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HomeMy WebLinkAboutResolution - 2009-R0558 - Contract - Railroad Controls LP - Installation Of An Automated Horn System - 12/16/2009Resolution No. 2009-RO558 December 16, 2009 Item No. 5.5.2 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, a Contract for the Installation of an Automated Horn System at 2nd Drive and Avenue P, by and between the City of Lubbock and Railroad Controls, LP, and related documents. Said Contract 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. TOM MARTIN, MAYOR ATTEST: Rebecca ' za, City Secretary APPROVED AS TO CONTENT: Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Contract-Railroad Controls, LP November 16, 2009 Resolution No. 2009-RO558 INSTALLATION OF AN AUTOMATED HORN SYSTEM 2N° DRIVE AND AVE. P CONTRACT STATE OF TEXAS § COUNTY OF LUBBOCK § This contract, (the "Contract"), effective as of the 16 day of December , 2009, (the "Effective Date"), is by and between the City of Lubbock, (the "City"), a Texas municipal corporation, and Railroad Controls, LP ("CONTRACTOR"). WITNESSETH WHEREAS, the City desires to obtain services relating to the purchase and installation of a Automated Horn System at Avenue P highway -rail grade crossing located on the BNSF Railway; and WHEREAS, CONTRACTOR has a professional staff experienced and is qualified to provide services for the installation of an Automated Horn System; and WHEREAS, the City desires to contract with CONTRACTOR to provide material and expertise required for the installation of an Automated Horn System. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Contract, the City and CONTRACTOR hereby agree as follows: ARTICLE L TERM The term of this Contract commences on the Effective Date and continues without interruption for a term of one (1) year from and after the Effective Date. ARTICLE II. COMPENSATION CONTRACTOR shall receive lump sum amount of one hundred twenty-three thousand two hundred thirty three and 66/100 DOLLARS ($123,233.66) and attached as Exhibit A to this Contract. Payment shall be made upon completion of the project. 1A\use6199951quiet zones\RCL agreement ARTICLE III. TERMINATION Termination and Remedies. In the event CONTRACTOR breaches any term and/or provision of this Contract the City shall be entitled to exercise any right or remedy available to it at law or equity, including without limitation, termination of this Contract and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. City or CONTRACTOR may, in its sole discretion, terminate this Agreement at any time, with or without cause upon thirty (30) days written notice. ARTICLE IV. REPRESENTATIONS AND WARRANTIES A. Existence. CONTRACTOR is a corporation duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. B. Corporate Power. CONTRACTOR has the corporate power to enter into and perform this Contract and all other activities contemplated hereby. C. Authorization. Execution, delivery, and performance of this Contract and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of CONTRACTOR. This Contract constitutes legal, valid, and binding obligations of the CONTRACTOR and is enforceable in accordance with the terms therof. D. CONTRACTOR. CONTRACTOR maintains a professional staff and employs, as needed, other qualified specialists experienced in providing services related to the installation of the Automated Horn System, and are familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. E. Performance. CONTRACTOR will and shall conduct all activities contemplated by this Contract in a good and workmanlike manner, and comply with all laws, rules, and regulations, both state and federal, relating to the: installation of the Automated Horn System, as contemplated hereby. If any of the activities of CONTRACTOR, or omissions of the activities .required herein, shall cause, in whole or in part, liability or loss on the part of the City, it shall be deemed that CONTRACTOR did not perform said activities (or omitted the performance of said activities) in a good and workmanlike manner. F. Use of Copyrighted Material. CONTRACTOR warrants that any materials provided by CONTRACTOR for use by City pursuant to this Contract shall not contain any proprietary material owned by any other party that is protected under the Copyright Act or any other similar law. CONTRACTOR shall be solely responsible for ensuring that any materials provided by CONTRACTOR pursuant to this Contract satisfy this requirement and CONTRACTOR agrees to hold City harmless from all liability or loss to which City is exposed on account of CONTRACTOR's failure to perform this duty. 1lluser1199951quiet zones\RCL agreement 2 ARTICLE V. SCOPE OF WORK CONTRACTOR shall accomplish the