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EXECUTIVE SUMMARY
City Council Regular Meeting: November 15, 2022
AGENDA ITEM: Approve Union Pacific Railroad At-Grade
Crossing Agreement
AGENDA SECTION:
Consent
PREPARED BY: Brian Erickson, City Engineer AGENDA NO. 6.e.
ATTACHMENTS: Union Pacific At-Grade Crossing
Agreement APPROVED BY: LJM
RECOMMENDED ACTION: Motion Approving the Union Pacific Railroad At-Grade
Crossing Agreement.
BACKGROUND
Attached for City Council review and approval is a Union Pacific Railroad At-Grade Crossing, Pedestrian
Trail and Encroachment Agreement (Agreement) between the City of Rosemount and UP. This
agreement is one of the requirements for completion of the Mississippi River Greenway.
Dakota County has completed design for the construction of the final segment of the Mississippi River
Greenway. As part of this project, the railroad crossing along Pine Bend Trail will need to be
reconstructed. The County along with City input has been coordinating crossing improvements with UP;
however, since this is a local roadway, UP required the local road authority to be the signatory on the
agreement.
As part of the agreement the railroad will complete crossing improvements like those done on Bonaire
Path albeit without the crossing arms or median. These crossing improvements are estimated to cost
$167,549.00. The agreement also covers the encroachment of the road and future trail within UP right of
way. The cost for that encroachment is $122,748.00. Both costs will be fully reimbursed by Dakota
County via the Joint Powers Agreement that will be provided at subsequent City Council meeting. Finally,
there is an annual maintenance cost that will be charged to the City of Rosemount in the amount of
$2,718.
The City Attorney has reviewed the document and provided comments. Staff has been coordinating some
additional minor language changes to the agreement. Once the final changes are incorporated staff will
provide the document for signature.
RECOMMENDATION
Staff recommends City Council approval of the Union Pacific Railroad At-Grade Crossing Agreement.
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UP Real Estate Project No. 768205
PUBLIC HIGHWAY AT-GRADE CROSSING, PEDESTRIAN
TRAIL AND ENCROACHMENT AGREEMENT
Pine Bend Trail
DOT Numbers 184926B and 184925U
From Mile Post 510.99 to Mile Post 512.21
Roseport Industrial Lead
Rosemount, Dakota County, Minnesota
THIS AGREEMENT ("Agreement") is made and entered into as of the ____ day of
___________, 2022 ("Effective Date"), by and between UNION PACIFIC
RAILROAD COMPANY, a Delaware corporation, to be addressed at Real Estate
Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179
("Railroad") and CITY OF ROSEMOUNT, a municipal corporation or political subdivision
of the State of Minnesota to be addressed at 2875 145th Street West, Rosemount, MN
55068 ("Political Body").
RECITALS:
Presently, the Political Body utilizes the Railroad’s property for an existing Road
(hereinafter "Roadway or Pine Bend Trail") which encompasses two (2) at grade public road
crossings; DOT Number 184926B at Railroad’s Milepost 511.74 and DOT Number 184925U at
Railroad's Mile Post 511.99 (hereinafter collectively "Crossings") on Railroad’s Roseport
Industrial Lead at or near Rosemount, Dakota County, Minnesota.
The Political Body now desires to undertake as its project (the “Project”) the
reconstruction and widening of Pine Bend Trail, the addition of a pedestrian trail
(hereinafter "Pedestrian Trail") and the installation of six-foot tall chain link fence, from
Mile Post 510.99 to Mile Post 512.21 which will include surface replacement at DOT
184925U and widening of DOT 184926B.
The Railroad right of way being utilized for the existing Roadway and
Crossings is not sufficient to allow for the Project. Therefore, under this
Agreement, the Railroad will be granting additional rights to the Political Body to
facilitate the Project. The additional portion of Railroad’s property that Political Body
needs to use in connection with the Project is shown on the Railroad’s location
print marked Exhibit A, attached hereto and hereby made a part hereof
(the “Additional Encroachment Area”).
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:
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Section 1. EXHIBIT B
The general terms and conditions marked Exhibit B, are attached hereto and hereby
made a part hereof.
Section 2. RAILROAD GRANTS RIGHT
A.For and in consideration of ONE HUNDRED TWENTY TWO
THOUSAND SEVEN HUNDRED FORTY EIGHT DOLLARS AND
ZERO ONE HUNDREDTHS ($122,748.00) 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 comply with the terms
of this Agreement, the Railroad hereby grants to the Political Body the right to
construct, maintain and repair the Additional Encroachment Area.
B. For purposes of this Agreement and the grant of rights hereunder with respect to the
Roadway, Crossings, and Pedestrian Trial by the Political Body, and/or the Political Body’s
invitees, use shall be limited to pedestrians and bicyclists only on the Pedestrian Trail and
vehicular traffic on the roadway and crossings. The Political Body shall not use or permit use of
the Crossings, Pedestrian Trail, Roadway, and/or any other Railroad property for any purpose
other than the purposes expressly stated herein.
Section 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, and others acting
under its or their authority.
Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE
A.Prior to Contractor performing any work within the Additional
Encroachment Area and any subsequent 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.
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.
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Under no circumstances will the Contractor be allowed on the Railroad's property without first
executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance
set forth therein and also providing to the Railroad the insurance policies, binders,
certificates and/or endorsements described therein.
C.All insurance correspondence, binders, policies, certificates and/or
endorsements shall be sent to:
Union Pacific Railroad Company
1400 Douglas Street, Mail Stop
1690 Omaha, NE 68179-1690 UP
File Project No. 0768205
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.
Section 5. FEDERAL AID POLICY GUIDE
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.
Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD
The Political Body agrees that no Project costs and expenses are to be borne by the
Railroad. In addition, the Railroad is not required to contribute any funding for the Project.
Section 7. WORK TO BE PERFORMED BY RAILROAD; BILLING SENT
TO POLITICAL BODY; POLITICAL BODY'S PAYMENT OF BILLS
A.The work to be performed by the Railroad, at the Political Body's sole cost
and expense, is described in the Railroad's Material and Force Account Estimate dated May 31,
2021, marked Exhibit C, attached hereto and hereby made a part hereof (the "Estimate"). As
set forth in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the
Project is One Hundred Sixty Seven Thousand Five Hundred Forty Nine Dollars and Zero One
Hundredths ($167,549.00).
