2006-145
S:\Our Documents\Ordinances\06\Vintage Parkway RR Crossing A-greernellI.doc
ORDINANCE NO. 2tJ06 - /4~
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-CHOCT A W 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 I. 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 (0 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 / {, td day of Y1 ti.r
Cukw~JL
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By~~;i~ \ J~J .X9AA--
APPRO D AS 0 LEGAL FORM:
EDWIN M. S ,C Y ATTORNEY
BY:
,2006.
EULINE BROCK, MAYOR
Page 2
. I.; _,'
UPRR Folder No.: 2357-20
PUBLIC ROAD AT-GRADE
CROSSING AGREEMENT
, BETWEEN
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DENTON,
DENTON COUNTY,
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Political Body Original
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UPRR Folder No.: 2357-20
24G631
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
TIllS AGREEMENT is made and entered into as of the J6t1tdaY of '~ .200kz,
by and between UNION PACIFIC RAILROAD COMPANY, a Delawar 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-I, 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 I - ,EXHIBITS B AND 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
Form Approved, A VP-Law - 3/10/05
Articles of Agreement
Page 1 of6
January 30, 2006
m BUI"DING AMERICA"
UPRR Folder No.: 2357-20
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 orreconstruct, 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. Ifthe 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-l, 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. A11insurance 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
Form Approved, A Vp.Law - 31l 0105
Articles of Agreement
Page 2 of6 .
January 30, 2006.
m BUI"DING AMERICA"
UPRR Folder No.: 2357-20
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 646.21 O(b )(2), the Project is of no
ascertainable benefit to the Railroad and the Railroad shall not be obligated to payor 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-I, 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 ofthe
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
Fonn Approved, A Vp.Law - 3/10/05
Articles of Agreement
Page3 of 6
January 30, 2006
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UPRR Folder No.: 2357-20
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%) 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 thaI are approved in writing by the
Railroad's Assistant Vice President Engineering-Design, or his authorized representative, are
hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by
reference.
C. No changes in the Plans shall be made unless the Railroad has consented to such changes in
writing.
D. 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. Ifthe 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 ofterrnination, including, without limitation, all actual costs incurred by the Railroad in
connection with reviewing any preliminary or final Project Plans.
Public Road At-Grarle Crossing Agreement
Form Approved. A VP-Law - 3/1 OAJ5
Articles of Agreement
Page 4 of6
January 30, 2006 .
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UPRR Folder No.: 2357-20
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
ofb'illing.
B. The above annual fee is based upon the numberof 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
mearis 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 ofthe Project.
Public Road At-Grade Crossing Agreement
Form Approved. A VP-Law - 3/10105
Articles of Agreement
Page 5 of6
January 30, 2006
"
'_ BUILDING AMERICA-
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.
By
WITNESS:
(Seal)
"o.l. , CITY OF DENT~ON
By '11rJLUOAA}V~--tt:
Title Tl1trf/m &1 /JItlf1llJff
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Pursuant to RosallltienlOraer No. .2 OO{) - /t/.b-
dated: may I {7 . 200 ~
hereto attached,
APPROVED AS TO FORM:
CITY ATIORNEY EXAS
CITY OF D ON
BY:
Public Road At-Grade Crossing Agreement
Fonn Approved, A VP-Law - 3/1 0105
Articles of Agreement
Page 6 of6
January 30, 2006
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EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY
CHOCTAW SUBDIVISION
MILE POST 723.02
GPS: N 33" 09.8330', W 97" 09.4602'
near DENTON, DENTON CO., TX.
RAILROAD WORK TO BE PERFORMED:
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
IN ALL OCCASIONS, V.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE
OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE.
PHONK 1-(800) 336.9193
Exhibit A
Railroad Location Print
To Public Road At-Grade Crossing Agreement
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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 replace 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 furnish 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 furnish all necessary labor,
material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall
include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right
of way) and all necessary drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad
tracks. Upon completion of the Project, the 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 rnanner 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 Road At-Grade Crossing Agreement ExB
Standard Form Approved, ~vp.Law - 311 0105
Terms of Agreement
Page 1 of4
Exhibit B
To Public Road At-Grade Crossing Agreement
~. BUILDING AMERICA-
Public Ro.ad At-Grade Crossing Agreement ExB
Standard Form Approved. A VP-Law - 3/10105
. 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 - Desi.gn. . .