following: Provide all material and labor required for the installation of the Automated Horn System. Procure insurance required by the City of Lubbock. Procure required BNSF Railroad insurance, permits, and execute Right of Entry with BNSF Railroad. Coordinate activities with BNSF Railroad and the City of Lubbock to ensure that there is no damage to underground utilities or signal cables. Provide maintenance training to City staff and supervise in-service testing of the Automated Horn System. Provide all required Federal Railroad Administration documentation required under the Final Rule for the Use of Locomotive Horns at Highway -Rail Grade Crossings for submittal by the City of Lubbock. The Contractor further agrees to comply with all CONTRACTOR REQUIREMENTS per Exhibit C and Exhibit C-1 to the Agreement between the City and Burlington Northern Santa Fe Railway and attached as Exhibit B to this contract. ARTICLE VI. INDEPENDENT CONTRACTOR STATUS CONTRACTOR and City agree that CONTRACTOR shall perforin the duties under this Contract as an independent contractor. CONTRACTOR has the sole discretion to determine the manner in which the services are to be performed. ARTICLE VII. INSURANCE A. General. CONTRACTOR shall procure and carry, at its sole cost and expense through the life of this Contract insurance protection hereinafter specified, in form and substance satisfactory to the City. City must approve all policies prior to the commencement of any activities whether performed by CONTRACTOR, subcontractor, agents, or third parties. The insurance carrier must be an insurance company authorized to transact business in the State of Texas and have a Best's Financial rating of A:VII. A Certificate of Insurance specifying each and all coverage shall be submitted to City prior to the execution of this Contract. All insurance shall be prepared and executed by the insurance company or it's authorized agents and shall contain an endorsement naming the City of Lubbock an additional insured. Written notice of cancellation or any material change will be provided thirty (30) days in advance of cancellation or change. All insurance, other than Workers' Compensation, shall provide a waiver of subrogation in favor of the City of Lubbock, and shall contain cross liability and severability clauses. B. Required Coverage. CONTRACTOR shall obtain and maintain policies of insurance throughout the Contract term in limits specified below. 1. 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 [:\\user%199951quiet zoneslRCL agreement 3 • 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. 2. 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 3. 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. 4. 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 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: [:\\user\I99954quiet zonesMCL agreement 4 Rosa Martinez MARSH USA 214-303-8519 5. 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 and the City of Lubbock. 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 and the City must be named as an additional insured with respect to work performed under this agreement. Severability of interest and naming Railroad and City of Lubbock 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 and City 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, sett -insured retention or other financial responsibility for claims. Prior to commencing the Work, Agency must furnish to Railroad and City 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 cornpany(ies) issuing such policy(ies) to notify Railroad and City 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. City of Lubbock P.O. Box 2000 Lubbock Texas 79457 Fax number 806-775-3074 Any insurance policy must be written by a reputable insurance company acceptable to Railroad and City 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 IRMA. 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 1:NserA99951quiet zones\RGL agreement 5 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 and City as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad and City to the same extent and under the same terms and conditions as Agency is required to release, defend and indemnify Railroad and City herein. Failure to provide evidence as required by this section will entitle, but not require, Railroad and City 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. ARTICLE VIII. EMPLOYMENT OF AGENTS CONTRACTOR may employ or retain agents, consultants, contractors, or third parties, to perform certain duties of CONTRACTOR under this Contract provided that CONTRACTOR is in no event relieved of any obligation under this Contract. Any such agents, contractors, or third parties retained