HomeMy WebLinkAboutResolution No. 6795 RESOLUTION NO. 6795
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY
AUTHORIZING THE MAYOR TO EXECUTE THE "EXISTING PUBLIC ROAD
CROSSING IMPROVEMENT AGREEMENT" AND THE "PIPELINE
CROSSING AGREEMENT" FOR WORK WITHIN RAILROAD RIGHT -
OF -WAY.
WHEREAS, the City Council of the City of Downey, in its meeting of June 22, 2004 the
City Council approved the plans and specifications and granted authority to advertise for bids on
the Lakewood Boulevard Improvement (LBI) Project — Phase 1B under Cash Contract No. 632-
1 B; and
WHEREAS, part of this project is to widen Lakewood Boulevard and construct an
underground reclaimed water pipeline from Fifth Street /Cecilia Street to Bellflower Boulevard,
just south of the Union Pacific Railroad tracks; and
WHEREAS, the improvements just north of Bellflower Boulevard would encroach into
the Union Pacific Railroad Company's right of way; and
WHEREAS, the City of Downey has applied for a permit to work on the UPRR's right
of way, and that UPRR has prepared the attached Agreements for execution.
THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE
AS FOLLOWS:
SECTION 1. The City Council of the City of Downey does hereby approve the attached
"Existing Public Road Crossing Improvement Agreement."
SECTION 2. The City Council of the City of Downey does hereby approve the attached
"Pipeline Crossing Agreement."
SECTION 3. The Mayor of the City of Downey is hereby authorized to execute said
Agreements, on behalf of the City of Downey.
SECTION 4. The City Clerk shall certify to the adoption of this Resolution and forward
two (2) certified copies of this Resolution to the Director of Public Works for transmittal to the
Union Pacific Railroad Company.
APPROVED AND ADOPTED this 24 day of August, 2004.
K O. CARTOZIA ayor
AT •
FO
KAT .19 L. MIDSTOKKE, City Clerk
RESOLUTION NO. 6795
PAGE TWO
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of
the City of Downey at a regular meeting held on the 24 day of August, 2004, by the following
vote, to wit:
AYES: 5 Council Members: Bayer, McCarthy, Perkins, Trejo, Mayor Cartozian
NOES: 0 Council Member: None
ABSENT: 0 Council Member: None
ABSTAIN: 0 Council Member: None
i ate.
KAY 1 ) EN L. MIDSTOKKE, City Clerk
Public Road Improvement 12/04/00
Estimated Costs UPRR Folder No.: 2246 -12
Form Approved -AVP Law UPRR Audit No. SO42432
EXISTING PUBLIC ROAD CROSSJNG
IMPROVEMENT AGREEMENT
Improvements to Existing Public Road At Grade Crossing
C ossing
For Lakewood Boulevard, DOT 748105H
Mile Post 9.29, Los Nietos Subdivision
Downey, Los Angeles County, California
THIS AGREEMENT, executed in duplicate this of da of 4i,yo�t' y 200
by and between UNION PACIFIC RAILROAD COMPANY, a Delaware e corporation
the "Railroad "), and (the) CITY OF DOWNEY, a municipal corporation o
p rp of the State of California
(hereinafter the "Political Body "), WITNESSETH:
RECITALS:
By instrument dated March 22, 1937, the parties hereto or their predecessors in interest (if any),
entered into an agreement (herein the "Basic Agreement") p ) identified as Audit No. SO42432, covering the
construction and maintenance of the Lakewood Boulevard (formerly Cerritos Avenue) at-grade at ) grade public
road crossing or near Downey, Los Angeles County, California.
The Political Body has requested the Railroad to improve the existing Lakewood ---- g Boulevard
crossing, at grade, along, over and across the Railroad's track and right of way at Mile Post
Nietos Subdivision, DOT y 9.29, Los
No. 748105H, at or near Downey, Los Angeles County, California to which
the Railroad is agreeable, but solely upon terms and conditions hereinafter set forth.
AGREEMENT:
NOW THEREFORE, in consideration of the premises and of the romises and hereto p nd conditions
hereinafter set forth, the
p o agree as follows:
1. The Railroad shall furnish all labor, material, equipment and su supervision p n for the work as
described in the Material and Force Account Work Estimates, collectively attached •
y ached hereto as Exhibit B
and hereby made a part hereof, all at the intersection of the Railroad's Los Nietos
Subdivision main track
with Lakewood Boulevard at the location heretofore described, as shown en
marked Exhibit A, hereto � generally on Railroad's print
ereto attached and hereby made a part hereof.
2. The Political Body agrees to reimburse the Railroad for one hundred erce (100%) p ntof
Railroad's actual labor and material costs associated with the work and materials described in Section 1
above. The Railroad estimates such signal and surface costs to be ONE
RED SEVENTY
THOUSAND EIGHT HUNDRED NINETY -NINE DOLLARS $170 899.0
( � 0), as set forth in Estimate
of
Material and Force Account marked Exhibit B. The Railroad, in calculating its s final actual costs for
work performed by the Railroad under this Agreement, will bear fifty percent (5O%) surface costs in th tY P of the actual
the amount of SIXTY -NINE THOUSAND THREE HUNDRED THIRTY -NINE
DOLLARS ($69,339.00), as its firm cost participation towards this Project and will
Project allow a credit for
---- such amount in its final billing sent to the Political Body.
2246-12 City of Downey, CA Articles of Agreement June Boulevard une 29, 2004
Page 1 of 3
Public Road Improvement 12/04/00 UPRR Folder No.: 2246 -
Estimated Costs UPRR Audit No. SO42432
Form Approved -AVP Law
3. During the performance of such work the Railroad will provide progressive billing to
Political Body based on Railroad's actual costs. Actual costs to the Railroad shall include customary
additives to materials, services and labor provided by the Railroad. Within 120 Days after Railroad has
completed its work, the Railroad will submit a final billing to Political Body for any balance owed.
Political Body shall pay the Railroad within thirty (30) days of its receipt of all bills submitted by the
Railroad.
4. The Railroad, at its cost, shall maintain the crossing between the track tie ends. If, in the
future, the Political Body elects to have the surfacing material between the track tie ends replaced with
paving avin or some surfacing material other than timber planking, the Railroad, at the Political Body's
expense, shall install such replacement surfacing.
5. The Political Body, at its sole cost and expense, shall provide traffic control, barricades,
and all detour signing for the crossing work, provide all labor, material and equipment to install concrete
� g
or pp
asphalt street approaches, and if required, will install advanced warning signs, and pavement markings
p
in compliance and conformance with the Manual on Uniform Traffic Control Devices.