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 direcUy 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 idler 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 Cros~ing 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 traclks 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 traclkage.
SECTION 7.
REARRANGEMENT OF WARNING DEVICES
If the change or rearrangement of any waming 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 ExB Tenns of Agreement Exhibit B
Standard FonnApproved,AVP-law-3110105. Page 2 of 4 To Public Road At-Grade Crossing Agreement
~ . BUILDING AMERICA-
Public Road At-Grade Crossing Agreement ExB
Standard Fonn Approved, A VP-Law - 3/10/05
b) Comollance 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 concems 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 perfonmed 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 Delavs. The Political Body shall not do, suffer or penmit 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) Suoervision. The Political Body, at its own expense, shall adequately police and supervise all work to be perfonmed 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 perfonmance 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) Susoension 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 penmit 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 penmit any snow to be plowed or cast upon the Railroad's property during snow removal .
from the Crossing Area. .
g) Exoloslves. 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 Hailroad's property that the discharge of explosives could cause injury to theRailroad'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 perfonmed by the Political Body in connection with construction, maintenance or other
work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's
Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting
from vibrations caused by the Railroad's operations in the vicinity.
i) Drainaae. The Political Body, at the Political Body's own expense, shali provide and maintain suitable facilities for draining the
Structure and its appurtenances, and shall not suffer or penmit drainage water therefrom to flow or collect upon property of the
Railroad. The Political Body, at the Political Body's own expense, shall provide adequate passageway for the waters of any streams,
bodies of water and drainage facilities (either natural or artificial, and including water'from the Railroad's culvert and drainage
facilities), so that said waters may not, because of any facilities or work of the 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 Crossing Agreement ExB
Standard Fonn Approved. AVP-Law - 3110105
Tenns of Agreement
Page 3 of 4
. Exhibit B
To Public Road At-Grade Crossing Agreement
~ BUILDING AMERICA-
Public Road At-Grade Crossing Agreement ExB
Standard Fonn Approved, A VP-Law - 3/10105
j) ~. 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 Ootlc 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 -<Jay 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
waming 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 FORBREACH OR NONUSE
a) If the Political Body shall fail,.refuseor 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 a.risen 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 wa.iver 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
Standard Fonn Approved, AVP-law - 3/10105
Terms of Agreement
Page40f4 .
Exhibit B
To Public Road At-Grade Crossing Agreement
m BUILDING AMERlCA-
Public Road At-Grade Crossing Agreement ExB-1
Standard Form Approved, A VP-Law - 3110105
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 contractualliabilily 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
..
The policy shall also contain the following endorsements which shall be Indicated on thB 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 andlor 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 (CGOD-39) endorsement. Evidence of the endorsement must also be indicated
on the certificate of insurance that is provided to the Railroad.
B. Business Automobile Coveraae 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 Emplovers 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-1
Standard Form Approved, A VP-Law - 3110105
Tenns of Agreement
Page 1 of2
Exhibit B-1
To Public Road At-Grade Crosslng Agreement
_ BUILDING AMERICA"
Public Road At-Grade Crossing Agreement Ex8-1
Standard Form Approved, AVP-Law - 3/10105
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:
. Altemate 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 L1abllitv 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 Reaulrements
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 Contractor's 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. Severabilily of Interest and naming Railroad as additional Insured shall be Indicated on the certificate of
Insurance.
I. Prior to commencing any work, Contractor shau.tumish to Railroad original certificate(s) of insurance evidencing the required
coverage, endorsements, and amendments. The certificate(s) 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 requi.red 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 Contractor's insurance agent(s)/broker(s), who
have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that
Contracto~s 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 Ex&1
Standard Fonn Approved, AVP-Law - 3/10105
Terms of Agreement
Page 2 of2
Exhibit B-1.
To Public Road 'At-Grade Crossing Agreement
MAR-2'3-21'l1'l5 14: 3l'l
UPRR PUBlIC PROJECTS
817 533 8415 P.l'll/l'll
-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 OE' TRACK.
