17-023.00 Union Pacific RR: Barker Rd At-Grade CrossingFebruary 17, 2017
CITY OF SPOKANE VALLEY
11707 E SPRAGUE AVE, SUITE 106
SPOKANE VALLEY WA 99206
RE: Agreement for Barker Rd DOT 662526C
Dear Sirs:
COSV Public Works
Received
UPRR Folder No. 3034-86
Enclosed is one fully executed original of the above -referenced Agreement. In accordance with the terns of the
Agreement, you are required to notify the following Railroad Company's Manager and Track Maintenance and
also notify the Manager of Industry and Public Projects and the Telecommunications ("Call Before You Dig")
number- at least 10 days in advance of the date you plan on entering the right of way for further instructions and
approval to commence construction.
Max M. Mccrosky
MGR TRACK MNTCE
Cell Phone: 402 615-0428
Internet Addr: mmmccros@up.com
Terrel A. Anderson
MGR IND & PUBLIC PROJ
9451 Atkinson St
Roseville, CA 95747
Work Phone: 775 356-2644
Cell Phone: 916 390-3693
Internet Addr: taanders@up.com
Telecommunications ("Call Before You Dig"): 1-800-336-9193
If you have any questions, please contact me at (402) 544-8549.
Sincerely yours,
Kathy Nesser
Manager - Contracts - Real Estate
Real Estate Department
UNION PACIFIC RAILROAD COMPANY
1400 Douglas Street, MS 1690
Omaha, Nebraska 68179-1690
fax: 402.501.0340
1_ 2_3
UP Real Estate Folder No.: 3034-86
Agreement Number 3% \
PUBLIC HIGHWAY AT -GRADE CROSSING
BARKER ROAD
DOT NUMBER 662526C
MILE POST 12.99 - SUBDIVISION
SPOKANE VALLEY, SPOKANE COUNTY, WASHINGTON
THIS AGREEMENT ("Agreement") is made and entered into as of the 174-6day of
, 20 ( ("Effective Date"), by and between UNION PACIFIC RAILROAD
COMPAN , a Delaware corporation, to be addressed at Real Estate Department, 1400
Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179 ("Railroad") and THE CITY OF
SPOKANE VALLEY a municipal corporation or political subdivision of the State of
Washington ("Political Body").
RECITALS:
The Political Body now desires to undertake as its project (the "Project") the
reconstruction by grinding and installing new hot mix asphalt on the north side of the track
and installing new pavement markings on the south side of the tracks of the road crossing
that was already constructed. The road crossing, as reconstructed is hereinafter the
"Roadway" and the portion of the Railroad's property where the Roadway crosses the
Railroad's property is the "Crossing Area."
The right of way right currently used by the Political Body at the location in
Exhibit A is sufficient to allow for the reconstruction of the Roadway and such right of
way is hereinafter referred to as the "Crossing Area."
above.
The Railroad and the Political Body are entering into this Agreement to cover the
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 ONE THOUSAND DOLLARS ($1,000.00) 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 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:
Senior Manager - Contracts
Union Pacific Railroad Company
Real Estate Department
1400 Douglas Street, Mail Stop 1690
Omaha, NE 68179-1690
UP File Folder No. 3034-86
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
The Political Body agrees to reimburse the Railroad within thirty (30) days of its
receipt of billing from the Railroad for one hundred percent (100%) of all actual costs
incurred by the Railroad in connection with the Project including, but not limited to, all
actual costs of engineering review (including preliminary engineering review costs incurred
by Railroad prior to the Effective Date of this Agreement), construction, inspection, flagging
(unless flagging costs are to be billed directly to the Contractor), procurement of materials,
equipment rental, manpower and deliveries to the job site and all direct and indirect
overhead labor/construction costs including Railroad's standard additive rates.
Section 8. PLANS
A. The Political Body, at its expense, shall prepare, or cause to be prepared. by
others, the detailed plans and specifications for the Project 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.
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 andlor liabilities
under this Agreement, and will be given with the understanding that the Railroad makes no
representations or warranty as to the validity, accuracy, legal compliance or completeness
of the Plans and that any reliance by the Political Body or Contractor on the Plans is at the
risk of the Political Body and Contractor.
Section 9. NON -RAILROAD IMPROVEMENTS
A. Submittal of plans and specifications for protecting, encasing, reinforcing,
relocation, replacing, removing and abandoning in place all non -railroad owned facilities
(the "Non Railroad Facilities") affected by the Project including, without limitation, utilities,
fiber optics, pipelines, 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 limitation, American Railway
Engineering and Maintenance -of -Way Association ("AREMA") standards and guidelines.
