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R-13-08-22-G7 - 8/22/2013RESOLUTION NO. R -13-08-22-G7 WHEREAS, in conjunction with the Brushy Creek Trail Project, the City of Round Rock desires to construct a new public pedestrian and bicycle trail under -bridge crossing, (DOT No. 924- 253L), on, along and under Union Pacific Railroad Company's ("Railroad") property located at Mile Post 159.94, and as described in Exhibit "A" of the New Pedestrian Under -Bridge Crossing Agreement; and WHEREAS, the Council wishes to enter into a New Pedestrian Under -Bridge Crossing Agreement with the Railroad, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a New Pedestrian Under -Bridge Crossing Agreement with Union Pacific Railroad Company, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 22nd day of August, 2013. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 0112.1304; 00280297 EXHIBIT „A„ UPRR Folder No.: 2783-28 NEW PEDESTRIAN i.JNDER-BRIDGE CROSSING AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY AND THE CITY OF ROUND ROCK COVERING THE CONSI' RUCTION, MAINTENANCE AND USE OF THE NEW BRUSHY CREEK TRAIL UNDER -BRIDGE PEDESTRIAN CROSSING (DOT NO. 924-253L) AT RAILROAD MILE POST 159.94 — ON THE AUSTIN SUBDIVISION IN ROUND ROCK, WILLIAMSON COUNTY, TEXAS Railroad Original UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° uwI6w PACIFIC 111111 UPRR Audit No.: UPRR Folder No.: 2783-28 NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT Brushy Creek Trail — DOT No.: 924-253L Railroad Mile Post 159.94 — Austin Subdivision Round Rock, Williamson County, Texas THIS AGREEMENT is made this day of , 20 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation ("Railroad") and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas ("City"). RECITALS: The City desires to undertake as its project (the "Project") the construction of the new public pedestrian and bicycle trail under -bridge crossing, (DOT No. 924-253L), on, along and under Railroad's property, tracks and bridge at Railroad's Mile Post 159.94 on the Railroad's Austin Subdivision at or near Round Rock, Williamson County, Texas (the "Crossing Area"). The Crossing Area is shown on the Railroad Location Print marked Exhibit A and as detailed in the Detailed Prints Exhibit A-1, with each exhibit being attached hereto and hereby made a part hereof. The Railroad and the City are entering into this Agreement to cover the above. AGREEMENT: IT IS AGREED as follows: Section 1. EXHIBIT B. The General Terms and Conditions marked Exhibit B, are attached hereto and hereby made a part hereof. Section 2. RIGHT GRANTED. A. In consideration of a one-time fee in the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) to be paid by City to Railroad, upon the execution and delivery of this Agreement, the payment of the costs and expenses to be incurred by Railroad and/or City pursuant to this Agreement, and subject to the terms and conditions of this Agreement, Railroad hereby grants to City, its successors and assigns, a license to construct, maintain, use, repair, renew and reconstruct a public pedestrian and bicycle trail (the "Trail") on, along and under the Crossing Area as detailed on the Detailed Prints (also referred to herein as the 2783-28 City of Round Rock, TX Brushy Creek Trail Page 1 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° IMO PACIFIC 111111 "Property"). The Trail shall also include a galvanized chain link fence at least six (6) feet high along both sides of the Trail and a protective canopy ("Canopy") over the Trail as the Trail traverses under Railroad's bridge. References to the Trail in this Agreement shall also include the Canopy. B. City, at its sole expense, agrees to patrol, or cause the Trail to be patrolled by police officers with lawful citation authority, and to vigorously enforce the prohibition against trespass of Railroad's adjacent right-of-way. C. City will comply with all federal, state and local laws, ordinances, rules and regulations which are applicable to the use, management and maintenance of the Trail. D. The rights granted herein are made subject to and subordinate to the prior and continuing right and obligation of Railroad, its successors and assigns, to use all of the tracks and property underlying and above the Trail in the performance of its duty as a common carrier, and there is reserved unto Railroad, and its successors and assigns, the right (consistent with the rights granted herein to City) to construct, reconstruct, maintain, repair, use and operate existing or future additional railroad tracks, track appurtenances, fiber optic or signal lines and facilities, pipe, and wire lines over, under and across the Property. E. The rights granted herein are granted only insofar as Railroad may lawfully grant the same and Railroad makes no covenant or warranty of title, or for quiet possession or against encumbrances. No damages shall be recoverable from Railroad because of any dispossession of City or because of failure of, or defect, in Railroad's title to the Property. The rights granted herein are also subject to any and all outstanding or existing licenses, leases, easements, restrictions, conditions, covenants, claims of title and other rights (whether public or private and whether recorded or unrecorded) including, but not limited to, those for communication, pipeline and wire line facilities and also to any and all extensions and renewals thereof. The City shall not damage, destroy or interfere with the property or right of nonparties in, upon or relating to the Property, unless City at its sole expense, settles with and obtains a release from such nonparties on mutually satisfactory terms. F. City, by virtue of this grant, shall not encroach upon, or occupy or use any other property of Railroad, except as required for the construction of the Trail, and placement and maintenance of the fencing, concrete protective covers and other items as herein required. G. Railroad grants to City only the right for the purposes aforesaid and City shall not use or permit use of the Property for any other purpose. H. To enable Railroad to perform construction, operation or maintenance work on its tracks, track appurtanances, right of way, bridge, embankments, or other improvements on the Property, from time to time as Railroad, in its sole discretion may deem necessary or convenient, Railroad may temporarily close the Trail after reasonable notice to City, unless such work is an emergency nature in which event Railroad may close the Trail without prior notice to City. In the event of such an emergency, Railroad will immediately notify City. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 2 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° uwlow PACIFIC 111111 I. If the right granted herein shall result in a substantial operational or safety problem for Railroad, then the parties shall negotiate in good faith to resolve such problem to the mutual satisfaction of the parties. J. Fiber optic cable systems may be buried on Railroad's right-of-way. Protection of the fiber optic cable system is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City, or its contractors, shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday, except for holidays) at 1-800-336-9193 (also a 24-hour seven day number for emergency calls) to determine if fiber optic cable is buried anywhere on the right- of-way to be used by City. If it is, City, or its contractors, will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the right-of-way. Section 3. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT; FLAGGING. A. The City confirms that all work described herein, will be performed by a Contractor. The City agrees to require each of its contractors, (and their respective subcontractors), to execute Railroad's form of Contractor's Right of Entry Agreement that is marked Exhibit C, hereto attached and hereby made a part hereof, and to provide Railroad the insurance binders or certificates set forth in Exhibit B of the Contractor's Right of Entry Agreement before commencing any work on any Railroad property. B. The City shall also require its Contractors to perform their construction work in such a manner so as not to endanger or delay the movement of trains, engines or cars of Railroad, and so as not to injure or endanger Railroad's officers, agents, employees or damage their property. The City shall also require its Contractors to give precedence to the movement of trains, engines and cars of Railroad, over the movement of vehicles or equipment or construction activities of the City's Contractors. C. If at any time during the construction of the Trail, Railroad deems it necessary that flagging protection is necessary, such flagging shall be provided by Railroad at no cost to Railroad as set forth in the Contractor's Right of Entry Agreement described in Section 2A above. Section 4. RAILROAD'S MINIMUM COORDINATION REQUIREMENTS. The City, at its expense, shall ensure that the Contractor complies with all of the terms and conditions contained in the Railroad's Minimum Coordination Requirements that are described in Exhibit D, attached hereto and hereby made a part hereof, and other special guidelines and/or requirements that the Railroad may provide to the City for this Project. For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and 2783-28 City of Round Rock, TX Brushy Creek Trail Page 3 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA°PACIFIC Wtlo« 111111 subcontractor's respective employees, officers and agents, and others acting under its or their authority. Section 5. FEDERAL AID POLICY GUIDE. If the City will be receiving any federal funding for the Project the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD. The City agrees that no Project costs and expenses are to be borne by the Railroad. In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY THE RAILROAD. A. The work to be performed by the Railroad, at the City's sole cost and expense, is described in the Railroad's Flagging Estimate dated March 25, 2013, marked Exhibit E, attached hereto and hereby made a part hereof (the "Estimate"). As set forth in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the Project is Five Thousand Dollars ($5,000.00). B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. The Railroad shall send progressive billing to the City during the Project, and final billing to the City within one hundred eighty (180) days after receiving written notice from the City that all Project work affecting the Railroad's property has been completed. D. The City agrees to reimburse the Railroad within thirty (30) days of its receipt of billing from the Railroad for one hundred percent (100%) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, all actual costs of engineering review (including preliminary engineering review costs incurred by the Railroad prior to the Effective Date of this Agreement), construction inspection, flagging (unless flagging costs are to be billed directly to the Contractor), procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad's standard additive rates. Section 8. LIABILITY. To the extent permitted by Texas law, City shall save, protect, defend, indemnify and hold harmless Railroad, and its respective affiliates, and their respective officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses, fines and penalties of whatsoever nature, including court costs and attorney's fees, arising from and growing out of any injury or death of persons whomsoever (including officers, 2783-28 City of Round Rock, TX Brushy Creek Trail Page 4 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' UNION PACInC 111111 agents and employees of Railroad or the City and of any contractor as well as other persons) or loss of or damage to property whatsoever (including property of or in the custody of Railroad, the City or any contractor as well as other property). City's obligation to indemnify shall accrue when such injury, death, loss or damage occurs or arises from City's or the general public's use of the Property and Trail, or a breach of this Agreement, or any use or misuse of the Property and Trail, including situations when individuals used such Property and Trail to obtain access to any other right-of-way or property of Railroad. Section 9. EFFECTIVE DATE; TERM; TERMINATION IF PROJECT DOES NOT COMMENCE. A. This Agreement is effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Trail remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Section 10. TERMINATION; WAIVER OF BREACH; TERM. A. Railroad may terminate this Agreement by giving City notice of termination if City defaults under any obligation of City under this license and, if after written notice is given by Railroad to City specifying the default, City fails either to immediately begin to cure the default, or to complete the cure expeditiously but in any event within thirty (30) days after the default notice is given. A waiver by Railroad of a breach of City of any covenant or condition of this Agreement shall not impair the right of Railroad to avail itself of any subsequent breach thereof. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Trail and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad employees; and the City will reimburse the Railroad for the expenses thereof. B. Railroad may also terminate this Agreement by giving written notice to City if safety and operational needs of Railroad are materially affected or impaired by City's use of the Property, and Railroad and City cannot come to any mutual agreement or understanding as to how City, at City's sole cost and expense, will eliminate such material effect or impairment. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 5 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA'PACIRC UNION 111111 C. This Agreement and the license and permission herein granted shall be effective as of the date first herein written, and shall remain in full force and effect until terminated as herein provided, or until the Property and Trail are abandoned as set forth in Section 11 below. D. The City will surrender peaceable possession of the Crossing Area upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. Section 11. ABANDONMENT. If City, its successors and assigns, shall abandon the Trail and Property, or any portion thereof, for the purpose set forth herein for a continuous period of twelve (12) months, then this Agreement and the rights granted herein shall cease automatically and terminate with respect to the portion of the Property so abandoned. Section 12. REMOVAL OF TRAIL UPON TERMINATION OR ABANDONMENT. Within ninety (90) days after termination of this Agreement or City's abandonment of the Trail and/or Property, the City, at its sole cost and expense, shall remove all of the Trail improvements from the Property or adjacent Railroad right-of-way and restore the Property and such right-of-way to its original condition, failing in which Railroad may perform such activities at the expense of City. Section 13. FUTURE PROJECTS. Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of the Trail shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. Section 14. PLANS. A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications and submit such plans and specifications to the Railroad's Assistant Vice President Engineering — Design, or his authorized representative, for review and approval. The plans and specifications shall include all Structure layout specifications, cross sections and elevations, associated drainage, and other appurtenances. B. The final one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering—Design, or his authorized representative, are hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 6 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY uwuow NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' D. Notwithstanding the Railroad's approval of the Plans, the Railroad shall not be responsible for the permitting, design, details or construction of the Structure. The Railroad's review and approval of the Plans will in no way relieve the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. Section 15. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK. Neither the City nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and the City have executed this Agreement. (ii) The Railroad has provided to the City the Railroad's written approval of the Plans. (iii) Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements required under the Contractor's Right of Entry Agreement. (iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contractor's Right of Entry Agreement. Section 16. NON -RAILROAD IMPROVEMENTS. A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non -railroad owned facilities (the "Non - Railroad Facilities") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wirelines, communication lines and fences is required under Section 15. The Non -Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineering and Maintenance -of -Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non -Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non -Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non -Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non -Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non -Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non -Railroad Facilities. Non -Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non -Railroad Facilities owner or 2783-28 City of Round Rock, TX Brushy Creek Trail Page 7 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° UNION FILCIpc operator, or before Railroad and City mutually agree in writing to (i) deem the approved Non -Railroad Facilities plans and specifications to be Plans pursuant to Section 15B, (ii) deem the Non -Railroad Facilities part of the Trail, and (iii) supplement this Agreement with terms and conditions covering the Non -Railroad Facilities. Section 17. NOTICES. Any notices required or desired to be given under this Agreement shall be in writing and personally served, given by overnight express delivery, or given by mail. Telecopy notices shall be deemed valid only to the extent they are (a) actually received by the individual to whom addressed, and (b) followed by delivery of actual notice in the manner described above within three (3) business days thereafter. Any notice given by mail shall be sent, postage prepaid, by certified mail, return receipt requested, addressed to the party to receive at the following address or at such other address as the party may from time to time direct in writing: RAILROAD: Union Pacific Railroad Company ATTN:: Senior Manager Contracts Real Estate Department 1400 Douglas Street MS1690 Omaha, Nebraska 68179-1690 Facsimile: (402) 501-0340 CITY: City of Round Rock ATTN: City Attorney 309 East Main Round Rock, Texas 78664 Facsimile: (512) 255-8986 Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be deemed to be given three (3) days after deposit with the United States Postal Service. Section 18. GRAFFITI REMOVAL. Notwithstanding the provisions of this agreement, the parties specifically agree that graffiti removal or over -painting from all component surfaces of the overall Project, and including without limitation the underpass substructure and superstructure (above and below the bridge seats), shall be the responsibility of the City, at City's sole cost and expense, and Railroad shall have no obligations whatsoever with regard to graffiti removal. Before entering upon the track area of the underpass superstructure to perform graffiti removal or over -painting, the City shall notify Railroad sufficiently in advance and Railroad shall provide a flagman at the City sole expense as reasonably required for the safety of workers and trains. Section 19. CITY'S CONTINUING RESPONSIBILITIES. The City is responsible to construct, maintain, repair, renew, reconstruct and replace all components associated with the Trail and all other necessary facilities, including, but not limited to, the Canopy, the proposed culverts, fencing, warning signs, stop signs and Trail surface in compliance with all design and construction specifications reviewed and approved by Railroad. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 8 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° 111111 UNION PACIFIC The City must also clean all debris that collects on the Trail, fencing, Canopy and surrounding area. In the event that the Railroad requires access to the underside of the bridge and access is restricted due to the Canopy, the City will remove and reinstall the Canopy, at City's sole cost and expense, to support the Railroad's work including, but not limited to, inspections, maintenance and replacement of the bridge. Section 20. SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009. If the City will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the City agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The City confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a "recipient" receiving ARRA funding directly from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the City and not of the Railroad, and (ii) the City shall not delegate any ARRA reporting responsibilities to the Railroad. The City also confirms and acknowledges that (i) the Railroad shall provide to the City the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing, and (ii) such standard and customary billing and documentation from the Railroad provides the information needed by the City to perform and complete the ARRA reporting documents. The Railroad confirms that the City and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project as provided in Exhibit B of this Agreement. Section 21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns, but City shall not assign this Agreement or any rights herein to any party without the prior written consent of Railroad. Section 22. CANOPY REMOVAL. As required in SectionlA of this Agreement, the City shall construct a Canopy over the Trail and under the Railroad bridge. The Canopy shall be designed for quick removal upon notice from the Railroad. Design Plans for the Canopy are illustrated in the aforementioned Detailed Plans marked Exhibit A-1. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 9 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as of the day and year first above written. UNION PACIFIC RAIROAD COMPANY (Federal Tax ID #94-6001323) By PAUL G. FARRELL Senior Manager Contracts WITNESS: CITY OF ROUND ROCK By By Printed Name: Title: (Seal) Pursuant to Authority Provided in City: Resolution No. dated 2783-28 City of Round Rock, TX Brushy Creek Trail Page 10 of 10 June 28, 2013 EXHIBIT A To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Railroad Location Print W� N 41410, s E RAILROAD LOCATION PRINT OF A NEW PEDESTRIAN CROSSING CONSTRUCTION PROJECT Track Nebo qtr.' ArcE 0101411 1}, Bushy Creek Trail Underpass — DOT #924-253L RR MP 159.94 — Austin Subdivision Proposed construction, maintenance & use of a new pedestrian trail under an existing rail bridge 65eiUeg1el/ agyt-�fre iP5 rF' 300;mgt18 .4 t1>IM"1 t*'"'• ' 1000 ft - . -Creek" Ledge -91 1,1 111 capyrig itp 2013, Union Pacific RAILROAD WORK TO BE PERFORMED: 1. Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION RAILROAD MILE POST 159.94 GPS: N 30° 30.841', W 97° 39.357' ROUND ROCK, WILLIAMSON CO., TX. To accompany an agreement with the CITY OF ROUND ROCK covering the construction of a new pedestrian trail under an existing rail bridge. Folder No. 2783-28 Date: June 28, 2013 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 Exhibit A Railroad Location Print EXHIBIT A-1 To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Detail Prints e I �XHI PERSPECTIVE LOCATION 1 I m w o • BIT • • 'C' `11 // ®_o 1 • . ~ • • i 'jam 1 .. Existing • ,, Area nlet/Pipe/Headwall r pc`J• ' y5 PGS j /'`C(/ UNION RAILROAD VOL. 17, 200 FT. 25' OCCUPIED) y94 mss, . ° t 26'� 3, ,ate , " 6 , PACIFIC PG. 617 R.O.W./101 T ao PW WARNER AND 'NERk. (69.81 AC.) 369, PG. 299 as • `s RABB HOUSE •.��• VOL. 2 , .60 Rist` k ki • / „tz`� k` • K71'!\1. , sr;i. \ • • 1\\ \• . •\ "i .) • tel NVIavit 30' ,• N�matme•,tAiiii. `o Mani ��y0ee• • w 19 �s 301\6'. • . )% .s sianattet, '�q�ees tai, '1.6, 10.00' . • • TRAIL 1 :' CITY OF ROUND : ROCK TRACT VO _ VOL: ?490,. LEGEND 3 EXISTING 26 FT. IMPROVED TRAIL ACCESS ROAD/INTERSECTION (ASHALPT/CONC. CURB) 60 FT. LONG X 8 FT. WIDE CHAIN LINK n EXTEND EXISTING PIPE \/ AND HEADWALL. SYSTEM FROM BOTTOM EXHIBIT'B' SITE PLAN 1 PROPOSED 10 FT. CONCRETE (2 FT. SHOULDERS) CI PROPOSED HIGH X 16 FT. OVERHEAD PROTECTION (3-4 FT. CLEAR CHORD UPR BRIDGE.) Brushy Creek Regional Trail Gaps Project City of Round Rodc, Texas June 29, 2012 =III I I I BWMGROUP cale:r=3a runNwc,LANDSCAPE ARc,R,ECM,E 102 E M41N. SUITE 200 ROUND ROCK. TX 78664 T;I5121 2388912 615b.1=1,101 ; h 1. 3 O UMW .III 103('08d SdVJ 1IV811VN01038 )43380 AHS111:18 - 1:13A0O 3A1103108d in 5 N SII !_ Edi �ssa id ! 0 va 30.50' SLAB TO CENTER OF STRUCTURE (61 FT. OVERALL) 30.00' TO CENTER OF STRUCTURE (60 FT. OVERALL) a PROTECTIVE CANOPY PLAN t- 4 .091 tq A • 1 .00 8l ( 1 SC£ SEE .SCE I SCE As' NNI I`dH0'L-18 e>$','. ?. N AFF.; 10 4 011,1ENHNN Y Pvf w I 0'148 XiOtt 7< EXHIBIT 'C' 1 8 Lu 1- 0 z ev-IS.MS•91 1- M .89LJ .00'z Exhibit A 1 1031-021d SdVJ 1111811VNOID321)133210 AHS1019 - 213A00 3A11031O21d 0 0 111 \ oagel i1 OhlePtes..6.1.44:vist hlaj m Ai g1 *4U1 a EXHIBIT 'C' 3 cv a 3 3 1 82 Y� r SECTION / ELEVATION B -B' SECTION / ELEVATION A -A' M O W 0 Z i a lig iig 40 g56 WG rii lxze �< m Exhibit A 1 EXHIBIT B To New Pedestrian Under -Bridge Crossing Agreement General Terms and Conditions UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' UNION PACIFIC 111111 EXHIBIT B TO NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT GENERAL TERMS AND CONDITIONS SECTION 1 - CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. C. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property and the right to cross the Crossing Area with all kinds of equipment. D. If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Project, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. SECTION 2 - CONSTRUCTION A. The City, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Project and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper drainage facilities, guard rails or barriers, and right of way fences as designated by the Railroad. Upon completion of the Project, the City shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C. All construction work of the City upon the Railroad's property (including, but not limited to, construction of the Trail and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering -Design of the Railroad or his authorized representative and in compliance with the Plans, the Railroad's Minimum Coordination Requirements set forth in Exhibit C and other guidelines furnished by the Railroad. D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 1 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' UNION AICIRC 111111 delays and agrees that no claims for damages on account of any delay shall be made against the Railroad by the City and/or the Contractor. SECTION 3 - INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering -Design. SECTION 4 - RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. SECTION 5 - SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. B. Entry on to Railroad's Property by City. If the City's employees need to enter Railroad's property in order to perform an inspection of the Trail, minor maintenance or other activities, the City shall first provide at least ten (10) working days advance notice to the Railroad Representative. With respect to such entry on to Railroad's property, the City, to the extent permitted by law, agrees to release, defend and indemnify the Railroad from and against any loss, damage, injury, liability, claim, cost or expense incurred by any person including, without limitation, the City's employees, or damage to any property or equipment (collectively the "Loss") that arises from the presence or activities of City's employees on Railroad's property, except to the extent that any Loss is caused by the sole direct negligence of Railroad. C. Flagging. (i) If the City's employees need to enter Railroad's property as provided in Paragraph B above, the City agrees to notify the Railroad Representative at least thirty (30) working days in advance of proposed performance of any work by City 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 City whether a flagman need be present and whether City 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 City for such expenses incurred by Railroad. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, City agrees that City is not relieved of any of its responsibilities or liabilities set forth in this Agreement. (ii) The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 2 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' UNION PACIFIC 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, City shall pay on the basis of the new rates and charges. (iii) Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though City 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, City 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, City will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. D. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse and, to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. E. No Interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. F. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. G. Suspension of Work. If at any time the City's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. H. Removal of Debris. The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 3 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY 11 NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° q"'"` City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. I. Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. J. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering -Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. K. Drainage. The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Trail and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. L. Notice. Before commencing any work, the City shall provide the advance notice that is required under the Contractor's Right of Entry Agreement. SECTION 6 - INTERIM WARNING DEVICES If at any time it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the construction or reconstruction of the Canopy and Trail have been completed. SECTION 7 - OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. SECTION 8 - BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City. SECTION 9 -. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 4 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° 111111 UNION PACIFIC amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 5 of 5 Exhibit B EXHIBIT C To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Contractor's Right of Entry Agreement UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT _Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA UPRR Folder No. UPRR Audit No.: CONTRACTOR'S RIGHT OF ENTRY AGREEMENT (Folder Number) (Audit Number) THIS AGREEMENT is made and entered into ;::;the' day of , 20 , by and between UNION ACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); ands (NAME OF ONTRACTOR) a corporation (C.ontractor (State of Incorporation) Contractor has been hired by ("Public Agency") to performwor ;=relating ame'bfPublic Agency) ork to' Performed) (the "work"), with all or a portion of such. work to be performed on property of Railroad in the vicinity of Railroad Mile Post x` 'on -Railroad's !WA*: (Name of Subdivision) DOT No , located 4t or near , in County, (City) (County) , as -such location is in the general location shown on the Railroad Location State of - (State) Print marked Exhibit A, -diad as detailed on the Detailed Prints collectively marked Exhibit A-1, each attached hereto and :hereby made a part hereof, which work is the subject of a contract dated between Railroad and the Public Agency. (Date of C&M Agreement) The 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: File Reference Page 1 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA t cw 116 ARTICLE 1- DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The terms and conditions contained in Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative(s) or his or her duly authorized representative (the "Railroad Representative"): Name & Address ofMTM Name & Address of MSM 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. File Reference Page 2 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA' 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, (Expiration Date) 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 Street, Mail Stop 1690 Omaha, Nebraska 68179-1690 UPRR Folder No. (Folder Number) ARTICLE 8 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 9- ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad FIVE HUNDRED DOLLARS ($500.00) 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 File Reference Page 3 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA' 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 (Federal Tax ID No. 94-6001323) By PAUL G. FARRELL Real Estate Manager - Contracts (NAME OF CONTRACTOR) By Printed Name: Title: File Reference Page 4 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBITS A & A-1 TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Shall be the Railroad Location Print & Detailed Prints BUILDING AMERICA" CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 1 of 1 Exhibits A &A-1 Railroad Location & Detailed Prints UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT GENERAL TERMS AND CONDITIONS BUILDING AMERICA 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 anyof 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 flagmanieed=:be present and whether Contractor needs to implement any special protective or safety measures. Ifflegging or other special protective, or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred 15nR. ailroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is:to _bill such expensestothe`federal, state or local governmental entity. If Railroad will be sending the bills t0Cdntrabtor, Cbr tractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flaggirib3r other.special protective or safety measures are performed by Railroad, Contractor agrees that Contractors 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 tf a prevailing ourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and oveitime in accor.,dance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost=ofuch laboi, a composite charge for vacation, holiday, health and welfare, supplemental sickne§s, ;F ailroad megeRetit merit and unemployment compensation, supplemental pension, E`i Employees Liability and Property D and Admin stration•wih;be included, computed on actual payroll. The composite charge will be the prevailing composite chargOn, effect at the t Me;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 aresubject to change tat anytimebytaw or by agreement between Railroad and its employees, and may be retroactive as a rasult df,negotiations ora ruling:=of an authorized governmental agency. Additional charges on labor are also subject to change lfthe wage rateor 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 gq required Covering the full eight-hour day during which any flagman is furnished, unless the flagman' -can be assigned to othetlailroad work during a portion of such day, in which event reimbursement will not be required for the:portionof the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually wotked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the;ffagmal::and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even thi.Ugh 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 must7provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notioe'bf cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. CONTRACTOR'S RIGHT OF ENTRY Page 1 of 4 Exhibit B AGREEMENT General Terms & Conditions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA B. The foregoing grant is also subject to all outstanding superior rights (whether recorded or unrecorded and including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be.kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open:public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays n the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, atidContractor.