PID: 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 1000 _ 1000 1000
LABOR ADDITIVE 235% 2350 2350
2350
------- -------- -------- -------- --------
TOTAL ENGINEERING 3350 3350 3350
SIGNAL WORK
LABOR ADDITIVE 235% 2085 2085 2085
SALES TAX 2 2 2
SIGNAL 887 51 938 938
------- -------- -------- -------- --------
TOTAL SIGNAL 2972 53 3025 3025
TRACK & SURFACE WORK
BALAST 1. 00 CL 723 596 1319 1319
CONTRACTOR/OPERATOR 4-000 4000 4000
FOREIGN LINE FREIGHT 171 171 171
HOMELINE FREIGHT 900 900 900
LABOR ADDITIVE 235~ 16196 16196 16196
MATL STORE EXPENSE 101 101 101
OTM 563 423 986 986
RDXING 56.00 TF 3330 8553- 11883 11883
SALES TAX 519 519 519
TRK-SURF,LIN 2355 2355 2355
XTIE 45.00 EA 4788 3473 8261 8261
------- --_.----- -------- -------- --------
TOTAL TRACK & SURFACE 27955 IB736 46691 46691
-------" --------
LABOR/MATERIAL- EXPENSE 34277
RECOLLECTIBLE/UPRR EXPENSE
ESTIMATED PROJECT COST
EXISTING REUSEABLE MATERIAL CREDIT
SALVAGE NONUSEABLE MATERIAL CREDIT
18789 -------- --------
53066
o
o
RECOLLECTIBLE LESS CREDITS
TOTAL P .Iflxhibit C
Surface EsUmate of Material & Force Account Work
To Public Road At-Grade Crossing
Agreement
HSTIMATif QP ~T8R.~AL Nm PORCH ACCOUNT WORI(
BY 'I'IIll
UNICW PACIPIC RAILROAD
OlTB:2006-03-21
llESCIlIPTIOlI OF IIORJ{,
IIlSTALL RIlMO'fIlIMP7l3.~6), Lllll PL SIGNALS l/fJATB!I AIIll CIlT IN mnr CAIlIN
AT VItmGB PAlWlAY IN DBR"roB, n. M.P. 723.02 OK'lHB CHOCTAJI SOB.
SIGNAL PROJBCl' IWfAOIRI RON CLARkSON 867.7261
RAILROAD TO PIlRPOIlM ALL lOil { COST DISTRlal1TBD AS POWlIS,
SIOII>lo . CITY OP _ lOot P"PAY
'10, 53n. IJIO, S4813
SUVICB UNITl 11 CITY' I DBN'l't1I
MP,SUBDIVI 723.02. CHOCTAJf
EiTAT'B1 TX
~CRlvrIOIrJ <m UNIT. loNlOR MA11lRIAL "roLl. D'AA TOTllI.
-------.--- ..... --.._---
1IIIll11illill1llC IlORK
. EllGIIlaRIIIG 1916 1916 1916
LAIlOR AIlD1T1VIl177.61l 10893 10813 10893
SIG-1lIfY XllG ,lIS '115 <215
....... ....--.- ------.. ........
'rorAL BIlGIIiIlillIllG 1701. 1702, 1702.
SIGHAIo IIGRK
SIGlIAI. 76531 76~37 ,.S537
......-. -------- -.P..... ........
T01'AL SIGDL 76537 16537 76S]7
TAACK . SIlRP>oCB IIGRK
alLl. FIlS. lOa 100 100
COlI'l'IlACI'. 8076 80'" S076
KA.RIH FILL/aocr.. 800 800 800
LAlOR ADDmVB 177.68' ~~370 ~5370 55110
IIBTIlR SBRVIC8 .500 ,~oo 4500
I'USOlIAloIlXP8llllES .1500 42500 42500
BIO-IIIIY XIIll 31~00 31500 11500
TRABSPORTA:rICII 0IARll8S '8"" 'UJ 4al!
ItZ TRAJI'IC cnmm. 5990 50.. 5l!0
....... ._._--~- -------- ........ ........
TOTAL TRACJ: , SURFACE 88370 6<7B5 155135 15513s
LA8OR/"ATEIUAL IlXPEHSB 10Sl!!
RSCOLLllCfWB{UPAA IlXPIlIISi
BSTINATBD PROJECT COST
BXISTIWG RBOSBABLB MATBRIAL tDDIT
SALVAGB BOllDSBABLB M1.TBRIAL CUDIT
143302 ........ .....---
248fi!J1i o..u.......
