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East Iron at GradeUPRR Folder No.: 2803-34 PUBLIC HIGHWAY AT -GRADE CROSSING IMPROVEMENT AGREEMENT BETWEEN 1I I UNION PACIFIC RAILROAD COMPANY t AND THE CITY OF SALINA COVERING THE IMPROVEMENT, MAINTENANCE AND USE OF THE EXISTINT EAST IRON STREET AT -GRADE PUBLIC ROAD CROSSING DOT NO.: 814179F AT RAILROAD MILE POST 550.90 — SID INDUSTRIAL LEAD IN OR NEAR SALINA, SALINE COUNTY, KANSAS City Copy UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 0310112013 BUILDING AMERICA UPRR Folder No.: 2803-34 UPRR Audit No.: 136 y 7L PUBLIC HIGHWAY AT -GRADE CROSSING IMPROVEMENT AGREEMENT East Iron Street — DOT No. 814179F Mile Post 550.90 - SID Industrial Lead Salina, Saline County, Kansas THIS AGREEMENT ("Agreement") is made and entered into as of the 24+11 day of 2013 ('Effective Date"), by and between UNION PACIFIC RAILROAD C40MPANV, a Delaware corporation, to be addressed at Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179 ("Railroad") and CITY OF SALINA, a municipal corporation or political subdivision of the State of Kansas to be addressed at 300 West Ash Street, Salina, Kansas 67401 ("City"). RECITALS: The City currently utilizes the Railroad's property for an existing at -grade public road crossing over East Iron Street, (DOT No. 814179F), at Railroad's Mile Post 550.90 on the Railroad's SID Industrial Lead at or near Salina, Saline County, Kansas. The City now desires to undertake as its project (the "Project") the reconstruction of the existing roadway. The existing aforementioned roadway, as reconstructed is hereinafter the "Roadway" and where the Roadway crosses the Railroad's property is the "Crossing Area" in the 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. The right of way presently utilized by the City is sufficient to allow for the reconstruction of the road crossing. The Railroad and the City and entering into this agreement to memorialize the reconstruction, and thereafter maintenance and use, of the Roadway and the Crossing Area. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: ARTICLE 1. EXHIBIT B The General Terms and Conditions marked Exhibit B, are attached hereto and hereby made a part hereof. ARTICLE 2. RAILROAD GRANTS RIGHT For and in consideration of the sum of ONE THOUSAND DOLLARS ($1,000.00) to be 2803-34 Articles of Agreement May 30, East Iron St. Page 1 of 9 Salina, KS • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDING AMERICA 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 comply with the terms of this Agreement, the Railroad hereby grants to the City the right to improve, maintain and repair the Roadway over and across the Crossing Area. ARTICLE 3. DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. ARTICLE 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. Prior to Contractor performing any work within the Crossing Area and any subsequent maintenance and repair work, the City shall require the Contractor to: i. execute the Railroad's then current Contractor's Right of Entry Agreement ii. obtain the then current insurance required in the Contractor's Right of Entry Agreement; and iii. provide such insurance policies,certificates, binders and/or endorsements to the Railroad. B. The Railroad's current Contractor's Right of Entry greement is marked Exhibit D, attached hereto and hereby made a part hereof. The City confirms that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179-1690 UPRR Folder No. 2803-34 D. If the City's own employees will be performing any of the Project work, the City may self -insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. ARTICLE 5. FEDERAL AID POLICY GUIDE If the City will be receiving any federal funding for the Project, the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. ARTICLE 7. WORK TO BE PERFORMED BY RAILROAD; BILLING SENT TO CITY, CITY'S PAYMENT OF BILLS A.. The work to be performed by the Railroad is described in the Railroad's Material and Force Account Estimate dated April 17, 2013, marked Exhibit C, attached hereto and hereby made a 2803-34 Articles of Agreement May 30, 2013 East iron St. Page 2 of 9 Salina, KS • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT BUILDING AMERICA Standard Form Approved: AVP -Law 03/01/2013 part hereof (the "Estimate"). As set forth in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the Project is $130,720.00. Such work shall be funded sixty five percent (65%) by the City ($84,969.00 of the Estimate) and thirty five percent (35%) by the Railroad ($45,751.00 of the Estimate). 11 B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. The City acknowledges that the Estimate does not include any estimate of flagging or other protective service costs that are to be paid by the City or the Contractor in connection with flagging or other protective services provided by the Railroad in connection with the Project. All of such costs incurred by the Railroad are to be paid by the City or the Contractor as determined by the Railroad and the City. if it is determined that the Railroad will be billing the Contractor directly for such costs, the City agrees that it will pay the Railroad for any flagging costs that have not been paid by any Contractor within thirty (30) days of the Contractor's receipt of billing. D. The Railroad shall send progressive billing to the City during the Project and final billing to the City within one hundred eighty (180) days after receiving written notice from the City that all Project