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HomeMy WebLinkAboutResolution 2016-011 Approving "Right of Entry and Indemnity Agreement for Bridge Painting"MARANA RESOLUTION NO. 2016 -011 RELATING To PUBLIC WORDS; APPROVING AND AUTHORIZING THE MAYOR To EXECUTE A "RIGHT OF ENTRY AND INDEMNITY AGREEMENT FOR BRIDGE PAINTING" WITH UNION PACIFIC RAILROAD COMPANY FOR THE BRIDGE OVER THE ORANGE GROVE ROAD UNDERPASS WHEREAS the Marana Public Works Department is preparing to paint infrastructure at the Orange Grove Road and Interstate 10 freeway interchange, including the orange Grove Road railroad underpass; and WHEREAS Union Pacific Railroad Company requires the Town to enter into its standard "Right of Entry and Indemnity Agreement for Bridge Painting" before allowing any painting to occur on railroad property; and WHEREAS the Mayor and Council of the Town of Marana find that the best interests of Marana and its citizens are served by approving this resolution. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the "Right of Entry and Indemnity Agreement for Bridge Painting" with Union Pacific Railroad Company in substantially the form attached to this resolution as Exhibit A is hereby approved, and the Mayor is authorized to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLV that the Town Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, conditions and objectives of the agreement. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 2 "" day f February, 2016. y y ATTEST: IN (W ARRA1 RIZO. � ocelyi}/fC. Bronson, Town Clerk 00045003.DOCX 11 Marana Resolution No. 2016 -011 May9do ea APP ROVED AS To FORM: Cassidy, Town Attorney 1127/2016 2:14 PM FJC RIGHT OF ENTRY AND INDEMNITY AGREEMENT FOR BRIDGE PAINTING THIS RIGHT OF ENTRY AND INDEMNITY AGREEMENT FOR BRIDGE PAINTING (the "Agreement ") is made this day of , 2016 by and between the TOWN OF MARANA (the "Town") and UNION PACIFIC RAILROAD COMPANY (' "UP""). WHEREAS, UP controls and operates a right-of-way and bridge (the "Premises ") in the Town of Marana, Arizona; WHEREAS, the Town desires the right to clean and paint UP's bridge (DOT# 748175X at Mile Post 975.35 Gila Sub) spanning the Orange Grove Road underpass, immediately east of Interstate 10 (the "Work"); WHEREAS, UP is willing to permit the Town to perform the work in accordance with the terms and conditions herein set forth; and . NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) in hand paid, other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, and the mutual covenants and promises herein contained, it is agreed between the parties as follows: 1. From the period starting from the date of execution of this Agreement, through the date that is one year from such date unless further extended by mutual agreement of the parties (the '"Term"), the Town, through its employees, agents, contractors, subcontractors, and/or other representatives, may, only once (meaning not on a repetitive basis) perform the work. Notwithstanding the foregoing, providing that UP shall first have approve the specifications therefore, as set forth in Section 2 hereof, the Town may also engage in periodic spot painting to remove graffiti (the "Spot Painting "). 2. All specifications for the work or Spot Painting, including but not limited to paint color and temporary attachment specifications (if any), must be submitted by the Town to UP for review and approval at least thirty (30) days prior to starting the Work or Spot Painting. No work or Spot Painting may begin until UP has approved the specifications. Upon receipt of the specifications, UP's authorized representative will determine and inform the Town whether a flagman need be present and whether the Town need implement any special protective or safety measures, including the use of reflective vests as well as other requirements enumerated in the section covering safety instructions. The Town shall perform the Work and Spot Painting so as not to interfere with the continuous and uninterrupted use of UP tracks or other operations (the "Operations "). If the handling of the work or Spot Painting may cause interference with the Operations, the Town shall obtain written instructions from UP's authorized representative as to the proper method of handling of the Work or Spot Painting. 3. The specifications for Spot Painting must include the paint color (which must be compatible with the most recent paint applied), application method (e.g. spray, brush, etc.), and structure access /reach equipment type (e.g. ladders, man --made lifts, etc.). UP may require paint removal prior to Spot Painting for safety reasons; if so, the Town must also submit a paint removal method (e.g. sand - blasting, chemical removal, etc.) to UP for approval. 4. The Town may not begin the Work or Spot Painting unless the Town has provided at least two (2) weeks prior written notice to UP of the intended Work or Spot Painting start date. Form Approved by Law Department September 1, 2009 5. Safety is of paramount importance. The Town shall take all reasonable precautions and is solely responsible for the safety of, and shall provide protection to prevent damage, injury, or loss to, all persons Who should reasonably be expected to be affected by the Work or Spot Painting, including individuals performing the Work or Spot Painting, employees of UP and its consultants, visitors to the Premises, and members of the public who may be affected by the Work or Spot Painting. 6. Upon the Town's request, UP will provide the Town with approximate daily train schedules to assist Town with planning the 'Work or Spot Painting schedule. 7. At no time will anyone performing the 'Work or Spot Painting be allowed beyond the bridge abutments on UP's property or be allowed on top of the bridge unless accompanied by UP personnel. S. The Town shall: (1) remove from the Premises upon completion of the Work or Spot Painting all supplies, equipment, waste materials, rubbish or temporary facilities used in the Town's performance of the Work or Spot Painting; and (ii) restore the Premises to its original condition prior to the Town's commencement of the Work or Spot Painting. 