6. If Politicai Body's contractor(s) is /are performing any work described in Section 4 above,
then the require Political Body shall uire its contractor(s) to execute the Railroad's standard and current form
q
of Contractor's Right Entry Agreement Ri ht of En A eement attached hereto as Exhibit C and hereby mad a part hereof.
Political Body acknowledges receipt acknowled recei t of a copy of the Contractor's Right of Entry Agreement and
understanding
of its terms , provisions, and requirements, and will inform its contractor(s) of the need to
gr
execute the
Agreement. Under no circumstances will the Political Body's contractor(s) be allowed onto
the Railroad's premises without first executing the Contractor's Right of Entry Agreement.
Fiber optic cable systems may be buried on the Railroad's property. Protection of the
7. F p Y
fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting
in business interruption and loss of revenue and profits. Political Body or its contractor(s) shall telephone
the Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday,
-800- 336 -9193 (also a 24 -hour number, 7 day number for emergency calls) to
except holidays) at 1
determine if fiber optic ' i
tic cable is buried anywhere on the Railroad's premises to be used by the Political
al
Body or its contractor(s). If it is, Political Body or its contactor(s) will telephone the telecommunications
company(ies) involved, arrange e for a cable locator, and make arrangements for relocation or other
protection of the fiber optic cable prior to beginning any work on the Railroad's premises.
8. The Political al Bod for itself and for its successors and assigns, hereby waives any right
Railroad, as an adjacent acent
of assessment against the � property owner, for any and all improvements made p
under this agreement.
Covenants herein shall inure to or bind each party's successors
9. Coven and assigns; provided, no
right of the Political Bo d y involuntarily, be transferred or assigned, either voluntarily or nvoluntarily, except by
express written agreement acceptable to the Railroad.
Body shall, when returning this agreement to the Railroad (signed), cause
10. The Political Boy � g
same to be a p by ccom anied b such Order, Resolution, or Ordinance of the governing body
of the Political
as by law prescribed, and duly certified, evidencing the authority of the
Body, passed and approved y p
person executing agreement this a eement on behalf of the Political Body with the power so to do, and which also
will certify that funds have been appropriated ro riated and are available for the payment of any sums herein
agreed to be paid by Political Body.
2246-12 C i ty of Downey, CA Articles of Agreement June 29, 2004
Lakewood Boulevard Page 2 of 3
Public Road Improvement 12/04/00 UPRR Folder No.: 2246 -12
Estimated Costs UPRR Audit No. SO42432
Form Approved -AVP Law
11. Upon execution and delivery of this Agreement, the Political Body shall pay to the
Railroad an administrative handling charge of ONE THOUSAND FIVE HUNDRED DOLLARS
($1,500.00).
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date
and year first hereinabove written.
Nik
'I•'I R . ; / 0 • � COMPANY
Aft
UNION PA FIC C
By .® ger7 „ irector , • . acts
ATTEST: ITY OF DOVVNEY
_ By
,6
City Clerk Kirk O. Cartoz �=
Kathleen L. Midstokke
Title: Mayor
Pursuant to Resolution/Order 6795
dated 08/24/04
hereto attached. APPROVED AS '10 FORM:
By 41 .41.1 ' t_ _ -
Charles Vose, i y Att•rney
2246 -12 City of Downey, CA Articles of Agreement June 29, 2004
Lakewood Boulevard Page 3 of 3
r
EXHIBIT A
To Existing Public Road Crossing Improvement
Agreement
Location &Detaii.Prints
(See Section 1)
N
LOCATION OF AN EXISTING AT.GRADE
�w—• , = `E PUBLIC ROAD CROSSING
s w RECONSTRUCTION & WIDENING PROJECT
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RAILROAD WORK TO BE PERFORMED: EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY
1. Relocate four existing flashing signals & gates; and other signal
facility work. LOS NIETOS SUBDIVISION
2. Install 112 -feet of concrete crossing surface; 240 -feet of rail; 80- MILE POST 9.29
cross ties; 3- carloads of ballast; and other track and surface work. GPS: N 33°56.050', W 118° 07.478'
DOWNEY, LOS ANGELES CO., CA.
Illustrative print showing location of an existing at -grade public road
crossing reconstruction and widening project with the
CITY OF DOWNEY.
Folder No. 2246 - 12 Date: June 29, 2004
WARNING
IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN
ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC
CABLE. PHONE: 1 -(800) 336 -9193
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EXHIBIT B
To Existing Public Road Crossing Improvement
Agreement
Estimates of Material and Force Account W ork
(See Section 1) •
LA . 4 M
DATE: 2004 -04 -01
ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK
BY THE
UNION PACIFIC RAILROAD
DESCRIPTION OF WORK:
RELOCATE 4 EXISTING FL SIGNALS, & GATES,
AT SR -19 IN DOWNEY, CA. M.P. 9.18 ON THE LOS NIETOS SUB.
SIGNAL PROJECT MANAGER: RUDY BURDEN 935 -7680
RAILROAD TO PERFORM ALL WORK / COST DISTRIBUTED AS FOLLOWS:
SIGNAL - CITY OF DOWNEY 100% RECOLLECTIBLE
PID: 49172 AWO: 46390 MP,SUBDIV: 9.18, LOSNIETOS
SERVICE UNIT: 20 CITY: DOWNEY STATE: CA
DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL
ENGINEERING WORK
ENGINEERING 774 774 774
LABOR ADDITIVE 157% 4523 4523 4523
SIG -HWY XNG 2107 2107 2107
TOTAL ENGINEERING 7404 7404 7404
SIGNAL WORK
MATL STORE EXPENSE 103 103 103
SIGNAL 3447 3447 3447
TOTAL SIGNAL . 3550 3550 3550
TRACK & SURFACE WORK
BILL PREP 900 900 900
CONTRACT 344 344 344
EARTH FILL /ROCK 800 800 • 800
FOREIGN LINE FREIGHT 69 69 69
LABOR ADDITIVE 183.05% 43855 43855 43855
PERSONAL EXPENSES 20250 20250 20250
SALES TAX 249 249 249
SIG -HWY XNG 23958 23958 23958
TRANSPORTATION CHARGES 200 200 200
TOTAL TRACK & SURFACE 68713 21912 90625 90625
LABOR /MATERIAL EXPENSE 76117 25462
RECOLLECTIBLE /UPRR EXPENSE 101579 0
ESTIMATED PROJECT COST 101579
EXISTING REUSEABLE MATERIAL CREDIT 0
SALVAGE NONUSEABLE MATERIAL CREDIT 0
RECOLLECTIBLE LESS CREDITS
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.
