Loading...
HomeMy WebLinkAboutResolution - 2009-R0557 - Agreement - BNSF Railway Company - Wayside Horn System - 12_16_2009Resolution No. 2009-RO557 December 16, 2009 Item No. 5.5.1 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, an Agreement for a Wayside Horn System, by and between the City of Lubbock and BNSF Railway Company, a Delaware Corporation, and related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 16th day of December , 2009. y� TOM MARTIN, MAYOR ATTEST: Reber a Garza, City Secretary APPROVE? AS TO CONTENT: maj,01a= 6 ad Marsha Reed, P.E., Chief Oper tions Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Agreement-BNSF Railway November 13, 2009 Resolution No. 2009—RO557 WAYSIDE HORN AGREEMENT THIS WAYSIDE HORN AGREEMENT (hereinafter called, this "Agreement"), is entered into effective as of Dec. 16, 2009, by and between BNSF Railway Company, a Delaware Corporation (hereinafter called, "BNSF"), and the City of Lubbock, a Political Subdivision of the State of Texas, (hereinafter called, the "Agency"). WITNESSETH WHEREAS, BNSF has grade crossing warning devices located at the intersection of Avenue P, as indicated on Exhibit "A" attached hereto and made a part hereof; and WHEREAS, the Agency is installing its automated horn system pursuant to the requirements of 49 CFR Part 222, (hereinafter called, "Wayside Horn System") with the existing automatic grade crossing warning devices shown on Exhibit "A" subject to the mutual covenants contained in this Agreement; NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT PURPOSE The purpose of this Agreement is as follows: provide for the ownership, installation and maintenance by Agency or its contractor of the Wayside Horn System and other related improvements at the Avenue P (DOT No. 014932M) at -grade crossing located at railroad milepost 673,52. 2. SCOPE OF WORK a. The Agency must provide BNSF in writing with the total activation time required from the indication to activate the Wayside Horn until the arrival of the train at the highway - rail crossing or advise that the indication to activate the Wayside Horn will be simultaneous with the activation of the flashing lights. For this Agreement, the Agency has advised that activation of the Wayside Horn will be simultaneous with the activation of the flashing lights. b. BNSF will provide an interface box with contact terminals, at Agency's expense on the side of the railroad instrument cabin. C. Agency or its contractor will place all necessary cable and conduit and horn confirmation signage ("Confirmation V) on Railroad property in accordance with Exhibit "A", attached to and made a part of this Agreement. d. The Agency or its contractor will connect the Wayside Horn System control signals to the contact terminals in the interface box including all necessary cable and conduit. e. BNSF will provide flagging services, at Agency's sole expense, necessary to protect BNSF train operations or BNSF property as set forth in more detail on Exhibit "C" attached to and made a part of this Agreement. Wayside Horn Agreement at Avenue P (1 1 /06/09) Page l Form 0109 The Agency or its contractor must install the new Wayside Horn System. An estimate of the actual costs for BNSF work (excluding flagging, which will depend upon contractor's activities) is shown on Exhibit "B" attached to and made a part of this Agreement. In the event installation of the improvements has not commenced within six (6) months following the effective date of this Agreement, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth on Exhibit B. If the cost estimates are revised, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit B not specifically mentioned therein may be included as a part of this Agreement upon written approval of the Agency, which approval will not be unreasonably withheld. h. The Agency must pay BNSF for the actual costs of any work performed by BNSF under this Agreement within thirty (30) days of the date of the invoice for such work, including flagging costs. During the construction of the improvements, BNSF may send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. Upon completion of the improvements and all associated work, BNSF will send Agency a detailed invoice of final costs including flagging costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit B. Agency must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past our credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end, Finance charges will be noted on invoices sent to Agency under this section. CONSTRUCTION AND MAINTENANCE a. BNSF will operate and maintain, at its expense, the necessary relays and the other materials required to preempt the Wayside Horn System with the grade crossing warning devices. b. BNSF will operate and maintain, at its expense, the grade crossing warning devices up to the contact terminals in the interface box. C. The Agency or its contractor must, at the Agency's expense, install the Way -Side Horn System up to and including connection to the contact