HomeMy WebLinkAboutFORT COLLINS DISCOVERY MUSEUM - Filed OA-OTHER AGREEMENTS - 2011-06-06UNION
PACIFIC
August 05, 2010
Folder: 02628-66
PATRICK ROWE
CITY OF FORT COLLINS
PO BOX 580
FORT COLLINS CO 80522
Patrick:
Attached are duplicate originals of a Right of Entry agreement covering your use of the Railroad
Company's right of way.
Please execute (or arrange for execution) in ink of the duplicate original counterparts of this document.
Please RETURN BOTH COPIES of the document for execution on behalf of the Railroad Company.
Your copy of the fully executed document will be returned to you, when approved by the Railroad
Company. You are not authorized to enter the Railroad's property or begin any work until you have
received your fully executed counterpart from the Railroad and have made all required contacts and
notifications.
Payment in the amount of Two Thousand Five Hundred Dollars ($2,500.00) is due and payable upon
your execution of the agreement. Please include your check, with Folder No. 02628-66 written on the
front, made payable to Union Pacific Railroad Company, with the return of the documents.
In addition, if you elect to obtain your required Railroad Protective Insurance coverage from Union
Pacific Railroad, you must also return the completed and signed Railroad Protective Insurance application
form (available on the UPRR internet website at www.uprr.com/reus/group/rr-insure) to Marsh, USA
(Fax: (816) 556-4362, Attention: Cindy Long), a copy of your Insurance Certificate (Gen. Liab., Auto
Liab. & Workman's Comp. coverages) naming Union Pacific Railroad Company as additional insured,
along with a separate check for payment of the Railroad Protective Insurance premium in the amount
shown on the overview and rate schedule.
This agreement will not be accepted by the Railroad Company until you have returned all of the following
to the undersigned at Union Pacific Railroad Company:
(1) Executed, unaltered duplicate original counterparts of Right of Entry Agreement
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340
ROE 920316
Fonn Approved, AVP-Law
b. The employees of the Licensee shall 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. Only waist
length shirts with sleeves and trousers that cover the entire leg are to be worn. if flare -legged trousers are
worn, the trouser bottoms must be tied to prevent catching. The employees should wear sturdy and
protective footwear. 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. In addition, the Licensee shall
require its employees to wear personal protective equipment as specified by Railroad rules, regulations or
Railroad officials overlooking the work at the job site. hi particular, the protective equipment to be warn
shall be:
(1) Protective head gear that meets American National Standard-Z89.1-latest revision. It
is suggested that all hardhats be affixed with Licensee's or subcontractor's company logo or
name.
(2) Eye protection that meets American National Standard for occupational and
educational eye and face protection, Z87.I-latest revision. Additional eye protection must be
provided to meet specific job situations such as welding, grinding, burning, etc.; and
(3) Hearing protection which affords enough attenuation to give protection from noise
levels that will be occurring on the job site.
C. All heavy equipment provided or leased by the Licensee shall be equipped with audible back-
up warning devices. If in the opinion of the Railroad Representative any of Licensee's or any of its
subcontractors' equipment is unsafe for use on the Railroad's right-of-way, the Licensee, at the request of
the Railroad Representative, shall remove such equipment from the Railroad's right-of-way.
Section 9 - INDEMNITY.
a. As used in this Section, "Railroad" includes other railroad companies using the Railroad's
property at or near the location of the Licensee's installation and their officers, agents, and employees;
"Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses
of whatsoever nature, including court costs and attorneys' fees, which may result from: (i) injury to or
death of persons whomsoever (including the Railroad's officers, agents, and employees, the Licensee's
officers, agents, and employees, as well as any other person); and (ii) damage to or loss or destruction of
property whatsoever (including Licensee's proper-ty, damage to the roadbed, tracks, equipment, or other
property of the Railroad, or property in its care or custody).
b. As a major inducement and in consideration of the license and permission herein granted, the
Licensee agrees to indemnify and hold harmless the Railroad fi•om any Loss which is due to or arises
from any cause and is associated in whole or in part with the work performed under this Agreement, a
breach of the Agreement or the failure to observe the health and safety provisions herein, or any activity
or omission arising out of performance or nonperformance of this Agreement; regardless of whether
caused solely or contributed to in part by the negligence or fault of the Railroad.
c. Any liability of either party hereunder to one of its employees under any Workers'
Compensation Act or the Federal Employers' Liability Act shall not be questioned or in any way
challenged by the other party, nor shall any jury or court findings, resulting from any employee's suit
against either party pursuant to any such Act(s), be relied upon or used by either party in any attempt to
assert common law liability against the other.
