Berm Construction Maintenance Feb. 2015a
Folder No. 2889-52
BERM
CONSTRUCTION & MAINTENANCE AGREEMENT
Mile Post: 340.5 Blair Subdivision
Location: Blair, Washington County, Nebraska
THIS BERM CONSTRUCTION & MAINTENANCE AGREEMENT (this "Contract") is
made and entered into as of the � day of Fc b ru kt:L , 2015 ("Effective Date") by and
between UNION PACIFIC RAILROAD COMPANY, a Dela are corporation ("Railroad") and CITY
OF BLAIR, NEBRASKA, a municipal corporation of the State of Nebraska ("City").
RECITALS:
A. City desires to construct and maintain a berm (the "Berm") on Railroad's right of way
near Mile Post 340.5 on Railroad's Blair Subdivision, at Blair, Washington County, Nebraska. The Berm
is located perpendicular to, and will lie against, Railroad's existing track embankment (which was
designed and developed to only -support Railroad's track). The portion of Railroad's right of way on
which City desires to construct the Berm ("Premises") is shown on the print marked Exhibit "A". The
perimeter of the Premises is highlighted blue on Exhibit A. The general location of the Berm on the
Premises is also shown Exhibit "A'. City's construction of the Berm is deemed the "Project".
B. Railroad is a "rail carrier" (as defined in 49 U.S.C. §10102(5) under the Interstate
Commerce Commission Termination Act of 1995).
C. Railroad is agreeable to granting City the use of the Premises for the purposes of
constructing, inspecting, operating, maintaining, repairing, renewing, reconstructing and removing the
Berm, upon the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, IT IS AGREED by and between the parties hereto as follows:
Article 1. PERMITTED USE OF THE PREMISES.
A. In consideration of the terms and conditions herein contained to be fully kept, observed
and performed by City, Railroad hereby grants City a revocable license to use the Premises solely for the
purposes , of constructing and thereafter inspecting, operating, maintaining, repairing, renewing,
reconstructing, and removing the Berm and for no other purposes (collectively, the "Berm Work"). For
avoidance of doubt, the Berm Work shall include the Project. The Berm Work shall include, without
limitation, cutting, removing and keeping the Premises free and clear of grass, weeds, bushes, trees and
other vegetation, and placing rocks and sandbags temporarily on the Berm in connection with a potential
flooding event.
B. In connection with the performance of the Berm Work, City shall not permit any cut
bushes, trees or other vegetation to be abandoned in place or dumped on the Premises or other property of
Railroad.
C. City shall not permit the Premises to be used for any type of public access, including
without limitation, a recreational road, path, trail, or other type of access route.
Article 2. CITY TO BEAR ENTIRE EXPENSE AND WORK RESPONSIBILITY.
A. Railroad has no duty or obligation to construct, inspect, operate, maintain, repair, renew,
reconstruct or remove the Berm or perform any Berm Work. City shall be solely responsible for the
performance of all the Berm Work.
B. Railroad has no duty or obligation to contribute money, labor or other resources towards
the construction, inspection, operation, maintenance, repair, renewal, reconstruction or removal of the
Berm or any Berm Work. City shall bear the entire cost and expense incurred in connection with the
Berm and all Berm Work, including without limitation, reimbursing Railroad for any and all costs and
expenses, liabilities, damages or other charges which may be incurred by Railroad in connection with the
Berm or the Berm Work, including without limitation costs associated with preliminary engineering
review, inspection, flagging, or otherwise and shall include Railroad's direct and indirect overhead costs,
including Railroad's standard additive rates. Any costs incurred by Railroad under this Contract shall be
reimbursed by City within sixty (60) days after City's receipt of billing from Railroad.
Article 3. TERMS, CONDITIONS, AND EXHIBITS.
A. Exhibits "A-1", "A-2", "B", C", "D", and "E" attached hereto, are hereby made a part of
this Contract and incorporated herein by reference.
1) Exhibit "A-1" is a print showing the Premises.
2) Exhibit "A-2" is a print showing the general location of the Berm on the Premises.
3) Exhibit "B" is Railroad's additional terms and conditions.
4) Exhibit "C" is Railroad's current form of Contractor's Right of Entry Agreement.
5) Exhibit "D" is Railroad's insurance requirements.
6) Exhibit "E" is Railroad's special safety requirements.
B. City's use of the Premises is subject to City's compliance with each and all of the terms
and conditions set forth in this Contract.
Article 4. DEFERRED CONSTRUCTION.
City acknowledges that conditions associated with the Berm and/or the Berm Work may cause
the complete stabilization (seasoning) of Railroad's track and related facilities to be deferred beyond the
completion of the Project or performance of any other Berm Work, and that Railroad's operations over
track and related facilities in the vicinity of the Berm during seasoning periods will impose extraordinary
maintenance costs, in the event of the caving, sliding, slipping, sinking, failure, deterioration,
consolidation or settling of track or related railroad facilities, including without limitation, damage to
embankments, subgrade, roadbed, rip -rapping, and track alignment, as well as the failure, deterioration,
settlement and consolidation of tracks or ballast, until a seasoning period is complete. Therefore, City
will .pay to Railroad, as a part of the consideration for this Contract, all cost of extraordinary maintenance
(hereinafter referred to as "Deferred Construction") associated with the Berm and/or the Beim Work,
and attributed to the caving, sliding, slipping, sinking, failure, deterioration, consolidation or settling of
track or related railroad facilities in the vicinity of the Berm which occurs during the time period
commencing immediately following completion of the Project and/or performance of any other Berm
Work and ending two (2) years thereafter, whether such Deferred Construction is performed by Railroad
or Railroad's contractor. Railroad's costs of Deferred Construction which City shall reimburse are the
extra costs, in excess of normal maintenance costs, of maintaining track and related facilities in
accordance with Raihoad's standards or American Railway Engineering and Maintenance of Way
Association ("ARENIA") standards, and will include, without limitation, the costs of aligning and
surfacing rail and adding ballast and other stabilizing materials.
Article 5. TERM: TERMINATION.
A. This Contract shall commence on the Effective Date and, unless sooner terminated as set
forth in Paragraphs (B) and (C) below, shall continue in full force and effect as long as the Berm remains
on the Premises.
B. If City fails to cure a default of this Contract within ninety (90) days after City's receipt
of written notice from Railroad specifying such default, Railroad may, at its option, forthwith and
immediately terminate this Contract by written notice to City.
C. If the construction of the Berm is not completed within three (3) years after the Effective
Date, Railroad may, at its option, forthwith and immediately terminate this Contract effective ninety (90)
days after written notice to City.