Railroad has no obligation to supply additional land for any Non Railroad Facilities and
does not waive its right to assert preemption defenses, challenge the right -to -take, or
pursue compensation in any condemnation action, regardless if the submitted Non
Railroad Facilities plans and specifications comply with Railroad's standard specifications
and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be
abandoned in place or relocated on Railroad's property.
B. Upon Railroad's approval of submitted Non Railroad Facilities plans and
specifications, Railroad will attempt to incorporate them into new agreements or
supplements of existing agreements with Non Railroad Facilities owners or operators.
Railroad may use its standard terms and conditions, including, without limitation, its
standard license fee and administrative charges when requiring supplements or new
agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence
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 (1) 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
commence construction on the portion of the Project located on the Railroad's property
within twelve (12) months from the Effective Date.
C. If the Agreement is terminated as provided above, or for any other reason,
the Political Body shall pay to the Railroad all actual costs incurred by the Railroad in
connection with the Project up to the date of termination, including, without limitation, all
actual costs incurred by the Railroad in connection with reviewing any preliminary or final
Project Plans.
Section 11. CONDITIONS TO BE MET BEFORE
POLITICAL BODY CAN COMMENCE WORK
Neither the Political Body nor the Contractor may commence any work within the
Crossing Area or on any other Railroad property until:
(i)
The Railroad and Political Body have executed this Agreement.
(ii) The Railroad has provided to the Political Body the Railroad's written
approval of the Plans.
(iii) Each Contractor has executed Railroad's Contractor's Right of Entry
Agreement and has obtained and/or provided to the Railroad the insurance
policies, certificates, binders, and/or endorsements required under the
Contractor's Right of Entry Agreement.
(iv) Each Contractor has given the advance notice(s) required under the
Contractor's Right of Entry Agreement to the Railroad Representative named
in the 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. Political Body shall not assign this Agreement without the prior written
consent of Railroad.
B. Subject to the provisions of Paragraph A above, this Agreement shall inure to
the benefit of and be binding upon the successors and assigns of Railroad and Political
Body.
Section 14. SPECIAL 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.
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)
B
anted Name: Kathy Nesser
Title: Manager Real Estate
CITY OF SPOKANE VALLEY
By: )/ 404Cv .-
Printed Name: 0,r K C /1/0)(1,1
Title: (' 1t4�ayuaQ.pr
EXHIBIT A
TO
PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT
Exhibit A will be a print showing the Crossing Area (see Recitals)
EXHIBIT "A"
RAILROAD LOCATION PRINT
FOR AN EXISTING AT GRADE
PUBLIC ROAD CROSSING AGREEMENT
DOT No. 662526C
M.P. 12.99 Spokane Subdivision
Spokane Valley, Spokane County, WA
At Grade Public Road Crossing.
UNION PACIFIC RAILROAD COMPANY
SPOKANE Stl13L)1VIS1ON
RAILROAD MILE POST 12.99
SPOKANE VALLEY, SPOKANE COUNTY, WA
To accompany an agreement with
THE CITY OF SPOKANE VALLEY AND ITS
CONTRACTOR
covering an At Grade Public Roil Crossing.
Polder No. 3034-86 Date: Jan 27, 2017
WARNING
IN Mi. € CCASIONS, UP, COMMUNICATIONS DEPARTMENT MUST ISL' CON ['ACTED IN
ADVANCE OCA Y WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CAi3LE
PHONE: 1-(O00) 336-9193
Exhibit A
Railroad Location Print
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.
F. If any property or rights other than the right hereby granted are necessary for the
construction, maintenance and use of the Roadway and its appurtenances, or for the
performance of any work in connection with the Project, the Political Body will acquire all
such other property and rights at its own expense and without expense to the Railroad.
SECTION 2. CONSTRUCTION OF ROADWAY
A. The Political Body, at its expense, will apply for and obtain all public authority
required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad
upon request with satisfactory evidence that such authority has been obtained.
B. Except as may be otherwise specifically provided herein, the Political Body, at its
expense, will furnish all necessary labor, material and equipment, and shall construct and
complete the Roadway and all appurtenances thereof. The appurtenances shall include,
without limitation, all necessary and proper highway warning devices (except those
installed by the Railroad within its right of way) and all necessary drainage facilities, guard
rails or barriers, and right of way fences between the Roadway and the railroad tracks.
Upon completion of the Project, the Political Body shall remove from the Railroad's
property all temporary structures and false work, and will leave the Crossing Area in a
condition satisfactory to the Railroad.
