Drainage Facility & Waterway Agreement: Dec. 2012UNION
PACIFIC
December 20, 2012
Folder: 02651 -74
MR. SHOEMAKER
CITY OF BLAIR
218 SOUTH 16TH STREET
BLAIR NE 68008
RE: Proposed Construction of a Drainage Facility on the Railroad Company's Right -of -Way at Mile
Post 342.83 on the Blair Subdivision/Branch at or near Blair, Washington County, Nebraska
Allen Shoemaker:
Attached is your original copy of our Agreement, _fully executed_ on behalf of the Railroad Company.
When you or your representatives enter the Railroad Company's property, a copy of this fully- executed
document must be available at the site to be shown on request to any Railroad employee or official.
If this construction is to be done by a contractor, before work can begin, the Contractor's Right of Entry
Agreement must be executed by the contractor and returned to me, together with their proof of insurance,
as provided in this Agreement.
In accordance with the terms of the Agreement, you are required to notify the following Railroad
Company's Manager of Track Maintenance and the Fiber Optics Hot Line at least 48 hours in advance of
the date you plan on entering the right of way for further instructions and approval to commence
construction.
BRIAN T. MCGINN
MGR TRACK MNTCE
Work Phone: 402/8 596 -5652
btmcginn @up.com
Fiber Optics Hot Line: 1- 800 - 336 -9193
RICHARD H. BRADY
MGR SIGNAL MNTCE
1400 DouglasStreet/CBSU
OMAHA, NE 68179
Work Phone: 712/8 329 -5075
Cell Phone: 402 681 -5837
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179 -1690 fx. (402) 501 -0340
As an additional note, any open excavation required within five (5) feet of the fiber optic cable must be
dug by hand.
All future insurance notices should be forwarded to:
Union Pacific Railroad Company
(Attention: Kylan Crawford - Folder No. 02651 -74)
1400 Douglas St. STOP 1690
Omaha, NE 68179 -1690
If you have any questions, please contact me at (402) 544 -8536.
Sincerely,
Kylan Crawford
Asst Manager
DRAIN.DOC 920301
Form Approved, AVP -Law
Folder No. 02651 -74
[PRAINAGE
Mile Post: 342.83 to 342.88, Blair Subdivision/Branch
Location: Blair, Washington County, Nebraska
THIS AGREEMENT ( 66 Agreement ") is made and entered into as of December 05, 2012,
( "Effective Date ") by and between UNI ®N PACIFIC RAILROAD COMPANY, a Delaware
corporation, ( "Licensor ") and CITY OF BLAIR, to be addressed at , 218 South 16th Street Blair,
Nebraska 68008 ( "Licensee ").
In order to improve drainage conditions the Licensee desires to construct a drainage facility in the
vicinity of Licensor's right of way at Mile Posts 342.83 on the Blair Subdivision, located at or near Blair,
Washington County, Nebraska (hereinafter the "Premises ").
The drainage facilities to be constructed by the Licensee, at Licensee's expense, on the Premises
are hereinafter collectively referred to as the "Drainage Facility ". The Drainage Facility and Premises are
shown on the print dated September 24, 2012, marked Exhibit "A ", hereto attached.
The Railroad is agreeable to the Licensee constructing, maintaining and using the Drainage
Facility upon the terms and conditions set forth herein.
NOW, TIIEREF ®RE, IT IS AGREED by and between the parties hereto as follows:
In consideration of the covenants and agreements herein contained to be by the Licensee kept,
observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter,
during the term hereof, to maintain and use the Drainage Facility.
