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Wayside Horn AgreementUnion Pacific Folder No. 0286563 WAYSIDE HORN AGREEMENT G THIS AGREE ENT (this "Agreement ") is made and entered into as of this I day of L _CYV1 , 2014 (the "Effective Date ") by and between UNION � PACIFIC RAILROAD COMPANY, a Delaware corporation (the Railroad) and CITY OF BLAIR, a municipal corporation of the State of Nebraska (the "Public Authority "). RECITALS A. The Public Authority has requested the Railroad's cooperation in connection with the installation, use, maintenance and repair of wayside horn systems for the at- grade, public crossings located at 10 Street (DOT No. 191676H) and 16 Street (DOT No. 191678W) near Railroad Milepost 342.07 and Railroad Milepost 342.56, respectively, on the Railroad's Blair Subdivision in the City of Blair, Washington County, Nebraska, as shown on the print marked Exhibit A, attached hereto and hereby made a part hereof (the "Project "). The two crossings described in this Recital A and shown on Exhibit A are hereinafter collectively referred to as the "WHS Locations ". B. As used in this Agreement, the term "WHS" includes the wayside horn system and any and all parts or components thereof or associated therewith, including without limitation, the horn, utility poles, the horn confirmation signal, the advance confirmation indicators and systems, control cables, interconnect cables, circuitry and power supply for the WHS Locations. The term "Work" as used in this Agreement shall mean any work associated with engineering, design, construction, installation, interconnection, operation, maintenance and repair of the WHS at the WHS Locations. C. The Railroad is willing to cooperate with the Public Authority in facilitating the Project, and has agreed to perform a portion of the Work, as more particularly described herein, subject to the terms and conditions of this Agreement. D. The Railroad and the Public Authority desire to enter into this Agreement to set forth their understanding and agreement with respect to the Project. AGREEMENT NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the Railroad and the Public Authority agree as follows: Section 1. THE PUBLIC AUTHORITY'S SOLE FINANCIAL RESPONSIBILITY FOR THE WORK AND PROJECT. A. The Public Authority shall be solely responsible for all costs and expenses associated with the Work and/or the Project or required to facilitate, implement, install, maintain, DEC - 1780662 -4 i " I r operate and repair the WHS, including without limitation, all costs and expenses incurred by the Railroad in connection with the Work and /or the Project. B. The Public Authority shall pay and fully reimburse the Railroad for any and all costs and expenses incurred by the Railroad in connection with the Work and /or the Project, including without limitation, those costs and expenses more particularly set forth in this Agreement. Section 2. OTHER RESPONSIBILITIES AND OBLIGATIONS OF THE PUBLIC AUTHORITY WITH RESPECT TO THE WORK AND THE PROJECT. A. The Public Authority shall install, own, maintain and repair, at its sole expense, the WHS and all parts and components thereof, including without limitation, any and all cables for interconnection and advance confirmation indicators and systems at the WHS Locations. B. The Public Authority shall comply with all applicable laws with respect to the Work and the Project, including, but not limited to, 49 CFR Part 222. The Public Authority shall comply with all Federal Railroad Administration ( "FRA ") regulations and requirements with respect to the WHS. C. The Public Authority shall be responsible for ensuring the reliable operation and proper functioning of the WHS after installation. D. The Public Authority shall endeavor to place all WHS components, including without limitation, utility poles and power supplies, at locations within the Public Authority's existing street rights of way. If the Public Authority desires to change placement of the WHS and /or a WHS component in any respect, the Public Authority shall apply to the Railroad for approval (if the change is a location still within the Public Authority's existing street right of way) or a license (if the change is to a location outside of the Public Authority's existing street right of way). The Railroad may issue approvals or licenses on application, subject to reasonable terms and conditions, provided that no existing or planned facilities of the Railroad, in the judgment of the Railroad, shall be adversely impacted by such placement. E. The Public Authority in conducting any Work or activities in, around, or regarding the WHS or the Railroad's tracks, crossings, bungalows, crossing protection, or other facilities, whether directly or through a Contractor (defined below), shall ensure compliance in all respects with such rules and requirements of the Railroad referred to more specifically herein or in Exhibits or attachments hereto, or that the Railroad may later provide to the Public Authority. F. If the Public Authority directly, but not through its Contractor, wishes to perform Work on the Public Authority's existing street rights of way on or over Railroad property, it may do so through its employees without the Public Authority being required to execute the Railroad's then current Contractor's Right of Entry Agreement described in Section 2H below (the "Right of Entry Agreement "), but in any event still shall be required to obtain the flagging protection described in the Right of Entry Agreement for any activity within twenty -five (25) DEC - 1780662 -4 2 . i I ) feet from the center