C. All construction work of the Political Body upon the Railroad's property (including,
but not limited to, construction of the Roadway and all appurtenances and all related and
incidental work) shall be performed and completed in a manner satisfactory to the
Assistant Vice President Engineering -Design of the Railroad or his authorized
representative and in compliance with the Plans, and other guidelines furnished by the
Railroad.
D. All construction work of the Political Body shall be performed diligently and
completed within a reasonable time. No part of the Project shall be suspended,
discontinued or unduly delayed without the Railroad's written consent, and subject to such
reasonable conditions as the Railroad may specify. It is understood that the Railroad's
tracks at and in the vicinity of the work will be in constant or frequent use during progress
of the work and that movement or stoppage of trains, engines or cars may cause delays
in the work of the Political Body. The Political Body hereby assumes the risk of any such
delays and agrees that no claims for damages on account of any delay shall be made
against the Railroad by the State and/or the Contractor.
SECTION 3. INJURY AND DAMAGE TO PROPERTY
If the Political Body, in the performance of any work contemplated by this
Agreement or by the failure to do or perform anything for which the Political Body is
responsible under the provisions of this Agreement, shall injure, damage or destroy any
property of the Railroad or of any other person lawfully occupying or using the property of
the Railroad, such property shall be replaced or repaired by the Political Body at the
Political Body's own expense, or by the Railroad at the expense of the Political Body, and
to the satisfaction of the Railroad's Assistant Vice President Engineering -Design.
SECTION 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK
2
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 Grossing Area and Roadway,
except the portions between the track tie ends, which shall be maintained by and at the
expense of the Railroad.
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 civ
Crossing Area, replaced with paving or some surfacing material other than* �€ planking,
the Railroad, at the Political Body's expense, shall install such replacement surfacing, and
in the future, to the extent repair or replacement of the surfacing is necessitated by repair
or rehabilitation of the Railroad's tracks through the Crossing Area, the Political Body
shall bear the expense of such repairs or replacement.
SECTION G. 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 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:
3
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.
(1) If the Political Body's employees need to enter Railroad's property as
provided in Paragraph B above, the Political Body agrees to notify the Railroad
Representative at least thirty (30) working days in advance of proposed performance of
any work by Political Body in which any person or equipment will be within twenty-five (25)
feet of any track, or will be near enough to any track that any equipment extension (such
as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track.
No work of any kind shall be performed, and no person, equipment, machinery, tool(s),
material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within
twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and
until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) day
notice, the Railroad Representative will determine and inform Political Body whether a
flagman need be present and whether Political Body needs to implement any special
protective or safety measures. If flagging or other special protective or safety measures
are performed by Railroad, Railroad will bill Political Body for such expenses incurred by
Railroad. if Railroad performs any flagging, or other special protective or safety measures
are performed by Railroad, Political Body agrees that Political Body is not relieved of any of
its responsibilities or liabilities set forth in this Agreement.
(ii) The rate of pay per hour for each flagman will be the prevailing hourly rate in
effect for an eight-hour day for the class of flagmen used during regularly assigned hours
and overtime in accordance with Labor Agreements and Schedules in effect at the time the
work is performed. In addition to the cost of such labor, a composite charge for 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.
4
One and one-half times the current hourly rate is paid for overtime, Saturdays and
Sundays, and two and one-half times current hourly rate for holidays. Wage rates are
subject to change, at any time, by law or by agreement between Railroad and its
employees, and may be retroactive as a result of negotiations or a ruling of an authorized
governmental agency. Additional charges on labor are also subject to change. If the wage
rate or additional charges are changed, Political Body shall pay on the basis of the new
rates and charges.
(iii) Reimbursement to Railroad will be required covering the full eight-hour day
during which any flagman is furnished, unless the flagman can be assigned to other
Railroad work during a portion of such day, in which event reimbursement will not be
required for the portion of the day during which the flagman is engaged in other Railroad
work. Reimbursement will also be required for any day not actually worked by the flagman
following the flagman`s assignment to work on the project for which Railroad is required to
pay the flagman and which could not reasonably be avoided by Railroad by assignment of
such flagman to other work, even though Political Body may not be working during such
time. When it becomes necessary for Railroad to bulletin and assign an employee to a
flagging position in compliance with union collective bargaining agreements, Political Body
must provide Railroad a minimum of five (5) days notice prior to the cessation of the need
for a flagman. If five (5) days notice of cessation is not given, Political Body will still be
required to pay flagging charges for the five (5) day notice period required by union
agreement to be given to the employee, even though flagging is not required for that
period. An additional thirty (30) days notice must then be given to Railroad if flagging
services are needed again after such five day cessation notice has been given to Railroad.
