1 UP
Real Estate Project No.: 0779333
P
UBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
S
an Antonio Avenue
DOT 746932J
MP 515.17 – Alhambra Subdivision
MP 32.79 – Los Angeles Subdivision
Pomona, Los Angeles County, California
T
HIS 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 POMONA, a municipal corporation or political subdivision of the State of California to be addressed at 505 South Garey Avenue, Pomona, California 91766 ("Political Body").
RE
CITALS:
P
resently, the Political Body utilizes the Railroad’s property for the existing at grade public road crossing over San Antonio Avenue, DOT Number 746932J at Railroad’s Milepost 515.17 on Railroad’s Alhambra Subdivision and Railroad’s Milepost 32.79 on Railroad’s Los Angeles Subdivision at or near Pomona, Los Angeles County, California.
T
he Political Body now desires to undertake as its project (the “Project”) the reconstruction and widening of the existing at grade public road crossing for the addition of sidewalks . The road crossing, as reconstructed and widened is hereinafter the “Roadway.”
T
he 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”).
I
n support of its Project, the Political Body has requested the Railroad’s cooperation in connection with upgrading grade crossing protection devices and installing the necessary relays and other materials required to interconnect and coordinate the Attachment No. 1
2 operation of said railroad grade crossing protection devices with the operation of highway traffic control signals. Said work is to be performed at the sole expense of Political Body.
The Railroad and the Political Body are entering into this Agreement to cover the above.
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows:
Section 1. EXHIBIT B
The general terms and conditions marked Exhibit B,
are attached hereto and
hereby made a part hereof.
Section 2. RAILROAD GRANTS RIGHT
For and in consideration
of the sum of Forty-Seven Thousand Two
Hundred
Fifty Dollars ($47,250.00) 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.
For purposes of advanced signal preemption, Railroad hereby grants permission and authority to Political Body and/or its Contractor (as defined below) to install the conduit with the necessary wiring on Railroad right of way on the condition that prior to performing any work on Rail road's property, Political Body shall, or
shall
require its
Contractor to, notify the Railroad and/or enter into
a right of
e
ntry agreement with
Railroad, as applicable pursuant to the terms and conditions of this Agreement.
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
C
ontractor’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 perform
ing any work
within the Crossing Area and any
subsequent maintenance and repair work, the Political Body shall require the Contractor to:
3 • 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 C, attached hereto and hereby made a part hereof. The Political Body confirms that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property.
Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein.
C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to:
Manager - Contracts
Union Pacific Railroad Company
Real Estate Department
1400 Douglas Street, Mail Stop 1690
Omaha, NE 68179
-
1690
UP Project No. 0779333
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. 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
4 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.
D. The Railroad's review and approval of the Plans will in no way relieve the Political Body or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the Political Body or Contractor on the Plans is at the risk of the Political Body and Contractor.
Section 8. 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 7. The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitat ion, American Railway Engineering and Maintenance
-
of-Way Association ("AREMA")
standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to-take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property.
B. Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators.
Railroad may use
its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence 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
7 B, (ii) deem the Non Railroad Facilities part of the Structure, 5 and (iii) supplement this Agreement with terms and conditions covering the Non Railroad Facilities.
Section 9. EFFECTIVE DATE; TERM; TERMINATION
A. This Agreement
is
effective as of the Effective Date first herein written
and
shall continue in full force and effect for as long as the
Roadway
remains on the Railroad’s
property.
B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the Political Body in the event the Political Body does not commence construction on the portion of the Project located on the Railroad’s property within twenty-four (24) 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 10. CONDITIONS TO BE MET BEFORE
POLITICAL BODY CAN COMMENCE WORK
Neither the Political Body nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until:
(i) The Railroad and Political Body have executed this Agreement.
(ii) The Railroad has provided to the Political Body the Railroad’s written approval of the Plans.
(iii) Each Contractor has executed Railroad’s Contractor’s Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements required under the Contractor’s Right of Entry Agreement.
(iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contactor's Right of Entry Agreement.
Section 11. FUTURE PROJECTS
Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of th e 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. 6 Section 12. ASSIGNMENT; SUCCESSORS AND ASSIGNS
A. Political Body shall not assign this Agreement without the prior written consent of Railroad.
B. Subject to the provisions of Paragraph A above, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Railroad and Political Body.
