10.0'
30 420
SU - Single Unit Truck
Overall Length30.000ft
Overall Width8.000ft
Overall Body Height11.881ft
Min Body Ground Clearance1.367ft
Track Width8.000ft
Lock-to-lock time5.00s
Curb to Curb Turning Radius42.000ft

BANCROFT WAY

FOURTH STREET
Mercedes Sprinter Panel Van 518CDI Extra Long Super High Roof Mercedes Sprinter Panel Van 518CDI Extra Long Super High Roof KEEP
CLEAR
KEEP
CLEAR

24.098

3.28114.19
Mercedes Sprinter Panel Van 518CDI Extra Long Super High Roof Overall Length24.098ft
Overall Width6.539ft
Overall Body Height9.942ft
Min Body Ground Clearance1.312ft
Track Width6.539ft
Lock-to-lock time5.00s
Wall to Wall Turning Radius25.591ft
THESE DRAWINGS AND SPECIFICATIONS ARE THE PROPERTY AND COPYRIGHT OF WARE MALCOMB AND SHALL NOT BE USED ON ANY OTHER WORK EXCEPT BY AGREEMENT WITH WARE MALCOMB. WRITTEN DIMENSIONS SHALL TAKE PRECEDENCE OVER SCALED DIMENSIONS AND SHALL BE VERIFIED ON THE JOB SITE. ANY DISCREPANCY SHALL BE BROUGHT TO THE NOTICE OF WARE MALCOMB PRIOR TO THE COMMENCEMENT OF ANY WORK.

CAUTION: IF THIS SHEET IS NOT 30"x42" IT IS A REDUCED PRINT SHEET
PA / PM:

JOB NO.:

DESIGNED:

REMARKSDATENO.

Sheetof

FOR AND ON BEHALF

OF WARE MALCOMB
DATE:

PLOT DATE:PLOT DATE:
suite 300
4683 chabot dr
pleasanton, ca 94588
p 925.244.9620
waremalcomb.com

C I V I L E N G I N E E R I N G
6/02/23
747 BANCROFT

BERKELEY, CALIFORNIA

OFFSITE IMPROVEMENTS

FOR RAILROAD AND CPUC REVIEW
SNR21-4002
M. MURPHY
STAFF
JUNE 2023
EX-1.1
11 06.09.2023

NOT FOR CONSTRUCTION
0 SCALE: 1" =
102040
20'
DETAIL 2 - SU-30 TRUCK MOVEMENT AT LOADING DOCK
0 SCALE: 1" =
102040
20'
DETAIL 1 - DELIVERY TRUCK MOVEMENT AT DRIVEWAY

Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law
1 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.

2 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 th e 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

3 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 caus
e to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the trac
k 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 tim ber 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 C rossing 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, rai
se or lower the grade of all or any portion of the track (s) loc ated 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 neces
sitated 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. SAFE
TY 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

4 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 w ork 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

5 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. I f 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.

6 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.

7 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 adequ ate 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, bodi es of water and drainage facilities (either natural or artificial, and including water from the Railroad's culver t 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.

8 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 p art 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.

Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law

EXHIBIT C
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit C (if applicable) will be Railroad's Material and Force Agreement Estimates.

Material And Force Account Estimate
Berkeley
Estimate Number: 144048 Version: 1
Standard Rates: Labor Additive = 70%
Estimate Good Until 05/31/24
Location: MARTINEZ SUB, NO 1, 5.9-5.94
Description of Work: 751176H Bancroft Way Berkeley CA 5.92 Martinez Sub Prepared For: Berkeley
Buy America: No
COMMENTS FACILITY Description QTY UOM UCST LABOR MATERIAL TOTAL UP %0 Agcy %100

ENGINEERING
Engineering 1 LS 23,942.00 23,942 0 23,942 0 23,942
Bill Prep Fee - Track Surface RECOLLECT 1 LS 900.00 0 900 900 0 900 Homeline Freight - Track Surface RECOLLECT 1 LS 900.00 0 900 900 0 900 Foreign Line Freight - Track Surface RECOLLECT 1 LS 1,276.02 0 1,276 1,276 0 1,276 Sub-Total = 23,942 3,076 27,018 0 27,018

TRACK CONSTRUCTION - COMPANY
Mobilization: Company 1 DA 11,450.00 11,450 0 11,450 0 11,450 Sub-Total = 11,450 0 11,450 0 11,450

TRACK REMOVAL - COMPANY
RDXING Remove road crossing - concrete 40 TF 56.82 2,273 0 2,273 0 2,273 TRACK Remove Track 40 TF 22.28 891 0 891 0 891
Sub-Total = 3,164 0 3,164 0 3,164

SITE WORK - CONTRACT
Asphalt 1 LS 37,000.00 0 37,000 37,000 0 37,000
Sub-Total = 0 37,000 37,000 0 37,000

EQUIPMENT RENTAL
Equipment Rental 1 LS 25,000.00 0 25,000 25,000 0 25,000 Sub-Total = 0 25,000 25,000 0 25,000
Total Wgt. in Tons = Totals = 38,556 65,076 103,632 0 103,632 Grand Total = $103,632
Please Note: The above figures are estimates only and are subject to fluctuation. In the event of an increase or decrease in the cost or amount of material or labor required, Berkeley will pay actual construction costs at the current rates effective thereof.
_________________________________________________________________________________________________________________________________________________________________________ Wednesday, May 31, 2023 Page 1 of 1

