The URL can be used to link to this page

C.D. # 2562-96 Schilling Road Pedestrian CrossingKANSAS City Original SU1LINNC AMERICAt UPRR Folder No.: 2562-96 UPRR Audit No.: al�aq� PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT Schilling Road — DOT No. 815-075C Railroad Mile Post 546.94, on its SID Industrial Lead Salina, Saline County, Kansas THIS AGREEMENT, executed in duplicate this _ day of 200 by and between UNION PACIFIC RAILROAD COMPANY a Delaware corporation (hereinafter the "Railroad"), and the CITY OF SALINA, a municipal corporation of the State of Kansas (hereinafter the "City"), WITNESSETH: RECITALS: The City has requested the Railroad to improve the existing Schilling Road crossing, at grade, along, over and across the Railroad's track and right of way at Railroad Mile Post 546.94, on its SID Industrial Lead, DOT No. 815-075C, in Salina, Salina County, Kansas to which the Railroad is agreeable, but solely upon terms and conditions hereinafter set forth. AGREEMENT: NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: SECTION L The exhibits below are attached hereto and hereby made a part hereof. Exhibit A Railroad Location Print Exhibit A-1 Detailed Print Exhibit B Railroad's Material and Force Account Estimate Exhibit C Railroad Form of Contractor's Right of Entry Agreement SECTION 2. The Railroad shall furnish all labor, material, equipment and supervision for: • Relay 80 -feet of rail; • Install 24 -feet of concrete crossing panels; • Install 25 cross ties; • Install 1 carload of ballast: • Other signal, track and surface materials; • Flagging, Public Road Crossing Improvement Agreement Articles of Agreement June 24, 2009 Form Approved -AVP Law 11/03/2006 Page 1 of 4 BUILIMNG AIMMCAI° Umm qjUp all at the intersection of the Railroad's SID Industrial Lead with Schilling Road at the location heretofore described, as shown generally on the Railroad Location Print and Detailed Print respectively marked Exhibit A and Exhibit A-1, each hereto attached and hereby made a part hereof. SECTION 3. The City agrees to reimburse the Railroad for one hundred percent (100%) of Railroad's actual labor and material costs associated with the work and materials described in Section 2 above. The Railroad estimates such cost to be Forty -Five Thousand Five Hundred Thirty -Seven Dollars ($45,537.00), as set forth in the Railroad's Material and Force Account Estimate marked Exhibit B, hereto attached and hereby made a part hereof. During the performance of such work the Railroad will provide progressive billing to City based on Railroad's actual costs. Actual costs to the Railroad shall include customary additives to materials, services and labor provided by the Railroad which shall include direct and indirect overhead costs. Within 120 Days after Railroad has completed its work; the Railroad will submit a final billing to City for any balance owed. City shall pay the Railroad within thirty (30) days of its receipt of all bills submitted by the Railroad. SECTION 4. The Railroad, at its cost, shall maintain the crossing between the track tie ends. If, in the future, the City elects to have the surfacing material between the track tie ends replaced with paving_ or some _surfacing -material -other -than-timber planking, the-Railroad,--at-the City's expense; - shall install such replacement surfacing. SECTION 5. The City, at its sole cost and expense, shall provide traffic control, barricades, and all detour signing for the crossing work, provide all labor, material and equipment to install concrete or asphalt street approaches, and if required, will install advanced warning signs, and pavement markings in compliance and conformance with the Manual on Uniform Traffic Control Devices. SECTION 6. If City's contractor(s) is/are performing any work described in Section 5 above, then the City shall require its contractor(s) to execute the Railroad's standard and current form' of Contractor's Right of Entry Agreement attached hereto as . Exhibit C and hereby mad a part hereof. City acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor(s) of the need to execute the Agreement. Under no circumstances will the City's contractor(s) be allowed onto the Railroad's premises without first executing the Contractor's Right of Entry Agreement. SECTION 7. 