D. Compliance With Laws. The Political Body shall comply with all applicable
federal, state and local laws, regulations and enactments affecting the work. The Political
Body shall use only such methods as are consistent with safety, both as concerns the
Political Body, the Political Body's agents and employees, the officers, agents, employees
and property of the Railroad and the public in general. The Political Body (without limiting
the generality of the foregoing) shall comply with all applicable state and federal
occupational safety and health acts and regulations. All Federal Railroad Administration
regulations shall be followed when work is performed on the Railroad's premises. If any
failure by the Political Body to comply with any such laws, regulations, and enactments,
shall result in any fine, penalty, cost or charge being assessed, imposed or charged
against the Railroad, the Political Body shall reimburse, and to the extent it may lawfully
do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without
limitation attorney's fees, court costs and expenses, The Political Body further agrees in
the event of any such action, upon notice thereof being provided by the Railroad, to
defend such action free of cost, charge, or expense to the Railroad.
5
E. No Interference or Delays. The Political Body shall not do, suffer or permit
anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance
or operation of the Railroad's tracks or facilities, or any communication or signal lines,
installations or any appurtenances thereof, or the operations of others lawfully occupying
or using the Railroad's property or facilities.
F. Supervision. The Political Body, at its own expense, shall adequately police and
supervise all work to be performed by the Political Body, and shall not inflict injury to
persons or damage to property for the safety of whom or of which the Railroad may be
responsible, or to property of the Railroad. The responsibility of the Political Body for safe
conduct and adequate policing and supervision of the Project shall not be lessened or
otherwise affected by the Railroad's approval of plans and specifications, or by the
Railroad's collaboration in performance of any work, or by the presence at the work site of
the Railroad's representatives, or by compliance by the Political Body with any requests or
recommendations made by such representatives. If a representative of the Railroad is
assigned to the Project, the Political Body will give due consideration to suggestions and
recommendations made by such representative for the safety and protection of the
Railroad's property and operations.
G. Suspension of Work. if at any time the Political Body's engineers or the Vice
President -Engineering Services of the Railroad or their respective representatives shall
be of the opinion that any work of the Political Body is being or is about to be done or
prosecuted without due regard and precaution for safety and security, the Political Body
shall immediately suspend the work until suitable, adequate and proper protective
measures are adopted and provided.
H. Removal of Debris. The Political Body shall not cause, suffer or permit material
or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of
the Railroad; and any such material and debris shall be promptly removed from the
Railroad's property by the Political Body at the Political Body's own expense or by the
Railroad at the expense of the Political Body. The Political Body shall not cause, suffer or
permit any snow to be plowed or cast upon the Railroad's property during snow removal
from the Crossing Area.
1. Explosives. The Political Body shall not discharge any explosives on or in the
vicinity of the Railroad's property without the prior consent of the Railroad's Vice
President -Engineering Services, which shall not be given if, in the sole discretion of the
Railroad's Vice President -Engineering Services, such discharge would be dangerous or
would interfere with the Railroad's property or facilities. For the purposes hereof, the
"vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's
property or in such close proximity to the Railroad's property that the discharge of
explosives could cause injury to the Railroad's employees or other persons, or cause
damage to or interference with the facilities or operations on the Railroad's property. The
Railroad reserves the right to impose such conditions, restrictions or limitations on the
transportation, handling, storage, security and use of explosives as the Railroad, in the
Railroad's sole discretion, may deem to be necessary, desirable or appropriate.
6
J. Excavation. The Political Body shah not excavate from existing slopes nor
construct new slopes which are excessive and may create hazards of slides or falling
rock, or impair or endanger the clearance between existing or new slopes and the tracks
of the Railroad. The Political Body shall not do or cause to be done any work which will
or may disturb the stability of any area or adversely affect the Railroad's tracks or
facilities. The Political Body, at its own expense, shall install and maintain adequate
shoring and cribbing for all excavation and/or trenching performed by the Political Body in
connection with construction, maintenance or other work. The shoring and cribbing shall
be constructed and maintained with materials and in a manner approved by the Railroad's
Assistant Vice President Engineering - Design to withstand all stresses likely to be
encountered, including any stresses resulting from vibrations caused by the Railroad's
operations in the vicinity.