work affecting the Railroad's property has been completed. O �• E. The City agrees to r ' bur t Railroad within thirty (30) days of its receipt of billing from the Railroad for s rtc - ry p&cent (65%) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, all actual costs of engineering review (including preliminary engineering review costs incurred by Railroad prior to the Effective Date of this Agreement), construction, inspection, flagging (unless flagging costs are to be billed directly to the Contractor), procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad's standard additive rates. Further, the work zone traffic control, public notification, and all roadway/surface approach work will be conducted at the sole expense of the City. ARTICLE 8. PLANS A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for the Project and submit such plans and specifications to the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, for prior review and approval. The plans and specifications shall include all Roadway layout specifications, cross sections and elevations, associated drainage, and other appurtenances. B. The final one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, are hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D. The Railroad's review and approval of the Plans will in noway relieve the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, 2803-34 Arlioles of Agreement May 30, 2013 East Iron St. Page 3 of 9 Salina, KS • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDINGAMERICA accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. ARTICLE 9. NON -RAILROAD IMPROVEMENTS A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non -railroad owned facilities (the "Non Railroad Facilities") affected bythe Project including, without limitation, utilities, fiber optics, pipelines, wirelines, communication lines and fences is required under Section 8. The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineeringand Maintenance -of - Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators. Railroad may use its standard terns and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non Railroad Facilities owner or operator, or before Railroad and City mutually agree in writing to: i. deem the approved Non Railroad Facilities plans and specifications to be Plans pursuant to Section 8B, ii. deem the Non Railroad Facilities part of the Structure, and iii. supplement this Agreement with terms and conditions covering the Non Railroad Facilities. ARTICLE 10. EFFECTIVE DATE; TERM; TERMINATION A. This Agreement is effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. 2803-34 Articles of Agreement May 30, 2013 East Iron SL Page 4 of 9 Salina, KS • UNION PACIFIC RAILROAD COMPANY �]j PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT BUILDING AMERICA Standard Standard Form Approved: AVP -Law 03/01/2013 l�jW�1l ARTICLE 11. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK Neither the City nor the Contractor may commence any work within the Crossing Area oron any other Railroad property until: i. The Railroad and City have executed this Agreement. ii. The Railroad has provided to the City the Railroad's written approval of the Plans. iii. Each Contractor has executed Railroad's Contractor's Rightof Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements required under the Contractor's Right of Entry Agreement. iv. Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contactor's Right of Entry Agreement. ARTICLE 12. FUTURE PROJECTS Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of the Roadway shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. ARTICLE 13. ASSIGNMENT, SUCCESSORS AND ASSIGNS A. City shall not assign this Agreement without the prior written consent of Railroad. B. Subject to the provisions of Paragraph A above, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Railroad and City. ARTICLE 14. SIGNAL MAINTENANCE The Railroad, at its sole cost and expense, shall maintain and repair the public crossing vehicular warning signals and gates; PROVIDED, HOWEVER, that such maintenance and repair shall not negate the Railroad's eligibility for any federal, state, local or other public funds that may become available for the maintenance and repair of the warning devices and gates. ARTICLE 15. SPECIAL PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 If the City will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the City agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The City confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a "recipient" receiving ARRA funding directing from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the City and not of the Railroad, and (ii) the City shall not delegate any ARRA reporting responsibilities to the Railroad. The City also confirms and acknowledges that 2803-34 Articles of Agreement May 30, 2013 East Iron St. Page 5 of 9 Salina, KS • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDING AMERICA (i) the Railroad shall provide to the City the Railroad's standard and customary billing for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing, and (ii) such standard and customary billing and documentation from the Railroad provides the information needed by the City to perform and complete the ARRA reporting documents. The Railroad confirms that the City and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project as provided in Section I I of Exhibit B of this Agreement. ARTICLE 15. TERMINATION OF ORIGINAL AGREEMENT Upon the completion of the Roadway, any existing agreement covering the existing East Iron Street at -grade public road crossing shall terminate and the terms and conditions of this Agreement shall hereafter govern the use, maintenance and repair of the Roadway. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date first herein written. ATTEST: ��j Byy,(t7ili,lAJlA !r :•O?GANIZQ,%. CD LL .r • 'C 870 D UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-600/323) M3 Valillill 464 DANIEL A. LEIS General Director — Real Estate CITY OF SALINA By Printed Namc: ti•(A.�DhhDI'i�r Title: VICQ-MAVDr Pursuant to Resolution/Order No. dated: 120 hereto attached. 2803-34 Articles of Agreement May 30, 2013 East Iron St. Page 6 of 9 Salina, KS 0 EXHIBIT A To Public Highway At -Grade Crossing Agreement Cover Sheet for the Railroad Location Print 11 I RAILROAD LOCATION PRINT W—WE OF A PUBLIC ROAD CROSSING s CONSTRUCTION PROJECT 15 ma Ll IV 21 fill 17 41 Improvement of th crossing Sul MCC, a, "ft" w the existing E. Iron Ave. at -grade public road crossing (DOT# 814179F). Vj tt EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY SID INDUSTRIAL LEAD RAILROAD MILE POST 550.90 GPS: 38.83987,L -97.606961 SALINA, SALINE CO,. KS. To accompany an agreement with the CITY OF SALINA covering a roadways resurfacing project. Folder No. 2803-34 Date: May 30, 2013 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPAR I M17W MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCAT ION OF IT BER OR FIC CABLE PIJONF: 1-(800)336-9193 Exhibit Railroad Location Print C7 EXHIBIT A- I To Public Highway At -Grade Crossing Agreement Cover Sheet for the Detailed Print • R ........W ............. 6SIDEAL..K .................................... I it A-1 Prints Z 0 V1 O� T C O A T y ➢ � A ............................ n s m w m i N p A m X y 0 oT 3 ti c z C U) r D O O m Z m cn m -U m m z N - Z y (l D c-) Z n � C m A C) M r-0 o r it A-1 Prints Z O ............................ m X y 3 ti ............................ z m z U) O D O O --i cn ---i -U m m z F- �u c-) m n D > F- C) M r-0 o r :Um U) r O I- -i U) Cf) M O — z U) Z Z M z c-nC�FTI o 0 u S < U) w M C D D D I— (-) O M C M D U) it A-1 Prints 0 EXHIBIT B To Public Highway At -Grade Crossing Agreement Cover Sheet for the General Terms and Conditions 0 EXHIBIT B TO PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT GENERAL TERMS AND CONDITIONS SECTION 1. CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipelines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes. In the event the Railroad shall place additional tracks upon the Crossing Area, the City shall, at its sole cost and expense, modify the Roadway to conform with all tracks within the Crossing Area. C. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. D. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; and the right to cross the Crossing Area with all kinds of equipment. E. So far as it lawfully may do so, the City will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. F. If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. SECTION 2. CONSTRUCTION OF ROADWAY A. The City, at its expense, will apply for and obtain all public authority required bylaw, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right of way) and all necessary drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the City shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C. All construction work of the City upon the Railroad's property (including, but not limited to, construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering -Design of the Railroad or his authorized representative and in compliance with the Plans, and other guidelines furnished by the Railroad. D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the PUBLIC HIGHWAY AT -GRADE Page 1 of 5 Exhibit B CROSSING AGREEMENT General Terms and Conditions Standard Form Approved: AVP -Law 03/0112013 • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDING AMERICA Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be inconstant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such delays and agrees that no claims for damages on account of any delay shall be made against the Railroad by the State and/or the Contractor. SECTION 3. INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering -Design. SECTION 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than the Railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. SECTION 5. MAINTENANCE AND REPAIRS A. The City shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the track tie ends, which shall be maintained by and at the expense of the Railroad. If, in the future, the City elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or some surfacing material otherthan timer planking, the Railroad, at the City's expense, shall install such replacement surfacing, and in the future, to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing Area, the City shall bear the expense of such repairs or replacement. SECTION 6. CHANGES IN GRADE If at any time the Railroad shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the track(s) located within the Crossing Area, the City shall, at its own expense, conform the Roadway to conform with the change of grade of the trackage. SECTION 7. REARRANGEMENT OF WARNING DEVICES If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either the Railroad, highway or both, the parties will apportion the expense incidental thereto between themselves by negotiation, agreement