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HomeMy WebLinkAboutContracts & Agreements_32-2017 CONSENT AGREEMENT- SAFETY IMPROVEMENTS RAILROAD CONTRIBUTION This consent agreement ("Agreement") between the City of Redlands, a municipal corporation ("City") and Union Pacific Railroad ('Railroad") serves as the Railroad's limited consent, subject to each and all of the terms, provisions and conditions contained herein for City to enter upon Railroad's property only as necessary for the City's performance of work related to the certain improvements at the Crossing that is depicted and described on Exhibit A ARTICLE 'I — GRANT OF LICENSE The license hereby granted to City shall commence on February 21, 2017, and continue for twelve(12)months,or until such time as City has completed its work set forth in this Agreement on Railroad's property, whichever is earlier It is understood and recognized that safety and continuity of Railroad's operations and communications must be adequately safeguarded, protected and assured City shall coordinate all of its work with the following Railroad representative or his duly authorized representative (the "Railroad Representative') Alexander Popovici The City represents and warrants that any and all of the work to be performed by City and its contractor(s) on or near the Crossing will be performed in accordance with the terms and conditions of this Agreement Further, it is understood and recognized that any and all work performed by City pursuant to this Agreement shall be done to the satisfaction of Railroad and in accordance Exhibit "A" and with City's plans and specifications for said work Each and every agreement made and/or consent granted by the Railroad pursuant to this instrument are made and/or granted on the condition that City adheres strictly to the terms, provisions, conditions, limitations, and covenants set forth herein If City hires any contractor(s)to perform any work on any portion of the Railroad's property, then City shall require each contractor to execute Railroad's then current form of Contractor's Right of Entry Agreement (the 'CROS") A draft CROE is attached in Exhibit °B " Under no circumstances will the City's contractor be allowed onto Railroad's premises without first executing the CROS, providing proof of the insurance required in the CROS, and abiding by the advance notice required in the CROS Railroad agrees to waive its administrative handling fee for the CROE In consideration of the City's cooperation and agreement to comply with the terms and conditions of this Agreement, any flagging or inspection work to be performed by Railroad and will be done at the Railroad's sole cost and expense Additionally, Railroad agrees to pay to City Eight Thousand_Dollars ($8,000) in connection with the City's work set forth in this Agreement, as depicted and described on Exhibit A City, after taking all actions necessary to complete the work will submit a written notice of completion and a billing statement for said amount, addressed to the undersigned at the Railroad After receipt of the above mentioned notice of completion and billing statement, the Railroad, in its sole discretion, shall inspect the Crossing to confirm completion of the work described in Exhibit A If said work is completed to Railroad's satisfaction and in accordance Exhibit A and with City's plans and specifications for said work, Railroads payment to City will be due and payable to the City within thirty (30) days after the later of (i) the date of completion of the work described in Exhibit A, and (it)the date City submits to Railroad its notice of completion and billing statement Railroad shall not be required to contribute any additional funding to the City 1 City hereby confirms that funds have been appropriated fog the work set forth in this Agreement The person signing this Agreement on behalf of City hereby confirms that he/she is authorized under City policies and procedures to execute this Agreement and to bind City to the obligations contained herein Whenever City or its representatives are on Railroad's property, a copy of this fully- executed document must be available at the site to be shown on request to any Railroad employee or official ARTICLE 2 -- MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refers to all employees of City as well as all employees of any subcontractor or agent of City I Clothing A All employees of City 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, City's employees must wear (1) Waist-length shirts with sleeves (u) 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 hedls 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 11 Personal Protective Equipment City shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations,or recommended or requested by the Railroad Representative (i) Hard hat that meets the American National Standard (ANSI) Z89 1 —latest revision Hard hats should be affixed with City's company logo or name (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z871 — latest 2 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 City is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations -- 49CFR214, Subpart C and Railroad's On-Track Safety rules Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations In addition to the instructions contained in Roadway Worker Protection regulations all employees must (i) Maintain a distance of twenty-five (25)feet to any track unless the Railroad Representative is present to authorize movements (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative (iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed City must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track City 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 City to ensure that all equipment is in a safe condition to operate If, in the opinion of the Railroad Representative, any of City's equipment is unsafe for use, City shall remove such equipment from Railroad's property In addition, City must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment In addition, operators must be ■ Familiar and comply with Railroad's rules on lockout/tagout of equipment ■ Trained in and comply with the applicable operating rules if operating any by-rad equipment on-track 3 ■ Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment B All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device C Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track Before leaving any equipment unattended the operator must stop the engine and properly secure the equipment against movement D Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines V General Safety Requirements A City shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations B City 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 City meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213 D All employees comply with the following safety procedures when working around any railroad track (1) Always be on the alert for moving equipment Employees must always expect movement on any track, at any time, in either direction i (u) 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 4 (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 5 Exhibit A Depiction and Description of Crossing Improvements Attached I E 6 .i w..* . y VIC1NITYMAP YIOwLI'.[MRA[OR9kIGL4'IW59��CYMO ulGi6U 44'3.e@q 'n�: minim��r��rEr.[.,. 1 �r..sr -ase P• Wr - ..4"6,i+<.., -P.- P+ - aa♦ RGMr ' _ � ®1Y �� a.�Y � ++..:1Nn F�sw+:ven E�_ `{�~n��� W !'tel[ � i � �,-nia w rn-e x,o aw e,e1 n[a.c[oowrerm ee fir•u.,e...� � ea � _ 0 eM1ec.b _ ��_ ,-•U�elIXn rR,4urMrt[Keri � �. SfGNLEGENO WURXAND OUANTiRES R£OLIREO NZ111- TYFAM4�yaricws CITY OF REDLAlVDS ,u[..._ .o4*rr•.•.�.::in.wi��..�_ � .Y,rr[.,yF I w.ksri alas«unaE,.w,...i.e o.ee,lm..l I SAN CANYON ROAD � - t ` - f ��•;*. �' SIGNING AND STRIPING • EXHISIT A V-, ? RAN Exhibit A-Location Crossing Public CA Redlands MP546 15 Yuma Subdivision DOT 903175Y San Timoteo Canyon Road Ok DOTOD3175Y SAN TIMOTEO CANYO j r 31175 SAN iia TE0 CA Exhibit B to Consent Letter—Safety Improvements Railroad Contribution Exhibit B Draft CROE Attached 7 Contractor's ROE (Generic)030113 Form Approved-AVP Law CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of ,20_, by and between UNION PACIFIC RAILROAD COMPANY,a Delaware corporation("Railroad"),and a corporation("Contractor") RECITALS Contractor has been lured by to perform work relating to (the"work"),with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Milepost on Railroad's [Subdivision or Branch] at or near DOT No located at or near ,in County,State of ,as such location is in the general location shown on the print marked Exhibit A, attached hereto and hereby made a part hereof, which work is the subject of a contract dated between Railroad and Railroad is willing to perrmt Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this agreement AGREEMENT NOW,THEREFORE,it is mutually agreed by and between Railroad and Contractor, as follows ARTICLE 1 - DEFINITION OF CONTRACTOR Fol purposes of this agreement,all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority ARTICLE 2- RIGHT GRANTED, PURPOSE E Railroad hereby grants to Contractor the right, during the terin hereinafter stated and upon and subject to each and all of the tenus,provisions and conditions herein contained,to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4 ARTICLE 3- TERMS AND CONDITIONS CONTAINED IN EXHIBITS B C AND D The terms and conditions contained in Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this agreement ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR RAILROAD REPRESENTATIVE A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor,or any costs or expenses incurred by Railroad relating to this agreement Contractor s Right of Entry Agreement I Contractor's ROE (Generic) 030113 Form Approved-AVP Law B Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative(the"Railroad Representative") C Contractor,at its own expense,shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work,or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative ARTICLE 5- SCHEDULE OF WORK ON A MONTHLY BASIS. The Contractoi, at its expense, shall provide on a monthly basis a detailed schedule of work to the Railroad Representative named in Article 4B above The reports shall start at the execution of this agreement and continue until this agreement is terminated as provided in this agreement or until the Contractoi has completed all work on Railroad's property ARTICLE 6- TERM. TERMINATION A The grant of right herein made to Contractor shall commence on the date of this agreement, and continue until unless sooner ternunated as herein provided, or at such time as Contractor has completed its work on Railroad's property,whichever is earlier Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property B This agreement maybe terminated by either party on ten(10)days written notice to the other party ARTICLE 7- CERTIFICATE OF INSURANCE I i A A Before commencing any work, Contractor will provide Railroad with the (1) insurance binders, policies,certificates and endorsements set forth in Exhibit C of this agreement,and(n)the insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this agreement B. B All insurance correspondence,binders,policies, certificates and endorsements shall be sent to Union Pacific Railroad Company [Insert marling address] Attn Folder No Contractor s Right of Entry Agreement 2 Contractor's ROE(Generic) 030113 Form Approved-AVP Law ARTICLE 8- DISMISSAL OF CONTRACTOR's EMPLOYEE At the request of Railroad,Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property ARTICLE 9- ADMINISTRATIVE FEE Upon the execution and delivery of this agreement, Contractor shall pay to Railroad Dollars ($ ) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this agreement ARTICLE 10 CROSSINGS, COMPLIANCE WITH MUTCD AND FRA GUIDELINES A No additional vehicular crossings (including ternporary haul roads)or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad B Any permanent or temporary changes, including temporary traffic control, to crossings must conform to the Manual of Unifon-n Traffic Control Devices (MUTCD) and any