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 laborer provide' materials for the work. to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's_or matenaimen's Ilens: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; _dosts or expenses,of whatsoever ature in any way connected with or growing out of such work done, labor performed, or ir1atrials furnistod: If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, distiarge:the lien orclaim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER-OPTIC CABLE=SYSTEMS. A. Fiber optic cable systems may be buri0d:ori Railroad's property .protection of the fiber optic cable systems is of extreme importance since any break could disruptservice<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 f�ailroad's property; to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies)*olved, make=' arrangements for a cable locator and, if applicable, for relocation or other protection of.the fiber optic cable-,ZContractor shall not commence any work until all such protection or relocation (if applicable) tiWbeen accomplished B. In addition toother indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and agailstall t_osts'lability andexpense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising'ourbf any actor omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of:aily telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 2 of 4 Exhibit B General Terms & Conditions UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit 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_: he safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copyof_Contracto(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:areany 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, in�uryt Jiability, claim demand, cost or expense (including, without limitation, attorney's, consultant's and expert'sfees•and coutt costs)1fine or penalty.(collectively, "Loss") incurred by any person (including, without limitation, any Indernnlfied Party, Contractor, or any employee of Contractor or of any Indemnified Party) arising out of or in any manner connet) a cted with ny work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or empfoyees;;;or (iii) anybreach of this Agreement by Contractor. B. The right to indemnity under this Section_8. shall acerae upon occurrence of the event giving rise to the Loss, and shall o apply regardless of any negligence r strict' liability of ahy.Indemniied Party, except where the Loss is caused by the sole active negligence of an Indemnified Party;=as estatlishedby the final judgment of a court of competent jurisdiction. The sole active negligence of any,. Indemnified Partyshall 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 dwn employees. Contractor waives any immunity it may have under worker's compensation=or:industrialliisurance 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 orjity_findings _inany employee's suit pursuant to any worker's compensation act or the Federal Employers' Liability Act against: a:paro`this Agreement may be relied upon or used by Contractor in any attempt to assert liability against any Indemnified Party E. The provisions of this Section 8=_shall survive the completion of any work performed by Contractor or the termination or expiration of this AgreemenVIt no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may -have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. CONTRACTOR'S RIGHT OF ENTRY Page 3 of 4 Exhibit B AGREEMENT General Terms & Conditions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA" 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 thOtein, ,Without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractbrsBefore Contractor commences any work, the Contractor shall, except to the extent prohibited by law3(1). require each` of :its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policyajnd BusinessAutomobile policies with respect to all liabilities arising out of the subcontractor's performance c f work on behalf ofi the_Coiitractor 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 Poligy with "Coverage For f✓ertainOperations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute: form providing equivalent coverade)'-for the job site. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 4 of 4 Exhibit B General Terms & Conditions UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS BUILDING AMERICA Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGL):with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL 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 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 schedu 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) wiith a _combined single limit of not; less $5,000,000 for each accident and coverage must include liability arising out of any auto (includm-ow gned, hired and'non-owned autos). The policy must contain the following endorserrie: is Nhich must'bestated on the certificate of insurance: • Coverage For Certain Operations In Connection With RailroatlsISO 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 Endorsemeht- 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 Iiability under theworkers' compensation laws of the state where the work is being performed. • Employers' Liability (PartB) wittAlimits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor isself-insured, evidence of sti to approval and excess workers compensation coverage must be provided. Coverage must include liability arisng'out of the`U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act;_: if applicable. The policy must contain the foilowmg endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorseiiient ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule:<as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability Insurance. Contractor must maintain "Railroad Protective Liability" (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. 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. CONTRACTOR'S RIGHT OF ENTRY Page 1 of 2 Exhibit C AGREEMENT Insurance Provisions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA 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 Requirements G. All policy(ies) required above (except worker's compensation and__employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26;=e -fid CA 20 48 (orsubstitute forms. providing equivalent coverage). The coverage provided to Railroad as additional insured shall to the extent:;: provided` under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligencewhether sole or partial, active or passive, and shall not be limited by Contractor's liability under:the indemnity provisions of thiis Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletionindicateddri the.certificate of insurance), unless the law governing this Agreement prohibits all punitive damages.that might arise undar-:_thii;Agreement. I. Contractor waives all rights of recovery, and its Insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees;, Thiswaiver mustbe stated on the certificate of insurance. J. Prior to commencing the work, qdriitiector shall ful.nish Raikoed -acertificate(s) of insurance, executed by a duly authorized representative of each insurer, showing coomplianoe with the insurance requirements in this Agreement. K. All insurance policies must be written bya-_reputabie:insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating ofA--and Class Vllor:,better, rand<authorized to do business in the state where the work is being performed. L. The fact that insurance is obtained by`Cbntrector oc t y. Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including; without' limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. CONTRACTOR'S RIGHT OF ENTRY Page 2 of 2 Exhibit C AGREEMENT Insurance Provisions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS BUILDING AMERICA The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. CLOTHING A. All employees of Contractor will be suitably dressed to perform their duties sa felk,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. _ Footwear that covers their ankles and has a defined heel Employees working on:pndges 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 wo,rkboots), 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 clothin&edkties, fingerrings, or other loose jewelry while operating or working on machinery. II. PERSONAL PROTECTIVE EQUIPMENT Contractor shall require its employees to'wear perstn.al;protective equipment as specified by Railroad rules, regulations, or recommended or requested i. the Railroad Representative Hard hat that meets the'American NatiiorialStandard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's coMpanylogbor ii. Eye protection that ii eets Amerldan;Natioiial'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 Hearing protection, which<affords enough attenuation to give protection from noise levels that will be occurring on the tats::site_._Heanijkprotei tion, 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 operafed;tools • 150 feet of jet blowers::Or.pile drivers • 150 feet of retarders<n use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) iv. Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. ON TRACK SAFETY Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: i. Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. ii. Wear an orange, reflectorized workwear approved by the Railroad Representative. CONTRACTOR'S RIGHT OF ENTRY Page 1 of 2 Exhibit D AGREEMENT Minimum Safety Requirements Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA- iii. MERICA 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. lf, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: i. Familiar and comply with Railroad's rules on lockout/tagout of equipment. ii. Trained in and comply with the applicable operating rules if operating :any by -rail equipment on -track. iii. Trained in and comply with the applicable air brake rules if operatit:gany equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, .fire extinguisherand`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 erigirie'and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones tliat -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 dispose B. in accordance with applicable federal and state regulations. 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 thepotential hazards.of the joti:;;lf any, employee has any questions or concerns about the work, the employee must voice them during the job brirrfng. Additioj nal. ob 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 Administrations Track Safety :standards 49GFR213.=' D. All employascomply with the follbwing safety procedures when working around any railroad track: i. Alwaysbe on the alert for ri'ioving equipment. Employees must always expect movement on any track, at any time, ineithardrrectioiii, ii. Do not step or walk or -the topAtif the rail, frog, switches, guard rails, or other track components. iii. In passing around the et:* of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and_.tle`end of the equipment. Do not go between pieces of equipment of the opening is less than one car lengtl45-0-feet). iv. Avoid walking or standing on a track unless so authorized by the employee in charge. v. Before stepping over or crossing tracks, look in both directions first. vi. Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. CONTRACTOR'S RIGHT OF ENTRY Page 2 of 2 Exhibit D AGREEMENT Minimum Safety Requirements Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT D To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Railroad's Coordination Requirements UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° 11I1'1 MO AUIRC EXHIBIT D TO NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT RAILROAD COORDINATION REQUIREMENTS 1.01 DEFINITIONS Agreement: Agency: AREMA: Contractor: MUTCD: Project: Railroad: Railroad Project Representative: Railroad MTM Representative: Requirements: 1.02 DESCRIPTION Agreement that has been signed, or will be signed, between Railroad and Agency covering the construction and maintenance of the Project. City of Round Rock American Railway Engineering and Maintenance -of -way Association The contractor or contractors hired by the Agency to perform any project work on any portion of Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Manual on Uniform Traffic Control Devices Proposed construction of the new Bushy Creek Trail Under -Bridge Pedestrian Trail Union Pacific Railroad Company Railroad's Manager of Industry and Public Projects for this Project (see Section 1.03) Railroad's Manager of Track Maintenance for this Project (see Section 1.03) The Railroad Coordination Requirements set forth in this Exhibit. This Project includes construction work within Railroad's right-of-way. These Requirements describe coordination with the Railroad when work by the Contractor will be performed upon, over or under the Railroad right-of-way or may impact current or future Railroad operations. The Contractor will coordinate with the Railroad while performing the work outlined in this Agreement and shall afford the same cooperation with the Railroad as it does with the Agency. All submittals and work shall be completed in compliance with these Requirements, Railroad guidelines and requirements, AREMA recommendations and/or as directed by the Railroad Local Representative and/or the Railroad MTM Representative. 1.03 UPRR CONTACTS The Railroad Project Representative for this project is: Joe Garcia Manager Industry & Public Projects Union Pacific Railroad Company 1711 Quintana Road San Antonio, TX 78224-0730 phone: 210-921-6701 fax: 210-921-4082 cell:210-262-4114 For Railroad flagging services and track work, contact the following Railroad MTM Representative: Robert Rainer Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 cell: 512-525-1884 Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 1 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° UNI ON PACING 111111 1.04 PLANS / SPECIFICATIONS The plans and specifications for this Project, affecting the Railroad, are subject to the written approval by the Railroad. Changes in the plans made after the execution of the Agreement and/or the awarding of the Project to the Contractor are subject to the prior review and written approval of the Agency and the Railroad. No construction work shall commence until final stamped plans and/or changes to final stamped plans have been reviewed and approved by the Railroad in writing. The Railroad's review and approval of the Agency's and/or Contractor's plans in no way relieves the Agency and Contractor from their responsibilities, obligations and/or liabilities under this Agreement, Agency's agreement with the Contractor for the Project and/or in the separate Contractor's Right of Entry Agreement referenced in Section 1.08. Railroad's approval will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of Agency's and/or Contractor's plans and that any reliance by the Agency or the Contractor with respect to such plans is at the risk of the Agency and the Contractor. 1.05 UTILITIES AND FIBER OPTICS A. All installations shall be constructed in accordance with current AREMA recommendations and Railroad specifications and requirements. Railroad general guidelines and the required application forms for utility installations can be found on the Railroad website at http://www.uprr.com/reus/pipeline/install.shtml. B. It shall be the responsibility of the Contractor, at its expense, to make arrangements directly with utility companies involving the protection, encasement, reinforcement, relocation, replacement, removing or abandonment in place of non -railroad facilities affected by the Project. Railroad has no obligation to supply additional Railroad property for non -railroad facilities affected by this Project, nor does the Railroad have any obligation to permit Non -Railroad facilities to be abandoned in place or relocated on Railroad's property. Any facility and/or utility that crosses Railroad right of way must be covered under an agreement with the Railroad including, without limitation, any relocations of an existing facility and/or utility. C. Any longitudinal fiber optic lines on Railroad right of way shall be treated as Railroad facilities. Project design may need to be altered to accommodate such facilities. D. Any fiber optic relocations or protections that are required due to this Project will be at the Agency's expense. 