DATE: 2004 -02 -17
ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK
BY THE
UNION PACIFIC RAILROAD
:SCRIPTION OF WORK:
►CATION: DOWNEY,CA/ STATE ROUTE 19/ LOS NIETOS SUB / MP 9.18
'RR TO INSTALL 112 FEET OF CONCRETE ROAD CROSSING.
THIS PROJECT WILL BE 50 -50 SPLIT BETWEEN UP & CITY OF DOWNEY WITH NO .
FEDERAL FUND.
PID: 49171 AWO; MP,SUBDIV: 9.18, LOSNIETOS
SERVICE UNIT: 20 CITY: DOWNEY STATE: CA
DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL
ENGINEERING WORK
ENGINEERING 1500 750 750 1500
LABOR ADDITIVE 152% 2280 1140 1140 2280
TOTAL ENGINEERING 3780 1890 1890 3780
SIGNAL WORK
LABOR ADDITIVE 152% 1370 685 685 1370
SIGNAL 887 443 444 887
TOTAL SIGNAL 2257 1128 1129 2257
TRACK & SURFACE WORK
BALAST 3.00 CL 527 1786 1156 1157 2313
BILL PREP 900 450 450 900
DISPOSAL FEE - 2000 1000 1000 2000
EQUIPMENT RENTAL 10000 5000 5000 10000
FIELD WELD 64 32 32 64
FOREIGN FRIGHT 300 150 150 300
HOMELINE FRIGHT 1500 750 750 1500
LABOR ADDITIVE 152% 24558 12277 12281 24558
Mtn STORE EXPENSE 599 298 301 599
0 1584 1724 1654 1654 3308
R 240.00 LF 1734 2774 2253 2255 4508
R NG 112.00 TF 7689 15215 11451 11453 22904
ROADWAY APPROACH WORK 35000 17500 17500 35000
SALES TAX 1101 549 552 1101
SAW CUT STREET APPROACH 2000 1000 1000 2000
TRK-SURF,LIN 2533 1266 1267 2533
WELD 2072 265 1168 1169 2337
XTIE 80.00 EA 10869 5828 8348 8349 16697
TOTAL TRACK & SURFACE 52530 80092 66302 66320 132622
- - - - - -- -- - - - - --
LABOR/MAT ERIAL EXPENSE 58567 80092 -- - --- - - --------
RECOLLECTIBLE/UPRR EXPENSE 69320 69339 - - ------
ESTIMATED PROJECT COST 138659
EXISTING REUSEABLE MATERIAL CREDIT 0
SALVAGE NONUSEABLE MATERIAL CREDIT 0
RECOLLECTIBLE LESS CREDITS
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,
uI010 WTII RTEI FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE.
UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE.
E XHIBIT C
To Existing .Public Road Crossing Improvement
Agreement
Contractor's Ri of Entry Agreement
(See Section 6)
June 29, 2004
Folder No. 2246 -12
To the Contractor:
Before Union Pacific Railroad can permit you to perform work on its property for the reconstruction of the existing
Lakewood Boulevard at -grade public road crossing, it will be necessary to complete two originals of the enclosed Right of
Entry Agreement as follows:
1. Fill in the complete legal name of the contractor in the space provided on Page 1 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 5, 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 Agreement. 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 as
required in Exhibit B -1, in the attached, self - addressed envelope.
5. Check made payable to the Union Pacific Railroad Company in the amount of $500.00. If you require formal
billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Services' new policy
regarding their Form 1099, I certify that 13- 6400825 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 Right of Entry Agreement and insurance certificate, one fully executed counterpart of the
agreement will be returned to you. In no event should you begin work until you have received your counterpart of the fully
executed agreement.
Under Exhibit C of the enclosed Contractor's Right of Entry, you are required to procure Railroad Protective
Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage
available to you. If you decide that acquiring this coverage from the Railroad is of benefit to you, please contact Ms. Nancy
Savage at (402) 271-2215.
If you have any questions concerning the agreement, please contact me. Have a safe day!
Sincerely,
PAUL 6. FARRELL
Senior Manager Contracts
Phone: (402) 997 -3620
e -mail: pgfarrell @up.com
Contractor's Right of Entry - 07/30/01 UPRR Folder No.: 2246 -
Form Approved - AVP Law UPRR Audit No. SO42432
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
200 ,
by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (the "Railroad ");
and
(Name of Contractor)
a corporation (the "Contractor ").
(State of Incorporation)
RECITALS:
Contractor has been hired by (the) City of Downey to perform work relating to the reconstruction of the
existing Lakewood Boulevard at -grade public road crossing (the "work "), with all or a portion of such work to be
performed on property of Railroad in the vicinity of Mile Post 9.29 on the Los Nietos Subdivision in Downey, Los
Angeles County, California, which work is the subject of a contract dated between
Railroad and (the) City of Downey. (Date of CAM Agreement)
Contractor has requested Railroad to permit it to perform the work on the portion of Railroad's property
shown on the print marked Exhibit A, attached hereto and hereby made a part hereof, and Railroad is agreeable
thereto, subject to the following terms and conditions.
AGREEMENT:
NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows:
ARTICLE 1 - DEFINITION OF CONTRACTOR.
For purposes of this agreement, all references in this agreement to the Contractor shall include the
Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their
authority.
ARTICLE 2 - RIGHT GRANTED; PURPOSE.
The Railroad hereby grants to the 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 4.
ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS A, B, C AND D.
The terms and conditions contained in Exhibit A, 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. The Contractor shall bear any and all costs and expenses associated with any work performed by the
Contractor, or any costs or expenses incurred by the Railroad relating to this agreement.
2246 -12 City of Downey, CA Articles of Agreement June 29, 2004
Lakewood Boulevard Page 1 of 3
Contractor's Right of Entry - 07/30/01 UPRR Folder No.: 2246 -12
Form Approved - AVP Law UPRR Audit No. SO42432
B. The Contractor shall coordinate all of its work with the following Railroad representative or his or her duly
authorized representative (the "Railroad Representative "):
Ron Santana
Manager Track Maintenance
Union Pacific Railroad Company
200 South Adams
Anaheim CA 92802
Pager: (909) 816 -0631
Cell: (909) 961 -1420
C. The Contractor, at its own expense, shall adequately police and supervise all work to be performed by the
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 the Contractor for safe conduct and adequate policing and supervision of the Contractor's work
shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications involving the work,
or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad
Representative, or by compliance by the Contractor with any requests or recommendations made by the Railroad
Representative.
ARTICLE 5 - 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
(Expiration Date)
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 property.
