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HomeMy WebLinkAboutResolution 2003-041 public railroad crossing developer's agreement with UPRR C\.. ~ CERnFIED '"vII .~ "",...."" Orlg'n., ~ V Adopted by Council ~~~ '!iOi'~ ~~" WL}~~l-P- {f>~ B1~S~ MARANA RESOLUTION NO. 2003-41 A RESOLUTION OF THE MAYOR AND TOWN COUNCIL OF THE TOWN OF MARANA, ARlZONA, AUTHORIZING THE TOWN TO ENTER INTO A NEW PUBLIC ROAD CROSSING DEVELOPER'S AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY FOR COCHIE CANYON TRAIL. WHEREAS, the Union Pacific Railroad Company is responsible for the operation and maintenance of the Adonis and Cochie Canyon Trail at-grade railroad crossings; and WHEREAS, the BCIF Corporation desires to improve the at-grade railroad crossing; and WHEREAS, the Town desires the reconstruction of the existing railroad crossing for Cochie Canyon Trail to improve the safety to the public using this crossing and the Adonis crossing, as well as a development proposed by BCIF Corporation; and WHEREAS, the Union Pacific Railroad has reviewed BCIF's roadway improvement proposal and is prepared to authorize the construction of this project; and WHEREAS, it is in the best interest of the citizens of the Town of Maran a to relocate and improve the geometry of the existing Railroad crossing, and consolidate this crossing with the Adonis Road crossing. NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of Maran a, Arizona, that the Mayor is authorized to execute a New Public Road Crossing Developer's Agreement with Union Pacific Railroad Company. PASSED AND ADOPTED by the Mayor and Council of the Town of Maran a, Arizona, this 20th day of Mav, 2003. . ~ - 2 ' May,ibY Sutton, Jr. ATTEST: Jocelyn C. Bronson Town Clerk .. ~- i~ l,;' l' _ ..:~ 1~ ,,~'r "4~.~ .::~~",;lmt;ffJ; W'r ~ '" t..,. ~~ 1A ..,. . ~ (": ~ DI'IPORA-E ~.v ..... ,~~,: .-::'g \, :oco J ~ >" = ~~ ::'''''''''\G'I It. T :;;; n1ll #..,..... ~~ ~~ ~ >C~.;~~ "-"~ -~.- .;::'~ ~~:~ '~~ ~~ ~~. \;"':~.. A ~~/ilEin\\~ ...f\ _ ,~...,.;! "<'J;.:;fJ~ft ~1i~,:;:~?? ~.;:~ ~ Hochuli & Benavidez, P.c. As To\'o11 Attorney and not personally ~ Marana, Arizona Resolution No. 2003-41 Page 1 of 1 Folder No.: 2155-44 NEW PUBLIC ROAD CROSSING AGREEMENT BETWEEN TOWN OF MARANA AND UNION PACIFIC RAILROAD COMPANY COVERING THE CONSTRUCTION OF THE NEW TRICO MARANA ROAD A T- GRADE PUBLIC ROAD CROSSING AT OR NEAR MARANA, PIMA COUNTY, ARIZONA Political Body Original Public Highway Crossing 08/13/01 Form Approved, A VP-Law UP Real Estate Folder No.: 2155-44 Agreement Number NEW PUBLIC HIGHWAY CROSSING AGREEMENT Trico Marana Road Mile Post 361.66 - Gila Subdivision Marana, Pima County, Arizona THIS AGREEMENT is made and entered into as of the ~~ day of ~ If\.A... , 200~, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation to be addressed at Real Estate Department, 1800 Farnam Street, Omaha, Nebraska 68102 (the "Railroad") and (the)TOWN OF MARANA, a municipal corporation of the State of Arizona to be addressed at Town Hall, 13251 North Lon Adams Road, Marana, AZ 85653 (the "Political Body"), RECITALS: The Political Body desires to undertake as its project the construction of the new Trico Marana Road at- grade public road crossing (hereinafter the "Project"). The Political Body desires the right to use for the Project that portion of the right-of-way of the Railroad located in Marana, Pima County, Arizona at Mile Post 361.66 on Railroad's Gila Subdivision (the "Crossing Area") shown on the prints, marked Exhibit A attached hereto and hereby made a part hereof. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: ARTICLE 1 - RAILROAD GRANTS RIGHT For and in consideration of the compensation to be paid by the Political Body as set forth in Article 2 and in further consideration of the Political Body's agreement to perform and abide by the terms of this Agreement, including Exhibits A, B, B-1 and C, attached hereto and hereby made a part hereof, the Railroad hereby grants to the Political Body, the right to establish, construct, maintain, repair, renew, and use a public highway at grade over and across the Crossing Area, together with the right of entry to control and remove from the Railroad's right-of-way - on each side of the Crossing Area, the weeds and vegetation which may obstruct the view of motorists approaching the Crossing Area to any trains that may also be approaching the Crossing Area. ARTICLE 2 -- COMPENSA TlON In consideration of the rights granted herein, the Political Body hereby agrees to pay to the Railroad the sum of NINE THOUSAND DOLLARS ($9,000.00), upon the execution and delivery of this Agreement. ARTICLE 3 - CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. If the Political Body will be hiring a contractor or contractors to perform any work involving the Project (including initial construction and any subsequent relocation or maintenance and repair work), the Political Body shall require its contractor(s) to (i) execute the Railroad's then current Contractor's Right of Entry Agreement; (ii) obtain the insurance coverage described in Exhibit B-1 hereto attached; and (iii) provide the insurance policies, 2155-44 Town of Marana, AZ Trico Marana Road Articles of Agreement Page I March 27, 2003 Public Highway Crossing 08/13/01 Form Approved, A VP-Law UP Real Estate Folder No.: 2155-44 certificates, binders and/or endorsements to Railroad that are required in Exhibit B-1 before allowing any of its contractor(s) and their respective subcontractors to commence any work in the Crossing Area or on any other Railroad property. B. The Political Body acknowledges receipt of a copy of Railroad's current Contractor's Right of Entry Agreement, attached hereto as Exhibit D and hereby made a part hereof, and confirms that it will inform its contractor(s) that it/they and their subcontractors are required to execute such form of agreement before commencing any work on any Railroad property. Under no circumstances will Political Body's contractor(s) or any subcontractors be allowed on to Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to Railroad the insurance policies, binders, certificates and/or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1800 Farnam Street Omaha, NE 68102 A TIN: Director Contracts UP Real Estate Folder No. 2155-44 D. If the Political Body's own employees will be performing any of the Project work, the Political Body may self-insure all or a portion of the insurance coverage subject to Railroad's prior review and approval. ARTICLE 4 - FEDERAL AID POLICY GUIDE If the Political Body 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. ARTICLE 5 - WORK TO BE PERFORMED BY RAILROAD A. The work to be performed by Railroad, at Political Body's sole cost and expense, is described in the Railroad's Material and Force Account