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HomeMy WebLinkAbout110030 UNION PACIFIC RAILROAD CO - CONTRACT - CONTRACT - UNION PACIFIC RAILWAY STA M455-046, 12690STA M455-046, 12690 Lincoln Ave. and Linden St. Phase III, Fort Collins Consolidation, UPRR CONTRACT THIS CONTRACT, made this / 7 day of 20O3 by and between the State of Colorado for the use and benefit of THE STATE DEPARTMENT OF TRANSPORTATION, DIVISION OF ENGINEERING AND MAINTENANCE, hereinafter referred to as the State, the CITY OF FORT COLLINS, hereinafter referred to as the Local Agency, and UNION PACIFIC RAILROAD COMPANY, hereinafter referred to as Union Pacific or Railroad Company. WHEREAS, authority exists in the Law and Funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment in Program 2000, Fund Number 400, Appropriation Code 010, Function 3987, Object 2311 1 P, Phase U, Originating Unit 9991, Reporting Category 4310, Contract Encumbrance Number 12690, Contract Encumbrance Amount $500,000; and . WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, this Contract is executed by the State under authority of Section 43-1- 110, CRS, as amended, by both the State and the Local Agency under authority of Sections 29-1-203 and 43-2-144, CRS, as amended, and by the Local Agency pursuant to an appropriate ordinance or resolution duly passed and adopted by the Local Agency, a copy of which is attached hereto and hereby made a part hereof, and WHEREAS, it is desirable, for the benefit, convenience and safety of the public using the state highway system and for the parties hereto, that the improvements provided by this contract be accomplished; and WHEREAS, the proposed improvements provided for herein are located in the City of Fort Collins, at Lincoln Ave. and the Railroad Company s track, National Inventory Crossing ID No. 906-295A, and at Linden St. and the Railroad Company's track, National Inventory Crossing ID No. 906-296G, at Railroad Company mileposts 31.19-32.09 respectively; and WHEREAS, the Railroad Company will shift and relocate track, and install concrete crossing surfaces, all at Lincoln Ave. and at Linden St.; and WHEREAS, the State has allocated a limited amount of State funds under the State's project number STA M455-046, 12690; and and conditions of this contract. Provided, however, that charges incurred by the Local Agency prior to the issuance of the written Notice to Proceed shall not be charged by the Local Agency to the project, and shall not be reimbursed by the State. The Local Agency shall prepare and submit to the State monthly charge for costs incurred relative to the project, in accordance with the State's standard policies and procedures. Notwithstanding the preceding paragraphs of Article II, Section J, the parties hereto recognize and understand that additional State funds are not available for project STA M455-046,12690. The project budget of $500,000 shall not be increased by contract amendment. If actual project costs exceed the total project budget, the Local Agency shall bear 100% of the excess costs. ARTICLE III COMMITMENTS ON THE PART OF THE RAILROAD COMPANY SECTION A. Detailed plans, specifications and project special provisions for project no. STA M455-046, 12690, which provides for project work at both Lincoln Ave. and at Linden St., as described in Article f, Section A (8) herein, on or adjacent to Railroad Company property, are made a part hereof by reference and a copy of the plans, specifications and project special provisions shall be furnished to the Railroad Company by the Local Agency. All plans, specifications and project special provisions affecting the interests of the Railroad Company shall be subject to approval by the Railroad Company. All work performed on Railroad Company property pursuant to this contract shall be done strictly in accordance with said plans, specifications and project special provisions as heretofore or hereafter approved by the State, and the Railroad Company, but notwithstanding any consents or approvals given by the Railroad Company, the Railroad Company shall not be responsible for the design, details or construction. The Local Agency confirms that no work of demolition or new construction is to commence until Railroad Company's Chief Engineer or his authorized representatives have given final approval to all plans and specifications. SECTION B. RAILROAD WORK 1. Force Account Work. The Railroad Company agrees to accomplish by force account all the railroad work defined in Article I, Section A, as provided hereunder, provided that the Railroad Company shall obtain written notice to proceed from the State before it starts to perform or authorizes the performance of such railroad work. In the event that such work is initiated prior to the issuance by the State of