Section 13. 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 t he 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 14. TERMINATION OF ORIGINAL AGREEMENT
The Construction, Operation and Maintenance
Agreement between the Railroad,
Political Body, and Alameda Corridor -East Construction Authority of the San Gabriel Valley Council of Governments shall be supplemented by this Agreement. In the event of any conflict between the Original Agreement and this Agreement, the terms and provisions of this Agreement shall control.
Section 15. SIGNAL PREEMPTION
A. Political Body and Railroad, severally and collectively, agree to interconnect and coordinate the operation of the
railroad
grade crossing protection
devices with the operation of the highway traffic control signals at the Crossing Area, in accordance with the design schematic marked
Exhibit
A-1, hereto attached and hereby
made a part hereof (the “Designs”).
7 B . Political Body, at its expense, shall furnish all material, labor, equipment and supervision for the installation and maintenance of highway traffic control signals at the Crossing Area, as applicable in accordance with the Designs.
C. Railroad, at Political Body’s expense, shall furnish all material, labor, equipment and supervision for the work described in the Estimate(s) and in accordance with the Designs, including, as applicable, installation of signals and/or appurtenances and installation of the necessary relays and other materials required to interconnect and coordinate the operation of the highway traffic control signals to be installed by the Political Body.
D. Each party shall take all suitable precautions to prevent any interference (by induction, leakage of electricity or otherwise) with the operation of the other party’s signals or communications lines, or those of its tenants; and if, at any time, the opera
tion
or maintenance of its signals results in any electrostatic effects, the party whose signals are causing the interference shall, at its expense, immediately take such action as may be necessary to eliminate such interference.
E. Except as set forth in this Section, Political Body shall not be liable to Railroad on account of any failure of Railroad's warning devices to operate properly, nor shall Railroad have or be entitled to maintain any action against Political Body arising from any failure from Railroad's warning devices to operate properly. Similarly, Railroad shall not be liable to Political Body on account of any failure of Political Body’s traffic signal to operate properly, nor shall Political Body have or be entitle
d to maintain any
action against Railroad arising from any failure of Political Body’s traffic signal to operate properly.
8 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 POMONA
By: ________________________________
Printed Name: ________________________
Title: ________________________________
Approved As To Form:
By: ________________________________
Printed Name: ________________________
Title: ________________________________
Marco Martinez
City Attorney
EXHIBIT A
TO
PUBLIC HIGHWAY AT-GRADE CROSSING AGREEMENT
Exhibit A will be a print showing the Crossing Area (see Recitals)
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SCALE: 1" = 10'
102040
NOT FOR CONSTRUCTION
15265 Alton Parkway | Suite 140 | Irvine | California | 92618 www.railpros.com
RAPR LIOS
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)
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UPRR TO VERIFY, DESIGN,
AND IMPLEMENT VEHICLE
PRESENCE RADAR
DETECTION SYSTEM AND
APPROPRIATE DETECTION
ZONES.
Docusign Envelope ID: 4CB3DEA9-D24F-48B7-8A4B-38674BA3E095 X X X
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250 COMMERCE | Suite 200 | Irvine | California | 92602
www.railpros.com
RA PRLIO S
100% PLAN SET - NOT FOR CONSTRUCTION
100
SCALE: 1" = 20'
20 40 80
SAN ANTONIO AVENUE
SIGN LEGEND:
Ø1/OLA Ø3 Ø4/OLB
Ø6 Ø7 Ø8/OLC
PROPOSED PHASE DIAGRAM
NORMAL OPERATIONS ONLY
GROUP A
RING 1 RING 2
NOT
USED
NOT
USED
GROUP B
I
Ø2
NOT
USED
1 2
3 4
5 6
7 1
7 ” “ ”
“
”
”
”
Ø1 Ø3 Ø4
Ø6/OLB Ø7 Ø8
NOT
USED
EXISTING PHASE DIAGRAM
GROUP A
RING 1 RING 1
NOT
USED
GROUP B
Ø2
**
* ONLY FOR RR TRACK CLEARANCE
** RR TRACK PRE-SIGNAL
Ø2 AND Ø6 ARE EXCLUSIVE PHASES
OLB GREEN EXTENSION PROVIDED WITH EVERY CYCLE.