and/or employed by CONTRACTOR shall be required to carry, for the protection and benefit of the City and CONTRACTOR and naming said third parties as additional insureds, insurance as described above in this Contract. ARTICLE IX. CONFIDENTIALITY CONTRACTOR shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE X. INDEMNITY CONTRACTOR shall indemnify and save harmless the City of Lubbock and its officers, agents, and employees from all suits, actions, losses, damages, claims, or liability of any character, type, or description, including without limiting the generality of the foregoing all expenses of litigation, court costs, and attorney's fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of, or occasioned by, the acts of CONTRACTOR, its agents or employees, in the execution of this Contract. [:\\user\199951quiet zones\RCL agreement 6 ARTICLE XI. COMPLIANCE WITH APPLICABLE LAWS CONTRACTOR shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Contract, and any amendments thereto. ARTICLE XII. NOTICE A. General. Whenever notice from CONTRACTOR to City or City to CONTRACTOR is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand. (2) facsimile, or other reasonable means (in which case such notice shall be effective upon delivery). or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified marl, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. CONTRACTOR's Address. CONTRACTOR's address and numbers for the purposes of notice are: Attn: Q,0 -e- - l}16 r1k+a i\, J f , Telephone: (gt7l '9?y— 63or� Facsimile: $17 2-0— (3 41b C. City's Address. The City's address and numbers for the purposes of notice are: City of Lubbock Attn: Marsha Reed, P.E. P. 0. Box 2000 1625 13th Street Lubbock, Texas 79457 Telephone: (806) 775 - 2335 Facsimile: (806) 775 - 3074 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Contract, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XIII. MISCELLANEOUS 1A\user1199951quiet zones\RCL agreement 7 A. Captions. The captions for the articles and sections in this Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any effect in construing this Contract. B. Audit. CONTRACTOR shall provide access to its corporate books and records to the City. The City may audit, at its expense and during normal business hours, CONTRACTOR's books and records with respect to this Contract between CONTRACTOR and City. C. Records. CONTRACTOR shall maintain records that are necessary to substantiate the services provided by CONTRACTOR D. Assignability. CONTRACTOR may not assign this Contract without the prior written approval of the City. E. Successor and Assigns. This Contract binds and inures to the benefit of the City, CONTRACTOR, and their respective successors, legal representatives, and assigns. F. Construction and Venue. THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Contract is ever held to be invalid or ineffective by any court of competent Jurisdiction with respect to any person or circumstances, the remainder of this Contract and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Contract, and duly executed by CONTRACTOR and City. I. Entire Agreement. This Contract, contains the Entire Contract between the City and CONTRACTOR, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. EXECUTED as of the Effective Date hereof. CONTRACTOR: By: IA\user1l9995tquiet zoneslRCL agreement 8 CITY OF LUBBOCK, TEXAS (OWNER): By: Tom Martin MAYOR ATTEST: PRINTED NAME: TITLE: j t`�r_, -4 a r p } S der.. •�, N' `r is e_# ��. COMPLETE ADDRESS: Company j2 t D.�JI ©��✓o l S L r ►+—�- r r/'� Address -7q-71 e&-,jveolc I�Gr�e�••e. City, State, Zip F_3eAc gj k ,i �C `7r 2 ►.1 N Corporate Secretary 1Akuser1199951quiet zones\RCL agreement Reb"bGea Garza City Secretary APPROVED AS TO CONTENT: W MV rsha Reed, P.E., Chief Operations Officer Owner's Representative APP AS TO FORM: Chad Weaver Assistant City Attorney Exhibit A Railroad Controls Limited 7471 Benbrook Parkway Benbrook, TX 76126 Phone: 817-820-6300 Fax: 817-820-6340 Bill To: Marsha Reed Director of Public Works City of Lubbock 1625 13th Street Room 107 Lubbock, TX 79401 Resolution No. 2009—RO558 Quotatioh Date: 11/10/2009 Quotation # 09.104 Customer ID RCL Job No. Quotation valid until: 02/08/2010 Prepared by: Robert Albritton Location: Lubbock, TX RR: BNSF Street Dot No. Avenue P 014932M RR Milepost 673.52 Comments or Special Instructions: Warranty period is one year from the in-service date for parts only. It is important to note that this quote does not include cost of railroad flagging or cost of interconnection to railroad crossing signal system. Description Part Number Qty Unit Price AMOUNT AHS MATERIAL AHS Horn Assembly 07-000-016 3 $ 3,228.00 $ 9,684.00 AHS QZI - Double Face 07-000-017 2 $ 