B. This agreement may be terminated by either party on ten (10) days written notice to the other party.
ARTICLE 6 - CERTIFICATE OF INSURANCE.
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 directed to:
Union Pacific Railroad Company
1400 Douglas Street STOP 1690
Omaha NE 68179 -1690
Attn.: Senior Manager Contracts
Folder No.: 2246 -12
ARTICLE 7 - DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE.
At the request of Railroad, Contractor shall remove from Railroad property any employee of Contractor or
any subcontractor 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 property.
ARTICLE 8 - ADMINISTRATIVE FEE.
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.
2246 -12 City of Downey, CA Articles of Agreement June 29, 2004
Lakewood Boulevard Page 2 of 3
Contractor's Right of Entry - 07/30/01 UPRR Folder No.: 2246 -
Form Approved - AVP Law UPRR Audit No. SO42432
•
ARTICLE 9 - CROSSINGS.
No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's
trackage shall be installed or used by Contractor without the prior written permission of Railroad.
ARTICLE 10 - EXPLOSIVES.
Explosives or other highly flammable substances shall not be stored on Railroad property without the prior
written approval of the 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:
Senior Manager Contracts
WITNESS:
(Name of Contractor)
By:
Title:
t
2246 -12 City of Downey, CA Articles of Agreement June 29, 2004
Lakewood Boulevard Page 3 of 3
N
LOCATION OF AN EXISTING AT- GRADE
A, `"- �" + -E PUBLIC ROAD CROSSING
I
s RECONSTRUCTION & WIDENING PROJECT
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RAILROAD WORK TO BE PERFORMED: EXHIBIT "A
UNION PACIFIC RAILROAD COMPANY
1. Relocate four existing flashing signals & gates; and other signal
facility work. LOS NIETOS SUBDIVISION
2. Install 112 -feet of concrete cross surface; 240 -feet of ra il; 80- MILE POST 9.29
cross ties; 3- carloads of ballast; and other track and surface work. GPS: N 33° 56.050', W 118° 07.478'
DOWNEY, LOS ANGELES CO., CA.
Illustrative print showing location of an existing at -grade public road
crossing reconstruction and widening project with the
CITY OF DOWNEY.
Folder No. 2246 - 12 Date: June 29, 2004
WARNING
IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN
ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC
CABLE. PHONE: 14800) 336 -9193
Contractor's ROE ExB 7/30/01
Form Approved, AVP -Law
EXHIBIT B
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
TERMS AND CONDITIONS
Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING.
A. The 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 the 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 the Contractor whether a flagman need be present and whether the Contractor need implement any
special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad,
such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other
services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly
pay to Railroad all charges connected with such services within thirty (30) days after presentation of a bill.
B. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of
men 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 on the day of execution of this agreement. One and one -half times the current hourly rate is paid for
overtime, Saturdays and Sundays; 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 the 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, the Contractor shall pay on the basis of the new rates and charges.
C. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is furnished,
unless he 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 said flagman following his assignment to work on the project for which the Railroad
is required to pay the flagman and which could not reasonably be avoided by the Railroad by assignment of such flagman to
other work , even though the Contractor may not be working during such time. When it becomes necessary for the Railroad to
bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor
must provide the 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, the 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 the Railroad if flagging service are needed again after such five day cessation notice has
been given 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 the 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 the Railroad without liability to the 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
the Railroad's property, and others) and the right of the 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. The 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 the Railroad, including without limitation, the operations of the Railroad's lessees,
licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or
Contractor's ROE ExB 7/30/01 Page 1 of 4 Exhibit B
Form Approved, AVP -Law To Contractor's Right of Entry Agreement
Contractor's ROE ExB 7/30/01
Form Approved, AVP -Law
errs ,tt
p ed to be done by the 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 the Railroad's nearest track,
--end there shall be no vehicular crossings of Railroads tracks except at existing open public crossings.
3. Operations of the Railroad and work performed by the Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by the Contractor, and Contractor y
Y ractor agrees that the
Railroad shall have no liability to Contractor, its subcontractors or any other person or entity for any such delays. The
Contractor shall coordinate its activities with those of the Railroad and third parties so as to avoid y
p d interference with railroad
operations. The safe operation of the Railroad takes precedence over any work to be performed by the Contractor.
Section 4. LIENS.
The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by
Contractor. The 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 the Railroad for any such work performed. The Contractor shall indemnify and hold
harmless the 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 the Contractor fails to promptly
cause any lien to be released of record, the 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 the Railroad's property. Protection of the fiber optic cable systems
is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue
and profits. Contractor shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday
through Friday, except holidays) at 1- 800 - 336 -9193 (also a 24 -hour, 7 -day number for emergency calls) to determine if fiber
optic cable is buried anywhere on the Railroad's premises to be used by the 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. The Contractor shall not commence any work until all such protection or relocation (if
„applicable) has been accomplished.
In addition to other indemnity provisions in this Agreement, the Contractor shall indemnify, defend and hold the Railroad
armless 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 Contractor, its contractor, 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 usin g
Railroad's property or a customer or user of services of the fiber optic property.
tic cable on Railroad's p y
Section 6. PERMITS - COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this agreement, the 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 the Contractor. The Contractor shall be responsible for initiating, maintaining and supervising all safety,
Y
operations and programs in connection with the work. The Contractor shall at a minimum comply with the Railroad's safety
standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by the Railroad's own
forces. As a part of the Contractor's safety responsibilities, the Contractor shall notify the Railroad if the Contractor determines
that any of the Railroad's safety standards are contrary to good safety practices. The Contractor shall furnish copies of Exhibit
D to each of its employees before they enter on the job site.
B. Without limitation of the provisions of paragraph A above, the Contractor shall keep the job site free from safety s and
Y,
:alth hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the p e fob.
The 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. The Contractor shall promptly notify the Railroad of any U.S. Occupational Safety
and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees while they
Contractor's ROE ExB 7/30/01 Page 2 of 4 Exhibit B
Form Approved, AVP -Law To Contractor's Right of Entry Agreement
Contractor's ROE ExB 7/30/01
Form Approved, AVP -Law
are% the job site or any other property of the Railroad, and to be certain they do not use, '
y , 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 the Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety plan
for conducting the work (the "Safety Plan "). Railroad shall have the right, but not the obligation, to require the 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, the Contractor shall indemnify, defend and hold harmless the
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,
the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i)
any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (iii) any
breach of this agreement by the 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. The Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought
by the Contractor's own employees. The Contractor waives any immunity it may have under worker's compensation or industrial
insurance acts to indemnify the 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 the Contractor in any attempt to assert liability
against the Railroad.