02651 -74.dm Articles of Agreement December 05, 2012
Thu,6 Dec 1 " •
The Licensor and Licensee acknowledge that conditions inherent in the Drainage Facility may
cause the complete stabilization of Licensor's trackage supported by new cuts or fills to be deferred
beyond the construction period, and that Licensor's operation over the roadbed during the seasoning
period will impose extraordinary maintenance costs in the event of caving, sliding, slipping, sinking or
settling, including damage to rip- rapping or protective work in connection therewith, as well as settlement
and consolidation of tracks and ballast, until the seasoning period is complete. Therefore, the Licensee
will pay to the Licensor, as a part of the consideration for this Agreement, all that part of the cost and
expense of extraordinary maintenance (hereinafter referred to as "Deferred Construction ") associated with
the Drainage Facility which can be attributed to failure of subgrade, settlement, and consolidation of
subballast, or roadbed, or any combination thereof, which are incurred during the period commencing
immediately following completion of the work on the Drainage Facility by the Licensee or its contractor
and ending five years thereafter. The Deferred Construction costs aforesaid shall include reimbursement
of the extra cost, in excess of normal maintenance costs, of maintaining embankments and that portion of
said tracks above subgrade in accordance with acceptable maintenance standards, and will include cost of
maintaining proper alignment, proper surface and use of ballast and other necessary materials.
Article 5. ®NE- TIME PAYMENT.
Upon execution and delivery of this Agreement, the Licensee shall pay to the Licensor a one -time
License Fee of Five Thousand Seven hundred Thirty Six DOLLARS ($5,736.00).
Article 6. TERM; TERMINATION.
A. This Agreement shall take effect as of the date first herein written and, unless sooner
terminated as set forth in Paragraphs (B) and (C) below, shall continue in full force and effect for so long
as the Premises and Drainage Facility shall be used by the Licensee for the purposes set forth herein;
provided, however, that if the Licensee shall abandon the use of the Drainage Facility and Premises, or
any part thereof, for such purposes, this Agreement and the rights and privileges granted to Licensee
herein as to the portion(s) so abandoned shall cease and terminate at the time such portions of the
Drainage Facility and Premises are abandoned.
B. If the Licensee continues in default in the performance of any covenant or agreement herein
contained for a period of thirty (30) days after written notice from the Licensor to the Licensee specifying
such default, the Licensor may, at its option, forthwith and immediately terminate this Agreement by
written notice to L icensee.
C. This Agreement may be terminated by either party, with or without cause, upon six (6)
months written notice to the other party. In the event of such notice of termination, the parties shall
arrange for either the Drainage Facility to be removed, filled in and graded to accommodate the
surrounding grade surface, or to encase the Drainage Facility to the standards and satisfaction of the
Licensor.
D. Notice of default and notice of termination may be served personally upon the Licensee or by
mailing to the last known address of the Licensee. Termination of this Agreement 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 thereto.
Article 7. IF WORK IS TO BE PERFORMED EIS BY CONTRACTOR.
02651 -74.dm Articles of Agreement December 05, 2012
Thu,6 Dec 2012 +1•0
If a contractor is to do any of the work performed on the Drainage Facility or Premises (including
initial construction and subsequent relocation or substantial maintenance and repair work), then the
Licensee shall require its contractor to execute the Railroad's Contractor's Right of Entry Agreement.
Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding
of its terms, provisions, and requirements, and will inform its contractor of the need to execute the
Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's Premises
without first executing the Contractor's Right of Entry Agreement.
Article 8. INSURANCE.
A. The Licensee, at its expense, shall obtain the insurance described in Exhibit C, hereto
attached. The Licensee will also provide to the Licensor a Certificate of Insurance issued by its insurance
carrier confirming the existence of such insurance and that the policy or policies contain the following
endorsement:
Union Pacific Railroad Company is named as an additional insured with respect to all liabilities
arising out of the existence, use or any work performed on or associated with the Drainage Facility
located on Railroad's right of way between Mile Posts 342.83 on the Blair Subdivision, located at or near
Blair, Washington County, Nebraska.
B. If the Licensee named in this Agreement is a public entity subject to any applicable statutory
tort laws, the limits of insurance described in Exhibit C shall be the limits the Licensee then has in effect
or which is required by applicable current or subsequent law, whichever is greater, a portion of which
may be self - insured with the consent and approval of the Licensor.