the written notice to proceed, the Railroad Company shall be solely responsible for all costs incurred for such work. 10 2. Plans and Estimate. The Railroad Company shall submit a general plan showing the railroad force account work along with an itemized estimate (Exhibit E) to the Local Agency and to the State for the proposed railroad work and must receive approval of such plans and estimate together with a written notice to proceed from the State prior to beginning any railroad work or incurring any expense, unless otherwise authorized by the State. The plans and estimate (Exhibit E) when and as approved by the parties hereto, shall govern the installation of the railroad work. The cost estimate shall conform to the requirements of 23 CFR, Part 140, Subpart I, and shall be of the form prescribed in 23 CFR, Part 646, Subpart B. Any Railroad Company use of an engineering consultant to perform the Exhibit E cost estimate must comply with all applicable provisions of, and obtain approvals required by paragraph 646.216(b) of 23 CFR. 3. Changes in the Railroad Work. No change shall be made in the railroad work which will increase the cost shown on the estimate (Exhibit E), or which will alter the character or scope of the railroad work, without prior written concurrence from the Local Agency and prior written authorization by the State. The Railroad Company shall be responsible for cost increases resulting from unauthorized changes in the railroad work. 4. Maintenance. Upon completion of construction of the railroad work, the Railroad Company shall maintain, at Railroad Company expense, the railroad work. These maintenance requirements do not impose upon the Railroad Company any responsibility for care or maintenance of pre-existing drainage not affected by or directly related to the project work herein described, nor for care or maintenance of the Local Agency improvements made hereunder. SECTION C. UNION PACIFIC'S RELATIONS WITH LOCAL AGENCY'S CONTRACTOR 1. Insurance - Notice to Local Agency. The Local Agency agrees that it shall not authorize any contractor to enter upon or perform any work contemplated by this contract across or adjacent to railroad property unless or until the insurance specified in Article H, Section H, paragraph 3 hereof and in the railroad insurance exhibit, Exhibit D, hereof shall be delivered to and accepted by Union Pacific; and that said insurance shall be kept in full force and effect during the times any project work is being performed across or adjacent to railroad property by any contractor or subcontractor. Union Pacific further agrees to notify the Local Agency within twenty calendar days following delivery of said certificates and policies of insurance to Union Pacific, whether said insurance has been accepted or rejected. 2. Contractor's Methods and Procedures - Notice to Local Agency. Union Pacific agrees to advise the Local Agency in writing, within 20 days after submission thereof by the Contractor or the Local Agency, to Union Pacific whether or not the Contractor's proposed methods and procedures for performing the project work across or adjacent to railroad property are satisfactory. It 3. Local Agency's Construction Contract Requirements. In conformity with the requirements of 23 CFR, Part 646, Subpart B and Part 140, Subpart I, Union Pacific agrees to furnish the Local Agency detailed information set forth in Article II, Section G, paragraph 7 hereinafter, which data shall be included in the Local Agency's Construction Contract Provisions for the project. 4. Union Pacific's Right to Stop Work. If the Local Agency's contractor shall prosecute the project work across or adjacent to railroad property contrary to Local Agency's plans and specifications or if such contractor shall prosecute the project work in a manner deemed hazardous by Union Pacific to its properties and facilities, or if the insurance prescribed in Article H, Section H, paragraph 3 hereof shall be cancelled during progress of said work, Union Pacific shall have the right to stop the project work across or adjacent to railroad property until the acts or omissions of such contractor have been fully rectified to the satisfaction of Union Pacific's Chief Engineer, or until additional insurance has been delivered to and accepted by Union Pacific's insurance department. Such work stoppage shall not give rise to or impose upon the Union Pacific any liability to the Local Agency or any contractor. In the event the Union Pacific shall stop the project work herein provided, the Union Pacific agrees to give immediate notice thereof, in writing, to the Local Agency at the City of Fort Collins, P. O: Box 580, Fort Collins, CO 80522. 