Exhibit B
ROE 920316
Pone Approved, AVP-Law
Section 10 - RESTORATION OF PROPERTY.
In the event the Railroad authorizes the Licensee to take down anv fence of the Railroad or in any
manner move or disturb any of the other property of the Railroad in connection with the work to be
performed by Licensee, 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, and the Licensee shall indemnify
and hold harmless the Railroad, its officers, agents and employees, against and from any and all liability,
loss, damages, claims, demands, costs and expenses of whatsoever nature, arising from the taking down
of any fence or the moving or disturbance of any other property of the Railroad.
Section 11 - WAIVER OF BREACH.
The waiver by the Railroad 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
Railroad to avail itself of any remedy for any subsequent breach thereof.
Section 12 - ASSIGNMENT — SUBCONTRACTING.
The Licensee shall not assign, sublet or subcontract this Agreement, or any interest therein,
without the written consent of the Railroad and any attempt to so assign, sublet or subcontract without the
written consent of the Railroad shall be void. If the Railroad gives the Licensee permission to subcontract
all or any portion of the work herein described, the Licensee is and shall remain responsible for all work
of subcontractors and all work of subcontractors shall be governed by the terms of this Agreement.
Exhibit B
W W506 EXHIBIT C
Union Pacific Railroad
Contract Insurance Requirements
Right of Entry Agreement
Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement
(except as otherwise provided in this Agreement) the following insurance coverage:
A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not
less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL
insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing
equivalent coverage).
The policy must also contain the following endorsement, which must be stated on the certificate of
insurance.
• Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing
equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site.
B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00
01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less
$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 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:
• Licensee'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 Licensee 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. Licensee must maintain Railroad Protective Liability
insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent
coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per
occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to
Railroad before the work may be commenced and until the original policy is forwarded to Railroad.
E. Umbrella or Excess insurance. If Licensee 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.
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 the job site, Licensee must furnish to Railroad evidence of pollution legal
liability insurance maintained by the disposal site operator for losses arising from the insured facility
accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual
aggregate of $2,000,000.
Other Requirements
G. All policy(ies) required above (except worker's compensation and employers liability) must
include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20
48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional
insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48
provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be
limited by Licensee'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 (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. Licensee waives all rights against Railroad and its agents, officers, directors and employees for
recovery of damages to the extent these damages are covered by the workers compensation and
employers liability or commercial umbrella or excess liability insurance obtained by Licensee required by
this agreement.
J. Prior to commencing the work, Licensee shall furnish Railroad with a certificate(s) of insurance,
executed by a duly authorized representative of each insurer, showing compliance with the insurance
requirements in this Agreement.
K. All insurance policies must be written by a reputable insurance company acceptable to Railroad
or with a current 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.
L. The fact that insurance is obtained by Licensee or by Railroad on behalf of Licensee will not be
deemed to release or diminish the liability of Licensee, including, without limitation, liability under the
indemnity provisions of this Agreement. Damages recoverable by Railroad from Licensee or any third
party will not be limited by the amount of the required insurance coverage.
(2) Your check in the amount of $2,500.00 to pay the required balance due of the required Right of
Entry fee. (The Folder Number 02628-66 should be written on the check to insure proper credit);
(3) All Insurance Certificates, naming Union Pacific Railroad Company as additional insured;
(4) Your executed and completed Railroad Protective Insurance applications & payment should be
directly forwarded to: Marsh, USA, PO Box 419105, Kansas City, MO 64141-6105 [Fax: (816)
556-4362] (should you choose to purchase through Union Pacific's blanket carrier);
RETURN ALL OF THESE REQUIRED ITEMS TOGETHER IN ONE ENVELOPE.
DO NOT MAIL ANY ITEM SEPARATELY.
If you require formal billing, you may consider this letter as a formal bill.
If you have any questions, please contact me at (402) 544-8563..
Sincerely yours,
Jo E. Devish
Manager - Contracts - Real Estate
ROE 880702
Form Approved, AVP-Law
RIGHT OF ENTRY AGREEMENT
Folder No. 02628-66
THIS AGREEMENT is made and entered into as of August 05, 2010, by and between
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Railroad"), and
CITY OF FORT COLLINS, a Colorado municipal corporation, to be addressed at Po Box 580, Fort
Collins, CO 80522 (hereinafter the "Licensee").
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. DEFINITION OF LICENSEE.
For purposes of this Agreement, all references in this Agreement to the Licensee shall
include the Licensee's contractors, subcontractors, officers, agents and employees, and others acting under
its or their authority.
Article 2. RIGHT GRANTED,• PURPOSE.