of the Railroad's nearest track and to comply with Sections 2E, 2K and 2L, and shall comply with any other rules and requirements of the Railroad referred to more specifically herein or in Exhibits or attachments hereto, or that the Railroad may later provide to the Public Authority. Flagging will not be required, however, when the Public Authority under this Section 2F is performing routine maintenance behind the crossing arms. G. For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the Public Authority to perform any work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. H. Prior to Contractor performing any work on the Railroad's property, the Public Authority shall require the Contractor to: • execute the Railroad's Right of Entry Agreement • obtain the then current insurance required in the Right of Entry Agreement; and • provide such insurance policies, certificates, binders and /or endorsements to the Railroad. I. The Railroad's current form of Right of Entry Agreement is marked Exhibit B, attached hereto and hereby made a part hereof. The Public Authority confirms that it will inform its Contractor that it is required to execute a Right of Entry Agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first satisfying the requirements set forth in Section 2H above. J. All insurance correspondence, binders, policies, certificates and /or endorsements to be delivered to the Railroad pursuant to this Section 2 shall be sent to: Union Pacific Railroad Company Manager Special Projects - IPP 1400 Douglas Street, Mail Stop 0910 Omaha, NE 68179 UP File Folder No. 0286563 K. Prior to initiating any Work to remedy an urgent public safety concern under this Agreement, the Public Authority shall notify the Railroad's Risk Management Control Center at 1- 888 - 877 -7267. L. The Public Authority shall ensure that persons performing any Work by, for, or on behalf of the Public Authority on Railroad property (whether within or outside the Public Authority's existing street rights -of way) shall undergo and complete the training required by the Railroad, which the Railroad will identify to the Public Authority, and by the FRA, including without limitation, that for roadway worker protection set out at " contractororientation.com ," or other approved training. DEC - 1780662 -4 M. Costs and expenses associated with or resulting from any relocation of the WHS, including without limitation any such relocation work that results from track alignment changes, new track construction, signal upgrades, or from any work implemented in the discretion of the Railroad, or resulting from the Railroad's business needs or the requirements of an administrative agency, shall be at the Public Authority's sole cost and expense. The Railroad shall provide reasonable prior notification of such relocation or other work. N. The Public Authority shall prevent any interference (whether by induction, leakage of electricity, or otherwise) by or of the WHS with the operation or function of the Railroad's signals, communication lines, or any other installation or facility. If the WHS causes interference, the Railroad, in its sole discretion, may require the Public Authority, at its sole expense, to immediately take such remedial action as may be necessary to eliminate such interference. O. The Public Authority shall maintain all vegetation at or near the WHS sites, to ensure that vegetation does not interfere with the performance or visibility of the WHS. Section 3. PROTECTION OF SUBSURFACE FACILITIES ON RAILROAD PROPERTY. A. Cables, lines, wires, circuits, conduit, pipes and other facilities (collectively, the "Facilities ") may be buried on and under Railroad property, including without limitation, its rights of way, as part of, or associated with, various systems and facilities, including without limitation, fiber optic systems, railroad traffic control - related systems (e.g., wayside horn, switching and signal control systems) and utility systems and facilities (e.g., electrical lines, natural gas and water main pipelines and distribution/supply lines, and sewer pipes and lines). Protection of the Facilities is of extreme importance since any break in or damage to the Facilities could, among other things, disrupt service to users, result in business interruption and loss of revenue and profits, result in injury or death to persons and damage to property, cause other economic losses and /or create safety risks to the public. Accordingly, the Public Authority shall, and shall cause its Contractor to, (i) comply with all one -call and other requirements of the law of the state where the Work is to be performed, (ii) exercise due diligence in determining if Facilities are present in the area that is to be used or occupied by, or that will be accessible to, the Public Authority (or its Contractor) in connection with the Work, including without limitation, by telephoning the Railroad at 1- 800 - 336 -9193 (between 6:30 a.m. and 8:00 p.m. Central Time) to determine if Facilities comprising fiber optic systems are buried anywhere at such location(s), (iii) contact the Railroad and any party who is determined to be the owner of any such Facilities to make suitable arrangements for the relocation or other protection of the Facilities and (iv) refrain from commencing Work on the Railroad's property in the vicinity of any Facilities unless and until such relocation or other protection has been completed. The Public Authority acknowledges and agrees that the Railroad will not be responsible for the cost to relocate or otherwise protect the Facilities. B. In addition to any