1.06 GENERAL A. It is essential that the proposed construction shall be performed without interference to Railroad operations and in compliance with all applicable Railroad and Federal Railroad Administration rules and regulations. The Railroad shall be reimbursed by the Contractor or Agency for train delay costs and lost revenue claims due to any delays or interruption of train operations resulting from the Contractor's construction or other activities. B. Track protection is required for all work equipment (including rubber tired equipment) operating within 25 feet from nearest rail. All work shall be designed and executed outside the temporary construction clearance envelope defined in Section 1.12. C. The Contractor is also advised that new facilities within the Project may be scheduled to be built by the Railroad and that certain Contractor's activities cannot proceed until that work is complete. The Contractor shall be aware of the limits of responsibilities, allow sufficient time in the schedule for that work to be accomplished and shall coordinate its efforts with the Railroad. 1.07 RAILROAD OPERATIONS A. The Contractor shall be advised that trains and/or equipment should be expected on any track, at any time, and in either direction. The Contractor shall communicate with the Railroad MTM Representative to improve the Contractor's understanding of Railroad traffic volume and operation at the Project site. The Contractor's bid shall be structured assuming intermittent track windows as defined in Section 1.07 C B. All Railroad tracks within and adjacent to the Project site are to be assumed as active and rail traffic over these facilities shall be maintained throughout the Project. Activities may include both through moves and switching moves to local customers. Railroad traffic and operations can occur continuously throughout the day and night on these tracks and Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 2 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' shall be maintained at all times as defined herein. The Contractor shall coordinate and schedule the work so that construction activities do not interfere with Railroad's operations. C. Work windows for this Project shall be coordinated with the Agency or Contractor and the Railroad Project Representative and the Railroad MTM Representative. Types of work windows include Conditional Work Windows and Absolute Work Windows, as defined below: 1. Conditional Work Window: A period of time in which Railroad's operations have priority over construction activities. When construction activities may occur on and adjacent to the railroad tracks within 25 feet of the nearest track, a Railroad flag person will be required. At the direction of the flag person, upon approach of a train and when trains are present on the tracks, the tracks must be cleared (i.e., no construction equipment, materials or personnel within 25 feet from the nearest active track or as directed by the Railroad MTM Representative). Conditional Work Windows are available for the project subject to Railroad's local operating unit review and approval. 2. Absolute Work Window: A period of time in which construction activities are given priority over Railroad's operations. During this time the designated Railroad track(s) will be inactive for train movements and may be fouled by the Contractor. Before the end of an Absolute Work Window, all Railroad tracks and signals must be completely operational for normal train operations. Also, all Railroad, Public Utilities Commission and Federal Railroad Administration requirements, codes and regulations for operational tracks must be complied with. Should the operating tracks and/or signals be affected, the Railroad will perform inspections of the work prior to placing the affected track back into service. Railroad flag persons will be required for construction activities requiring an Absolute Work Window. Absolute Work Windows will generally not be granted. Any request will require a detailed written explanation for Railroad review and approval. 1.08 RIGHT OF ENTRY, ADVANCE NOTICE AND WORK STOPPAGES A. Prior to beginning any work within the Railroad right-of-way, the Contractor shall enter into an agreement with the Railroad in the form of the Contractor's Right of Entry Agreement, attached as Exhibit E, or latest version thereof provided by the Railroad. There is a fee for processing of the agreement which shall be borne by the Contractor. The right of entry agreement shall specify working time frames, flagging, inspection and insurance requirements and any other items specified by the Railroad. B. The Contractor shall give advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing work in connection with construction upon or over Railroad's right-of-way and shall observe the Railroad rules and regulations with respect thereto. C. All work upon the Railroad right-of-way shall be done at such times and in such a manner as not to interfere with or endanger the operations of the Railroad. Whenever work may affect the operations or safety of trains, the method of doing such work shall first be submitted to the Railroad MTM Representative for approval, but such approval shall not relieve the Contractor from liability. Any work to be performed by the Contractor, which requires flagging service or inspection service, shall be deferred until the flagging protection required by the Railroad is available at the job site. See Section 1.21 for railroad flagging requirements. D. The Contractor shall make requests in writing to both the Railroad Project Representative and the Railroad MTM Representative for both Absolute and Conditional Work Windows, at least two weeks in advance of any work. The written request must include: 1. Description of work to be done. 2. The days and hours that work will be performed. 3. The exact location of the work and proximity to the tracks. 4. The type of window and amount of time requested. 5. The designated contact person for the Contractor. The Contractor shall provide a written confirmation notice to the Railroad MTM Representative at least fifteen (15) days prior to commencing work in connection with the approved work windows when work will be performed within 25 feet of any track center line. All work shall be performed in accordance with previously approved work plans. Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 3 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY owls+ NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° E. Should a condition arise from, or in connection with, the work which requires immediate and unusual actions to be made to protect operations and property of the Railroad, the Contractor shall undertake such actions. If, in the judgment of the Railroad MTM Representative, such actions are insufficient, the Railroad MTM Representative may require or provide such actions as deemed necessary. In any event, such actions shall be at the Contractor's expense and without cost to the Railroad. The Railroad or Agency have the right to order the Contractor to temporarily cease operations in the event of an emergency or if, in the opinion of the Railroad MTM Representative, the Contractor's operations may inhibit the Railroads operations. In the event such an order is given, the Contractor shall immediately notify the Agency of the order. 1.09 INSURANCE The Contractor shall not begin work within the Railroad's right-of-way until the Railroad has been furnished the insurance policies, binders, certificates and endorsements required by the Contractor's Right -of -Entry Agreement, and the Railroad Project Representative has advised the Agency that such insurance is in accordance with such Agreement. The required insurance shall be kept in full force and effect during the performance of work and thereafter until the Contractor removes all tools, equipment, and material from Railroad property and cleans the premises in a manner reasonably satisfactory to the Railroad. 1.10 RAILROAD SAFETY ORIENTATION All personnel employed by the Agency, Contractor and all subcontractors must complete the Railroad's course "Orientation for Contractor's Safety" and be registered prior to working on Railroad property. This orientation is available at www.contractororientation.com. This course is required to be completed annually. The preceding training does not apply for longitudinal fiber optic installations. 1.11 COOPERATION The Railroad shall cooperate with the Contractor in the scheduling of Project work with the understanding that Railroad's train operations at the job site shall have priority over the Contractor's activities. 1.12 CONSTRUCTION CLEARANCES The Contractor shall abide by the twenty-one (21) foot temporary vertical construction clearance defined in section 4.4.1.1 and twelve (12) foot temporary horizontal construction clearance defined in section 4.4.1.2 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. It shall be the Contractor's responsibility to obtain such guidelines from the Agency or Railroad. Reduced temporary construction clearances, which are less than construction clearances defined above, will require special review and approval by the Railroad. Any proposed variance on the specified minimum clearances due to the Contractor's operations shall be submitted to the Railroad Project Representative through the Agency at least thirty (30) days in advance of the work. No work shall be undertaken until the variance is approved in writing by the Railroad Project Representative. 1.13 SUBMITTALS A. Construction submittals and Requests for Information (RFI) shall be submitted per Section 3.5 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. The minimum review times, as indicated in tables 3-1 and 3-2 of Section 3.5 of the BNSF and UPRR Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. The details of the construction affecting the Railroad tracks and property, not already included in the contract plans, shall be submitted by the Agency to the Railroad Project Representative for the Railroad's review and written approval before such construction is undertaken. Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 4 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° UNION PACIFIC The Railroad shall not be liable to Agency, Contractor, and or any other person or entity if the Railroad's review exceeds a four-week review time. C. As Built Submittals shall be submitted per Section 3.6 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. 1.14 MAINTENANCE OF PROPER DRAINAGE AND DAMAGE TO RAILROAD FACILITIES A. The Contractor, at its expense, shall be required to maintain all ditches and drainage structures free of silt or other obstructions which may result from the Contractor's operations and to repair and restore any Railroad property, tracks and facilities of Railroad and/or its tenants. B. The Contractor must submit a proposed method of erosion control and have the method reviewed and approved by the Railroad prior to beginning any grading on the project site. Erosion control methods must comply with all applicable local, state and federal regulations. 1.15 SITE INSPECTIONS BY RAILROAD PROJECT REPRESENTATIVE, RAILROAD MTM REPRESENTATIVE OR RAILROAD'S CONTRACTOR A. In addition to the office reviews of construction submittals, site observations will be performed by the Railroad Project Representative, Railroad MTM Representative or Railroad's Contractor at significant points during construction per Section 4.11 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. Site inspections are not limited to the milestone events listed in the guidelines. Site visits to check the progress of work may be performed at any time throughout the construction process as deemed necessary by the Railroad. C. A detailed construction schedule, including the proposed temporary horizontal and vertical clearances and construction sequence for all work to be performed, shall be provided by the Contractor to the Agency for submittal to the Railroad's Project Representative for review and approval prior to commencement of work. This schedule shall also include the anticipated dates on which the above listed events will occur. This schedule shall be updated for all critical listed events as necessary but at least monthly so that site visits may be scheduled. 1.16 RAILROAD REPRESENTATIVES A. Railroad representatives, conductors, flag persons or watch persons will be provided by the Railroad at the expense of the Agency or Contractor (as stated elsewhere in these bid documents) to protect Railroad facilities, property and movements of its trains and engines. In general, the Railroad will furnish such personnel or other protective services as follows: 1. When any part of any equipment or object, such as erection or construction activities, is standing or being operated within 25 feet, measured horizontally from centerline, of any track on which trains may operate. 2. For any excavation below the elevation of track subgrade when, in the opinion of the Railroad MTM Representative, the track or other Railroad facilities may be subject to settlement or movement. 3. During any clearing, grubbing, excavation or grading in proximity to Railroad facilities which, in the opinion of the Railroad MTM Representative, may affect Railroad facilities or inhibit operations. 4. During any Contractor's operations when, in the opinion of the Railroad MTM Representative, the Railroad facilities, including, but not limited to, tracks, buildings, signals, wire lines or pipe lines, may be endangered. B. The Contractor shall arrange with the Railroad Local Representative to provide the adequate number of flag persons to accomplish the work. 1.17 WALKWAYS REQUIRED Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 5 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° UM10M PACIFIC 111111 Parallel to the outer side of each exterior track of multiple operated track and on each side of single operated track, an unobstructed continuous space suitable for trainman's use in walking along trains, extending in width not less than twelve feet (12') perpendicular from centerline of track, shall be maintained. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during working hours must be covered, guarded and/or protected as soon as practical. Walkways with railings shall be constructed by the Contractor over open excavation areas when in close proximity of track, and railings shall not be closer than 9' perpendicular from the center line of tangent track or 9' — 6" horizontal from curved track. 1.18 COMMUNICATIONS AND SIGNAL LINES If required, the Railroad, at Agency's expense, will rearrange its communications and signal lines, grade crossing warning devices, train signals, tracks and facilities that are in use and maintained by Railroad forces in connection with its operation. This work by the Railroad will be done by its own forces or by contractors under a continuing contract and may or may not be a part of the work under this contract. 1.19 TRAFFIC CONTROL The Contractor's operations which control traffic across or around Railroad facilities shall be coordinated with and approved by the Railroad MTM Representative and shall be in compliance with the MUTCD. 1.20 CONSTRUCTION EXCAVATIONS;CALL BEFORE YOU DIG NUMBER A. The Contractor shall be required to take special precautions and care in connection with excavating and shoring. Excavations for construction of footings, piers, columns, walls or other facilities that require shoring shall comply with requirements of OSHA, AREMA and Railroad "Guidelines for Temporary Shoring". B. In addition to calling the "811" number and/or the local "one call center", the Contractor shall call the Railroad's "Call Before Your Dig" number at least 48 hours prior to commencing work at 1-800-336-9193 during normal business hours (6:30 a.m. to 8:00 p.m. Central Standard Time, Monday through Friday, except holidays - also a 24 hour, 7 day a week number for emergency calls) to determine location of fiber optics. If a telecommunications system is buried anywhere on or near Railroad property, the Contractor will co-ordinate with the Railroad and the Telecommunication Company(ies) to arrange for relocation or other protection of the system prior to beginning any work on or near Railroad property. The determination of whether fiber optics will be affected by the Project shall be made during the initial design phase of the Project. C. The Railroad does not allow temporary at grade crossings unless absolutely necessary and there is no alternative route available to contractor to access the project site. Alternative plans should be considered to avoid crossing Railroad tracks at grade. 1.21 RAILROAD FLAGGING Performance of any work by the Contractor in which person(s) or equipment will be within twenty-five (25) feet of any track, or that any object or equipment extension (such as, but not limited to, a crane boom) will reach within twenty- five (25) feet of any track, require railroad flagging services or other protective measures. The Contractor shall give an advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing any such work, allowing the Railroad to determine the need for flagging or other protective measures which ensure the safety of Railroad's operations, employees and equipment. Contractor shall comply with all other requirements regarding flagging services covered by the Contractor's Right of Entry Agreement. Any costs associated with failure to abide by these requirements will be borne by the Contractor. The estimated pay rate for each flag person is $1,000.00 per day for a(n) 8 -hour work day with time and one-half for overtime, Saturdays, Sundays; double time and one-half for holidays. Flagging rates are set by the Railroad and are subject to change due to, but not limited to, travel time, setup plus, per diem and rest time (if work is required at night). 