C. All insurance correspondence shall be directed to:
Folder No.: 02651 -74
Director - Contracts
Union Pacific Railroad Company
Real Estate Department
1400 Douglas Street STOP 1690
Omaha, Nebraska 68179 -1690
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY
By:
ANAGER CONTRACTS
Fe r 1.7
By:
Title:
02651 -74. dm Articles of Agreement December 05, 2012
Thu,6 Dec 2012
L FILENAME!
.
.,.\pdnts\Dan Prints10266174.dgp 912412012 2:37:42 PM
Thu , 6 Dec 2012 16:09:05
. Drainage Exhibit B 920301Form Approved AVP - Law
TERMS AND CONDITIONS
a) The foregoing grant of right is subject and subordinate to the prior and continuing right and
obligation of the Licensor to use and maintain its entire property including the right and power of the
Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks,
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 the
Licensor without liability to the Licensee or to any other party for compensation or damages.
b) The foregoing grant is also subject to all outstanding superior rights (including those in favor of
licensees and lessees of the Licenser's property, and others) and the right of the Licensor to renew and
extend the same, and is made without covenant of title or for quiet enjoyment. It shall be Licensee's
sole obligation to obtain such additional permission, license and grants necessary on account of any
such existing rights.
[Tii 110 , 111
a) The Licensee shall submit the design of the Drainage Facility to the Licensor for Licensor's prior
approval. All work performed on property of the Licensor in connection with the construction,
maintenance, repair, renewal, modification or reconstruction of the Drainage Facility shall be done to
the satisfaction of the Licensor and in substantial conformance to the specifications, notes and cross
sections shown on Exhibit A.
b) The Licensee, at its sole expense, shall operate, maintain and use the Drainage Facility in a good
and safe condition and shall keep the Drainage Facility free and clear of debris, sediment or obstructive
matter which may or could interfere with or impede the proper functioning of the Drainage Facility.
C) The Licensee shall not cross any trackage of Licensor with any vehicles except at existing, open
public crossings. The Drainage Facility shall be installed by an approved method of construction, or if by
the jacking and boring method, during jacking operations, the Licensee agrees to fill voids created
between the embankment and pipe by pressure grouting. The Licensee shall provide adequate barrier
protection around the entire excavation area.
d) During the performance of excavating, constructing and maintaining the Drainage Facility, or
any part thereof, the Licensee shall not excavate near the toe of the track embankment of the trackbed
and will protect the trackbed in the design, construction and maintenance of the Drainage Facility. In
the event of any settlement of the Licensee's embankment caused by excavation of the Drainage Facility,
the Licensee, at its sole expense, shall restore Licensoe's embankment to its proper grade and
dimensions.
Drainage. Exb
Exhibit B
-- Dec 1 12 16:09:0
. Drainage Exhibit B 920301Form Approved AVP - Law
e) Prior to the commencement of any work in connection with the construction, maintenance,
repair, renewal, modification, relocation, reconstruction or removal of the Drainage Facility where it
passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the
Licensor plans setting out the method and manner of handling the work, including the shoring and
cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until
such plans have been approved by the Vice President - Engineering Services of the Licensor and then the
work shall be done to the satisfaction of the Vice President- Engineering Services or his authorized
representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem
necessary for the safety of its track or tracks during the time of construction, maintenance, repair,
renewal, modification, relocation, reconstruction or removal of the Drainage Facility, and, in the event
the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after
bills shall have been rendered therefor, all expense incurred by the Licensor in connection therewith,
which expense shall include all assignable costs.
Section 3. NOTICE OF COMMENCEMENT OF WORK
If an emergency should arise requiring immediate attention, the Licensee shall provide as much
notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall
notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the
commencement of any work upon property of the Licensor in connection with the construction,
maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Drainage
Facility. All such work shall be prosecuted diligently to completion.