E. The provisions of this Section 8 shall survive the completion of any work performed by the 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 the Contractor may have to any Indemnified Party by statute or under common law.
Section 9. RESTORATION OF PROPERTY.
In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or
disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the
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. The
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 the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept,
observed and performed by the Contractor shall in no way impair the right of the 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 the Contractor and the
Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between
the Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether
written or oral, with respect to the work to be performed by the Contractor.
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Section 12. ASSIGNMENT - SUBCONTRACTING.
The Contractor shall not assign or subcontract this agreement, or any interest therein, without the written consent of the
Railroad. The Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all
Contractor's ROE ExB 7/30/01 Page 3 of 4 Exhibit B
Form Approved, AVP -Law To Contractor's Right of Entry Agreement
Contractor's ROE ExB 7/30/01
Form Approved, AVP -Law
sub ntractors to maintain the insurance coverage required to be maintained by the Contractor as provided in this agreement,
and to indemnify the Contractor and the Railroad to the same extent as the Railroad is indemnified by y the Contractor under this
Contractor's ROE ExB 7/30/01 Page 4 of 4 Exhibit B
Form Approved, AVP -Law To Contractor's Right of Entry Agreement
9 ry 9
Contractor's ROE ExC 07/30/01
Form Approved - AVP Law
EXHIBIT C
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
INSURANCE PROVISIONS
Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement
coverage:
g the following insurance
A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability '
with a single limit
of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000. Coverage e age must be
purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following:
g
• Bodily injury including death and personal injury
• Property damage
• Fire legal liability (Not Tess than the replacement value of the portion of the premises occupied)
Products and completed operations
)
erations
• p p
The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance:
• "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability p oyers Liability Act or a
Union Pacific Wage Continuation Program or similar programs are deemed not to be either P a Y ments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or
similar law."
• The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but
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not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and
underground hazard shall be removed.
• Coverage for Contractor's (and Railroad's) employees shall not be excluded
• Waiver of subrogation
B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at g a least
$5,000,000 per occurrence or claim, including but not limited to coverage for the following:
Bodily injury and property damage
Any and all motor vehicles including owned, hired and non -owned
The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance:
• "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a
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Union Pacific Wage Continuation Program or similar programs are deemed not to be either p a Y ments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or
similar law.'
• The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but
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not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and
underground hazard shall be removed.
• Motor Carrier Act Endorsement- Hazardous materials clean up (MCS -90) if required by law.
C. Workers Compensation and Employers Liability insurance including but not 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 Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state
workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self- insured,
evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage
g
Contractor's ROE ExC 07/30/01 Page 1 of 2 Exhibit C
Form Approved AVP Law To Contractor's Right of Entry Agreement
9 rY 9
Contractor's ROE ExC 07/30/01
Form Approved - AVP Law
shall 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 shall also contain the following endorsement which shall be indicated on the certificate of insurance:
• Alternate Employer Endorsement
D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow
form" and afford no less coverage than the primary policy.
E. Railroad Protective Liability insurance naming only the Railroad as the insured with a combined single limit of
$2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical
Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be
submitted to the Railroad until the original policy is forwarded to the Railroad.
Other Requirements
F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance.
G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right
of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of
subrogation against Railroad for Toss of its owned or leased property or property under its care, custody and control.
Contractor's insurance shall be primary with respect to any insurance carried by Railroad. All waivers of subrogation
shall be indicated on the certificate of insurance.
H. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name
Railroad as an additional insured. Severability of interest and naming Railroad as additional insured shall be
indicated on the certificate of insurance.
I. Prior to commencing the Work, Contractor shall furnish to Railroad original certificate(s) of insurance evidencing the
required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the
insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration.
Upon request from Railroad, a certified duplicate original of any required policy shall be furnished.
J. Any insurance policy shall 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 service
is to be provided.
K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance
agent(s) /broker(s), who have been instructed by Contractor to procure the insurance coverage required by this
Agreement and acknowledges that Contractor's insurance coverage will be primary.
L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall 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 shall not be limited by the amount of the required insurance coverage.
Contractor's ROE ExC 07/30/01 Page 2 of 2 Exhibit C
Form Approved - AVP Law To Contractor's Right of Entry Agreement
Contractor's ROE ExD 07/30/01
Form Approved - AVP Law
(iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed.
Contractors must take special note of limits of track authority, which tracks may or may not be fouled, and
clearing the track. The Contractors 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 the Contractor to ensure that all equipment is in a safe condition to operate. If, in the
opinion of the Railroad Representative, any of the Contractor's equipment is unsafe for use, the Contractor
shall remove such equipment from the Railroad's property. In addition, the 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 lockoutltagout 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. The Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and
state regulations.
B. The 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 the 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:
(1) Always be on the alert for moving equipment. Employees must always expect movement on any track,
at any time, in either direction.
(ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components.
(iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at
least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment
of the opening is less than one car length (50 feet).
(iv) Avoid walking or standing on a track unless so authorized by the employee in charge.
(v) Before stepping over or crossing tracks, look in both directions first.
(vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties
and only when track and equipment have been protected against movement.
E. All employees must comply with all federal and state regulations concerning workplace safety.
Contractor's ROE ExD 07/30/01 Page 2 of 2 Exhibit D
Form Approved - AVP Law To Contractor's Right of Entry Agreement
Contractor's ROE ExD 07/30/01
Form Approved - AVP Law
3
EXHIBIT D
TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
MINIMUM SAFETY REQUIREMENTS
The term "employees" as used herein refer to all employees of the Contractor a
agent of the Contractor. swell as all employees of any subcontractor or
I• Clothing
A. All employees of the Contractor will be suitably dressed to perform their p heir duties safely and in a manner that will
not interfere with their vision, hearing, or free use of their hands or feet.
Specifically, the Contractor's employees must wear:
(i) Waist - length shirts with sleeves.
(ii) Trousers that cover the entire leg. If flare - legged trousers are wor
to prevent catching. n, the trouser bottoms must be tied
(iii) Footwear that covers their ankles and has a defined heel. Employees
to wear safety -toed footwear that. conforms working on bridges are required
to the American National Standards Institute (ANSI) and
FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), canvas-type soles or heels that are higher )� ,canvas type shoes, or other shoes that have
igher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finer rin
or working on machinery. g gs, or other loose jewelry while operating
Personal Protective Equipment
The Contractor shall require its employees to wear personal rotective equipment
the Railroad P as specified by Railroad rules,
regulations, or recommended or requested by oad Representative.