K. Drainage. The Political Body, at the Political Body's own expense, shall provide
and maintain suitable facilities for draining the Roadway and its appurtenances, and shall
not suffer or permit drainage water therefrom to flow or collect upon property of the
Railroad. The Political Body, at the Political Body's own expense, shall provide adequate
passageway for the waters of any streams, bodies of water and drainage facilities (either
natural or artificial, and including water from the Railroad's culvert and drainage facilities),
so that said waters may not, because of any facilities or work of the Political Body, be
impeded, obstructed, diverted or caused to back up, overflow or damage the property of
the Railroad or any part thereof, or property of others. The Political Body shall not
obstruct or interfere with existing ditches or drainage facilities.
L. Notice. Before commencing any work, the Political Body shall provide the
advance notice to the Railroad that is required under the Contractor's Right of Entry
Agreement.
M. Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's
property. Protection of the fiber optic cable systems is of extreme importance since any
break could disrupt service to users resulting in business interruption and loss of revenue
and profits. Political Body shall telephone the Railroad during normal business hours
(7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-
336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic
cable is buried anywhere on the Railroad's premises to be used by the 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
7
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.
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 riot menace, endanger or interfere with the
Railroad's facilities or operations or jeopardize the Railroad's employees; and the Political
Body will reimburse the Railroad for the expenses thereof.
B. Nonuse by the Political Body of the Crossing Area for public highway purposes
continuing at any time for a period of eighteen (18) months shall, at the option of the
Railroad, work a termination of this Agreement and of all rights of the Political Body
hereunder.
C. The Political Body will surrender peaceable possession of the Crossing Area and
Roadway upon termination of this Agreement. Termination of this Agreement shall not
affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may
have arisen prior to termination.
SECTION 13. MODIFICATION - ENTIRE AGREEMENT
No waiver, modification or amendment of this Agreement shall be of any force or
effect unless made in writing, signed by the Political Body and the Railroad and specifying
with particularity the nature and extent of such waiver, modification or amendment. Any
waiver by the Railroad of any default by the Political Body shall not affect or impair any
right arising from any subsequent default. This Agreement and Exhibits attached hereto
and made a part hereof constitute the entire understanding between the Political Body
8
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.
9
EXHIBIT C
TO
PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT
Exhibit C will be Form of Contractor's Right of Entry Agreement
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03)01/2013
BUILDING AMERICA'
Folder No.: 3034-86
UPRR Audit No,:
CONTRACTOR'S RIGHT OF ENTRY
AGREEMENT
THIS AGREEMENT is made and entered into as offlip :: day of
2014, by and between UNION PACIFIC RAILROAD _COMPANY, a Delaware corporation
("Railroad"); and
(Name o f Contractor)
a corporation ("Ctiitiactor").
RECITALS:
Contractor has been hired by th6:::: ("Mate") to perform work relating to the
at -grade
public road crossing with all or a portion ti such work:to be pert"o •med on property of Railroad in the
vicinity of the Railroad's.;le, Post ''(I74T ) oi;ats Subdivision
in or near _ .. ::, •.cotty ", as such location is in the
general location shoe n on the Railroad Location Pr<i t narked E liibit A, attached hereto and hereby
made a part hereof, wliitl..work is:the subject cf.acontract dated , 2014, between
the Railroad and the State.o':City ,:-;:>-::
The Ra....::.,•.:•::;.,::.::,,....
li oad �i-s 'i ilhng to. peiinit the Contracto ,. to perform the work described above at the
location described above subject.to:.tbe terms a xd conditions contained in this Agreement
:;AGREEMENT:
NOW,'•THIREFORE itis mutually agreed by and between Railroad and Contractor, as
follows:
ARTICLE 1- DEFINITION OF CONTRACTOR.
For purposes of this Agreement, all references in this agreement to Contractor shall include
Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its
or their authority.
ARTICLE 2 - RIGHT GRANTEDtPURPOSE.
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
Arlictes of Agreement
Page 1 of 4
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03IO1I20I3
t3UILDIN° AMERICA
limited to those portions of Railroad's property specifically described herein, or as designated by the
Railroad Representative named in Article 4.
ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C & D.
The General Terms and Conditions contained in Exhibit B, the Insurance Requirements
contained in Exhibit C, and the Minimum Safety Requirements contained in Exhibit D, each
attached hereto, are hereby made a part of this Agreement.
ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD
REPRESENTATIVE.
A. Contractor shall bear any and all costs and expenses associated with any work performed by
Contractor, or any costs or expenses incurred by Railroad relating to this Agreement.