The Railroad hereby grants to the Licensee 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 portion of Railroad's property in the vicinity of Mile Post
32.25, Fort Collins Ind Lead, at or near Fort Collins, Colorado, for the purpose of grading on railroad
property. The right herein granted to Licensee is limited to those portions of the Railroad's property
specifically described herein in the location shown on the print marked Exhibit A, attached hereto and
hereby made a part hereof, or designated by the Railroad Representative named in Article IV.
Article 3. TERMS AND CONDITIONS CONTAINED IN EXHIBITS B AND C.
The terms and conditions contained in Exhibits B and C, hereto attached, are hereby
made a part of this Agreement.
Article 4. ALL EXPENSES TO BE BORNE BY LICENSEE•
RAILROAD REPRESENTATIVE.
The Licensee shall bear any and all costs and expenses associated with any work
performed by the Licensee, or any costs or expenses incurred by the Railroad relating to this Agreement.
All work performed by Licensee on Railroad's property shall be performed in a manner satisfactory to the
representative local Manager of Track Maintenance of the Railroad or his authorized representative
(hereinafter the Railroad Representative):
Karl Shoemaker - MTM Michael Sheets - MSM
Union Pacific Railroad Company, Union Pacific Railroad Company
kdshoeml@up.com mhsheets@up.com
402.501.3849, Cell: 303.845.0083 307.745.7527, Cell 307.760.2193
Folder No. 02628-66
ROE 880702
Form Approved, AVP-Law
Article 5. TERM; TERMINATION.
A. The grant of right herein made to Licensee shall continence on the date of this
Agreement, and continue until September 30, 2010 unless sooner terminated as herein provided, or at
such time as Licensee has completed its work on Railroad's property, whichever is earlier. Licensee
agrees to notify the Railroad Representative in writing when it has completed its work on Railroad
property.
B. This Agreement may be tenninated by either party on ten (10) days written notice to the
other party.
Article 6. CERTIFICATE OF INSURANCE.
A. Before commencing any work, the Licensee will provide the Railroad with a Certificate
issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit C of this
Agreement in a policy which contains the following type of endorsement:
"Union Pacific Railroad Company is named as additional insured with respect to all
liabilities arising out of Insured's, as Licensee, performance of any work on the property
of the Railroad."
B. Licensee warrants that this Agreement has been thoroughly reviewed by its insurance
agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage and
an endorsement as required herein.
C. All insurance correspondence shall be directed to: Union Pacific Railroad Company,
Director (Attn.: Jon E. Devish - Folder No.02628-66), 1400 Douglas Street STOP 1690, Omaha,
Nebraska 68179-1690.
Article 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
Fiber optic cable systems may be buried on 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. Prior to beginning any work, the Licensee shall
telephone the Railroad at 1-800-336-9193 (a 24-hour number) to determine if fiber optic cable is buried
anywhere on the property set forth herein. If it is, the Licensee shall also comply with and be subject to
the provisions contained in Section 6 of Exhibit B.
Article 8. ENFORCEABILITY; CHOICE OF LAW; CHOICE OF FORUM.
This Agreement shall be governed, construed, and enforced in accordance with the laws
of the state of Nebraska. Litigation arising out of or connected with this Agreement may be instituted and
maintained in the courts of the state of Nebraska and Missouri 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 9. LICENSE FEE.
Licensee shall pay, and Railroad shall accept, upon the execution and return of this
instrument, the nonrefundable sum of Two Thousand Five Hundred Dollars ($2,500.00) to cover
Railroad's cost to prepare and administer this Agreement.
Folder No. 02628-66
ROE 880702
Form Approved, AVP-Laiv
Flagging charges are not included in the sum recited in the preceding paragraph, and will
be billed separately, if incurred.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF FORT COLLINS
Federal Taxpayer ID. 494-6001323
By: By:
Manager - Contracts Title:
(Pursuant to ordinance, resolution, or other evidence of proper authority to execute this instrument, a
copy of which shall be attached to the Railroad's original counter part of this document.)
Folder No. 02628-66
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NOTE: BEFORE YOU BEGIN ANY WORK, SEE
AGREEMENT FOR FIBER OPTIC PROVISION.