Ø2
Ø2P
Ø5
NOT
USED
Ø1
OLA
Ø1P
Ø4P Ø4P*
* RR TRACK PRE-SIGNAL. SEE PHASE DIAGRAM ON
SHEET TS-03 FOR RR PREEMPTION OPERATIONS.
OLA GREEN EXTENSION PROVIDED WITH EVERY CYCLE.
R10-6(RT)
18"x24"
ON RED
R13A(CA)
18"x30"
R3-1
24"x24"
W10-9P
18'x12"
SP-1
24"x18"
R9-3
18" x18" R9-3bP(RT)
18"x12"
R5-1b
12"x18"
R9-3cP
18"x18"
SAN ANTONIO AVENUE
FIRST
ST FIRST ST
104
9 H
8 A
AB
G
7 5
6 B
10 D
14 AB
5 5
E
AB
2 1
F
CB
AB
5 RL
C
7 Ø6
OLB
Ø6P
Ø2
Ø2P OLB
*
Ø5
NOT
USED
8 9
10 SC
11 12
13 STANDARD CALTRANS ANNOTATION:
3 12
12 12
12 3
3 13
11 11
3 13
RS
14 3
14 13
14 13
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BC
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CC
RC
RL
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RR
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RSAB
AB
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AB
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OLB
OLC
AB
AB
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3 J 5
BC
RL
16 4
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RR
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R8-8
24"x30"
4 1644
R3-2
24"x24"
SP-2
24"x18"
5 9
9 9
9 9
9 9
14 14
Docusign Envelope ID: 4CB3DEA9-D24F-48B7-8A4B-38674BA3E095 X
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250 COMMERCE | Suite 200 | Irvine | California | 92602
www.railpros.com
RA PRLIO S
100% PLAN SET - NOT FOR CONSTRUCTION
NW CORNER OF SAN ANTONIO AVENUE AND FIRST STREET
DETAIL "A"
SAN ANTONIO AVE
FIRST ST
SCALE: 1"=5'
NE CORNER OF SAN ANTONIO AVENUE AND FIRST STREET
DETAIL "B"
SAN ANTONIO AVE
FIRST ST
17-3-100(N)
19-2-70
1-A(N)
15'(N)15'(N)30'
25'
30'
-
45'(N)
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30'
4.5'
10'
30'
30' 15'
15'
15'(N)
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M.A.
SIG.HEIGHT
STANDARD
M.A.
LUM.
SV-4-T(N)
SV-1-T(N)
TV-3-T(N)
162W(N)
162W(N)
162W(N)
162W(N)
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MAS(N)
-
MAS-4B
MAS
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SP-1-T(N)
SP-1-T(N)
SP-1-T(N)
SP-1-T(N)
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SP-1-T (N)
Ø1(N)
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REMARKS
SIGNAL MOUNTING
LED
POLE SCHEDULE
MAST ARM PED
PPB
QUAD
1-B(N)
19-2-70
26-4-100(N)
19-3-80 30' 25' 15' 162W(N) MAS -SV-1-T -
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Ø2(N)
Ø2(N)
N
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E
W
E
Ø4(N)SV-1-T
SV-1-T
TV-1(N)
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ARROWPHASE
ALL EQUIPMENT IS EXISTING UNLESS NOTED OTHERWISE.
(N) = NEW
ALL NEW POLE EQUIPMENT TO BE CITY FURNISHED. CONTRACTOR TO INSTALL.
E-LITE STAR MODEL NO. ESU-EA013P03240M-150DAU1-1112N OR CITY APPROVED EQUAL MOUNT ON CLAMP ON DAVIT ARM PER DETAIL "J"
No.
TYPE
LUMINAIRE
VEHICLE
I.I.S.N.S
First (N)
San Antonio (N)
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First (N)
San Antonio (N)
-1-A --10' TV-2-T-- SP-1-T(N) -Ø4(N) N
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BLANK OUT SIGN
MOUNTING
MOUNT W/ VEH
HEAD TV-3-T
MOUNT ON MAST
ARM W/ BRACKETS
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MOUNT W/ VEH
HEAD SV-4-T
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EX. SPECIAL
FOUNDATION
MAS-4C(N)
MAS(N)
PPB POST(N) 5'-7" -- - - - - W- -
-- -
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Ø1(N) -D
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G
A
B
C
E
F
POLE PLACEMENT DETAIL
NOT TO SCALE
E.C.R.
