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HomeMy WebLinkAboutPR 15336: UNION PACIFIC RAILROAD COMPANY - AGREEMENTInteroffice MEMORANDUM To: Mayor, City Council, and City Manager ~ -.~ From: Mark T. Sokolow, City Attorney ~~~„~ Svrti-- Date: June 26, 2009 Subject: P. R. No. 15336; Council Meeting June 30, 2009 Attached is P. R. No. 15336 approving an agreement between the City of Port Arthur and Union Pacific Railroad Company. MTS:gt Attachment z.pr15336_memo P. R. No. 15336 06/23/09 gt RESOLDTZON NO. A RESOLIITION APPROVING AN AGREEMENT BETWEEN TBE CITY OF PORT ARTHIIR AND IINION PACIFIC RAILROAD COMPANY WHEREAS, the City deems it in the public's interest to extend the waterline towards Sabine Pass; and WHEREAS, the City Council deems it in the public's interest to enter into a Longitudinal Pipeline Encroachment Agreement with Union Pacific Railroad Company for the cost of $29,582. NOW THEREFORE, BE IT RESOLVED BY THE CITY COIINCIL OF TAE CITY OF PORT ARTHIIR: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Manager is herein authorized to execute a Longitudinal Pipeline Encroachment Agreement with Union Pacific Railroad Company, in substantially the same form as attached hereto as Exhibit "A" Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2009, at a Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: z.pi15336 Mayor Councilmembers NOES: MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM: ~ ~` i0~" CITY ATTORNEY APPROVED FOR ADMINISTRATION: CITY MANAGER APPROVED AS TO THS AVAILABILITY OF FIINDS DIRECTOR OF FINANCE 30/-~~o/S9/. 85-oa 4 D-8O3 z.pII 5336 EXHIBIT ~~A" ~y June 02, 2009 Folder: 2563-07 MR. MARK SOKOLOW CITY OF PORT ARTHUR 444 FOURTH STREET PORT ARTHUR TX 77641 RE: Proposed Constmction of 4400' of an Underground 16 Inch Water Pipeline Encroachment and Crossing Only between Mile Posts 12.35 and 13.5 on the Sabine Industrial Lead at or near Port Arthur, Jefferson County, Texas Dear Mazk: Attached are duplicate originals of an agreement covering your use of the Railroad Company's right of way. Please execute the attached documents IN DUPLICATE and return in the enclosed self-addressed envelope. An original copy of the fully-executed document will be returned to you, when approved and processed by the Railroad Company. Also, please provide a resolution or other authorization for the party executing the documents, if signature authorization is required by your Entity. Payment in the amount of Twenty Nine Thousand Five Hundred Eighty Two Dollars ($29,582.00) is due and payable to Union Pacific Railroad Company upon your execution of the agreement. Please include your payment, with Folder No. 2563-07 noted on that document. If you require formal billing, you may consider this letter as a formal bill and that 94-6001323 is this Corporation's correct Federal Taxpayer Identification Number. You must provide a Certificate of Insurance which meets all requirements as outlined in Exhibit C of the agreement. In addition, a Railroad Protective Liability Insurance (RPLI) policy must be provided by the Licensee or its contractor prior to construction and which must be in effect for the entire installation period. Union Pacific Railroad Real Estate 1400 Douolas Street Stoo 1690 Omaha. This agreement will not be accepted and processed by the Railroad Company until the initial payment and all Insurance Certificates or statements are received. If you have any questions concerning this Agreement, please contact me a[ (402) 544-8623. Thank you for your patience during this process. Sincerely, Mary C. Gross Manager -Contracts (402)544-8623 Folder: 263-07 MR. MARK SOKOLOW CITY OF PORT ARTHUR 444 FOURTH STREET PORT ARTHUR TX 77641 RE: Proposed Construction of 4400' of an Underground 16 Inch Water Pipeline Encroachment and Crossing Only between Mile Posts 12.35 and 13.5 on the Sabine Industrial Lead at or neaz Port Arthur, Jefferson County, Texas Dear Mark: Attached is your original copy of our Longitudinal Pipeline Encroachment Agreement, fully executed on behalf of the Railroad Company. When you or your representative enters the Railroad Company's property, a copy of this fully-executed document must be available a[ the site to be shown on request to any Railroad employee or official. If this construction is to be done by a contractor, before work can begin, the Contractor's Right of Entry Agreement must be executed by the contractor and re[umed to me, together with their proof of insurance, as provided in this Agreement. In accordance with the terms of the Agreement, you are required to notify the following Railroad Company's Manager of Track Maintenance, Manager of Signal Maintenance, and the plan on ent ringtthe rightaofBwayrfor~furth eiinstru dons and approval to commen of onstruct on. [Name and Address of MTM] [ ] [ ] [ ] [ ] Phone: Fax: Union Pacific Railroad [Name and Address of MSM] [ ] [ ] [ ] [ ] Phone: Fax: Real Estate 1400 Douglas Street Stop 1690 Omaha, Telecommunications ("Call Before You Dig"): 1-800-336- 9193 As an additional note, the top of the casing must be a minimum of two feet below any existing fiber optic cable. Any open excavation required within five feet of the fiber optic cable must be dug by hand. All future insurance notices should be forwarded to: Real Estate Department Folder No: 2563-07 Union Pacific Railroad Company 1400 Douglas Street