Estimates dated September 30,2002 and January 21,2003, collectively marked Exhibit C, attached hereto and hereby made a part hereof (the "Estimate"). As noted in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the Project is FOUR HUNDRED FIFTY-SEVEN THOUSAND FOUR HUNRED FOUR DOLLARS ($457,404.00). B. The Political Body acknowledges that the Estimate does not include any estimate of nagging or other protective service costs that are to be paid by the Political Body or its contractor(s) in connection with nagging or other protective services provided by Railroad employees in connection with the Project. All of such costs incurred by Railroad are to be paid by the Political Body or its contractors as determined by the Railroad and the Political Body. If it is determined that the Railroad will be billing the Political Body's contractors directly for such costs, the Political Body agrees that it will pay the Railroad for any nagging costs that have not been paid by any of its contractor(s) within thirty (30) days of contractor's receipt of billing. C. If the Estimate provides for the Railroad to install public crossing warning signals and/or gates, the Railroad, at its cost and expense, shall maintain and repair such warning devices; PROVIDED, HOWEVER, that such maintenance and repair shall not negate the Railroad's eligibility for any federal, state, local, or other public funds that may become available for the maintenance and repair of such warning devices and PROVIDED, FURTHER, that the cost of repair or replacement resulting from damage caused by the general public that is not recovered by the Railroad from the person or entity causing such damage shall be borne entirely by the Political Body. 2155-44 Town of Marana, AZ Trico Marana Road Articles of Agreement Page 2 March 27, 2003 Public Highway Crossing 0811 3/0 I Form Approved, A VP-Law UP Real Estate Folder No.: 2155-44 D. The Political Body agrees to reimburse the Railroad for one hundred percent (100%) of all actual costs incurred by Railroad in connection with the Project including, but not limited to, actual costs of procurement of materials, manpower and deliveries to the job site and the Railroad's normal and customary additives associated therewith. ARTICLE 6 - EFFECTIVE DATE; TERM This Agreement shall become effective as of the date first herein written, or the date work commences on the Project, whichever is earlier, and shall continue in full force and effect until terminated as provided in this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in duplicate as of the date first herein written. OMPANY By ATTEST: TOWN OF MARANA Title: ~~~~ (Seal) ~\,\un~I!,~ ~ OF M,.q ~ $f -~ ~\\,'m'",fl:i. ~ ~ ~~ ~~~ ::: f2 ~ cQRPORATE ~ '"? ~ = 5 000 i = - ;; SEAL;: - <;; ~ ~;: ~ ~ ~ ~ ~ ~IIIIII"\\\~ ~ ~4iY1Z '\CfJ\'~ "IIIIAil\\\\~ By Pursu t to esolution/Order NO~S -i'd:3 'IJ ,200_ hereto attached 2155-44 Town of Marana, AZ Trico Marana Road Articles of Agreement Page 3 March 27, 2003 EXHIBIT A Location & Detail Prints - N 1 W-*-E , S LOCATION OF NEW AT-GRADE PUBLIC ROAD CROSSING CONSTRUCTION PROJECT & ~ i:[ J ~ ir '- Cs' ~ I 11J? 961. 66 - Gila Subdivision Trico Marana Road - DOT # New At-Grade Public Road Crossing Construction Project SAGEBRUSH RD z Ol )> Z 0:;0 m :;0 Ol :;0 0:;0 ICO MARANA RD Jular.ma Sheriffs Office "Marana Post Office GLADDEN 'oN GRIER RD BARNETT RD o 0:: Ol 0:: W o z <( Ol 'oN BARNETT RD C 19l18 DoLo..... hoot Alia. ll'lII. RAILROAD WORK. TO BE PERFORMED: 1. Install 96-feet of concrete crossing surface; 252-feet of rail; 78 cross-ties; 2-car1oads of ballast and other track materials. 2. Install LED flashing signals wi gates & island gates; CWR circuitry; and new cabin. o 0:: o 0:: <( o z <( Ol Z C/) > ~ffi -':1: z>- W 0:: Z $ fi1 ~ z ~ :;0 .., in r- 0:;0 o 0:: (II :i ~ ~ ~ ...J 2 ~P!lll< 40 o 0:: W .J ~ Ol o ll. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY GILA SUBDIVISION MILE POST 96 1.66 GPS: N 320 27.765', W 1110 12.932' MARANA, PIMA CO., AZ. Illustrative print showing location of a new at-grade public road crossing construction project with the TOWN OF MARANA. Folder No. 2155-44 Date: March 27, 2003 WARNING IN ALL OCCASIONS. V.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. 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"I ~ I I i3 I~:~'I i~I~~! i I i lIi~. I I !I " ~ It ! n ~ ~l ~ ~I I iil ~.a \ i! It \ If:. II I Ii. J~ I ~! I {l{ : il~~ d \ hiJu..i I .l,U~"lt : I~u!i~li I I i i i ~ ;; i " I ~ II !iI! I: ~ II ~ EXHIBIT A " I ~~ GVf*'::= / \. -".'fI4"':'I-~."'- .I":W'':'' V'IIUt ..-- ~) i .1 'R".....fIII. 3lva ...... .""".... --.... 0 I i . i .. K N , . b ~ . ~ .. ~ i .. 8 z ili . 0 i GI .. . . 15 -- 9:- "'", l;Yp '-vJ"' en U III ~. ~ .. lil . ~ J ~b'O l V I / I I ~- I 1~fj) ; c9 I I I ~ I 5 \ j --i~~[~ If f' .~ Z "'::--. ~ ~------- "- J rr,,'" ~~ . ...;.;...... <:) i "W~I A I ~O \ :t' q! i! ...~ I t. lh , _l .. ~ ~ ~ ~~ \ . 1/... ~.............- g .. / ~ 2i1 ~ l \ ........ \ l ~ '\I \ /1 '\I ~ <'1 I~ . f'- I ~ " I ... ) U\1'O'O'>- ::; I ~ ~ .r ! 1 lS; / 'b"J~ ~ I ! I ~I ~ I ~ I I h I 'II c:l I , I .. V , III \ l !iH!!iiiiiiii~f!ii!ii ~ ~ PI 1 oo"OO+H V.LS 3Nn HO.Lvn 10'00+ ~ r~ i~n ~vn t .:K) 1 J33HS 33S t :IS :1; ts II ! '1;11 II I g ~ I I ~l + I EXHIBI' A I i ~ . 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I 1 I ! \ I I I I \ I I I I I I \ I I I I I , \ I I I -j I I , I I OO+l: l VlS l~n ~V" ~ to.... t .1i'UHS ~ -1 -, ~ ~ . lll!l i"' l- I:! ili .. " "" U III ~ < U III I- ~I !T- II !iI! IPtl1 ~ EXHIBIT A EXHIBIT B Terms and Conditions Public Highway Crossing 08/13/0 I Standard Form Approved, AVP-Law EXHIBIT B TO PUBUC HIGHWAY CROSSING TERMS AND CONDITIONS SECTION I - CONDITIONS AND COVENANTS a) The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The Political Body 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 Political Body 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 Political Body for the purpose of conveying electric power or communications incidental to the Political Body'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 Political Body 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 Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes in such manner as not unreasonably to interfere with its use as a public highway. In the event the Railroad shall place tracks upon the Crossing Area, the Political Body shall, at its sole cost and expense, modify the highway to conform with the rail line. c) The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or not, and also to any renewals thereof. The Political Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the railroad property, unless the Political Body at its own expense settles with and obtains releases from such nonparties. d) 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; also the