D. In the event this Contract is terminated, then Railroad, at its option, may require City to
promptly remove (or cause to be removed) the Berm and restore (or cause to be restored) the Premises to
AREMA. and Railroad's standards, or to the condition that the Premises was in as of the Effective Date, in
each case to the satisfaction of Railroad. If City fails to promptly perform such removal and restoration
obligations hereunder, Railroad may elect to cause the removal and restoration, at City's sole expense.
E. Termination of this Contract for any reason shall not affect any of the rights or
obligations of the parties hereto which may have accrued, or liabilities, accrued or otherwise, which may
have arisen prior to the date of termination.
Article 6. DEFINITION OF CONTRACTOR.
For purposes of this Contract, the term "Contractor" shall mean the contractor or contractors hired
by City to perform work associated with the Project or any other Berm Work on any portion of 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.
Article 7. CONTRACTOR.
A. Railroad hereby consents to City, permitting a Contractor to perform work associated
with the Project and other Berm Work and allowing such Contractor onto the Premises; provided,
however, that prior to a Contractor entering Railroad's property, City shall require such Contractor to:
1) execute with Railroad Railroad's then current Contractor's Right of Entry Agreement, the
current form of which is attached hereto as Exhibit "C";
2) obtain the then current insurance required in such Contractor's Right of Entry Agreement;
and
3) provide such insurance policies, certificates, binders and/or endorsements to Railroad.
B. City confirms that it will inform its Contractor that such Contractor is required to execute
Railroad's Contractor's Right of Entry Agreement and obtain the insurance required thereunder before
entering on, or commencing any Berm Work on Railroad's property. Under no circumstances will a
Contractor be allowed on Railroad's property without first executing the then current Contractor's Right of
Entry Agreement and obtaining the then current insurance required therein and also providing to 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:
Union Pacific Railroad Company
Real Estate Department
1400 Douglas Street, Mail Stop 1690
Omaha, NE 68179-1690
Attn: UPRR Folder No. 2889-52
Article 8. CROSSING AGREEMENTS.
This Contract and any Railroad consent or permission stated herein does not permit City and/or
any Contractor to cross any of Railroad's tracks (except at existing open public crossings) with vehicles,
equipment or machinery to access the Premises. City and/or a Contractor shall be required to obtain a
separate written crossing agreement directly with Railroad before crossing any such tracks with vehicles,
equipment or machinery to access the Premises.
Article 9. FEMA FUNDING.
City will be receiving certain funding from the Federal Emergency Management Agency
("FEMA") in connection with the Project, and City acknowledges and agrees that it is solely responsible
for performing and completing all obligations and requirements, including without limitation reporting
requirements, in connection with the Project and receipt of such FEMA funding. City also confirms and
acknowledges that (A) Railroad shall provide to City Railroad's standard and customary billing for any
expenses incurred by Railroad for the Project including Railroad's standard and customary documentation
to support such billing, and (B) such standard and customary billing and documentation from Railroad
provides the information needed by City to perform and complete the reporting requirements in
connection with the FEMA funding.
Article 10. NOT A LEVEE OR PART OF ANY LEVEE SYSTEM.
City shall not deem or certify to any entity that the Berm and Railroad's track embankment and
rightway are a local, state or federal levee or part of any such levee system or that they comply with any
design or other standards for such levees or levee systems. City acknowledges that track embankment has
not been, and will not be, designed or constructed to function as a flood protection levee or levee system
component. By executing this Contract, Railroad is not waiving any preemption rights that it may have
under federal law and is not submitting to the jurisdiction or application of any local, state or federal levee
or flood prevention entity or laws.
Article 11. DOCUMENT PREPARATION FEE.
City shall pay upon the execution and return of this Contract, the nonrefundable sum of ONE
THOUSAND DOLLARS ($1,000.00) to cover Railroad's costs to prepare this Contract.
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Article 12. MODIFICATION — ENTIRE AGREEMENT.
No waiver, modification or amendment of this Contract shall be of any force or effect unless
made in writing, signed by City and Railroad and specifying with particularity the nature and extent of
such waiver, modification or amendment. Any waiver by Railroad of any default by City shall not affect
or impair any right arising from any subsequent default. This Contract (including the exhibits attached
hereto and made a part hereof) constitute the entire understanding between City and Railroad with respect
to the Project, the Berm and the Berm Work and cancel and supersede any prior negotiations,
understandings or agreements, whether written or oral with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed as of the
Effective Date.
UNION PACIFIC RAILROAD COMPANY, a
Delaware corporation
By:
Printed Name:
Title:
CITY OF BLAIR, NEBRASKA, a municipal
corporation
By. ��-�----
Print e: Ct�^l1 P.S t o
Title:
EXHIBIT A
TO BERM CONSTRUCTION & MAINTENANCE AGREEMENT
Premises & General Location of the Berm on the Premises
(see attached)
Ex. A
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EXHIBIT B
TO BERM CONSTRUCTION & MAINTENANCE AGREEMENT
Additional Terms and Conditions
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
a) This Contract is subject and subordinate to the prior and continuing right, power
and obligation of Railroad to use and maintain its entire property (including the Premises),
including without limitation, the right and power of Railroad to construct, add, maintain, repair,
renew, use, operate, change, modify or relocate railroad tracks, roadbed, subgrade,
embankments, signal, communication, fiber optics, wirelines, pipelines and other Railroad
facilities upon, under, over, 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 City or to any other party
for compensation or damages.
b) This Contract is also subject to all outstanding superior rights (including without
limitation those in favor of easement holders, 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. It shall be City's sole obligation to obtain, such additional
permission, licenses and grants necessary on account of any such existing rights.
Section 2. PLANS.
a) City shall prepare and submit proposed plans showing design, specifications, and
methods of procedure for the Berm, Project and/or any other Berm Work to Railroad for
Railroad's approval, in Railroad's sole discretion, prior to commencing the Project and/or any
other Berm Work on Railroad's property. City shall not commence the Project or any other Berm
Work before the 100% Plans (defined below) for the Project or any other Berm Work have been
approved in writing by Railroad's Assistant Vice President Engineering -Design or his designated
representative.
b) "100% Plans" shall mean the final one hundred percent (100%) completed plans,
specifications, methods of procedures, and conditions of approval (including without limitation,
the plans, specifications, methods of procedure, and approval conditions for embankment
stepping, drainage, shoring, sheeting and excavations affecting Railroad's right of way, other
property, operations and railroad facilities) for the Berm, the Project, and any other Berm Work
that are approved in writing, by Railroad's Assistant Vice President Engineering -Design or his
authorized representative. The 100% Plans are hereby made a part of this Contract by reference.
c) The Project, and all other Berm Work, shall be performed by City to the
satisfaction of Railroad, and in full conformance with the 100% Plans. No changes in the 1.00%
Plans approved. by Railroad may be made without the prior written consent of Railroad's
Ex. B-1
Assistant Vice President Engineering -Design or his authorized representative, which consent
may be withheld in Railroad's sole discretion.