other indemnity provisions in this Agreement, to the extent not prohibited by law, the Public Authority shall defend, indemnify and hold the Railroad harmless 2 DEC - 1780662 -4 from and against all costs, liability, loss and expense whatsoever (including without limitation, consequential damages, attorneys' fees, court costs, and expenses) arising out of any act or omission of the Public Authority, its agents, Contractor and /or employees, relating in any way to the Facilities, to the extent any such act or omission causes or contributes to: (i) any disruption of service to users or damages attributable to such service interruption, such as loss of revenues or profits, (ii) any damage to or destruction of any Facilities, (iii) any injury or damage to property or injury to or death of any persons, (iv) any economic loss by an owner or user of the Facilities, (v) any other damage or liability whatsoever or (vi) the assertion or filing of any claim, cause of action or judgment whatsoever relating to such matters. If this Section 3B should be declared void or unenforceable by a court of competent jurisdiction, it shall be stricken, but the fact that it has been so struck shall not affect the enforceability of Section 3A. Section 4. RAILROAD'S WORK. A. The Railroad, at the Public Authority's sole cost and expense, shall provide the interconnect from the crossing signal control systems in the Railroad's signal cabin to activate the WHS at the WHS Locations, and all work associated therewith, including without limitation, preliminary design, engineering and cost estimates relative to the interconnect. If modified, changed, or additional Railroad signal activation circuitry is required at a crossing to properly activate the VMS and the signalization at such crossing, in accordance with 49 CFR Part 222, the Railroad will install such circuitry, at the sole cost and expense of the Public Authority. B. The Railroad will install, own, maintain and repair, at the Public Authority's sole cost and expense, all components within the Railroad's signal crossing cabin necessary for the interconnection, including without limitation, relays, wiring and terminal connections. The Railroad will not install, own, maintain or repair the interconnect cable provided by the Public Authority. - - C. The Railroad shall have absolutely no obligation, nor any right whatsoever, to install, provide circuitry to, test or maintain any of the VJHS components other than the interconnect. D. The Railroad has no duty to maintain the WHS or to monitor its function, safety or state of repair. E. In no event shall the Railroad be responsible for monitoring the Public Authority's duties or obligations under this Agreement or the FRA or any other rules, regulations or agreements applicable to the VJHS. Section 5. PAYMENTS BY THE PUBLIC AUTHORITY TO THE RAILROAD. A. Pursuant to two Agreements for Preliminary Engineering Services each dated December 11, 2013, and accepted by the Railroad on January 24, 2014 (collectively, the "PE Agreements "), the Public Authority advanced to Railroad a total of Ten Thousand and No /100 Dollars ($10,000) to cover expenses and actual costs incurred by the Railroad in connection the Railroad's preliminary engineering and other preliminary activities for the Project. 5 DEC - 1780662 -4 B. Within sixty (60) days after the Effective Date, the Public Authority shall advance to Railroad a total of Sixteen Thousand Five Hundred Sixty and No /100 ($16,560.00) (the "Estimate "). The Estimate is equal to the sum of the amounts described in the Railroad's two Material and Force Account Estimates dated October 6, 2014 and October 7, 2014, less the $10,000 advance previously made pursuant to the PE Agreements. The Railroad's Material and Force Account Estimates are included on Exhibit C, attached hereto and hereby made a part hereof. The Public Authority shall be responsible for any and all costs and expenses incurred by the Railroad in connection with the Project, including without limitation all of Railroad's overhead and indirect construction costs in the Railroad's standard additive rates, without regard to whether such amounts exceed the Estimate. C. The Public Authority acknowledges that the Estimate does not include any estimate of flagging or other protective service costs that may be provided by the Railroad in connection with the Project. Any such flagging or other protective services shall be at the Public Authority's sole cost and expense, and the Railroad shall invoice the Public Authority separately for these services. D. If at any time during the Project, Railroad determines that the actual cost of the Work to be performed by the Railroad will likely exceed the total amount set forth in the Estimate (together with the amounts included in the PE Agreements), the Railroad may request additional funds for the projected or actual additional costs in connection with such Work. Within sixty (60) days after receipt of a request for any additional funds, the Public Authority shall notify the Railroad in writing whether it agrees to pay the additional amounts. If the Public Authority agrees to pay such amounts, then the writing evidencing such agreement shall become part of this Agreement. If the Public Authority fails to pay the total amount set forth in the Estimate within the timeframe set forth herein, or if the Public Authority does not agree to advance additional funds or fails to timely notify the Railroad of its decision regarding its obligation to advance additional funds in connection with the Railroad's portion of the Work, then such failure