B.The Railroad, if it so elects, may recalculate and update the Estimate
submitted to the Political Body in the event the Political Body does not commence
construction on the portion of the Project located on the Railroad’s property within six (6) months
from the date of the Estimate.
C.The Political Body acknowledges that the Estimate does not include any
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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 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 Railroad shall send progressive billing to the Political Body during the
Project and final billing to the Political Body within one hundred eighty (180) days after
receiving written notice from the Political Body that all Project work affecting the Railroad's
property has been completed.
E.The Political Body agrees to reimburse the Railroad within thirty (30) days of its
receipt of billing from 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, all actual costs
of engineering review (including preliminary engineering review costs incurred by
Railroad prior to the Effective Date of this Agreement), construction, inspection, flagging
(unless flagging costs are to be billed directly to the Contractor), procurement of materials,
equipment rental, manpower and deliveries to the job site and all direct and indirect overhead
labor/construction costs including Railroad's standard additive rates.
Section 8. PLANS
A.The Political Body, at its expense, shall prepare, or cause to be prepared by others,
the detailed plans and specifications for the Project and the Structure and submit such plans
and specifications to the Railroad’s Assistant Vice President Engineering-Design, or his
authorized representative, for prior review and approval. The plans and specifications shall
include all Roadway, Crossings and Pedestrian Trail layout specifications, cross sections
and elevations, associated drainage, and other appurtenances.
B.The final one hundred percent (100%) completed plans that are approved in writing
by the Railroad’s Assistant Vice President Engineering-Design, or his authorized representative,
are hereinafter referred to as the “Plans”. The Plans are hereby made a part of this Agreement by
reference.
C.No changes in the Plans shall be made unless the Railroad has consented to such
changes in writing.
D.The Railroad's review and approval of the Plans will in no way relieve the
Political Body or the Contractor from their responsibilities, obligations and/or liabilities under
this Agreement, and will be given with the understanding that the Railroad makes no representations
or warranty as to the validity, accuracy, legal compliance or
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completeness of the Plans and that any reliance by the Political Body or Contractor on the Plans
is at the risk of the Political Body and Contractor.
Section 9. NON-RAILROAD IMPROVEMENTS
A. Submittal of plans and specifications for protecting, encasing,
reinforcing, relocation, replacing, removing and abandoning in place all non-railroad owned
facilities (the "Non Railroad Facilities") affected by the Project including, without limitation,
utilities, fiber optics, pipelines, wirelines, communication lines and fences is required
under Section 8. The Non Railroad Facilities plans and specifications shall comply with
Railroad's standard specifications and requirements, including, without limitation,
American Railway Engineering and Maintenance-of-Way Association ("AREMA")
standards and guidelines. Railroad has no obligation to supply additional land for any
Non Railroad Facilities and does not waive its right to assert preemption defenses,
challenge the right-to-take, or pursue compensation in any condemnation
action, regardless if the submitted Non Railroad Facilities plans and specifications
comply with Railroad's standard specifications and requirements. Railroad has no
obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on
Railroad's property.
B. Upon Railroad's approval of submitted Non Railroad Facilities plans and
specifications, Railroad will attempt to incorporate them into new
agreements or supplements of existing agreements with Non Railroad Facilities owners
or operators. Railroad may use its standard terms and conditions, including, without
limitation, its standard license fee and administrative charges when requiring
supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work
shall not commence before a supplement or new agreement has been fully executed by
Railroad and the Non Railroad Facilities owner or operator, or before Railroad and Political
Body mutually agree in writing to (i) deem the approved Non Railroad Facilities plans and
specifications to be Plans pursuant to Section 8B, (ii) deem the Non Railroad Facilities
part of the Structure, and (iii) supplement this Agreement with terms and conditions
covering the Non Railroad Facilities.
Section 10. EFFECTIVE DATE; TERM; TERMINATION
A. This Agreement is effective as of the Effective Date first herein written and shall
continue in full force and effect for as long as the Roadway, Crossings and Pedestrian Trail
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
Effective Date.
C. If the Agreement is terminated as provided above, or for any other reason, the
Political Body shall pay to the Railroad all actual costs incurred by the Railroad in connection
with the Project up to the date of termination, including, without limitation, all actual costs
incurred by the Railroad in connection with reviewing any preliminary or final Project Plans.
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Section 11. CONDITIONS TO BE MET BEFORE
POLITICAL BODY CAN COMMENCE WORK
Neither the Political Body nor the Contractor may commence any work
within the Additional Encroachment Area or on any other Railroad property until:
(i)The Railroad and Political Body have executed this Agreement.
(ii)The Railroad has provided to the Political Body the Railroad’s written
approval of the Plans.
(iii)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 required under the
Contractor’s Right of Entry Agreement.
(iv)Each Contractor has given the advance notice(s) required under the
Contractor's Right of Entry Agreement to the Railroad Representative
named in the Contactor's Right of Entry Agreement.
Section 12. FUTURE PROJECTS
Future projects involving substantial maintenance, repair, reconstruction, renewal and/or
demolition of the Roadway, Crossings or the Pedestrian Trail shall not commence
until Railroad and Political Body agree on the plans for such future projects, cost allocations,
right of entry terms and conditions and temporary construction rights, terms and
conditions.
Section 13. ASSIGNMENT; SUCCESSORS AND ASSIGNS
A.Political Body shall not assign this Agreement without the prior written
consent of Railroad.
B.Subject to the provisions of Paragraph A above, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of Railroad and Political Body.
Section 14. SPECIAL PROVISIONS PERTAINING TO AMERICAN
RECOVERY AND REINVESTMENT ACT OF 2009
If the Political Body will be receiving American Recovery and Reinvestment Act
("ARRA") funding for the Project, the Political Body agrees that it is responsible in
performing and completing all ARRA reporting documents for the Project. The Political
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Body confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a
"recipient" receiving ARRA funding directing from the federal government and, therefore,
(i)the ARRA reporting requirements are the responsibility of the Political Body and not of the
Railroad, and (ii) the Political Body shall not delegate any ARRA reporting responsibilities to the
Railroad. The Political Body also confirms and acknowledges that (i) the Railroad shall provide to
the Political Body the Railroad's standard and customary billing for expenses incurred by the
Railroad for the Project including the Railroad's standard and customary documentation to
support such billing, and (ii) such standard and customary billing and documentation from the
Railroad provides the information needed by the Political Body to perform and complete the
ARRA reporting documents. The Railroad confirms that the Political Body and the Federal
Highway Administration shall have the right to audit the Railroad's billing and documentation for
the Project as provided in Section 11 of Exhibit B of this Agreement.