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
(Grpiratian Date)
Articles of Agreement
Page 2 of 4
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/01/2013
BUILDING AMERICA*
provided, or at such tinie 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 (1 0) days written notice to the other
party,
ARTICLE 7 - CERTIFICATE OF INSURANCE.
A, Before commencing any work, Contractor will provide Railroad with the (i) insurance binders,
policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the
insurance endorsements obtained by each subcontractor as required under Section 12 ofExhibit
B of this Agreement.
13. Ail insurance correspondence, binders, policies, certificates and endorsements shall be sent to:
Union Pacific Railroad Company
Real Estate Department
1 100 Douglas Street, MS 1690
Omaha, NE 681794690
UPRR Folder No.:
ARTICLE 8 - DISMISSAL OF CONTRACTOR'S EMPLOYEE.
At the request of Railroad, Contractor shall remove from Railroad's property any employee of
Contractor who fails to conform to the instructions of the Railroad Representative in connection with
the work on Railroad's property, and any right of Contractor shall be suspended until such removal
has occurred. Contractor shalt indemnify Railroad against any claims arising from the removal of
any such employee from Railroad's property.
ARTICLE 9 - CROSSINGS.
No additional vehicular crossings (including temporary haul roads) or pedestrian crossings
over Railroad's trackage shall be installed or used by Contractor without the prior written permission
of Rai lroad.
ARTICLE 10 - CROSSINGS; COMPLIANCE WITH MUTCD AND FRA GUIDELINES.
A. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Railroad's trackage shall be installed or used by Contractor without the prior written permission
of Railroad,
B. Any permanent or temporary changes, including temporary traffic control, to crossings must
conform to the Manual of Uniform Traffic Control Devices (MUTCD) and any applicable
Federal Railroad Administration rules, regulations and guidelines, and must be reviewed by the
Railroad prior to any changes being implemented. In the event the Railroad is found to be out of
compliance with federal safety regulations due to the Contractor's modifications, negligence, or
any other reason arising from the Contractor's presence on the Railroad's property, the
Contractor agrees to assume liability for any civil penalties imposed upon the Railroad for such
Articles of Agreement
Page 3 of 4
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 0310112013
BUILDING AMERICA°
no]1CUn1pl i ante.
ARTICLE 11 - EXPLOSIVES.
Explosives or other highly flammable substances shall not be stored or used on Railroad's
property without the prior written approval of Railroad.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in
duplicate as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY
(Federal Tax ID 1194-5001323)
By:
Kathy Nesser
Manager -Real Estate
(Name of Gantt aciol)
By
Printed Name:
Title:
i3 MON
MIC
'IIID
Articles of Agreement
Page 4 of 4
EXHIBIT "A"
RAILROAD LOCATION PRINT
FOR AN EXISTING AT GRADE
PUBLIC ROAD CROSSING AGREEMENT
DOT No. 6625260
M.P. 12.99 Spokane Subdivision
Spokane Valley, Spokane County, WA
At Grade Public koad Crossing.
UNION PACIFIC RAILROAD COMPANY
SPOKANE SUBDIVISION
RAILROAD MILE POST 12.99
SPOKANE VALLEY, SPOKANE COUNTY, WA
To accompany an agreement with
THE CITY OF SPOKANE VALLEY AND ITS
CONTRACTOR
covering an At Grade Public Road C'rossiag.
Folder No. 3034-86 Date; Jan 27, 2017
WARNING
IN ALL OCCASIONS, UP, COMMUNICATIONS DEPARTMENT MUST HE C'ONTACTE,D lu
AUVA.NN('L OF ANY WORN TO DETERMINE EXISTENCE AND LOCATION OF HIER OPTIC CA13LL•.
PIIONlis 1-(800:336.9193
Exhibit A
Railroad Location Print
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/09/2013
EXHIBIT B
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
GENERAL TERMS & CONDITIONS
Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING.
BUILDING AMERICA*
A. Contractor agrees to notify the Railroad Representative at least thirty (30) working days in advance of Contractor
commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in
which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any
equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No
work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shah
be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason,
unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad
Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to
implement any special protective or safety measures. If flagging or other special protective or safety measures are
performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal,
state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local
governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days
of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are
performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in
this Agreement.
B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of
flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect
at the time the work is performed. in addition to the cost of such labor, a composite charge for vacation, holiday, health
and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension,
Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite
charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the
current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for
holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and
may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on
labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental
entity, as applicable) shall pay on the basis of the new rates and charges.
C, Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless
the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be
required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be
required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which
Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such
fiagrrran 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 ten (10) 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
tirnes by Railroad without liability to Contractor or to any other party for compensation or damages.