to timely pay or agree to pay the amounts associated with the Railroad's portion of the Work as required hereunder shall be deemed a material breach under Section 9C below. E. If the Railroad has overestimated the cost of the portion of the Work to be performed by the Railroad, and the actual cost for the Railroad's portion of the Work is less than the total amount paid to the Railroad by the Public Authority under the Estimate, then the Railroad shall, within one hundred twenty (120) days after completion of the Project, refund to the Public Authority an amount equal to difference between the amount paid by the Public Authority pursuant to the Estimate (together with any remaining amounts under the PE Agreements) and the actual cost for the Railroad's portion of the Work. F. The Public Authority agrees to each year during the term of this Agreement an annual maintenance fee of One Hundred Twenty and No /100 Dollars ($120.00) per WHS Location to cover the Railroad's cost of inspecting and testing the WHS interconnect equipment contemplated by this Agreement located within the Railroad's signal cabins. The Railroad will invoice the Public Authority for such fee. Not more frequently than once every two years, the Railroad may modify the annual payment to reflect the Railroad's then current cost of inspecting DEC - 1780662 -4 and testing the WHS interconnect components as set forth in this section. If it becomes necessary to repair or replace any of the WHS interconnect equipment within the Railroad's signal cabins or perform any other Work in connection therewith at a WHS Location, the Railroad will separately invoice the Public Authority for such cost. G. All payments to be made by the Public Authority to the Railroad under this Agreement, other than any payment to be made pursuant to Sections 5B and 5D above, shall be made within thirty (30) days after the Railroad's submittal of invoices to the Public Authority. Interest on any overdue amounts shall be at prime plus two percent (2 %), unless a lesser rate is required by state law. H. The Railroad, for the period of three (3) years after completion of the Work to be performed by the Railroad hereunder, will maintain all books, papers, accounting records and other documentation relating to costs incurred under this Agreement and will make such materials available to the Public Authority or its duly authorized representatives for review and inspection at the Railroad's headquarters building in Omaha, Nebraska, on reasonable prior notice and during regular business hours. Section 6. SOUNDING OF LOCOMOTIVE HORNS. The Railroad's rights and duties regarding the sounding of the locomotive horns at the WHS Locations shall be as set out in 49 CFR Part 222, and by other applicable law. Nothing contained in this Agreement shall be construed to alter such rights and duties. Section 7. LIABILITY INSURANCE, AND INDEMNITY. A. Cooperation in Defense. The Public Authority and the Railroad agree to cooperate, as necessary, in defense of any claim, demand, investigation or litigation arising out of or related to this Agreement, the Work, the Project, or the WHS. B. Definition of Losses. The term "Losses" shall include all damages, costs, expenses, attorneys' fees, other fees, or liabilities of any nature whatsoever, in any way related to or arising out of, any actual or alleged violation of law, order, or regulation; damage to any property, the environment or to natural resources; bodily injury or death of any person; or the breach of any contract. C. Insurance. On or before January 1 of each year during the term of this Agreement, the Public Authority shall provide to the Railroad (i) a binder or original policy confirming that the Public Authority has obtained and /or renewed the insurance coverage described in Exhibit D, attached hereto and hereby made a part hereof, for the subject year with a reputable insurance company acceptable to the 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 of Nebraska. The Public Authority shall be responsible for budgeting sufficient funds to pay the insurance premiums for the required insurance each year this Agreement is in effect. Not more frequently than once every two (2) years during the term of this Agreement, the Railroad may 7 DEC - 17806624 reasonably modify the required insurance coverage to reflect then current risk management practices in the railroad industry and underwriting practices in the insurance industry. D. INDEMNITY OBLIGATIONS_ OF THE PUBLIC AUTHORITY. (i) TO THE EXTENT PERMITTED BY LAW, AND SUBJECT TO SECTION 7D(ii) BELOW, THE PUBLIC AUTHORITY SHALL FULLY INDEMNIFY AND HOLD THE RAILROAD HARMLESS, AND DEFEND THE RAILROAD AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS, DEMANDS, AND LOSSES ARISING FROM THE PUBLIC AUTHORITY'S OWN ACTS OR OMISSIONS OR FAULT RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE WORK, THE PROJECT, OR THE WHS. (ii) NOTHING CONTAINED IN THIS SECTION OR ANY OTHER PART OF THIS AGREEMENT SHALL BE CONSTRUED TO CONSTITUTE AN AGREEMENT OR OBLIGATION OF THE PUBLIC AUTHORITY TO INDEMNIFY THE RAILROAD AGAINST LIABILITY OR LOSSES ARISING FROM THE RAILROAD'S OWN ACTS OR OMISSIONS OR FAULT. E. If the Railroad notifies the Public Authority of a claim for indemnification, the Public Authority shall respond in writing within thirty (30) days after notification by the Railroad, unequivocally accepting the Railroad's demand and undertaking to indemnify the Railroad, or, if the Public Authority rejects the demand, the Public Authority shall state specifically the grounds for rejection. Section S. E NFORCEABILITY