Section 4. LICENSEE TO REAR ENTIRE EXPENSE
The Licensee shall bear the entire cost and expense incurred in connection with the
construction, maintenance, repair and renewal and any and all modification, revision, relocation,
removal or reconstruction of the Drainage Facility, including any and all expense which may be incurred
by the Licensor in connection therewith for inspection, flagging, or otherwise.
Section 5. REINFORCEMENT RELOCATION OR REMOVAL OF DRAINAGE FACILITY.
a) The license herein granted is subject to the needs and requirements of the Licensor in the
operation of its railroad- and in the improvement and use of its property and the Licensee shall, at the
sole expense of the Licensee, reinforce or encase the Drainage Facility, or move all or any portion of the
Drainage Facility to such new location, as the Licensor may designate, whenever, in the furtherance of
its needs and requirements, the Licensor shall find such action necessary or desirable.
b) All the terms, conditions and stipulations herein expressed with reference to the Drainage
Facility on property of the Licensor in the location hereinbefore described shall, so far as the Drainage
Facility remains on the property, apply to the Drainage Facility as modified, changed or relocated within
the contemplation of this section.
Section 6. NO INTERFERENCE WITH LIC NSOR'S OPERATION.
The Drainage Facility and all parts thereof within and outside of the limits of the property of the
Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such
Drainage.Exb
Exhibit B
Thu,6 Dec 2012 16:09:05
. Drainage Exhibit B 920301Form Approved AVP - Law
manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of
the tracks, property and facilities of the Licensor, and nothing shall be done or suffered to be done by
the Licensee at any time that would in any manner impair the safety thereof.
a) Fiber optic cable systems may be buried on the Licensor'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. Licensee shall telephone the Licensor at
1- 800 - 336 -9193 (a 24 -hour number) to determine if fiber optic cable is buried anywhere on the
Licensor's premises to be used by the Licensee. If it is, Licensee 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 the right of way until all such
protection or relocation has been accomplished.
b) In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and
hold the Licensor 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 the
Licensee, its contractor, agents and /or employees, that causes or contributes to (1) any damage to or
destruction of any telecommunications system on Licensor's property, and (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 Licensor's property. Licensee shall not have or seek recourse against Licensor 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 Licensor's property or a customer or user
of services of the fiber optic cable on Licensor's property.
Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES
a) The Licensee shall fully pay for all materials joined or affixed to and labor performed upon
property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification or reconstruction of the Drainage Facility, and shall not permit or suffer any mechanic's or
materialman's lien of any kind or nature to be enforced against the property for any work done or
materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall
indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and
expenses of whatsoever nature in any way connected with or growing out of such work done, labor
performed, or materials furnished.
b) The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in
respect to, or on account of the Drainage Facility, to prevent the same from becoming a charge or lien
upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect
to such property shall not be increased because of the location, construction or maintenance of the
Drainage Facility or any improvement, appliance or fixture connected therewith placed upon such
property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may
not be separately made or assessed to the Licensee but shall be included in the assessment of the
property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such
taxes determined by the value of the Licensee's property upon property of the Licensor as compared
with the entire value of such property
Drainage.Exb
Exhibit B
Thu,6 Dec • 1. 1
Drainage Exhibit B 920301Form Approved AVP - Law
In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in
any manner move or disturb any of the other property of the Licensor in connection with the
construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the
Drainage Facility, then in that event the Licensee shall, as soon as possible and at Licensee'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, and the Licensee shall indemnify
and hold harmless the Licensor, its officers, agents and employees, against and from any and all liability,
loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and
attorneys' fees, 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 property of the
Licensor.
a) As used in this Section, "Licensor" includes other railroad companies using the Licensor's
property at or near the location of the Licensee's installation and their 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 attorneys' fees, which may result from: (a) injury to or death
of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers,
agents, and employees, as well as any other person); and (b) damage to or loss or destruction of property
whatsoever (including Licensee's property and adjacent property and crops, damage to the roadbed,
tracks, equipment, or other property of the Licensor, or property in its care or custody).