terminals in the interface box including all necessary cable and conduit. d. Following installation of the Wayside Horn System, the Agency will own, operate and maintain, at its expense, the Wayside Horn System up to and including connection to the contact terminals in the in the interface box including all necessary cable and conduit. When any such maintenance requires BNSF flagging or changes to BNSF contact terminals, Agency or its designate shall pay BNSF for all costs associated with such work C. The Agency shall maintain the Wayside Horn System in an good and operative condition and in accordance with all applicable laws and regulations, including without limitation Appendix E of 49 CFR Part 222. f. Through this Agreement, BNSF does not waive any rights it may have under existing federal law to sound the locomotive horn in case of emergency, when the Wayside Horn System is malfunctioning, when active grade crossing warning devices have malfunctioned, when roadway workers are present or when grade crossing warning Wayside Horn Agreement at Avenue P (11/06/09) Page 2 Form 0109 systems are temporarily out of service during inspection, maintenance, or testing of the system or as is otherwise necessary in the sole opinion of BNSF. g. In the event Agency defaults on any of its obligations hereunder, including without limitation, Agency's obligation to maintain the Wayside Horn System in good and operative condition, BNSF, may, at its option, remove the Wayside Horn System at the sole cost and expense of Agency. Upon removal of the Wayside Horn System, BNSF shall resume sounding the locomotive horn at the Avenue P (DOT No. 014932M) grade crossing. PROTECTION OF UNDERGROUND SYSTEMS a. Agency and its contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications or utility companies may be buried on BNSF's property or right-of-way. The Agency or its contractor must contact appropriate personnel to have the Lines located and make arrangements with the owner of the Lines regarding protective measures that must be followed prior to the commencement of any work on BNSF's property. The Agency or its contractor will be responsible for contacting BNSF's Engineering Representative (Manaeer Public Proiccts at 817-352-29021, BNSF's Roadmaster (Justin Lopez at 806-765-3955), BNSF's Signal Construction Supervisor (Larry Brackett at 806-379- 3190), and the telecommunications or utility companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Agency or its contractor must also mark all Lines in order to verify their locations. Agency or its contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. b. Failure to mark or identify Lines will be sufficient cause for BNSF's Engineering Representative (Manager Public Projects) to stop construction at no cost to BNSF until these items are completed. C. In addition to the liability terms contained elsewhere in this Agreement and to the fullest extent provided by law, Agency and its contractor hereby indemnify, defend and hold harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Agency or its contractor, subcontractors, agents and/or employees that cause or in any way or degree contribute to: (1) any damage to or destruction of any Lines on BNSF's property or within BNSF's right-of-way; (2) any injury to or death of any person employed by or on behalf of (a) any telecommunications or utility company, (b) Agency's contractor or subcontractors, or (c) Agency, and (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunications or utility company(ies).THE LIABILITY ASSUMED BY AGENCY OR ITS CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF OR UNLESS SUCH CLAIMS ARE WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF BNSF. d. Agency or its contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the installation or construction of the improvements. Wayside Horn Agreement at Avenue P (11 /06/09) Page 3 Form 0109 Agency and/or its Contractor must cooperate fully with any telecommunications or utility company(ies) in performing such rearrangements. INDEMNIFICATION a. Agency hereby indemnifies, defends and holds harmless BNSF for, from and against any and all claims, suits, losses, damages, costs and expenses for injury to or death to third parties or BNSF's officers and employees, and for loss and damage to property belonging to any third parties (including damage to the property of BNSF officers and employees), to the extent caused by the negligence of the Agency or any of its employees, agents or contractors. The Agency also releases BNSF from and waives any claims for injury or damage to the Agency's highway traffic control signals, the Wayside Horn System, or other equipment which may occur as a result of any of the work provided for in this Agreement or the operation or the maintenance thereafter of any of the Agency's highway Wayside Horn System, the traffic control signals, cables, connections at and about the grade crossing. b. To the fullest extent permitted by law, Agency hereby releases, indemnifies, defends