1.22 CLEANING OF RIGHT-OF-WAY Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 6 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° 'rill The Contractor shall, upon completion of the work to be performed within the right-of-way and/or properties of the Railroad and adjacent to its tracks, wire lines and other facilities, promptly remove from the Railroad right-of-way all Contractor's tools, implements and other materials whether brought upon the right-of-way by the Contractor or any subcontractors employee or agent of Contractor or of any subcontractor, and leave the right-of-way in a clean and presentable condition to the satisfaction of the Railroad. 1.23 CONTRACTOR'S RESPONSIBILITY OF SUPERVISION The Contractor, at its expense, shall adequately supervise all work to be performed by the Contractor. Such responsibility shall not be lessened or otherwise affected by Railroad's approval of plans and specifications, or by the presence at the work site of the Railroad Project Representative, Railroad MTM Representative or any other Railroad representative or Railroad contractor providing inspection services, or by the compliance by the Contractor with any requests or recommendations made by such representatives. The Contractor will give due consideration to suggestions and recommendations made by such representatives for the safety and protection of the Railroad's property and operations. 1.24 USE OF EXPLOSIVES AT PROJECT SITE PROHIBITED The Contractor's use of explosives at the Project site is expressly prohibited unless authorized in advance in writing by the Railroad Project Representative. Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 7of7 Exhibit D EXHIBIT E To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Railroad's Flagging Estimate ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD COMPANY FOR THE STATE OF TEXAS DESCRIPTION OF WORK: Flagging LOCATION: Round Rock TX SERVICE UNIT: 12 MP 159.94 Austin Sub DESCRIPTION LABOR JOB 001 - ENGINEERING ENGINEERING LABOR LABOR ADDITIVES (173.30%) $0 JOB 002 - FLAGGING FLAGGING for5 days $5,000 TOTAL PROJECT: $5,000 EXISTING REUSABLE MATERIAL - NONE 2 days flagging EXISTING NONREUSABLE MATERIAL - NONE STATE: TX DATE: 3/25/2013 MATERIAL TOTAL 0 0 $5,000 TOTAL ESTIMATED COST OF PROJECT LESS CREDITS: $5,000 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN 1'HE EVENT OF AN INCREASE OR DECREASE IN 1'HE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, THE RAILROAD WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. Exhibit E ROUND ROCK, TEXAS PURPOSE PASSION PROSPERITY City of Round Rock Agenda Item Summary Agenda Number: G.7 Title: Consider a resolution authorizing the Mayor to execute a New Pedestrian Under -Bridge Crossing Agreement with Union Pacific Railroad Company for the Brushy Creek Regional Trail Gap Project. Type: Resolution Governing Body: City Council Agenda Date: 8/22/2013 Dept Director: Rick Atkins, Director Cost: $2,500.00 Indexes: 2002 General Obligation Bonds Attachments: Resolution, Exhibit A Text of Legislative File 13-634 This item would execute an agreement with Union Pacific Railroad (UPRR) to allow the City to construct a portion of the Brushy Creek Regional Trail Project across the UPRR right-of-way. The trail and associated overhead protective structure cross under the elevated railroad bridge located at the entrance to Rabb Park and AW Grimes Blvd . Union Pacific has approved the construction plans already and this agreement allows the City to encroach on UPRR right-of-way for construction of the trail. The project has funding from FHWA/TxDOT ($2,300,000), Williamson County ($400,000) and the City of Round Rock ($190,000). Staff has received all the necessary approvals and concurrence documents from TxDOT to award the project. The construction contract is for 270 calendar days which corresponds to construction completion in Summer 2014. Cost: $2,500.00 Source of Funds: 2002 GO Bonds Staff recommends approval of the item. City of Round Rock Page 1 Printed on 8/19/2013 EXECUTED ORIGINAL DOCUMENT FOLLOW UPRR Folder No.: 2783-28 NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY AND THE CITY OF ROUND ROCK COVERING THE CONSTRUCTION, MAINTENANCE AND USE OF THE NEW BRUSHY CREEK TRAIL UNDER -BRIDGE PEDESTRIAN CROSSING (DOT NO. 924-253L) AT RAILROAD MILE POST 159.94 — ON THE AUSTIN SUBDIVISION IN ROUND ROCK, WILLIAMSON COUNTY, TEXAS Z.-'3-o'b-22- Ci - City Original UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA UPRR Audit No.: UPRR Folder No.: 2783-28 269083 NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT Brushy Creek Trail - DOT No.: 924-253L Railroad Mile Post 159.94 - Austin Subdivision Round Rock, Williamson County, Texas THIS AGREEMENT is made this 2 day of H119- , 20 13 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation ("Railroad") and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas ("City"). RECITALS: The City desires to undertake as its project (the "Project") the construction of the new public pedestrian and bicycle trail under -bridge crossing, (DOT No. 924-253L), on, along and under Railroad's property, tracks and bridge at Railroad's Mile Post 159.94 on the Railroad's Austin Subdivision at or near Round Rock, Williamson County, Texas (the "Crossing Area"). The Crossing Area is shown on the Railroad Location Print marked Exhibit A and as detailed in the Detailed Prints Exhibit A-1, with each exhibit being attached hereto and hereby made a part hereof. The Railroad and the City are entering into this Agreement to cover the above. AGREEMENT: IT IS AGREED as follows: Section 1. EXHIBIT B. The General Terms and Conditions marked Exhibit B, are attached hereto and hereby made a part hereof. Section 2. RIGHT GRANTED. A. In consideration of a one-time fee in the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) to be paid by City to Railroad, upon the execution and delivery of this Agreement, the payment of the costs and expenses to be incurred by Railroad and/or City pursuant to this Agreement, and subject to the terms and conditions of this Agreement, Railroad hereby grants to City, its successors and assigns, a license to construct, maintain, use, repair, renew and reconstruct a public pedestrian and bicycle trail (the "Trail") on, along and under the Crossing Area as detailed on the Detailed Prints (also referred to herein as the 2783-28 City of Round Rock, TX Brushy Creek Trail Page 1 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA "Property"). The Trail shall also include a galvanized chain link fence at least six (6) feet high along both sides of the Trail and a protective canopy ("Canopy") over the Trail as the Trail traverses under Railroad's bridge. References to the Trail in this Agreement shall also include the Canopy. B. City, at its sole expense, agrees to patrol, or cause the Trail to be patrolled by police officers with lawful citation authority, and to vigorously enforce the prohibition against trespass of Railroad's adjacent right-of-way. C. City will comply with all federal, state and local laws, ordinances, rules and regulations which are applicable to the use, management and maintenance of the Trail. D. The rights granted herein are made subject to and subordinate to the prior and continuing right and obligation of Railroad, its successors and assigns, to use all of the tracks and property underlying and above the Trail in the performance of its duty as a common carrier, and there is reserved unto Railroad, and its successors and assigns, the right (consistent with the rights granted herein to City) to construct, reconstruct, maintain, repair, use and operate existing or future additional railroad tracks, track appurtenances, fiber optic or signal lines and facilities, pipe, and wire lines over, under and across the Property. E. The rights granted herein are granted only insofar as Railroad may lawfully grant the same and Railroad makes no covenant or warranty of title, or for quiet possession or against encumbrances. No damages shall be recoverable from Railroad because of any dispossession of City or because of failure of, or defect, in Railroad's title to the Property. The rights granted herein are also subject to any and all outstanding or existing licenses, leases, easements, restrictions, conditions, covenants, claims of title and other rights (whether public or private and whether recorded or unrecorded) including, but not limited to, those for communication, pipeline and wire line facilities and also to any and all extensions and renewals thereof. The City shall not damage, destroy or interfere with the property or right of nonparties in, upon or relating to the Property, unless City at its sole expense, settles with and obtains a release from such nonparties on mutually satisfactory terms. F. City, by virtue of this grant, shall not encroach upon, or occupy or use any other property of Railroad, except as required for the construction of the Trail, and placement and maintenance of the fencing, concrete protective covers and other items as herein required. G. Railroad grants to City only the right for the purposes aforesaid and City shall not use or permit use of the Property for any other purpose. H. To enable Railroad to perform construction, operation or maintenance work on its tracks, track appurtanances, right of way, bridge, embankments, or other improvements on the Property, from time to time as Railroad, in its sole discretion may deem necessary or convenient, Railroad may temporarily close the Trail after reasonable notice to City, unless such work is an emergency nature in which event Railroad may close the Trail without prior notice to City. In the event of such an emergency, Railroad will immediately notify City. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 2 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° UNION PACIFIC 111111 I. If the right granted herein shall result in a substantial operational or safety problem for Railroad, then the parties shall negotiate in good faith to resolve such problem to the mutual satisfaction of the parties. J. Fiber optic cable systems may be buried on Railroad's right-of-way. Protection of the fiber optic cable system is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City, or its contractors, shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday, except for holidays) at 1-800-336-9193 (also a 24-hour seven day number for emergency calls) to determine if fiber optic cable is buried anywhere on the right- of-way to be used by City. If it is, City, or its contractors, will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the right-of-way. Section 3. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT; FLAGGING. A. The City confirms that all work described herein, will be performed by a Contractor. The City agrees to require each of its contractors, (and their respective subcontractors), to execute Railroad's form of Contractor's Right of Entry Agreement that is marked Exhibit C, hereto attached and hereby made a part hereof, and to provide Railroad the insurance binders or certificates set forth in Exhibit B of the Contractor's Right of Entry Agreement before commencing any work on any Railroad property. B. The City shall also require its Contractors to perform their construction work in such a manner so as not to endanger or delay the movement of trains, engines or cars of Railroad, and so as not to injure or endanger Railroad's officers, agents, employees or damage their property. The City shall also require its Contractors to give precedence to the movement of trains, engines and cars of Railroad, over the movement of vehicles or equipment or construction activities of the City's Contractors. C. If at any time during the construction of the Trail, Railroad deems it necessary that flagging protection is necessary, such flagging shall be provided by Railroad at no cost to Railroad as set forth in the Contractor's Right of Entry Agreement described in Section 2A above. Section 4. RAILROAD'S MINIMUM COORDINATION REQUIREMENTS. The City, at its expense, shall ensure that the Contractor complies with all of the terms and conditions contained in the Railroad's Minimum Coordination Requirements that are described in Exhibit D, attached hereto and hereby made a part hereof, and other special guidelines and/or requirements that the Railroad may provide to the City for this Project. For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and 2783-28 City of Round Rock, TX Brushy Creek Trail Page 3 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' subcontractor's respective employees, officers and agents, and others acting under its or their authority. Section 5. FEDERAL AID POLICY GUIDE. If the City will be receiving any federal funding for the Project the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD. The City agrees that no Project costs and expenses are to be borne by the Railroad. In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY THE RAILROAD. A. The work to be performed by the Railroad, at the City's sole cost and expense, is described in the Railroad's Flagging Estimate dated March 25, 2013, marked Exhibit E, attached hereto and hereby made a part hereof (the "Estimate"). As set forth in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the Project is Five Thousand Dollars ($5,000.00). B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. The Railroad shall send progressive billing to the City during the Project, and final billing to the City within one hundred eighty (180) days after receiving written notice from the City that all Project work affecting the Railroad's property has been completed. D. The City agrees to reimburse the Railroad within thirty (30) days of its receipt of billing from the Railroad for one hundred percent (100%) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, all actual costs of engineering review (including preliminary engineering review costs incurred by the Railroad prior to the Effective Date of this Agreement), construction inspection, flagging (unless flagging costs are to be billed directly to the Contractor), procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad's standard additive rates. Section 8. LIABILITY. To the extent permitted by Texas law, City shall save, protect, defend, indemnify and hold harmless Railroad, and its respective affiliates, and their respective officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses, fines and penalties of whatsoever nature, including court costs and attorney's fees, arising from and growing out of any injury or death of persons whomsoever (including officers, 2783-28 City of Round Rock, TX Brushy Creek Trail Page 4 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA agents and employees of Railroad or the City and of any contractor as well as other persons) or loss of or damage to property whatsoever (including property of or in the custody of Railroad, the City or any contractor as well as other property). City's obligation to indemnify shall accrue when such injury, death, loss or damage occurs or arises from City's or the general public's use of the Property and Trail, or a breach of this Agreement, or any use or misuse of the Property and Trail, including situations when individuals used such Property and Trail to obtain access to any other right-of-way or property of Railroad. Section 9. EFFECTIVE DATE; TERM; TERMINATION IF PROJECT DOES NOT COMMENCE. A. This Agreement is effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Trail remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Section 10. TERMINATION; WAIVER OF BREACH; TERM. A. Railroad may terminate this Agreement by giving City notice of termination if City defaults under any obligation of City under this license and, if after written notice is given by Railroad to City specifying the default, City fails either to immediately begin to cure the default, or to complete the cure expeditiously but in any event within thirty (30) days after the default notice is given. A waiver by Railroad of a breach of City of any covenant or condition of this Agreement shall not impair the right of Railroad to avail itself of any subsequent breach thereof. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Trail and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad employees; and the City will reimburse the Railroad for the expenses thereof. B. Railroad may also terminate this Agreement by giving written notice to City if safety and operational needs of Railroad are materially affected or impaired by City's use of the Property, and Railroad and City cannot come to any mutual agreement or understanding as to how City, at City's sole cost and expense, will eliminate such material effect or impairment. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 5 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° 44* C. This Agreement and the license and permission herein granted shall be effective as of the date first herein written, and shall remain in full force and effect until terminated as herein provided, or until the Property and Trail are abandoned as set forth in Section 11 below. D. The City will surrender peaceable possession of the Crossing Area upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. Section 11. ABANDONMENT. If City, its successors and assigns, shall abandon the Trail and Property, or any portion thereof, for the purpose set forth herein for a continuous period of twelve (12) months, then this Agreement and the rights granted herein shall cease automatically and terminate with respect to the portion of the Property so abandoned. Section 12. REMOVAL OF TRAIL UPON TERMINATION OR ABANDONMENT. Within ninety (90) days after termination of this Agreement or City's abandonment of the Trail and/or Property, the City, at its sole cost and expense, shall remove all of the Trail improvements from the Property or adjacent Railroad right-of-way and restore the Property and such right-of-way to its original condition, failing in which Railroad may perform such activities at the expense of City. Section 13. FUTURE PROJECTS. Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of the Trail shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. Section 14. PLANS. A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications and submit such plans and specifications to the Railroad's Assistant Vice President Engineering — Design, or his authorized representative, for review and approval. The plans and specifications shall include all Structure layout specifications, cross sections and elevations, associated drainage, and other appurtenances. B. The final one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering—Design, or his authorized representative, are hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 6 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° D. Notwithstanding the Railroad's approval of the Plans, the Railroad shall not be responsible for the permitting, design, details or construction of the Structure. The Railroad's review and approval of the Plans will in no way relieve the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. Section 15. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK. Neither the City nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and the City have executed this Agreement. (ii) The Railroad has provided to the City the Railroad's written approval of the Plans. (iii) Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements required under the Contractor's Right of Entry Agreement. (iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contractor's Right of Entry Agreement. Section 16. NON -RAILROAD IMPROVEMENTS. A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non -railroad owned facilities (the "Non - Railroad Facilities") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wirelines, communication lines and fences is required under Section 15. The Non -Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineering and Maintenance -of -Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non -Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non -Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non -Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non -Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non -Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non -Railroad Facilities. Non -Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non -Railroad Facilities owner or 2783-28 City of Round Rock, TX Brushy Creek Trail Page 7 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' operator, or before Railroad and City mutually agree in writing to (i) deem the approved Non -Railroad Facilities plans and specifications to be Plans pursuant to Section 15B, (ii) deem the Non -Railroad Facilities part of the Trail, and (iii) supplement this Agreement with terms and conditions covering the Non -Railroad Facilities. Section 17. NOTICES. Any notices required or desired to be given under this Agreement shall be in writing and personally served, given by overnight express delivery, or given by mail. Telecopy notices shall be deemed valid only to the extent they are (a) actually received by the individual to whom addressed, and (b) followed by delivery of actual notice in the manner described above within three (3) business days thereafter. Any notice given by mail shall be sent, postage prepaid, by certified mail, return receipt requested, addressed to the party to receive at the following address or at such other address as the party may from time to time direct in writing: RAILROAD: Union Pacific Railroad Company ATTN: Senior Manager Contracts Real Estate Department 1400 Douglas Street MS1690 Omaha, Nebraska 68179-1690 Facsimile: (402) 501-0340 CITY: City of Round Rock ATTN: City Attorney 309 East Main Round Rock, Texas 78664 Facsimile: (512) 255-8986 Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be deemed to be given three (3) days after deposit with the United States Postal Service. Section 18. GRAFFITI REMOVAL. Notwithstanding the provisions of this agreement, the parties specifically agree that graffiti removal or over -painting from all component surfaces of the overall Project, and including without limitation the underpass substructure and superstructure (above and below the bridge seats), shall be the responsibility of the City, at City's sole cost and expense, and Railroad shall have no obligations whatsoever with regard to graffiti removal. Before entering upon the track area of the underpass superstructure to perform graffiti removal or over -painting, the City shall notify Railroad sufficiently in advance and Railroad shall provide a flagman at the City sole expense as reasonably required for the safety of workers and trains. Section 19. CITY'S CONTINUING RESPONSIBILITIES. The City is responsible to construct, maintain, repair, renew, reconstruct and replace all components associated with the Trail and all other necessary facilities, including, but not limited to, the Canopy, the proposed culverts, fencing, warning signs, stop signs and Trail surface in compliance with all design and construction specifications reviewed and approved by Railroad. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 8 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° • The City must also clean all debris that collects on the Trail, fencing, Canopy and surrounding area. In the event that the Railroad requires access to the underside of the bridge and access is restricted due to the Canopy, the City will remove and reinstall the Canopy, at City's sole cost and expense, to support the Railroad's work including, but not limited to, inspections, maintenance and replacement of the bridge. Section 20. SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009. If the City will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the City agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The City confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a "recipient" receiving ARRA funding directly from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the City and not of the Railroad, and (ii) the City shall not delegate any ARRA reporting responsibilities to the Railroad. The City also confirms and acknowledges that (i) the Railroad shall provide to the City the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing, and (ii) such standard and customary billing and documentation from the Railroad provides the information needed by the City to perform and complete the ARRA reporting documents. The Railroad confirms that the City and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project as provided in Exhibit B of this Agreement. Section 21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns, but City shall not assign this Agreement or any rights herein to any party without the prior written consent of Railroad. Section 22. CANOPY REMOVAL. As required in Sectionl A of this Agreement, the City shall construct a Canopy over the Trail and under the Railroad bridge. The Canopy shall be designed for quick removal upon notice from the Railroad. Design Plans for the Canopy are illustrated in the aforementioned Detailed Plans marked Exhibit A-1. 2783-28 City of Round Rock, TX Brushy Creek Trail Page 9 of 10 June 28, 2013 UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° • IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as of the day and year first above written. UNION PACIFIC RAIROAD COMPANY eral Tax D #94-6001323) P eni • ana ARRELL r Contracts WITNESS: (Seal) By Printed Name: Mkt I l KA kw I VW`V UIF- CITY OF ROUND ROCK ni/I Title: V Pursuant to Authority Provided in City: Resolution No. V- 13-00-2.7.--&+ dated 1&II JI 2-2-/ 2-0 1 3 . 2783-28 City of Round Rock, TX Brushy Creek Trail Page 10 of 10 June 28, 2013 • EXHIBIT A To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Railroad Location Print RAILROAD LOCATION PRINT OF A NEW PEDESTRIAN CROSSING CONSTRUCTION PROJECT Bushy Creek Trail Underpass — DOT #924-253L RR MP 159.94 — Austin Subdivision Proposed construction, maintenance & use of a new pedestrian trail under an existing rail bridge RAILROAD WORK TO BE PERFORMED: 1. Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION RAILROAD MILE POST 159.94 GPS: N 30° 30.841', W 97° 39.357' ROUND ROCK, WILLIAMSON CO., TX. To accompany an agreement with the CITY OF ROUND ROCK covering the construction of a new pedestrian trail under an existing rail bridge. Folder No. 2783-28 Date: June 28, 2013 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 • Exhibit A Railroad Location Print s EXHIBIT A-1 To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Detail Prints XHIBIT 'C' —1115ERSPECTIVE • LOCATION /I W , U i` ,y0 e PGO/ / -1�y Existing Area nlet/Pipe/Headwall 25' UNION PACIFIC RAILROAD VOL. 17, PG. 617 (200 FT. R.O.W./10 OCCUPIED) 9' PHILIP W. WARNER AND WIFE, ALIENN NER (69.81 AC.) VOL. 369, PG. 299 RABB HOUSE CITY OF ROUND ROCK TRACT 2 .V0L•:.1.490,. - LEGEND PROPOSED 10 FT. CONCRETE TRAIL (2 FT. SHOULDERS) 10 PROPOSED 60 FT. LONG X 8 FT. HIGH X 16 FT. WIDE CHAIN LINK OVERHEAD PROTECTION SYSTEM (3-4 FT. CLEAR FROM BOTTOM CHORD UPR BRIDGE.) 3 EXISTING 26 FT. IMPROVED ACCESS ROAD/INTERSECTION (ASHALPT/CONC. CURB) EXTEND EXISTING PIPE AND HEADWALL. EXHIBIT 'B' SITE PLAN Brushy Creek Regional Trail Gaps Project City of Round Rock, Texas June 29, 2012 111 111 B W M G R O U P PLANMIG I LANDSCAPE ARCNRECTURE scale: 1•= 30' 182 E. MAIN. SUITE 200 ROUND ROCK TX 78864 T : 1512J 238 8912 F I6E313 h • 1 £I0Udsae7al7VNOI Ga>Gao+m13e-1:13m02 £312d / ■WMOROUP 9 PROTECTIVE CANOPY PLAN 30.50' SLAB TO CENTER OF STRUCTURE (61 FT. OVERALL) CC 30.00' TO CENTER OF STRUCTURE (60 FT. OVERALL) .. § -9 i - I «e #E � .SEC [ y;9 { , 9- EXHIBIT 'C' | ■ ■ § ! , | 5\ 4 \ z COMPACTED SUOGRUDE TO 95%. § | |§ 9( | �| | |§ § )� ( Io®®® ®®®®® | , Exhibit A 1 0 103fONd SdVD IIVH11VNO1J321)133 IO AHSfHS - N3AO0 3AI1031O21d SECTION / ELEVATION B -B' SECTION / ELEVATION A -A' EXHIBIT 'C' a Y S W5 t8 r__: a b5 W 0 Z Exhibit A 1 • EXHIBIT B To New Pedestrian Under -Bridge Crossing Agreement General Terms and Conditions UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° EXHIBIT B TO NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT GENERAL TERMS AND CONDITIONS SECTION 1 - CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. C. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property and the right to cross the Crossing Area with all kinds of equipment. D. If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Project, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. SECTION 2 - CONSTRUCTION A. The City, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Project and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper drainage facilities, guard rails or barriers, and right of way fences as designated by the Railroad. Upon completion of the Project, the City shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C. All construction work of the City upon the Railroad's property (including, but not limited to, construction of the Trail and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering -Design of the Railroad or his authorized representative and in compliance with the Plans, the Railroad's Minimum Coordination Requirements set forth in Exhibit C and other guidelines furnished by the Railroad. D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 1 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' delays and agrees that no claims for damages on account of any delay shall be made against the Railroad by the City and/or the Contractor. SECTION 3 - INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering -Design. SECTION 4 - RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. SECTION 5 - SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. B. Entry on to Railroad's Property by City. If the City's employees need to enter Railroad's property in order to perform an inspection of the Trail, minor maintenance or other activities, the City shall first provide at least ten (10) working days advance notice to the Railroad Representative. With respect to such entry on to Railroad's property, the City, to the extent permitted by law, agrees to release, defend and indemnify the Railroad from and against any Toss, damage, injury, liability, claim, cost or expense incurred by any person including, without limitation, the City's employees, or damage to any property or equipment (collectively the "Loss") that arises from the presence or activities of City's employees on Railroad's property, except to the extent that any Loss is caused by the sole direct negligence of Railroad. C. Flagging. (i) If the City's employees need to enter Railroad's property as provided in Paragraph B above, the City agrees to notify the Railroad Representative at least thirty (30) working days in advance of proposed performance of any work by City 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 City whether a flagman need be present and whether City 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 City for such expenses incurred by Railroad. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, City agrees that City is not relieved of any of its responsibilities or liabilities set forth in this Agreement. (ii) The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 2 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDINGAMERICA° 111111 UNION Mnnc 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, City shall pay on the basis of the new rates and charges. (iii) Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though City 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, City 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, City will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. D. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse and, to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. E. No Interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. F. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. G. Suspension of Work. If at any time the City's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. H. Removal of Debris. The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 3 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. J. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering -Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. K. Drainage. The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Trail and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. L. Notice. Before commencing any work, the City shall provide the advance notice that is required under the Contractor's Right of Entry Agreement. SECTION 6 - INTERIM WARNING DEVICES If at any time it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the construction or reconstruction of the Canopy and Trail have been completed. SECTION 7 - OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. SECTION 8 - BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City. SECTION 9 -. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 4 of 5 Exhibit B UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° • amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. Pedestrian Under -Bridge Crossing Agreement — ExB General Terms and Conditions Page 5 of 5 Exhibit B • EXHIBIT C To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Contractor's Right of Entry Agreement UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT _Standard Form Approved, AVP -Law: 03/01/13 • UPRR Folder No. UPRR Audit No.: CONTRACTOR'S RIGHT OF ENTRY AGREEMENT BUILDING AMERICA (Folder Number) (Audit Number) THIS AGREEMENT is made and entered into of the day of , 20 , by and between UNION "ACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (NAME OF (:..TRACTOR a corporation ("Contractor") (State of Incorporation) Contractor has been hired by ("Public Agency") to perform work relating to ame ` f Public Agency) ork to be crformed) (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad Mile Post ' on Railroad's (Mile POO DOT No. , located at or near , in County, (DOT Number) (City) (County) State of „ , as such location is in the general location shown on the Railroad Location (State) Print marked Exhibit A, and as detailed on the Detailed Prints collectively marked Exhibit A-1, each attached hereto and, hereby made a part hereof, which work is the subject of a contract dated between Railroad and the Public Agency. (Date ofC&M Agreement) (Name of Subdivision) The 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: File Reference Page 1 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 • BUILDING AMERICA ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The terms and conditions contained in Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative(s) or his or her duly authorized representative (the "Railroad Representative"): Name & Address ofMTM Name & Address of MSM 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. File Reference Page 2 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 • BUILDING AMERICA' 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, (Expiration Date) 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 Street, Mail Stop 1690 Omaha, Nebraska 68179-1690 UPRR Folder No. (Folder Number) ARTICLE 8 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 9- ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad FIVE HUNDRED DOLLARS ($500.00) 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 File Reference Page 3 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA' 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 (Federal Tax ID No. 94-6001323) By PAUL G. FARRELL Real Estate Manager - Contracts (NAME OF CONTRACTOR) By Printed Name: Title: File Reference Page 4 of 4 Exhibit C UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBITS A & A-1 TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Shall be the Railroad Location Print & Detailed Prints BUILDING AMERICA CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 