CONTRACTOR'S RIGHT OF ENTRY Page 1 of 4 Exhibit B
AGREEMENT General Terms & Conditions
Form Approved: AVP Law 03/01/2013
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/01/2013
BUILDING AMERICA°
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of
Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of
title or for quiet enjoyment.
Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS.
A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the
railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or
others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be
done by Contractor at any time that would in any manner impair the safety of such operations. When not in use,
Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and
there shall be no vehicular crossings of Railroads tracks except at existing open public crossings.
B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor
caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have
no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with
those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train
movements and other activities by Railroad takes precedence over any work to be performed by Contractor.
Section 4. LIENS.
Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor.
Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or
enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad
from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or
growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be
released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense.
Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme
importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits.
Contractor shalt telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through
Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic
cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the
telecommunications company(les) involved, make arrangements for a cable locator and, if applicable, for relocation or
other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if
applicable) has been accomplished.
B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless
from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and
expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1)
any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of
any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees,
on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for
alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using
Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property_
Section 6. PERMITS - COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall
comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without
limitation, all applicable Federal Railroad Administration regulations.
Section 7. SAFETY.
A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work
performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations
and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in
CONTRACTORS RIGHT OF ENTRY Page 2 of 4 Exhibit B
AGREEMENT General Terms & Conditions
Form Approved: AVP Lew 03/01/2013
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/01/2013
BUILDING AMERICA`
Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of
Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety
standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit Q to each of its employees
before they enter the job site.
B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health
hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job.
C, Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to
any person injured on the job site, Contractor shall promptly notify Railroad of any U.S. Occupational Safely and Health
Administration reportable injuries. Contractor shall have a nondelegabie duty to control its employees while they are on the
job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their
possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work.
D. if and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the
work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any
deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this
Agreement and the Safety Plan.
Section 8. INDEMNITY.
A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its
affiliates, and its and their officers, agents and employees (individually an "Indemnified Party" or collectively "Indemnified
Parties") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without
limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by any
person (including, without limitation, any Indemnified Party, Contractor, or any employee of Contractor or of any
Indemnified Party) arising out of or in any manner connected with (1) 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.
8. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss, and shall
apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the sole
active negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. The sole
active negligence of any indemnified Party shall not bar the recovery of any other Indemnified Party.
C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by
Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial
insurance acts to indemnify the Indemnified Parties under this Section 8. Contractor acknowledges that this waiver was
mutually negotiated by the parties hereto.
D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the Federal Employers'
Liability Act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability
against any Indemnified Party.
E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or
expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit
any liability Contractor may have to any Indemnified Party by statute or under common law.
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.
CONTRACTOR'S RIGHT OF ENTRY Page 3 of 4 Exhibit B
AGREEMENT General Terms & Conditions
Form Approved: AVP Law 03/01/2013
ANION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/01/2013
Section 10. WAIVER OF DEFAULT.
BUILDING AMERICA'
Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed
and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach
or default.
Section 11. MODIFICATION - ENTIRE AGREEMENT.
No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad, This
Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor
and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with
respect to the work to be performed by Contractor.
Section 12. ASSIGNMENT - SUBCONTRACTING.
Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the
Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any
work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the
Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies
with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing
these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent
coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability
Railroads" ISO Form CG 24 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.
CONTRACTOR'S RIGHT OF ENTRY Page 4 of 4 Exhibit B
AGREEMENT General Terms & Conditions
Form Approved: AVP Law 03/01/2013
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/0112013
EXHIBIT C
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
INSURANCE REQUIREMENTS
BUILDING AMERICA*
Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project
work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's
property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage:
A. COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial general liability (CGL) with a limit of not less than
$5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO
occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage).
The policy must also contain the following endorsement, which must be stated on the certificate of insurance:
• Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing
"Union Pacific Railroad Company Property" as the Designated Job Site.
• Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing
equivalent coverage) showing the project on the form schedule.
B. BUSINESS AUTOMOBILE COVERAGE INSURANCE. Business auto coverage written on ISO form CA 00 01 10 01 (or a
substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident
and coverage must include liability arising out of any auto (including owned, hired and non -owned autos).
The policy must contain the following endorsements, which must be stated on the certificate of insurance:
• Coverage For Certain Operations In Connection With Railroads ISO form CA 20 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.
The policy must contain the following endorsement, which must be stated on the certificate of insurance:
• Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage)
showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage).