right to cross the Crossing Area with all kinds of equipment. The Railroad further reserves the right to attach signal. communication or power lines to any highway facilities located upon the property, provided that such attachments shall comply with Political Body's specifications and will not interfere with the use of the Crossing Area. e) So far as it lawfully may do so, the Political Body will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether generaL local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. f) If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the highway and its appurtenances, or for the performance of any work in connection with the Project. the Political Body will acquire all such other property and rights at its own expense and without expense to the Railroad. SECTION 2 - CONSTRUCTION OF HIGHWAY a) The Political Body, at its own 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 Political Body, at its own expense, will furnish all necessary labor, material and equipment, and shall construct and complete the highway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right-ol-way), and all necessary and proper drainage facilities, guard rails or barriers, and right of way fences between the highway and the railroad tracks. Upon completion of the Project, the Political Body 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) The Railroad will receive no ascertainable benefit from the construction of the Project. and, except as may be specifically provided herein, shall not be required to pay or contribute any part of the cost thereof. If the Project is to be financed in whole or in part by Federal funds, all construction work by the Political Body shall be performed, and any reimbursement to the Railroad for work it performs shall be made, in accordance with the applicable Federal acts, regulations, and this Agreement. d) All construction work of the Political Body upon the Railroad's property (including, but not limited to, construction of the highway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Vice President- Engineering Services of the Railroad or his authorized representative and in accordance with detailed plans and specifications prepared by and at the expense 01 the Political Body, and approved in writing by the Railroad's Vice President-Engineering Services. H:\DATA\Favorites\Agreement Forms\Road Crossing Forms\Public Road Crossing Agreement.doc Page 1 Exhibit B Public Highway Crossing 08/13/0 I Standard Form Approved, AVP-Law e) All construction work of the Political Body shall be performed diligently and completed within a reasonable time, and in any event within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad's Vice President-Engineering Services. 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 Political Body. The Political Body hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad. f) If the Project includes construction of a structure over which trains are to be operated, or for which the Railroad has any responsibility for maintenance, the Political Body shall furnish the Railroad permanent reproducible prints of all design and shop drawings as soon as possible after approval by the Vice President-Engineering Services of the Railroad or his authorized representative. Upon completion of construction, the Political Body shall furnish the Railroad two sets of "as constructed" prints and, in addition, upon request of the Vice President-Engineering Services of the Railroad, "as constructed" permanent reproducible prints of all or any portion of the structure. SECTION 3 - INJURY AND DAMAGE TO PROPERTY If the Political Body, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the Political Body 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 Political Body at the Political Body's own expense, or by the Railroad at the expense of the Political Body, and to the satisfaction of the Railroad's Vice President-Engineering Services. SECTION 4 -PAYMENT FOR WORK BY THE RAILROAD COMPANY a) Bills for work and materials shall be paid by the Political Body promptly upon receipt thereof. The Railroad will submit to the Political Body current bills for flagging and other protective services and devices during progress of the Project. The Railroad will submit final billing for flagging and other protective services within one hundred and twenty (120) days after completion of the Project. provided the Political Body advises the Railroad of the commencement of the 120-day period by giving the Railroad written notification of completion of the Project. b) The Railroad may contract for the performance of any of its work by other than railroad forces. The Railroad shall notify the Political Body 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 Political Body shall reimburse the Railroad for the amount of the contract. SECTION 5 - MAINTENANCE a) If the Project involves a grade crossing: 1) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area, except the portions between the track tie ends, which shall be maintained by and at the expense of the Railroad. 2) If, in the future, the Political Body elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or some surfacing material other than timber planking, the Railroad, at the Political Body's expense, shall install such replacement surfacing, and in the future, to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing Area, the Political Body shall bear the expense of such repairs or replacement. b) If the Project involves a public highway crossing under the Railroad's tracks: 1) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire substructure of the highway-railroad grade separation structure. 2) The Railroad shall. at its own sole expense, maintain and repair, or cause to be maintained and repaired, the entire superstructure of the highway-railroad grade separation structure. c) If the Project involves a public highway crossing over the Railroad's tracks, the Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired, and renewed, the entire highway-railroad grade separation structure. SECTION 6 - CHANGES IN GRADE If at any time the Railroad shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the H:\DATA\Favorites\Agreement Forms\Road Crossing Page 2 Exhibit B Forms\Public Road Crossing Agreement.doc Public Highway Crossing 08/13/01 Standard Form Approved, A VP-Law trc. ': or tracks located on the Crossing Area, the Political Body shall. at its own expense, conform the public highway in the Crossing Area to conform with the change of grade of the trackage. SECTION 7 - REARRANGEMENT OF WARNING DEVICES If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either railroad, highway or both, the parties will apportion the expense incidental thereto between themselves by