5. Railroad Company Billings. Local Agency. Railroad Company shall bill the Local Agency for the actual incurred cost of the railroad work, as defined in Article I, Section A, herein in a not to exceed amount of $233,239, as shown in the estimate (Exhibit E). This cost shall not be exceeded unless covered by a supplemental contract executed prior to incurring additional costs. Actual incurred costs shall be determined in accordance with 23 CFR, Part 140, Subpart I. Labor costs for any railroad work performed by Railroad Company forces shall be in accord with the then current working agreements between the Railroad Company and its employees. The billings shall reference the State's project no. STA M455-046, 12690, and shall be sent to the Local Agency's Engineering Department, at the City of Fort Collins, P. O. Box 580, Fort Collins, CO 80522. Progress billings of incurred costs for such railroad work are acceptable in minimum amounts of $500 for each billing. In addition, if the Local Agency or the Local Agency's contractor perform work within 25 feet of the centerline of the Railroad Company's track, flagging and protective services by the Railroad Company are required. The estimated daily cost for flagging is $500 based on a 10-hour day. Any costs incurred by the Railroad Company for flagging and protective services are over and above the Railroad Company estimate as shown in the estimate (Exhibit E). 12 Final Bills Within One Year of Project Completion. Railroad Company shall provide its final and complete billings of all incurred costs within one year following completion of the project. The Local Agency shall provide the Railroad Company with written notice of the completion of work, thus marking the beginning of the one year period. If Railroad Company does not present the final bill to the Local Agency as described herein within that one year time period, as required by paragraph 140.922 of 23 CFR, then previous payments to the Railroad Company for the railroad work may be considered as final and complete reimbursement for that work, and the project may be closed out with no further financial obligation. ARTICLE IV COMMITMENTS ON THE PART OF THE STATE SECTION A. PROJECT ADMINISTRATION 1. Approvals by the State. The State, acting in the relative position of the FHWA, shall be responsible for approving the various work functions relative to this project. The work functions include, but are not limited to, preliminary engineering, right-of-way, utility adjustments, railroad work, and work by the Local Agency. 2. Notice to Proceed. The State shall issue written notices to proceed for the various work functions as may be required. Any work function performed by the Local Agency or the Railroad Company prior to the issuance of the Notice to Proceed shall not be eligible for reimbursement. Such written notice to proceed shall act as a guarantee from the State that the funding for all work authorized therein is available and is set aside for the work. SECTION B. STATE'S SUPPORT SERVICES AND CHARGES The State shall perform the support services necessary for the approval and administration of this Contract. These services may be performed in preparation for any conditions or requirements of this Contract. At the request of the Local Agency, the State may also provide other assistance under this Contract as agreed in writing. The State will bill the Local Agency only for the non -participating costs incurred by the State in performance of this Contract. If the Local Agency terminates this Contract prior to project approval or completion for any reason, then all actual incurred costs of such services and assistance provided by the State shall be at the sole expense of the Local Agency. At the request of the Local Agency, the State may provide other assistance as agreed to in writing. The Local Agency shall reimburse the State the actual costs incurred by the State in performing such assistance. ARTICLE V ADDITIONAL PROVISIONS 13 SECTION A. FUNDING AVAILABILITY Additional State funds are not available for project STA M455-046,12690. If actual project costs exceed the total budget of $500,000, the Local Agency shall bear 100% of the excess costs. SECTION B. CANCELLATION In the event delays or difficulties arise in securing necessary approvals, or in acquiring necessary right of way, or in settling damages or damage claims, or for any other reason, which, in the opinion of the State render it impracticable to utilize funds from the current appropriation for the construction of the project, then at any time before actual construction is started pursuant to proper approval or authority, the State may serve formal notice of cancellation upon the Local Agency and/or the Union Pacific and this contract shall thereupon become null and void. In the event of any such cancellation the Local Agency shall reimburse