9. The Town agrees to and understands that all costs associated with the Work or Spot Painting will be paid solely by the Town and that UP will not make any financial contribution to the Work or Spot Painting; provided that UP shall pay for any flaggers determined by UP to be required pursuant to Section 2 of this Agreement. 10. As a material inducement for entering into this Agreement, and without which UP would not enter into the same, the Town covenants and agrees, that, except to the extent that Claims (defined below) are finally determined to be caused by the intentional misconduct or gross negligence of UP and/or its employees, the Town shall indemnify and hold harmless the UP from all fines, judgments, awards, claims, demands, liability, losses, damages and expenses (including attorney fees and costs) ( "Claims "), for injury or death to all persons, including the [JP's and the Town's employees, and for loss and damage to property belonging to any person (including environmental claims) arising resulting from the performance of this Agreement by the Town or any other person performing any work or service on the Town's behalf on or about the Premises. 11. Any contract between the Town and its contractor to perform the Work or Spot Painting herein described will include the insurance requirements for contractors set forth on Exhibit A hereto, which is incorporated by reference herein. 12. The Town shall. comply with all federal, state and local environmental laws and regulations in its work at the Premises and shall perform the Work or Spot Painting in an environmentally protective manner. Specifically, the Town shall: A. Prevent releases and spills of any materials that could harm human health or the environment, including but not limited to, hydrocarbon products, antifreeze, spent mechanical draining, solvents, hazardous substances and hazardous wastes as defined in the Comprehensive Environmental Response, Compensation and Liability Act and the Resource Conservation and Recovery Act, respectively ( "Environmental Substances "). B. Inthe event of a release or spill of an Environmental Substance, clean up such release by excavating contaminated soil, stockpiling it on an impermeable surface (i.e., Visqueen), and thereafter, properly dispose of such contaminated soil off ofthe Premises. Fonn Approved by Law Department September 1,2009 C. Prevent any released Environmental Substances from spreading and/or entering waterways by keeping a supply of absorbent materials on site (i.e., oil absorbent pads and booms) which shall be used for such purposes. D. Furnish a copy of the bill of lading or hazardous waste manifest for any shipment of Environmental Substances off -site to UP's facility manager. E. Obtain any environmental permits and prepare any environmental plans required as a result of the work or Spot Painting and make them available to UP upon request. F. Remove and properly dispose of all solid waste and rubbish on a regular basis. The Town, at its expense, shall assume all responsibility for the investigation and cleanup of any release or discharge of any Environmental Substance at the Premises that arises from the Town's performance of any work, presence or other activity at the Premises. In addition to other liability terms contained in this Agreement, the Town agrees to indemnify, defend and hold harmless UP, its officers, agents and employees, from and against all environmental costs and expenses, including without limitation, all environmental analysis and cleanup expenses, fines and claims, or penalties arising from any work, presence or activity of the Town at the Premises. The employees of the Town shall at all times be and remain the sole employees of the Town and subj ect to the direction, supervision and control of the Town. 13. In accordance with the Hazard Communication Standard (the "HCS ") issued by the Occupational Safety and Health Administration ( "OSHA ") (29 CFR, Part 1.91 0.1.200), UP has developed and implemented its Hazard Communication Program. At the specific UP facilities where potentially hazardous chemicals may be present, UP maintains a copy of its Hazard Communication written Plan (the "written Plan ") which, among other things, includes a list of the hazardous chemicals that may be present at the facility involved and the availability of Material Safety Data Sheets ( "MSDS "). The written Plan is available for review by the Town. The Town shall determine if the work or Spot Painting, under normal conditions or in a foreseeable emergency, will expose the Town, its officers, employees or agents to any hazardous chemicals on UP's property as listed in the written Plan, and if so shall: (1) review the Written Plan for the specific facility involved, and (2) inform its officers, employees and agents of such hazardous chemicals and that they may review UP's written Plan and obtain copies of applicable MSDS. The H.CS also requires that the parties to this Agreement exchange MSDS, as well as any additional information about precautionary measures necessary to protect both parties' employees where exposure may occur. The Town shall provide such information to UP, its officers, employees and agents, before the Town uses any hazardous chemicals (as defined in the HCS) in, on or about the Premises. 14. The Town recognizes that the Premises may contain lead paint or other lead components, and the Town assumes all risk and liability associated with the presence of such lead paint or other lead components. In the event that the Town (or its members, agents, employees, contractors, subcontractors, and or representatives) performs surface preparation activities in connection with painting, including but not limited to chipping, scraping, or abrasive blasting of any kind, then the Town shall ensure that proper lead containment measures are taken. Fonn Approved by Law Department September I, 2009 15. The retention of contractors by the Town does not relieve the Town of its obligation under the Agreement. The Town shall be responsible for all work of contractors and all contractors shall be governed by the terms ofthis Agreement. 