Section 15. TERMINATION OF ORIGINAL AGREEMENT
Upon the completion of the Project, the Original Agreement, if any, shall terminate
and the terms and conditions of this Agreement shall govern the use, maintenance and
repair of the Roadway, Crossings and the Pedestrian Trail.
Section 16. SURFACE MAINTENANCE
The Railroad shall maintain the crossing between the track tie ends at Political
Body’sexpense. Political Body agrees to pay to Railroad the sum of Two Thousand Seven
Hundred Eighteen Dollars ($2,718.00) per annum, payable annually in advance, as payment for
Railroad's maintenance of the Additional Encroachment Area between track tie ends located
within the Additional Encroachment Area. See lower left hand corner of Exhibit C.
The Political Body, at its expense, shall maintain and repair all portions of the Crossings
approaches that are not within the area between the tie ends.
UNION PACIFIC RAILROAD
COMPANY (Federal Tax ID #94-6001323)
By: _________________________________
Printed Name: ________________________
Title: ________________________________
CITY OF ROSEMOUNT
By:________________________________
Printed Name: ________________________
Title: ________________________________
By:_______________________________
Printed Name: ________________________
Title: ________________________________
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the Effective Date first herein written.
EXHIBIT A
TO
PUBLIC HIGHWAY AT-GRADE CROSSING,
PEDESTRIAN TRAIL AND ENCROACHMENT
AGREEMENT
Exhibit A will be a print showing the Additional Encroachment Area (see Recitals)
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Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law
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EXHIBIT B
TO
PUBLIC HIGHWAY AT-GRADE CROSSING,
PEDESTRIAN TRAIL AND
ENCROACHMENT AGREEMENT
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 Additional Encroachment
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 Additional Encroachment 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 Additional Encroachment Area with such
railroad tracks as may be required for its convenience or purposes. In the event the Railroad
shall place additional tracks upon the Additional Encroachment Area, the Political Body shall, at
its sole cost and expense, modify the Roadway, Crossings, the Pedestrian Trail, or both, to
conform with all tracks within the Additional Encroachment Area.
C.The right hereby granted is subject to any existing encumbrances and rights (whether
public or private), recorded or unrecorded, and also to any renewals thereof. The Political Body
shall not damage, destroy or interfere with the property or rights of nonparties in, upon or
relating to the Railroad's 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
Additional Encroachment Area for any purpose not inconsistent with the right hereby granted,
including, but not by way of limitation, the right to construct, reconstruct, maintain, operate,
repair, alter, renew and replace tracks, facilities and appurtenances on the property; and the
right to cross the Additional Encroachment Area with all kinds of equipment.
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 Additional Encroachment Area, excepting taxes levied upon and
against the property as a component part of the Railroad's operating property.
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F.If any property or rights other than the right hereby granted are necessary for the
construction, maintenance and use of the Roadway, Crossings and the
Pedestrian Trail, 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, CROSSINGS AND
PEDESTRIAN TRAIL
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, Crossings and Pedestrian Trail 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, Crossings and Pedestrian Trail 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 Additional Encroachment 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, Crossings and Pedestrian Trail and all
appurtenances and all related and incidental work) shall be performed and completed in a
manner satisfactory to the Assistant Vice President Engineering-Design of the Railroad or
his authorized representative and in compliance with the Plans, and other guidelines furnished
by the Railroad.
D.All construction work of the Political Body shall be performed diligently and
completed within a reasonable time. 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 damages on account of any delay shall be made against the Railroad
by the State and/or the Contractor.
SECTION 3. INJURY AND DAMAGE TO PROPERTY
If the 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
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property of the Railroad or of any other person lawfully occupying or using the property of the
Railroad, such property shall be replaced or repaired by the Political Body at the Political
Body's own expense, or by the Railroad at the expense of the Political Body, and to the
satisfaction of the Railroad's Assistant Vice President Engineering-Design.
SECTION 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK
The Railroad may contract for the performance of any of its work under the
Agreement by other than the Railroad forces. The Railroad shall notify the Political Body
of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is
to be performed on a fixed price basis, the Political Body shall reimburse the Railroad for the
amount of the contract.
SECTION 5. MAINTENANCE AND REPAIRS
A. The Political Body shall, at its own sole expense, maintain, repair, and renew, or
cause to be maintained, repaired and renewed, the entire Crossings and Roadway and
Pedestrian Trail, except the portions between the track tie ends, which shall be maintained by
the Railroad and at the expense of the Political Body.
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 Crossings,
replaced with paving or some surfacing material other than pre-cast concrete panels, the
Railroad, at the Political Body’s expense, shall install such replacement surfacing, and in
the future, to the extent repair or replacement of the surfacing is necessitated by repair or
rehabilitation of the Railroad’s tracks through the Crossings, 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 track(s) located within the
Additional Encroachment Area, the Political Body shall, at its own expense, conform
the Roadway, Crossings and Pedestrian Trail to conform with the change of grade of the
trackage.
SECTION 7. REARRANGEMENT OF WARNING DEVICES
If the change or rearrangement of any warning device installed hereunder is
necessitated for public or Railroad convenience or on account of improvements for either
the Railroad, highway or both, the parties will apportion the expense incidental thereto
between themselves by negotiation, agreement or by the order of a competent authority before
the change or rearrangement is undertaken.
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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.
B.Entry on to Railroad's Property by Political Body. If the Political Body's
employees need to enter Railroad's property in order to perform an inspection of the
Roadway, Crossings and Pedestrian Trail, minor maintenance or other activities, the Political
Body shall first provide at least ten (10) working days advance notice to the Railroad
Representative. With respect to such entry on to Railroad’s property, the Political Body, to the
extent permitted by law, agrees to release, defend and indemnify the Railroad from and against
any loss, damage, injury, liability, claim, cost or expense incurred by any person including,
without limitation, the Political Body’s employees, or damage to any property or equipment
(collectively the “Loss”) that arises from the presence or activities of Political Body’s employees
on Railroad’s property, except to the extent that any Loss is caused by the sole direct negligence
of Railroad.