B.C.R.
CURB
B
B
A
A
DETAIL "G"
BLANK OUT SIGN MOUNTING
POLE LOCATION
NOT TO SCALE
SEE DETAIL "D"
USE SV-3-T FOR
MOUNTING
DETAIL "F"
SEE DETAIL "D"
USE TV-3-T FOR
MOUNTING
BLANK OUT SIGN MOUNTING
POLE LOCATION C
NOT TO SCALE
C G
2 5
5 RL
7 85
RS
2 5
BC
8 14
RS
SCALE: 1"=5'
AB
RS
AB
AB
CC
5 POLE LOCATION
AB
2.4' 5.2'
12' 3'
EXISTING
STA 11+61
1' 7'
SEE PLAN
Ø1(N) E
EXISTING
EXISTING
EXISTING
SC
14 8
RUNS
6 754321
POLE
POLE
18C#14 RAILROAD SIC
CONDUCTOR SCHEDULE
GROUND
LUMINAIRE
PULL TAPE
3 CONDUCTOR
CABLE
AWG OR
CABLE TYPE
12 CONDUCTOR
CABLE
#8
#10
DLC
TYPE "B"
Ø1 DETECTION
POLE
POLE
POLE
POLE
POLE
POLE
POLE
TOTAL
I.I.S.N.S.#12
111111 11
Ø2 DETECTION
Ø4 DETECTION
TOTAL
Ø8 DETECTION
PERCENT FILL
CONDUIT SIZE
-- -- 11 22 3311 11 11
----
11111111
3" 3" 3" 3"
8.9% 8.9% 13.6% 17.0% 19.6% 15.1% 18.2% 18.7%
9 1
22 1
16.9%
POLE
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3333
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ABBC14 4
12 12
AB
AB
AB
7' 2'
BELDEN 8281 COAXIAL/SJO 3#16 POWER (F)
DETAIL "C"
NOT TO SCALE
12", 4-SECTION VEHICLE HEAD
12" R
12" GA
12" G
12" Y
7 -1-A(N) --10' TV-1(N)-- --J -- - - STA 11+61 2.5'
10 1
66 1
1 3-4"
20.4%
2 2
1 -
11 11
11 11
1 11
11 -
96 4
-
2 11
POLE - - -- --- - --
11111- - 1
-
---------
- -
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1 -
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-- - -
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--1-11
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11-
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-11
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--
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2 -- - 11
2-4" 4"
14 13
BC
12 11
ALL CONDUIT IS NEW UNLESS OTHERWISE NOTED.
(F) = FUTURE. PROVDE AT LEAST 40' OF SLACK AT END OF RUN INSIDE PULL BOX ADJACENT TO THE POLE STANDARDS (EX) = EXISTING CONDUIT
ALL CONDUCTORS ARE NEW AND CONTRACTOR TO FURNISH AND INSTALL. 11 1
--
-
1 2"
20.0%
-
-
-
-
--
--
--
--
1 --
--
-
1-
-
-
-
-
-
-
-
-
-
12 1
--
-
1 2"
7.4%
-
-
-
-
--
--
--
--
-
--
--
-
-1
-
-
-
-
-
-
-
1 -
13 1
--
-
1 2"
24.1%
2 2
-
-
--
--
1-
--
-
--
--
-
1-
-
-
-
-
-
-
-
-
-
14 1
--
-
1 4"
20.8%
2 -
-
-
--
--
--
1-
-
--
--
-
2-
-
3 -
3 -
1 -
-
-
15 1
--
-
1 2"
20.0%
-
-
-
-
--
--
--
--
-
--
--
-
1-
-
-
-
-
-
1 -
-
-
16 -
--
1 1
3"(EX)
3.7%
-
-
-
-
--