Material And Force Account Estimate
Lane Partners
Estimate Creation Date: 6/6/2023 Number: 144206 Version: 1 Estimate Good Until 06/07/24
Location: MARTINEZ SUB, NO 1, 2.33-7
Buy America: No
Description of Work: Martinez Sub MP 5.92 Berkeley, CA Bancroft Way DOT#751176H WO#60487 PID#119334 100% Recollectable
COMMENTS FACILITY Description SubDivision QTY UOM Unit LABOR MATERIAL TOTAL Cost
SIGNAL
Xing - 2 Trk CWE w/Gates MARTINEZ SUB 1 EA 152,876.00 48,800 104,076 152,876 Xing - Flasher/Ped (pair) 1 LS 57,560.00 16,000 41,560 57,560 Xing - IJ 2 PR 9,000.00 8,996 9,004 18,000
Xing - IXS Track Circuit 2 EA 14,951.00 11,072 18,830 29,902 PPEC Project MGMT Xing - Misc. 1 LS 15,000.00 0 15,000 15,000 Xing - Semi-Bi Coupler 4 EA 898.00 0 3,592 3,592
Xing - Sidelight 1 EA 907.00 0 907 907
Xing - Track Card (Main and
Stand-by) New Cable
3 EA 12,889.00 18,000 20,667 38,667
Xing - Track Filter/Battery Choke 8 EA 240.00 0 1,920 1,920 Xing - Dax Cable 1000' 7 EA 6,440.00 28,000 17,080 45,080 Gang Day - 5 Man 2 EA 5,500.00 11,000 0 11,000
Security Fencing Xing - Misc. 1 LS 16,000.00 0 16,000 16,000 Xing - Remove Location (Gates) 1 LS 2,000.00 2,000 0 2,000 Xing - Engineering Design 1 LS 17,897.83 17,898 0 17,898 Xing - Boring 1 LS 10,000.00 0 10,000 10,000
Xing - Fill/Rock/Gravel 1 LS 60,000.00 0 60,000 60,000
Standard 224.45% Xing - Labor Additive 1 LS 363,086.00 363,086 0 363,086 Xing - Meter Service 1 LS 5,000.00 0 5,000 5,000
Sub-Total = 524,852 323,636 848,488

PROJECT LEVEL COST
5% CONTINGENCIES Contingency 5 % 8,484.88 26,243 16,182 42,424 Sub-Total = 26,243 16,182 42,424
Totals = 551,094 339,818 890,912
Grand Total = $890,912
Disclaimer: This is a preliminary estimate, intended to provide a ballpark cost to determine whether a proposed project warrants further study. Quantities and costs are estimated using readily available information and experience with similar projects. Site conditions and changes in project scope and design may result in significant cost variance.
____________________________________________________________________________________________________________________________________ Wednesday, June 7, 2023 Page 1 of 2

DATE: 10/4/2023
LOCATION: SUBDIVISION STATE:

Berkeley, CA
DOT: 751176H Martinez CA
DESCRIPTION LABOR MATERIAL UP %0 Agency % 100 TOTAL
Project Management 4,000$ -$ -$ 4,000.00$ 4,000$ Construction Management 5,000$ -$ -$ 5,000.00$ 5,000$ Final Inspection 1,000$ -$ -$ 1,000.00$ 1,000$ RATE (per day) 1,500$
TOTAL PROJECT: 10,000$ -$ -$ 10,000.00$ $10,000 TOTAL ESTIMATED COST: $10,000
Flagging is NOT included in this estimate. Agencies are instructed to follow Union Pacific's Third Party Flagging Policy.

Please utilize the following link to Union Pacific's Third Party Flagging Policy:
https://www.up.com/real_estate/third-party-flagging/index.htm COSTS AT THE CURRENT RATES EFFECTIVE THEREOF.

ENGINEERING

FLAGGING / INSPECTION SERVICES
DESCRIPTION OF WORK: Engineering and other related services for work to be performed within railroad right of way. This includes project and construction management during construction activities in railroad right of way. All necessary railroad services will be billed at actual cost.

IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF

MATERIAL OR LABOR REQUIRED, THE RAILROAD WILL BILL FOR ACTUAL

UNION PACIFIC RAILROAD COMPANY
BY THE

ESTIMATE OF FORCE ACCOUNT WORK
EXHIBIT C-1
THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION.

1 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
("Contractor").

RECITALS:
corporation

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.

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Projects Form Approved 02/09/2022

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

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Projects Form Approved 02/09/2022

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. 0783795

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.

4 Contractor's Right of Entry Public
Projects Form Approved 02/09/2022

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:

EXHIBIT A
TO
CONTRACTOR’S RIGHT OF ENTRY AGREEMENT

Exhibit A will be a print showing the general location of the work site.

1 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

2 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.

3 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 EMPLOY ED 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

4 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/@uprr/@suppliers/documents/up_pdf_nativedocs/pdf_up_supplier_safety_ req.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, 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

5 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.

1 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 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 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

2 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 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 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.

3 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.

Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law

EXHIBIT E
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit E (if applicable) will be signal design schematic

NEW SHEET
Designed:

Rec#: WO#:

IS: /
///
09/12/22

INSTALL NEW HOUSE,

GATES, FLASHERS AND
CWT AT M.P. 5.92

CORRIDOR PROJECT
WITH WO# 60469
60487

ANMNST
GCPGCP
I.J.
5R1
CONNECTS TO M.P. 4.91
TO 10TH STREET TO ROSEVILLE
2R1
2R2
4R1
4R2
86HZ 11.5kHZ
86HZ
3R1
3R2
5R2
23 19' 18'
PRIME WARNING TIME = 27 SECONDS
640NBS
640NBS
640 NBS
640 NBS

W(S) E(N)
CONNECTS TO M.P. 6.1 4
86HZ 10.0kHZ

SIGNAL DESIGN

THE OFFICE OF

AUTHORITY FROM

MADE WITHOUT

ARE NOT TO BE

MODIFICATIONS

CIRCUIT

NEW SHEET
POK
30'
51'
6'X8'
30'
5'6"
6'
3 4 T
"A"
CCCxx
1 2
5 6
13'
13'

BANCROFT WAY
Date:

Des:

Chk:

AFE:

Sh.:

DOT
MP:

ID:
09/12/22
NST

60487
1 751176H

5.92 BERKELEY, CALIFORNIA

BANCROFT WAY

MARTINEZ SUBDIVISION
Omaha, NebraskaOffice of AVP Engineering - Signal

UNION PACIFIC RAILROAD
0910592.1X
Designed:

Rec#: WO#:

IS: /
///
09/12/22

INSTALL NEW HOUSE,

GATES, FLASHERS AND
CWT AT M.P. 5.92

CORRIDOR PROJECT
WITH WO# 60469
60487

ANMNST
GCP
1 525HZ 8.3kHZ
2'3"
"C"
xx
43 21
2'3"
"D"
xx
21 3 4
15'
4'6"
7'9"
8'
16'6" 4'6"
18'15'

DRILL TRACK
MAIN TRACK 1
MAIN TRACK 2
GCPGCP
M.P.6.14
M.P.6.30
M.P.6.60
GCP
285HZ

15.2kHZ
GCP
285HZ

17.5kHZ
GCP
430HZ
GCP
430HZ

13.2kHZ

7.10kHZ
156HZ

17.5kHZ 156HZ
NBS
NBS

R/B R/B

R/B R/B
16'6"
15'
1R1
1R2
1T1
1T2

HEARST AVENUE

VIRGINIA STREET
GCPGCP
156HZ

15.2kHZ 156HZ

DAX TO BANCROFT WAY

DAX TO HEARST AVENUE

DAX TO GILMAN STREET

DAX TO CAMELIA STREET

DAX TO CEDAR STREET
3,709' 25+5+2(C.T.) SEC. @ 79 M.P.H.

DAX
1,129'+- 1,135'+-
CL CL I.J.
980'
3,709' 25+5+2(C.T.) SEC. @ 79 M.P.H.

DRIVE
7 8

DRILL TRACK
1,409' 25+5+2(C.T.) SEC. @ 30 M.P.H.

DRILL TRACK
GCPGCP 86HZ
45 DAX TO BANCROFT WAY

DAX TO HEARST AVENUE

DAX TO GILMAN STREET

DAX TO CAMELIA STREET

DAX TO CEDAR STREET
NBS
NBS
285HZ
285HZW/800' DTL
W/800' DTL
3T1/1W(S)TN
3T2/1W(S)TB
2T2/1E(N)TN
2T1/1E(N)TB 4T2/2E(N)TN
4T1/2E(N)TB
5T2/2W(S)TB
5T1/2W(S)TN
430HZ W/1000' DTL

4,155'
1W(S)T
4,155'
2W(S)T

3,447'
1E(N)T
3,447'
2E(N)T

2E
4E
6E

73 71
642NBS
MAIN TRACK 1&2 MAIN TRACK 1&2
NBS
156HZ
NBS
156HZ
430HZ
156HZ
430HZ
156HZ

SIDEWALK

SIDEWALK
642 NBS
GCP
790HZ

20.2kHZ
GCP
430HZ

5.9kHZ
NBS
790HZ
GCP
156HZ

7.1kHZ
NBS
430HZ W/1200' DTL
86HZ
348HZ W/1400' DTL
NBS
430HZ W/1200' DTL
86HZ
348HZ W/1400' DTL
285HZ
285HZ

DAX B TO HEARST AVENUE

DAX C TO VIRGINIA STREET
DAX A OFFSET = '
DAX B OFFSET = '
DAX C OFFSET = '
PED-DAX A OFFSET = '
PED-DAX B OFFSET = '
PED-DAX A TO 65TH STREET
PED-DAX B TO 67TH STREET
PED-DAX A OFFSET = '
PED-DAX B OFFSET = '
DAX A OFFSET = '
DAX B OFFSET = '
DAX C OFFSET = '
DAX A WARNING TIME = 28 SECONDS
3RD STREET AND ADDISON STREET
TIME = 30 SECONDS

DAX B WARNING
DAX C WARNING TIME = 30 SECONDS
@ 30 M.P.H.
1,409' 25+5+2(C.T.) SEC.
8' 4'3"
= = = = = = = = = = = = = = = = = = = = = = = = = =
+-247'

DAX B TO HEARST AVENUE

DAX C TO VIRGINIA STREET
NOTES ARE ON SHEET 1A
+-
+-
NBS
CL
+-50'
7'9"
*
A B
A B
Modification Level
Q.A. Last Level Checked
Last Level Mod This Typical
Last Level by Designer
Changed From Typical?
Rev
DW
DW
DW
Y

03.28.22 5K 2TKUGTYP.1
ABC
ABC
AB
DAX A TO 3RD STREET AND ADDISON STREET
DAX A TO 3RD STREET AND ADDISON STREET
PED-DAX A TO 65TH STREET
PED-DAX B TO 67TH STREET
+-
+-
+-
DAX TO 3RD STREET AND ADDISON STREET
DAX TO 3RD STREET AND ADDISON STREET
430HZ W/1000' DTL
T R2140HZ
C C C
T
"B"
3 4
xx
5 6
1 2

Designed:

Rec#: WO#:

IS: /
///
09/12/22

INSTALL NEW HOUSE,

GATES, FLASHERS AND
CWT AT M.P. 5.92

CORRIDOR PROJECT
WITH WO# 60469
60487

ANMNST

NEW SHEET

SIGNAL DESIGN

THE OFFICE OF

AUTHORITY FROM

MADE WITHOUT

ARE NOT TO BE

MODIFICATIONS
CIRCUIT Date:

Des:

Chk:

AFE:

Sh.:

DOT
MP:

ID:
09/12/22
NST

60487
1A
751176H

5.92 BERKELEY, CALIFORNIA

BANCROFT WAY

MARTINEZ SUBDIVISION
Omaha, NebraskaOffice of AVP Engineering - Signal

UNION PACIFIC RAILROAD
0910592.1AX
583

41 43
583

380
37 39
N0592-0486PED1
N0592-0472PED1
0592-0486PED1
0592-0472PED1
TB
HOUSE

INSTRUMENT
TO M.P. 4.86
(7)
583
380

49 51
583

380 380
45 47
CABLE
380
N0592-0486PED2
N0592-0472PED2
0592-0486PED2
0592-0472PED2 SHT.3
CONN.380
380

1.1 OUT

1.2 OUT

2.1 OUT

2.2 OUT
583
380

9 11
583

380
5 7
583

13 15
N0592-0660DAX1
0592-0660DAX1
N0592-0630DAX1
N0592-0614DAX1
0592-0630DAX1
0592-0614DAX1
TB
HOUSE

INSTRUMENT
TO M.P. 6.14
(8)
583
380

21 23
583

380380
17 19
583

25 27
CABLE
380
380
380
380
380
N0592-0660DAX2
0592-0660DAX2
N0592-0630DAX2
N0592-0614DAX2
0592-0630DAX2
0592-0614DAX2
SHT.3
CONN.
380
380
380
583
380

29 31
380
583

33 35
380
N0660-0592DAX2
0660-0592DAX2
N0660-0592DAX1
0660-0592DAX1
380

3.1 OUT

3.2 OUT

4.1 OUT

4.2 OUT

5.1 OUT

5.2 OUT

2.1 IN

4.1 IN
CABLE NO. 7 12C#14 U.G.B.T. HOUSE TO M.P. 4.86

CABLE TABULATION
CABLE NO. 8 12C#14 U.G.B.T. HOUSE TO M.P. 6.14
CABLE NO. 9 7C#14 U.G.B.T. HOUSE TO M.P. 6.14
(9)
= GCP TO OPERATE IN SEMI-BI
DIRECTIONAL MODE. USE TAB 627
COUPLER.

INSULATED JOINTS.

TRANSPOSED ACROSS ALL
ENSURE TRACK POLARITY IS=
AS A 120V TO 240V ADAPTER.

FOR 240V TO 240V IS PROVIDED AS WELL

PORTABLE GENERATOR EXTENSION CORD

TO BE VERIFIED BY FIELD

OFFSET AND ISLAND DISTANCES

LENGTHS SHOULD NOT EXCEED MANUFACTURER'S

TRANSMITTER AND RECEIVER LEADS

TOP OF FOUNDATION TO BE AT SAME ELEVATION

AS THE SURFACE OF THE TRAVELED WAY & NO
ALL LIGHTS TO BE 12" ROUNDELS.

LIGHTS:

NOTES:

ALL TRACK WIRES 2C. #6
INSULATED 1 TWIST PER FT.

RECOMMENDATION.

WIRE TO BE #6 AWG FLEX OR LARGER.

REFER TO UP STANDARD DWG FOR BUNGALOW GROUNDING.

ALL WIRING IN GATE MECHANISM TO BE #10 "AWG FLEX".
4" X 90' CONDUIT
= TWISTED WIRES
MORE THAN 4" ABOVE THE SURFACE OF THE GROUND.

ALL BUNGALOW WIRING TO BE #16 AWG FLEX

UNLESS OTHERWISE SPECIFIED EXCEPT ALL GROUND
= = = = = =

LED LIGHTS
xx = BELL
TO BE SEPARATED BY AT LEAST 12" IN TRENCH,
TRK 1 ISLAND DISTANCE 153' MINIMUM 120' REQUIRED
TRK 2 ISLAND DISTANCE 153' MINIMUM 120' REQUIRED

PREFERRED ISLAND WIRE CONNECTIONS
ARE A MINIMUM 50' FROM EDGE OF ROAD
TRK 4 ISLAND DISTANCE 153' MINIMUM 120' REQUIRED
Designed:

Rec#: WO#:

IS: /
///
09/12/22

INSTALL NEW HOUSE,

GATES, FLASHERS AND
CWT AT M.P. 5.92

CORRIDOR PROJECT
WITH WO# 60469
60487

ANMNST
MATERIAL NOTES; DELETE UPON "AC"
U.P. PART #520-0185
6X8 ALUMINUM CABIN6X8

1.)
AND ADDISON STREET M.P. 6.14 (WO#60469)
INSTALL AS A CORRIDOR PROJECT WITH 3RD STREET

2.)
CONSTRUCTION NOTES:

3.)
(4) 156HZ TAB 729 TRACK FILTERS
(4) 86HZ TAB 729 TRACK FILTERS
ORDER THE FOLLOWING FOR THIS LOCATION:

INSTALL (2) PAIR OF I.J.'S
*4.) = FIELD VERIFY DISTANCE
(7)
(7)
(7)
(7)
(7)
(7)
(7)
(8)
(8)
(8)
(8)
(8)
(8)
(8)
(8)
(8)
(8)
(8)
(9)
(9)
(9)
Modification Level
Q.A. Last Level Checked
Last Level Mod This Typical
Last Level by Designer
Changed From Typical?
Rev
DW
DW
DW
Y

03.28.22 5K 2TKUGTYP.1

NEW SHEET
380

Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law

EXHIBIT F
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit F (if applicable) will be the annual signal maintenance fee

FOR PID # 119334

STREET BANCROFT WAY

TOWN BERKELEY, CALIFORNIA
MILEPOST 5.92

SUBDIVISION MARTINEZ
AAR/DOT NO. 751176H
WORK ORDER# 60487

DESCRIPTION VALUE QUANTITY UNITS
NON-CODED TRK. CIRCUIT 2 0
(Standalone AFTAC or Ring 10)
SUPERIMPOSED CIRCUIT(AFTAC) / 2 0