0) Hard hat that meets the American National Standard (ANSI) Z89.1 — '
affixed with the contractor' ( ) latest revision. Hard hats should be
s or subcontractor'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 situatio
such as welding, grinding, etc. P J ns
(iii) Hearing protection, which affords enough attenuation to ive protection in the g P on from noise levels that will be occurring
on the job site. Hearing protection, e 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
muffs) ear protection -- plugs and
(iv) Other types of personal protective equipment, such as respirators, P ors, fall protection equipment, and face shields,
must be worn as recommended or requested by the Railroad Representative.
III. On Track Safety
The Contractor is responsible for compliance with the Federal Railroad Administration'
regulations — 49CFR214, Subpart C and Railroad's On -Track Safety s Roadway Worker Protection
fety rules. Under 49CFR214, Subpart C, railroad
contractors are responsible for the training of their employees on such regulations. In addition
contained in Roadway Worker Protection regulations, all employees st: must:
to the instructions
( 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.
p entative.
Contractor's ROE ExD 07/30/01 Page 1 of 2
Form Approved AVP Law g Exhibit D
To Contractor's Right of Entry Agreement
_■
1
,
23aS52
AUDIT
PL X 940206
Form Approved, AVP -Law
Folder No. 2235 -12
PIPELINE CROSSING
AGREEMENT
Mile Post: 9.18, Los Nietos Subdivision
Location: Downey, Los Angeles County, California
THIS AGREEMENT is made and entered into as of March 03, 2004, by and between UNION
PACIFIC RAILROAD COMPANY, a Delaware corporation, (hereinafter the "Licensor ") and CITY OF
DOWNEY, a California municipal corporation to be addressed at 1111 Brookshire Ave, P 0 Box 7016,
Downey, California 90241 (hereinafter the "Licensee ").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS
FOLLOWS:
Section 1. LICENSE FEE
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one -time License Fee
of Seven Thousand Nine Hundred Thirty Dollars ($7930).
Section 2. LICENSOR GRANTS RIGHT.
In consideration of the License Fee to be paid by the Licensee and in further 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 operate only a
12.
underground inch reclaimed water pipeline crossing (hereinafter the "Pipeline ")
in the location shown and in conformity with the dimensions and specifications indicated on the attached
print dated March 02, 2004, marked Exhibit A. Under no circumstances shall Licensee modify the use of
the Pipeline for a purpose other than the above - mentioned, and said Pipeline shall not be used for any
other use, whether such use is currently technologically possible, or whether such use may come into
existence during the life of this Agreement.
Section 3. CONSTRUCTION, MAINTENANCE AND OPERATION.
The grant of right herein made to the Licensee is subject to each and all of the terms, provisions,
conditions, limitations and covenants set forth herein and in Exhibit B, hereto attached.
Section 4. IF WORK IS TO BE PERFORMED BY CONTRACTOR.
If a contractor is to do any of the work performed on the Pipeline (including initial construction
and subsequent relocation or substantial maintenance and repair work), then the Licensee shall require its
contractor to execute the Railroad's form 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.
Section 5. INSURANCE
A. The Licensee, at its expense, shall obtain the insurance described in Exhibit B -1, hereto
attached. The Licensee will also provide to the Licensor a Certificate of Insurance, identifying Folder
No. 2235 -12, 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 'Pipeline' located on Railroad right -of -way at Mile Post 9.18, on the Los Nietos
Subdivision, at or near DOWNEY, Los Angeles County, California.
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 B -1 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. 2235 -12 ----
Union Pacific Railroad Company
Real Estate Department
1800 Farnam Street
Omaha, NE 68102
Section 6. TERM.
This Agreement shall take effect as of the date first herein written and shall continue in full force
and effect until terminated as herein provided.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF DO NEY
B le" r- By:
Manager - Contracts Title: Kirk O. Car, r
ozia , Mayor
ArrEST : By (41,44/1/4#0
Kathleen L. Midstokke, City Clerk
APPROVED AS TO FORM: By: 1 !� _ - r....._..
ies Vose, .ty Attorney
PLACE ARROW INDICATING NORTH FORM DR- 0404 -6
DIRECTION RELATIVE TO CROSSING 0 � � $!' REV. -
5 15 -
98
v ENCASEi � NONFLAM wvvw. uprr.com
�� PIPELINE C � '; OSSING
C 4. �
v�` NOT E: ALL AVAILABLE DIMENSIONS MUST BE
4"‘.i-' NO SCALE F IL LED I N TO PROCESS THIS APPLICATION.
ICATION.
A.
0
B
....74- Q - - • - - f ME/OS so V tH'LRR. s R/W
P+rwi y wirle�+osf yqS ■ ■
aC�vt�- ier7hrGwO "r�r„ N FT. FT. f �bvSer Ye `716.
L tJGG. • i�- FT.
f1�G� s - (SEE NOTE 3 El 5) (SEE NO E 3 5) N.
-b oh Vw.� p S
td FT
2 ....... •
TO S5tAL• 6 `e cr w • LA 10 • ' " v~i /�►
(NEAREST R. R. TOWN) ` �� -� (ANGLE OF CROSSING) j . TO No rt,t)4'll�C
MA 1 N TRACK -� (NEAREST R. R. TOWN)
h t� P ., of C L 44 keJ0Oc. t3 1 1GL.
,� (DESCRIBE FIXED OBJECT D
`�v v (SEE NOTE 6) (SEE NOTE 5)
vj , (DISTANCE ALONG TRACK FROM SECTION LINE CROSSING) SCE FT.
FT.
(NOTE: THIS DIMENSION REQUIRED IN ALL CASES.
— AT LOCATIONS NOT USING SECTIONS, DISTANCE
TO A LEGAL SURVEY LINE 15 REWIRED)
RR' S R/W — — —
S17 F T. >1 b FT. >'• _ .mod
I
r
MIN. DISr
i G ROUND ¢ STEEL CASING WALL
' (sea Note 2) ' SURFACE THICKNESS CHART
MINIM DIAME O
{ SUBGRADE TH 1 CKNESS CAS I N C PIPE
RoAOeEO + . 2500" 1 2" OR LESS
OVER 18 " -22"
i el F T. . 31 2 5 * 5 ! 6" O VER 1 2 1 8'°
.3
750 1
(4.5 FT MIN.) . 4375" 7/ 16" OVER .22"- 28"
° L T. (2o FT. MAX, y 3► FT. . 5000" 1 /2" 0 "
3 FT. NI ) .5625
SEAL CASINO " 9/ 16" OVER 34 VER 34 34
"- 42"
SEAL CASING CASING PIP (See Note 4)
�. _, . 6250" 5/8" OVER 42 "- 48"
I �-- 1 OVER 48" MUST BE
_ Jr CARRIER PIPE \ APPROVED BY R. R. CO.