248&96
o
o
RBtOLL8CfIBUl LBSS CRiIlI'lS
TBB AIlOVIl PIOOIlIIS ARIl IlSTOOTBS OIILY AHD SUIl.JECT TO FUX.'nJATlOlI. IN 'l'IIB BV1llIT OF
... IIICllWS OR DSCRllASs IN TIIS COST OR Q1IAII'l'I'I'Y OF MATltlA!. OR LABOR RBQOIiIlD,
UPAA WILL BILL PORACI'U1Ilo COOS1'RUCTION COS'lS AT TBB CIlRRKIi'I' SPPSCTIVll RATI.
Exhibit C-1
Signal Material and Force Account Work Estimate
To Public Road At-Grade Crossing Agreement
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
EXISTING REUSABLE MATERIAL - NONE
SALVAGE NONUSABLE MATERIAL - NONE
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
reement
//-
March 10, 2006
Steve Martchenke
Manager Industry & Public Projects
Union Pacific Railroad
Re: Choctaw Sub
MP 723.02
. DOT 795327T
Private Crossmg Clearmg
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 fmal 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
briefmgs. 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
It
UNION PACIFIC RAILROAD COMPANY
Real Estate Department
1400 Douglas Street, MS 1690
Chnaha,~ 68179-1690
(402) 544-8620
January 30, 2006
To the Contractor:
Before Union Pacific Railroad Company can permit you to perform workon its property for the construction.
arid 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 Rif!ht of Entrv Af!7eement as follows:
I. Fill in the comulete legal name of the contractor in the space provided on Page I 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, I certify that 94-6001323 is the Railroad Company's correct Federal
Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation.
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: 816-556-4362; or e-mail: michae1.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 0
Contracto(s Right of Entry Agreement
To Public Road At-Grade Crossing Agreement
Conlr1lctor's Right of Entry- (Texas) 01/26/06
Fonn Approved - A VP Law
UPRR Folder No. 2357-20
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
(TEXAS)
TillS AGREEMENT is made and entered into as of the day of
200_, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation
("Railroad"); and
(Name of Contractor)
corporation ("Contractor").
a
(State of Incorporation)
RECITALS:
Contractor has been hired by the City of Denton to perform work relating to the coristruction,
maintenance and use of the new Vintage Parkway at-grade public road crossing (the "work"), with
ail 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 ofa contract dated
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.
AGREEMENT:
NOW, THEREFORE, it is mutuailyagreed by and between Railroad and Contractor, as
follows: .
ARTICLE 1 -DEFINITION OF CONTRACTOR.
For purposes of this Agreement, ail 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 ail 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
Conlr1lcto(s Right of Entry - (Te..s)
Form Approved - A VP Law 01126/06
Page 1 of4
January 30, 2006
eonlr1lcto(s Right of Entry- (Texas) 01/26/06
Form Approved. A VP Law
UPRR Folder No. 2357-20
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. BAND C.
The terms and conditions contained in Exhibit A, Exhibit Band ExhibitC, attached hereto,
are hereby made a part of this Agreement.
ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR: RAILROAD
. REPRESENT A TIVE.
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.
. .
R 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.
R This Agreement may be terminated by either party on ten (10) days written notice to
the other party.
Conlr1lcto(s Right of Entry- (Texas)
Form Approved - A VP Law 01/26/06
Page 2 of4
January 30, 2006
Contracto~s RighI of EnlIy - (Texas) 01/26106
Form Approved - A VP Law
UPRR Folder No. 2357-20
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.
R
be sent to:
All insurance correspondence, binders, policies, certificates and/or endorsements shall
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 removefrom Railroad's property any employee
of Contractor who fails to conform to the inst:nictions of the Railroad Representative in connection
with the work on Railroad's property, and any right of Contractor shall be suspended until such
removal has occurred. Contractor shall indemnify Railroad against any claims arising from the
removal of any such employee from Railroad's property;
ARTICLE 8 - ADMINISTRATIVE FEE.
Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad Five
Hundred Dollars ($500.00) as reimbursement for clerical, administrative and handling expenses in
connection with the processing of this Agreement.
ARTICLE 9 - CROSSINGS.
No additional vehicular crossings (including temporary haul roads) or pedestrian crossings
over Railroad's trackage shall be installed or used by Contractor without the prior written permission
of Railroad.