b) To the extent it may lawfully do so, the Licensee agrees to assume the risk of loss or damage to
the Drainage Facility and to indemnify and hold harmless the Licensor from any Loss which is due to or
arises from (i) the installation, construction, maintenance, repair, reconstruction, removal, use or
existence of the Drainage Facility and appurtenances thereto, or any part thereof, including any break in
the Drainage Facility wall or structure or any leakage, flow of water or flooding from the Drainage
Facility, or (ii) Licensee's failure to comply with or perform any of the terms and conditions set forth in
this Agreement, except to the extent that the Loss is caused by the sole and direct negligence of the
Licensor; provided, however, that the foregoing indemnification provisions shall not apply to any claims,
damages, costs and expenses that have been fully compensated for through the insurance required of
Licensee in Exhibit C, or required of Licensee's contractor under the separate Contractor's Right of Entry
Agreement.
C) Any liability of either 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 suit
against either party pursuant to any such Act(s), be relied upon or used by either party in any attempt to
assert common law liability against the other.
Drainage.Exb
Exhibit B
• •1'1
Drainage Exhibit B 920301Form Approved AVP - Law
R
The waiver by the Licensor of the breach of any condition, covenant or agreement herein
contained to be kept, observed and performed by the Licensee shall in no way impair the right of the
Licensor to avail itself of any remedy for any subsequent breach thereof.
The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted,
without the written consent of the Licensor, and it is agreed that any transfer or assignment or
attempted transfer or assignment of this Agreement or any of the rights herein granted, whether
voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void
and, at the option of the Licensor, shall terminate this Agreement.
Subject to the provisions of Section 12 hereof, this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns.
Drainage.Exb
Exhibit B
Dec 2012 '0
' Drainage Exhibit 882O3OlForrn Approved AVP-Law
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Exhibit B
Thu,6 Dec 2012 16:09:0 1
Licensee's NAME
OMPANY
ADDRESS
LETTER C
:OMPANY
CITY, STATE, ZIP CODE
THIS ISTO CERTIFY THAT THE POLICES OFINSURANCE LISTED BELOWHAVE BEEN ISSUEDTOTHE INSURED NAME ABOVE FOR THE POLICY PERIOD INDICATED,
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE
ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS
OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
POLICY EFF.
POLICY EXP.
co
TYPE OF INSURANCE
POLICY NUMBER
DATE(MM/DD/YY)
DATE(MM/DD/YY)
LIMITS
GENERAL LIABILITY OR
$4,000,000
�ERSONAL & ADV. INJURY
$2,000,000
EACH OCCURRENCE
$2,000,000
0 13 CLAIMS MADE 13 OCCUR.
Cl OWNERS CONTRACTOR'S PROT.
FIRE DAMAGE (ANY ONE FIRE)
NA
0
MED. EXPENSE(ANYONE PERSON)
NA
AUTOMOBILE LIABILITY
C I OMBINED SINGLE
$2,000,000
C3
IMIT
C3
BODILY. INJURY
�PER ACCIDENT)
C3
PROPERTY DAMAGE)
EXCESS LIABILITY
EACH OCCURRENCE
C3
AGGREGATE
WORKER' COMPENSATION
X STATUTORY LIMITS
AND
EACH ACCIDENT
$500,000
EMPLOYER'S LIABILITY
ISEASE - POLICY LIMIT
$500,000
ISEAiE - EACH - EMPLOYEE
$500
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Exhibit B
Thu,6 Dec 2012 16:09:0 1
Drainage Exhibit B 920301Form Approved AVP - Law
Drainage.Exb
Exhibit B
CH OCCURRENCE
CGL Policy is endorsed to include Union Pacific Railroad as Additional Insured as required by agreement.