DETECTION LOOP
HIGHWAY GRADE CROSSING SIGNAL 2 10
(FRONT LIGHTS)
ADDITIONAL PAIR OF LIGHTS 1 4
(OTHER THAN FRONT LIGHTS)
GATE MECHANISM, AUTOMATIC 8 16
WITH ARM UP TO 26 FT
GATE MECHANISM, AUTOMATIC 10 0
WITH ARM OVER 26 FT
GCP/HXP (constant warning device, per track circuit) 15 75 EXIT GATE MANAGEMENT SYSTEM RACK* 10 0
MOVEMENT DETECTOR (PMD) 6 0
MOVEMENT DETECTOR (STANDBY UNIT) 3 0
RADIO DATA LINK, PER UNIT 1 0
PREEMPTION CIRCUIT 2 0
DATA RECORDER 1 0
REMOTE MONITORING DEVICE (SEAR, ETC)* 2 2
BONDED RAIL JOINTS (per mile, each rail, single bonded) 1 0 BATTERY AND CHARGER (per set) 1 2 2
TOTAL UNIT COUNT 109
PAVEMENT RESTORATION COSTS (Actual)
Annual Maintenance Cost at $278.25/Unit $30,329
*UP supplied Unit Value
June 5, 2023
0 4

AREMA UNIT STATEMENT OF RAILROAD HIGHWAY GRADE CROSSING SIGNALS

ESTIMATED MAINTENANCE COSTS

BY THE UNION PACIFIC RAILROAD
0 0
5 0
0 0
1 0
2 0
5 0
0

Exhibit B
Insurance Requirements

1.1 Prior to the execution of any C&M Agreement between the City and UPRR, Developer shall furnish to City satisfactory proof that Developer or any contractor intended to perform any Project work has insurance in accordance with the requirements of Section 5 of this Agreement.

1.2 Nothing herein contained shall be construed as limiting in any way the extent to which Developer or any of its contractors or subcontractors may be held responsible for payment of damages resulting from their operations.

1.3 If Developer or any contractor fails to maintain any required insurance, City may take out such insurance, and Developer agrees to reimburse City for any and all costs of obtaining such insurance.

SCHEDULE 1

DESCRIPTION OF IMPROVEMENTS UPON UPRR OPERATING CORRIDOR

Mountable median with bollards and striping of the 24’ wide white stop bar within the 2,265 SF UPRR operating corridor as depicted on Exhibit A of the C&M Agreement, and further delineated below.

1 UP Re
al Estate Proj
ect No.: 0783795

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Bancroft Way
DOT 751
176H
MP 5.92 – Martinez Subdivision
Berkeley, Alameda County, California

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 BERKELEY, a municipal corporation or political subdivision of the State of California to be addressed at 1947 Center Street, 2 nd Floor, Berkeley, California 94704 ("Political Body").

RECITALS:

Presently, the Political Body utilizes the Railroad’s property for the existing at grade public road crossing over Bancroft Way, DOT Number 751176H at Railroad’s Milepost

5.92 on Railroad’s Martinez Subdivision at or near Berkeley, Alameda County, California.

The Political Body now desires to undertake as its project (the “Project”) the reconstruction and widening of the existing at grade public road crossing to accommodate the reconstruction of sidewalks and installation of delineators as medians. The road crossing, as reconstructed and widened is hereinafter the “Roadway.”

The Railroad right of way being utilized for the existing at grade public road 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 at grade crossing) is shown on the Railroad’s location print marked Exhibit A and the Political Body’s type, size and location prints of the Project marked Exhibit A-1, with each exhibit being attached hereto and hereby made a part hereof (the “Crossing Area”).

In support of its Project, the Political Body has requested the Railroad’s cooperation in connection with upgrading grade crossing protection devices in accordance with the design schematic marked Exhibit E, hereto attached and hereby made a part hereof (the “Designs”). Said work is to be performed at the sole expense of Political Body.

2 The R
ailroad 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 Ex
hibit B, are at
tached hereto and
hereby made a part hereof.

Section 2. RAILROAD GRANTS RIGHT

For and in consideration of the sum of THREE THOUSAND DOLLARS ($3,000.00) 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 construct, maintain and repair the Roadway over and across the Crossing Area.

Section 3. DEFINITION OF CONTRACTOR

For purposes of this Agreement the term “Contractor” shall mean the contractor or contractors hired by the Political Body 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.

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

3 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. 0783795

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.

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 ex
pense, is described in the Railroad's Material and Force Account Estimates dated M
ay 31, 2023, and June 7, 2023, marked Exhibit C, and October 4, 2023 marked Exhibit C-1, with each exhibit being attached hereto and hereby made a part hereof (the "Estimates"). As set forth in the Estimates, the Railroad's estimated cost for the Railroad's work associated with the Project is One Million Four Thousand Five Hundred Forty Four Dollars ($1,004,544.00).

4 B. The Railroad, if it so elects, may recalculate and update the Estimates 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 Estimates.

C. The P
olitical Body acknowledges that the Estimates 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 one hundred eighty (180) days after receiving written notice from the Political Body that all Project work affecting the Railroad's property has been completed.

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 Cont ractor), 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 and the Structure 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 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.

5 D. The R
ailroad'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 C ontractor 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, wirelines, 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 lim itation, 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 ter ms 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 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 8B, (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

6 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 Cros
sing 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 Contactor's Right of Entry Agreement.

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. Poli
tical 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.

7 Section 14. SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009

If the Political Body will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the Political Body agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The Political Body confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a "recipient" receiving ARRA funding directing from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the Political Body and not of the Railroad, and (ii) the Political Body shall not delegate any ARRA reporting responsibilities to the Railroad. The Political Body also confirms and acknowledges that (i) the Railroad shall provide to the Political Body the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing, and (ii) such standard and customary billing and documentation from the Railroad provides the information needed by the Political Body to perform and complete the ARRA reporting documents. The Railroad confirms that the Political Body and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project as provided in Section 11 of Exhibit B of this Agreement.