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. City or its contractor(s) shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour number, 7 day Public Road Crossing Improvement Agreement Articles of Agreement June 24, 2009 Form Approved -AVP Law 11/03/2006 Page 2 of 4 L\ 6t11LDING AMERICA►° number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City or its contractor(s). If it is, City or its contactor(s) 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 8. The City, for itself and for its successors and assigns, hereby waives any right of assessment against the Railroad, as an adjacent property owner, for any and all improvements made under.this agreement. SECTION 9. Covenants herein shall inure to or bind each party's successors and assigns; provided, no right of the City shall be transferred or assigned, either voluntarily or involuntarily, except by express written agreement acceptable to the Railroad. SECTION 10. The City shall, when returning this agreement to the Railroad (signed), cause same to be accompanied by such Order, Resolution, or Ordinance of the governing body of the City, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of the City with the power so to do, and which also will -certify-that-funds--have--been appropriated and are available --for the payment -of any sums herein- agreed ereinagreed to be paid by City. ARTICLE 11. The City agrees to reimburse the Railroad the cost of future maintenance of the automatic grade -crossing protection within thirty (30) days of the City's receipt of billing. SECTION 12. For and in consideration TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) to be paid by the City to the Railroad upon the execution and delivery of this Agreement and in further consideration of the City's agreement to perform and abide by the terms of this Agreement including all exhibits, the Railroad hereby grants to the City the right to establish or reestablish, construct or reconstruct, maintain, repair and renew the road crossing over and across the Crossing Area. Public Road Crossing Improvement Agreement Articles of Agreement June 24, 2009 Form Approved -AVP Law 11/03/2006 Page 3 of 4 N BWLIMN4 AMEREW - IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RA;LROAD COMPANY Federal Tax IW #94-6001323) AUU'G. ATTEST: (Seal) Contracts CITY OF SALINA By Title: I I tCt1l� /r Pursuant to Resolution/Order No. cp—(e& H dated f_ hereto attach d. Public Road Crossing Improvement Agreement Articles of Agreement June 24, 2009 Foran Approved -AVP Law 11/03/2006 Page 4 of 4 N RESOLUTION NUMBER 09-6654 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY TO CONSTRUCT AN AT -GRADE PUBLIC PEDESTRIAN CROSSING FOR A HIKE/BIKE TRAIL ALONG SCHILLING ROAD BETWEEN NINTH STREET AND OHIO STREET. WHEREAS, the South Ninth Street Phase IV Improvements (Project No. 06-1579) includes a 10 feet wide hike/bike trail on the north side of Schilling Road; and WHEREAS, the hike/bike trail will connect the Ninth Street corridor to the South Ohio hike/bike trail. SO NOW THEREFORE, BE IT RESOLVED by the Governing Body of the City of Salina, Kansas: Section 1. That the Mayor is hereby authorized to execute an agreement with Union Pacific Railroad Company to construct an at -grade public pedestrian crossing for a hike/bike trail along Schilling Road between Ninth Street and Ohio Street, subject to the terms and conditions of the agreement. Section 2. That the City Clerk is hereby directed to file the original agreement and retain according to the City of Salina Records Management Policy. Section 3. That this resolution shall be in full force and effect from and after its adoption. Adopted by the Board of Commissioners and signed by the Mayor this 24`h day of August, 2009. (SEAL) ATTEST: Shandi Wicks, Deputy City Clerk GC i Lars4onao;e- +% I RAILROAD LOCATION PRINT OF AN EXISTING AT -GRADE PUBLIC ROAD CROSSING RECONSTRUCTION & WIDENING PROJECT S RAILROAD WORK TO BE PERFORMED: EXHIBIT "A" 1. Re-lay 80 -feet of track; install 24 -feet of concrete road crossing UNION PACIFIC RAILROAD COMPANY panels; install 25 cross ties; install I carload of ballast; and SID INDUSTRIAL LEAD other track & surface materials. MILE POST 546.94 2. Engineering Design Review & Flagging. GPS: N 38° 47.0070', W 97° 36.2399' SALINA, SALINE CO., KS. Railroad Location Print of an existing at -grade public road crossing reconstruction and widening project with the CITY OF SALINA. Folder No. 2562-96 Date: June 24, 2009 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print PRO COR. —��---� -.