CGL Policy is endorsed to include "Contractual Liability Railroads" as required by agreement.
Auto Liability Policy is endorsed to Include "Certain Operations In Connection With Railroads" as required by agreement.
Auto Liability Policy is endorsed to include Union Pacific Railroad as Additional Insured as required by agreement.
Punitive damages (one of the following statements must be included):
1. Policies are silent concerning punitive damages.
2. Insurance coverage may not lawfully be obtained for any punitive damages that may arise under this agreement.
3. All punitive damages are prohibited by all states in which this agreement will be performed.
Workers' Compensation Policy is endorsed waiving subrogation for Workers' Compensation and Employers Liability in favor of Union Pacific Railroad.
Railroad Protective Liability as required by agreement with Railroad as named insured with limits of not less than $2.0 million per occurrence and an aggregate of $6.0 million. A
binder stating policy is in place must be provided to Railroad until policy is forwarded to Railroad.
CERTIFICATE 7 tOLDR _ CATICELLATaON ;
HOULD ANY OFTHE A80VE DESCRIBED POLICIES BE CANCELLED BEFORE THE
UNION PACIFIC RAILROAD CO
XPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
Real Estate Department
AIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
ATT:
EFT, BUT FAILURE TO MAILSUCli NOTICE IMPOSE NO OBLIGATION OR
1400 Douglas St STOP 1690
LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
OMAHA, NE 68179 -1690
AUTHORIZED REPRESENTATIVE
ACCORD CORPORATION 1990.
_
ACCORD 2S- 3(7/90)
Drainage.Exb
Exhibit B
PL/WL /DRAINAGE INS.
Form Approved, AVP -Law Updated 03/01/2003
Form Approved, AVP -Law
Updated 08/2006
. EXHIBIT C
Union Pacific Railroad
Insurance Requirements
Licensee shall, at its sole cost and expense, (except for Railroad Protective Liability Insurance required in
Paragraph D), procure and maintain in effect during the term of this Agreement the following insurance
coverage. Licensee 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 or reconstruction work.
A. Commercial General liability insurance. Commercial general liability (CGL) with a limit of not
less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. 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 70 10 01 (or a substitute
form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site.
a 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:
Licensee's and/or Licensee's contractor's statutory liability under the workers' compensation laws of the
state where the Utility /Facility 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 Licensee, and /or Licensee'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.
The policy must contain the following endorsement, which must be stated on the certificate of insurance:
0 Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form .providing
Thu,6 Dec 2012 16:09:05
PL/WL /DRAINAGE INS.
Form Approved, AVP -Law Updated 03/01/2003
equivalent coverage) showing Railroad in the schedule as the alternate employer (or a
substitute form providing equivalent coverage).
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
Licensor 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 Licensor before the work may be
commenced and until the original policy is forwarded to Licensor.
E. Umbrella or Excess insurance. If Licensee, and /or Licensee's contractor, utilizes umbrella or
excess policies, these policies must "follow form" and afford no less coverage than the primary policy.
Other Requirements
F. All policy(ies) required above (except worker's compensation and employers liability) must
include Licensor 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 Licensor as
additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26,
and CA 20 48 provide coverage for Licensor's negligence whether sole or partial, active or passive, and
shall not be limited by Licensee's liability under the indemnity provisions of this Agreement.
G. 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.
H. Licensee 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.
I. Prior to commencing any work, Licensee, and /or Licensee's contractor, shall furnish Licensor
with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing
compliance with the insurance requirements in this Agreement.
J. All insurance policies must be written by a reputable insurance company acceptable to Licensor
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 Utility is located.
K. The fact that insurance is obtained by Licensee, and /or Licensee's contractor, or by Licensor on
behalf of Licensee, and /or Licensee's contractor, will not be deemed to release or diminish the liability of
Licensee, including, without limitation, liability under the indemnity provisions of this Agreement.