or bythe order of a competent authority before the change or rearrangement is undertaken. SECTION 8. SAFETY MEASURES: PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance, and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. B. Entry onto Railroad's Property by City. If the City's employees need to enter Railroad's property in order to perform an inspection of the Roadway, minor maintenance or other activities, the City shall first provide at least ten (10) working days PUBLIC HIGHWAY AT -GRADE Page 2 of 5 Exhibit B CROSSING AGREEMENT General Terms and Conditions Standard Form Approved: AVP -Law 03/01/2013 UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDING AMERICA advance notice to the Railroad Representative. With respect to such entry on to Railroad's property, the City, to the extent permitted by law, agrees to release, defend and indemnify the Railroad from and against any loss, damage, injury, liability, claim, cost or expense incurred by any person including, without limitation, the City's employees, or damage to any property or equipment (collectively the "Loss") that arises from the presence or activities of City's employees on Railroad's property, except to the extent that any Loss is caused by the sole direct negligence of Railroad. C. Flaaaina. i. If the City's employees need to enter Railroad's property as provided in Paragraph B above, the City agrees to notify the Railroad Representative at least thirty (30) working days in advance of proposed performance of anywork by City in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) day notice, the Railroad Representative will determine and inform City whether a flagman need be present and whether City needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill City for such expenses incurred by Railroad. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, City agrees that City is not relieved of any of its responsibilities or liabilities set forth in this Agreement. ii. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, City shall pay on the basis of the new rates and charges. iii. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project forwhich Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though City may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, City must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, City will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. D. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse, and to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, courtcosts and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. E. No Interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or PUBLIC HIGHWAY AT -GRADE Page 3 of 5 Exhibit B CROSSING AGREEMENT General Terms and Conditions Standard Form Approved: AVP -Law 03/01/2013 • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDING AMERICA signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility "of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. G. Suspension of Work. If at any time the City's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. H. Removal of Debris. The City shall not cause, suffer or permit material or debris to be deposited or cast upon, orto slide or fall upon any property or facilities of the Railroad, and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. J. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. K. Drainage. The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. L. Notice. Before commencing any work, the City shall provide the advance notice to the Railroad that is required under the Contractor's Right of Entry Agreement. M. Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency PUBLIC HIGHWAY AT -GRADE Page 4 of 5 Exhibit B CROSSING AGREEMENT General Terms and Conditions Standard Form Approved: AVP -Law 03/01/2013 • UNION PACIFIC RAILROAD COMPANY PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT Standard Form Approved: AVP -Law 03/01/2013 BUILDING AMERICA calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. If it is, City will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. SECTION 9. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the'Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. SECTION 10. OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. SECTION 11. BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad underthis Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City. SECTION 12. REMEDIES FOR BREACH OR NONUSE A. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof. B. Nonuse by the City of the Crossing Area for public highway purposes continuing at anytime for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the City hereunder. C. The City will surrender peaceable possession of the Crossing Area and Roadway upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. SECTION 13. MODIFICATION -ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. PUBLIC HIGHWAY AT -GRADE Page 5 of 5 Exhibit B CROSSING AGREEMENT General Terms and Conditions Standard Form Approved: AVP -Law 03/01/2013 • EXHIBIT C To Public Highway At -Grade Crossing Agreement Cover Sheet for the Railroad's Material & Force Account Estimate 0 DATE: 2013-04-17 EST11-MTE OF NATERIAL AND FORCE ACCOUNT 140RK BY THE UNION PACIFIC RAILROAD THIS ESTILIATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2013-10-16 DESCRIPTION OF WORK: 2012 RECOLLECTIBLE PROGRA14 SID INDUSTRIAL LEAD Mp 550.90 INSTALL 112 TF OF CROSSING SURFACE INCLUDING RAIL, TIES, DIM