Section 15. TERMINATION OF ORIGINAL AGREEMENT

Upon the completion of the Roadway, the original agreement either governing currently, or any agreement to be found in the future at the existing at -grade crossing, shall terminate and the terms and conditions of this Agreement shall govern the use, maintenance and repair of the Roadway.

Section 16. ANNUAL SIGNAL MAINTENANCE FEE

A. Effective as of three years from effective date of this Agreement or the date of installation and/or the in- service date of the new and/or improved or existing Grade Crossing Signal System(s) ("Signal System”), the Political Body, in addition to maintaining at its sole cost and expense the portion of the Roadway described in Section 2 of Exhibit B, agrees to pay to Railroad the sum of Thirty Thousand Three Hundred Twenty Nine Dollars ($30,329.00) per annum, payable annually in advance, as payment for Railroad's maintenance of the Signal System that is installed at the Roadway. The annual signal maintenance fee is calculated as shown on the attached Exhibit F, attached hereto and made a part hereof.

B. The above annual signal maintenance fee for Railroad's maintenance of the Signal System is based on the number of current signal units installed at the Roadway. If the Signal System is improved and/or altered in any way, the Political Body must notify the Railroad in writing and the annual signal maintenance fee will be increased at a rate based on the American Railway Engineering and Maintenance of Way Association (AREMA) signal unit cost index. If the Political Body fails to notify Railroad of any improvement or alteration to the Signal System, the Railroad may increase the annual

8 signal maintenance fee at a rate based on the AREMA signal unit cost index any time after the date of installation and/or improvement of the Signal System. The signal unit base for the annual signal 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 signal maintenance fee was last determined or established. Any such changes in the annual signal maintenance fee referenced in Article 2 may be made by means of automatic adjustment in billing.

9 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 Tax ID #94-6001323)

By: _________________________________
Printed Name: ________________________
Title: ________________________________

CITY OF BERKELEY

By: ________________________________
Printed Name: ________________________
Title: ________________________________

EXHIBIT A
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit A will be a print showing the Crossing Area (see Recitals)

EXHIBIT A-1
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit A-1 will be the Political Body’s type, size and location prints of the Project (see Recitals)

COPYRIGHT © BKF ENGINEERS2021

BERKELEY COMMONS RAILROAD IMPROVEMENTS

BANCROFT WAY

CITY OF BERKELEY, ALAMEDA COUNTY

BKF ENGINEERS
255 SHORELINE DRIVE
SUITE 200
REDWOOD CITY, CA 94065
(650) 482-6300
www.bkf.com
DRAWING NAME: \\BKF-SJ\vol4\2019\191091-11_Berkeley_Commons_GO88\ENG\EXHIBITS\Bancroft Crossing\Berkeley Bancroft RR Exhibit.dwg PLOT DATE: 08-08-22 PLOTTED BY: leea

CPUC LAYOUT EXHIBIT

BANCROFT WAY

FOURTH STREET

SEE RIGHT FOR DETAIL
KEEP
CLEAR
KEEP
CLEAR

FACE OF CURB

PAINT RED, TYPICAL

FACE OF CURB

PAINT RED, TYPICAL

INCREASED CURB RADIUS TO

ALLOW EFFICIENT TRUCK

BACKUP MOVEMENT

CENTERLINE

RIGHT OF WAY LINE RIGHT OF WAY LINE

CENTERLINE

EX FACEOF CURBPAINT REDTYPICALEX FACEOF CURBPAINT REDTYPICAL RIGHT OFWAY LINEPAINTDOUBLEYELLOWCENTERLINEPER MUTCDSTANDARDSCH 3B

RELOCATE RAILROAD CROSSING SIGN
W10 PER MUTCD STANDARDS CH 8BADD W48(CA) SIGNAGE TO INDICATE

NUMBER OF TRACKS
RESTRIPE RAILROAD CROSSING PAVEMENTMARKINGS PER MUTCD STANDARDS CH 8B

RELOCATED RAILROAD GATE UNDER SEPARATE PROJECT

16.5' FROM CENTERLINE OF EAST ACTIVE MAINLINE
24" WIDE WHITE STOP BAR
KEEP
CLEAR
KEEP
CLEAR159.47'± TO RAIL GATE

18.50'

17.65'±

23.90'

11.50'12.35'±
101.67'132.51'

18.50'

22.40'± DWY

TO REMAIN

20.74'± DWY
TO REMAIN24.98'± DWY

TO REMAIN

17.65'±
104' PER MUTCD STANDARDS CH 2C TABLE 2C-4
100' PER MUTCD STANDARDS CH 8B, SEE FIGURE 8B-6

52.89'

25.00'

8.00'

GAP FOR NEIGHBOR

DRIVEWAY ACCESS

GAP FOR NEIGHBOR

DRIVEWAY ACCESS

MOUNTABLE MEDIAN TO DISCOURAGE
MOVEMENT AROUND STOPPED TRAFFIC.

PROJECT TO MAINTAIN MEDIAN TO BE IN

OPERABLE CONDITION THROUGHOUT

MOUNTABLE MEDIAN WITH BOLLARDS

TO DISCOURAGE MOVEMENT

AROUND STOPPED TRAFFIC

MOUNTABLE MEDIAN WITH BOLLARDS TO

DISCOURAGE MOVEMENT AROUND STOPPED TRAFFIC

GAP FOR PROJECT AND

NEIGHBOR DRIVEWAY ACCESS

MOUNTABLE MEDIAN WITH BOLLARDS TO

DISCOURAGE MOVEMENT AROUND

STOPPED TRAFFIC

16.50'
60'
THESE DRAWINGS AND SPECIFICATIONS ARE THE PROPERTY AND COPYRIGHT OF WARE MALCOMB AND SHALL NOT BE USED ON ANY OTHER WORK EXCEPT BY AGREEMENT WITH WARE MALCOMB. WRITTEN DIMENSIONS SHALL TAKE PRECEDENCE OVER SCALED DIMENSIONS AND SHALL BE VERIFIED ON THE JOB SITE. ANY DISCREPANCY SHALL BE BROUGHT TO THE NOTICE OF WARE MALCOMB PRIOR TO THE COMMENCEMENT OF ANY WORK.