negotiation, agreement or by the order of a competent authority before the change or rearrangement is undertaken. SECTION 8 - SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS 11 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 Political Body 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 Political Body shall include the Political Body's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the Political Body shall include work both within and outside of railroad property. b) Compliance With Laws. The Political Body shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Political Body (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 Political Body 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 Political Body shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The Political Body 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. c) No Interference or Delavs. The Political Body 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. d) Supervision. The Political Body, at its own expense, shall adequately police and supervise all work to be performed by the Political Body, 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 Political Body 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 Political Body with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the Political Body will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. e) Suspension of Work. If at any time the Political Body'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 Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. f) Removal of Debris. The Political Body 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 Political Body at the Political Body's own expense or by the Railroad at the expense of the Political Body. The Political Body 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. g) Explosives. The Political Body 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. In addition to any conditions, restrictions or limitations as may be specifically imposed: H:\DATA\Favorites\Agreement Forms\Road Crossing Page 3 Exhibit B Forms\Public Road Crossing Agreement.doc Public Highway Crossing 08/13/0 I Standard Form Approved, AVP-Law j) Unless the Railroad's Vice President-Engineering Services agrees otherwise, the Political Body shall provide no less than 48 hours' notice, excluding weekends and holidays, before discharging any explosives. 2) Any explosives loaded in holes or placed or otherwise readied for discharge on a day shall be discharged on the same day during daylight hours, and at mutually acceptable times. 3) The Political Body, at its own expense, shall take all precautionary measures and construct all temporary shelters necessary to guard against danger of damage, destruction or interference arising out of or connected with any blasting or any transportation, handling, storage, security or use of explosives. 4) The Political Body shall require explosives to be transported, handled, stored or otherwise secured and used in a manner satisfactory to the Railroad and in accordance with local. state and Federal laws, rules and regulations, including, without limitation, United States Department of Labor, Bureau of Labor Standards, Safety and Health Regulations for Construction, 29 CFR"Part 1518, Subpart U -- "Blasting and the Use of Explosives"; and Occupational Safety and Health Administration Occupational Safety and Health Standards. 29 CFR Part 1910, Subpart H -- "Hazardous Materials". h) Obstructions to View. Except as otherwise specifically provided herein, the Political Body shall not cause or permit the view along the tracks of the Railroad to be obstructed, nor place any combustible material on the premises, nor erect any structures thereon. If public law or regulation requires control or removal of weeds or vegetation on each side of the Crossing Area, the Political Body will perform such control or removal work without expense to the Railroad or, if the Political Body may not lawfully perform the control or removal work, reimburse the Railroad for the cost of performing such control or removal. If the crossing is not equipped with automatic train activated warning devices with gate arms: I) The Political Body shall control or remove weeds and vegetation within and on each side of the Crossing Area so that the view of approaching motorists to approaching trains is not obstructed by weeds or vegetation; and 2) Insofar as it may lawfully may do so, the Political Body will not permit non-parties to construct sight obstructing buildings or other permanent structures on property adjacent to the right-of-way. i) Excavation. The Political Body 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 Political Body 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 Political Body, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the Political Body 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 Vice President-Engineering Services to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. j) Drainage. The Political Body, at the Political Body's own expense, shall provide and maintain suitable facilities for draining the highway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The Political Body, at the Political Body'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 Political Body, 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 Political Body shall not obstruct or interfere with existing ditches or drainage facilities. k) Notice. Before commencing any work, the Political Body shall provide at least ten (10) days prior notice (excluding weekends and holidays) to the Railroad's Manager-Track Maintenance. 1) Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Political Body shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the Political Body. If it is, Political Body 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 Railroad's premises. SECTION 9 -INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the Political Body shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved H:\DATA\Favorites\Agreement Forms\Road Crossing Page 4 Exhibit B Forms\Public Road Crossing Agreement.doc Public Highway Crossing 08/13/0 I Standard form Approved, AVP-Law de'';ces have been installed. SECTION 10 - 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 11 - REMEDIES FOR BREACH OR NONUSE a) If the Political Body 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 highway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the Political Body will reimburse the Railroad for the expenses thereof. b) Nonuse by the Political Body of the Crossing Area for public roadway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the Political Body hereunder. c) The Political Body 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 12 - 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 Political Body and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the Political Body 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 Political Body 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. SECTION 13 - ASSIGNMENT; SUCCESSORS AND ASSIGNS This Agreement shall not be assigned without the written consent of the Railroad. Subject hereto, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. H:\DATA\favorites\Agreement Forms\Road Crossing Forms\Public Road Crossing Agreement.doc Page 5 Exhibit B Public Highway Crossing 08/13/0 I Form Approved, AVP-Law EXHIBIT B-1 TO PUBLIC HIGHWAY CROSSING AGREEMENT INSURANCE REQUIREMENTS For purposes of this Exhibit B-1, all references to the term "Contractor" shall be deemed to be all contractors hired by the Political Body and all subcontractors of any such Contractor. Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: · Bodily injury including death and personal injury · Property damage . Fire legal liability (Not less than the replacement value of the portion of the premises occupied) · Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: · "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." . The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. · Coverage for Contractor's (and Railroad's) employees shall not be excluded · Waiver of subrogation B. Business Automobile Coveraae insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence or claim, including but not limited to coverage for the following: · Bodily injury and property damage · Any and all motor vehicles including owned, hired and non-owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: · "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." · The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. · Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability insurance including but not limited to: · Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement · Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: · Alternate Employer Endorsement H:\DATA\Favorites\Agreement Forms\Road Crossing Forms\Public Road Crossing Agreement.doc Page 1 Exhibit B-1 Public Highway Crossing 08/13/01 Form Approved, A VP-Law D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. E. Railroad Protective Uabilitv insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the original policy is forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement. agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody and control. Contractor's insurance shall be primary with respect to any insurance carried by Railroad. All waivers of subrogation shall be indicated on the certificate of insurance. H. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Railroad as an additional insured. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. 1. Prior to commencing the Work, Contractor shall furnish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. J. Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)!broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractor's insurance coverage will be primary. L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. H:\DATA\Favorites\Agreement Forms\Road Crossing Forms\Public Road Crossing Agreement.doc Page 2 Exhibit B-1 EXHIBIT C Estimate of Material and Force Account Work - .II DATE: 2002-09-30 ~ ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: INSTALL LED FL SIGNALS W/GATES, & ISLAND GATES, CWR CIRCUITRY, AND NEW CABIN AT TRICO MARANA ROAD IN MARANA, AZ. M.P. 961.66 ON THE GILA SUB. SIGNAL PROJECT MANAGER: LEE BURDEN 935-7680 RAILROAD TO PERFORM ALL WORK / COST DISTRIBUTED AS FOLLOWS: SIGNAL - CITY OF MARANA 100% RECOLLECTIBLE PID: 44119 AWO: 08479 SERVICE UNIT: 16 CITY: MARANA MP/SUBDIV: 961.66/ GILA STATE: AZ DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK ENGINEERING LABOR ADDITIVE 138% RECOLL-INSPE SIG-HWY XNG 2838 9733 2737 1478 TOTAL ENGINEERING 16786 SIGNAL WORK BILL PREP CONTRACT EARTH FILL/ROCK EQUIPMENT RENTAL FOREIGN LINE FREIGHT INSTALL METER SERVICE LABOR ADDITIVE 138% MATL STORE EXPENSE PERSONAL EXPENSES RELOCATE POLE LINE SALES TAX SIGNAL TRANSPORTATION CHARGES USAGE EQUIPMENT WZ TRAFFIC CONTROL 900 10288 2500 20000 2057 5000 63080 45710 5144 22515 6000 4115 102889 3750 7584 10189 TOTAL SIGNAL 2838 9733 2737 1478 2838 9733 2737 1478 16786 16786 900 10288 2500 20000 2057 5000 63080 5144 22515 6000 4115 148599 3750 7584 10189 900 10288 2500 20000 2057 5000 63080 5144 22515 6000 4115 148599 3750 7584 10189 109690 202031 311721 311721 LABOR/MATERIAL EXPENSE 126476 RECOLLECTIBLE/UPRR EXPENSE ESTIMATED PROJECT COST EXISTING REUSEABLE MATERIAL CREDIT SALVAGE NONUSEABLE MATERIAL CREDIT 202031 -------- 328507 RECOLLECTIBLE LESS CREDITS o -------- 328507 o o THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. EXHIBIT C Ir. -- '". DATE: 2003-01-21 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: GILA SUB / MP 961.33 - 961.93 / MARANA ROAD PROPOSE TO PARTICIPATE WITH THE CITY OF MARANA, CA IN CONSTRUCTING A PUBLIC ROAD CROSSING @ MP 961.66, MARANA ROAD. RAILROAD WORK WILL INCLUDE THE INSTALLATION OF A 96 FT CONCRETE CROSSING SURFACE ALONG WITH RECONDITIONING THE TRACK STRUCTURE THROUGH PID: 45605 AWO: SERVICE UNIT: 16 CITY: NAVISKA MP,SUBDIV: 961.33, GILA STATE: AZ DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ----------- ----- -------- ------- ENGINEERING WORK ENGINEERING 3028 3028 3028 ------- -------- -------- -------- -------- TOTAL ENGINEERING 3028 3028 3028 SIGNAL WORK SIGNAL 2555 47 2602 2602 MATL STORE EXPENSE 1 1 1 SALES TAX 1 1 1 LABOR ADDITIVE 3526 3526 3526 ------- -------- -------- -------- -------- TOTAL SIGNAL 6081 49 6130 6130 TRACK & SURFACE WORK BALAST 2.00 CL 2083 1219 3302 3302 FIELD WELD 189 189 189 OTM 1704 897 2601 2601 RAIL 252.00 LF 2308 2731 5039 5039 RDXING 96.00 TF 9236 13301 22537 22537 TRK-SURF,LIN 2304 2304 2304 WELD 6128 398 6526 6526 XTIE 78.00 EA 14457 4842 19299 19299 UPRR EQUIP USAGE 2000 2000 2000 HOME LINE FRT 1000 1000 1000 BILL PREP 1000 1000 1000 EQUIP RENT 15000 15000 15000 FOREIGN LINE FRT 3000 3000 3000 MATL STORE EXPENSE 506 506 506 SALES TAX 933 933 933 LABOR ADDITIVE 34503 34503 34503 ------- -------- -------- -------- -------- TOTAL TRACK & SURFACE 72912 46827 119739 119739 LABOR/MATERIAL EXPENSE 82021 RECOLLECTIBLE/UPRR EXPENSE ESTIMATED PROJECT COST EXISTING REUSEABLE MATERIAL CREDIT SALVAGE NONUSEABLE MATERIAL CREDIT 46876 -------- -------- 128897 0 -------- 128897 o o EXHIBIT C EXHIBIT D Contractor's Right of Entry Agreement It March 27, 2003 Folder No. 2155-44 To the Contractor: Before Union Pacific Railroad can permit you to perform work on its property for the construction of new Trico Marana Road at-grade public road crossing, it will be necessary to complete two originals of the enclosed Right of Entry Agreement as follows: 1. Fill in the complete legal name of the contractor in the space provided on Page I of the Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of EntIy Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Return all copies of the Contractor's Right of Entry Agreement together with your Certificate ofInsurance as required in Exhibit B-1, in the attached, self-addressed envelope. 