--
--
--
-
--
--
-
--
-
-
-
-
-
-
-
-
-
16 14CC
16 14
3"(N)
DETAIL "I"
SEE DETAIL "E"
MOUNT BLANKOUT SIGN USING
MAS MOUNTING AND BAND
MOUNT CLAMP KIT (ASTRO BRAC
AS-0129 OR EQUIVALENT)
BLANK OUT SIGN MOUNTING
POLE LOCATION
NOT TO SCALE
H
Legend
24"
36"
BLANK OUT
LED SIGN
24"
36"
DETAIL "D"
NOT TO SCALE
R3-1a
BLANK OUT
LED SIGN
DETAIL "E"
NOT TO SCALE
R3-2a
DETAIL "H"
SEE DETAIL "E"
USE SV-4-T FOR
MOUNTING
BLANK OUT SIGN MOUNTING
POLE LOCATION
NOT TO SCALE
G
14 TRAIN TRAIN
TRAIN
TRAINTRAIN
TRAIN
Docusign Envelope ID: 4CB3DEA9-D24F-48B7-8A4B-38674BA3E095 250 COMMERCE | Suite 200 | Irvine | California | 92602
www.railpros.com
RA PRLIO S
100% PLAN SET - NOT FOR CONSTRUCTION
ADVANCE PEDESTRIAN PREEMPTION CIRCUIT (APP)
THE "APP ACTIVE" CIRCUIT INDICATES A TRAIN IS APPROACHING THE CROSSING AND PEDESTRIAN MOVEMENTS NEED TO BE LIMITED.
WHEN "ACTIVE" THIS CIRCUIT SHALL CAUSE THE INTERSECTION TO COMPLETE ANY ACTIVE PEDESTRIAN INTERVALS.
NO NEW PEDESTRIAN MOVEMENTS WILL BE ALLOWED.
TRAFFIC CONTROL RELAY CIRCUIT (TCR)
THE "TCR ACTIVE" CIRCUIT INDICATES A TRAIN IS APPROACHING THE CROSSING.
WHEN "ACTIVE" THIS CIRCUIT SHALL CAUSE THE INTERSECTION TO ADVANCE TO THE TRACK CLEAR VEHICLE MOVEMENTS AND WAIT FOR THE GATE DOWN MESSAGE.
CROSSING RELAY CIRCUIT (XR)
THE "XR ACTIVE" CIRCUIT INDICATES A TRAIN IS APPROACHING THE INTERSECTION, THE RAILROAD LIGHTS START FLASHING. RAILROAD GATES START TO LOWER AND CLEARANCE OF THE VEHICLES FROM THE RAILROAD TRACKS IS NEEDED.
WHEN "ACTIVE" THIS CIRCUIT SHALL CAUSE THE INTERSECTION TO ADVANCE TO THE TRACK CLEAR VEHICLE MOVEMENTS (IF IT HASN'T ALREADY) AND WAIT FOR THE GATE DOWN MESSAGE AND ACTIVATE BLANK-OUT SIGN.
GATE DOWN CIRCUIT (GD)
THE "GD ACTIVE" CIRCUIT INDICATES THAT THE RAILROAD GATES ARE DOWN AT THE CROSSING.
WHEN "ACTIVE" THIS CIRCUIT SHALL CAUSE THE INTERSECTION TO SEQUENCE TO THE MINIMAL VEHICLE AND PEDESTRIAN SERVICE MOVEMENTS (LIMITED SERVICE), CYCLING UNTIL PREEMPTION IS COMPLETE.
WHEN PREEMPTION IS COMPLETE OR INTERRUPTED, ALL ACTIVE CIRCUITS WILL RETURN TO THEIR "NON ACTIVE" STATE.
TRAFFIC SIGNAL HEALTH CIRCUIT (HEALTH)
THE "HEALTH ACTIVE" NOTIFIES THE RAILROAD SYSTEM IF TRAFFIC SIGNAL HAS NO POWER OR IS FLASHING RED.
WHEN "ACTIVE" THIS CIRCUIT WILL CAUSE THE RAILROAD GATES AND FLASHING LIGHTS TO BE ACTIVATED EARLY WHEN TRAIN APPROACHES.