d) Railroad shall have the right, if it so elects, as a condition of plan approval, to
itself provide or require City to provide, whatever protection and support Railroad deems
appropriate for assuring the safety and continuity of its track and railroad operations and
facilities during or after completion of the Project and any other Berm Work: In the event
Railroad itself provides such protection or support, City shall reimburse Railroad for all expenses
incurred by Railroad in connection therewith, within ninety (90) days after bills shall have been
sent for such expenses. Conditions of approval may also include without limitation, City's
compliance with standards and specifications developed, endorsed or adopted by Railroad and/or
AREMA.
e) At Railroad's request upon completion of construction of the Berm, City, at its
sole expense, shall furnish to Railroad three (3) sets of reproducible or electronic "as
constructed" plans for the Berm.
f) Notwithstanding Railroad's review and approval of any plans, Railroad is not
responsible for the design, functionality, or permitting of the Berm, the Project or any other
Berm Work. Railroad's plan review and approval is limited to Railroad's perceived impact of the
Berm, the Project and any other Berm Work on Railroad's track and railroad operations and
facilities. Railroad makes no representations or warranty whatsoever regarding the 100% Plans,
including without limitation, any representations or warranty as to their validity, accuracy, legal
compliance or completeness. Any reliance by City, the Contractor or others on the 100% Plans is
at the risk of City, the Contractor and such others.
Section 3. NON -RAILROAD IMPROVEMENTS.
a) Submittal of plans and specifications for protecting, encasing, reinforcing,
relocating, replacing, removing and abandoning in place all non -railroad owned facilities
affected by the Project and/or any other Berm Work, including without limitation, utilities, fiber
optics, pipelines, wirelines, communication lines and fences (collectively, the "Non Railroad
Facilities") is required under Section 2. The Non Railroad Facilities plans and specifications
shall comply with Railroad's standard specifications and requirements, including, without
limitation, 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 the 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 the Non Railroad
Ex. B-2
Facilities. The 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 City mutually agree in writing to:
i) deem the approved Non Railroad Facilities plans and specifications to be a
part of the 100% Plans pursuant to Section 2;
ii) deem the Non Railroad Facilities work part of the Project work and/or
other Berm Work; and
iii) supplement this Contract with terms and conditions covering the Non
Railroad Facilities, as applicable.
Section 4. PERMITS.
City, at its sole expense, shall be required to obtain all federal, state and local permits that
may be required for the Berm, the Project and any other Berm Work. By executing this
Contract, Railroad does not consent to, or subordinate its railroad operations or facilities to, any
permit conditions imposed by any government entity. City is not Railroad's agent or authorized
to consent to permit conditions on behalf of Railroad.
Section 5. CONSTRUCTION, MAINTENANCE AND OPERATION.
a) City, at its sole expense, shall keep and operate the Berm in a good, structurally
adequate and safe condition. City shall keep the Premises free and clear of vegetation, debris,
sediment or obstructive matter which may or could interfere with or impede the proper
functioning of drainage, the Berm or Railroad's trains, property, facilities or operations.
b) When not in use, City's and/or Contractor's equipment and materials shall be kept
at least twenty-five (25) feet from the centerline of the nearest railroad track. Equipment
includes without limitation vehicles, tools and machinery.
c) During the performance of the Project or any other Berm Work, City shall not
excavate on any embankment or near the toe of any embankment which supports or stabilizes a
track or other railroad facility without the prior written plan approval of Railroad. In the event of
any instability or settlement of such embankment, track or railroad facility related to any
excavation for the Project or any other Berm Work, City, at its sole cost and expense, shall
restore Railroad's embankment to its proper grade, slope, composition and dimensions. Railroad
may elect to restore such embankment, tracks and railroad facilities using Railroad's work force
and material at City's sole cost and expense.
d) City shall protect at all times Railroad's personnel, trains, property, facilities and
operations, including without limitation the track and all of its support components, from damage
related to or arising from the Berm, the Project or any other Berm Work. Railroad has the right
to require and furnish at City's sole expense all flagging and/or other protection which, in
Ex. B-3
Railroad's sole judgment, are appropriate or desirable for promoting the continuity of railroad
operations and/or the safety of Railroad's personnel, trains, property, facilities, and operations.
Section 6. NOTICE OF COMMENCEMENT OF WORK, FLAGGING.
a) City agrees to notify Railroad's Manager of Track Maintenance for the Blair
Subdivision (the "Railroad Representative") at least fifteen (15) days in advance of City
commencing the Project or any other Berm Work, and at least thirty (30) days in advance of the
proposed performance of any activity or work 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 (including without limitation a crane boom) can reach to within twenty-five (25) feet
of any track. In an emergency situation requiring immediate attention, City shall provide as
much notice as practicable to the Railroad Representative before commencing any work or
activity permitted by this Contract, and in no event will City or any Contractor access any
Railroad property within twenty-five (25) feet of any track until Railroad advises City it is safe to
do so. Equipment includes without limitation vehicles, tools, and machinery. In an emergency
situation requiring immediate attention, City may also contact Railroad via the Response
Management Communications Center at 1-888-877-7267.
b) * In non -emergency situations, upon receipt of the notice required by Section 6a,
the Railroad Representative will determine and inform City whether a flagman needs to be
present and whether City needs to implement any special protective or safety measures. If any
flagmen or other special protective or safety measures are performed by Railroad, such services
will be provided at City's sole cost and expense with the understanding that if Railroad provides
any flagging or other services, City shall not be relieved of any of its responsibilities or liabilities
set forth herein.
c) City shall prohibit all work and activity within twenty-five (25) feet of a track's
centerline during the times that flagging or other special protective or safety measures required
by the Railroad Representative are not present or active at the activity or work site.
d) City acknowledges that:
i) a flagman is paid one and one-half times the current hourly rate for
overtime, Saturdays and Sundays; and two and one-half times current
hourly rate for holidays;
ii) a flagman's 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 government agency.
Additional charges on labor are also subject to change. If the wage rate or
additional charges are changed, City shall pay on the basis of the new rates
and charges; and
iii) reimbursement to Railroad will be required covering the full eight (8) hour
day during which a flagman is furnished, unless he or she can be assigned
Ex. B-4
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 work. Reimbursement will also be
required for any day not actually worked by said flagman following his
assignment to work on the Project or any other Berm Work 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 City may not be working during such time.
e) All expenses connected with the furnishing of a flagman or other special
protective or safety measures shall be at the sole cost and expense of the Contractor and City.
