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HomeMy WebLinkAbout2006-145S:\Our Documents\Ordinances\06\Vintage Parkway RR Crossing Agreeme6nxfoc ORDINANCE NO. W0 —� AN ORDINANCE APPROVING A PUBLIC AT -GRADE RAILROAD CROSSING AGREEMENT BETWEEN THE CITY OF DENTON AND UNION PACIFIC RAILROAD COMPANY COVERING THE CONSTRUCTION, MAINTENANCE, AND USE OF NEW VINTAGE PARKWAY AT -GRADE PUBLIC ROAD CROSSING AT RAILROAD MILE POST 723.02-CHOCTAW SUBDIVISION; PROVIDING FOR THE PERMANENT CLOSURE OF CERTAIN RAILROAD CROSSINGS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council has been presented with a railroad crossing agreement between the City of Denton and Union Pacific Railroad Company (the "Railroad"), a copy of which is attached hereto and made a part hereof as Exhibit A (the "Agreement"); and WHEREAS, the City Council hereby finds that the Agreement is in the public interest; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are true and correct and are incorporated herein by reference. SECTION 2. The Agreement is hereby approved. The City Manager or his designee is hereby authorized to execute the Agreement on behalf of the City and to exercise the rights and duties of the City under the Agreement, including without limitation, the expenditure of funds provided for in the Agreement. SECTION 3. The City Council hereby makes the following findings: a. The Denton County Commissioners Court has passed Court Order No. 05-0765 permanently closing the existing at -grade public street crossing at Collins Street located at Railroad Mile Post 714.49, DOT No. 795 305T (the "Collins Crossing"). b. All rights to the private road crossing located at Railroad Mile Post 723.02 (the "Private Crossing") were transferred to the City pursuant to that certain Street Right - of -Way Deed for Vintage Parkway dated May 27' 2003 and recorded in Vol. 5359, Pages 05326 through 05332 of the Land Records of Denton County, Texas (the "Street Deed"). Such private road area is located completely within the Vintage Parkway right-of-way described in the Street Deed. The City Manager, or his designee is authorized to take all actions and execute all documents on behalf of the City necessary to provide the Railroad with evidence that the Collins Crossing and the Private Crossing are permanently closed upon completion of the Project as provided in the Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 12006. ATTEST: JENNIFER WALTERS, CITY SECRETARY i APPROVtD AS TO LEGAL FORM: EDWIN M. SNYDE 2, CVY ATTORNEY EULINE BROCK, MAYOR Page 2 UPRR Folder No.: 2357-20 T PUBLIC ROAD AT -GRADE CROSSING AGREEMENT BETWEEN N G RTI DENTON, DENTON COUNTY, TEXAS Political Body Original BUILDING AMERICW UPRR Folder No.: 2357-20 Agreement Number PUBLIC ROAD AT -GRADE CROSSING AGREEMENT Vintage Parkway — DOT No.: 795 327T UPRR Mile Post 723.02 — Choctaw Subdivision Denton, Denton County, Texas 24UG31 THIS AGREEMENT is made and entered into as of the ,16 day of � 2000 by and between UNION PACIFIC RAILROAD COMPANY, a Delawaz c rporation, to be addressed at Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179 (the "Railroad") and the CITY OF DENTON, a Texas municpal corporation, to be addressed at 601 East Hickory, Suite B, Denton, TX 76205 (the "Political Body"), RECITALS: The Political Body desires to undertake as its project (the "Project"): the closure and removal of the existing Collins Street at -grade public road crossing, DOT No. 795305T, located at Railroad's Mile Post 714.49 on it's Choctaw Subdivision, in or near Denton, Denton County, Texas, the closure and removal of an existing at -grade private road crossing, located at Railroad's Mile Post 723.02 on it's Choctaw Subdivision, in or near. Denton, Denton County, Texas, and the construction of the new Vintage Parkway at -grade public road crossing, DOT No. 795327T, at Railroad's Mile Post 723.02 on it's Choctaw Subdivision, in or near Denton, Denton County, Texas (the "Crossing Area") as the Crossing Area is shown on the Railroad's location print marked Exhibit A and the detail print marked Exhibit A-1, each attached hereto and hereby made a part hereof. The Railroad and the Political Body are entering into this Agreement to cover the above. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: ARTICLE 1 - EXHIBITS BAND B-1. The general terms and conditions marked Exhibit B, and the Contractor's insurance requirements marked Exhibit B-1, are attached hereto and hereby made a part hereof. Public Road At -Grade Crossing Agreement Articles of Agreement January 30, 2006 Fonn Approved, AVP-Law— 3/10/05 Page 1 of 6 UPRR Folder No.: 2357-20 BUILDING AMERICA- ARTICLE 2 - RAILROAD GRANTS RIGHT. For and in consideration TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) to be paid by the Political Body to the Railroad upon the execution and delivery of this Agreement and in further consideration of the Political Body's agreement to perform and abide by the terms of this Agreement including all exhibits, the Railroad hereby grants to the Political Body the right to establish or reestablish, construct or reconstruct, maintain, repair and renew the road crossing over and across the Crossing Area. ARTICLE 3 - DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the Political Body to perform any Project work on any portion of the Railroad's property and shall also include the contractor's subcontractors and the contractor's and subcontractor's respective employees, officers and agents. ARTICLE 4 - CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. If the Political Body will be hiring a Contractor to perform any work involving the Project (including initial construction and any subsequent relocation or maintenance and repair work), the Political Body shall require the Contractor to: • execute the Railroad's then current Contractor's Right of Entry Agreement • obtain the then current insurance required in the Contractor's Right of Entry Agreement; and • provide such insurance policies, certificates, binders and/or endorsements to the Railroad before allowing any Contractor to commence any work in the Crossing Area or on any other Railroad property. The Railroad's current insurance requirements are described in Exhibit B-1, attached hereto and hereby made a part hereof. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit D, attached hereto and hereby made a part hereof. The Political Body confirms that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Senior Manager - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179-1690 UPRR Folder No.: 2357-20 Public Road At -Grade Crossing Agreement - Articles of Agreement - - January 30, 2006. Form Approved, AVP-Law — 3/10/05 Page 2 of 6 UPRR Folder No.: 2357-20 BUILDING AMERICA- D. If the Political Body's own employees will be performing any of the Project work, the Political Body may self -insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. ARTICLE 5 - FEDERAL AID POLICY GUIDE A. If the Political Body will be receiving any federal funding for the Project: • the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference, and • construction work by the Political Body and Contractor shall be performed, and any reimbursement to the Railroad for work it performs, shall be made in accordance with the Federal Aid Policy Guide. B. If federal funding of involved, as provided in 23 CFR 646.210(b)(2), the Project is of no ascertainable benefit to the Railroad and the Railroad shall not be obligated to pay or contribute to any Project costs. ARTICLE 6 - WORK TO BE PERFORMED BY THE RAILROAD A. Upon the execution of this agreement, the Political Body shall pay the Railroad a firm and fixed sum of Three Hundred Sixteen Thousand Three Hundred Seventy -Three Dollars ($316,373.00) for the work performed and materials supplied by the Railroad, as described in the following Railroad's Material and Force Account Estimates: • Surface Estimate dated November 1, 2005 in the amount of $53,066.00, • Signal Estimate dated March 21, 2006 in the amount of $248,696.00, and the • Flagging & Engineering Review Estimate dated January 17, 2006 in the amount of $6,400.00, • Initial clearing of vegetation from Crossing Area in the amount of $8,211.00, marked Exhibits C, C-1, C-2 and C-3 each attached hereto and hereby made a part hereof (the "Estimate"). The term "Estimate" also includes the work of clearing vegetation. B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the Political Body in the event the Political Body does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. The Political Body acknowledges that the Estimate does not include any estimate of flagging or other protective service costs that are to be paid by the Political Body or the Contractor in connection with flagging or other protective services provided by the Railroad in connection with the Project. All of such costs incurred by the Railroad are to be paid by the Political Body or the Contractor as determined by the Railroad and the Political Body. If it is determined that the Railroad Public Road At -Grade Crossing Agreement Articles of Agreement January 30, 2006 Form Approved, AVP-Law — 3/10/05 Page 3 of 6 UPRR Folder No.: 2357-20 BUILDING AMERICK will be billing the Contractor directly for such costs, the Political Body agrees that it will pay the Railroad for any flagging costs that have not been paid by any Contractor within thirty (30) days of the Contractor's receipt of billing. D. The Political Body agrees to reimburse the Railroad for one hundred percent (100°/o) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, actual costs of preliminary engineering review, construction inspection, procurement of materials, equipment rental, manpower and deliveries to the job site and all of the Railroad's normal and customary additives (which shall include direct and indirect overhead costs) associated therewith. ARTICLE 7 PLANS A. The Political Body, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications and submit such plans and specifications to the Railroad's Assistant Vice President Engineering — Design, or his authorized representative, for review and approval. The plans and specifications shall include all Roadway layout specifications, cross sections and elevations, associated drainage, and other, appurtenances. B. The final one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering —Design, or his authorized representative, are hereinafter referred to as the "Plans". The Plans are hereby made apart of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D. Notwithstanding the Railroad's approval of the Plans, the Railroad shall not be responsible for the permitting, design, details or construction of the Roadway. ARTICLE 8 - EFFECTIVE DATE; TERM; TERMINATION. A. This Agreement shall become effective as of the date first herein written, or the date work commences on the Project, whichever is earlier, and shall continue in full force and effect for as long as the Structure remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the Political Body in the event the Political Body does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the date of this Agreement, or from the date that the Railroad has executed this Agreement and returned it to the Political Body for its execution, whichever is applicable. C. If the Agreement is terminated as provided above, or for any other reason, the Political Body shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Public Road AFGmde Crossing Agreement Articles of Agreement January 30, 2006 . Fonn Approved, AVP-Law-3/1O,05 Page 4 of 6 . UPRR Folder No.: 2357-20 BUILDING AMERICN' ARTICLE 9 - CONDITIONS TO BE MET BEFORE POLITICAL BODY CAN COMMENCE WORK. Neither the Political Body nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: • The Railroad and Political Body have executed this Agreement. • The Railroad has provided to the Political Body the Railroad's written approval of the Plans. • Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements set forth in the Contractor's Right of Entry Agreement. ARTICLE 10 - SIGNAL MAINTENANCE. A. The Political Body agrees to pay for the cost of maintenance of the automatic grade -crossing protection. Effective as of the date of this Agreement, the annual fee shall be FIVE THOUSAND THREE HUNDRED SIXTY-FIVE DOLLARS ($5,365.00). The Railroad will bill the Political Body annually. The Political Body agrees to pay the Railroad within thirty (30) days of its receipt of billing. B. The above annual fee is based upon the number of current signal units at each location as illustrated on the Arema Unit Statement marked Exhibit E, attached hereto and hereby made a part. hereof. Effective on the first anniversary of this Agreement and on the anniversary date of each subsequent one-year period, the annual fee will be increased at a rate based upon the American Association of Railroad's (AAR) signal unit cost index. Such changes in the fee may be made by means of automatic adjustment in billing. The signal unit base for the annual fee may be re- determined by the Railroad at any time subsequent to the expiration of five (5) years following the date on which the annual rental was last determined or established. ARTICLE 11- ORDINANCE FOR PERMANENT CLOSURE OF COLLINS STREET AND PRIVATE CROSSING. Attached as Exhibit F and made a part hereof, is a copy of the Ordinance passed by the Political Body which authorizes and directs the permanent closure of the existing at -grade public street crossing at Collins Street located at Railroad Mile Post 714.49, DOT No. 795 305T, and the existing private road crossing located at Railroad Mile Post 723.02 upon the completion of the Project. Public Road At -Grade Crossing Agreement Articles of Agreement January 30, 2006 Form Approved, AVP-Law— 3/10/05 Page 5 of 6 BUILDING AMERIG- UPRR Folder No.: 2357-20 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in duplicate as of the date first herein written. WITNESS: 1. (Seal) %C�IT�Y OF DEN TON Title L/% /, ,y ,ri/y 1 Ur6L� i24�eG Pursuant to ReselutieFbiOrder No. 2OOW -1415 dated: j'i ay 1h 200-k— hereto attached APPROVED AS TO FORM: CITY ATTORNEY CITY OF D ON ERAS BY: 7 Public Road At -Grade Crossing Agreement Articles of Agreement January 30, 2006 Form Approved, AVP-Law— 3/10/05 Page 6 of 6 To l ent LOCATION OF NEW AT -GRADE PUBLIC ROAD CROSSING CONSTRUCTION PROJECT J COUNTRVII RD lfiv 1, 9atloe 377 G w .0 Y 0 ., w ' q m— F z MP 723.02 - Chactaw SU division \ i)`R, mM Vintage Parkway- DOT #795327T COUNTR I IR �, AFRINCLREEKD New At -Grade Public Road Crossing '� m o Construction Project �� o z or 93 SANDERS RD y IL 1 1...... IL 1 �� RYAN RD Choctaw-Subdiwslon 9401 o AGt A — y ;1 ^'3 ALLREDRD 7 SKI E DR t�CKIWODCT `I .Hicks y ...