AND CHOICE OF LAW. UNLESS OTHERWISE PREEMPTED BY APPLICABLE FEDERAL LAWS, RULES AND REGULATIONS, THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEBRASKA. LITIGATION TO ENFORCE, OR ARISING OUT OF, OR RELATED TO OR CONNECTED WITH THIS AGREEMENT SHALL BE INSTITUTED AND MAINTAINED SOLELY BEFORE THE STATE OF NEBRASKA DISTRICT COURT FOR WASHINGTON COUNTY, NEBRASKA. Section 9. TERM OF AGREEMENT AND TERMINATION. This Agreement shall be in full force and effect until terminated pursuant to this Section 9 or until it otherwise is terminated in accordance with law. A. This Agreement immediately and automatically shall terminate on the date of the occurrence of any of the following events: (i) The FRA rescinds or materially amends the regulations pertaining to wayside horns, currently promulgated at 49 CFR Part 222. DEC - 1780662 -4 (ii) The FRA issues an order or regulation which prohibits or imposes significant restrictions on the use of the WHS or the FRA issues any ruling which requires the use of locomotive horns at a crossing where a WHS is located. B. This Agreement immediately and automatically shall terminate if the Public Authority is in material breach of any express or implied term of or obligation of Sections 7C or 7D of this Agreement or Exhibit D to this Agreement, the Railroad notifies the Public Authority of the breach, and the Public Authority fails to fully cure such breach within thirty (30) days after notice is given. If such breach is not timely cured in accordance herewith, such termination shall be effective at 12:01 a.m. of the 31 day after notice. A "material breach" under this Section 9B exists, without limitation, if the following occurs: (i) The Public Authority fails or refuses to comply with the insurance provisions set forth in Section 7C, or the Public Authority otherwise is in breach of any provision of Section 7C or Exhibit D, or is in breach of any obligation the Public Authority owes under the policies of insurance required hereunder. (ii) The Public Authority fails or refuses to undertake the defense of or to indemnify the Railroad upon written demand by the Railroad or to fully defend and indemnify the Railroad, when it is required to do so under Section 7D. C. This Agreement immediately and automatically shall terminate if either party is in material breach of any express or implied term or obligation of this Agreement other than those described in Section 9B above, the other party notifies the breaching party of the breach, and the breaching party fails to fully cure such breach within sixty (60) days after notice is given. If such breach is not timely cured in accordance herewith, the termination shall be effective at 12:01 a.m. of the 61" day after notice. A "material breach" under this Section 9C exists, without limitation, if the following occurs: (i) The Public Authority fails or refuses to comply with FRA regulations, including, but not limited to, 49 CFR Part 222 or any amendments thereto. (ii) The Public Authority fails or refuses to pay the amount set forth in the Estimate or to advance any additional amounts requested in accordance with Section 51), and /or the annual signal maintenance fee set forth in Section 5, or any other fees, charges or payments due the Railroad under this Agreement. (iii) The Public Authority fails or refuses to comply with the terms or conditions of Section 2 or Section 3. D. Upon termination, the Public Authority shall promptly deactivate the WHS, and the Railroad shall instruct its engineers to resume sounding the locomotive horns at the crossings in accordance with the Railroad's operating rules. If the reason for termination is associated with a FRA ruling, the Public Authority may retain the deactivated WHS and its components in place for a period.not to exceed two (2) years after the date of such FRA ruling, pending efforts by the Public Authority to obtain regulatory approval from the FRA. If the Public Authority fails to 9 DEC - 1780662 -4 obtain such regulatory approval or reversal of a FRA decision within said period, the Public Authority, at its sole cost and expense, shall promptly remove the WHS and its components from the WHS Locations. E. Termination of this Agreement shall not excuse the Public Authority from fully complying with all obligations and satisfying all liabilities and making all payments that have accrued prior to the termination date. Section 10. BINDING EFFECT. The covenants hereof shall inure to and bind each party's successors and assigns, provided that, no right of the Public Authority shall be transferred or assigned, either voluntarily or involuntarily, except by express written agreement acceptable to the Railroad. Section 11. EVIDENCE OF AUTHORITY. The Public Authority, when returning this executed Agreement to the Railroad, shall cause it to be accompanied by such order, resolution or ordinance of the governing body of the Public Authority, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this Agreement on behalf of the Public Authority. Section 12. ENTIRE AGREEMENT, RULES OF CONSTRUCTION, AND SEVERABILITY. This Agreement shall be construed without regard to who drafted or initiated the drafting of all or any provisions of this Agreement. Each of the parties is sophisticated in the matters at issue here, and each relies on its own expertise and its own officers', managers' and attorneys' advice. Neither relies on any representations by the other party or on the other party's expertise or advice in entering into this Agreement. This Agreement includes all Exhibits hereto, and is the entire agreement between the parties. It