RAILROAD CIRCUITS AND THEIR TRAFFIC SIGNAL OPERATIONAL FUNCTIONS Ø1P
OLA
NORMAL OPERATIONS
TRACK CLEARANCE GREEN (TCG)
(SEE NOTES 1 AND 2 BELOW)
Ø1/OLA OLA
OLA
OLC
OLB
Ø1
Ø2 OLB, OLC
OLA
Ø2
Ø2P
OLA
NOTES:
1. = BLANK OUT LED SIGN R3-1a IS ILLUMINATED WHEN XR CIRCUIT BECOMES ACTIVE. THIS BLANK OUT SIGN CONTROLS WESTBOUND RIGHT TURNS TOWARDS THE GRADE CROSSING.
2. = BLANK OUT LED SIGN R3-2a IS ILLUMINATED WHEN XR CIRCUIT BECOMES ACTIVE. THIS BLANK OUT SIGN CONTROLS EASTBOUND LEFT TURNS TOWARDS THE GRADE CROSSING.
PREEMPTION DWELL
(SEE NOTES 1 AND 2 BELOW)
PHASE DIAGRAM - RAILROAD PREEMPTION OPERATION: SAN ANTONIO AVENUE AT FIRST STREET
ADVANCE TO LIMITED SERVICE OPERATIONS
4 SECONDS AFTER GD CIRCUIT BECOMES
ACTIVE.
B
CBA2A1
OLAA1 C BA2Ø1/OLA Ø2
APP
TRANSITION OPERATIONS WITH
PEDESTRIANS
(APP CIRCUIT BECOMES ACTIVE WHILE A
PEDESTRIAN MOVEMENT IS BEING SERVED.)
TRANSITION OPERATIONS START WHEN THE
APP CIRCUIT BECOMES ACTIVE.
FINISH PEDESTRIAN CALLS INITIATED
DURING NORMAL OPERATIONS BUT DO NOT
SERVE ANY NEW PEDESTRIAN CALLS.
OLAA1 B A2Ø1/OLA Ø2TRANSITION OPERATIONS WITHOUT
PEDESTRIANS
(APP CIRCUIT BECOMES ACTIVE WHEN
THERE ARE NO PEDESTRIAN MOVEMENTS
BEING SERVED.)
TRANSITION OPERATIONS START WHEN THE
APP CIRCUIT BECOMES ACTIVE.
DO NOT SERVE ANY PEDESTRIAN CALLS.
Ø1P
OLA Ø1
GO TO
Ø4P
Ø2P
Ø2
OLA Ø1
OLA
A2
RR PREEMPTION INTERCONNECT WIRING DIAGRAM
1 2
1 2
33 44
55 66
1212
1313
9 10
11 7
8 14
15 9
10 11
7 8
14 15
16 18
16 18
NHEALTH
HEALTH
XR
17 17
+
-
HEALTH
NHEALTH
HEALTH
BX
SUP
NSUP
PMT
NPMT
NO
NC
C
XR
C
SUP
NO
NC
C
TCR
NO
NC
NO
NC
C
GD
18C#14-AWG
RR SIC
BLACK
RED W/
BLACK STRIPE
ORANGE
RED
WHITE W/
RED STRIPE
GD
TRAFFIC SIGNAL CONTROLLER
CABINET
RR SIGNAL HOUSE
H
NOTES:
1. RR RELAYS ARE SHOWN IN THEIR NORMAL (NON-PREEMPT) STATE.
2. RR CIRCUIT TO BE 12 VOLT DC POWER.
(TYPICAL FOR 8' ISNS)
TOP VIEW ELEVATION
DETAIL "J"
IISNS STRAIGHT ARM MOUNTING
NOT TO SCALE
*
*
APP
APP
APP
Ø2
TCR
TCR
TCR
TCR
NO
NC
C
ADV (APP)
APP
RED W/
WHITE STRIPE
ORANGE W/
RED STRIPE
ORANGE W/
BLACK STRIPE
GREEN W/
WHITE STRIPE
GREEN W/
BLACK STRIPE
BLUE W/
BLACK STRIPE
BLUE W/
WHITE STRIPE
BLACK W/
WHITE STRIPE
BLACK W/
RED STRIPE
A2
TCR TCR
TCR SUP CX BLUE
Ø4/OLB, OLC
OLB, OLC
Ø4P
OLC
OLB
OLC
OLB
NOTES:
1. TABLE 1 EXCERPTED FROM PREEMPTION CALCULATION REPORT.
REFER TO PREEMPTION CALCULATION REPORT FOR DETAILS.