City may elect to have Railroad initially send bills for such expenses to the Contractor. For
projects having duration beyond thirty (30) days, Railroad may bill such expenses on an
installment basis as work progresses. Railroad shall have one hundred eighty (180) days to
calculate and send final billing for such expenses to City or Contractor after Railroad has been
notified in writing by .City that the project work has been completed (whether it be work
associated with the Project or work associated with other Berm Work). City or Contractor shall
pay the progressive and final billing within thirty (30) days after its receipt of billing. City shall
pay Railroad for all bills which are initially to be billed to City or which Contractor has not paid,
within thirty (30) days after City's receipt of billing.
Section 7. REINFORCEMENT, MODIFICATION, RELOCATION OF BERM.
a) This Contract and permission herein provided is subject to the needs and
requirements of Railroad in the operation of its railroad and in the improvement and use of its
property, and City shall, at City's sole expense, reinforce, relocate or modify the Berm, as
Railroad may designate, whenever, in the furtherance of Railroad's needs and requirements,
Railroad shall find such action necessary or desirable.
b) In connection with the operation of its railroad or in furtherance of its common
carrier obligations, Railroad may, in the future, widen its existing track embankment and
construct retaining walls on and/or near the Premises. To the extent that such future Railroad
work requires the modification or relocation of the Berm, City, at City's sole cost and expense,
shall, at Railroad's direction, modify or relocate the Berm. City acknowledges that any such
relocation of the Berm, as required by Railroad, may be off of Railroad's property, and City shall
be solely responsible for acquiring any property rights from third parties in connection with any
such relocation of the Berm.
c) All the terms and conditions herein expressed with reference to the Berm on the
Premises, so far as the Berm remains on Railroad's property, apply to the Berm as modified or
relocated within the contemplation of this section.
Section S. NO INTERFERENCE WITH RAILROAD'S OPERATION AND SAFETY.
The Berm shall be kept in such condition, and all Berm Work within and outside of the
limits of the property of Railroad shall be performed in such a manner, as to prevent any and all
Ex. B-5
interference whatsoever with the constant, continuous and uninterrupted use of the tracks,
property and facilities of Railroad, and nothing shall be done or suffered to be done by City at
any time that would in any manner impair the safety thereof.
Section 9. 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. City shall telephone Railroad
at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried anywhere on
the portion of Railroad's right of way to be used by City. If it is, City will telephone the
telecommunications company(ies) involved, arrange for a cable locator, make arrangements for
relocation or other protection of the fiber optic cable, and will commence no work on Railroad's
right of way until all such protection or relocation has been accomplished.
b) In addition to other indemnity provisions in this Contract, City shall indemnify
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 City, its Contractor or their agents and/or employees, that causes or contributes to (i)
any damage to or destruction of any telecommunications system on Railroad's property, and (ii)
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. City 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 10. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES.
a) City shall fully pay for all materials, work and labor placed or performed on
Railroad's property in connection with the Berm or the Berm Work, and shall not permit or suffer
any mechanic's or materialmen's lien of any kind or nature to be enforced against Railroad's
property for any labor performed, work done or materials furnished thereon at the insistence or
request or on behalf of City. City shall indemnify and hold harmless Railroad against and from
any and all liens, claims, demands, costs and expenses of whatsoever nature (including, without
limitation, attorneys' fees, court costs and expenses) in any way connected with or growing out
of such work done, labor performed, or materials furnished.
b) City shall promptly pay or discharge all taxes, charges and assessments levied
upon, in respect to, or on account of the Berm, to prevent the same from becoming a charge or
lien upon Railroad property, and so that the taxes, charges and assessments levied upon or in
respect to Railroad's property shall not be increased because of the location, construction,
operation or maintenance of the Berm or any improvement, appliance or fixture connected
therewith placed upon Railroad's property, or on account of any City interest therein. Where
such tax, charge or assessment may not be separately made or assessed to City, but shall be
included in the assessment of Railroad's property, then City shall pay to Railroad an equitable
Ex. B-6
proportion of such taxes, charges and assessments determined by the value of City's property
upon property of Railroad as compared with the entire value of such property.
Section 11. RESTORATION OF RAILROAD'S FENCES AND FACILITIES.
In the event Railroad authorizes City to take down any fence of Railroad or in any
manner move or disturb any other facility of Railroad in connection with the Berm or any Berm
Work, then in that event, City shall, as soon as possible and at City's sole cost and expense,
restore such fence and/or other facility to the same condition as such facility was in before such
fence was taken down or such other facility was moved or disturbed, and in addition to any other
indemnification provision of this Contract, City shall indemnify and hold harmless Railroad, its
directors, officers, agents and employees, against and from any and all liability, loss, damages,
claims, demands, costs and expenses of whatsoever nature (including, without limitation,
attorneys' fees, court costs and expenses) which may result from injury to or death of persons
whomsoever, or damage to or loss or destruction of property whatsoever, when such injury,
death, damage, loss or destruction grows out of or arises from the taking down of any fence or
the moving or disturbance of any other facility of Railroad.
Section 12. INDEMNITY.
a) As used in this Section, "Railroad" also includes other railroad companies using
Railroad's property at or near the location of the Berm and their directors, officers, agents, and
employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties,
costs, and expenses of whatsoever nature, including court costs and expenses and attorneys' fees,
which may result from: (i) injury to or death of persons whomsoever (including without
limitation Railroad's, City's and any Contractor's officers, agents, and employees, as well as any
other person); and (ii) damage to or loss or destruction of property whatsoever (including,
without limitation, City's property, any Contractor's property, adjacent property and crops,
Railroad's embankment, subgrade, roadbed, tracks, equipment, and other property, and property
in Railroad's care or custody).
b) To the extent it may lawfully do so, City agrees to assume the risk of loss or
damage to the Berm and to (i) defend, indemnify and hold harmless Railroad from and (ii)
otherwise be directly responsible to Railroad for, any Loss which is due to or arises, in whole or
in part, from (A) the construction, inspection, operation, maintenance, repair, reconstruction,
renewal, modification, removal, use or existence of the Berm and appurtenances thereto or any
use of the Premises, including without limitation any breaks in the Berm or any leakage, flow of
water or flooding from, over, through or around the Berm, or (B) City's failure to comply with or
perform any of the terms and conditions set forth in this Contract. The foregoing indemnification
provisions shall apply in all situations, including without limitation, situations where the Loss is
caused in whole or part by Railroad's negligence, except to the extent that the Loss is caused by
Railroad's sole and direct gross negligence.
c) Any liability of any party hereunder to one of its employees under any Workers'
Compensation Act or the Federal Employers' Liability Act shall not be questioned or in any way
challenged by the other party, nor shall any jury or court findings, resulting from any employee's
Ex. B-7
suit against either party pursuant to any such act(s), be relied upon or used by either parry in any
attempt to assert common law liability against the other.