16. The Town shall pay in full all persons who perform labor upon or provide services or materials in connection with the work or Spot Painting. The Town 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 UP for any such 'Work or Spot Painting performed. 17. Any notice given or required to be given to the Town or UP pursuant to any provisions of this Agreement shall be given in writing and shall be personally delivered, transmitted electronically or sent by U.S. registered mail, with necessary postage prepaid, and shall be deemed to have been duly given: (a) when delivered by hand; (b) one (1) day after delivery by receipted overnight delivery; or (c) three (3) days after being mailed by certified mail or registered mail with return receipt requested, to the following: If to the Town Town of Marana Attn: Ryan Benavides, Public Works Director 5100 W Ina Road Tucson, AZ 857453 Phone: (520) 382 -2506 Fax: (520) 382 -1995 Email: RBenavides @MaranaAZ.gov If to UP: Union Pacific Railroad Company Attn: 1400 Douglas Street, Mail Stop _ Omaha, NE 68179 Phone: (402) 544 -_ Fax: (402)_— Email: 18. This Agreement constitutes the entire agreement between the parties with respect to the subject matter described herein. No modification or alteration of the terms hereof shall be binding unless such modification or alteration is in writing and executed by the parties. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable. 19. This Agreement shall be binding upon the parties hereto and upon all persons successor in interest to said parties. This Agreement shall not be assignable by the Town without the express written consent of UP. 20. This Agreement shall be governed by and in accordance with the laws of the State of Arizona. 21. The failure of any party hereto to enforce at any time any of the provisions of this Agreement or to exercise any right or option which is herein provided shall in no way be construed to be a Form Approved by. Law Department September 1,2009 waiver of such provision(s) as to the future, nor in an wa to affect the validit of this A or an part hereof or the ri of either part to thereafter enforce each and ever such provision and to exercise an such ri or option. No waiver of an breach of this A shall be held to be a waiver of an other or subse breach. IN WITNESS WHEREOF, this A is executed this UNION PACIFIC RAILROAD COMPANY B Its *- Attest: Title: da of W111011 TOWN OE N34RAea, ARIZONA 1912 Its: l�l o-r' Atte Title:? � h ����, Form Approved b Law Department September 1, 2009 EXHIBIT A INSURANCE REQUIREMENTS The Town shall cause the contractor performing the Work to procure and maintain, during the life of this Agreement (except as otherwise provided in this Agreement) the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $ ].,000,000 each occurrence and an aggregate limit of not less than $2,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 1204 (or substitute form providing equivalent coverage). The policy must also contain the following endorsement, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE: Contractual Liability Railroads ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 O1 10 01 (or substitute form providing equivalent liability coverage) with a limit of not less $1,000,000 for each accident, and coverage must include liability arising out of any auto (including owned, hired, and non owned autos). The policy must contain the following endorsements, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE: Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. C. Workers' Compensation and Em to ers' Liability Insurance. Coverage must include but not be limitedto: 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 $100,000 each accident, $500,000 disease policy limit $100,000 each employee. If the Town is self - insured, evidence of state approval and excess workers' compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. D. Railroad Protective Liabilily Insurance. Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of UP as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to UP before any work may be commenced and until the original policy is forwarded to UP. E. Umbrella or Excess Insurance. If UP utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liab Insurance. If the Town's scope of work includes, bring any form of "hazardous" materials, to include fuel oil or gasoline not contained within their motor vehicles, onto UP's Form Approved by Law Department September I, 2009 property which is injurious in or upon land, the atmosphere, or any watercourses; or may cause bodily injury at any time the Town shall provide Pollution Liability Insurance. Ifrequired pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $1,000,000 per occurrence and an aggregate limit of $2,000,000. . Q t h . er RgUuirC G. All policy(ies) required above (except workers' compensation and employers' liability) ' must include UP as "Additional Insured" using ISM] Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage), and shall not be limited by the Town's liability under the indemnity provisions ofthis Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this Agreement, or (b) all punitive damages are prohibited by all states in which this Agreement will be performed. t. The Town waives all rights against UP and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the workers' compensation and employers liability or commercial umbrella or excess liability insurance obtained by the Town required by this Agreement. J. Prior to commencing any work, the Town shall furnish UP with a certificate(s) of insurance (except for Railroad Liability Insurance), executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement, and a Binder of Insurance showing compliance with the Railroad Protective Liability coverage required by this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to UP or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed. L. The fact that insurance is obtained by the Town or by UP on behalf of the Town will not be deemed to release or diminish the liability of the Town, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by UP from the Town or any third party will not be limited by the amount of the required insurance coverage. Form Approved by Law Department September 1,2009