applicable Federal Railroad Administration rules, regulations and guidelines,and must be reviewed by the Railroad prior to any changes being implemented In the event the Railroad is found to be out of compliance with federal safety regulations due to the Contractor's modifications, negligence, of any othei reason arising from the Contractor's presence on the Railroad's property, the Contractor agrees to assume liability for any civil penalties imposed upon the Railroad for such noncompliance ARTICLE 11 EXPLOSIVES Explosives or other highly flammable substances shall not be stored or used on Railroad's property without the prior written approval of Railroad IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written UNION PACIFIC RAILROAD COMPANY I By Title (Name of Contractor) By Title Contractoi's Right of Entry Agreement 3 EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Exhibit A will be a print showing the general location of the work site Contractor's Right of Entry Agreement Exhibit A—Print Shoeing General Location of Work Site EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Section I NOTICE OF COMMENCEMENT OF WORK-FLAGGING A Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least thirty(30)working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty five (25) feet of any track, or will be near enough to any track that any equipment extension(such as,but not limited to,a crane boom)will reach to within twenty-five(25)feet of any track No work of any kind shall be performed,and no person,equipment,machinery,tool(s),material(s),vehicle(s), or thing(s)shall be located,operated,placed,or stored within twenty-five(25)feet of any of Railroad's track(s)at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains Upon receipt of such thirty (30) day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures If flagging or other special protective or safety measures are performed by Railroad,Railroad will bill Contractor for such expenses incurred by Railroad,unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30)days of Contractor's receipt of billing If Railroad perforins any flagging,or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this agreement B The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with labor agreements and schedules in effect at the time the work is performed In addition to the cost of such labor,a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension,Employees Liability and Property Damage and Administration will be included,computed on actual payroll The composite charge will be the prevailing composite charge in effect at the time the work is performed One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays Wage rates are subject to change, at any time,by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency Additional charges on labor are also subject to change If the wage rate or additional charges are changed,Contractor(ot the governmental entity, as applicable) shall pay on the basis of the new rates and charges C Reimbursement to Railroad will be required covering the frill eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required foi the portion of the day during which the flagman is engaged in other Railroad work Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work,even though Contractor may not be working during such time When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position. in compliance with union collective bargaining agreements,Contractor must provide Railroad a minimum of five(5)days notice prior to the cessation of the need for a flagman If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five(5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad Contractor's Right of Entry Agreement Exhibit B B-1 Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct,maintain,repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelmes, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages B The foregoing grant is also subject to all outstanding superior rights(whether recorded or unrecorded and including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment Section 3 NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative Nothing shall be done or permitted to be done by Contractor at any trine that would in any manner impair the safety of such operations When not in use,Contractor's machinery and materials shall be kept at least fifty(50)feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings B Operations of Railroad and work performed by Railroad personnel and delays in the work to be perfonned by Contractor caused by such railroad operations and work are expected by Contractor,and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor Section 4. LIENS Contractor shall pay in full all persons who perforin laboi or provide materials for the work to be performed by Contractor Contractor shall not create,pennit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed Contractoi shall indemnify and hold harmless Railroad from and against any and all liens,claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done,labor performed, of materials furnished If Contractor falls to promptly cause any lien to be released of record Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense Section 5 PROTECTION OF FIBER OPTIC CABLE SYSTEMS A Fiber optic cable systems maybe buned on Railroad's property Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits Contractor shall telephone Railroad during normal business hours(7 00 a m to 9 00 p m Central Time,Monday through Friday, except holidays) at 1-800 336-9193 (also a 24-hour, 7-day number for emergency calls) to deten-nine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor If it is, Contractor will telephone the telecommunications coinpany(ies)involved,make arrangements for a cable locator and,if applicable,for relocation or other protection of the fiber optic cable Contractor shall not commence any work until all such protection or relocation (if applicable)has been accomplished B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, CONTRACTOR SHALL