Q r r
NOTE: THIS CHART IS ONLY
FOR SMOOTH STEEL CASING
®� PIPES WITH MINIMUM YIELD
> it ' STRENGTH OF 35, 000 PSI.
2 0 15 FT. —
5 FT.
4 3? FT. ri 14 SS FT. r FORMULA TO F I CURE CASING
76 FT. LENGTH WITH ANGLE OF
, CROSSING OTHER THAN 90°
' 76 FT.,
NOTES : (CASING LENGTH WHEN MEASURED ALONG PIPELINE.) > B 4MIN. 1) ALL HORZONTAL DISTANCES TO BE MEASURED AT RIGHT ANGLES FROM % OF TRACK. T. 2) CASINO TO EXTEN BEYOND THE 1 OF TRACK AT RGHT ANGLES THE GREATER OF 20 • 20 FT., OR 30 F, SIN AND BEYOND LIMIT OF RA 1 LROAD RIGHT - OF -WAY 1 F NCESSARY TO PROVIDE PROPER LENGTH OUTS 1 DE OF TRACK. 3) MIN 1 MUM OF 50' FROM THE END OF ANY RAILROAD BRIDGE, 4. OF ANY CULVERT, OR FROM ANY SWITCHING ARA. ►'L D I S T.
4) SIGNAL REPRESENTATIVE MUST BE PRESENT DURING INSTALLATION IF RAILROAD SIGNALS ARE IN THE VICINITY OF CROSSING. (NOTE 2)
5) ALLOWABLE FIXED OBJECTS INCLUDE: BACKWALLS OF BRIDGES; 4 OF ROAD CROSSINGS 8 OVERHEAD VIADUCTS (GIVE ROAD NAME), OR CULVERTS.
6) CASING AND CARRIER PIPE MUST BE PLACED A MINIMUM OF 2 FEET BELOW THE EXISTING FIBER OPTIC CABLE. ANY EXCAVATION REOUIRED WITHIN
5 FEET OF THE EXISTING FIBER OPTIC CABLE MUST BE HAND DUG.
A) IS PIPELINE CROSSING WITHIN DEDICATE, STREET ? $E..YES;_NO;
8) I F YES, NAME OF STREET .;.`� • O' HIV - 'A I. L _mss EXHIBIT "A"
D) D I S T R I B U T I O N LINE OR TRANSM SS I ON LINE k 't. a (FOR RAILROAD USE ONLY)
CARRIER PIPE UNION PACIFIC RAIL ROAD CO.
tR COMMODITY TO BE CONVEY R.SeA PPL 4 uAte -ir //t 011
OPERATING PRES UR PSI /
WALL THICKNESS ;DIAMETER * DMATERJAL P Los Nis
1 E) CASING PIPE : �' q y' 3 7' 7 /I(,' ( sueolvlsloNl
WALL THICKNESS �'' $� DIAMETER Zy • MATERIAL 51 � • M• P �' E. S. 3 9 3 i 61 - -
NOTE :CASING MUST HAVE 2" CLEARANCE BETWEEN GREATES ENCASED P ` t:
OUTSIDE DIAMETER OF CARRIER PIPE AND INTERIOR DIAMETER OF �` ' G CROSSING AT
CASING PIPE. WHEN FURNISHING DIMENSIONS, GIVE OUTSIDE OF DovJL/ L. s 04,41 ( S A
CARRIER PIPE AND INSIDE OF CASING PIPE. f NEAREST CITY, f COUNTY) f STATE,
F) METHOD OF INSTALLING CASING PIPE UNDER TRACK(S): .(� Ot.k,J X{ DRY BORE AND JACK (WET BORE NOT PERMITTED) ' �`� o vie
TUNNEL ; OTHER t bPPL[CANTI
G) WILL CONSTRUCTION BE BY AN OUTSIDE CONTRACTOR? )( YES; NO; RR FILE NO. 1-1 R DATE 3--1.-1°1
1) DISTANCE FROM CENTER LINE OF TRACK TO NEAR FACE OF BOR I q AND w A R N I N G
JACKING PITS WHEN MEASURED AT RIGHT ANGLES TO TRACK :
I) APPLICANT HAS CONTACTED 1-800-336-9193, (30' MIN.) 1N ALL OCCASIONS, U. P. COMMUNICATIONS
U. P. COMMUN 1 AT I ON DEPARTMENT, AND HAS DETERMINED FIBER DEPARTMENT MUST BE CONTACTED IN ADVANCE
OPTIC CABLE DOES ; DOES NOT ; EX I T I N VICINITY OF OF ANY WORK TO DETERMINE EXISTENCE AND
WORK TO BE ERFORMED TICKET NO. D O1O(,O�S LOCATION OF FIBER OPTIC CABLE.
PHONE : 1-800-336-9193
1
PL X 9801'12
Form Approved, AVP -Law
EXHIBIT B
Section 1. 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 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 clone 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 Licensor'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.
•
Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION.
(a) The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and /or reconstructed by the
Licensee in strict conformity with Union Pacific Railroad Co. Common Standard Specification 1029 adopted November 1949, and
all amendments thereof and supplements thereto, which . by this reference is hereby made a part hereof, except as may be modified
and approved by the Licensor's Vice President - Engineering Services. In the event such Specification conflicts in any respect with
the requirements of any federal, state or municipal law or regulation, such requirements shall govern on all points of conflict, but
in all other respects the Specification shall apply.
(b) All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal,
modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor.
(c) Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification
relocation, reconstruction or removal of the Pipeline 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 Pipeline, and, in he 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.
(d) The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the
adjacent surface of the ground.
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 Pipeline.
All such work shall be prosecuted diligently to completion.
Section 4. LICENSEE TO BEAR 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 Pipeline, including any and all
expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise.
pix.exb Page 1 of 4 Exhibit B
PL ;080112
Forni Approved, AVP -Law
Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE.
(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 the Pipeline, or
move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever, in the furtherance of its
needs and requirements, the Licensor shall find such action or desirable.
(b) All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in
the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified ,
changed or relocated within the contemplation of this section.
P
Section 6. NO INTERI WITH LICENSOR'S OPERATION.
The Pipeline 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 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.
Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
(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,
all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been
° 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 or caused in any way by
_,icensee's failure to comply with the provisions of this paragraph.