STOP 1690 Omaha, NE 68179-1690 If you have any questions, please contact me at (402) 544-8623. Thank you. Sincerely, Mary C. Gross Manager -Contracts Folder No. 2563-07 BCC: Property Records Attached is the Railroad Company's original. Mike Shallow -Mail STOP 0640. Manager Industry & Public Projects: Paul D. Rathgeber Manager of Track Maintenance Heath D. Landrum Manager of Signal Maintenance Byron J. Bertelsen Licensee Contact: Mark Sokolow Licensee Phone: 409/983-8126 PLE.DOC 980220 Folder No. 2563-07 Form Approved, AVP-Law LONGITUDINAL PIPELINE ENCROACHMENT AGREEMENT Between Mile Posts 12.35 and 13.5 Sabine Industrial Lead Location: Port Arthur, Jefferson County, Texas THIS AGREEMENT ("Agreement") is made and entered into as of July Ol, 2009, ("Effective Date") by and between UNION PACIFIC RAILROAD COMPANY, a Delawaze corporation, ("Licensor") and CITY OF PORT ARTHUR, a Texas municipal corporation to be addressed at 444 Fourth Street, Port Arthur, Texas 77641 ("Licensee"). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the term hereof, to maintain and operate Approximately 4400 feet of an underground 16 inch pipeline (and ancillary appurtenances as shown in the specifications referenced below) encroachment and crossing for transporting and conveying water only between Mile Posts 12.35 and 13.5 Sabine Industrial Lead (hereinafter the "Pipeline") in the location shown and in conformity with the dimensions and specifications indicated on the attached print dated May 26, 2009 and mazked Exhibit "A" and "A-1", attached hereto and hereby made a part hereof. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than transporting and conveying water, and the Pipeline shall not be used to convey any other substance, any fiber optic cable, or for any other use, whether such use is currently technologically possible, or whether such use may come into existence during [he life of this Agreement. Article 2. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licensor aone-time License Fee of Twenty Nine Thousand Five Hundred Eighty Two Dollars ($29,582.00). Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, attached hereto and hereby made a part hereof. Article 4. IF WORK IS TO BE PERFORMED BY CONTRACTOR If a contractor is hired by the Licensee to do any of the work performed on the Pipeline (including initial construction and subsequent relocation or maintenance and repair work), then the Licensee shall require its contractor to execute the Licensoe's current form of Contractor's Right of Entrr' Aereement. Licensee acknowledges receipt of a copy of Contractor's Right of Entr~Aereement and an understanding of its terms, provisions, and requirements, and will inform its contractor of the need to execute the Agreement. Under no circumstances will Licensee's contractor be allowed onto Licensor's property without first executing the Contractor's Right of Entry Aereement and the contractor providing to the Licensor the insurance binders, certificates and endorsements described in the Contractor's Right of Entry Agreement. Article 5. INSURANCE. A. Before commencement of the term of this Agreement and prior to any Pipeline construction, the Licensee, at its sole expense, shall provide to the Licensor the insurance binders, certificates and endorsements described in Exhibit C, attached hereto and hereby made a part hereof. The Licensee's contractor, who will be performing the Pipeline construction is required to procure a Railroad Protective Liability Insurance policy for the duration of such work, as described in Exhibit C io the Contractor's Right of Entry Agreement. B. Not more frequently than once every two years, Licensor 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. C. All insurance correspondence, binders, certificates and endorsements shall be directed to Mary Gross Folder No. 2563-07 Union Pacific Railroad Company Real Estate Department 1400 Douglas St. STOP 1690 Omaha, NE 68179-1690 D. The Licensee named in this Agreement is a public entity and is immune from tort liability, except where such liability has been partially waived by statute. The limits of insurance described in Exhibit C shall be the limits the Licensee then has in effect or which is required by applicable current or subsequent law, whichever is greater, a portion of which may be self-insured with the consent and approval of Licensor. Article 6. TERM. This Agreement shall take effect as of the Effective Date first herein written and shall continue in full force and effect until terminated as herein provided. Article 7 SPECIAL PROVISIONS 1. The surface of the right-of-way must be returned to its original condition or better (provided, however, Licensee may have the surface installations as approved in the specifications. 2. The pipeline must be marked by a sign every 500 feet and at every road crossing, streambed, other utility crossing and at locations of major changes in direction of the line. 3. The cased pipe crossing under the track must be extended as close to the elbows as possible. It must extend a minimum 30 ft. from the centerline of the nearest track, measured at right angles to the track. 4. Licensee can use A36 casing under the railroad track, but it will require a special rolling from the mill. A36 is a structural steel specification. We suggest they use A53 with a 35,000 minimum yield strength. The remainder of the Pipeline will not be cased. 