C.Flagging.
(i)If the Political Body's employees need to enter Railroad's property as provided in Paragraph
B above, the Political Body agrees to notify the Railroad Representative at least thirty (30) working
days in advance of proposed performance of any work by Political Body in which any person or
equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that
any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five
(25)feet of any track. No work of any kind shall be performed, and no person, equipment,
machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored
within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until
a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) day notice, the
Railroad Representative will determine and inform Political Body whether a flagman need be
present and whether Political Body 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
Political Body for such expenses incurred by Railroad. If Railroad performs any flagging, or other
special protective or safety measures are performed by Railroad, Political Body agrees that Political
Body is not relieved of any of its responsibilities or liabilities set forth in this Agreement.
(ii)The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an
eight-hour day for the class of flagmen used during regularly assigned hours and overtime in
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:
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accordance with Labor Agreements and Schedules in effect at the time the work is performed.
In addition to the cost of such labor, a composite charge for vacation, holiday, health and
welfare, supplemental sickness, Railroad Retirement and unemployment compensation,
supplemental pension, Employees Liability and Property Damage and Administration
will be included, computed on actual payroll. The composite charge will be the prevailing
composite charge in effect at the time the work is performed. One and one-half times the current
hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times
current hourly rate for holidays. Wage rates are subject to change, at any time, by law
or by agreement between Railroad and its employees, and may be retroactive as a result of
negotiations or a ruling of an authorized governmental agency. Additional charges on labor
are also subject to change. If the wage rate or additional charges are changed, Political Body
shall pay on the basis of the new rates and charges.
(iii)Reimbursement to Railroad will be required covering the full eight-hour day
during which any flagman is furnished, unless the flagman can be assigned to other Railroad
work during a portion of such day, in which event reimbursement will not be required for the
portion of the day during which the flagman is engaged in other Railroad work. Reimbursement
will also be required for any day not actually worked by the flagman following the flagman's
assignment to work on the project 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 Political Body 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, Political Body 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, Political Body will still be required to pay flagging charges for the five (5) day notice
period required by union agreement to be given to the employee, even though flagging is not
required for that period. An additional thirty (30) days notice must then be given to Railroad
if flagging services are needed again after such five day cessation notice has been given
to Railroad.
D.Compliance With Laws. The Political Body shall comply with all applicable
federal, state and local laws, regulations and enactments affecting the work. The Political
Body shall use only such methods as are consistent with safety, both as concerns the
Political Body, the Political Body's agents and employees, the officers, agents, employees
and property of the Railroad and the public in general. The Political Body (without limiting the
generality of the foregoing) shall comply with all applicable state and federal occupational
safety and health acts and regulations. All Federal Railroad Administration regulations
shall be followed when work is performed on the Railroad's premises. If any failure by the
Political Body to comply with any such laws, regulations, and enactments, shall result in any
fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the
Political Body shall reimburse, and to the extent it may lawfully do so, indemnify the Railroad
for any such fine, penalty, cost, or charge, including without limitation attorney's fees, 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.
6
E.No Interference or Delays. The Political Body shall not do, suffer or permit
anything which will or may obstruct, endanger, interfere with, hinder or delay
maintenance or operation of the Railroad's tracks or facilities, or any communication or signal
lines, installations or any appurtenances thereof, or the operations of others lawfully
occupying or using the Railroad's property or facilities.
F.Supervision. The Political Body, at its own expense, shall adequately police and
supervise all work to be performed by the Political Body, and shall not inflict injury to
persons or damage to property for the safety of whom or of which the Railroad may be
responsible, or to property of the Railroad. The responsibility of the Political Body for safe
conduct and adequate policing and supervision of the Project shall not be lessened or otherwise
affected by the Railroad's approval of plans and specifications, or by the Railroad's
collaboration in performance of any work, or by the presence at the work site of the Railroad's
representatives, or by compliance by the Political Body with any requests or
recommendations made by such representatives. If a representative of the Railroad is assigned
to the Project, the Political Body will give due consideration to suggestions and
recommendations made by such representative for the safety and protection of the Railroad's
property and operations.
G.Suspension 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.
H.Removal of Debris. The Political Body shall not cause, suffer or permit material or
debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the
Railroad; and any such material and debris shall be promptly removed from the Railroad's
property by the Political Body at the Political Body's own expense or by the Railroad at the
expense of the Political Body. The Political Body shall not cause, suffer or permit any snow to
be plowed or cast upon the Railroad's property during snow removal from the Additional
Encroachment Area.
I.Explosives. The Political Body shall not discharge any explosives on or in the vicinity
of the Railroad's property without the prior consent of the Railroad's Vice President-
Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice
President-Engineering Services, such discharge would be dangerous or would interfere with the
Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's
property" shall be deemed to be any place on the Railroad's property or in such close
proximity to the Railroad's property that the discharge of explosives could cause injury to
the Railroad's employees or other persons, or cause damage to or interference with the
facilities or operations on the Railroad's property.
7
The Railroad reserves the right to impose such conditions, restrictions or limitations on the
transportation, handling, storage, security and use of explosives as the Railroad, in the
Railroad's sole discretion, may deem to be necessary, desirable or appropriate.
J.Excavation. The Political Body shall not excavate from existing slopes nor
construct new slopes which are excessive and may create hazards of slides or falling rock, or
impair or endanger the clearance between existing or new slopes and the tracks of the Railroad.
The Political Body shall not do or cause to be done any work which will or may disturb the
stability of any area or adversely affect the Railroad's tracks or facilities. The Political Body,
at its own expense, shall install and maintain adequate shoring and cribbing for all excavation
and/or trenching performed by the Political Body in connection with construction, maintenance
or other work. The shoring and cribbing shall be constructed and maintained with materials
and in a manner approved by the Railroad's Assistant Vice President Engineering -Design to
withstand all stresses likely to be encountered, including any stresses resulting from
vibrations caused by the Railroad's operations in the vicinity.
K.Drainage. The Political Body, at the Political Body's own expense, shall provide and
maintain suitable facilities for draining the Roadway, Crossings and Pedestrian Trail and its
appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon
property of the Railroad. The Political Body, at the Political 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.