and holds harmless BNSF and BNSF's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, employees and agents for, from and against any and all claims, suits, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys fees and court costs) for injury to or death to Agency employees, agents or representatives arising out of, resulting from or related to any act or omission of Agency or any work performed on or about BNSF's property or right-of-way, including without limitation, the installation and maintenance of the Wayside Horn System by the Agency. THE LIABILITY ASSUMED BY THE AGENCY IN THIS PROVISION WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILROAD, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF BNSF OR UNLESS SUCH CLAIMS ARE WHOLLY CAUSED BY THE SOLE NEGLIGENCE OF BNSF. C. The Agency further agrees, at its expense, in the name and on behalf of BNSF, that it will adjust and settle any claims made against BNSF and will appear and defend any suits or actions at law or in equity brought against BNSF on any claim or cause faction resulting from liability assumed by the Agency pursuant to this Section 5 for which BNSF is alleged to be liable. BNSF will give notice to the Agency in writing of the receipt of pendency of such claims and thereupon the Agency must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against BNSF, BNSF may forward the summons and complaint or process in connection therewith to the Agency, and the Agency must defend, adjust or settle such suits and protect, indemnify, and save harmless BNSF from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. 6. AGENCY CONTRACTOR REQUIREMENTS a. While on or about BNSF property, Agency and its contractors must fully comply with BNSF's "Contractor Requirements" set forth in Exhibit "C" attached to and made a part of this Agreement. The "Contractor Requirements" include clearance requirements and personal protective equipment requirements. Agency and its contractors will be responsible for becoming familiar with BNSF's "Contractor Requirements". Prior to Wayside Horn Agreement at Avenue P (11/06/09) Page 4 Form 0109 entering BNSF property, Agency's Contractor must execute Exhibit C-1 attached to and made a part of this Agreement. Prior to entering BNSF property, each person providing labor, material, supervision or services connected with the work to be performed on or about BNSF property must complete the safety training program (hereinafter called "BNSF Contractor Safety Orientation") at the following internet website: "con tractororientation. com". Agency must ensure that each of its contractors, employees, subcontractors, agents or invitees completes the BNSF Contractor Safety Orientation before any work is performed under this Agreement. Additionally, Agency must ensure that each and every contractor, employee, subcontractor, agent or invitee possesses a card certifying completion of the BNSF Contractor Safety Orientation prior to entering BNSF property. Agency must renew the BNSF Contractor Safety Orientation annually. C. Prior to entering BNSF property, Agency or its contractors must prepare and implement a safety action plan acceptable to BNSF. Agency must audit compliance with the plan during the course of Agency's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by BNSF at all reasonable times. INSURANCE Agency and/or its contractor must, at Agency and contractor's sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: a. Commercial General Liability insurance. This insurance must contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited to the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: ♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. ♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards must be removed. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired Wayside Horn Agreement at Avenue P (11/06/09) Page 5 Form 0109 C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ Statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. if optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. • The original policy must be provided to the Railroad prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Insurance policy, the Agency or its contractor may participate in the Railroad's (BNSF) Blanket Railroad Protective Liability Insurance Policy. The limits of coverage are the same as required of a "stand alone" policy. To obtain the premium cost, please contact the person below, who handles the Blanket Railroad Protective Liability Insurance Policy for BNSF: Rosa Martinez MARSH USA 214-303-8519 C. Other Requirements: Agency's insurance policies through policy endorsement, must include wording which states that the policy will be primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a severability of interest endorsement and Railroad must be named as an additional insured with respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance. Agency is allowed to self -insure. Any deductible, self -insured retention or other financial responsibility