PROJECT TO BE FUNDED 65% CITY OF SALINA 35% UPRR PLD: 81017 AI -O: MP,SOBDIV: 550.90, SID SERVICE UNIT: 14 CITY: SID STATE: KS DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ___________ ___ ____ _____ ________ _______ _____ _____ ENGINEERING WORK ENGINEERING 4986 3240 1746 4906 LABOR ADDITIVE 2118 10520 6838 3682 10520 TOTAL ENGINEERING _______________ 15506 ________ ________ 10078 5428 -------- 15506 SIGNAL WORK LABOR ADDITT.VR 211% 1596 1037 559 1596 SALES TAX 3 2 1 3 SIGNAL 756 82 544 294 838 TOTAL SIGNAL. _______ ________ 2352 ________ 85 ________ 1583 854 -------- 2437 TRACK 4 SURFACE. WORK DALAST 2.00 CL 608 1789 1558 839 2397 BILL PREP FEE 900 585 315 900 CUSTObf CONCRETE PADS 28000 18200 9800 28000 ENVIROMENTAL PERMIT 10 6 4 10 EQUIPMENT RENTAL 6000 3900 2100 6000 FIELD WELD 2 1 1 2 FOREIGN LINE FREIGHT 1140 741 399 1140 MOMELINE FREIGHT 900 585 315 900 LABOR ADDITIVE 211% 24259 15773 8486 24259 IIATL STORE EXPENSE 885 575 310 885 OTM 605 8644 6012 3237 9249 RAIL 320.00 LF 820 6480 4745 2555 7300 POKING 112.00 TF 3605 8180 7660 4125 11785 SALES TAX 1335 867 468 1335 SAP! CUT STREET APPROACH 1.000 650 350 1.000 SWTIE 81.00 EA 5591 5278 7065 3804 10869 TRK-SURF,LIN 2874 1868 1006 2874 WELD 2428 500 1903 1025 2928 XTIE EA 944 614' 330 944 TOTAL TRACK L SURFACE 41736 71041 73308 39467 112777 _-- LABOR/MATERIAL EXPENSE 59594 71126---------------- RECOLLECTIBLE/UPRR EXPENSE 84969 45751 -------- ESTIMATED PROJECT COST 130720 EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLE 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 MILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. Exhibit C Estimate 0 EXHIBIT D To Public Highway At -Grade Crossing Agreement Cover Sheet for the Contractor's Right of Entry Agreement • UNION PACIFIC RAILROAD COMPANY CROE AGREEMENT (Kansas DOT) BUILDING AMERICA UPRR Folder No. 2803-33 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT UPRR Audit No. (KANSAS DOT) THIS AGREEMENT is made and entered intoe as of the day of , 2013, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation p ("Railroad"); and NAME;QF CONTRACTOR, a State of Incorporation corporation ("Contractor"). / l Contractor has been hired by of the Kansas Department of Transf, of the existing roadway existing at -g of such work to be performed on pr Poston Railroad's X Iron Street in Salina, work is the subject of'a cc Railroad -is.willing RECITALS: ecretary of Transportation of the State of Kansas on Behalf ion,("KDOT" )'to perform work relating to reconstruction iublie'road crossing over (the "work"), with all or a portion y of Railroad, in the `vicinity of Railroad's Mile Post Mile it,or\�earDOT'No. DOT Number, located at or near East ;as; as such'locatioa is.in the general location shown on the A, attacliedihereto and hereby made a part hereof, which l between the Railroad and KDOT. to`Derform the work described above at the location in this Agreement NOW; THEREFOREJt 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. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject.to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. Folder 2803-34 Articles of Agreement Page 1 of 4 • UNION PACIFIC RAILROAD COMPANY CROE AGREEMENT (Kansas DOT) BUILDING AMERICA ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B. C AND D. The General Terms and Conditions contained in Exhibit B, the Insurance Requirements contained in Exhibit C and the Minimum Safety Requirements contained in Exhibit D, are 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"): BILLY. HAMBY MGR TRACK MNTCE 400 N. 13ST. SALINA, KS 67401 (785)823-4442 (903) 283-4231 JEFFREY L. TARVIN MGR SIGNAL MNTCE 901 NW NORRIS ST TOPEKA, KS (785)232-7820 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 (Expiration Date) 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 may be terminated by either party on ten (10) days written notice to the other party. 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 ExhibitC of this Agreement, and Articles of Agreement Page 2 of 4 • UNION PACIFIC RAILROAD COMPANY I CROE AGREEMENT (Kansas DOT) BUILDING AMERICA f Form Approved: AVP Law 03/01/2013 (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 681 79-1 690 Attn: Senior Manager Contracts Folder No. 2803-34 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 - 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 9 - CROSSINGS: COMPLIANCE WITH MUTCD AND FRA GUIDELINES. A. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. B. Any permanent or temporary changes, including temporary traffic control, to crossings must conform to the Manual of Uniform Traffic Control Devices (MUTCD) and any applicable Federal Railroad Administration rules, regulations and guidelines, and must be reviewed by the Railroad prior to any changes being implemented. In the event the Railroad is found to be out of compliance with federal safety regulations due to the Contractor's modifications, negligence, or any other reason arising from the Contractor's presence on the Railroad's property, the Contractor agrees to assume liability for any civil penalties imposed upon the Railroad for such noncompliance. ARTICLE 10 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored 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. File Reference Articles of Agreement Date Page 3 of 4 • UNION PACIFIC RAILROAD COMPANY CROE AGREEMENT (Kansas DOT) BUILDING AMERICA UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) 0 M Printed 'title: PAUL G. FARRELL Real Estate Manager - Contracts NAME OF CONTRACTOR File Reference Articles of Agreement Date Page 4 of 4 • UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) EXHIBIT B GENERAL TERMS AND CONDITIONS TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING BUILDING AMERICA A. Contractor agrees to notify the Railroad Representative at least thirty (30) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of anywork 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 subject to change, at anytime, 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. CONTRACTOR'S ROE (Kansas DOT) Page 1 of 4 Exhibit B Form Approved -AVP Law 03/01/2013 General Terms & Conditions • UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) BUILDING AMERICA 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 and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor 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 indemnifyand 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 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 CONTRACTOR'S ROE (Kansas DOT) Page 2 of 4 Exhibit B Form Approved - AVP Law 03/01/2013 General Terms & Conditions • UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) Form Aooroved -AVP Law 03/01/2013 BUILDING AMERICA Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit 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 (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 bythe finaljudgment 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 workers 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. CONTRACTOR'S ROE (Kansas DOT) Page 3 of 4 Exhibit B Form Approved - AVP Law 03/01/2013 General Terms & Conditions • UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) Form Aooroved -AVP Law 03/01/2013 Section 10. WAIVER OF DEFAULT. BUILDING AMERICA? Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in noway 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 2417 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 70 10 01 (or a substitute form providing equivalent coverage) for the job site. CONTRACTOR'S ROE (Kansas DOT) Page 4 of 4 Exhibit B Form Approved -AVP Law 03/01/2013 General Terms & Conditions UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) Form ADoroved - AVP Law 03/01/2013 EXHIBIT C INSURANCE REQUIREMENTS TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT BUILDING AMERICA Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 1710 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. • Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (ora 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 01 10 01 (ora substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 foreach 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 of Kansas. • 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 3512 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 bewritten 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. CONTRACTOR'S ROE (Kansas DOT) Page 1 of 2 Exhibit C Form Approved -AVP Law 03/01/2013 Insurance Requirements tUNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) BUILDING AMERICA 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. G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's 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. Contractor waives all rights of recovery, and its insurers also waive all right of subrogation of damages against Railroad and its agents, officers, directors and employees for damages covered by the workers compensation and employers liability obtained by Contractor required by this Agreement, where permitted by law. This waiver must be stated on the certificate of insurance. I. 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. J. 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. K. 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. CONTRACTOR'S ROE (Kansas DOT) Page 2 of 2 Exhibit C Form Approved - AVP Law 03/01/2013 Insurance Requirements • UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) Form Aooroved -AVP Law 03/01/2013 EXHIBIT D MINIMUM SAFETY REQUIREMENTS TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT BUILDING AMERICA The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. CLOTHING A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. 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. It. 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) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. ii. Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, 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) V. Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. ON TRACK SAFETY Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: i. Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. ii. Wear an orange, reflectorized workwear approved by the Railroad Representative. CONTRACTOR'S ROE (Kansas DOT) Page 1 of 2 Exhibit D Form Approved -AVP Law 03/01/2013 Minimum Safety Requirements UNION PACIFIC RAILROAD COMPANY CONTRACTOR'S ROE (Kansas DOT) BUILDING AMERICA iii. Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. EQUIPMENT A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • 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 REQUIREMENTS A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all 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 orwork 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 onlywhen 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 (Kansas DOT) Page 2 of 2 Exhibit D Form Approved -AVP Law 03/01/2013 Minimum Safety Requirements