� — D.M.G. • sr.PRQPOSED 10' SIDEWALK. �..._ O.M. `- ____...:'�___--�•- 35 SCHILLING . •SGS z 'Z.$D,i OGRADE-SEPARATION' PRIVATE CROSSING `PtBUC:.. , STATE,<<�tT CITY� & STREET/ W j1i" �r DOT CD x -. _ CD CLs i 1 it 1' .......__....... :._..—:_...._._.............._.._:.............. .._. t ' LEGEND 1 PROPOSED CONCRETE SIDEWA X PEDISTRIAN CROSSING Ly•,`.. PROPOSED CONCRETE PANE[. RAILROAD CROSSING EXTENSION . CONSTRUCTION LIMITS {!1 Q 1-j- Z J N C4 - f • o . �l `' N + `ia ike M `� �f Q PRO COR. —��---� -.� — D.M.G. • sr.PRQPOSED 10' SIDEWALK. �..._ O.M. `- ____...:'�___--�•- 35 SCHILLING . •SGS z 'Z.$D,i OGRADE-SEPARATION' PRIVATE CROSSING `PtBUC:.. , STATE,<<�tT CITY� & STREET/ W j1i" �r DOT CD x -. _ CD CLs i 1 it 1' .......__....... :._..—:_...._._.............._.._:.............. .._. t ' LEGEND 1 PROPOSED CONCRETE SIDEWA X PEDISTRIAN CROSSING Ly•,`.. PROPOSED CONCRETE PANE[. RAILROAD CROSSING EXTENSION . CONSTRUCTION LIMITS {!1 Q 1-j- Z J N C4 M 001 A u;es D.M., R/W 50. 1_ �• ! t ' • I I �i 36.`'� Ii I Z j• SECTION CORNER 1. RR SIGNAL kRN 1 'tai `n RR S NAL M " rh-------------------- ------ F PROPOSED 10' SIDEWALK _--- J 37 ROAD U.P.R.R. SQHILUNG RD. M.P.: 846.94 DOT 815-075C CITY OF SAUNA,. KANSAS PUBUC WORKS - ENGINEERING -- MIMES SCHILLING ROAD,. SIDEWALK UPRR CROSSING Mar 2009 Not to Scale 1-j- i J N C4 M 001 A u;es M cq Cp t CV a end N + `ia tp + � + e4a r`�,aMaiia U.P.R.R. SQHILUNG RD. M.P.: 846.94 DOT 815-075C CITY OF SAUNA,. KANSAS PUBUC WORKS - ENGINEERING -- MIMES SCHILLING ROAD,. SIDEWALK UPRR CROSSING Mar 2009 Not to Scale IT 0 DATE: 2009-04-28 ESTIMA'T'E OG MATERIAL ANO 80RCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 NONTNS EXPIRATION DATE IS :2009-10-27 DESCRIPTION OF WORK: 2009 RECOLLECTIBLE PROJECT N.P. 546.94 SID IND. LEAD, SCHILLING ROAD, SALINA, ECS. DOT 11815075C INSTALL 24 T.F. OF CONCRETE CROSSING SURFACE AS A SIDEWALK EXTENSION COST: 100% CITY OF SALIVA - PROJECT ESTIMATED USING FEDERAL ADDITIVES WITH INDIRECT AND OVERHEAD - 20S8 PID: 65000 AM: 01329 MP,SUBDXV: 546.94, SALINA SERVICE UNIT: 14 CITY: SALINA STATE: XS DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPM TOTAL ENGINEERING WORK ENC:'[NEERiNI�-'.,.�______-_:__:::::__�__.:-_-_:_.:.:__1Q00 __:::--=-:__:::_::-_1040'.4::::_:•:—__=:x::1000 LABOR ADDITIVE 205% 2050 2050 2050 TOTAL ENGINEERING ------- -------- 3050 -------- -------- 3050 -------- 3050 SIGNAL WORK LABOR ADDITIVE 2054j 1341 1341 1341 SALES TAX 6 6 6 SIGNAL 654 172 826 826 TOTAL SIGNAL ------ ------- 1995 -------- 178 -------- 2173 ---------- 2173 - -TRACK & SURFACE NORK BALAST 1.00 CL 1164 779 1943 1943 BILL PREP 900 900 900 CONTRACT - MISC 1000 1000 1000 ENVIRONHENTAi - PURMITS 1 1 1 EQUIPMENT RENTAL W/OPER 2500 2500 2500 FIELD WELD 34 34 34 FOSEIGN LINE FREIGHT 206 206 206 HOME LINE FREIGHT 900 900 900 LABOR ADDITIVE 205% 13476 13476 13476 MATT+ STORE EXPENSE 75 75 75 OTN 310 292 602 602 RAIL 80.00 IF 419 1714 2133 2133 14)XING 24.00 TF 2045 4923 6968 6968 SALES TAX 403 403 403 TRACK-RETIR8 413 413 413 TRK-SURF,LIN 2566 2566 2566 WELD 1131 254 1385 1385 XTIE 25.00 EA 2630 2179 4809 4809 TOTAL TRACK S SURFACE 24188 --- 16126 -------- 40314 --- 40314 -M_--- ------- LABOR/MATERIAL EXPENSE 29233 16304---------------- MCOLLECTISLE/UPRR EXPENSE 45537 0 ESTIMATED PROJECT COST 45537 EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLL MATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS -------_ THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE. RATE. O Exhibit B: Railroad's Material and Force Account Estimatel June 24, 2009 To the Contractor: UPRR Folder No.: 2562-96 Before Union Pacific Railroad Company can permit you to perform work on its property for the proposed construction of a pedestrian sidewalk alongside the existing Schilling Road at -grade public road crossing, it will be necessary for you to complete and execute two originals of the enclosed Contractor's RLy,ht o Entry Agreement. Please: 1. Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of Entry Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Execute and return all copies of the Contractor's Right of Entry Agreement together with your Certificate -of Insurance as -required -in -Exhibit -B- in -the -attached,, self-addressed-envelope.- 5. elf addressed -envelope 5. Include a 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 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. Under Exhibit B of the enclosed Contractor's Right of Entry Agreement, 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 Mr. Mike McGrade of Marsh USA @ 800-729-7001, e-mail: william.i.smith@marsh.com. This agreement will not be accepted by the Railroad Company until you have returned all of the following to the undersigned at Union Pacific Railroad Company: 1. Executed, unaltered duplicate original counterparts of the Contractor's Right of Entry Agreement; 2. Your check in the amount of $500.00 to pay the required balance due of the required Contractor's Right of Entry fee. (The Folder Number and the name "Paul G. Farrell" should be written on the check to insure proper credit). If you require formal billing, you may consider this letter as a formal bill; 3. Copies of all of your up-to-date General Liability, Auto Liability & Workman's Compensation Insurance Certificates (yours and all contractors), naming Union Pacific Railroad Company as additional insured; Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179-1690 fax: 402.501.0340 4. Copy of your un -to -date Railroad Protective Liability Insurance Certificate (yours and all contractors ), naming Union Pacific Railroad Company as additional insured. day! RETURN ALL OF THESE REQUIRED ITEMS TOGETHER IN ONE ENVELOPE. DO NOT MAIL ANY ITEM SEPARATELY. If you have any questions concerning this agreement, please contact me as noted below. Have a safe Paul G. Farrell Senior Manager Contracts Phone: (402) 544-8620 e-mail: pgfarrell@up.com Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179-1690 fax: 402.501.0340 Contractor's ROE (Generic) 08-15-07 Form Approved - AVP Law UPRR Folder No.: 2562-96 UPRR Audit No.: 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 ("Railroad"); and a (State of Corporation) RECITALS: (NAME OF CONTRACTOR) corporation ("Contractor"). Contractor has been hired by the City of Salina ("City") to perform work relating to the proposed construction of a pedestrian sidewalk alongside the existing Schilling Road at -grade public road crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the -vicinity of the Railroad's -Mile Post 546.94 ori the Railroad's SID -Industrial -Lead -i -n Salina, Saline County, Kansas, as such location is in the general location shown on the Railroad Location Print marked Exhibit A, and as specified on the Detailed Print marked Exhibit A-1, each attached hereto and hereby made a part hereof, which work is the subject of a contract dated between Railroad and the City. (Date of Contract) The Railroad is willing to permit the 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. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. uwioH Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing Contractor's ROE (Generic) 08-15-07 Page 1 of 4 June 24, 2009 Form Approved - AVP Law Contractor's ROE (Generic) 08-15-07 Form Approved - AVP Law BUILMNG AMERICA" 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 & D. The General Terms and Conditions contained in Exhibit B, the Contractor's Insurance Requirements in Exhibit C and the Minimum Safety Requirements in Exhibit D, each attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES- TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Larry Huddleston Manager Track Maintenance Union Pacific Railroad Company RR 1 Box 14 Alexandra KS 67513 Phone: (719)962-3201--- Fax: 719)962-3201Fax: (719) 962-3225 Cell: (620) 242-5221 Jaret Jenkins Manager Signal Maintenance Union Pacific Railroad Company 5' & B Street Fairbury, NE 68352 Phone: 402-729-6658 Cell. 402-960-5548 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 - 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 (Expiration Date) at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party - Contractor's ROE (Generic) 08-15-07 Page 2 of 4 June 24, 2009 Form Approved - AVP Law Contractor's ROE (Generic) 08-15-07 Form Approved - AVP Law MAUDtpG AMERICA° ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with the (i) insurance binders, policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this Agreement. B. All insurance correspondence, binders, policies, certificates and endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 UPRR Folder No.: 2562-96 ARTICLE 7 - 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 8 - ADMINISTRATIVE FEE. Upon -the- execution and -delivery -of this--Agreement,-Contractor-shall-pay-to -Railroad- FIVE -- HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. ARTICLE 9 - CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. Contractor's ROE (Generic) 08-15-07 Page 3 of 4 June 24, 2009 Form Approved - AVP Law Contractor's ROE (Generic) 08-15-07 Form Approved - AVP Law BUI L1!!NG AMERWX IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) PAUL G. FARRELL Senior Manager Contracts (Name of Contractor) LIM Title: Contractor's ROE (Generic) 08-15-07 Page 4 of 4 June 24, 2009 Form Approved - AVP Law N I RAILROAD LOCATION PRINT "'" "-E ACCOMPANYING A S CONTRACTOR'S RIGHT OF ENTRY AGREEMENT -UUI WWICYU I ut, -'Slt) ftIshial'Lead .e RAILROAD WORK TO BE PERFORMED: I EXHIBIT "A" 1. Re-lay 80 -feet of track; install 24 -feet of concrete road crossing panels; install 25 cross ties; install 1 carload of ballast; and other track & surface materials. Z. Engineering Design Review & Flagging. UNION PACIFIC RAILROAD COMPANY SID INDUSTRIAL LEAD MILE POST 546.94 GPS: N 38° 47.0070', W 97° 36.2399' SALINA, SALINE CO., KS. To accompany Contractor's Right of Entry Agreement with (Name of Contractor) for an existing at -grade public road crossing reconstruction and widening project. Folder No. 2562-96 Date: June 24, 2009 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 14800) 336-9193 Exhibit A Railroad Location Print --Fir' .............. ....... ...... . . ....... ...... . ........ z 0 ,\ A vs N EGEND N ®PROPOSED CONCRETE SiDEWALK PEDISTRIAN CROSSING z CONCRETE PANEL .4j U ti =CROSSING OMNSION a N�H Li 0 oz C) ul F= CONSTRUCTION LJM17S O 0 L ILI ao '%'4 ..a SO ?o !r g) 0 7 0 V) z xn a. PRO COR. R/W = 50, 0 (L . i I D.M;' R/W -.--------------------- -- ' D.M. r1245. 50 D gL == r - " D.M PRPPOS'OIW,. V. i —6SDEWALKI — — — — — — — — — — — — — — — — — — — — — — — — — — — - - PROPOSED 10' SIDEWALK "7 — --- — — - Hf — --2 — — — — — — — — — — -- --- ------- L L --n -------- ----------- -gPe!57 0 --------- 7-Z:--========- 35 S-CHILLIN ROAD ..s64zl'.-'SECTION CORNEO-. 11 RR SIGNAL • Rkf U.P.R.R. SC -HlUJNG RD.. M.P.546.94 Vh z DOT 815-075C co RR' NAL m RADEtEPARATION.'. . . . . I G _J ROVATE -.j cq �w 4301 C4 Ty STATE AXCI"T.y ' . .. - 0) 3!; . ; af 'm 0 V. s + 9 0 00 Cl OF SAUNA, KANSAS V + .+ I . SAS -nU + _. + PUBLIC WORKS — ENGINEERING --. U -nES M a- — ;-, 6: to PAP' SG ew. SCHILLING DOT LING ROAD.. SIDEWALK 'UPRR CROSSING M M SrAm. ir x Own- = E Mar 2009 Not to teale CD CL tr > j! Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07-09-07 SULDING AMEMCX EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT GENERAL TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) 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), orthing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform 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 performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the 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 subjectto-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 (or 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 full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though 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 ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery Contractor's ROE (Generic) - ExB Page 1 of 3 Exhibit B Form Approved - AVP Law 07-09-07 General Terms & Conditions Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07-09-07 Band materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on 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 determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other 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 