the Union Pacific for all related preliminary engineering costs incurred by it prior to the effective date. SECTION C. CIVIL RIGHTS The parties hereto, in the prosecution of the work herein prescribed, shall adhere to the requirements of the Civil Rights Exhibit, and shall include the provisions of the said Civil Rights Exhibit in every subcontract; including procurement of materials and leases of equipment, unless exempt by the Regulations, orders or instructions issued pursuant thereto. SECTION D. TERM The term of this contract, except for the provisions contained in Article II, Section I, paragraph 3, shall continue through completion and final acceptance of this project by the State and the Local Agency. The covenants regarding maintenance of improvements constructed under this contract shall remain in effect in perpetuity or until such time as the Local Agency or the Railroad Company is, by law or otherwise, relieved of such responsibility. SECTION E. SUCCESSORS AND ASSIGNS All of the covenants and provisions hereof shall insure to the benefit of and be binding upon the parties hereto, their successors and assigns. SECTION F. SPECIAL PROVISIONS The Special Provisions attached hereto immediately following the signature page are hereby made a part of this contract. For the purpose of interpretation of said Special Provisions, the Local Agency shall be known as "the contractor." 14 SECTION G. SIGNATURE AUTHORITY The Union Pacific represents and warrants that it has taken all actions that are necessary or that are required by its procedures, bylaws, or applicable law, to legally authorize the undersigned signatory to execute this contract on behalf of the Union Pacific to its terms. 15 Page 1 of 2 Signature Pages Project STA M455-046, 12690 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their duly authorized officers the day and year first above written. In order to expedite contract execution, the parties hereto will execute separate signature pages and said pages are considered as part of the same document. ATTEST: STATE OF COLORADO BILL OWENS, GOVERNOR By �/ /61, Chief Clerk A=W71Execudve Director DEPARTMENT OF TRANSPORTATION ATTEST: By C11'l/ j Title Assistant_ Secret ARTHUR L. BARNHART State Controller BY u UNION PACIFIC RAILROAD COMPANY BY e Title _ CHIEF ENGI EER Federal Employer Identification No. 94-6001323 Engineering Dept., 1416 Dodge St., Omaha, NE 68179 APPROVED: KEN SALAZAR Attorney General By gZ-� AMES MARTIN Assistant Attorney General 16 Page 2 of 2 Signature Pages Project STA M455-046, 12690 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their duly authorized officers the day and year first above written. In order to expedite contract execution, the parties hereto will execute separate signature pages and said pages are considered as part of the same document. ATTEST: CITY OF FORT COLLINS, COLORADO By By 4� Title LQ �1N1�/�/� Title Federal Employer Identification No. 84-6000587 P. 0. Box 580, Fort Collins, CO 80522 .. . :.l; Deputy17 SPECIAL PROVISIONS f't CONTROLLER'S APPROVAL I . This contract shall not be deemed valid oath it shall have been approved by the Controller of the State of Colorado or such assistant as he may designate. This provision Is applicable to any contract involving the payment of money by the State. FUND AVAILABII.iTY 2. Flawdsl obligations of the State of Colorado payable after the current fiscal year arc contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. BOND REQUIREMENT 3. If this contract involves the payment of more than filly thousand dollars for the construction, erection, repair, maintenance, or improvement of any building, toad. bridge, viaduct, turruct excavation or other public work for this Stain, the contractor shall, before entering upon the performance of any such work included in this contract, duly execute and deliver to the State official who will sign the contract, a good and sufficient bond or other acceptable surety to be approved by said official in a postal sum not Itxs thm oneaulf ofthe total amount payable by the tams of this contract. Such bond shall be duly executed by a qualified corporate stuely conditioned upon the faithful performance of the contract and in addition, shall provide that if the contractor or his subcontractors fail to duly pay for any labor, materials, team hire, sustenance Provisions, provendor or other supplies used or consumed by such contractor or his subcontractor in performance of the work contracted to be done or fails to pay any person who supplies rental machinery, tools, or equipment in the prosecution of the work the' nuelywill pay the same in an amount not exceeding the sum specified in the bond, together with interest at the rate of eight per cent per annum. Unless such bead b executed, delivered and filed, no claim in favor of the contractor arising under such contract shall be audited, allowed or paid. A certified or cashier's check or a bank money order payable to the Treasurer of the State of Colorado may be accepted in lieu of a bond. This provision is in compliance with CRS 39-26.106. 