1 of 1 Exhibits A &A-1 Railroad Location & Detailed Prints UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT GENERAL TERMS AND CONDITIONS BUILDING AMERICA 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 receiiipt of such thirty (30) -day notice, the Railroad Representative will determine and inform Contractor whether a flagman neect be present and whether Contractor needs to implement any special protective or safety measures. Ifflagging 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 ist,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 p- revailing 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 wiU be included, computed on actual payroll. The composite charge will be the prevailing composite.charge in. effect at the tithe 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; bylaw 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 the-besis 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 otherRailroad 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 artyday,not ootUally worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the:flagmah and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even thtugh Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign en employee to a flagging position in compliance with union collective bargaining agreements, Contractor must:provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. CONTRACTOR'S RIGHT OF ENTRY Page 1 of 4 Exhibit B AGREEMENT General Terms & Conditions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT BUILDING AMERICA Standard Form Approved, AVP -Law: 03/01/13 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. UNIOM Hume Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be. kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open 'public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and _Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor's all coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations . Th'e 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 an. y 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, disctarge: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 users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal`businesshours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 14007336-9193 (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 protectioi'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 proVisibns 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 actor 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 reve'ue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 2 of 4 Exhibit B General Terms & Conditions UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT BUILDING AMERICA- Standard MERICAStandard Form Approved, AVP -Law: 03/01/13 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 "Indehlnified;Party" or collectively "Indemnified Parties") from and against any and all loss, damage, inju y 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 mannerconnected with ,ji) _any work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees; br (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 ar strict liability of any_Indemnifed Party, except where the Loss is caused by the sole active negligence of an Indemnified Parties established by the final judgment of a court of competent jurisdiction. The sole active negligence of any.lndemnified 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 patty to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against any Indemnified Party. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement Irl no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. CONTRACTOR'S RIGHT OF ENTRY Page 3 of 4 Exhibit B AGREEMENT General Terms & Conditions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Section 10. WAIVER OF DEFAULT. BUILDING AMERICA Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12.ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, Without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law: (1) require each of its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and BusinessAutomobile 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 Poiidywith "Coverage For Certain'Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute:form providing equivalent coverage)"for the job site. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 4 of 4 Exhibit B General Terms & Conditions UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 l EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS BUILDING AMERICA Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGI) 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 1710 01 (or asubstitute 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 -'-(ora substitute form providing equivalent coverage) showing the project on the form schedule:::-- B. chedule 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 awned, hired and non -owned autos). The policy must contain the following endorsements, Which muk 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 statutoryliability_ 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, i€ applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the scheduleas the alternate employer (or a substitute form providing equivalent coverage). 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. 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. CONTRACTOR'S RIGHT OF ENTRY Page 1 of 2 Exhibit C AGREEMENT Insurance Provisions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 11111 BUILDING AMERICA 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 Requirements G. All policy(ies) required above (except worker's compensation and :employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26<and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligencewhether sole or partial, active or passive, and shall not be limited by Contractor's liability.ttnder the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and: the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this''Agreement. I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees Thia.waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a`reputable insurance company acceptable to Railroad or with a current Bests 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,e'withoutlimitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. CONTRACTOR'S RIGHT OF ENTRY Page 2 of 2 Exhibit C AGREEMENT Insurance Provisions Standard Form Approved, AVP -Law: 03/01/13 UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS BUILDING AMERICA The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. CLOTHING A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. B. C. Specifically, Contractor's employees must wear: i. Waist -length shirts with sleeves. ii. Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. iii. Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute(ANSI) and FRA footwear requirements. Employees shall not wear boots (other than work. boots) sandals, canvas -type shdee,:br other shoes that have thin soles or heels that are higher than normal. 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 Natiorial 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, eto Hearing protection., which affords enough attenuation to give protection from noise levels that will be occurring on the jab, 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. 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. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 Page 1 of 2 Exhibit D Minimum Safety Requirements UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Standard Form Approved, AVP -Law: 03/01/13 BUILDING AMERICA- iii. MERICA iii. Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. EQUIPMENT A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: i. Familiar and comply with Railroad's rules on lockout/tagout of equipment ii. Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. iii. Trained in and comply with the applicable air brake rules if operating- any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit -fire extinguisher, arid 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 e►gineland properly secure the equipment against movement. D. Cranes must be equipped with three orange cones thet will be LiSed 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 eh'ployees.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 jib .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 Administratioet:Track Safety:?Standards 49CFR213.-” D. All employees comply with the following safety procedures when working around any railroad track: i. Alwayt 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 tie top 'of the rail, frog, switches, guard rails, or other track components. iii. In passing around the entd5 of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). iv. Avoid walking or standing on a track unless so authorized by the employee in charge. v. Before stepping over or crossing tracks, look in both directions first. vi. Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. CONTRACTOR'S RIGHT OF ENTRY Page 2 of 2 Exhibit D AGREEMENT Minimum Safety Requirements Standard Form Approved, AVP -Law: 03/01/13 EXHIBIT D To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Railroad's Coordination Requirements UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' I111') UNION PACIFIC EXHIBIT D TO NEW PEDESTRIAN UNDER -BRIDGE CROSSING AGREEMENT RAILROAD COORDINATION REQUIREMENTS 1.01 DEFINITIONS Agreement: Agency: AREMA: Contractor: MUTCD: Project: Railroad: Railroad Project Representative: Railroad MTM Representative: Requirements: 1.02 DESCRIPTION Agreement that has been signed, or will be signed, between Railroad and Agency covering the construction and maintenance of the Project. City of Round Rock American Railway Engineering and Maintenance -of -way Association The contractor or contractors hired by the Agency to perform any project work on any portion of Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Manual on Uniform Traffic Control Devices Proposed construction of the new Bushy Creek Trail Under -Bridge Pedestrian Trail Union Pacific Railroad Company Railroad's Manager of Industry and Public Projects for this Project (see Section 1.03) Railroad's Manager of Track Maintenance for this Project (see Section 1.03) The Railroad Coordination Requirements set forth in this Exhibit. This Project includes construction work within Railroad's right-of-way. These Requirements describe coordination with the Railroad when work by the Contractor will be performed upon, over or under the Railroad right-of-way or may impact current or future Railroad operations. The Contractor will coordinate with the Railroad while performing the work outlined in this Agreement and shall afford the same cooperation with the Railroad as it does with the Agency. All submittals and work shall be completed in compliance with these Requirements, Railroad guidelines and requirements, AREMA recommendations and/or as directed by the Railroad Local Representative and/or the Railroad MTM Representative. 1.03 UPRR CONTACTS The Railroad Project Representative for this project is: Joe Garcia Manager Industry & Public Projects Union Pacific Railroad Company 1711 Quintana Road San Antonio, TX 78224-0730 phone: 210-921-6701 fax: 210-921-4082 cell: 210-262-4114 For Railroad flagging services and track work, contact the following Railroad MTM Representative: Robert Rainer Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 cell: 512-525-1884 Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 1 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' 1.04 PLANS / SPECIFICATIONS The plans and specifications for this Project, affecting the Railroad, are subject to the written approval by the Railroad. Changes in the plans made after the execution of the Agreement and/or the awarding of the Project to the Contractor are subject to the prior review and written approval of the Agency and the Railroad. No construction work shall commence until final stamped plans and/or changes to final stamped plans have been reviewed and approved by the Railroad in writing. The Railroad's review and approval of the Agency's and/or Contractor's plans in no way relieves the Agency and Contractor from their responsibilities, obligations and/or liabilities under this Agreement, Agency's agreement with the Contractor for the Project and/or in the separate Contractor's Right of Entry Agreement referenced in Section 1.08. Railroad's approval will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of Agency's and/or Contractor's plans and that any reliance by the Agency or the Contractor with respect to such plans is at the risk of the Agency and the Contractor. 1.05 UTILITIES AND FIBER OPTICS A. All installations shall be constructed in accordance with current AREMA recommendations and Railroad specifications and requirements. Railroad general guidelines and the required application forms for utility installations can be found on the Railroad website at http://www.uprr.com/reus/pipeline/install.shtml. B. It shall be the responsibility of the Contractor, at its expense, to make arrangements directly with utility companies involving the protection, encasement, reinforcement, relocation, replacement, removing or abandonment in place of non -railroad facilities affected by the Project. Railroad has no obligation to supply additional Railroad property for non -railroad facilities affected by this Project, nor does the Railroad have any obligation to permit Non -Railroad facilities to be abandoned in place or relocated on Railroad's property. Any facility and/or utility that crosses Railroad right of way must be covered under an agreement with the Railroad including, without limitation, any relocations of an existing facility and/or utility. C. Any longitudinal fiber optic lines on Railroad right of way shall be treated as Railroad facilities. Project design may need to be altered to accommodate such facilities. D. Any fiber optic relocations or protections that are required due to this Project will be at the Agency's expense. L06 GENERAL A. It is essential that the proposed construction shall be performed without interference to Railroad operations and in compliance with all applicable Railroad and Federal Railroad Administration rules and regulations. The Railroad shall be reimbursed by the Contractor or Agency for train delay costs and lost revenue claims due to any delays or interruption of train operations resulting from the Contractor's construction or other activities. B. Track protection is required for all work equipment (including rubber tired equipment) operating within 25 feet from nearest rail. All work shall be designed and executed outside the temporary construction clearance envelope defined in Section 1.12. C. The Contractor is also advised that new facilities within the Project may be scheduled to be built by the Railroad and that certain Contractor's activities cannot proceed until that work is complete. The Contractor shall be aware of the limits of responsibilities, allow sufficient time in the schedule for that work to be accomplished and shall coordinate its efforts with the Railroad. 1.07 RAILROAD OPERATIONS A. The Contractor shall be advised that trains and/or equipment should be expected on any track, at any time, and in either direction. The Contractor shall communicate with the Railroad MTM Representative to improve the Contractor's understanding of Railroad traffic volume and operation at the Project site. The Contractor's bid shall be structured assuming intermittent track windows as defined in Section 1.07 C B. All Railroad tracks within and adjacent to the Project site are to be assumed as active and rail traffic over these facilities shall be maintained throughout the Project. Activities may include both through moves and switching moves to local customers. Railroad traffic and operations can occur continuously throughout the day and night on these tracks and Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 2of7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' shall be maintained at all times as defined herein. The Contractor shall coordinate and schedule the work so that construction activities do not interfere with Railroad's operations. C. Work windows for this Project shall be coordinated with the Agency or Contractor and the Railroad Project Representative and the Railroad MTM Representative. Types of work windows include Conditional Work Windows and Absolute Work Windows, as defined below: 1. Conditional Work Window: A period of time in which Railroad's operations have priority over construction activities. When construction activities may occur on and adjacent to the railroad tracks within 25 feet of the nearest track, a Railroad flag person will be required. At the direction of the flag person, upon approach of a train and when trains are present on the tracks, the tracks must be cleared (i.e., no construction equipment, materials or personnel within 25 feet from the nearest active track or as directed by the Railroad MTM Representative). Conditional Work Windows are available for the project subject to Railroad's local operating unit review and approval. 2. Absolute Work Window: A period of time in which construction activities are given priority over Railroad's operations. During this time the designated Railroad track(s) will be inactive for train movements and may be fouled by the Contractor. Before the end of an Absolute Work Window, all Railroad tracks and signals must be completely operational for normal train operations. Also, all Railroad, Public Utilities Commission and Federal Railroad Administration requirements, codes and regulations for operational tracks must be complied with. Should the operating tracks and/or signals be affected, the Railroad will perform inspections of the work prior to placing the affected track back into service. Railroad flag persons will be required for construction activities requiring an Absolute Work Window. Absolute Work Windows will generally not be granted. Any request will require a detailed written explanation for Railroad review and approval. 