�. ® h D�a use subject to license. D t000 200D 02004 DeLorme. Street Atlas USA® 2005. MN (4.9' E) Data Zoom 13.0 www.tlelorme.com RAILROAD WORK TO BE PERFORMED: 1. Install 56-feet of new concrete road crossing surface; 45 cross ties; 1 carload of ballast; and other track materials. 2. Install remote LED flashing signals with gates and CWT in new cabin; and other signal materials. 3. Engineering Review and Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY CHOCTAW SUBDIVISION MILE POST 723.02 GPS: N 33' 09.8330', W 970 09.4602' near DENTON, DENTON CO., TX. Illustrative print showing location of a new at -grade public road crossing construction project with the CITY OF DENTON. Folder No. 2357-20 Date: January 30, 2006 WARNING M ALL OCCASIONS, U.P. COMMUMCATIONS DEPARTb MUST BE CONTACTED M ADVANCE OF ANY WORK TO DETERMEN6 EXISTENCE AND LOCATION OF FtBER OPTIC CABLE. Exhibit A Railroad Location Print To Public Road At -Grade Crossing Agreement To No2T-E, Exhibit A-1 Detailed Print To Public Road At -Grade Crossing Agreement wt Public Road At -Grade Crossing Agreement ExB BUILDING AMERrCK' - Standard Form Approved, AVP-Law— 3/10/05 EXHIBIT B TO PUBLIC ROAD AT GRADE CROSSING AGREEMENT TERMS AND CONDITIONS SECTION 1. CONDITIONS AND COVENANTS a) The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The Political Body shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the Political Body shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the Political Body for the purpose of conveying electric power or communications incidental to the Political Body's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the Political Body to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. b) The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes in such manner as not unreasonably to interfere with its use as a public highway. In the event the Railroad shall place tracks upon the Crossing Area, the Political Body shall, at its sole cost and expense, modify the highway to conform with the rail line. c) The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or not, and also to any renewals thereof. The Political Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the railroad property, unless the Political Body at its own expense settles with and obtains releases from such nonparties. d) The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replacb tracks, facilities and appurtenances on the property; also the right to cross the Crossing Area with all kinds of equipment. The Railroad further reserves the right to attach signal, communication or power lines to any highway facilities,located upon the property, provided that such attachments shall comply with Political Body's specifications and will not interfere with the use of the Crossing Area. e) So far as it lawfully may do so, the Political Body will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. f) If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the.Political Body will acquire all such other property and rights at its own expense and without expense to -the Railroad. SECTION 2. CONSTRUCTION OF ROADWAY a) The Political Body, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will fumish the Railroad upon request with satisfactory evidence that such authority has been obtained. b) Except as may be otherwise specifically provided herein, the Political Body, at its expense, will fumish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right of way) and all necessary drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the Political Body shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. c) All construction work of the Political Body upon the Railroad's property (including, but not limited to, construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering - Design of the Railroad or his authorized representative and in accordance with the Plans, and other guidelines furnished by the Railroad. d) All construction work of the Political Body shall be performed diligently and completed within a reasonable time, and in any event Public RoadAt-GradeCrossing Agreement ExB Terms of Agreement - Exhibit B Standard Form Approved, AVP-Law—3/10105 Page 1 of 4 - To Public Road At -Grade crossing agreement Public Road At -Grade Crossing Agreement 6d3 BUILDING ANERICA' Standard Form Approved, AVP-Law — 3I10/05 within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad's Assistant Vice President Engineering Design. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the Political Body. The Political Body hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad. SECTION 3. INJURY AND DAMAGE TO PROPERTY If the Political Body, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the Political Body is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of. the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the Political Body at the Political Body's own expense, or by the Railroad at the expense of the Political Body, and to the satisfaction of the Railroad's Assistant Vice President Engineering - Design. SECTION 4. PAYMENT FOR WORK BY THE RAILROAD a) Bills for work and materials shall be paid by the Political Body within thirty (30) days of its receipt thereof. The Railroad will submit to the Political Body current bills for all work performed by the Railroad and all flagging and other protective services and devices during progress of the Project (unless flagging is to be billed directly to the Contractor). The Railroad will submit final billing within one hundred and twenty (120) days after completion of the Project, provided the Political Body advises the Railroad of the commencement of the 120-day period by giving the Railroad written notification of completion of the Project. . b) The Railroad may contract for the performance of any. of its work by other than railroad forces:The Railroad shall notify the Political Body of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the Political Body shall reimburse the Railroad for the amount of the contract. SECTION 5. MAINTENANCE AND REPAIRS a) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the track tie ends, which shall be maintained by and at the expense