EXHIBIT "A"
UNION PACIFIC RAILROAD COMPANY
FORT COLLINS, CO
M.P. 32.25 to 32.35 - Fort Collins Ind Lead
License to CITY OF FORT COLLINS
REAL ESTATE DEPARTMENT
OMAHA, NE Date: 8/5/20I0
Folder: 02628-66
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ROE 880702
Form Approved, AVP-Law
Flagging charges are not included in the sum recited in the preceding paragraph, and will
be billed separately, if incurred.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF FORT COLLINS
Federal Taxpayer J.D. 494-6001323
Manager - Contracts
Title:
(Pursuant to ordinance, resolution, or other evidence of proper authority to execute this instrument, a
copy of which shall be attached to the Railroad's original counterpart of this document)
Folder No. 02628-66
ROE 920316
Fonn Approved, AVP-Law
EXHIBIT B
Section 1- NOTICE OF COMMENCEMENT OF WORK —FLAGGING.
The Licensee agrees to notify the Railroad Representative at least Ten (10) days in advance of
Licensee commencing its work and at least 24 hours in advance of proposed performance of any work by
the Licensee in which any person or equipment will be within 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
25 feet of any track. Upon receipt of such notice, the Railroad Representative will determine and inform
the Licensee whether a flagman need be present and whether the Licensee need implement any special
protective or safety measures. If. any flagmen or other special protective or safety measures are
performed by the Railroad, such services will be provided at Licensee's expense with the understanding
that if the Railroad provides any flagging or other services, the Licensee shall not be relieved of any of its
responsibilities or liabilities set forth herein.
Section 2 - LIMITATION ANMS BORDINATION 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 the
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,
one at
along or across any or all parts oho the1Lip enseelo>°to any other of lch may party for compene freely sation on or damages.ny time or times
by the Railroad without liability
b. The foregoing grant is also subject to all outstanding superior rights (including those in favor
of licensees and lessees of the Railroad's property, and others) and the right of the Railroad to renew and
extend the same, and is made without covenant of title or for quiet enjoyment.
Section 3 - NO INTERFERENCE WITH RAILROAD'S OPERATION.
No work performed by Licensee shall cause any interference with the constant, continuous and
uninterrupted use of the tracks, property and facilities of the Railroad, its lessees, licensees or others,
unless specifically permitted under this Agreement, or specifically authorized in advance by the Railroad
Representative. Nothing shall be done or suffered to be done by the Licensee at any time that would in
any manner impair the safety thereof. When
Rail os not
ad nearest nseels t track,machinery
a shall be lnos crossings eof
pt
at least 50 feet from the centerline of
Railroad's tracks except at existing open public crossings.
Section 4 - PERMITS.
Prior to beginning any work, the Licensee, at its sole expense, shall obtain all necessary permits
to perform any work contemplated by this Agreement.
Section 5 - MECHANIC'S LIENS.
The Licensee shall pay in full all persons who perform labor or provide materials for the work to
be performed by Licensee. The Licensee shall not create, permit or suffer any mechanics or
materialmen's liens of any kind or nature to be enforced against any property of the Railroad for any such
Exhibit B
ROE- 920316
Form Approved, AVP-Law
work performed. The Licensee shall indemnify and hold harmless the 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.
Section 6 - FIBER OPTIC CABLE SYSTEMS.
In addition to other indemnity provisions in this Agreement, the Licensee shall indemnify and
hold the 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 the
Licensee, its contractor, agents and/or employees, that causes or contributes to (1) any damage to or
destruction of any telecommunications system on Railroad's property, and (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. Licensee 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 7 - COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this Agreement, the Licensee shall comply with all
applicable federal, state and local laws, regulations and enactments affecting the work. The Licensee
shall use only such methods as are consistent with safety, both as concerns the Licensee, the Licensee's
agents and employees, the officers, agents, employees and property of the Railroad and the public in
general. The Licensee (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 property. If any failure by the
Licensee 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 Licensee shall reimburse and
indemnify the Railroad for any such fine, penalty, cost or charge, including without limitation attorneys'
fees, court costs and expenses. The Licensee 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.
Section 8 - SAFETY INSTRUCTIONS.
Safety of personnel, property, rail operations and the public is of paramount importance in the
prosecution of the work pursuant to this Agreement. As reinforcement and in furtherance of overall
safety measures to be observed by the Licensee (and not by way of limitation), the following special
safety rules shall be followed:
a. The Licensee 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. Tile Licensee
shall have proper first aid supplies available on the job site so that prompt first aid services can be
provided to any person that may be injured on the job site. The Licensee shall promptly notify the
Railroad of any U.S. Occupational Safety and Health Administration reportable injuries occurring to any
person that may arise during the work performed on the job site. The Licensee shall have a non -delegable
duty to control its employees, while they are on the job site or any other property of the Railroad to be
certain they do not use, be under the influence of, or have in their possession any alcoholic beverage or
illegally obtained drug, narcotic or other substance that may inhibit the safe performance of work by an
employee.
Exhibit B