L.Notice. Before commencing any work, the Political Body shall provide the
advance notice to the Railroad that is required under the Contractor's Right of Entry
Agreement.
M.Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property.
Protection of the fiber optic cable systems is of extreme importance since any break could disrupt
service to users resulting in business interruption and loss of revenue and profits. Political
Body shall submit a ticket at www.up.com/CBUD 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.
8
A.If the Political Body shall fail, refuse or neglect to perform and abide by the terms of this
Agreement, the Railroad, in addition to any other rights and remedies, may perform any
work which in the judgment of the Railroad is necessary to place the Roadway, Crossings
and Pedestrian Trail 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 Additional Encroachment 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 Additional Encroachment
Area and Roadway, Crossings and Pedestrian Trail upon termination of this Agreement.
Termination of this Agreement shall not affect any rights, obligations or liabilities of the
parties, accrued or otherwise, which may have arisen prior to termination.
SECTION 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 Crossings or in the Additional Encroachment Area, the Political
Body shall install adequate temporary warning devices or signs and impose appropriate
vehicular control measures to protect the motoring public until the new or improved devices
have been installed.
SECTION 10. OTHER RAILROADS
All protective and indemnifying provisions of this Agreement shall inure to the
benefit of the Railroad and any other railroad company lawfully using the Railroad's
property or facilities.
SECTION 11. BOOKS AND RECORDS
The books, papers, records and accounts of Railroad, so far as they relate to the
items of expense for the materials to be provided by Railroad under this Project, or are
associated with the work to be performed by Railroad under this Project, shall be open to
inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business
hours by the agents and authorized representatives of Political Body for a period of
three (3) ears following the date of Railroad's last billing sent to Political Body.
SECTION 12. REMEDIES FOR BREACH OR NONUSE
9
SECTION 13. MODIFICATION - ENTIRE AGREEMENT
No waiver, modification or amendment of this Agreement shall be of any force or
effect unless made in writing, signed by the Political Body and the Railroad and
specifying with particularity the nature and extent of such waiver,
modification or amendment. Any waiver by the Railroad of any default by the
Political Body shall not affect or impair any right arising from any subsequent
default. This Agreement and Exhibits attached hereto and made a part hereof
constitute the entire understanding between the Political Body and the Railroad and
cancel and supersede any prior negotiations, understandings or agreements, whether
written or oral, with respect to the work or any part thereof.
Public Highway At-Grade Crossing 03/01/13
Standard Form Approved, AVP-Law
EXHIBIT C
TO
PUBLIC HIGHWAY AT-GRADE CROSSING,
PEDESTRIAN TRAIL AND ENCROACHMENT
AGREEMENT
Exhibit C (if applicable) will be Railroad's Material and Force Agreement Estimate.
Material And Force Account Estimate
Dakota County
Estimate Number: 134246 Version: 1
Standard Rates: Labor Additive = 222.97%
Estimate Good Until 05/31/22
Location: ROSEPORT IND LD, INDU, 511.72-511.76
Description of Work: 184926B Pine Bend Trail Rosemount MN 511.74 Roseport IND LD
Prepared For: Dakota County
Buy America: Yes
COMMENTS FACILITY Description QTY UOM UCST LABOR MATERIAL TOTAL UP %0 Agcy %100
ENGINEERING
Engineering 1 LS 25,217.00 25,217 0 25,217 0 25,217
Bill Prep Fee - Track Surface RECOLLECT 1 LS 900.00 0 900 900 0 900
Homeline Freight - Track Surface RECOLLECT 1 LS 900.00 0 900 900 0 900
Foreign Line Freight - Track Surface RECOLLECT 1 LS 1,163.34 0 1,163 1,163 0 1,163
Sub-Total = 25,217 2,963 28,180 0 28,180
TRACK CONSTRUCTION - COMPANY
Mobilization: Company 1 DA 11,450.00 11,450 0 11,450 0 11,450
RDXING RDXING 136# CON10W PP PAN COMPLETE 72 TF 855.99 33,533 28,098 61,631 0 61,631
TRACK 136# CWRIS0 24-8'6" PPHWD N 16 TP 88 TF 492.14 30,041 13,268 43,309 0 43,309
Sub-Total = 75,023 41,366 116,390 0 116,390
TRACK REMOVAL - COMPANY
RDXING Remove road crossing - concrete 36 TF 87.34 3,144 0 3,144 0 3,144
TRACK Remove Track 124 TF 38.99 4,835 0 4,835 0 4,835
Sub-Total = 7,979 0 7,979 0 7,979
EQUIPMENT RENTAL
Equipment Rental 3 LS 5,000.00 0 15,000 15,000 0 15,000
Sub-Total = 0 15,000 15,000 0 15,000
Total Wgt. in Tons = 369 Totals = 108,220 59,329 167,549 0 167,549
Grand Total = $167,549
Please Note: The above figures are estimates only and are subject to fluctuation. In the event of an
increase or decrease in the cost or amount of material or labor required, Dakota County will pay actual
construction costs at the current rates effective thereof.
__________________________________________________________________________________________________________________________________________________________________________
Monday, May 31, 2021 Page 1 of 1
Contractor's Right of Entry Public
Projects Form Approved 02/09/2022
1
EXHIBIT D
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the ______ day of _______________________,
20______, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and
___________________________________________________, a ______________________ corporation
("Contractor").
RECITALS:
Contractor has been hired by ___________________________________________________ to
perform work relating to __________________________________________________________ (the “Work”)
with all or a portion of such Work to be performed on property of Railroad in the vicinity of Railroad's Milepost
__________ on Railroad's ______________________________ [Subdivision or Branch] [at or near DOT No.
_______________ located at or near ____________, in _______________ County, State of ______________,
as such location is in the general location shown on the print marked Exhibit A, attached hereto and hereby
made a part hereof, which Work is the subject of a contract dated ___________________ between Railroad
and _____________________________________.
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 mutually agreed by and between Railroad and Contractor, as follows:
ARTICLE 1 - DEFINITION OF CONTRACTOR.
For purposes of this agreement, all references in this agreement to Contractor shall include Contractor's
contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. For
purposes of clarity, Contractor agrees that any CIC (defined below) hired by Contractor is a subcontractor of
Contractor and therefore included in the defined term Contractor pursuant to the foregoing sentence.