Damages recoverable by Licensor from Licensee or any third party will not be limited by the amount of
the required insurance coverage.
6 Dec 2012 .'1
December 05, 2012
Folder: 02651-74
To the Contractor:
Before the Railroad Company can permit you to perform work on its right of way for the installation of
drainage encroachment for CITY OF BLAIR Blair, Nebraska, it will be necessary to complete the
enclosed Contractor's Right of Entry Agreement as follows:
1. Fill in the complete legal name of the contractor in the space provided on Page I of the
Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation.
If a partnership, give the names of all partners.
2. Fill in the date construction will begin and be completed in Article 6, Paragraph (a).
3. Fill in the name of the contractor in the space provided in the signature block at the end
of the Contractor's Right of Entry A If the contractor is a corporation, the
person signing on its behalf must be an elected corporate officer.
4. Return all copies of the Contractor's Right of Entry Agreement, together with your
Certificate of Insurance, identifying Folder No. 02651-74, as required in Exhibit C, in
the attached self-addressed envelope.
5. Check, with Folder No. 02651-74 written on the front, made payable to the Union
Pacific Railroad Company in the amount of FIVE HUNDRED DOLLARS ($500.00).
If you require formal billing, y ou may consider this letter as a formal bill. In compliance
with the Internal Revenue Service's policy re Form 1099, 1 certify that 94-
6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and
that Union Pacific Railroad Company is doing business as a corporation.
After approval of the Contractor's Right of Entry Agreement and the Insurance Certificate, your fully-
executed document will be returned to you, with instructions to proceed. In no event should you begin
work until you have received a copy of the signed Contractor's Right of Entry Agreement.
Under Exhibit C of the enclosed Contractor's Right of Entry Agreement, you. are required to procure
Railroad Protective Liability Insurance (J?PLI) for the duration of this project. As a service to you,
Union Pacific is making this coverage available to you. You are not required to purchase this coverage
from the Railroad and are encouraged to shop the market for the best available rate. If you decide,
however, that acquiring this coverage from the Railroad is of benefit to you, simply follow the
instructions on the enclosed form.
Sincerely,
Kylan Crawford
Asst Manager - Real Estate
(402) 544-8536
Thu,6 Dec 2012 16:09:05
DRAINCRE.DOC 920301
Form Approved, AVP -Law
Folder No. 02651 -74
THIS AGREEMENT is made and entered into as of the day of 1 20 ,
by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, ( "Railroad ") and
a
addressed at
_'WSJ.
corporation ( "Contractor "), to be
Contractor has been hired by the CITY OF BLAIR for the construction of a drainage facility (the
"work ") with all or a portion of such work to be performed on property of Railroad in the vicinity of
Railroad's Mile Post 342.83, Blair Subdivision/Branch, located at or near Blair, Washington County,
State of Nebraska, which work is the subject of a contract dated December 05, 2012 between Railroad
and CITY OF BLAIR, as such location is also shown on the print dated September 24, 2012, marked
Exhibit A attached hereto and hereby made a part hereof.
Railroad is willing to permit Contractor to perform the work described above at the location
describe above subject to the terms and conditions contained in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as
follows:
For purposes of this Agreement, all references in this Agreement to the Contractor shall include
Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or
their authority.
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 any 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 IV.
The terms and conditions contained in Exhibit B, C and D, attached hereto, are hereby made a
part of this Agreement.
__ Dec 1 12 16:09:0
Article IV. ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD
REPRESENTA
his c
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
r her duly authorized
Zallroad Representative ):
RICHARD H. BRADY
MGR SIGNAL MNTCE
1400 DouglasStreet /CBSU
OMAHA, NE 68179
Work Phone: 712/8 329 -5075
Cell Phone: 402 681 -5837
BRIAN T. MCGINN
MGR TRACK MNTCE
Work Phone: 402/8 596 -5652
btmcginn @up.com
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.
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.