5. All financial obligations of Licensee shall be subject to the prior appropriation of monies therefor by the City of Port Arthur City Council, its governing body. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. iJNION PACIFIC RAILROAD CITY OF PORT ARTHUR COMI'ANY By: By: James P. Gade, Director -Contracts Real Estate Name Printed: Title: ACKNOWLEDGEMENT State of Texas County of Jefferson This instrument was acknowledged before me on by Stephen Fitzgibbons as the City Manager of the City of Port Arthur, on behalf of the City of Port Arthur. (Signature of Officer) (Title of Officer) My commission expires ACKNOWLEDGEMENT State of County of This instrument was acknowledged before me on (date) by James P. Gade, Director-Contracts Real Estate, of Union Pacific Railroad Company, a State of corporation, an behalf of said corporation. (Signature of Oftcer) (Title of Officer) My commission expires Form Approved, AVP Law Updated 07/2006 EXHIBIT B Section 1. LIMITATION P.ND SUBORDPi IATION OF RIGHTS GRANTED The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, 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 the Licensor without liability to the Licensee or to any other party for compensation or damages. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE P.ND OPERATION. A. The Pipeline shall be constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in substantial conformity with the design and specifications shown on Exhibit A and A-1; any variances must be approved in advance in writing by the Licensor's Assistant Vice President Engineering -Design, or his authorized representative. Any future construction or reconstruction must conform with Licensor's then current requirements and American Railway Engineering and Maintenance-of-Way Association ("ARENA") standards and guidelines. The construction, maintenance and operation must comply with all applicable laws, rules and regulations ("Laws"). B. All work performed on property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the reasonable satisfaction of the Licensor. The initial constmction shall be in substantial compliance with the specifications in Exhibit A and A-1. C. Prior to the commencement of any work in connection with the construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline where it passes underneath the roadbed and track or tracks of the Licensor, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Licensor's Assistant V ice President Engineering Design, or his authorized representative, and then the work shall be done to the satisfaction of the Licensor's Assistant Vice President Engineering Design or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to [he Licensor, within fifteen (15) days after bills shall have been rendered therefore, all expenses incurred by the Licensor in connection therewith, which expenses shall include all assignable costs. D. The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. Section 3. NOTICE OF CONLMENCEMENT OF WORK. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the cotrunencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise. Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE. The license herein granted is subject to the needs and requirements of the Licensor in the safe and efficient operation of its railroad and in the improvement and use of its property. The Licensee shall modify the Pipeline, or move all or any portion of the Pipeline to such new location as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor, finds such action necessary, provided, however, the cost of such reinforcement, modification or removal shall be at the expense of Licensor. All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in [he location hereinbefore describedshall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor, and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS Fiber optic cable systems may be buried on the Licensor'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. Licensee shall telephone the Licensor during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange far a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee's expense, and will commence no work on the Licensor's property until all such protection or relocation has been accomplished. TO THE EXTENT TT IS COVERED CINDER LICENSEE'S INSURANCE AS DELINEATED IN EXHIBIT C, LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD THE LICENSOR OHR P RSONAL INJURIES ARISING OL OFL IOCENSEE'SCUOSE OF TAE PREMISES OR S LICENSOR'S PROPERTY. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL: TAXES A. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials fumished thereon at the instance or request or on behalf of the Licensee. The Licensee's contractor shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials fumished, as per the contractor's right of entry agreement. B. The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect [o, or on account of the Pipeline, to prevent the same from becoming a charge or lien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected [herewith placed upon such property, or on account of the Licensee's interest therein. C. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to [he Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of [he Licensor as compared with the entire value of such property. Section 9. RESTORATION OF LICENSER'S PROPERTY. In the event the Licensor authorizes the Licensee to take down any fence of the Licensor or in any manner move or disturb any of the other property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee'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. Section 10. RELEASE AND INDEMNITY. LICENSEE HEREBY AGREES TO RELEASE LICENSOR AND, TO THE EXTENT IT IS COVERED UNDER LICENSEE'S INSURANCE AS DELINEATED IN EXHIBIT C, LICENSEE SIIALL INDEMNIFY, DEFEND AND HOLD THE LICENSOR HARMLESS FROM ANY LIABILITY, LOSS, DAMAGE, CLAIMS, DEMANDS RESULTING FROM INJURY TO PERSON OR DAMAGE TO PROPERTY DAMAGE ARISING OUT OF LICENSEE'S PRESENCE UPON OR USE OF THE PREMISES OR LICENSOR'S PROPERTY. Section 11. REMOVAL OF PIPELINE UPON TERMINATION OF AGREEMENT Upon termination of this Agreement for cause as delineated in Section 13, the Licensee shall have the option to either abandon in place anyimprovements and equipment owned or placed by it on the Railroad easement or, at its own risk and expense, remove such improvements and equipment. All improvements abandoned in place shall be cleaned, sealed and safeguarded in accordance with applicable industry standards, at City's expense, so that such improvements and equipment are free of all hazardous materials and pose no health or safety hazards to the Railroad or third parties, with the surface of the property restored to as good a condition as they were in at the time of the construction of the PIpeline. If Licensee fails to do the foregoing, the Licensor may, but is not obligated to perform such work at the cost and expense of the Licensee. Nevertheless, the intent of the parties is for this pipeline to be permanent as to provide a water supply [o Sabine Pass and the City agrees to continue to take such action as to abide by the terms of this agreement therefor and to minimize any disruption to the operations of the Licensor to provide rail service, which is also vital to the economy of the city. Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. Section 13. TERMINATION. A. If the Licensee does not use the right herein granted or the Pipeline for one (1) year, or if the Licensee continues in default in the performance of any material covenant or agreement herein contained for a period of sixty (60) days after written notice from the Licensor to the Licensee specifying such default, the Licensor may, at its option, forthwith immediately terminate this Agreement by written notice. B. Notice of default and notice of termination may be served personally upon the Licensee or by mailing to the last known address of the Licensee. Termination of this Agreement for any reason shall not affect any of the rights or obligations of the parties hereto which may have accmed, or liabilities, accrued or otherwise, which may have arisen prior thereto. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of [he Licensor, and it is agreed that any transfer or assignment or attempted transfer or assigrunent of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate [his Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. Form Approved, AVP-Law Updated 08/2006 EXHIBIT C City of Port Arthur Ins. Certificates from TML ~~. ~,~~ ~I~~~) June 02, 2009 Folder No. 2563-07 To the Contractor: Before the Railroad Company can permit you to perform work on its right-of-way for the installation of a pipeline for CITY OF PORT ARTHUR, it will be necessary to complete and return the enclosed Contractor's Right of Entry Agreement. First, we must have an executed License Agreement in place before we can process a Contractor's Right of Entry Agreement, associated with this project. Fully complete and sign duplicate copies of this Agreement. This should include the legal company name, address and corporate status. Complete the signature block information, including contact information. Check, with Folder No. 2563-07 written on the front, made payable to the Union Pacific Railroad Company in the amount of FIVE HUNDRED DOLLARS ($500.00). You must include a copy of your General Liability Certificate of Insurance, identifying Folder No. 2563-07, with coverage levels and endorsements as required in Exhibit C of [his Agreement. In addition, you are required to procure and provide proof of a Railroad Protective Liability Insurance (RPLI) policy for the duration of the installation period, as required in Exhibit C of this Agreement. *If you would like to be included in the Union Pacific's RPLI program, through Marsh USA, simply follow the instructions on the enclosed form or go to www uprr com/reus/group/rinsure. After approval of the Contractor's Right of Entry Agreement with all required documents, your fully-executed Agreement will be returned to the Licensee, and that party should provide you with a copy of this Agreement and instructions to proceed. In no event should you begin work until you have received a copy of the signed Contractor's Right of Entry Agreement and have this available on the project site. If you have any questions, please contact me at (402) 544-8623. Sincerely, Mary Gross Manager -Contracts PL X&E ROE 940201 Folder Na. 2563-07 Form Approved, AVP-Law 08/25/2006 CO'NTRACTOR' S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of 20 _, by and between UNION PACIFIC RAII.ROAD COMPANY, a Delaware corporation, ("Railroad") and addressed at RECITALS: corporation ("Contractor"), to be Contractor has been hired by CITY OF PORT ARTHUR to perform work relating to 4400 feet of a 16 inch pipeline encroachment and crossing for conveying water (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 12.35 to Mile Post 13.50, Sabine Industrial Lead, located at or near Port Arthur, Jefferson County, State of Texas, which work is the subject of a contract dated July Ol, 2009 between Railroad and CITY OF PORT ARTHUR, as such location is also shown on the print dated May 26, 2009, marked Exhibit A and A-1 attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location describe above subject to the terms and conditions contained in this Agreement. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: Article I. DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this Agreement to the Contractor shall include Contractor s contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. Article II. 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 [he property described in the Recitals for the purpose of performing any 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 IV. Article III. TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The terms and conditions contained in Exhibit B, C and D, attached hereto, are hereby made a part of this Agreement. Article IV. ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Heath D. Landrum, MTM Work: 409/225-9308 Email: hdlandru@up.com 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 m 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 V. 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 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 thirty (30) days written notice to the other party for cause, except in a matter of railroad safety when shorter notice may be given. Licensor will send a copy of any termination notice to the City of Port Arthur, and the City shall be given ten (10) days opportunity to cure any Contractor default. Article VI. 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 C of this Agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Folder No.2563-07 Union Pacific Railroad Company 1400 Douglas Street STOP 1690 Omaha, Nebraska 68179-1690 Article VII. CHOICE OF FORUM. Litigation arising out of or connected with this Agreement may be instituted and maintained in the courts of the States of Nebraska and Texas only, and the parties consent to jurisdiction over their person and over the subject matter of any such litigation, in those courts, and consent to service of process issued by such courts. Article VIII. 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 [o 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 azising from the removal of any such employee from Railroad's property. Article IX. ADMINISTRATNE 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 X. 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 XI. EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY By: Manager -Contracts (Contractor Name) Title: Telephone: Fax: Form Approved, AVP-Law 07/25/06 EXIIIBIT B CONTRACTOR' S RIGHT OF ENTRY AGREEMENT Section 1. NOTICE OF COIvI1~1ENCEMENT OF WORK -FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10)-day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures aze performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed [ha[ Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate ut effect far an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates aze subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work ,even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need 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 afrer 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 [o use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wielines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and [he 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 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 aze expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform Tabor 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 famished. 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 inteauption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-500-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Raihoad'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 [he 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 pazamount 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 D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. 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 [rained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor s safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8. INDEMNITY. A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and [heg offijuerys; agents and employees ("Indemnified Parties") from and against any and all loss, dams e, in 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. g. 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 under worker s compensation or industrial insurance acts to indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D_ No court or jury findings in any employee's suit 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. g. 