ARTICLE 10 - EXPLOSIVES..
Explosives or other highly flammable substances shall notbe stored on Railroad's property
without the prior written approval of Railroad.
Contractor's RighlofEnIIy-(Texas)
.. 'FormAppn:iVcd-AVP law 01/26106
Page 3 of4
January 30, 2006
Contnlcto~S Right of Entry- (Texas) 01/26106
Form Approved 6 A VP 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)
By
PAUL G. FARRELL
Senior Manager Contracts
Contractor's Right of Entry- (Tass)
Form Approved - A VP Law 01/26106
By
(Name of Contractor)
Title:
Page 4 of4
January 30, 2006
Texas CROE ExA
Form Approved, A VP-Law 01/26/06
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), orthing(s) shall be located, operated, placed,
or stored within twenty-five (25) feet of any of Railroad's track(s), at any time, for any reason, unless and until a Railroad flagman
is provided to watch for trains. Upon receipt of such ten (10)-day notice, the Railroad Representative will determine and inform
Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety
measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such
expenses incurred by Railroad, unless Railroad and a federal, state or local govemmental entity have agreed that Railroad is'to bill
such expenses to the federal, state or local govemmentaientity. If Railroad will be sending the bills to Contractor, Contractorshall
pay such bills within thirty (30) days of Contrador'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 charg'e 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 win be the prevailing
composite charge in effect at the till]e the worK is performed. One and one-half times the current hourly rate is paid for o~ertime,
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 govemmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges
are changed, Contractor (or the govemmental 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 fumished,
unless the flagman can be assigned to other Railroad worK during a portion of such day,in which event reimbursement will not be
required for the portion of the day during which the flagman is engaged in other Railroad worK. Reimbursement will also be required
for any day not actually worKed by the flagman following the flagman's assignment to worK on the project for which Railroad 'is
required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other worK
, even though Contractor may not be worKing during such time. When it becomes necessary for Railroad to bulletin and assign an
employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a
minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given,
Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given
to the employee, even though flagging is not required for that period. An additional ten (10) days notice 'must then be given to
Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad.
Section 2.
LIMITATION AND SUBORDINATION OF RIGHTS GRANTED
A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the
Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair,renew, use,
operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and
other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by
Railroad without liability to Contractor or to any other party for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and
lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant
of title or for quiet enjoyment.
Texas CROE ExA
Form Approved, AVP-Law 01/26106
Page 1 of 4
Exhibit A
Terms & Conditions
To Contractor's Right of Entry Agreement
Texas CROE ExA
Form Approved, A VP-Law 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 shan 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 iiability 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 shan pay in full all persons ,who perform labor or provide materials for the worK to be performed by Contractor.
Contractor shall notcreate, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced
, against any property of Railroad for any such worK performed. Contractor shall indemnify and hold harmless Railroad from and
against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of
such worK done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record,
Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense.
Section 5. "
PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A. Fiber optic cable systems maybe 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 shan telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday,
except holid'ays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determlne if fiber optic cable is buried
anywhere'on Railrmid'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 RAILROAp 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 fumish copies of Exhibit C to each of its employees before they enter the job site,
Texas CROE ExA Page 2 of 4
Form Approved, AVP..t.aw 01/26106
Exhibit A
Terms & Conditions
To Contractor's Ri9ht of Entry A9reement
Texas CROE ExA
Form Approved, A VP-Law 01126106
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 underthe 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, WITHOOT LIMITATION, ATTORNEY'S, 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 (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II)
ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES, OR (III) ANY BREACH OF THIS
AGREEMENT BY CONTRACTOR.
. B.. THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT
GIVING RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY
INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED
PARTY AS ESTABLISHED .BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURiSDICTION. THE SOLE ACTIVE.
NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY.
C: CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION
8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY
IT MAY HAVE UNDERWORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER
THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVERWAS MUTUALLY NEGOTIATED BY THE PARTIES
HERETO.
D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT. TO ANY WORKER'S
COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE
RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST RAILROAD.
E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED
BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO EVENT SHALL THIS SECTION
8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO
ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW.
Section 9.
RESTORATION OF PROPERTY.