INDEMNIFY,DEFEND AND HOLD RAILROAD HARMLESS FROM AND AGAINST Contractor's Right of Entry Agreement Exhibit B B-2 ALL COSTS, LIABILITY AND EXPENSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES) ARISING OUT OF ANY ACT OR OMISSION OF CONTRACTOR, ITS AGENTS AND/OR EMPLOYEES, THAT CAUSES OR CONTRIBUTES TO (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON RAILROAD'S PROPERTY,AND/OR(2) ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEHALF OF ANY TELECOMMUNICATIONS COMPANY, AND/OR ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, ON RAILROAD'S PROPERTY CONTRACTOR SHALL NOT HAVE OR SEEK RECOURSE AGAINST RAILROAD FOR ANY CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL DAMAGE TO A TELECOMMUNICATION COMPANY USING RAILROAD'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON RAILROAD'S PROPERTY Section 6 PERMITS- COMPLIANCE WITH LAWS. In the prosecution of the work covered by this agreement,Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations Section 7 SAFETY A. Safety of personnel,property,rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor Contractor shall be responsible for initiating,maintaining and supervising all safety, operations and programs in connection with the work Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices Contractor shall furnish copies of Exhibit D to each of its employees before they enter thejob site B Without limitation of the provisions of paragraph A above, Contractor shall keep the fob 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 J ob C Contractor shall have proper first aid supplies available on they ob site so that prompt first aid services may be provided to any person injured on thejob site Contractot shall promptly notify Railroad of any US Occupational Safety and Health Administration reportable injuries Contractor shall have a nondelegable duty to control its employees while they are on the fob site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage,drug or other substance that may inhibit the safe performance of any work D If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan") Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan The terms of this agreement shall control if there are any inconsistencies between this agreement and the Safety Plan Section 8 INDEMNITY A. TO THE EXTENT NOT PROHIBITED BY APPLICABLE STATUTE, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS AND EMPLOYEES (INDIVIDUALLY AN "INDEMNIFIED PARTY" OR COLLECTIVELY "INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEY'S, CONSULTANT'S AND EXPERT'S FEES, AND COURT COSTS), FINE OR PENALTY Contractoi's Right of Entry Agreement Exhibit B B-3 (COLLECTIVELY, "LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY, CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT OF OR IN ANY MANNER CONNECTED WITH (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES,OR(III)ANY BREACH OF THIS AGREEMENT BY CONTRACTOR B THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS,AND SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABLISHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY THE INDEMNIFIED PARTIES UNDER THIS SECTION 8 CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO. D NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS'LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST ANY INDEMNIFIED PARTY E THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN NO EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW Section 9 RESTORATION OF PROPERTY In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work,restoring Railroad's property to the same state and condition as when Contractor entered thereon Section 10 WAIVER OF DEFAULT Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default Section 11. MODIFICATION-ENTIRE AGREEMENT No modification of this agreement shall be effective unless made in writing and signed by Contractor and Railroad This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor's Right of Entry Agreement Exhibit B B-4 Contractor and Railroad and cancel and supersede any prior negotiations,understandings or agreements,whether written or oral,with respect to the work to be performed by Contractor Section 12 ASSIGNMENT-SUBCONTRACTING Contractor shall not assign or subcontract this agreement,or any interest therein,without the written consent of the Railroad Contractor shall be responsible for the acts and omissions of all subcontractors Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law, (1)require each of its subcontractors to include the Contractor as "Additional Insured" on the subcontractor's Commercial General Liability policy and Umbrella or Excess policies (if applicable) with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 10, and CG 20 37 (or substitute forms providing equivalent coverage, (2) require each of its subcontractors to endorse their Commercial General Liability Policy with"Contractual Liability Railroads"ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for thejob site, and(3)require each of its subcontractors to endorse their Business Automobile Policy with"Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute form providing equivalent coverage)for the job site Contractor's Right of Entry Agreement Exhibit B B-5 EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Union Pacific Railroad Company Insurance Provisions for Contractor's Right of Entry Agreement Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroads property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage A Commercial General Liability insurance Commercial general liability(CGL) with a limit of not less than$1,000,000 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 12 04 (or a substitute form providing equivalent coverage) The policy roust 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 01 10 01 (or a substitute form providing equivalent liability coverage)with a combined single 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 a substitute form providing equivalent coverage)showing"Union Pacific Property" as the Designated Job Site • Motor Carrier Act Endorsement -Hazardous