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 Contractoor mayrhave to anyIndemnified Part by statute oaunderdcom on lawliability Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor [o 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 Contractors 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 [hereon. 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 Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. Form Approved, AVP-Law 08/24/06 EXHIBIT C CONTRACTOR' S RIGHT OF ENTRY AGREEMENT Union Pacific Railroad Company Insurance Provisions For Contractor's Right of Entry Agreement 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 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. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL insurance must be written on ISO occurrence form CG 00 Ol 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 Ol (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 Ol (or a substitute form providrng equivalent liability coverage) with a combined single limit of not less $2,000,000 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 W ith Railroads ISO form CA 20 70 10 Ol (or 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 no[ be 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 Contractor is self-insured, evidence of state approval and excel workers compensation coverage must be provided. Coverage must include liability arising out of the U.S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: Alternate Employer endorsement ISO form WC 00 03 O1 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute farm providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. 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. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non-hazardous materials from thejob site, Contractor must famish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising form 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. g, 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(s) in which the work is to be performed. I„ The fact that insurance is obtained by Contractor or by Railroad on beha~ithout lim t ton, will not be deemed to release or diminish the liability of Contractor, including, 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. Form Approved, AVP-Law 07/25/06 EXHIBIT D 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) Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii} Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety-toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. 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) 289.1- 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, 287.1- latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: 100 feet of a locomotive or roadway/work equipment 15 feet of power operated tools 150 feet of jet blowers or pile drivers 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection -plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations - 49CFR214, Subpart C and Railroad's On-Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (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- TrackSafety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: Familiar and comply with Railroad's rules on lockout/tagout of equipment. Trained in and comply with the applicable operating rules if operating any by-rail equipment on-track. Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with afirst- aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On- Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. June 02,2009 Folder: 2563-07 MR.MARKSOKOLOW CTTY OF PORT ARTHUR 444 FOURTH STREET PORT ARTJIUR TX 77641 RE: Proposed Construction of 4400' of an Underground 16 Inch Water Pipeline Encroachment and Crossing Only Between Mile Posts 12.35 and 13.5 on the Sabine Industrial Lead at or near Port Arthur, Jefferson County, Texas Dear Mark: Attached is your original copy of a Contractor's Right of Entry Agreement, fully executed on behalf of the Railroad Company. When you or your representative enter the Railroad Company's property, a copy of this fully-executed document must be available a[ the site to be shown on request to any Railroad employee or official. In accordance with the terms of the Agreement, you are required to notify the following Railroad Company's Manager of Track Maintenance, Manager of Signal Maintenance, and the ("Call Before You Dig") at least 10 days in advance of the date you plan on entering the right of way for further instructions and approval [o commence construction. Heath D. Landrum, MTM Union Pacific Railroad Company 550 Lindburgh Drive Beaumont, Texas 77070 Work: 409/225-9308 Email: hdlandru@up com Byron 7. Bertelsen, MSM Union Pacific Railroad Company 550 Lindbergh Dr. Beaumont, TX 77707 Work: 409!225-9336 Email: bibertel@up.com Telecommunications ("Call Before You Dig"): 1-800-336- 9193 Union Pacific Railroad Real Estate 1400 Douglas Street Stoq 1690 Omaha. As an additional note, the casing and carrier pipe must be placed a minimum of two (2) feet below any existing fiber optic cable. Any excavation required within five (5) feet of an existing fiber optic cable must be hand dug. Thank you. Sincerely, Mary' C. Gross Manager -Contracts -Real Estate (402)544-8623 BCC: Property Records: Attached is the Railroad Company's original of the Contractor's Right of Entry Agreement to be filed with [he Agreement Audit No . Manager of Track Maintenance: Manager of Signal Maintenance: Contractor Contact Contractor Phone