CAUTION: IF THIS SHEET IS NOT 30"x42" IT IS A REDUCED PRINT SHEET
PA / PM:

JOB NO.:

DESIGNED:

REMARKSDATENO.

Sheetof

FOR AND ON BEHALF

OF WARE MALCOMB
DATE:

PLOT DATE:PLOT DATE:
suite 300
4683 chabot dr
pleasanton, ca 94588
p 925.244.9620
waremalcomb.com

C I V I L E N G I N E E R I N G
747 BANCROFT

BERKELEY, CALIFORNIA

OFFSITE IMPROVEMENTS

FOR RAILROAD AND CPUC REVIEW
SNR21-4002
M. MURPHY
STAFF
June 2023
EX-1
11 06.09.2023

NOT FOR CONSTRUCTION
0 SCALE: 1" =
102040
20'
0 SCALE: 1" =
51020
10'

BANCROFT WAY

FOURTH STREET
SU - Single Unit Truck
SU - Single Unit Truck
KEEP
CLEAR
KEEP
CLEAR

10.0'
30 420
SU - Single Unit Truck
Overall Length30.000ft
Overall Width8.000ft
Overall Body Height11.881ft
Min Body Ground Clearance1.367ft
Track Width8.000ft
Lock-to-lock time5.00s
Curb to Curb Turning Radius42.000ft

BANCROFT WAY

FOURTH STREET
Mercedes Sprinter Panel Van 518CDI Extra Long Super High Roof Mercedes Sprinter Panel Van 518CDI Extra Long Super High Roof KEEP
CLEAR
KEEP
CLEAR

24.098

3.28114.19
Mercedes Sprinter Panel Van 518CDI Extra Long Super High Roof Overall Length24.098ft
Overall Width6.539ft
Overall Body Height9.942ft
Min Body Ground Clearance1.312ft
Track Width6.539ft
Lock-to-lock time5.00s
Wall to Wall Turning Radius25.591ft
THESE DRAWINGS AND SPECIFICATIONS ARE THE PROPERTY AND COPYRIGHT OF WARE MALCOMB AND SHALL NOT BE USED ON ANY OTHER WORK EXCEPT BY AGREEMENT WITH WARE MALCOMB. WRITTEN DIMENSIONS SHALL TAKE PRECEDENCE OVER SCALED DIMENSIONS AND SHALL BE VERIFIED ON THE JOB SITE. ANY DISCREPANCY SHALL BE BROUGHT TO THE NOTICE OF WARE MALCOMB PRIOR TO THE COMMENCEMENT OF ANY WORK.

CAUTION: IF THIS SHEET IS NOT 30"x42" IT IS A REDUCED PRINT SHEET
PA / PM:

JOB NO.:

DESIGNED:

REMARKSDATENO.

Sheetof

FOR AND ON BEHALF

OF WARE MALCOMB
DATE:

PLOT DATE:PLOT DATE:
suite 300
4683 chabot dr
pleasanton, ca 94588
p 925.244.9620
waremalcomb.com

C I V I L E N G I N E E R I N G
6/02/23
747 BANCROFT

BERKELEY, CALIFORNIA

OFFSITE IMPROVEMENTS

FOR RAILROAD AND CPUC REVIEW
SNR21-4002
M. MURPHY
STAFF
JUNE 2023
EX-1.1
11 06.09.2023

NOT FOR CONSTRUCTION
0 SCALE: 1" =
102040
20'
DETAIL 2 - SU-30 TRUCK MOVEMENT AT LOADING DOCK
0 SCALE: 1" =
102040
20'
DETAIL 1 - DELIVERY TRUCK MOVEMENT AT DRIVEWAY

Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law
1 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.

2 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 th e 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

3 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 caus
e to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the trac
k 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 tim ber 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 C rossing 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, rai
se or lower the grade of all or any portion of the track (s) loc ated 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 neces
sitated 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. SAFE
TY 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

4 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 w ork 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

5 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. I f 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.

6 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.

7 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 adequ ate 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, bodi es of water and drainage facilities (either natural or artificial, and including water from the Railroad's culver t 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.

8 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 p art 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.

Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law

EXHIBIT C
TO

PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT

Exhibit C (if applicable) will be Railroad's Material and Force Agreement Estimates.

Material And Force Account Estimate
Berkeley
Estimate Number: 144048 Version: 1
Standard Rates: Labor Additive = 70%
Estimate Good Until 05/31/24
Location: MARTINEZ SUB, NO 1, 5.9-5.94
Description of Work: 751176H Bancroft Way Berkeley CA 5.92 Martinez Sub Prepared For: Berkeley
Buy America: No
COMMENTS FACILITY Description QTY UOM UCST LABOR MATERIAL TOTAL UP %0 Agcy %100

ENGINEERING
Engineering 1 LS 23,942.00 23,942 0 23,942 0 23,942
Bill Prep Fee - Track Surface RECOLLECT 1 LS 900.00 0 900 900 0 900 Homeline Freight - Track Surface RECOLLECT 1 LS 900.00 0 900 900 0 900 Foreign Line Freight - Track Surface RECOLLECT 1 LS 1,276.02 0 1,276 1,276 0 1,276 Sub-Total = 23,942 3,076 27,018 0 27,018

TRACK CONSTRUCTION - COMPANY
Mobilization: Company 1 DA 11,450.00 11,450 0 11,450 0 11,450 Sub-Total = 11,450 0 11,450 0 11,450

TRACK REMOVAL - COMPANY
RDXING Remove road crossing - concrete 40 TF 56.82 2,273 0 2,273 0 2,273 TRACK Remove Track 40 TF 22.28 891 0 891 0 891
Sub-Total = 3,164 0 3,164 0 3,164