(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)
caused by the negligence of the Licensee, its contractor, agents and /or employees, resulting in (1) any damage to or destruction
of any telecommunications system on Licensor'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 Licensor's property, except if such costs,
liability or expenses are caused solely by the direct active negligence of the Licensor. Licensee further agrees that it 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 Pipeline, 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 Pipeline, 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 Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or` on
count of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the
:ensee 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
pfx.exb Page 2 of 4 Exhibit B
PL X 98O1'12
Form Approved, AVP -Law
with the entire value of such property.
Section 9. RESTORATION OF LICENSOR'S PROPERTY.
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 o;:her property of the Licensor in connection with the construction, maintenance, repair, renewal, modification,
reconstruction, relocation or removal of the Pipeline, 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 inden 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.
Section 10. INDEMNITY.
(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, agems, and employees, as well as any other person); and /or (b) damage to or loss or destruction of property whatsoever
(including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care
or custody).
(b) As a major inducement and in consideration of the license and permission herein granted, the Licensee agrees to .
indemnify and hold harmless the Licensor from any Loss which is due to or arises from:
1. The prosecution of any work contemplated by this Agreement including the installation, construction
maintenance, repair, renewal, modification, reconstruction, relocation, or removal of the Pipeline or any part
thereof; or
2. The presence, operation, or use of the Pipeline or contents escaping therefrom,
except to the extent that the Loss is caused by the sole and direct negligence of the Licensor.
Section 11. REMOVAL OF PIPE LINE UPON TERMINATION OF AGREEMENT.
Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the
Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to
the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction
of the Pipeline. If the Licensee fails to do the foregoing, the Licensor may do such work of removal and restoration at the cost and
expense of the Licensee. The Licensor may, at its option, upon such termination, at the entire cost and expense of the Licensee,
remove the portions of the Pipeline located underneath its roadbed and track or tracks and restore such roadbed to cis good a
condition as it was in at the time of the construction of the Pipeline, or it may permit the Licensee to do such work of removal and
restoration to the satisfaction of the Licensor. In the event of the removal by the Licensor of the property of the Licensee and of the
restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any
damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or
impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee.
Section 12. WAIVER OF BREACH.
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.
plx.exb Page 3 of 4 Exhibit B
PLX0801'12
Form Approved, AVP -Law
Section 13. TERMINATION.
(a) If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or 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 immediately terminate this Agreement
by written notice.
(b) In addition to the provisions of subparagraph (a) above, this Agreement may be terminated by written notice given by either
party hereto to the other on any date in such notice stated, not less, however, than thirty (30) days subsequent to the date upon
which such notice shall be given.
(c) 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.
Section 14. AGREEMENT NOT TO BE ASSIGNED.
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.
Section 15. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties
hereto, their heirs, executors, administrators, successors and assigns.
plx.exb Page 4 of 4 Exhibit B
•
PLMLL /DkAINAGE INS. 02/16/01
Form Approved, AVP -Law
EXHIBIT B -1
Union Pacific Railroad Company
Insurance Provisions For
Pipeline / Wireline / Drainage License Agreements
Licensee shall, at its sole cost and expense, procure and maintain during the life of this
g Agreement the following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form c
$2,000,000 each occurrence or claim and an a re ate limit of ontractual Lability with a single limit of at least
gg g at least $4,000,000. Coverage must be purchased on a post 1998 ISO
or equivalent form, including but not limited to coverage for the following:
• Bodily injury including death and personal injury
• Property damage
• Fire legal liability (Not less than the replacement value of the portion of the occu remises
Products and completed operations p occupied)
The policy shall also contain the following endorsements which shall be indicated on the
certificate of insurance:
• "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers
Pacific Wage Continuation Program or similar programs are deemed not to be either payments p oYers Liability Act or a Union
made or obligations assumed
under any Workers Compensation, disability benefits, or unemployment compensation law or similar p milar law. "
• The exclusions for railroads (except where the Job site is more than fifty eet '
limited to tracks, bridges, trestles, roadbeds, terminals, ( 50 ) from any railroad including but not
als underpasses or crossings), and explosion, collapse and under round
hazard shall be removed. g
• Coverage for Licensee's (and Licensor's) employees shall not be excluded
• Waiver of subrogation
B. Business Automobile Coverage insurance. This insurance shall contain a combine
e combined single limit of at least $2,000,000 per
occurrence or claim, including but not limited to coverage for the following.
• Bodily injury and property damage
• Any and all motor vehicles including owned, hired and non -owned
The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance:
• "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers
Pacific Wage Continuation Program or similar programs are deemed p oYers Liability Act or a Union
not to be either payments made or obligations assumed
under any Workers Compensation, disability benefits, or unemployment compensation law or similar law."
• The exclusions for railroads (except where the Job site is more than fifty feet 50' f
limited to tracks, bridges, trestles, roadbeds, terminals feet ( 50') any railroad including but not
underpasses or crossings), and explosion, collapse and underground
hazard shall be removed.
• Motor Carrier Act Endorsement- Hazardous materials clean up (MCS -90) if required by law.
•
q Y
C. Workers Compensation and Employers Liability insurance including but not limited to:
• Licensee'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 y g ement
$500,000 each accident, $500,000 disease policy limit
$500,000 each employee
If Workers Compensation insurance will not cover the liability of Licensee in states that require q r e participation in state workers'
compensation fund, Licensee shall comply with the laws of such states. If Licensee is self - insured, evidence of state approval must be
provided along with evidence of excess workers compensation coverage. Coverage shall include liability
Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental arising r"
sing out of the U. S.
Shelf Land Act, if applicable.
The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance:
• Alternate Employer Endorsement
0. Umbrella or Excess Policies In the event Licensee utilizes Umbrella or excess olicies these ese policies shall "follow form and
afford no Tess coverage than the primary policy.
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PL/V. /DRAINAGE INS. 02/16/01
Form Approved, AVP -Law
Other Requirements
E. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance.
F. Licensee agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of
subrogation against Licensor. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against
Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's insurance shall be primary
with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance.
G. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as
an additional insured. Severability of interest and naming Licensor as additional insured shall be indicated on the certificate of
insurance.
H. Prior to commencing the Work, Licensee shall furnish to Licensor original certificate(s) of insurance evidencing the required
coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies)
issuing such policy(ies) to notify Licensor in writing of any cancellation or material alteration. Upon request from Licensor, a certified
duplicate original of any required policy shall be furnished.
1. Any insurance policy shall 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(s) in which the service is to be provided.
J. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's insurance agent(s) /broker(s), who have
been instructed by Licensee to procure the insurance coverage required by this Agreement and acknowledges that Licensee's
insurance coverage will be primary.
K. The fact that insurance is obtained by Licensee or Licensor on behalf of Licensee shall 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 shall not be limited by the amount of the required insurance coverage.
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