5. Check made payable to the Union Pacific Railroad Company in the amount of $500.00. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Services' new policy regarding their Form 1099, I certify that 13-6400825 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. After approval of the Right of Entry Agreement and insurance certificate, one fully executed counterpart of the agreement will be returned to you. In no event should you begin work until you have received your counterpart of the fully executed agreement. Under Exhibit C of the enclosed Contractor's Right of Entry, you are required to procure Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you. If you decide that acquiring this coverage from the Railroad is of benefit to you, please contact Ms. Nancy Savage at (402) 271- 2215. If you have any questions conceming the agreement, please contact me at (402) 997-3620. Have a safe day! Sincerely, PAUL G. FARRELL MANAGER CONTRACTS Real Estate UNION PACIFIC RAILROAD 1800 Farnam Street, Omaha, NE 68102 fx. (402) 997-3601 Contractor's Right of Entry - 07/30/01 Form Approved - A VP Law Folder No.: 2155-44 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the _ day of ,200_, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (the "Railroad"); and (Name of Contractor) a corporation (the "Contractor"). (State of Incorporation) RECIT ALS: Contractor has been hired by (the) Town of Marana to perfOlm work relating to the construction of new Trico Marana Road at-grade public road crossing (the "work"), with all or a pOliion of such work to be performed on property of Railroad in the vicinity of Mile Post 961.66 on the Gila Subdivision in Marana, Pima County, Arizona, which work is the subject of a contract dated between Railroad and (the) Town of Marana. (Date of C&M Agreement) Contractor has requested Railroad to permit it to perform the work on the portion of Railroad's property shown on the print marked Exhibit A, attached hereto and hereby made a part hereof, and Railroad is agreeable thereto, subject to the following terms and conditions. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this agreement, all references in this agreement to the Contractor shall include the Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of perfonning any work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's propeliy specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS A, B, C AND D. The terms and conditions contained in Exhibit A, Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. The Contractor shall bear any and all costs and expenses associated with any work perfom1ed by the Contractor, or any costs or expenses incurred by the Railroad relating to this agreement. 2155-44 Town of Marana, AZ Trico Marana Road Page 1 March 27, 2003 Contractor's Right of Entry - 07/30/01 Form Approved - A VP Law Folder No.: 2155-44 B. The Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Mike Cordova Manager Track Maintenance Union Pacific Railroad Company 1255 S Campbell Ave Tucson AZ 85713 Phone: 520-629-2230 C. The Contractor, at its own expense, shall adequately police and supervise all work to be performed by the Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of the Contractor for safe conduct and adequate policing and supervision of the Contractor's work sha 11 not be lessened or otherwise affected by the Railroad's approval of plans and specifications involving the work, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad Representative, or by compliance by the Contractor with any requests or recommendations made by the Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this agreement, and continue until , unless sooner terminated as herein provided, or at such time as Contractor has (Expiration Date) completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad property. B. This agreement may be terminated by either party on ten (10) days written notice to the other party. ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before conm1encing any work, Contractor will provide Railroad with the insurance binders, policies, certificates and/or endorsements set forth in Exhibit C of this agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be directed to: Union Pacific Railroad Company 1800 Farnam Street Omaha NE 68102 Attn.: Director Contracts Folder No.: 2155-44 ARTICLE 7 - DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad property any employee of Contractor or any subcontractor who fails to conform to the instructions of the Railroad Representative in cOlmection with the work on Railroad's propeliy, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indenmify Railroad against any claims arising from the removal of any such employee from Railroad property. ARTICLE 8 - ADMINISTRATIVE FEE. Contractor shall pay to Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this agreement. 2155-44 Town of Marana, AZ Trico Marana Road Page 2 March 27, 2003 Contractor's Right of Entry - 07/30/01 Form Approved - A VP Law Folder No.: 2155-44 ARTICLE 9 - CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - EXPLOSIVES. Explosives or other highly flanunable substances shall not be stored on Railroad property without the prior written approval of the Railroad. IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By: Manager Contracts WITNESS: (Name olContractor) By: Title: 2155-44 Town of Marana, AZ Trico Marana Road Page 3 March 27,2003 N ! W-'~-E ~ , S LOCATION OF NEW AT-GRADE PUBLIC ROAD CROSSING CONSTRUCTION PROJECT SA~EBRUSHF:D z Qi ~ :>- ......,. ~'<.. J. ~... !~ ....~ ,ci" ~ ", Q- .~.~I~ <:> m :>J if, :>J <:> lC.gMARANA RD..... ......~m.Jvtii3ri~Sherim~Office ... "totlr.3na Post Office ~LADDEN W GRIER RD o ~. o 0: <C o' z <t. ...(r,t.t...... "'(n.. 5; ~,ffi -'.::1: 2>- WL. 0: . .'~~ 'z; z OlmD:.L>m... ~ttr.,,~.1h< U!J.. o. ..0: . 0)' 0:' W' o ~ (f) W BARNETT RD CI Cl:. (f]O ~ ~., <( 6 -' 2 O. .0:.... W ..J. <t' i:': If) o CL ~Pm.: . . ~~~!:tr;;IL~D RAILROAD WORK TO BE PERFORMED: EXHIBIT "A" UNION PACIFIC RAILROAD COM P ANY 1. Install 96-feet of concrete crossing surface; 252-feet of rail; 78 cross-ties; 2-carloads of ballast and other track materials. 2. Install LED flashing signals wi gates & island gates; CWR circuitry; and new cabin. GILA SUBDIVISION MILE POST 961 .66 GPS: N 320 27.765', WIll 0 12.932' MARANA, PIMA CO., AZ. Illustrative print showing location of a new at-grade public road crossing construction project with the TOWN OF MARANA. Folder No. 2155-44 Date: March 27, 2003 WARNING IN ALL OCCASIONS, V.