supersedes all prior communications, understandings, and agreements, whether oral or written. Amendments to this Agreement must be in writing and signed by both parties. In the event any portion of this Agreement is deemed void or unenforceable, this will not void or render unenforceable any other provision hereof, and the voided or unenforceable portion shall be deemed severed from the rest of this Agreement and the remaining Agreement shall continue to be enforceable. Section 13. NOTICES. Any notice due hereunder, and each communication concerning matters within the scope of this Agreement, shall be made in writing and shall be (A) personally delivered; (B) delivered by a reputable overnight courier; or (C) delivered by certified mail, return receipt requested and deposited in the U.S. Mail, postage prepaid. Notices shall be deemed received at the earliest of (i) actual receipt if delivered by personal delivery; or (ii) one (1) business day after deposit with an overnight courier as evidenced by a receipt of deposit; or (iii) three (3) business days following deposit in the U.S. Mail, as evidenced by a return receipt. Such notices and 10 DEC - 1780662 -4 communications shall be addressed to the following persons, at the following addresses, or at such other address as the parties may from time to time direct in writing: Railroad: Union Pacific Railroad Company ATTN: Director - Industry & Public Projects 1400 Douglas Street, Mail Stop 0910 Omaha, Nebraska 68179 -0910 Public Authority: City of Blair, Nebraska ATTN: Alan Schoemaker 218 S. 16 Street Blair, Nebraska 68009 11 DEC - 1780662 -4 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date first herein written. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation Printed Name: Title: CITY OF BLAIR, a municipal corporation of the State of Nebraska By: Printed Name ri► e/ Title: M au 0(. 12 DEC - 1780662 -4 EXHIBIT A TO WAYSIDE HORN SYSTEM AGREEMENT Exhibit A will be the print showing the VWHS Locations. DEC - 1780662 -4 L OCATIO N HO B LAIR AGREEMENT NE 0 t�1 G f cy. J "" ty,r M kt r,, , ., *�y j tt 1 a Sr� �4 � 10 0' r 5 fry r Street MP 342.07 Blair Subdivision Blair NE DOT# 191 676 H ,+ k t c ?r 6 � �V i x f a - v & f f p i z a LZ l 342 ff r s I� � t f ' i 7 lip J, 16 Street , r C: w 3y � t � d tx � x ° { ` W 342.56 Blair Subdivision f f r i , 1 Blair, NE DOT# 191676H d ��r r{rt 5 t L yli' �' s st i i ri R, d'Le at }mar '.:Ys4_, } _s. - ._ _ tw_'d i EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY BLAIR SUBDIVISION BLAIR, NEBRASKA Illustrative print showing location of public road crossing projects within BLAIR NEBRASKA. November 20, 2014 WARNIN G IN ALL OCCASIONS, U.P. COMMUNICATION DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE 1- 800 - 336 -9193 P ' 111 ' f f j r p d i j fy {y l ; ; X, 1 f fl B 1 �., 4 T J} {Jt �7 111t T. �t ', ,�. t 'ta ,Y "� fir'; S ` R, d'Le at }mar '.:Ys4_, } _s. - ._ _ tw_'d i EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY BLAIR SUBDIVISION BLAIR, NEBRASKA Illustrative print showing location of public road crossing projects within BLAIR NEBRASKA. November 20, 2014 WARNIN G IN ALL OCCASIONS, U.P. COMMUNICATION DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE 1- 800 - 336 -9193 EXHIBIT B TO WAYSIDE HORN SYSTEM AGREEMENT Exhibit B shall be the Railroad's current form of Contractor's Right of Entry Agreement. DEC - 1780662 -4 • A I v i 1:4 THIS AGREEMENT is made and entered into as of the day of 20 by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ( "Railroad "); and , a corporation ( "Contractor "). RECITALS: Contractor has been hired by relating to to perform work with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Milepost (the "work "), on Railroad's [Subdivision] [Branch] [at or near DOT No. I 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. DEC - 1780662 -4 B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative "): Mike Blackley Manager Special Projects-11P 1400 Douglas St. MC 910 Omaha, NE 68179 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - SCHEDULE OF WORK ON A MONTHLY BASIS. The Contractor, at its expense, shall provide on a monthly basis a detailed schedule of work to the Railroad Representative named in Article 4B above. The reports shall start at the execution of this Agreement and continue until this Agreement is terminated as provided in this Agreement or until the Contractor has completed all work on Railroad's property. ARTICLE 6 - TERM: TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein provided, or at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. ARTICLE 7 - CERTIFICATE OF INSURANCE A. Before commencing any work, 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 1400 Douglas St. MC 910 Omaha, NE 68179 Attn: Mike Blackley Folder No. 2865 -63 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. 2 DEC - 1780662 -4 ARTICLE 9- ADMINISTRATIVE FEE Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad 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. IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By: (Name of Contractor) By: DEC - 1780662 -4 Exhibit A will be a print showing the general location of the work site. DEC - 1780662 -4 L OCATIO N OF WA "` •• AGREEMENT BLAIR NEBRASKA O R q I- a a 'y S E ,t &aa+ } r i ..:R 4j ''� K* ,t gX r 2 ?ls.`. , ?p`�7 ' § U '4};S t''ttti + 9.?� k' y +.3i {}f�`N„ib n$`,,[d.T y�.11 t,,"� )f X1 7(�✓ y "�i ..m I �f� ii 3 7 l 3 3` r 1 �. �9 d-',3 t ti ter " ', a Ct+. as. t r }'r 3 a N6 X 6a #, d { t r 10 Street -Ci .zfx�b �� MP 342.07 Blair Subdivision i' p I' 3 1a *"�, ac' 1 1 gip, Blair, NE DOT# 191 676 H t ��3. £.; i1 d 7 y v ^yu, 3 ��r a v 1 g .sx r'i , fir r t= �N14 - r ,,,-, • ��_ ! is � � , ' ".. �� Sht l+ ,,??t �' ;t,+ ?r�.pa"I"..