3,932.00 $ 7,864.00 AHS QZl - Single Face 07-000-018 2 $ 3,048.00 $ 6,096.00 Cabinet Assy, AHS Master 07-000-010 1 $ 13,377.00 $ 13,377.00 Cabinet Assy, AHS End of Line for 2 Horn 07-000-022 1 $ 12,494.00 $ 12,494.00 Cabinet Assy, AHS Vital Interface 07-000-012 1 $ 6,018.00 $ 6,018.00 Subtotal S 55,533.00 Discount - 15% S (8,329.95) INSTALLATION (estimate only) Material $ 25,565.15 Labor $ 30,958.97 Engineering/Training $ 4,025.00 Equipment $ 1,782.50 Railroad Protective Liability Insurance $ 5,750.00 Subtotal S 68,081.62 FREIGHT S 7,948.98 *Applicable Sales/Use Tax is not included TOTAL" $ 123,233.66 **Payment due within 60 days of invoice If you have any questions concerning this quotation contact Robert Albritton at (817) 820-6300 or email:ahs agrailroadcontrols.com Exhibit B Resolution No. 2009-80558 LAW DEPARTMENT APPROVED FORM 0103 EXHIBIT IT -P 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: Tile 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{06/09) 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 be 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 indenuiitication 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 $21,000,000 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 -I for WHS (11106109) ♦ 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) t 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. ❑ I elect to participate in BNSF's Blanket Railroad Protective Liability Insurance Policy. L7 I 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 IDSA 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-1 for WHS (11106109) 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 VII 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 sante 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 -I 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, intermodal, 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 $3$2.20 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 roust 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 (11106/09) 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. 12 LA" ,lro`k(.)hiralS G�•. � t�� ( Contractor) By: 'Z Printed Name: bLkAlb�•#-I�r,3�, Title:), rec}cr #tS"I(e-, BNSF Railway Company IN Name: Timothy J. Huya Title: Manager Public Proiects Contact Person: ?&.4 4 LAccepted and effective this day of 20 Address: ZV71 t` ,,Lrrr'k f%dkvq�- RWCU City: rov iC State: !7` Zip: I zA Fax: I) QZo—(o3ga Phone: E-mail: Avenue P - C-1 for WHS (11106109) EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General Exhibit B Resolution No. 2009-80558 • 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 "C-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 "C-1". Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 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 1316 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) 775-233_5 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 1 vertical slope beginning at eleven (1 1) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway rive 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 pians 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' -ti" 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 %" 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 (7/30/04) 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 (NISDS), 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 htttp://www.e-railsafe.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 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. • 1.05.021b 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 (7130/09) 4 Form 0102 a 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 ( l) flagger is approximately between 5800.00-$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 Iv1PH 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 — WHS 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 Simral 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 (7/30109) 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 (7/30109) 7 Form 0102 NON-Eh1PLOYEE 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 # 6. Name (last, first, mi) 7. Address: Street: 8. Date of Birth: 9. (a) Injury: 2. Date: 3. Temperature: City: and/or Age Gender: (if available) (i.e. (a) Laceration (b) Hand) 1. Description of Accident (To include location, action, result, etc.): 12. Treatment: ? First Aid Only ? Required Medical Treatment ? Other Medical Treatment 13. Dr. Name 14. Dr. Address: Street: 15. Hospital Name: 16. Hospital Address: Street: 17. Diagnosis: FAX TO RAILWAY AT (817) 352-7595 AND COPY TO RAILWAY ROADMASTER FAX (806) 765-3930 City: City: (b) Body Part: Time: 4. Weather St Zip: 30. Date: St: Zip: St: Zip: Exhibit C — WHS at Avenue P (7/30/09) 8 Form 0102