ARTICLE 2 - RIGHT GRANTED; PURPOSE.
Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject
to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and
egress from the property described in the Recitals for the purpose of performing the Work described in the
Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property
specifically described herein, or as designated by the Railroad Representative named in Article 4.
ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B AND C.
The terms and conditions contained in Exhibit B and Exhibit C, attached hereto, are hereby made a
part of this agreement.
Contractor's Right of Entry Public Projects
Form Approved 02/09/2022
1
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the ______ day of ____________, 2022, by and
between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and
_______________________________, a _________________ corporation ("Contractor").
RECITALS:
Contractor has been hired by to perform work relating to
(the “Work”) with all or a portion of such
Work to be performed on property of Railroad in the vicinity of Railroad's Milepost on Railroad's
Subdivision at or near DOT No. located at or near ,
in County, State of , as such location is in the general location shown on
the print marked Exhibit A, attached hereto and hereby made a part hereof, which Work is the subject of a
contract dated between Railroad and the .
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 mutually agreed by and between Railroad and Contractor, as follows:
ARTICLE 1 - DEFINITION OF CONTRACTOR.
For purposes of this agreement, all references in this agreement to Contractor shall include Contractor's
contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. For
purposes of clarity, Contractor agrees that any CIC (defined below) hired by Contractor is a subcontractor of
Contractor and therefore included in the defined term Contractor pursuant to the foregoing sentence.
ARTICLE 2 - RIGHT GRANTED; PURPOSE.
Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject
to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and
egress from the property described in the Recitals for the purpose of performing the Work described in the
Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property
specifically described herein, or as designated by the Railroad Representative named in Article 4.
ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B AND C.
The terms and conditions contained in Exhibit B and Exhibit C, attached hereto, are hereby made a
part of this agreement.
Contractor's Right of Entry Public Projects
Form Approved 02/09/2022
2
ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE.
A.Contractor shall bear any and all costs and expenses associated with any Work performed by
Contractor (including without limitation any CIC), or any costs or expenses incurred by Railroad relating to this
agreement.
B.Contractor shall coordinate all of its Work with the following Railroad representative or his or her
duly authorized representative (the "Railroad Representative"):
C.Contractor, at its own expense, shall adequately police and supervise all Work to be performed
by Contractor and shall ensure that such Work is performed in a safe manner as set forth in Section 7 of Exhibit
B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's Work
shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the Work,
or by Railroad's collaboration in performance of any Work, or by the presence at the Work site of a Railroad
Representative, or by compliance by Contractor with any requests or recommendations made by Railroad
Representative.
ARTICLE 5 - SCHEDULE OF WORK ON A MONTHLY BASIS.
The Contractor, at its expense, shall provide on a monthly basis a detailed schedule of Work to the
Railroad Representative named in Article 4B above. The reports shall start at the execution of this agreement
and continue until this agreement is terminated as provided in this agreement or until the Contractor has
completed all Work on Railroad’s property.
ARTICLE 6 - TERM; TERMINATION.
A.The grant of right herein made to Contractor shall commence on the date of this agreement, and
continue until July 6th, 2023, unless sooner terminated as herein provided, or at such time as Contractor has
completed its Work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad
Representative in writing when it has completed its Work on Railroad's property.
B.This agreement may be terminated by either party on ten (10) days written notice to the other
party.
ARTICLE 7 - CERTIFICATE OF INSURANCE.
A.Before commencing any Work and throughout the entire term of this Agreement, Contractor, at
its expense, shall procure and maintain in full force and effect the types and minimum limits of insurance specified
in Exhibit C of this agreement and require each of its subcontractors to include the insurance endorsements as
required under Section 12 of Exhibit B of this agreement.
B.Not more frequently than once every two (2) years, Railroad may reasonably modify the required
insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting
practices in the insurance industry.
Contractor's Right of Entry Public Projects
Form Approved 02/09/2022
3
C.Upon request of Railroad, Contractor shall provide to Railroad a certificate issued by its insurance
carrier evidencing the insurance coverage required under Exhibit B.
D.Contractor understands and accepts that the terms of this Article are wholly separate from and
independent of the terms of any indemnity provisions contained in this Agreement.
D.Upon request of Railroad, insurance correspondence, binders, policies, certificates and
endorsements shall be sent to:
Union Pacific Railroad Company
[Insert mailing address]
Attn:
Project No.
ARTICLE 8 - PRECONSTRUCTION MEETING.
If the Work to be performed by the Contractor will involve the Railroad providing any flagging protection
(or if a CIC is approved to provide flagging protection pursuant to the terms set forth herein) and/or there is
separate work to be performed by the Railroad, the Contractor confirms that no work shall commence until the
Railroad and Contractor participate in a preconstruction meeting involving flagging procedures and coordination
of work activities of the Contractor and the Railroad (and any CIC, as applicable.)
ARTICLE 9. DISMISSAL OF CONTRACTOR'S EMPLOYEE.
At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor
who fails to conform to the instructions of the Railroad Representative in connection with the Work on Railroad's
property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall
indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property.
ARTICLE 10. ADMINISTRATIVE FEE.
Upon the execution and delivery of this agreement, Contractor shall pay to Railroad One Thousand
Twenty Five Dollars ($1,025.00) as reimbursement for clerical, administrative and handling expenses in
connection with the processing of this agreement.
ARTICLE 11. CROSSINGS; COMPLIANCE WITH MUTCD AND FRA GUIDELINES.
A. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over
Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad.
B.Any permanent or temporary changes, including temporary traffic control, to crossings must
conform to the Manual of Uniform Traffic Control Devices (MUTCD) and any applicable Federal Railroad
Administration rules, regulations and guidelines, and must be reviewed by the Railroad prior to any changes
being implemented. In the event the Railroad is found to be out of compliance with federal safety regulations
due to the Contractor’s modifications, negligence, or any other reason arising from the Contractor’s presence on
the Railroad’s property, the Contractor agrees to assume liability for any civil penalt ies imposed upon the
Railroad for such noncompliance.
Contractor's Right of Entry Public Projects
Form Approved 02/09/2022
4
ARTICLE 12.- EXPLOSIVES.
Explosives or other highly flammable substances shall not be stored or used on Railroad's property
without the prior written approval of Railroad.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the
date first herein written.