Section 13. COMPLIANCE WITH OCCUPATIONAL AND FRA LAWS.
City shall comply with all applicable state and federal occupational safety acts and
regulations. All Federal Railroad Administration regulations shall be followed when activity or
work is performed on Railroad's property. If any failure by City to comply with, or cause
compliance with, any such laws, regulations, and enactments, shall result in any fine, penalty,
cost or charge being assessed, imposed or charged against Railroad, City shall reimburse and
indemnify Railroad for any such fine, penalty, cost or charge, including without limitation,
attorneys' fees, court costs and expenses. City further agrees in the event of any such action,
upon notice thereof being provided by Railroad, to defend such action free of cost, charge, or
expense to Railroad.
Section 14. SUPERVISION BY CITY.
City, at its sole cost and expense, shall fully and closely supervise the Project and the
performance of any other Berm Work on Railroad's property. City's responsibility for safe
conduct and adequate policing and supervision is not lessened or otherwise affected by (a)
Railroad's approval of any plans (including without limitation the 100% Plans), (b) Railroad's
collaboration in the performance of any Berm Work, (c) the presence of the Railroad
Representative or other Railroad personnel at or near the Berm, or (d) City's or a Contractor's
compliance with any requests or recommendations made by the Railroad Representative or other
Railroad personnel.
Section 15. WORK WINDOWS.
a) City acknowledges that time periods during which Berm Work is to be performed
may be limited and conditioned by Railroad, in Railroad's sole and absolute discretion. City
agrees to perform Berm Work only during authorized work window time periods. Railroad
may elect to authorize any Berm Work to be performed only during Conventional Work
Windows or Absolute Work Windows, as defined below:
i) "Coventional Work Window" shall mean a period of time in which
Railroad's operations have priority over any Berm Work. During a
Conventional Work Window, there is no train soon approaching or present
at the work site.
"Absolute Work Window" shall mean a period of time in which Berm
Work is given priority over Railroad's operations. During an Absolute
Work Window, certain tracks designated by the Railroad's flagman or
Railroad's Representative will be temporarily inactive for train
movements and may be fouled by City and/or its Contractor only during
the original authorized time period.
Ex. B-8
b) A Conventional Work Window begins and ends as determined by, and at the
direction of, Railroad's flagman or the Railroad Representative so as to accommodate the
passage of a train being given priority by Railroad. When a Conventional Work Window ends,
City shall immediately stop and suspend all Berm Work within twenty-five (25) feet of the
nearest railroad track and relocate all Berm Work personnel, equipment, and material to a site
beyond ttiventy-five (25) feet of the track or to a closer distance as authorized by Railroad's
flagman or the Railroad Representative. City acknowledges that availability, timing and duration
of Conventional Work Windows will fluctuate from time -to -time due to multiple factors,
including without limitation, volume of trains, scheduling of trains and track system congestion.
c) Regardless if an Absolute Work Window is expressly authorized by the 100%
Plans, City shall obtain "field authorization" from Railroad's flagman or the Railroad
Representative for an Absolute Work Window. When requesting an Absolute Work Window,
City shall provide Railroad with a detailed written explanation of City's need for such work
window. City acknowledges that Railroad generally does not authorize Absolute Work
Windows, and Railroad may deny or condition an Absolute Work Window in Railroad's sole
and absolute discretion. City acknowledges that availability, timing and duration of Absolute
Work Windows will fluctuate and may be changed immediately by Railroad on oral or written
notice from time -to -time due to multiple factors, including without limitation, volume of trains,
scheduling of trains and track system congestion.
d) An Absolute Work Window begins and ends as determined by, and at the
direction of, Railroad's flagman or the Railroad Representative. City acknowledges that before
an Absolute Work Window can begin, and at all times while it is in effect, a Railroad flagman
must be present. Also City acknowledges that before an Absolute Work Window ends, all
Railroad tracks and signals must be completely operational for normal train operations, and all
applicable Railroad, Public Utilities Commission and Federal Railroad Administration
requirements, codes and regulations for operational tracks must be complied with. Railroad will
perform appropriate or required inspections of the Berm Work and tracks prior to placing the
affected track back into active train movement status. City may foul tracks only during the
Absolute Work Window's time period originally authorized. City will strictly and fully comply
with the terms and conditions of an Absolute Work Window. Before an Absolute Work Window
ends, Railroad may immediately remedy, without City's prior authorization and at City's sole
cost , any negative track condition related to the Berm Work that prevents the track from being
immediately returned to fall active train movement status. City will also be responsible for
adequately compensating Railroad for damages associated with delays in returning track to full
active train service or extensions of an Absolute Work Window beyond the original authorized
time period.
Section 16. RAILROAD MAY SHUT DOWN WORD AND REMEDY DISRUPTIONS.
a) Railroad shall have the right to immediately shut down all Berm Work on
Railroad's property and require the removal of all persons, material, vehicles and equipment
from such property without Railroad incurring any liability to City, a Contractor or any other
person or entity, if any Berm Work:
Ex. B-9
i) has not been completed, or appears to Railroad that it cannot be
completed, within the original time period authorized by an Absolute
Work Window; or
ii) has not been stopped or suspended in a timely manner, or Berm Work
related equipment, personnel or material has not been relocated, or appears
to Railroad that any such equipment, personnel or material will not be
relocated, to beyond twenty-five (25) feet from the nearest track in a
timely manner upon a train soon approaching the Berm Work activity or
work site; or
iii) is being conducted in an unsafe manner, or in a manner that is inconsistent
with or in breach of this Contract; or
iv) is being conducted in a manner which violates government law, rules or
regulations, including without limitation, Federal Railroad Administration
(FRA) or Occupational Safety and Health Administration (OSHA) rules
and regulations.
b) City agrees that if City and/or its Contractors are unable to or appear not likely to
quickly remedy any disruption to Railroad's operations beyond any authorized work window,
then Railroad, at City's expense, has the right (but not the obligation) to immediately use
Railroad's personnel and equipment (or contracted personnel and equipment) to remedy or
reduce the disruption or perceived disruption of Railroad's operations.
Section 17. SITE TO BE LEFT NEAT AND CLEAN.
Upon completion of the Project and any other Berm Work, City shall remove from
Railroad's property all machinery, equipment, temporary structures, debris and rubbish related to
any Berm Work and leave such property in a neat and clean condition satisfactory to Railroad.
Section 18. OWNERSHIP OF THE BERM.
City shall be the sole owner of the Berm. However, Railroad may elect to take ownership
of the Berm in the event this Contract is tei7ninated as provided above.
Section 19. RAILROAD NOT TO BEAR ANY COST.
It is expressly made a condition of this Contract that Railroad has no obligations to bear
any costs (whether direct or indirect) with respect to the Berm, the Project and/or any Berm
Work.