of the Railroad. b) If, in the future, the Political Body elects to have the, surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or some surfacing material other than timer planking, the Railroad, at the Political Body's expense, shall install such replacement surfacing, and in the future, to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing Area, the Political Body shall bear the expense of such repairs or replacement. SECTION 6. CHANGES IN GRADE If at any time the Railroad shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the tracks located on the crossing Area, the Political Body shall, at its own expense, conform the public highway in the Crossing Area to conform with the change of.grade of the trackage. SECTION 7. REARRANGEMENT OF WARNING DEVICES If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either railroad, highway or both, the parties will apportion the expense incidental thereto between themselves by negotiation, agreement or by the order.of a competent authority before the change or rearrangement is undertaken. SECTION 8. SAFETY MEASURES• PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the Political Body that the work will be performed in a safe manner and in conformity with the following standards: a) Definitions. All references in this Agreement to the Political Body shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the Political. Body shall include work both within and outside of the Railroad's property. Public Road At -Grade Crossing Agreement FxB Terms of Agreement Exhibit B Standard Form Approved, AVP-Law — 3/10/05. _ Page 2 of 4 To Public Road At -Grade Crossing Agreement BUILDING AMERMW Public Road Al -Grade Crossing Agreement ExB Standard Form Approved, AVP-Law-3110/05 b) Compliance With Laws. The Political Body shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body s agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Political Body (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the Political Body to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the Political Body shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attomey's fees, court costs and expenses. The Political Body further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. c) No Interference or Delays. The Political Body shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. d) Supervision. The Political Body, at its own expense, shall adequately police and supervise all work to be performed by the Political Body, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the Political Body for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the Political Body with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the Political Body will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. e) Suspenslon of Work. If at any time the Political Body's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. f) Removal of Debris. The Political Body shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the Political Body at the Political Body's own expense or by the Railroad at the expense of the Political Body. The Political Body shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. g) Explosives. The Political Body shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. h) Excavation. The Political Body shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The Political Body shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The Political Body, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the Political Body in connecfion with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. i) Drainage. The Political Body, at the Political Body's own expense, shall provide and maintain suitable facilities for draining the Structure and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The Political Body, at the Political Bodys own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the Political Body, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The Political Body shall not obstruct or interfere with existing ditches or drainage facilities. Public Road At -Grade Craa&ng Agreement PxB Terms of Agreement Exhibit B . - Standard Form Approved, AVP-Law — 3/10/05 Page 3 of 4 To Public Road At -Grade Crossing Agreement .�nr.�► Public Road Al -Grade Crossing Agreement Ex6 BUILDING AMERIC4- - Standard Form Approved, AVP-Law— 3110/05 j) Notice. Before commencing any work, the Political Body shall provide at least ten (10) days prior notice (excluding weekends and holidays) to the Railroad's Manager -Track Maintenance. k) Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Political Body shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the Political Body. If it is, Political Body will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. SECTION 9. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the Political Body shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. SECTION 10. OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to.the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. SECTION 11. REMEDIES FOR BREACH OR NONUSE a) If the Political Body shall fail, refuse or neglect to perform and abide by.the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the highway and appurtenances in such condition as will not menace, endanger. or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the Political Body will reimburse the Railroad for the expenses thereof. b) Nonuse by the Political Body of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the Political Body hereunder. c) The Political Body will surrender peaceable possession of the Crossing Area and Roadway upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. SECTION 12. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the Political Body and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the Political Body shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the Political Body and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. SECTION 13. ASSIGNMENT: SUCCESSORS AND ASSIGNS This Agreement shall not be assigned without the written consent of the Railroad. Subject hereto, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Public Road At -Grade Crossing Agreement ExB Terms of Agreement - - - Exhibit Standard Form Approved, AVP-Lew— 3110/05. Page 4 of 4 To Public Road Al -Grade Crossing Agreement To BUILDING AMERICA- Public Road At -Grade Crossing Agreement ExB-1- Standard Form Approved, AVP-Law-3/10/05 EXHIBIT B-1 TO PUBLIC ROAD AT GRADE CROSSING AGREEMENT INSURANCE REQUIREMENTS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and until the Contractor has removed all equipment and materials from the Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain a single limit of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000 and include broad form contractual liability coverage. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: —• Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations a The policy shall also contain the following endorsements which shall be Indicated on the certificate of insurance: • The workers compensation and employee related exclusions in the above policy apply only to employees of the Contractor. • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Coverage for Contractor's (and Railroad's) employees shall not be exclude • Waiver of subrogation If the Contractor will be using, storing and/or handling hazardous materials, the Contractor, in addition to the other endorsements to be obtained by the Contractor as provided in this exhibit, must also ensure that the Commercial General Liability Insurance policy contains a Designated Premises Pollution Coverage (CG00-39) endorsement. Evidence of the endorsement must also be indicated on the certificate of insurance that is provided to the Railroad. B. Business Automobile Coverage Insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non -owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • The workers compensation and employee related exclusions in the above policy apply only to employees of the Contractor. • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. C. Workers Compensation and Employers Liability Insurance including but not limited to: • Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self -insured, evidence of state approval Public Road At -Grade Xing Agreement EXB-i Terms of Agreement - Exhibit B-1 Standard Form Approved, AVP-taw-3110/05 Pagel of To Public Road At -Grads Crossing Agreement Public Road At -Grade Crossing Agreement Ex6-1 BUILDING AMERICK - Standard Form Approved, AVP-Law—MOMS must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of Insurance: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. E. Railroad Protective Liability Insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for `Physical Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the original policy is. forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor waives its right of recovery, and shall cause its insurers, through policy endorsement, to waive their right of subrogation against Railroad including, without limitation, for loss of Contractors owned or leased property or property under Contractor's care, custody and control. Contractor's insurance shall be primary with respect to any insurance carried by Railroad.. All waivers of subrogation shall be indicated on the certificate of insurance. H. All Policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Railroad as an additional insured. The coverage provided to Railroad as additional insured shall provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. Severability of interest and naming Railroad as additional insured shall be Indicated on the certificate of Insurance. I. Prior to commencing any work, Contractor shall furnish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificates) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration. Upon request from Railroad, a certified duplicate original of any required policy: shall be furnished. J. Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractors insurance agent(s)/broker(s), who have been instructed. by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractors insurance coverage will be primary. L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall 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 shall not be limited by the amount of the required insurance coverage. Public Road At -Grade Xing Agreement ExB-1 Terms of Agreement Exhibit B-1 Standard Forth Approved, AVP-Law- 3/10/05 Page 2 of 2 - To Public Road At -Grade Crossing Agreement To ent MAR-29-2006 14:30 UPRR PUBLIC PROSECTS 817 633 8416 P.01i01 'DATE: 2006-01-11 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: RECOLLECTABLE CROSSING SURFACE PROJECT. PRE -PAID FROM CITY OF DENTON, TX. USING STANDARD LABOR ADDITIVES OF 235%. UPRR TO FURNISH AND -INSTALL 56 TRACK FEET OF, NEW CROSSING INCLUDING TIES, OTM AND BALLAST. INSTALL BOOTLEGS AS REQUIRED FOR SIGNALIZATION OF' TRACK. PI0: 54077 AWO: 55482 MP,SUBDIV: 723.02, CHOCTAW SERVICE UNIT: 11 CITY: DENTON STATE: TX DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL- UPRR- TOTAL ENGINEERING WORK ENGINEERING LABOR ADDITIVE 235% 2350 TOTAL ENGINEERING SIGNAL WORK LABOR ADDITIVE 235% SALES TAX SIGNAL TOTAL SIGNAL TRACK & SURFACE WORK BALAST CONTRACTOR/OPERATOR FOREIGN LINE FREIGHT HOMELINE FREIGHT LABOR ADDITIVE 235% MATL STORE EXPENSE OTM RDXING SALES TAX TRK-SURF, LIN XTIE TOTAL TRACK S SURFACE 1000 2350 3350 2085 887 --2972 1.00 CL 723 16196 563 56.00 TF 3330 2355 45.00 EA 4788 27955 LABOR/MATERIAL EXPENSE 34277 RECOLLECTIBLE/UPRR EXPENSE ESTIMATED PROJECT COST EXISTING REUSEABLE MATERIAL CREDIT SALVAGE NONUSEABLE MATERIAL CREDIT RECOLLECTIBLE LESS CREDITS 1000 1000 2350 ------------ -------- 3350 -------- 3350 2085 2085 2 2 2. 51 938 938 ________ .___-------- ________ 53 ________ 3025 3025 596 1319 1319 4000 4000 4000 171 - 171 - 171 900 900 900 16196 16196 101 101 101 423 986 986 8553 11883 11883 519 519 519 2355 2355 3473 -8261 8261 ------- ..---- -------- IP736 -------- 46691 46691 18789--------- 53066 0 0 TOTRL P.Exhibit C Surface Estimate of Material & Force Account Work To Public Road At -Grade Crossing Agreement To DATE; 2006-03-21 RETINUE OF NATBRIAL AND FORCE ACCOONT NORM BY TER ONION PACIFIC RAILROAD DESCRIPTION OF WONK: INSTALL REMOTE(MP 723.56). LED PI, SIGNALS W/GATEE AEG CWT IN NEN CABtN A7 VINTAGE PARxxAY IN DER1®, TX. N.P. 723.02 ON TNR CROCIAN SUB. SIGNAL PROJECT NANAOSR: RON CLARKSON 867.7261 RAILROAD 70 PBRPORN ALL WORK / COST DISTRIBUTED AS FOLI MS: SIGNAL - CITY OF DENTON loot PREPAY '- PIG: 53394 AND: 54013 MP,SUBDIV: 723.02, CNOCTAN . SERVICE UNIT: 11 CITY. DEMON STATE: TX . DESCRIPTION M UNIT, LABOR MATERIAL ----------- ... .... ..... ........ RECOL4 OPRR ....... ..... TOTAL ..... ENGINEERING WORK ENGINEERING 1916 1916 1916 LABOR ADDITIVE 177.604 10893 10893 10893 SIG-NWY END - 4215 4215 4215 ............... TOTAL ENGINEERING 17024 ........................ 17024 17024 SIGNAL WORK SIGAL 76537 76537 - 76537 ....... ........ TOTAL SIGNAL 76537 ................ 76537 ........ 76537 TRACK 6 SORPACR WORK - BILL PREP 900 900 - 900 OONTRACT. 8076 9076 0076 DATE FILL/ROCK 800 000 B00 LABOR ADDITIVE 177.681 55970 55970 55970 NETER SERVICE 4500 4500 4500 PERSONAL EXPENSES 42600 42500 42500 SIG-JMY RED 31500 31600 Moo TRANSPORTATION CHARGES 4899 4699 - 4899 WE TRAFFIC CONIEDL 5990 ............... 5990 5990 ........ - TOTAL TRACK 6 SURFACE $8370 66765 .. ............. 155135 155115 ------- -------- LPBON/MAT7UfIAL EXPRESS 105394 143302-------- -------- RECOLLECTIRIS/UPRR EXPRNBR 248696 0 -----.