1.08 RIGHT OF ENTRY, ADVANCE NOTICE AND WORK STOPPAGES A. Prior to beginning any work within the Railroad right-of-way, the Contractor shall enter into an agreement with the Railroad in the form of the Contractor's Right of Entry Agreement, attached as Exhibit E, or latest version thereof provided by the Railroad. There is a fee for processing of the agreement which shall be borne by the Contractor. The right of entry agreement shall specify working time frames, flagging, inspection and insurance requirements and any other items specified by the Railroad. B. The Contractor shall give advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing work in connection with construction upon or over Railroad's right-of-way and shall observe the Railroad rules and regulations with respect thereto. C. All work upon the Railroad right-of-way shall be done at such times and in such a manner as not to interfere with or endanger the operations of the Railroad. Whenever work may affect the operations or safety of trains, the method of doing such work shall first be submitted to the Railroad MTM Representative for approval, but such approval shall not relieve the Contractor from liability. Any work to be performed by the Contractor, which requires flagging service or inspection service, shall be deferred until the flagging protection required by the Railroad is available at the job site. See Section 1.21 for railroad flagging requirements. D. The Contractor shall make requests in writing to both the Railroad Project Representative and the Railroad MTM Representative for both Absolute and Conditional Work Windows, at least two weeks in advance of any work. The written request must include: 1. Description of work to be done. 2. The days and hours that work will be performed. 3. The exact location of the work and proximity to the tracks. 4. The type of window and amount of time requested. 5. The designated contact person for the Contractor. The Contractor shall provide a written confirmation notice to the Railroad MTM Representative at least fifteen (15) days prior to commencing work in connection with the approved work windows when work will be performed within 25 feet of any track center line. All work shall be performed in accordance with previously approved work plans. Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 3 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' /41 E. Should a condition arise from, or in connection with, the work which requires immediate and unusual actions to be made to protect operations and property of the Railroad, the Contractor shall undertake such actions. If, in the judgment of the Railroad MTM Representative, such actions are insufficient, the Railroad MTM Representative may require or provide such actions as deemed necessary. In any event, such actions shall be at the Contractor's expense and without cost to the Railroad. The Railroad or Agency have the right to order the Contractor to temporarily cease operations in the event of an emergency or if, in the opinion of the Railroad MTM Representative, the Contractor's operations may inhibit the Railroads operations. In the event such an order is given, the Contractor shall immediately notify the Agency of the order. 1.09 INSURANCE The Contractor shall not begin work within the Railroad's right-of-way until the Railroad has been furnished the insurance policies, binders, certificates and endorsements required by the Contractor's Right -of -Entry Agreement, and the Railroad Project Representative has advised the Agency that such insurance is in accordance with such Agreement. The required insurance shall be kept in full force and effect during the performance of work and thereafter until the Contractor removes all tools, equipment, and material from Railroad property and cleans the premises in a manner reasonably satisfactory to the Railroad. 1.10 RAILROAD SAFETY ORIENTATION All personnel employed by the Agency, Contractor and all subcontractors must complete the Railroad's course "Orientation for Contractor's Safety" and be registered prior to working on Railroad property. This orientation is available at www.contractororientation.com. This course is required to be completed annually. The preceding training does not apply for longitudinal fiber optic installations. 1.11 COOPERATION The Railroad shall cooperate with the Contractor in the scheduling of Project work with the understanding that Railroad's train operations at the job site shall have priority over the Contractor's activities. 1.12 CONSTRUCTION CLEARANCES The Contractor shall abide by the twenty-one (21) foot temporary vertical construction clearance defined in section 4.4.1.1 and twelve (12) foot temporary horizontal construction clearance defined in section 4.4.1.2 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. It shall be the Contractor's responsibility to obtain such guidelines from the Agency or Railroad. Reduced temporary construction clearances, which are less than construction clearances defined above, will require special review and approval by the Railroad. Any proposed variance on the specified minimum clearances due to the Contractor's operations shall be submitted to the Railroad Project Representative through the Agency at least thirty (30) days in advance of the work. No work shall be undertaken until the variance is approved in writing by the Railroad Project Representative. 1.13 SUBMITTALS A. Construction submittals and Requests for Information (RFI) shall be submitted per Section 3.5 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. The minimum review times, as indicated in tables 3-1 and 3-2 of Section 3.5 of the BNSF and UPRR Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. The details of the construction affecting the Railroad tracks and property, not already included in the contract plans, shall be submitted by the Agency to the Railroad Project Representative for the Railroad's review and written approval before such construction is undertaken. Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 4 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA' • The Railroad shall not be liable to Agency, Contractor, and or any other person or entity if the Railroad's review exceeds a four-week review time. C. As Built Submittals shall be submitted per Section 3.6 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. 1.14 MAINTENANCE OF PROPER DRAINAGE AND DAMAGE TO RAILROAD FACILITIES A. The Contractor, at its expense, shall be required to maintain all ditches and drainage structures free of silt or other obstructions which may result from the Contractor's operations and to repair and restore any Railroad property, tracks and facilities of Railroad and/or its tenants. B. The Contractor must submit a proposed method of erosion control and have the method reviewed and approved by the Railroad prior to beginning any grading on the project site. Erosion control methods must comply with all applicable local, state and federal regulations. 1.15 SITE INSPECTIONS BY RAILROAD PROJECT REPRESENTATIVE, RAILROAD MTM REPRESENTATIVE OR RAILROAD'S CONTRACTOR A. In addition to the office reviews of construction submittals, site observations will be performed by the Railroad Project Representative, Railroad MTM Representative or Railroad's Contractor at significant points during construction per Section 4.11 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. Site inspections are not limited to the milestone events listed in the guidelines. Site visits to check the progress of work may be performed at any time throughout the construction process as deemed necessary by the Railroad. C. A detailed construction schedule, including the proposed temporary horizontal and vertical clearances and construction sequence for all work to be performed, shall be provided by the Contractor to the Agency for submittal to the Railroad's Project Representative for review and approval prior to commencement of work. This schedule shall also include the anticipated dates on which the above listed events will occur. This schedule shall be updated for all critical listed events as necessary but at least monthly so that site visits may be scheduled. 1.16 RAILROAD REPRESENTATIVES A. Railroad representatives, conductors, flag persons or watch persons will be provided by the Railroad at the expense of the Agency or Contractor (as stated elsewhere in these bid documents) to protect Railroad facilities, property and movements of its trains and engines. In general, the Railroad will furnish such personnel or other protective services as follows: 1. When any part of any equipment or object, such as erection or construction activities, is standing or being operated within 25 feet, measured horizontally from centerline, of any track on which trains may operate. 2. For any excavation below the elevation of track subgrade when, in the opinion of the Railroad MTM Representative, the track or other Railroad facilities may be subject to settlement or movement. 3. During any clearing, grubbing, excavation or grading in proximity to Railroad facilities which, in the opinion of the Railroad MTM Representative, may affect Railroad facilities or inhibit operations. 4. During any Contractor's operations when, in the opinion of the Railroad MTM Representative, the Railroad facilities, including, but not limited to, tracks, buildings, signals, wire lines or pipe lines, may be endangered. B. The Contractor shall arrange with the Railroad Local Representative to provide the adequate number of flag persons to accomplish the work. t17 WALKWAYS REQUIRED Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 5 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° Parallel to the outer side of each exterior track of multiple operated track and on each side of single operated track, an unobstructed continuous space suitable for trainman's use in walking along trains, extending in width not less than twelve feet (12') perpendicular from centerline of track, shall be maintained. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during working hours must be covered, guarded and/or protected as soon as practical. Walkways with railings shall be constructed by the Contractor over open excavation areas when in close proximity of track, and railings shall not be closer than 9' perpendicular from the center line of tangent track or 9' — 6" horizontal from curved track. 1.18 COMMUNICATIONS AND SIGNAL LINES If required, the Railroad, at Agency's expense, will rearrange its communications and signal lines, grade crossing warning devices, train signals, tracks and facilities that are in use and maintained by Railroad forces in connection with its operation. This work by the Railroad will be done by its own forces or by contractors under a continuing contract and may or may not be a part of the work under this contract. 1.19 TRAFFIC CONTROL The Contractor's operations which control traffic across or around Railroad facilities shall be coordinated with and approved by the Railroad MTM Representative and shall be in compliance with the MUTCD. 1.20 CONSTRUCTION EXCAVATIONS;CALL BEFORE YOU DIG NUMBER A. The Contractor shall be required to take special precautions and care in connection with excavating and shoring. Excavations for construction of footings, piers, columns, walls or other facilities that require shoring shall comply with requirements of OSHA, AREMA and Railroad "Guidelines for Temporary Shoring". B. In addition to calling the "811" number and/or the local "one call center", the Contractor shall call the Railroad's "Call Before Your Dig" number at least 48 hours prior to commencing work at 1-800-336-9193 during normal business hours (6:30 a.m. to 8:00 p.m. Central Standard Time, Monday through Friday, except holidays - also a 24 hour, 7 day a week number for emergency calls) to determine location of fiber optics. If a telecommunications system is buried anywhere on or near Railroad property, the Contractor will co-ordinate with the Railroad and the Telecommunication Company(ies) to arrange for relocation or other protection of the system prior to beginning any work on or near Railroad property. The determination of whether fiber optics will be affected by the Project shall be made during the initial design phase of the Project. C. The Railroad does not allow temporary at grade crossings unless absolutely necessary and there is no alternative route available to contractor to access the project site. Alternative plans should be considered to avoid crossing Railroad tracks at grade. 1.21 RAILROAD FLAGGING Performance of any work by the Contractor in which person(s) or equipment will be within twenty-five (25) feet of any track, or that any object or equipment extension (such as, but not limited to, a crane boom) will reach within twenty- five (25) feet of any track, require railroad flagging services or other protective measures. The Contractor shall give an advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing any such work, allowing the Railroad to determine the need for flagging or other protective measures which ensure the safety of Railroad's operations, employees and equipment. Contractor shall comply with all other requirements regarding flagging services covered by the Contractor's Right of Entry Agreement. Any costs associated with failure to abide by these requirements will be borne by the Contractor. The estimated pay rate for each flag person is $1,000.00 per day for a(n) 8 -hour work day with time and one-half for overtime, Saturdays, Sundays; double time and one-half for holidays. Flagging rates are set by the Railroad and are subject to change due to, but not limited to, travel time, setup plus, per diem and rest time (if work is required at night). 1.22 CLEANING OF RIGHT-OF-WAY Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 6 of 7 Exhibit D UNION PACIFIC RAILROAD COMPANY NEW PEDESTRIAN UNDER BRIDGE CROSSING AGREEMENT BUILDING AMERICA° The Contractor shall, upon completion of the work to be performed within the right-of-way and/or properties of the Railroad and adjacent to its tracks, wire lines and other facilities, promptly remove from the Railroad right-of-way all Contractor's tools, implements and other materials whether brought upon the right-of-way by the Contractor or any subcontractors employee or agent of Contractor or of any subcontractor, and leave the right-of-way in a clean and presentable condition to the satisfaction of the Railroad. 1.23 CONTRACTOR'S RESPONSIBILITY OF SUPERVISION The Contractor, at its expense, shall adequately supervise all work to be performed by the Contractor. Such responsibility shall not be lessened or otherwise affected by Railroad's approval of plans and specifications, or by the presence at the work site of the Railroad Project Representative, Railroad MTM Representative or any other Railroad representative or Railroad contractor providing inspection services, or by the compliance by the Contractor with any requests or recommendations made by such representatives. The Contractor will give due consideration to suggestions and recommendations made by such representatives for the safety and protection of the Railroad's property and operations. 1.24 USE OF EXPLOSIVES AT PROJECT SITE PROHIBITED The Contractor's use of explosives at the Project site is expressly prohibited unless authorized in advance in writing by the Railroad Project Representative. Pedestrian Under -Bridge Crossing Agreement — ExD Railroad's Coordination Requirements Page 7 of 7 Exhibit D • EXHIBIT E To New Pedestrian Under -Bridge Crossing Agreement Cover Sheet for the Railroad's Flagging Estimate , ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD COMPANY FOR THE STATE OF TEXAS DESCRIPTION OF WORK: Flagging LOCATION: Round Rock TX SERVICE UNIT: 12 STATE: TX DATE: 3/25/2013 MP 159.94 Austin Sub DESCRIPTION LABOR MATERIAL TOTAL JOB 001 - ENGINEERING ENGINEERING LABOR 0 LABOR ADDITIVES (173.30%) $0 JOB 002 - FLAGGING FLAGGING for5 days $5,000 0 TOTAL PROJECT: $5,000 0 $5,000 EXISTING REUSABLE MATERIAL - NONE 2 days flagging EXISTING NONREUSABLE MATERIAL - NONE TOTAL ESTIMATED COST OF PROJECT LESS CREDITS: $5,000 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, THE RAILROAD WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. Exhibit E s Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179-1690 September 4, 2013 MS SARA WHITE CITY CLERK CITY OF ROUND ROCK 221 E MAIN ST ROUND ROCK TX 78664 Dear Ms. White: RECEIVED SEP 10 2013 BY: A UPRR Folder No. 2783-28 Attached for your file is your original copy of a New Pedestrian Under -Bridge Crossing Agreement, fully executed on behalf of the Railroad Company. You are hereby authorized to proceed with the work upon proper notification to the Railroad Company's Manager of Track Maintenance. In accordance with the terms of the above agreement, 10 days advance notification upon entering the Railroad Company's right of way shall be given to the following office: Joe Garcia Manager Industry & Public Projects Union Pacific Railroad Company 1711 Quintana Road San Antonio, TX 78224-0730 phone: 210-921-6701 fax: 210-921-4082 cell: 210-262-4114 When you or your representative enter the Railroad Company's property, a copy of this fully executed document must be available at the site to be shown on request to any Railroad employee or official. Should you have any questions, please contact me. L C. FAR ELL Manager a ntracts Pho - • 402. 4.8620 e -Mail: pgfarrell@up.com www.up.com BUILDING AMERICA®