for claims must be covered directly by Agency in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Agency's insurance will be covered as if Agency elected not to include a deductible, self -insured retention or other financial responsibility for claims. Prior to commencing the Work, Agency must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non -renewal, substitution or material Wayside Horn Agreement at Avenue P (11/06/09) Page 6 Form 0109 alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. Ebix BPO PO Box 12010-BN Hemet, CA 92546-8010 Fax number: 951-766-2299 Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Railroad acknowledges Agency is insured through 1RMA. Agency represents that this Agreement has been thoroughly reviewed by Agency's insurance agent(s)/broker(s), who have been instructed by Agency to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. If any portion of the operation is to be subcontracted by Agency, Agency must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as Agency is required to release, defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of Agency's obligations hereunder. For purposes of this section, Railroad means "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. Wayside Horn Agreement at Avenue P (11/06/09) Page 7 Form 0109 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BNSF RAILWAY COMPANY By: Printed Name: Timothy J. Huya Title: Manager Public Projects CITY OF LUBBOCK, TEXAS Printed Name: Tom Martin Title: Mayor Attest: Vrkebecca Garza, City Secretary ( j v Watz� a — Approved as to Content: Marsha Reed, P.E., Director of Publi Works Approved as to Form: Chad Weaver, Assistant City Attorney Wayside Horn Agreement at Avenue P (11/06/09) Page 8 Form 0109 ZXRIDIL A-1 U1 J The Burlington Northern & Santa Fe Railway Company TO CLOVIS NM TO LUSSOCK TX EASTWARD APPR. 120' MIN. WESTWARD R. 50' MIR.� �E50' MIN. r INSTALL: INTERCONNECT LED LIGHTS AND BATTERIES CONTROL DEVICES: N/A 80L0 - IN - OUT SALVAGE: NONE INSTRUMENT HOUSE 8 BELL {,+} METER • CROSSING CONTROLL CONNECTIONS Q BIDIRECTIONAL CROSSING CONTROL D UNIDIRECTIONAL CROSSING CONTROL A COUPLER OR TERMINATION f GUARD RAIL l A VENUE P DOT - 014 932 M warning device placement: Clearance to C.L. Track = Min. 12' Edge Of Road to C.L. Foundation: Min. 4'3" with Curb. Min. 8'3H without Curb. Max. 12' House Clearance: 25' Min. to Near Roil 30' Miry. to Edge of Road ALL LIGHTS TO BE LED ,o, EXHIBIT A Sheet 1 of 3 BNSF RAIL WAY CO. (LOCATION) LUBBOCK, TX (STREET)AVENUE P LS: 7106 M.P. 673.52 DOT • 014-932-M DIVISION: KANSAS SUBDIVISION-SLATON KANSAS CITY NO SCALE DATE: 07/29/2009 FILE: 7106673_52.dgn DDF/DDF 7106673�52.dgn 7/30/2009 11:24:05 AM Exhibit A-2 of 3 \\ 2ND STREET AVENUE P+\ �r � tE \ CAaWT \ (ernna-I \ — — — — — — — — — — — — — — — - - — - — - --- - — --- — - — - —----�-- — - -- --- - ---- — - ------------ — - — - — - — - — -- - — - — - — - — -— - — - — - — - \ -------------------------- -------....--------------------- �r G H \ \ HORN r \ Al. f 3cp'I"cm 7 / L — — — — — — — — — — — — — — -- --- rwFau.a) 7 -- etww de MW eEWR AVENUE P\ 2ND STREET EXHIBIT A Sheet 2 of 3 515109 — ��1 AUTOMATED NDRN 1 i 9A KMw VENUE P DUAL C€ coNARYAnON SIGNAL LUBBOCK, TX Bi'h(SF TM SITE LAYOUT u 673.52 D74 932M XXXX N.T.S. 7 7 Exhibit A-3 of 3 HIGHWAY OVERPASS fwx on uaJ ® - SINGLE FACE COWRMATICM SIGNAL HIGHWAY OVERPASS — ( - - EXHIBRA Sheet 3 of 3 waw ua 5/3/09 M r l ry I I I .w�w.r. K w A VENUE P RJA LUBBOCK, TX o..s nee i+rx . AWI. F 673.32 014 932M N. TS. — i — TA Resolution No. 2009-RO557 NULNTAI-17 PROPRIETAFY C-11,KDENTULITY . 1. IEXHIBIT B B : 5F RAIL7, :A Y C. 0� IPA',Y RR Signal Cost Estimate 1 I'M09 FHPM ES-MIA-E FOR C --Y OF UMBOC 1. LOCA—,-ON' CA1';Y0':XT DE-.AJLS OF 7-z TIM.A- PLV - =1 MSII�i493-,M VEa510,: I PIMPOSE. YUSTIMA—ZON AND DESCRID T-.01,- :NS-.ALLLE:) LIORTS A'MNWAYSME FOR': 2{T=-F.CO`7:':ECT AT AVENI-EPr: 'LURBOCK TX L� MP 5-3 ''O',,THE ILA:+SAS DV,' SLATO',-'.UBDZV, 1)07m:14932%1 T�:EMATEP-:ALLIST RELOWREFLECT! 7fP.CA1R:-:PFLESE,'7T,=E CON—LNRU-INGCONTRACTS ELAVE BEEN FOIL POR—OKS OF SIGNAL WORK ON -HE BNSF FLAILROAD THIS ES-.-.',TATE IS GOOD FOP, PC DAI-1, THEREAFTER, THE EiMLATE I' WSYECT TO Cz!A%--f---7;N'CQ%7FOR '-A20R MATERIAL. AND OVERHEAD. .......... ........... SI&NAL WOFM ONLV THE CrT77OF LUBBOCK IX LS F'I:Dr:G MY, -3OMC7 K P o IL41N TAZ: FROMIETAR Y C O'Z'FIDEIMAL—.- Y. THEY CAN BE LNPEC TED TO AFTER :)E:AI*7D W:L" BE DEWRIPTMN UM c O5-. TOTALS .......... LA-90R ........ 1. S.GIZAL FIELD LABOR- CAP 240 %1H PA' -.-ROLL ASSOCIATED COST' EQU:YMENT E- M.-SE DA LABOR OVERHE.J! - :NSILMANC E EXPEN"; =-S P34 707AL LABOR COST 15 20 -,1 ........ I.... MATERIAL — .......... BA7TERM5 :-, " , br,: 3*1111,0AL011%, MTRL LS N 12: CHARGERS 1 02- F:ELD NITRL TN TIE RFAC E BOX I EA LED'.IC,H7S EA N2 RECORDER HA RFLA''w BASE i S A 5HL-r, 7 =A SOLD STATE BELL = , i , TELLULAR z-A ,IA7E7'JAL HATMLn*,* OMNE MkNSPORTATIO:; 7OTA'- MA-IRUL COiT 2- �If [I OTHER .......... At POWER SERVICE L-, coil-rRACTEINGR. L -- 5 C-0: MATERIAL POP. ELECTRICAL I N :."X SUPYACE ROCK TOT _L QITMEMTEMSCCS-, 1:3 12 3 PROJECT SUBTOTAL 6= E:LL PREPAZLA-10`: FEE Cr:K 1) 55 PROJECT C C- ir LESS CO PAID BYS`:SF TOTAL BILLABLE COST 61,112 Resolution No. 2009—RO557 EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of the Wayside Horn System at Avenue P (DOT No. 014932M) in Lubbock. Texas. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit 11C-1" Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "G1". Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-9519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: Marsha Reed Director of Public Works City of Lubbock P.O. Box 2000 1625 13t" Street Lubbock, Texas 79457 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. Exhibit C — WHS at Avenue P (7/30/09) 1 Form 0102 • 1.01.06 The Contractor must notify the City of Lubbock at (806) 775-2335 and Railway's Manager Public Projects, telephone number (817) 352-2902 at least thirty (30) calendar days before commencing any work on Railway Property. Contractors notification to Railway, must refer to Railroad's file 014932. 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to I vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance -of -Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency, • 1.03.02 The Contractor must notify the Railway's Division General Manager at (281) 350-7781 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: ■ 15' Horizontally from centerline of nearest track Exhibit C — WHS at Avenue P (7/30/09) 2 Form 0102 ■ 21'-6" Vertically above top of rail ■ 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts ■ 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts ■ 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts ■ 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction of any overpass structures, the following clearances shall be maintained: ■ 25' Horizontally from centerline of nearest track ■ 23'-3 ''/2" Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the City of Lubbock and must not be undertaken until approved in writing by the Railway, and until the City of Lubbock has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell -tales or protective devices will be borne by the Agency. • 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by the City of Lubbock for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor Exhibit C — WHS at Avenue P (7/30/09) 3 Form 0102 must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. • Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services on railroad property under this Agreement. The background screening shall at a minimum meet the criteria defined by the e-RAILSAFE program outlined at http://www.e-raiIsafe.com in addition to any other applicable regulatory requirements. The e-RAILSAFE program uses rail industry background screening standards. Contractor shall obtain consent from all employees screened in compliance with the e-RAILSAFE program criteria to release completed background information to BNSF. Contractor shall be subject to periodic audit to ensure compliance. Contractor shall not permit any of its employees, subcontractors or agents to perform services on property hereunder who are not approved under e-RAILSAFE program standards. Railroad shall have the right to deny entry onto its premises to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth for the e-RAILSAFE program or who pose a threat, in Railroad's reasonable opinion, to the safety or security of Railroad's operations. Contractors shall ensure its employees, subcontractors and agents are United States citizens or legally working in this country under a work VISA. 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (Justin Lopez) at Office # 806-765-3955 or Cell # 940-447-2490 or e-mail iustin.Iopez(a7bnsfcom a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. Exhibit C — WHS at Avenue P (7/30/09) 4 Form 0102 • 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by the City of Lubbock . The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. • 1.05.03d The average train traffic on this route is 16 freight trains per 24-hour period at a timetable speed of 20 MPH and no passenger trains. 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railroad's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. Exhibit C — WH5 at Avenue P (7/30/09) 5 Form 0102 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation.com, however, a partial list of the requirements include. a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above -the -ankle lace -up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information contained on the web site and the information in this paragraph, the web site will eovern.) 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILROAD'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. if capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. 