In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the
other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon
as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in
before such fence was taken down or such other property was moved or disturbed. Contractor shalloremove all of Contractor's tools, .
equipment, rubbish ancl'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 .
Form Approved, AVP-LawOI126Jos
Page 3 of4
Exhibit A
Terms & Conditions
To Contractor's Right of Entry Agreement
Texas CROE ExA
Form Approved, A VP-law 01126/06
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.
Section 12.
ASSIGNMENT - SUBCONTRACTING.
Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the
Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, 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.'Rallroad to the same extent as Railroad is indemnified by Contractor under this Agreement.
Texas CROE ExA
Form Approved, AVP-Law 01/26106,
Page 4 of 4
Exhibit A
Terms & Conditions
To Contractor's Right of Entry Agreement
Texas CROE ExB
Form Approved, AVP-Law 01/26106
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 Liabilitv 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 1204 (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 171001 (or a substitute form providing equivalent coverage)
showing "Union Pacific Railroad Company Property" as the Designated Job Site.
B. Business AutomobileCoveraCle ir1!;urance. 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 CA20 70 1001 (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 Emplovers' Liabilitv 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:
.Altemate 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 Liabilitv insurance. Contractor must maintain Railroad Protective Liability insurance written on
ISO occurrence form CG QO 3512 04 (or a substitute form providing equivalent coverage) on .behalf of Railroad as
named insured, with a limit of notless 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 Liabilitv insurance. Pollution liability coverage must be written on ISO form Pollution liability Coverage
Form Designated Sites CG 00 391204 (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 ExB Page 1 of 2 Exhibit B
Form Approved, AVP-Law 01/26106 Insurance Provisions
To Contractor's Right of Entry Agreement
Texas CROE ExB
Form Approved, A VP-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 worker's compensation and employers liability) must include Railroad as
"Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms
providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided
under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence
whether sole or partial. active or passive. and shall not be limited by Contractor's liability under the indemnity provisions
of this Agreement.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless
_ the law governing this Agreement prohibits all punitive damages that might arise under this Agreement.
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 wtth a current Besrs
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
FonnApproved,AVP~.w 01/26/06
- Page 20f 2
Exhibit B
Insurance Provisions
To Contractor's Right of Entry Agreement
Texas CROE ExC
Form Approved, AVP-Law 01/26/06
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.
I. Clothing
A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere
with their vision, hearing, or free use of their hands or feet.
Specifically, Contractor's employees must wear:
(i) Waist-length shirts with sleeves.
(iI) Trouserslhat cover the entire leg. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent
catching." " "
(iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety-
toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements.
B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin
soles or heels that are higher than normal.
C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or
working on machinery.
II. Personal Protective Equipment
Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules,
regulations, or recommended or requested by the Railroad"Representative.
(i) Hard hat that meets the American National Standard (ANSI) Z89.1 - latest revision. Hard hats should be
affixed with Contractor's company logo or name.
(iI) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face
protection, Z87.1 - latest revision. Additional eye protection must be provided to meet specific job situations
" such as welding, grinding, etc.
(iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring
" on the job site. Hearing protection, in the form of plugs or muffs, must be wom when employees are within:
. 100 feet of a locomotive or roadwaylwork 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 equipmemt, 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
Form Approved, AVP-Law 01/26106
Page 1 of2
Exhibit C
Minimum Safety Requirements
To Contractor's Right of Entry Agreement
Texas CROE ExC
FormApproved,AVP~w 01/26/06
(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 mayor 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 lockoutltagout of equipment.
. Trained in and comply with the applicable operating rules if operating any hy-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 waming 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 concems
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, o(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
Form Approved, AVP-law 01/26106
Page 2 of 2
Exhibit C
Minimum Safety Requirements
To Contractor's Right of Entry Agreement
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LOCATION PRINT ACCOMPANYING A
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
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~I MP 723.02 - Chactaw Subdivision
g Vintage Pal1<way - DOT #795327T
o New AI-Grade Public Road Crossing
Construction ProJect'
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2. The Contractor is responsible for ensuring that the new public
road crossing construction project doesn't adversely impact
Railroad operations. .
EXHIBIT "D"
UNION PACIFIC RAILROAD COMPANY
CHOCTAW SUBDIVISION
MILE POST 723.02
GPS: N 330, 09.8330'; W 970, 09.4602'
DENTON, DENTON CO., TX.