A. Before commencing any work, Contractor will provide Railroad with the insurance
binders, policies, certificates and/or endorsements set forth in Exhibit C of this Agreement.
B. All insurance correspondence, binders, policies, certificates and /or endorsements shall be
sent to:
Folder No. 02651 -74
Union Pacific Railroad Company
1400 Douglas Street STOP 1690
Omaha, Nebraska 68179 -1690
Litigation arising out of or connected with this Agreement may be instituted and maintained in
the courts of the States of Nebraska and only, and the parties consent to jurisdiction over their person and
over the subject matter of any such litigation, in those courts, and consent to service of process issued by
such courts.
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.
Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad Five
Hundred Dollars ($500.00) as reimbursement for clerical, administrative and handling expenses in
connection with the processing of this Agreement.
Article X. 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
Railroad.
Article XI. EXPLOSIVES.
Explosives or other highly flammable substances shall not be stored on Railroad's property
without the prior written approval of Railroad.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
M
Kylan Crawford
Assistant Manager Contracts
(Name of Contracting Company)
0
Title:
Telephone:
Dec 2012 ' 1-
Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law
Form Approved, AVP -Law
07/25/06
EXHIBIT B
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
A. Contractor agrees to notify the Railroad Representative at least ten (10) 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) 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 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 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
CROE.Exb
Exhibit B
Thu,6 .1'1
Contractor's ROE Exhibit B 07 /30 /OlForm Approved AVP - Law
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 times
by Railroad without liability to Contractor or to any other party for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (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.
CROE.Exb
Exhibit B
Thu,6 Dec 2012 16:09:05
Contractor's ROE Exhibit B 07 /30 /01Form Approved ANIP - Law
Section 5. PR OTECTION 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.
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 I), hereto attached, to ensure
uniformit 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 flee 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.
CROE.Exb
Exhibit B
Thu,6 Dec 2012 •1•i
Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law
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.
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 ( "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 Railroad 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 Railroad.
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.
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.
CROE.Exb
Exhibit B
Contractor's ROE Exhibit B 07 /30 /01Form Approved AVP - Law
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.
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, and shall require all subcontractors to maintain the insurance coverage required to be
maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the
same extent as Railroad is indemnified by Contractor under this Agreement.
CROE.Exb
Exhibit B
Thu,6 2012 16:09:05
Form Approved, AVP -Law
08/24/06
EXHIBIT C
Q O ENTRY AGREEMENT
jot It
Union Pacific Railroad Company
Insurance Provisions For
Contractor's Right of Entry Agreement
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 the 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 $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000.
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.
Bo Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00
O1 (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 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(s) affected by this
Agreement.
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 excel 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.
Thu,6 Dec 2012 .0•0
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 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 Contractor utilizes umbrella or excess policies, these policies
must "follow form" and afford no less coverage than the primary policy.
F. Pollution Liability insurance. Pollution Liability coverage must be included when the scope of
the work as defined in the Agreement includes installation, temporary storage, or disposal of any
"hazardous" material that is injurious in or upon land, the atmosphere, or any watercourses; or
may cause bodily injury at any time.
Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form
Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage),
with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000.
If the scope of work as defined in this Agreement includes the disposal of any hazardous or non-
hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution
legal liability insurance maintained by the disposal site operator for losses arising form the
insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per
loss, and an annual aggregate of $2,000,000.
Other Reauirements
G. All policy(ies) required above (except 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(s) in which the work is to be 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.
Form Approved, AVP -Law
07/25/06
EXHIBIT D
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
•.
The term "employees" as used herein refer to all employees of Contractor as well as all employees of any
subcontractor or agent of Contractor.
I. 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.
Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose
jewelry while operating or working on machinery.
II. 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, 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:
100 feet of a locomotive or roadway /work equipment
15 feet of power operated tools
150 feet of jet blowers or pile drivers
• �— 1" 1. 1
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.
(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:
Familiar and comply with Railroad's rules on lockout /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.
(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.