D. RAILROAD PROTECTIVE LIABILITY INSURANCE. Contractor must maintain Railroad Protective Liability insurance
written on ISO occurrence form CG 00 3512 04 (or a substitute form providing equivalent coverage) on behalf of Railroad
as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000, A binder
stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy
is forwarded to 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 written on ISO form Pollution Liability Coverage
Form Designated Sites CG 00 3912 04 (or a substitute form providing equivalent liability coverage), with limits of at least
CONTRACTOR'S RIGHT OF ENTRY Page 1 of 2 Exhibit C
AGREEMENT Insurance Requirements
Form Approved: AVP Law 03/01/2013
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03/0112013
BUILDING AMERICA"
$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 foss, and an annual aggregate of $2,000,000.
OTHER REQUIREMENTS
G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional
Insured" using ISO Additional insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent
coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional
Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active
or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the
law governing this Agreement prohibits all punitive damages that might arise under this Agreement.
I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad
and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance.
J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly
authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement.
K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's
Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being
performed.
L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or
diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement.
Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required
insurance coverage,
CONTRACTOR'S RIGHT OF ENTRY Page 2 of 2 Exhibit C
AGREEMENT Insurance Requirements
Form Approved: AVP Law 03/01/2013
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03101/2013
EXHIBIT D
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
MINIMUM SAFETY REQUIREMENTS
BUILDING AMERICA'
The term "employees" as used herein refer to all employees of Contractor as well as all employees of any
subcontractor or agent of Contractor.
1. CLOTHING
A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere
with their vision, hearing, or free use of their hands or feet.
Specifically, Contractor's employees must wear:
L Waist -length shirts with sleeves.
ii. Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent
catching.
ill. Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear
safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear
requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin
soles or heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or
working on machinery.
11. PERSONAL PROTECTIVE EQUIPMENT
Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules,
regulations, or recommended or requested by the Railroad Representative.
1 Hard hat that meets the American National Standard (ANSI) 289.1-- latest revision. Hard hats should be affixed
with Contractor's company logo or name.
ii. Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face
protection, 287.1— latest revision. Additional eye protection must be provided to meet specific job situations such
as welding, grinding, etc.
iii. Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on
the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within:
a. 100 feet of a locomotive or roadway/work equipment
x 15 feet of power operated tools
■ 150 fest of jet blowers or pile drivers
■ 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs)
iv. Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields,
must be worn as recommended or requested by the Railroad Representative,
III. ON TRACK SAFETY
Contractor Is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection
regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad
contractors are responsible for the training of their employees on such regulations. In addition to the instructions
contained in Roadway Worker Protection regulations, all employees must:
i. Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize
movements.
CONTRACTOR'S RIGHT OF ENTRY Page 1 of 2 Exhibit D
AGREEMENT Minimum Safety Requirements
Form Approved: AVP Law 03/01/2013
UNION PACIFIC RAILROAD COMPANY
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Form Approved: AVP Law 03(01)2013
BUILDING AMERICA`
ii. Wear an orange, reflectorized workwear approved by the Railroad Representative.
iii. Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed.
Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing
the track. Contractor will also receive special instructions relating to the work zone around machines and
minimum distances between machines while working or traveling.
IV. EQUIPMENT
A. It is the responsibility of Contractor to ensure that all equipment is In a safe condition to operate. If, in the opinion of
the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment
from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained
and competent In the safe operation of the equipment. In addition, operators must be:
i. Familiar and comply with Railroad's rules on lockoutitagout of equipment.
ii. Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track.
iii. Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any
other railbound equipment.
B. Ail self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning
device.
C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five
(25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly
secure the equipment against movement.
D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the
minimum clearances to overhead powerlines.
V. GENERAL SAFETY REQUIREMENTS
A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state
regulations.
B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad
Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures,
(including On -Track Safety) and the potential hazards of the job. If any employee has any questions or concerns
about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during
the work as conditions, work procedures, or personnel change.
C. AU track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad
Administration's Track Safety Standards 49CFR213.
D. AU employees comply with the following safety procedures when working around any railroad track:
I. Always be on the alert for moving equipment. Employees must always expect movement on any track, at any
time, in either direction.
ii. Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components.
iii. In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet
between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less
than one car length (50 feet).
iv. Avoid walking or standing on a track unless so authorized by the employee in charge.
v. Before stepping over or crossing tracks, look in both directions first.
vi. Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when
track and equipment have been protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace safety.
CONTRACTOR'S RIGHT OF ENTRY Page 2 of 2 Exhibit D
AGREEMENT Minimum Safety Requirements
Form Approved: AVP Law 03/01/2013