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF 1'1 flER OPTIC CABLE. PHONE: 1-(800) 336-9193 Contractor's ROE ExB 7/30/01 Form Approved, A VP-Law EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section I. NOTICE OF COMMENCEMENT OF WORK - FlAGGING. A. The Contractor agrees to notify the Railroad Representative at least ten (0) working days in advance of Contractor commencing its work and at least ten (0) working days in advance of proposed performance of any work by the Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, too1(s), materia1(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten OO)-day notice, the Railroad Representative will determine and inform the Contractor whether a flagman need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly pay to Railroad all charges connected with such services within thirty (30) days after presentation of a bill. B. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Uability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect on the day of execution of this agreement. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays; two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between the Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized Governmental Agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, the Contractor shall pay on the basis of the new rates and charges. C. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is furnished, unless he can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad by assignment of such flagman to other work, even though the Contractor may not be working during such time. When it becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor must provide the Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5)-days notice of cessation is not given, the Contractor will still be required to pay flagging charges for the five (5)-day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (0) days notice must then be given to the Railroad if flagging service are needed again after such five day cessation notice has been given Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of the Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Railroad without liability to the Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Railroad's property, and others) and the right of the Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. The Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of the Railroad, including without limitation, the operations of the Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done H:\DATA\FavoriteslAgreement FormslRood Crossing FormslPublic Road Crossing Agreement.doc Page 1 Exhibit B Contractor's ROE ExB 7/30/01 Form Approved, A VP-Law by the Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's mqchinery and materials shall be kept at least fifty (50) feet from the centerline of the Railroad's nearest track, and there shall be no . )hicular crossings of Railroads tracks except at existing open public crossings. B. Operations of the Railroad and work performed by the Railroad personnel and delays in the work to be performed by the Contractor caused by such railroad operations and work are expected by the Contractor, and Contractor agrees that the Railroad shall have no liability to Contractor, its subcontractors or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of the Railroad and third parties so as to avoid interference with railroad operations. The safe operation of the Railroad takes precedence over any work to be performed by the Contractor. Section 4. LIEN S. The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. The Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of the Railroad for any such work performed. The Contractor shall indemnify and hold harmless the Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If the Contractor fails to promptly cause any lien to be released of record, the Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF F1BER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. The Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, the Contractor shall indemnify, defend and hold the Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of the Contractor, its contractor, agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company 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, the Contractor shall secure any and all necessary permits and shall comply with all applicable federal. state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel. property, rail operations and the public is of paramount importance in the prosecution of the work performed by the Contractor. The Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. The Contractor shall at a minimum comply with the Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by the Railroad's own forces. As a part of the Contractor's safety responsibilities, the Contractor shall notify the Railroad if the Contractor determines that any of the Railroad's safety standards are contrary to good safety practices. The Contractor shall furnish copies of Exhibit D to each of its employees before they enter on the job site. B. Without limitation of the provisions of paragraph A above, the Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. The Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. The Contractor shall promptly notify the Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of the 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. H:\DATA\Favorites\Agreernent Fonns\Road Crossing forms\Public Road Crossing A~JleemeJ1t.doc Page 2 Exhibit B Contractor's ROE ExB 7/30/01 Form Approved, AVP-Law D. If and when requested by the Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety plan for , Jnducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require the Contractor to correct any deficiencies in the Safety Plan. The terms of this agreement shall control if there are any inconsistencies between this agreement and the Safety Plan. Section 8. INDEMNITY. A. To the extent not prohibited by applicable statute, the Contractor shall indemnify, defend and hold harmless the Railroad, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, any Indemnified Party, the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (Hi) any breach of this agreement by the Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss, and shall apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the sole active negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. The sole active negligence of any Indemnified Party shall not bar the recovery of any other Indemnified Party. C. The Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by the Contractor's