OLC
C
AOLB OLC
OLB
**GD+
Docusign Envelope ID: 4CB3DEA9-D24F-48B7-8A4B-38674BA3E095 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 h
erein
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 th
e
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 reason able 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 caus
e 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 damage
s
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 cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the track tie ends, which shall be maintained by the Railroad at the Political Body’s expense.
B. If, in the future, the Political Body elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or some surfacing material other than 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, raise or lower the grade of all or any portion of the track (s) located within the Crossing Area, the Political Body shall, at its own expense, conform the
Roadway
to conform with
the change of grade of the trackage.
SECTION 7.
REARRANGEMENT OF WARNING DEVICES
If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either the Railroad, highway or both, the parties will apportion the expense incidental thereto between themselves by negotiation, agreement or by the order of a competent authority before the change or rearrangement is undertaken.
SECTION 8.
SAFETY MEASURES; PROTECTION
OF RAILROAD COMPANY OPERATIONS
It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the 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 perfor m 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 eq
uipment (collectively the
“Loss”) that arises from the presence or activities of Political Body’s employees on Railroad’s property, except to the extent that any Loss is caused by the sole direct negligence of Railroad.
C. Flagging
.
(i) If the Political Body's employees need to enter Railroad's property as provided in Paragraph B above, the Political Body agrees to notify the Railroad Representative at least thirty (30) working days in advance of proposed performance of any work by
Political Body
in which any person or equipment will be within twenty -five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains.
Upon receipt of such thirty
(30) day notice, the Railroad Representative will determine and inform Political Body whether a flagman need be present and whether
Political Body
ne
eds 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 c
harge 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 re
quired
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 Pol itical 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, inc luding 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 specificatio
ns, 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 R ailroad'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 b
y 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 oth ers. 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 part hereof constitute the entire understanding between the Po
litical 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.
1 Contractor's Right of Entry Public Project No. 0779333 Projects Form Approved 02/09
/
2022
EXHIBIT
C
TO
PUBLIC
HIGHWAY
AT
-GRADE
CROSSING
A
GREEMENT
CO
NTRACTOR'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").
RE
CITALS:
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. l ocated 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 .
R
ailroad 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 A
GREEMENT:
NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows:
A
RTICLE 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.
A
RTICLE 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
s
named in Article 4.
A
RTICLE 3
-
TERMS AND CONDITIONS CONTAINED IN EXHIBITS B AND C
.
The t
erms and conditions contained in
Exhibit B
and
Exhibit C, attached hereto, are hereby made a
part of this agreement.
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ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE S .
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 s or their duly authorized representative (the "Railroad
Representative
s
"):
MTM:______________________
___________________________
___________________________
___________________________
PM:________________________
___________________________
___________________________
___________________________
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 terminate d 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 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. 3 Contractor's Right of Entry Public
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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. 0779333
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 R ailroad, 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.) Union Pacific’s Third Party Flagging Policy at the link provided here:
www.up.com/flagging
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.
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.
4 Contractor's Right of Entry Public
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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.
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X
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X
X
X X X
X X X
X
X
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XXX
X
X
X
X
X
X
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5 0
SCALE: 1" = 10'
102040
NOT FOR CONSTRUCTION
15265 Alton Parkway | Suite 140 | Irvine | California | 92618 www.railpros.com
RAPR LIOS
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 gov ernmental 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 inc luded, 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 bargaini ng 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-da
y 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 Cont ractor, 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 othe
r 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 cab
le 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 EXPENSE
S) 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 REVEN
UE 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. All personnel employed by the Agency, Contractor and all subcontractors must complete the Railroad's course “Property Access Training” and be registered prior to working on Railroad property. This training is available at
www.up.com/up
-pat
. This training is required to be completed annually.
C. 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.
D. 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 inf luence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any Work.
E. 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. 5 CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO.
D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY
WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY
TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST ANY INDEMNIFIED PARTY.
E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN
NO
EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO
LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED
PARTY BY STATUTE OR UNDER
COMMON LAW.
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 oper ator 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 commerc ial 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.