Section 20. WAIVER OF BREACH.
The waiver by Railroad of the breach of any term, condition, or covenant herein
contained to be kept, observed and performed by City shall in no way impair the right of
Railroad to avail itself of any remedy for any subsequent breach thereof.
Ex. B-10
Section 21. CONTRACT NOT TO BE ASSIGNED.
City shall not assign this Contract, in whole or in part, or any rights herein granted,
without the prior written consent of Railroad (which consent shall be in Railroad's sole and
absolute discretion), and it is agreed that any transfer or assignment or attempted transfer or
assignment of this Contract or any of the rights herein granted, whether voluntary, by operation
of law, or otherwise, without such prior consent in writing, shall be absolutely void and, at the
option of Railroad, shall terminate this Contract.
Section 22. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 21 above, this Contract shall be binding upon and
inure to the benefit of the parties hereto, their successors and assigns.
Section 23. NOTICES.
Except for emergency situations or changes in Absolute Work Windows, notices required
or desired to be given under this Contract shall be in writing and personally served, given by
overnight express delivery, or given by United States mail. Electronic transmission of notices
shall be deemed valid only to the extent they are (a) actually received by the individual to whom
addressed and (b) followed by delivery of actual notice in the manner described above within
three (3) business days thereafter. Any notice given by mail shall be sent, postage prepaid, by
certified mail, return receipt requested. Any notice hereunder shall be addressed to the intended
addressee at the following address or at such other address as a party may from time to time
direct in writing:
Railroad: UNION PACIFIC RAILROAD COMPANY
ATTN: Director - Right of Way Contracts
1400 Douglas Street, Mail Stop 1690
Omaha, Nebraska 68179
City: CITY OF BLAIR, NEBRASKA
ATTN: Director Public Works
218 South 16th Street
Blair, Nebraska 68008
Any such notice shall be deemed to have been delivered (i) as of the date of receipt, in the case
of personal delivery or electronic transmission, (ii) the date of receipt or first attempted delivery
via reputable overnight express delivery courier, or (iii) as of the date of receipt or first attempted
delivery, as evidenced by the return receipt card, in the case of mailing via certified United States
mail.
Ex. B-11
EXHIBIT C
TO BERM CONSTRUCTION & MAINTENANCE AGREEMENT
Railroad's Current Form of Contractor's Right of Entry Agreement
(see attached)
Ex. C-1
GENERIC FORM DATED 3/1/2013
EXHIBIT C TO BERM CONSTRUCTION & MAINTENANCE AGREEMENT
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the day of 120_,
by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and
, a corporation ("Contractor").
RECITALS:
Contractor has been hired by
to
to perform work relating
(the "work"), with all or a portion of such work to be performed on property or Kauroaa in ine vicinny U1 r�aui UOU J JV111UPWOL
on Railroad's [Subdivision] [Branch] [at or near DOT No.
located at or near in County, State of , as such location is in the general
location shown on the print marked Exhibit A, attached hereto and hereby made a part hereof, which work is the subject of a
contract dated between Railroad and
Railroad is willing to permit Contractor to perform the work described above at the location described above subject to
the terms and conditions contained in this Agreement
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows:
ARTICLE 1 - DEFINITION OF CONTRACTOR.
For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors,
subcontractors, officers, agents and employees, and others acting under its or their authority.
ARTICLE 2 - RIGHT GRANTED; PURPOSE.
Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all
of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property
described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to
Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad
Representative named in Article 4.
ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C.AND D.
The terms and conditions contained in Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of
this Agreement.
ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE.
A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or
any costs or expenses incurred by Railroad relating to this Agreement.
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 Contractorwith any requests or
recommendations made by Railroad Representative.
ARTICLE 5 - SCHEDULE OF WORK ON A MONTHLY BASIS.
The Contractor, at its expense, shall provide on a monthly basis a detailed schedule of work to the Railroad
Representative named in Article 4B above. The reports shall start at the execution of this Agreement and continue until this
Agreement is terminated as provided in this Agreement or until the Contractor has completed all work on Railroad's property.
ARTICLE 6 - TERM: TERMINATION.
A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until
, unless sooner terminated as herein provided, or at such time as Contractor has completed its
work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has
completed its work on Railroad's property.
B. This Agreement may be terminated by either party on ten (10) days written notice to the other party.
ARTICLE 7 - CERTIFICATE OF INSURANCE.
A. Before commencing any work, Contractor will provide Railroad with the (i) insurance binders, policies,
certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the insurance endorsements obtained by each
subcontractor as required under Section 12 of Exhibit B of this Agreement.
B. All insurance correspondence, binders, policies, certificates and endorsements shall be sent to:
Union Pacific Railroad Company
[Insert mailing address]
Attn:
Folder No.
ARTICLE 8 - DISMISSAL OF CONTRACTOR's EMPLOYEE.
At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to
conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of
Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising
from the removal of any such employee from Railroad's property.
ARTICLE 9- ADMINISTRATIVE FEE.
Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad
2
Dollars ($ ) as reimbursement for clerical, administrative and handling
expenses in connection with the processing of this Agreement.
ARTICLE 10 - CROSSINGS; COMPLIANCE WITH MUTCD AND FRA GUIDELINES.
A. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's
trackage shall be installed or used by Contractor without the prior written permission of Railroad.
B. Any permanent or temporary changes, including temporary traffic control, to crossings must conform to the
Manual of Uniform Traffic Control Devices (MUTCD) and any applicable Federal Railroad Administration rules, regulations and
guidelines, and must be reviewed by the Railroad prior to any changes being implemented. In the event the Railroad is found
to be out of compliance with federal safety regulations due to the Contractor's modifications, negligence, or any other reason
arising from the Contractor's presence on the Railroad's property, the Contractor agrees to assume liability for any civil
penalties imposed upon the Railroad for such noncompliance.
ARTICLE 11.- EXPLOSIVES.
Explosives or other highly flammable substances shall not be stored or used on Railroad's property without the prior
written approval of Railroad.
written.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein
UNION PACIFIC RAILROAD COMPANY
By:
Title:
By:
Title:
(Name of Contractor)
3
EXHIBIT AA
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Exhibit A will be a print showing the general location of the work site.
EXHIBIT B
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING.
A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor
commencing its work and at least thirty (30) working days in advance of proposed performance of any work by Contractor in
which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any
equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work
of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be
located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless
and until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) -day notice, the Railroad
Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to
implement any special protective or safety measures. If flagging or other special protective or safety measures are performed
by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local
governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If
Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of
billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor
agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement.
B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the
class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in
effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health
and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees
Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be
the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is
paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject
to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of
negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the
wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of
the new rates and charges.
C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is
furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event
reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work.
Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work
on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by
assignment of such flagman to other work, even though Contractor may not be working during such time. When it becomes
necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining
agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a
flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5)
day notice period required by union agreement to be given to the employee, even though flagging is not required for that period.
An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day
cessation notice has been given to Railroad.
Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED
A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the
Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew,
use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines,
pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any
time or times by Railroad without liability to Contractor or to any other parry for compensation or damages.
Exhibit B
Page 1 of 4
B. The foregoing grant is also subject to all outstanding superior rights (whether recorded or unrecorded and
including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and
extend the same, and is made without covenant of title or for quiet enjoyment.
Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS.
A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and
operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees,
licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or
permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in
use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track,
and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings.
B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by
Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall
have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities
with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train
movements and other activities by Railroad takes precedence over any work to be performed by Contractor.
Section 4. LIENS.
Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by
Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be
created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold
harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way
connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause
any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense.
Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is
of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and
profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday
through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber
optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the
telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other
protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable)
has been accomplished.
b. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold
Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees,
court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or
contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury
to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or
employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of
action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company
using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property.
Section 6. PERMITS - COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and
shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without
limitation, all applicable Federal Railroad Administration regulations.
Exhibit B
Page 2 of 4
Section 7. SAFETY.
A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of
the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety,
operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards
listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part
of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety
standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before
they enter the job site.
B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety
and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the
job.
C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be
provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and
Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on
the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their
possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work.
D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for
conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any
deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this
Agreement and the Safety Plan.
Section 8. INDEMNITY.
A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless
Railroad, its affiliates, and its and their officers, agents and employees (individually an "Indemnified Party" or collectively
"Indemnified Parties") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including,
without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by
any person (including, without limitation, any Indemnified Party, Contractor, or any employee of Contractor or of any Indemnified
Party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of
Contractor, its officers, agents or employees, or (iii) any breach of this Agreement by Contractor.
b. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss,
and shall apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the
sole active negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. The
sole active negligence of any Indemnified Party shall not bar the recovery of any other Indemnified Party.
C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions
brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or
industrial insurance acts to indemnify the Indemnified Parties under this Section 8. Contractor acknowledges that this waiver
was mutually negotiated by the parties hereto.
d. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the Federal
Employers' Liability Act against a parry to this Agreement may be relied upon or used by Contractor in any attempt to assert
liability against any Indemnified Party.
e. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the
termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be
deemed to limit any liability Contractor may have to any Indemnified Party by statute or under common law.
Exhibit B
Page 3 of 4
Section 9. RESTORATION OF PROPERTY.
In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of
the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as
soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same
were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of
Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work,
restoring Railroad's property to the same state and condition as when Contractor entered thereon.
Section 10. WAIVER OF DEFAULT.
Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept,
observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any
subsequent breach or default.
Section 11. MODIFICATION - ENTIRE AGREEMENT.
No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This
Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor
and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with
respect to the work to be performed by Contractor.
Section 12. ASSIGNMENT - SUBCONTRACTING.
Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the
Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any
work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the
Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies
with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing
these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent
coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability
Railroads ISO Form CG 24 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.
Exhibit B
Page 4 of 4
k
EXHIBIT C
TO
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
Union Pacific Railroad Company
Insurance Provisions For
Contractor's Right of Entry Agreement
Section 1. REQUIRED INSURANCE.
City shall, at its sole cost and expense, (except for Railroad Protective Liability Insurance required in Paragraph D),
procure and maintain in effect during the entire term of this Contract the following insurance coverage. City shall procure and
maintain, or cause to be procured and maintained by its Contractor, at its sole cost and expense, Railroad Protective Liability
Insurance coverage described in Paragraph D during any period of construction, maintenance, repair, renewal, reconstruction
or removal work.
A. Commercial General Liabilitv 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.
B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 01 (or a
substitute form providing equivalent liability coverage) with a combined single limit of not less $2,000,000 for each accident.
The policy must contain the following endorsements, which must be stated on the certificate of insurance:
• Coverage For Certain Operations In Connection With Railroads ISO form CA 20 7010 01 (or a substitute form
providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site.
Motor Carrier Act Endorsement - Hazardous materials clean up (MCS -90) if required by law.
C. Workers' Compensation and Employers' Liabillty insurance. Coverage must include but not be limited to:
• City's and/or City's contractor's statutory liability under the workers' compensation laws of the state where the
Premises is located.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit
$500,000 each employee.
If City, and/or City's 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 Liabilitv insurance. 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 City, and/or City's contractor, utilizes umbrella or excess policies, these
policies must "follow form" and afford no less coverage than the primary policy.
Exhibit C
Page 1
Section 2. OTHER INSURANCE REQUIREMENTS.
A. All policy(ies) required above (except business automobile, workers' compensation and employers' liability)
must include Railroad as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26 (or substitute form(s)
providing equivalent coverage). The coverage provided to Railroad as additional insured shall not be limited by City's liability
under the indemnity provisions of this Contract. BOTH CITY 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 FORM CG 20 26.
B. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance),
unless the law governing this Contract prohibits all punitive damages that might arise under this Contract.
C. City waives all rights against Railroad and its agents, officers, directors and employees, where permitted by
law, for recovery of damages to the extent these damages are covered by the workers compensation and employers liability or
commercial umbrella/excess liability insurance obtained by City required by this Contract, which must be stated on the
certificate of insurance.
D. Prior to commencing any work, City, and/or City's 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 Contract.
E. . 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 in which the
Premises is located.
F. The fact that insurance is obtained by City, and/or Contractor, or by Railroad on behalf of City, and/or
Contractor, will not be deemed to release or diminish the liability of City and Contractor, including, without limitation, liability
under the indemnity provisions of this Contract. Damages recoverable by Railroad from City, Contractor or any third party will
not be limited by the amount of the required insurance coverage.
Exhibit C
Page 2
EXHIBIT D
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
MINIMUM SAFETY REQUIREMENTS
The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or
agent of Contractor.
Clothing
A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not
interfere with their vision, hearing, or free use of their hands or feet.
Specifically, Contractor's employees must wear:
(i) Waist -length shirts with sleeves.
(ii) Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied
to prevent catching.
(iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are
required to wear safety -toed footwear that conforms to the American National Standards Institute
(ANSI) and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that
have thin soles or heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while
operating or working on machinery.
Personal Protective Equipment
Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules,
regulations, or recommended or requested by the Railroad Representative.
(i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be
affixed with Contractor's company logo or name.
(ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face
protection, Z87.1— latest revision. Additional eye protection must be provided to meet specific job situations
such as welding, grinding, etc.
(iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring
on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within:
■ 100 feet of a locomotive or roadway/work equipment
■ 15 feet of power operated tools
■ 150 feet of jet blowers or pile drivers
■ 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs
and muffs)
(iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields,
must be worn as recommended or requested by the Railroad Representative.
Exhibit D
Page 1 of 3 pages
III. On Track Safety
Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection
regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad
contractors are responsible for the training of their employees on such regulations. In addition to the instructions
contained in Roadway Worker Protection regulations, all employees must:
(i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to
authorize movements.
(ii) Wear an orange, reflectorized workwear approved by the Railroad Representative.
ck Safety for the type of work being performed.
(iii) Participate in a job briefing that will specify the type of On-Tra
Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and
clearing the track. Contractor will also receive special instructions relating to the work zone around machines
and minimum distances between machines while working or traveling.
IV. Equipment
A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the
opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall
remove such equipment from Railroad's property. In addition, Contractor must ensure that the. operators of all
equipment are properly trained and competent in the safe operation of the equipment. In addition, operators
must be:
■ Familiar and comply with Railroad's rules on iockout/tagout of equipment.
■ Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track.
■ Trained in and comply with the applicable air brake rules if operating any equipment that moves rail
cars or any other railbound equipment.
B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up
warning device.
C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of
twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the
engine and properly secure the equipment against movement.
D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and
the minimum clearances to overhead powerlines.
V. General Safety Requirements
A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state
regulations.
B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the
Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work
procedures, (including On -Track Safety) and the potential hazards of the job. If any employee has any
questions or concerns about the work, the employee must voice them during the job briefing. Additional job
briefings will be conducted during the work as conditions, work procedures, or personnel change.
C. All track work performed by Contractor meets the minimum safety requirements established by the Federal
Railroad Administration's Track Safety Standards 49CFR213.
D. All employees comply with the following safety procedures when working around any railroad track:
(i) Always be on the alert for moving equipment. Employees must always expect movement on any
track, at any time, in either direction.
Exhibit D
Page 2 of 3 pages
EXIHBIT D
TO BERM CONSTRUCTION & MAINTENANCE AGREEMENT
Railroad's Insurance Requirements
Section 1. REQUIRED INSURANCE.
City shall, at its sole cost and expense, (except for Railroad Protective Liability Insurance
required in Paragraph D), procure and maintain in effect during the entire term of this Contract
the following insurance coverage. City shall procure and maintain, or cause to be procured and
maintained by its Contractor, at its sole cost and expense, Railroad Protective Liability Insurance
coverage described in Paragraph D during any period of construction, maintenance, repair,
renewal, reconstruction or removal work.
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.
B. Business Automobile Coveraze insurance. Business auto coverage written on
ISO form CA 00 01 (or a substitute form providing equivalent liability coverage) with a
combined single limit of not less $2,000,000 for each accident.
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:
• City's and/or City's contractor's statutory liability under the workers' compensation
laws of the state where the Premises is located.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000
disease policy limit $500,000 each employee.
Ex. D-1
If City, and/or City's 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. Railroad Protective Liability insurance
written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent
coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per
occurrence and an aggregate of $6,000,000. 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 City, and/or City's contractor, utilizes umbrella
or excess policies, these policies must "follow form" and afford no less coverage than the
primary policy.
Section 2. ' OTHER INSURANCE REQUIREMENTS.
A. All policy(ies) required above (except business automobile, workers'
compensation and employers' liability) must include Railroad as "Additional Insured" using ISO
Additional Insured Endorsement CG 20 26 (or substitute form(s) providing equivalent coverage).
The coverage provided to Railroad as additional insured shall not be limited by City's liability
under the indemnity provisions of this Contract. BOTH CITY 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 FORM CG 20 26.
B. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on
the certificate of insurance), unless the law governing this Contract prohibits all punitive
damages that might arise under this Contract.
C. City waives all rights against Railroad and its agents, officers, directors and
employees, where permitted by law, for recovery of damages to the extent these damages are
covered by the workers compensation and employers liability or commercial umbrella/excess
liability insurance obtained by City required by this Contract, which must be stated on the
certificate of insurance.
D. Prior to commencing any work, City, and/or City's 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 Contract.
E. 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 in which the Premises is located.
Ex. D-2
F. The fact that insurance is obtained by City, and/or Contractor, or by Railroad on
behalf of City, and/or Contractor, will not be deemed to release or diminish the liability of City
and Contractor, including, without limitation, liability under the indemnity provisions of this
Contract. Damages recoverable by Railroad from City, Contractor or any third parry will not be
limited by the amount of the required insurance coverage.
Ex. D-3
EXHIBIT E
TO BERM CONSTRUCTION & MAINTENANCE AGREEMENT
Railroad's Special Safety Requirements
Safety of personnel, property, rail operations and the public is of paramount importance
in the performance of any Berm Work. As reinforcement and in furtherance of overall safety
measures to be observed by City, its Contractor and any other party working on Railroad
property (and not by way of limitation), the following special safety rules shall be followed:
a) City shall keep and shall cause its Contractor to 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. City shall have and shall cause its Contractor to have proper
first aid supplies available on the job site so that prompt first aid services can be provided to any
person that may be injured on the job site. City shall promptly notify Railroad of any U.S.
Occupational Safety and Health Administration reportable injuries occurring to any person that
may arise during activities or work performed on the job site. City shall have a non -delegable
duty to control its work force, while they are on the job site or any other property of Railroad to
be certain they do not use, be under the influence of, or have in their possession any alcoholic
beverage or illegally obtained drug, narcotic or other substance that may inhibit the safe
performance of an activity or work.
b) City's work force shall 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. Only
waist length shirts with sleeves and trousers that cover the entire leg are to be worn. If flare -
legged trousers are worn, the trouser bottoms must be tied to prevent catching. The work force
should wear sturdy and protective footwear. The work force 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. In addition, City shall require its work force to wear personal protective
equipment as specified by Railroad rules, regulations or Railroad officials overlooking the work
at the job site. In particular, the protective equipment to be warn shall be:
(i) Protective headgear that meets American National Standard -Z89.1 -latest
revision. It is suggested that all hardhats be affixed with City's or Contractor's
logo or name;
(ii) Eye protection that meets American National Standard for occupational and
educational eye and face protection, Z87.1 -latest revision. Additional eye
protection must be provided to meet specific job situations such as welding,
grinding, burning, etc.; and
(iii)Hearing protection which affords enough attenuation to give protection from
noise levels that will be occurring on the job site.
Ex. E-1
c) All heavy equipment provided or leased by City shall be equipped with audible
back-up warning devices. If in the opinion of the Railroad Representative any of City's or
Contractor's equipment is unsafe for use on Railroad's property, City, at the request of the
Railroad Representative, shall immediately remove such equipment from Railroad's property.
Ex. E-2