own employees. The Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify the Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the Federal Employers' Uability Act against a party to this agreement may be relied upon or used by the Contractor in any attempt to assert liability against the Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by the Contractor or the termination or expiration of this agreement. In no event shall this Section 8 or any other provision of this agreement be deemed to limit any liability the Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. The Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by the Contractor shall in no way impair the right of the Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this agreement shall be effective unless made in writing and signed by the Contractor and the Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between the Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral. with respect to the work to be performed by the Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. The Contractor shall not assign or subcontract this agreement, or any interest therein, without the written consent of the Railroad. The Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by the Contractor as provided in this agreement, and to indemnify the Contractor and the Railroad to the same extent as the Railroad is indemnified by the Contractor under this agreement. H:\DATA\FavoriteslAgreement FormslRoad Crossing FormslPublic Road Crossing Agreemenl.doc Page 3 Exhibit B Contractor's Right of Entry ExC 07/30/01 Form Approved - A VP Law EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a single limit of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: . Bodily injury including death and personal injury . Property damage . Fire legal liability (Not less than the replacement value of the portion of the premises occupied) . Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: . "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." . The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. . Coverage for Contractor's (and Railroad's) employees shall not be excluded . Waiver of subrogation B. Business Automobile Coverage insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence or claim, including but not limited to coverage for the following: Bodily injury and property damage Any and all motor vehicles including owned, hired and non-owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: . "For purposes of this insurance, Union Pacific Railroad payments related to the Federal Employers Liability Act or a Union Pacific Wage Continuation Program or similar programs are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law." . The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. . Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liabilitv insurance including but not limited to: . Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement . Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self-insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. H:\DATA\FavoriteslAgreement Forms\Road Crossing Forms\Public Road Crossing Agreement.doc Page 1 of 2 Exhibit C Contractor's Right of Entry ExC 07/30/0 I Form Approved - A VP Law The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: . Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. E. Railroad Protective Liability insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the original policy is forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody and control. Contractor's insurance shall be primary with respect to any insurance carried by Railroad. All waivers of subrogation shall be indicated on the certificate of insurance. H. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Railroad as an additional insured. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. I. Prior to commencing the Work, Contractor shall furnish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. 1. Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)!broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractor's insurance coverage will be primary. L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. H:\DATA\FavoriteslAgreement FormslRood Crossing FormslPublic Rood Crossing Agreement.doc Page 2 of 2 Exhibit C Contractor's Right of Entry ExD 07/30/0 I Form Approved - AVP Law EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REOUIREMENTS The term "employees" as used herein refer to all employees of the Contractor as well as all employees of any subcontractor or agent of the Contractor. I. Clothing A. All employees of the Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, the Contractor's employees must wear: (i) Waist-length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety-toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment The Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (0 Hard hat that meets the American National Standard (ANSI) Z89.1 -latest revision. Hard hats should be affixed with the contractor's or subcontractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 -latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: 100 feet of a locomotive or roadway/work equipment · 15 feet of power operated tools 150 feet of jet blowers or pile drivers 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection - plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety The 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: H:\DATA\Favorites\A.greement Forms\Road Crossing Forms\Public Road Crossing Agreement.doc Page I of 2 Exhibit D Contractor's Right of Entry ExD 07/30/0 I Form Approved - A VP Law (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed. Contractors must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. The Contractors will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of the Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of the Contractor's equipment is unsafe for use, the Contractor shall remove such equipment from the Railroad's property. In addition, the Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: Familiar and comply with Railroad's rules on lockoutltagout of equipment. Trained in and comply with the applicable operating rules if operating any hy-rail equipment on-track. Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty- five (25) feetfrom any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. The Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. The Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On-Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by the Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR2l3. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. H:\DATA\Favorites\Agreemenl Fonns\Road Crossing Forms\Public Road Crossing Agreemenl.doc Page 2 of 2 Exhibit D