To accompany Contractor's Right of Entry Agreement with
RAILROAD WORK TO BE PERFORMED:
(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. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE
OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE
PHONE: 1-(800) ))6-9193
Exhibit 0
Railroad Location Print
To Contractor's Right 01 Entl)' Agreement
AREMA UNIT 8T ATEMENT OF RAILROAD HIGHW A Y GRADI!: CROSSING SIGNALS
ESTIMATED MAINTENANCE COSTS
8
FOil
W054813
BY THE UNION PACIFIC RAILROAD
STREET
TOWN
MILEPOST
SUBDIVISION
AARIDOTNO.
WORK ORDER#
DESCRIPTION
VINTAGE PARKWAY
DENTON, TX
723.02
CHOCTA'
795327T
54813
UNIT V ALlIE QUANTITY
UNITS
NON-CODED TRK. CIRCUIT, es.........A>TAC..._'.) 1 0
SUPERIMPOSED CIRCUIT(A>TAC) I DETECTION WOP 2 0
HIGHWAY GRADE CROSSING SIGNAL 2 2
(ONE PAIR OF FLASHING LIGHTS)
ADDITIONAL PAIR OF LIGHTS I 2
GATE MECHANISM, AUTOMATIC 8 2
WITH ARM UP TO 26 FT
GATE MECHANISM, AUTOMATIC 9 0
WITH ARM OVER 26 FT
GCPIHXr (eo...._'_,.I........) 10 I
EXIT GATE MANAGEMENT SYSTEM RACK" 10 0
MOVEMENT DETECTOR (PMD) 6 0
MOVEMENT DETECTOR (STANDBY UNIT) 2 0
RADIO DATA LINK, PER UNIT 1 0
PREEMPTION CIRCUIT 2 0
DATA RECORDER 1 1
REMOTE MONITORING DEVICE" 2 0
BONDED RAIL JOINTS ~__.."..."......, 1 0
BATTERY AND CHARCER,..",Ol 2. 2
.0
o
4
2
16
o
10
o
o
o
o
o
1
o
o
4
TOTAL UNIT COUNT
37
PAVEMENT RESTORATION COSTS
(Actual)
ADnual MalntcrulRee Colt at $14SlVnlt
55,365
.UP suppUed Unit V.hu:
Oc:tal;Nr 11i 2005
Exhibit E
AREMA Unit Statement of Estimate of Maintenance Costs
To Public Road At-Grade Crossing Agreement
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To
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reement
Exhibit F
DENTON COUNTY
COMMISSIONERS COURT
....:.....
October
Month
1J.;5
THE ORDER:
Approve the closure of Collius Road form SO feet South of the Rail Road
Crossin!! to North of the Railroad Crossin!! at the intersection of Collins and
Min!!o Road.
Motion by (. )ka
County Judt'e
Mary Horn .
/econded by rJr((;/J
Ves
Abstain
No
Absent
Commls..doner Pt't No 1
Cynthia Whlte
ves/
Abstain
No_
Absent _ ./
: ,",Yes..L
Abstaln_
No
AlYscnt
.r..
Commlsdoner Pet No 3
Bobble J. MItcl1ell
Commls.doner Pet No 2
Sandy Jacobs
Yes/
Abstain. -
!,!o-
Absen~
Yes .-/
AbstaIn -
No
Absent
CommissIoner Pet No 4
Jim Carter
Motion Carried 5'0-0
Other Action:- Pulled (rom Consent
No Action
Postponed _
ATfEST:
......,.. .".
CynthIa Mitchell, County Oerk
and Er-Qmclo Clerk of the
Commlssloaen Court of
Denton County, Texas ~
BY'~ (h,-~
Deputy OUDty ClerK .
Exhibit F
S:\Our Documents\Ordinances\06\Vintage Parkway RR Crossmg Agreement.doc
ORDINANCE NO. 2tJ06 - /4!J
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-CHOCTA W 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 fmds 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
Agreerrient.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
-tli '-/J1
PASSED AND APPROVED this the / ~ - day of , , {tlr
C~~dL
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY~;\t\~J~
APPRO D AS 0 LEGAL FORM:
EDWIN M. S ATTORNEY
BY:
,2006.
EULINE BROCK, MAYOR
Page 2