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 o any telecommunications systemon Railroad's property, and/or(2) any injuryto 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 C, 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 C to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Contractor's ROE (Generic) - ExB Page 2 of 3 Exhibit B Form Approved - AVP Law 07-09-07 General Terms & Conditions Contractor's ROE (Generic) - ExB Form Approved - AVP Law 07-09-07 BUILDING A CC SItion 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 ("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, 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 Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the federal employers' liability act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad. 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 othermaterialsfrom 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 and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 7010 01 (or a substitute form providing equivalent coverage) for the job site. Contractor's ROE (Generic) - ExB Page 3 of 3 Exhibit B Form Approved - AVP Law 07-09-07 General Terms & Conditions Contractor's ROE (Generic) - ExC Form Approved - AVP Law 08-15-07 BU1LMNG AMERICA• * EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT CONTRACTOR'S INSURANCE REQUIREMENTS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site, and • Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 0110 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident and coverage must include liability arising out of any auto (including 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 clean up (MCS -90) if required by law. - — - - -- - --- --- ------ C. Workers' Compensation and Employers' Liability Insurance. Coverage must include but not be limited to: • Contractor's statutory 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 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. The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability Insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess Insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability Insurance. 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 $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. Other Reauirements Contractor's ROE (Generic) - ExC Page 1 of 2 Exhibit C Form Approved - AVP Law 08-15-07 Contractor's Insurance Requirements Contractor's ROE (Generic) - ExC Form Approved - AVP Law 08-15-07 BUILDING AMERICA° GNAII policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. 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. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, 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. Contractors ROE (Generic) - ExC Page 2 of 2 Exhibit C Form Approved - AVP Law 08-15-07 Contractor's Insurance Requirements Contractor's ROE (Generic) - ExD Form Approved - AVP Law 07-09-07 BWLDlNO qMERlCp• EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. 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 Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) --Hard hat -that -meets -the -American -National -Standard -(ANSI) 289:1 --latest-revision- -Hard hats-should-66-affixed—with— Contractor's ats-should-beaffixedwith-Contractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1— latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, 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. 111. On Track Safetv Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's Contractor's ROE (Generic) - ExD Page 1 of 2 Exhibit D Form Approved - AVP Law 07-09-07 Minimum Safety Requirements Contractor's ROE (Generic) - ExD Form Approved - AVP Law 07-09-07 BUILDING AMERICA° %property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: ■ 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 -rail equipment on -track. ■ Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Reguirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all 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 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 under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. Contractor's ROE (Generic) - ExD Page 2 of 2 Exhibit D Form Approved - AVP Law 07-09-07 Minimum Safety Requirements