SITE WORK - CONTRACT
Asphalt 1 LS 37,000.00 0 37,000 37,000 0 37,000
Sub-Total = 0 37,000 37,000 0 37,000

EQUIPMENT RENTAL
Equipment Rental 1 LS 25,000.00 0 25,000 25,000 0 25,000 Sub-Total = 0 25,000 25,000 0 25,000
Total Wgt. in Tons = Totals = 38,556 65,076 103,632 0 103,632 Grand Total = $103,632
Please Note: The above figures are estimates only and are subject to fluctuation. In the event of an increase or decrease in the cost or amount of material or labor required, Berkeley will pay actual construction costs at the current rates effective thereof.
_________________________________________________________________________________________________________________________________________________________________________ Wednesday, May 31, 2023 Page 1 of 1

Material And Force Account Estimate
Lane Partners
Estimate Creation Date: 6/6/2023 Number: 144206 Version: 1 Estimate Good Until 06/07/24
Location: MARTINEZ SUB, NO 1, 2.33-7
Buy America: No
Description of Work: Martinez Sub MP 5.92 Berkeley, CA Bancroft Way DOT#751176H WO#60487 PID#119334 100% Recollectable
COMMENTS FACILITY Description SubDivision QTY UOM Unit LABOR MATERIAL TOTAL Cost
SIGNAL
Xing - 2 Trk CWE w/Gates MARTINEZ SUB 1 EA 152,876.00 48,800 104,076 152,876 Xing - Flasher/Ped (pair) 1 LS 57,560.00 16,000 41,560 57,560 Xing - IJ 2 PR 9,000.00 8,996 9,004 18,000
Xing - IXS Track Circuit 2 EA 14,951.00 11,072 18,830 29,902 PPEC Project MGMT Xing - Misc. 1 LS 15,000.00 0 15,000 15,000 Xing - Semi-Bi Coupler 4 EA 898.00 0 3,592 3,592
Xing - Sidelight 1 EA 907.00 0 907 907
Xing - Track Card (Main and
Stand-by) New Cable
3 EA 12,889.00 18,000 20,667 38,667
Xing - Track Filter/Battery Choke 8 EA 240.00 0 1,920 1,920 Xing - Dax Cable 1000' 7 EA 6,440.00 28,000 17,080 45,080 Gang Day - 5 Man 2 EA 5,500.00 11,000 0 11,000
Security Fencing Xing - Misc. 1 LS 16,000.00 0 16,000 16,000 Xing - Remove Location (Gates) 1 LS 2,000.00 2,000 0 2,000 Xing - Engineering Design 1 LS 17,897.83 17,898 0 17,898 Xing - Boring 1 LS 10,000.00 0 10,000 10,000
Xing - Fill/Rock/Gravel 1 LS 60,000.00 0 60,000 60,000
Standard 224.45% Xing - Labor Additive 1 LS 363,086.00 363,086 0 363,086 Xing - Meter Service 1 LS 5,000.00 0 5,000 5,000
Sub-Total = 524,852 323,636 848,488

PROJECT LEVEL COST
5% CONTINGENCIES Contingency 5 % 8,484.88 26,243 16,182 42,424 Sub-Total = 26,243 16,182 42,424
Totals = 551,094 339,818 890,912
Grand Total = $890,912
Disclaimer: This is a preliminary estimate, intended to provide a ballpark cost to determine whether a proposed project warrants further study. Quantities and costs are estimated using readily available information and experience with similar projects. Site conditions and changes in project scope and design may result in significant cost variance.
____________________________________________________________________________________________________________________________________ Wednesday, June 7, 2023 Page 1 of 2

DATE: 10/4/2023
LOCATION: SUBDIVISION STATE:

Berkeley, CA
DOT: 751176H Martinez CA
DESCRIPTION LABOR MATERIAL UP %0 Agency % 100 TOTAL
Project Management 4,000$ -$ -$ 4,000.00$ 4,000$ Construction Management 5,000$ -$ -$ 5,000.00$ 5,000$ Final Inspection 1,000$ -$ -$ 1,000.00$ 1,000$ RATE (per day) 1,500$
TOTAL PROJECT: 10,000$ -$ -$ 10,000.00$ $10,000 TOTAL ESTIMATED COST: $10,000
Flagging is NOT included in this estimate. Agencies are instructed to follow Union Pacific's Third Party Flagging Policy.

Please utilize the following link to Union Pacific's Third Party Flagging Policy:
https://www.up.com/real_estate/third-party-flagging/index.htm COSTS AT THE CURRENT RATES EFFECTIVE THEREOF.

ENGINEERING

FLAGGING / INSPECTION SERVICES
DESCRIPTION OF WORK: Engineering and other related services for work to be performed within railroad right of way. This includes project and construction management during construction activities in railroad right of way. All necessary railroad services will be billed at actual cost.

IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF

MATERIAL OR LABOR REQUIRED, THE RAILROAD WILL BILL FOR ACTUAL

UNION PACIFIC RAILROAD COMPANY
BY THE

ESTIMATE OF FORCE ACCOUNT WORK
EXHIBIT C-1
THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION.

1 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
("Contractor").

RECITALS:
corporation

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.

2 Contractor's Right of Entry Public
Projects Form Approved 02/09/2022

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

3 Contractor's Right of Entry Public
Projects Form Approved 02/09/2022

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. 0783795

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.

4 Contractor's Right of Entry Public
Projects Form Approved 02/09/2022

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:

EXHIBIT A
TO
CONTRACTOR’S RIGHT OF ENTRY AGREEMENT

Exhibit A will be a print showing the general location of the work site.

1 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

2 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.

3 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 EMPLOY ED 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

4 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/@uprr/@suppliers/documents/up_pdf_nativedocs/pdf_up_supplier_safety_ req.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, 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

5 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.

1 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 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 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