UNION PACIFIC RAILROAD COMPANY
By: ________________________________
Title: _______________________________
[Name of Contractor]
By: ______________________________
Title: _____________________________
EXHIBIT A
TO
CONTRACTOR’S RIGHT OF ENTRY AGREEMENT
Exhibit A will be a print showing the general location of the work site.
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EXHIBIT B
TO
CONTRACTOR'S RIGHT OF ENTRY AGREEMENT
Section 1. NOTICE OF COMMENCEMENT OF WORK - RAILROAD FLAGGING - PRIVATE 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 thirty (30) 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.
B.No work of any kind shall be performed, and no person, equipment, machinery, tool(s),
material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any
of Railroad's track(s) at any time, for any reason, unless and until a Railroad approved flagman is provided to
watch for trains. Upon receipt of such thirty (30)-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.
C.Contractor shall be permitted to hire a private contractor to perform flagging or other special
protective or safety measures (such private contractor being commonly known in the railroad industry as a
contractor-in-charge (“CIC”)) in lieu of Railroad providing such services or in concert with Railroad providing such
services, subject to prior written approval by Railroad, which approval shall be in Railroad’s sole and absolute
discretion. If Railroad agrees to permit Contractor to utilize a CIC pursuant to the preceding sentence, Contractor
shall obtain Railroad’s prior approval in writing for each of the following items, as determined in all respects in
Railroad’s sole and absolute discretion: (i) the identity of the third-party performing the role of CIC; (ii) the scope
of the services to be performed for the project by the approved CIC; and (iii) any other terms and conditions
governing such services to be provided by the CIC. If flagging or other special protective or safety measures
are performed by an approved CIC, Contractor shall be solely responsible for (and shall timely pay such CIC for)
its services. Railroad reserves the right to rescind any approval pursuant to this Section 1, Subsection C., in
whole or in part, at any time, as determined in Railroad’s sole and absolute discretion.
D.If any flagging or other special protective or safety measures are performed by employees of
Railroad and/or any contractor of Railroad, Railroad will bill Contractor for such expenses incurred by Railroad,
unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such
expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor,
Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing.
E.If any flagging or other special protective or safety measures are performed by Railroad or a CIC,
Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this
agreement.
F. The provisions set forth in this subsection are only applicable for Flagging Services performed by
employees of Railroad: the rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an
eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with
labor agreements and schedules in effect at the time the Work is performed. In addition to the cost of such labor,
a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and
unemployment compensation, supplemental pension, Employees Liability and Property Damage and
Administration will be included, computed on actual payroll. The composite charge will be the prevailing
composite charge in effect at the time the Work is performed. One and one-half times the current hourly rate is
2
paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage
rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may
be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges
on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the
governmental entity, as applicable) shall pay on the basis of the new rates and charges. If flagging is performed
by Railroad, reimbursement to Railroad will be required covering the full eight-hour day during which any flagman
is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which
event reimbursement will not be required for the portion of the day during which the flagman is engaged in other
Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following
the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which
could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though
Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign
an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must
provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5)
days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day
notice period required by union agreement to be given to the employee, even though flagging is not required for
that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed
again after such five-day cessation notice has been given to Railroad.
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 (whether recorded or
unrecorded and including those in favor of licensees and lessees of Railroad's property, and others) and the
right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment.
Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS.
A.Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted
use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of
Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative.
Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the
safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least twenty
five (25) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads
tracks except at existing open public crossings.
B.Operations of Railroad and work performed by Railroad personnel and delays in the Work to be
performed by Contractor caused by such railroad operations and Work are expected by Contractor, and
Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such
delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid
interference with railroad operations. The safe operation of Railroad train movements and other activities by
Railroad takes precedence over any Work to be performed by Contractor.
3
Section 4. LIENS.
Contractor shall pay in full all persons who perform labor or provide materials for the Work to be
performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of
any kind or nature to be created or enforced against any property of Railroad for any such Work performed.
Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands,
costs or expenses of whatsoever nature in any way connected with or growing out of such Work done, labor
performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad
may, at its election, discharge the lien or claim of lien at Contractor's expense.
Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
A.Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable
systems is of extreme importance since any break could disrupt service to users resulting in business interruption
and loss of revenue and profits. Contractor shall visit up.com/CBUD to complete and submit the required
form to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is,
Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator
and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any
Work until all such protection or relocation (if applicable) has been accomplished.
B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, CONTRACTOR
SHALL INDEMNIFY, DEFEND AND HOLD RAILROAD HARMLESS FROM AND AGAINST ALL COSTS,
LIABILITY AND EXPENSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES,
COURT COSTS AND EXPENSES) ARISING OUT OF ANY ACT OR OMISSION OF CONTRACTOR, ITS
AGENTS AND/OR EMPLOYEES, THAT CAUSES OR CONTRIBUTES TO (1) ANY DAMAGE TO OR
DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON RAILROAD'S PROPERTY, AND/OR (2)
ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEHALF OF ANY
TELECOMMUNICATIONS COMPANY, AND/OR ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, ON
RAILROAD'S PROPERTY. CONTRACTOR SHALL NOT HAVE OR SEEK RECOURSE AGAINST
RAILROAD FOR ANY CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE
OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL DAMAGE TO A TELECOMMUNICATION COMPANY
USING RAILROAD'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC
CABLE ON RAILROAD'S PROPERTY.
Section 6. PERMITS - COMPLIANCE WITH LAWS.
In the prosecution of the Work covered by this agreement, Contractor shall secure any and all necessary
permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting
the Work including, without limitation, all applicable Federal Railroad Administration regulations.
Section 7. SAFETY.
A.Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of any Work on Railroad property 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 then current safety standards located at the below web
address (“Railroad’s Safety Standards”) to ensure uniformity with the safety standards followed by Railroad's
own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor
determines that any of Railroad's Safety Standards are contrary to good safety practices. Contractor shall furnish
copies of Railroad’s Safety Standards to each of its employees before they enter Railroad property.
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http://www.up.com/cs/groups/public/@uprr/@suppliers/documents/up_pdf_nativedocs/pdf_up_supplier_safety_
req.pdf
B.Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free
from safety and health hazards and ensure that its employees are competent and adequately trained in all safety
and health aspects of the job.