+ t -,~ -� : }2$ r' P 3 �. . a r VA, i ,; �; t -� + r i � p d � � �'' r = k tN it s �}� Y s �'� v , 9 + '^' ✓ #) dlrS.4 \LV s �I 3� I c y a i k iltl1S c rr l f > .v p °' }x F I t , x 16 Street # MP 342 Blair Subdivision a �� 6' Fk fr lr ��.c� ; mo t: +l f s .56x, t r t �� }. Blair, NE DOT# 191676H a t t a e, � e x j s . k+ 3 ` I . f �. l �.G yt if't't(3t + , s r \r p' n :- �-� . f 1 X y'`- '1 '{�- �' r kt s, ,✓ ✓ t 1 t a t t a e $ +ipL t pj { 9 ` r ti : t - - '� ,,tf r N ' .. , 7? �} p si; te r# a j +` ' � al kw" " : + ti y, a hal f # I _ a Y aiSt rt ") ,`qtr Y f-� ��,' i p `k a d'�«t�#. 1„'4.�p.,' d`vr 5t vs ! + „a2 }rL JA ikas }tw: , 3 attltt5 1p yF y 4 3 'j t ``5 Er” �5 .•9ouft , " r }x 1 p 4 r, k, p t1 " '.3' ? -r.l a r4yt1 . �iUlfinnP,acltkaflrca�2024 r... Sim w £ „Y,v tk 1. .LEdv.s'vJ2[Xa ICE.„ c,4,.ra.'aVuk �} af - EXIIIBIT "A” UNION PACIFIC RAILROAD COMPANY BLAIR SUBDIVISION BLAIR, NEBRASKA Illustrative print showing location of public road crossing projects within BLAIR NEBRASKA. November 20, 2014 WARNING IN ALL OCCASIONS, U.P. COMMUNICATION DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE 1- 800 - 336 -9193 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. LIMITATIO 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 Exhibit B Page 1 of 4 DEC- 1780662 -4 freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (whether recorded or unrecorded and including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WIT 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. Exhibit B Page 2 of 4 DEC- 1780662 -4 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 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 party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against any Indemnified Party. Exhibit B Page 3 of 4 DEC - 1780662 -4 e. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured" 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 DEC - 1780662 -4 EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT 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 Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. ' • Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident and coverage must include liability arising out of any auto (including owned, hired and non -owned autos). The policy must contain the following endorsements, which must be stated on the certificate of insurance: • Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. • Motor Carrier Act Endorsement - Hazardous materials clean up (MCS -90) if required by law. C. Workers' Compensation and Employers' Liability insurance. Coverage must include but not be limited to: • Contractor's statutory liability under the workers' compensation laws of the state where the work is being performed. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self- insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. D. Railroad Protective Liability insurance. Contractor must maintain "Railroad Protective Liability" (RPL) insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this agreement. Contractor shall provide this Agreement to Contractor's insurance agent(s) and /or broker(s) and Contractor shall instruct such agent(s) and /or broker(s) to,procure the insurance coverage required by this Agreement. A BINDER STATING THE POLICY IS IN PLACE MUST BE SUBMITTED TO RAILROAD BEFORE THE WORK MAY COMMENCE AND UNTIL THE ORIGINAL POLICY IS FORWARDED TO UNION PACIFIC RAILROAD. Exhibit C Page 1 DEC - 1780662 -4 E. Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability insurance. Pollution liability coverage must be included when the scope of the work as defined in the Agreement includes installation, temporary storage, or disposal of any "hazardous" material that is injurious in or upon land, the atmosphere, or any watercourses; or may cause bodily injury at any time. If required, coverage may be provided in separate policy form or by endorsement to Contractors CGL or RPL. Any form coverage must be equivalent to that provided in ISO form CG 2415 "Limited Pollution Liability Extension Endorsement" or CG 28 31 "Pollution Exclusion Amendment" with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non - hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. Other Reauirements G. All policy(ies) required above (except business automobile, worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. BOTH CONTRACTOR AND COMPANY 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 2026, H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this Agreement; or (b) all punitive damages are prohibited by all states in which this Agreement will be performed. I. Contractor waives all rights 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 Contractor required by this Agreement, which must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. Exhibit C Page 2 DEC - 1780662 -4 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. 