1.07 Excavation 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Roadmaster (Justin Lopez) at 806-765-3955 and BNSF's Signal Construction Supervisor (Larry Brackett) at 806-379-3190. All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. Exhibit C — WHS at Avenue P (7/30/09) 6 Form 0102 • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting 1.08.01 if Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non -containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non -Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. Exhibit C — WHS at Avenue P (7/30/09) 7 Form 0102 NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/St County: (if non -Railway location) 5. Social Security 4 6. Name (last, first, mi) 7. Address: Street 8. Date of Birth: 2. Date: 3. Temperature: City: and/or Age Gender: (if available) 9. (a) Injury: (b) Body Part: (i.e. (a) Laceration (b) Hand) 11. Description of Accident (To include location, action, result, etc.): Time: 4. Weather St. Zip: 12. Treatment: ? First Aid Only ? Required Medical Treatment ? Other Medical Treatment 13. Dr. Name 30. Date: 14. Dr. Address: Street: City: St: Zip: 15. Hospital Name: 16. Hospital Address: Street: City: St: Zip: 17. Diagnosis: FAX TO RAILWAY AT (817) 352-7595 AND COPY TO RAILWAY ROADMASTER FAX (806) 765-3930 Exhibit C — WHS at Avenue P (7/30/09) 8 Form 0102 Resolution No. 2009—RO557 LAW DEPARTMENT APPROVED FORM 0103 EXHIBIT "C-1" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSF RAILWAY COMPANY Attention: Manager Public Projects Railway File: 014932M Agency Project: Avenue P (DOT No. 014932M) — construct WAYSIDE HORN SYSTEM Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated , 20___, with the City of Lubbock for the performance of certain work in connection with the following project: Avenue P — construct WAYSIDE HORN SYSTEM. Performance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for the City of Lubbock (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or Avenue P - C-1 for WHS (11/06109) in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall he interpreted as requiring Contractor to indemnify Railroad to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILROAD FOR RAILROAD'S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance must contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: ♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. ♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards must be removed. No other endorsements limiting coverage as respects obligations under this -Agreement may be included on the policy. B. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: Avenue P - C-1 for WHS (11/06/09) ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railroad prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Insurance policy, the Agency or its CONTRACTOR may participate in the railroad's (BNSF) Blanket Railroad Protective Liability Insurance Policy. The limits of coverage are the same as required of a "stand alone" policy. ❑ 1 elect to participate in BNSF's Blanket Railroad Protective Liability Insurance Policy. ❑ 1 elect NOT to participate in BNSF's Blanket Railroad Protective Liability Insurance Policy. To obtain the premium cost, please call the person below, who handles the Blanket Railroad Protective Liability Insurance Policy for BNSF: Rosa Martinez MARSH USA 214-303-8519 Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care, custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a severability of interest endorsement and Railroad must be named as an additional insured with Avenue P - C-I for WHS (11/06/09) respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance. Contractor is not allowed to self -insure without the prior written consent of Railroad If granted by Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to include a deductible, self -insured retention or other financial responsibility for claims. Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. Contractor should send the certificate(s) to the following address: Ebix BPO PO Box 12010-BN Hemet, CA 92546-8010 Fax number. 951-766-2299 Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class V1I or better, and authorized to do business in the state(s) in which the service is to be provide. Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by 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 will not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, , including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, Avenue P - C-1 for WHS (11/06/09) tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intennodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT. Contractor and its subcontractors must give Railway's Roadmaster (Justin Lopez) 4 weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Avenue P - C-I for WHS (11/06/09) Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which, upon execution by Railway, will constitute an Agreement between us. (Contractor) By: Printed Name: Title: Contact Person: Address: City: State: —Zip: Fax: Phone: E-mail: Avenue P - C-1 for WHS (11/06/09) BNSF Railway Company By: Name: Timothy J. Huya Title: Manager Public Projects Accepted and effective this day of 20_.