C.Contractor shall have proper first aid supplies available on the job site so that prompt first aid
services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any
U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable
duty to control its employees while they are on the job site or any other property of Railroad, and to be certain
they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other
substance that may inhibit the safe performance of any Work.
D.If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's
safety plan for conducting the Work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to
require Contractor to correct any deficiencies in the Safety Plan. The terms of this agreement shall control if
there are any inconsistencies between this agreement and the Safety Plan.
Section 8. INDEMNITY.
A.TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, CONTRACTOR SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR
OFFICERS, AGENTS AND EMPLOYEES (INDIVIDUALLY AN “INDEMNIFIED PARTY” OR COLLECTIVELY
"INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY,
CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEY'S,
CONSULTANT'S AND EXPERT'S FEES, AND COURT COSTS), FINE OR PENALTY (COLLECTIVELY,
"LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY,
CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT
OF OR IN ANY MANNER CONNECTED WITH (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY
ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES, OR (III) ANY BREACH
OF THIS AGREEMENT BY CONTRACTOR.
B.THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON
OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY
NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS
CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABLISHED BY THE
FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE O F
ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY.
C.CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY
UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES.
CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR
INDUSTRIAL INSURANCE ACTS TO INDEMNIFY THE INDEMNIFIED PARTIES UNDER THIS SECTION 8.
CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES
HERETO.
D.NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY
WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY
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TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO
ASSERT LIABILITY AGAINST ANY INDEMNIFIED PARTY.
E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK
PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO
EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO
LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER
COMMON LAW.
Section 9. RESTORATION OF PROPERTY.
In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move
or disturb any of the other property of Railroad in connection with the Work to be performed by Contractor, then
in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and
other property to the same condition as the same were in before such fence was taken down or such other
property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and
other materials from Railroad's property promptly upon completion of the Work, restoring Railroad's property to
the same state and condition as when Contractor entered thereon.
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. Before
Contractor commences any Work, the Contractor shall, except to the extent prohibited by law; (1) require each
of its subcontractors to include the Contractor as "Additional Insured” on the subcontractor's Commercial General
Liability policy and Umbrella or Excess policies (if applicable) with respect to all liabilities arising out of the
subcontractor's performance of W ork on behalf of the Contractor by endorsing these policies with ISO Additional
Insured Endorsements CG 20 10, and CG 20 37 (or substitute forms providing equivalent coverage; (2) require
each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability
Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and
(3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain
Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute form providing equivalent
coverage) for the job site.
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EXHIBIT C
TO
CONTRACTOR'S
RIGHT OF ENTRY AGREEMENT
Union Pacific Railroad Company
Insurance Requirements For
Contractor’s Right of Entry Agreement
During the entire term of this Agreement and course of the Project, and until all Project Work on Railroad’s
property has been completed and all equipment and materials have been removed from Railroad’s property and
Railroad’s property has been clean and restored to Railroad’s satisfaction, Contractor shall, at its sole cost and
expense, procure and maintain the following insurance coverage:
A.Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than
$5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must
be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage).
The policy must also contain the following endorsement, which must be stated on the certificate of
insurance:
Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent
coverage) showing “Union Pacific Railroad Company Property” as the Designated Job Site.
Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a
substitute form providing equivalent coverage) showing the project on the form schedule.
B.Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 01 10
01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less
$5,000,000 for each accident and coverage must include liability arising out of any auto (including owned,
hired and non-owned autos).
The policy must contain the following endorsements, which must be stated on the certificate of insurance:
Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a
substitute form providing equivalent coverage) showing “Union Pacific Property” as the
Designated Job Site.
Motor Carrier Act Endorsement - Hazardous materials clean up (MCS-90) if required by law.
C.Workers' Compensation and Employers' Liability insurance. Coverage must include but not be
limited to:
Contractor's statutory liability under the workers' compensation laws of the state where the Work
is being performed.
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.
D.Railroad Protective Liability insurance. Contractor must maintain "Railroad Protective Liability" (RPL)
insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent
coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence
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and an aggregate of $6,000,000. The definition of "JOB LOCATION" and "WORK" on the declaration
page of the policy shall refer to this agreement and shall describe all WORK or OPERATIONS performed
under this agreement. Contractor shall provide this agreement to Contractor's insurance agent(s) and/or
broker(s) and Contractor shall instruct such agent(s) and/or broker(s) to procure the insurance coverage
required by this agreement. A BINDER STATING THE POLICY IS IN PLACE MUST BE SUBMITTED
TO RAILROAD BEFORE THE WORK MAY COMMENCE AND UNTIL THE ORIGINAL POLICY IS
FORWARDED TO UNION PACIFIC RAILROAD.
E.Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must
“follow form” and afford no less coverage than the primary policy.
F.Pollution Liability insurance. Pollution liability coverage must be included when the scope of the Work
as defined in the agreement includes installation, temporary storage, or disposal of any "hazardous"
material that is injurious in or upon land, the atmosphere, or any watercourses; or may cause bodily injury
at any time.
If required, coverage may be provided in separate policy form or by endorsement to Contractors CGL or
RPL. Any form coverage must be equivalent to that provided in ISO form CG 24 15 "Limited Pollution
Liability Extension Endorsement" or CG 28 31 "Pollution Exclusion Amendment" 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 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 business automobile, worker’s compensation and employers
liability) must include Railroad as “Additional Insured” using ISO Additional Insured Endorsements CG
20 10, and CG 20 37 (or substitute forms providing equivalent coverage). The coverage provided to
Railroad as additional insured shall not be limited by Contractor's liability under the indemnity provisions
of this agreement. BOTH CONTRACTOR AND RAILROAD EXPECT THAT UNION PACIFIC
RAILROAD COMPANY WILL BE PROVIDED WITH THE BROADEST POSSIBLE COVERAGE
AVAILABLE BY OPERATION OF LAW UNDER ISO ADDITIONAL INSURED FORMS CG 20 10 AND
CG 20 37.
H.Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of
insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that
may arise under this agreement, or (b) all punitive damages are prohibited by all states in which this
agreement will be performed.
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 for damages covered by the workers
compensation and employers liability or commercial umbrella or excess liability obtained by Contractor
required in this agreement where prohibited by law. 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.
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K.All insurance policies must be written by a reputable insurance company acceptable to Railroad or with
a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in
the state where the Work is being performed.
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.