- RUIPA77D PROTECT COST - 248696 RKISTING REUSMLE MATERIAL CREDIT 0 SALVAGE NUBUSERBLE MATERIAL CREDIT - G AECOLLECTIBIB LESS CREDITS ME ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO PLIXTDATION. IN TER EVENT OF AN INCREASE OR DECREASE IN TEE COST OR QUAETITY OF MATERIAL OR LABOR RBQGIRRD, DYKE WILL BILL FOR ACTUAL COUSTRUCTION COSTS AT TER CURRENT EFFECTIVE RATE. Exhibit C-1 Signal Material and Force Account Work Estimate To Public Road At -Grade Crossing Agreement �i ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD COMPANY FOR THE STATE OF TEXAS DESCRIPTION OF WORK: Perform flagging services for the City of Denton for the construction of a new public crossing in Denton, TX., at MP 723.02 - Choctaw Sub. File: Crossing: Public TX., Denton Vintage Pkwy MP 723.02 — Choctaw Sub DOT - 795327T City's job # 350104442 LOCATION:.FW SERVICE UNIT: 11 DESCRIPTION FLAGGING SERVICES FLAGGING (per day) Times 20 Days Engineering Review TOTAL PROJECT $700.00 STATE: Texas DATE: 01/17/06 $1,400.00 $5,000.00 $6,400.00 EXISTING REUSABLE MATERIAL - NONE SALVAGE NONUSABLE MATERIAL - NONE MATERIAL STATE TOTAL $6,400.00 TOTAL ESTIMATED COST OF PROJECT LESS CREDITS $6,400.00 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OF AMOUNT OF MATERIAL OR LABOR REQUIRED, THE STATE WILL BE BILLED FOR ACTUAL CONSTRUCTION COST AT THE CURRENT RATES EFFECTIVE THEREOF. Exhibit C-2 Flagging & Engineering Review Estimate of Material & Force Account Work To Public Road At -Grade Crossing Agreement To t March 10, 2006 Steve Martchenke Manager Industry & Public Projects Union Pacific Railroad Re: Choctaw Sub MP 723.02 DOT 795327T Private Crossing Clearing Dear Mr. Martchenke: After careful inspection of the above crossing this bid is for the amount of $8,211.00 (Eight Thousand Two Hundred Eleven Dollars) which will include the clear cutting of 500' NW quad, 300' SE SW and NE quads to the full extent of the right of way. All overhanging limbs will be cut to the edge of the right of way and all debris will be rough cut or chipped as needed and spread evenly. All tree removals will be cut to leave a stump no taller than 4 inches and all cut trees will be basal treated with an herbicide mixture to help prevent re -growth. When completed crossing will be left as close as possible to original grade — we will not be responsible for re -grading or producing a final grade appearance. Work will be preformed by our contracted crew from J. B. Bumgardner Enterprise, with all of their employees trained in the Union Pacific and DeAngelo Brothers, Inc. Roadway Worker Protection Safety Training. All safety gear and PPE will be utilized to maintain a safe work environment. The Union Pacific MTM or his designate will be contacted at the commencement of work and daily (or as needed) for job briefings. Crossing will be inspected for compliance standard by a DeAngelo Brothers, Inc. representative when work is completed. Please allow a minimum of two weeks lead time to mobilize crew before desired start date. Contact me for any further information or concerns. Invoice will be payable in net 30 (thirty) days. Sincerely; Jeff Braden Railroad Division Manager- Texas Office (281) 391-1885 Cell (281) 7720613 E-Mail: jbraden@dbiservices.com Exhibit C-3 Vegetation Clearing Estimate To Public Road At -Grade Crossing Agreement To UNION PACIFIC RAILROAD COMPANY Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 (402)544-8620 January 30, 2006 To the Contractor: Before Union Pacific Railroad Company can permit you to perform work on its property for the construction and maintenance of the new Vintage Parkway at -grade public road crossing, it will be necessary for you to sign and complete two originals of the enclosed Contractor's Right ofEntry Agreement as follows: 1. Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Right of Entry Agreement. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of Entry Agreement. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Execute and return all copies of the Contractor's Right of Entry Agreement together with your Certificate of Insurance as required in Exhibit B-1, in the attached, self-addressed envelope. 5. Check made payable to the Union Pacific Railroad Company in the amount of $500.00. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Services' new policy regarding their Form 1099, 1 certify that 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. After approval of the Contractor's Right of Entry Agreement and insurance certificate, one fully executed counterpart of the agreement will be returned to you. In no event should you begin work until you have received your counterpart of the fully executed agreement. Under Exhibit B-1 of the enclosed Contractor's Right of Entry Agreement, you are required to procure certain insurance and insurance endorsements including but not limited to, Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you through Marsh USA. If you decide that acquiring the RPLI coverage from Marsh USA is of benefit to you, please contact Mike McGrade @ 900-729-7001; fax: 816-5564362; or e-mail: michael.mcgrade@marsh.com. If you have any questions concerning this agreement, please contact me as noted below. Have a safe day! Paul G. Farrell Senior Manager Contracts Phone: (402) 544-8620 e-mail: pgfarrell@up.com Exhibit D Contractor's Right of Entry Agreement To Public Road At -Grade Crossing Agreement Contractors Right of Entry— (resas) 0126/06 Form Approved - AVP Law UPRR Folder No. 2357-20 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT (TEXAS) THIS AGREEMENT is made and entered into as of the day of 200_, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and a (State of Incorporation) RECITALS: (Name of Contractor) corporation ("Contractor"). Contractor has been hired by the City of Denton to perform work relating to the construction, maintenance and use of the new Vintage Parkway at -grade public road crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 723.02 on Railroad's Choctaw Subdivision, at or near DOT No. 795 327T, located at or near Denton, in Denton County, State of Texas, which work is the subject of a contract dated between Railroad and the City of Denton, as such location is also shown (Date ofC&MAgreement) on the print marked Exhibit D, attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement /CH:7 �1 flu NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1- DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE: Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing any work described in the Recitals above. The right herein granted to Contractor is Contractors Right of Entry— (Texas) Page 1 of 4 - January 30, 2006 Form Approved -AVP Law 01/26/06 - Convector's Right of Entry— (Texas) 0126106 _ UPRR Folder No. 2357-20 Form Approved -AVP Law limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS A, B AND C. The terms and conditions contained in Exhibit A, Exhibit Band Exhibit C, attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B: Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Don Traylor Manager Track Maintenance Union Pacific Railroad Company 101 South Watson Road Arlington, TX 76010 Phone: 817-878-4609 Fax: 817-640-8710 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit A. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's. work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration. in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until unless sooner terminated as herein (Date of Expiration) provided, or at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. Contractor's Right of Entry— (Texas) Page 2 of 4 _ January 30, 2006 Forth Approved - AVP Law 0126/06 Contractors Right of Entry — (Fuss) 0126/06 UPRR Folder No. 2357-20 Foron Approved -AVP Law ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with the insurance binders, policies, certificates and/or endorsements set forth in Exhibit B of this Agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 attn: UPRR Folder No.: 2357-20 ARTICLE 7 - DISMISSAL OF CONTRACTOR's EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad Five Hundred Dollars ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. ARTICLE 9 - CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. Contrac or's Right of Entry— (Fms) - Page 3 of 4 January 30, 2006 -`Forth Approved -AW raw 0126/06 - Connectors Right of Entry— (Texas) 0126106 Form Approved -AVP Law UPRR Folder No. 2357-20 IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) PAUL G. FARRELL Senior Manager Contracts Title: (Name of Contractor) Contractor's Right of Entry— (Texas) - Page 4 of 4 January 30, 2006 Foam Approved - AVP Law 0126/06 Texas CROE ExA Forrn Approved, AVP-Law Ot/26IO6 EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK- FLAGGING. . A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of. Railroad's track(s). at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10)-day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour.day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which '> Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need fora flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must thenbe given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wielines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Texas CROE ExA - - Page 1 of 4 - Exhibit A Form Approved, AVP-Law 01/26/06 - - . Terms & Conditions To Contractor's Right of Entry Agreement Texas CROE ExA Form Approved, AVP-1.aw 01/26/06 Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track; and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section S. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, CONTRACTOR SHALL INDEMNIFY, DEFEND. AND HOLD RAILROAD HARMLESS FROM AND AGAINST ALL COSTS, LIABILITY AND EXPENSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES) ARISING OUT OF ANY ACT OR OMISSION OF CONTRACTOR, ITS AGENTS AND/OR EMPLOYEES, THAT CAUSES OR CONTRIBUTES TO (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON RAILROAD'S PROPERTY, AND/OR (2) ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEHALF OF ANY TELECOMMUNICATIONS COMPANY, AND/OR ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, ON RAILROAD'S PROPERTY. CONTRACTOR SHALL NOT HAVE OR; SEEK RECOURSE AGAINST RAILROAD FOR ANY CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL DAMAGE TO A TELECOMMUNICATION COMPANY USING RAILROAD'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON RAILROAD'S PROPERTY. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety. of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit C, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit C to each of its employees before they enter the job site. Texas CROE ExA - Page 2 of 4 Exhibit A Form Approved, AVP-Law 0126/06 Terms & Conditions To Contractor's Right of Entry Agreement Texas CROE ExA Form Approved, AVP-law 0126/06 B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health. aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8. INDEMNITY. A. TO THE EXTENT NOT PROHIBITED BY APPLICABLE STATUTE, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS AND EMPLOYEES ("INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS, CONSULTANTS AND EXPERTS FEES, AND COURT COSTS), FINE OR PENALTY (COLLECTIVELY, "LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY, CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT OF OR IN ANY MANNER CONNECTED WITH (1) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES, OR (111) ANY BREACH OF. THIS AGREEMENT BY CONTRACTOR. B. THE RIGHT TO INDEMNITY UNDER THIS SECTIONS SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABLISHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C. CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER: WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO. D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANTTO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST RAILROAD. E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall:remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Texas CROE ExA Page 3 of 4 - - Exhibit A Form Approved, AVP-Law 0126/06 - - - Terms & Conditions To Contractors Right of Entry Agreement Texas CROE ExA Form Approved, AVP-Law 01/26/06 Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section12. ASSIGNMENT -SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. Texas CROE ExA Page 4 Of 4 - - - Exhibit A Form Approved, AVP-Law 01/26M _ Terms& Conditions To Contractor's Right of Entry Agreement Texas CROE ExB Form Approved, AVP-Law 0126/06 EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. B. Business Automobile Coverage ifturance. Business auto coverage written on ISO form.CA 00 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: • Coverage For Certain Operations In Connection With Railroads ISO form CA 20 7010 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. • Motor Carrier Act Endorsement - Hazardous materials clean up (MCS-90) if required by law. C. Workers' Compensation and Employers' Liability insurance. Coverage must include but not be -limited to: • Contractor's statutory liability under the workers' compensation laws of the State of Texas. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self -insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be.submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability insurance. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials Texas CROE Ex8 --- - - - Page 1 of 2 Exhibit B - FomApproved, AVP-Law 0126/06 - Insurance Provisions To Contractors Right of Entry Agreement Texas CROE ExB Forrn Approved, AVP-Law 01/26/06 from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. Other Requirements G. All policy(ies) required above (except workers compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48.(or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Bests Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the State of Texas. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability Under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. Texas CROE ExB - - Page 2 of 2 _ Exhibit B Form Approved, AVP-Law OM6106 Insurance Provisions To Contractors Right of Entry Agreement Texas CROE ExC Form Approved, AVP4-aw 0126/06 EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety - toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. It. Personal. Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractors company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: • 100 feet of a locomotive or roadway/work equipment • 15 feet of power operated tools • 150 feet of jet blowers or pile drivers • 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: Texas CROE ExC - _. Page 1 of 2 Exhibit C Form Approved, AVP1aw 0126/06 - - Minimum Safety Requirements To Contractors Right of Entry Agreement Texas CROE ExC Form Approved, AVP-Law 0126/06 (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • Familiar and comply with Railroad's rules on Iockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first -aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job.If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. . (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. Texas CROE ExC -- .Page 2 of 2 - - Exhibit C Form Approved, AVP-Law 0126/06 Minimum Safety Requirements To Contractors Right of Entry Agreement LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT f t COUNTR RD e t - hgoe 377 f Fr as 723.02 - Chactaw Subdivision m�MP _ Vintage Parkway- DOT #795327T COUNTR i - y New At -Grade Public Road Crossing �`SP.BI RE KOR Construction Project i �-- j� 3 SANDERS RD -. _.., - ..�---......... Ch #ctaw:SubdlAAslon RYAN R"D i S' Z •f ALmEDRDMWE DR 1 j,,�uQypoD GT Date use whim to Catse. � - o t000 moo 02004 Dela . Street ASea USA®2DDS. (1.8' D - Date Zoom 13-0 www.eebrme.wa RAILROAD WORK TO BE PERFORMED: EXHIBIT "D" UNION PACIFIC RAILROAD COMPANY 1. Flagging. 2. The Contractor is responsible for ensuring that the new public CHOCTAW SUBDIVISION road crossing construction project doesn't adversely impact MILE POST 723.02 Railroad operations. GPS: N 33°, 09.8330'; W 97e, 09.4602'. DENTON, DENTON CO., TX. To accompany Contractor's Right of Entry Agreement with (Name of Contractor) for the construction, maintenance and use of the new Vintage Parkway at -grade public road crossing. Folder No. 2357-20 Date: January 30, 2006 WARNING IN ALL OCCASIONS, U.P. CONM CATIONS DEPARTMENT MUST BE CONTACTED M ADVANCE OF ANY WORK TO DETERN EXISTENCE AND LOCATION OF MER OPTIC CABLE. PHONE: 1{800) 336-9193 - Exhibit D Railroad Location Print To Contractors Right of Entry Agreement 11 AREMA UNIT STATEMENTOF RAILROAD HIGHWAY GRADE CROSSING SIGNALS ESTIMATED MAINTENANCE COSTS FOR W054813 l�j jj J�j) BY THE UNION PACIFIC RAILROAD STREET VINTAGE PARKWAY TOWN DENTON, TX MILEPOST 723.02 SUBDIVISION CHOCTAI AAR/DOT.NO. 795 327T WORK ORDER# W13 DESCRIPTION UNIT VALUE QUANTITY UNITS NON -CODED TRK. CIRCUIT, (6anddeoc WrAC w nM 10) 1 0 0 SUPERIMPOSED CIRCUff(A"AC) / DETECTION LOOP 2 0 0 HIGHWAY GRADE CROSSING SIGNAL 2 2 4 (ONE PAIR OF FLASHING LIGHTS) ADDITIONAL PAIR OF LIGHTS 1 2 2 GATE MECHANISM, AUTOMATIC 8 2 16 WITH ARM UP TO 26 FT GATE MECHANISM, AUTOMATIC 9 0 0 WITH ARM OVER 26 FT GCP/HXP (Comber wentry deelee) 10 1 10 EXIT GATE MANAGEMENT SYSTEM RACK* 10 0 0 MOVEMENT DETECTOR (PMD) 6 0 0 MOVEMENT DETECTOR (STANDBY UNIT) 2 - 0 0 - RADIO DATA LINK; PER UNIT 1 0 0 PREEMPTION CIRCUIT 2 0 0 DATA RECORDER 1 1 1 REMOTE MONITORING DEVICE* 2 0 0 BONDED RAIL JOINTS tw •n• na myu ewaeel 1 0 0 BATTERY ANDCHARCER(Perm) 2. 2 4 TOTAL UNIT COUNT 37 PAVEMENT RESTORATION COSTS (ACC) Anneal Matntenance Coo at 3141;lUolt $5,365 -UP supplied Unit Value October 11. 2005 Exhibit E AREMA Unit Statement of Estimate of Maintenance Costs To Public Road At -Grade Crossing Agreement To nent Exhibit F DENTON COUNTY COMNIISSIO.NERS COURT October 18, 2005 Month Day Year Court Order Number: OS-0-7 S THE ORDER: Approve the closure of Collins Road form 50 feet South of the Rail Road Crossing to North of the Railroad Crossing at the intersection of Collins and ff Mingo Road. Motion by (A) � /Seconded by County Judy e Yes ✓ Mary Ham- Abstain_ No _ Absent _ Commissioner Pet No 7 Yes ✓ .� Commissioner Pet No 2 'Yea Cynthia White Abstain Sandy Jacobs Abstain. No _ Absent Commissioner Pet No 3 Y. ✓ Bobble J. Mitchell Abstain _ No _ Absent lio Absent _ Commissioner Pet No 4 yes Jim Carter Abstain _ No _ Absent Motion Carried 15-0-0 Other Action: Pulled from Consent _ No Action _ Postponed _ BYO ER F THE COM ESSIONERS COURT: ATTEST: Cynthia Mitchell, County Clerk residing Officer and Ex-0ttido Clerk of the Commissioners Court of A R AS TOF \\\\\\,%%tCVffir, j� S QRT �4 Denton County, Texas + C Assistant ss rlet Attorney' _ y :` = Deputy Deputy County -Clem ?Qa Exhibit F SAOur Documents\0rdinances\06Wintage Parkway RR Crossing Agreement.doc ORDINANCE NO. ZM --� AN ORDINANCE APPROVING A PUBLIC AT -GRADE RAILROAD CROSSING AGREEMENT BETWEEN THE CITY OF DENTON AND UNION PACIFIC RAILROAD COMPANY COVERING THE CONSTRUCTION, MAINTENANCE, AND USE OF NEW VINTAGE PARKWAY AT -GRADE PUBLIC ROAD CROSSING AT RAILROAD MILE POST 723.02-CHOCTAW SUBDIVISION; PROVIDING FOR THE PERMANENT CLOSURE OF CERTAIN RAILROAD CROSSINGS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council has been presented with a railroad crossing agreement between the City of Denton and Union Pacific Railroad Company (the "Railroad"), a copy of which is attached hereto and made a part hereof as Exhibit A (the "Agreement'); and WHEREAS, the City Council hereby finds that the Agreement is in the public interest; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are true and correct and are incorporated herein by reference. SECTION 2. The Agreement is hereby approved. The City Manager or his, designee is hereby authorized to execute the Agreement on behalf of the City and to exercise the rights and duties of the City under the Agreement, including without limitation, the expenditure of funds provided for in the Agreement. SECTION 3. The City Council hereby makes the following findings: a. The Denton County Commissioners Court has passed Court Order No. 05-0765 permanently closing the existing at -grade public street crossing at Collins Street located at Railroad Mile Post 714.49, DOT No. 795 305T (the "Collins Crossing"). b. All rights to the private road crossing located at Railroad Mile Post 723.02 (the "Private Crossing") were transferred to the City pursuant to that certain Street Right - of -Way Deed for Vintage Parkway dated May 272003 and recorded in Vol. 5359, Pages 05326 through 05332 of the Land Records of Denton County, Texas (the "Street Deed"). Such private road area is located completely within the Vintage Parkway right-of-way described in the Street Deed. The City Manager, or his designee is authorized to take all actions and execute all documents on behalf of the City necessary to provide the Railroad with evidence that the Collins Crossing and the Private Crossing are permanently closed upon completion of the Project as provided in the Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the ��p� day of / .2006. ATTEST: JENNIFER WALTERS, CITY SECRETARY : APPROVED AS `TO LEGAL FORM: EDWIN M. SI 2, CVY ATTORNEY MM Page 2 EULINE BROCK, MAYOR