materials cleanup(MCS-90) if required bylaw C Workers' CornDensatron and Emr)lovers' Liabilitv insurance Coverage must include but not be limited to • Contractor's statutory liability under the workers'compensation laws of the state where the work is being performed • Employers'Liability(Part B)with limits of at least$500,000 each accident, $500,000 disease policy limit $500,000 each employee If Contractor is sell-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 Umbrella or Excess insurance If Contractor utilizes umbrella or excess policies, these policies must"follow form"and afford no less coverage than the primary policy Contractor's Right of Entry Agreement Exhibit c C 1 Other Requirements E. All policy(ies) required above(except business automobile,worker's compensation and employers liability)must include Railroad as "Additional Insured"using ISO Additional Insured Endorsements CG 20 10, and CG 20 37 (or substitute forms providing equivalent coverage) The coverage provided to Railroad as additional insured shall not be invited by Contractor's liability under the indemnity provisions of this agreement BOTH CONTRACTOR AND RAILROAD EXPECT THAT UNION PACIFIC RAILROAD COMPANY WILL,BE PROVIDED WITH THE BROADEST POSSIBLE COVERAGE AVAILABLE BY OPERATION OF LAW UNDER ISO ADDITIONAL INSURED FORMS CG 20 10 AND CG 20 37 F Punitive damages exclusion,if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfiilly 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 G Contractor waives all rights of recovery,and its insurers also waive all rights of subrogation of damages against Railroad and its agents,officers, directors and employees for damages covered by the workers compensation and employers liability or commercial umbrella of excess liability obtained by Contractor required in this agreement where prohibited by law This waiver must be stated on the certificate of insurance H. Prior to commencing the work, Contractor shall fiirnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer,showing compliance with the insurance requirements in this agreement Z. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A-and Class VII of better,and authorized to do business in the state where the work is being performed J The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including,without limitation, liability under the indemnity provisions of this agreement Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage I i � Contractor's Right of Entry Agreement Exhibit C C-2 EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The terin"employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor I Clothing A All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision,hearing, or free use of their hands or feet Specifically, Contractor's employees must weal 1 Waist-length shirts with sleeves 11 Trousers that cover the entire leg If flare-legged trousers are worn,the trouser bottoms must be tied to prevent catching in 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 weal boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or heels that are higher than normal C Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery II Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative 1 Hard hat that meets the American National Standard(ANSI)Z89 1 —latest revision Hard hats should be affixed with Contractor's company logo or name 11 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 ni 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 0 100 feet of a locornotive 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) Contractor's Right of Entry Agreement Exhibit D D t 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 Contractoi is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations—49CFR214, Subpart C and Railroad's On-Track Safety riles Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations In addition to the instructions contained in Roadway Worker Protection regulations,all employees must i Maintain a distance of twenty five (25) feet to any track unless the Railroad Representative is present to authorize movements mi Wear an orange,reflectorized workwear approved by the Railroad Representative ill Participate in a fob briefing that will specify the type of On-Track Safety for the type of work being performed Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling IV Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate If,in the opinion of the Railroad Representative, any of Contractoi s equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property In addition, Contractoi 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 • Familial and comply with Railroad's rules on lockout/tagout of equipment • Trained in and comply with the applicable operating rules if operating any by-rail equipment on-track • Trained in and comply with the applicable ail brake riles 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, amid audible back-up warning device C Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five(25)feet from any track Before leaving any equipment unattended,the operator must stop the engine and properly secure the equipment against movement D Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines V General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations Contractor's Right of Entry Agreement Exhibit D D-2 S. Contractor shall ensure that all erriployces participate in and comply with a fob 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 thein during the fob briefing Additional fob briefings will be conducted during the work as conditions, work procedures, or personnel change C All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213 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 tinder, 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 I j Contractor's Right of Entry Agreement Exhibit D D-3 IN WITNESS WHEREOF, duly authorized representatives of City and Railroad have signed in confirmation of this Agreement CITY OF REDLANDS UNIONPACIFICR LROAD By Paul W Foster, Mayor Kevin D Hicks AVP Engineering ATTEST ,le n e Donaldson, City Clerk 8