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, 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 DEC - 1780662 -4 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. Exhibit D Page 2 DEC - 1780662 -4 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. Exhibit D Page 3 DEC - 1780662 -4 EXHIBIT C TO WAYSIDE HORN SYSTEM AGREEMENT Exhibit C shall be Railroad's Material and Cost Estimate involving the Work to be performed by the Railroad at the WHS Locations. DEC - 17806624 LABOR /1-1ATERIAL EXPENSE 10281 2998 -- - - - - -- -- - - - - -- RECOLLECTIBLE/UPRR EXPENSE 13279 0 -- - - - - -- ESTIMATED PROJECT COST 13279 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATER OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. r'� 18 1� DATE: 2014 -10 -06 ESTIMATE OF MATERIAL AND FORCE ACCOUNT V'ORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE 00017 FOR 6 1•SON`CHS EXPIRATION DATE IS :2015 -04 -06 DESCRIPTION OF PARK: INSTALL AUTO, -WrIC HORN SYSTEM AT BLAIR, NE. 10TH STREET FS.P. 342.07 ON THE BLAIR SUB. 11ORK TO BE PERFORMED BY RAILROAD 111ITH EXPENSE AS BELOW - SIGNAL - CITY OF BLAIR - 100% ESTIMATED USING STANDARD LABOR ADDITIVES - 200.97$ PID: SG478 AP10: 23910 MP,SUBDIV: 342.07, BLAIR SERVICE UNIT: 03 CITY; BLAIR STATE; NE DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK ENGINEERING 800 800 800 LABOR ADDITIVE 208.97 1664 1664 1664 - - - - - -- -- - - - - -- TOTAL ENGINEERING 2464 -- - - - - -- -- - - - - -- -- - 2464 - - - -- 2464 SIGNAL 11ORK BILL PREP 900 900 900 LABOR ADDITIVE 208.97% 5297 5287 5287 SALES TAX 105 105 105 SIGNAL 1630 2626 4256 4256 TRANSP /IB /OB /RCLP1 CONTR 257 257 257 ENVIRONMENTAL - PERMITS 10 10 10 ---- --- -- ---- -- TOTAL SIGNAL 7817 2998 - --- - - - ------ -------- 10815 10815 LABOR /1-1ATERIAL EXPENSE 10281 2998 -- - - - - -- -- - - - - -- RECOLLECTIBLE/UPRR EXPENSE 13279 0 -- - - - - -- ESTIMATED PROJECT COST 13279 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATER OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. r'� 18 1� EXHIBIT C 01'IIE•dN lvmh W OL 5133143 60 qq n " "� 4A M W ELL=� Lm-y0 z . 5 0W �y prp3y4 P U� W° g R U Wh LLJ Ll �. R u tt F � K z K " *a�� Ph O A Iu Y t]-t t LO i. • 3 •, �u 21t 17 a Omm �i It • :I.� �i u a a6 �° Z s . s. w k _ � ._` µ 114 - r ao4 a i a CD 6 z u•� i a ¢ W y u i{7 q N Q I gga H J u yN� N LL i cr Z E5 U. r L � d c Cq ! N 7 u OK:9'A1 ft54 v. r R rs �� u •2rnc•M �, ii P� -- 1. � C111i VKtQ1 / 11181 121to u IGTIC'M T9Cd A I31Y]Ctn Y14531vi WIWI 31m13i LO.S-[I 'A /00' [L•D•I It1t1 a a UTIC'M R -N lYAtGY lY �! W a 33Yl431 Es•C2•I A3! 5 ltJHV9] /31i i;.h•4 {•2 30]•3 NI 311 7.� VIA 011 155 1iiTa93 1NiSV 1 ics"R - •9•S 1!31 331W33: NI OM'U 11311031M3 �! vnSS N3 Pr i.H i33r 93•11•ZI O3LYO duf It 21 831 A31 •3114 Tv •33tl it -wva 1 371! •341 C8•EC•ti 1 311V go •h13 SMOISIAHU U109 SJ:p to O1 S1Ott49 EXHIBIT C ---- --- ------- DATE: 2014-IQ-07 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 1,1,og EXPIRATION DATE IS 62015-01-07 DESCRIPTION OF WORK: INSTALL AUTO'-WrlC IIOP14 SYSTEM AT BLAIR, 142. 16TH STREET M.P. 342.56 ON THE BLAIR SUB, WORK TO BE PERFORMHU BY RAILROAD WITH EXPENSE AS BELOW: SIGNAL - CITY OF BLAIR - 100% ESTIMATED USING STANDARD LABOR ADDITIVES - 208.971 PID: 86479 AWOz 23911 MP, SU13DIV: 342.56, BLAIR SERVICE UNIT; 03 CITY: BLAIR STATE: NE DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL ----------- --- ---- ----- -------- ------- UPRR TOTAL ENGINEERING STORK ENGINEERING 800 800 Goo LABOR ADDITIVE 208.97% 1664 1664 1664 ------- -------- -------- -------- TOTAL ENGINEERING 2.464 2464 -------- 2464 SIGNAL WORK BILL PREP 900 900 900 LABOR ADDITIVE 208..97% 5287 5207 5287 SALES TAX 105 105 106 SIGNAL 1630 2627 4257 4257 TRANSP/IB/OS/RCLW CONTR 257 257 257 ENVIRONMENTAL - PERMITS 10 10 10 ------- -------- -------- -------- 'TOTAL SIGNAL 7817 2999 10816 -- ---- -- 10816 ------- -- --- - -- LABOR /MATERIAL EXPENSE 10281 2999 -------- -------- REC.OLLECTIBLE/UPRR EXPENSE 13280 0 -- - - - - -- ESTIMATED PROJECT COST 13280 THE ABOVE FIGURES ARE ESTIMATES.ONLY AND SUBJECT To FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. XHIB"IT C u n O If7 N M 3 s r _ I XHIN ` t a R. aT, tJ T gg R yy R Li 1l� �UI ?. .. T. R /ISl �rS Si � �E�ZgMN L7 •' Fii p a p � p j ti 2 O f g n � z gg o o LLI ^ / m C^ J V J LO 1 ° J z19 a 5 d a N o ~ ° a te '. J k co OS aY' 1 � LI•n o ��ti 1 CO z f h X SI ol ' 0 1 a QOY 1`1u ° G „ r V Fi K i i U. a rc a Op p�Q Oj Q 3 r1 '—V1 • rr bI�r, ow t•1 KON 'p NJ�� 11 0 X£F 4X j jQl`l� NN3 h Fka; nOV J J L 1;�1SY /IIR� f 1 5I n59l;.ey ti zrnE•.n+' Ltl 1R7 1 531b] / /15W371 Ndi•9 • tt • i 0 i O y � $ . �+ �+ RI15i13 31M]633f 205•EI A3 0 O 0 FC/OU 1]/]N 149.11 Ia+A'7`itl c� r r7 liil AVNV ltl II'J•% - loo'i" Fy,•OE•1 4 Y.91J LS•dr•r 3067.3 WIV14 155 )ll7di] lTr1S41 .i •9.9 r,13'd 1 3114 CSri9 1 1ka I Z: wl 16.11•E 13It11 � 1777 CzA SI�IbISIAfl1I 91YIE of susrn7 u n O If7 N M 3 s r _ I XHIN ` EXHIBIT D TO WAYSIDE HORN SYSTEM AGREEMENT INSURANCE REQUIREMENTS The following describes the insurance requirements that are described in Section 7C of this Agreement: A. The Public Authority must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04, or a substitute form providing equivalent coverage (the "Policy "). The Policy shall have the following particulars set forth in its Declarations or by endorsement. • The "Named Insured" is Union Pacific Railroad Company. • The "Contractor" is City of Blair, Nebraska. • The "Job Location" are the wayside horn systems located at 10 Street (DOT No. 191676H) and 16 Street (DOT No. 412807X): • The "Work" is the engineering, design, construction, installation, interconnection, operation, maintenance or repair of the wayside horn systems at the Job Location (all two crossings). • Your "designated employees" includes train crews, site maintenance employees and their supervisors at the Job Location (all two crossings). B. The Policy will provide limits of not less than $10,000,000 per occurrence and $10,000,000 in the annual aggregate. C. The Public Authority shall require its Contractor (as defined in Section 2G of this Agreement) to nonetheless maintain the insurance required pursuant to the Right of Entry Agreement marked Exhibit B and attached to this Agreement. DEC- 17806624