4. To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the contractor, or its employees, agents, subcontractors, or assignees pursuant to the tams of this contract DEC RUMNAT1ON AND AFFMIATIVE ACTION s. The 000hacw agreas to comply with the letter and spirit of the Colorado Antidiscrimination Act of 19s7, as amended, and other applicable law respecting disaimioation and onfair employment practices (CRS 24-34402), and as required by Executive Order, Equal Opportunity and Affirmative Action, dated April 16. 1975. Pttrsaamt thereto, the following provisions shall be contained in all State contracts orsob-contracts. During the performance of this contract, the contractor agrees as follows: (a) The contractor will not discriminate against any employee or applicant for employment because of ran, creed, color, national origin, sex, marital status, tdigom, ancestry. mental or physical handicap, or age. The contractor will take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to the above mentioned characteristics. Such action shall include, ban not be limited to the following: employment apgading, demotion, or transfer, recruitment or recruitment advatisinw,, layoffs or laminations; rates of pay or other forms of eompenaatioa; and selection fortnining, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth provisions of this non-discrimination clmuse. (b) The contractor will, in all solicitations or advertisements for employees placed by non behalfof die contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, national origin, sex, marital status, religion, ancestry, mental or physical handicap, or age- (c) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, notice to be provided by the contracting officer, advising the labor union or workers' representative of the contractor's commitment under the Executive Order, Equal Opportunity and Affirmative Action, dated April 16, 1975, and of the rules, regulations, and relevant Orders of the Governor. (it) The contractor and labor unions will furnish all information and reports required by Executive Order, Equal Opportunity and Affirmative Action of April 16. 1975. and by the rules, regulations and Orders of the Governor, or pursuant thereto, and will permit access to his books, records, and accounts by the conhading agency and the office of the Govcmor or his designs for purposes of investigation to ascertain compliance with such rules, regulations and orderL (e) A labor organiation will not exclude any individual otherwise qualified fan full membership rights in such labor organization, or expel any such individual from membership in such tabor organization or discriminate against any of its members in the full enjoyment of work opportunity because of race, creed, rotort sex, national origin, or ancestry. (f) A labor organization, or the employees or members thereof will not aid, abet, incite, compel or coerce the doing of any act defined in this contract to be disaumratory, or obstruct or ptevern any person from complying with the provisions of this contract or any order issued thereunder, or attempt, either directly or indirectly. to commit any act defined in this contract to be discriminatory. (g) In the event of the tractor's non-compliance with the non-0isoiotination clauses of this contract or with any of such rules, rogulations, or fades, this : eortlract may be canceled, terminated or suspended in whole or in part and the contractor coy be declared ineligible for father State contracts in accordance with pocedures, authorized in Executive Order, Equal Opportunity and Affirmative Action of April 16, 1975 and the rules, regulations, or orders promulgated rwh,aa-Aeaza(oFse01501M aevi3WQ"1t97 Page 1 of 2 pages m aooadanee thaewith, and inch other socians ,nay be imposed and remedies as maybe invoked as p. riled in Executive Order, Equal OPPortimily and '. A nmetive wdion of April 16. 1975, or by odes, regulations, or orders promulgated in accordance therewith, or asotherwise provided by (h) The contactor will Include the provisions of paragraphs (a) through (h) in every sub -contract and subcontractor Purchase order unless exempted by rules, regulations, ororders issued pumtmt io Exeentive Order, Equal Opportunity and Affirmative Action of April 16,1975, so that such provisions will be binding,_,,' Wou each subcontractor or vendor The contactor will take such action with respect to any sub-contacling or purchase order as the contracting agency may &met, as a meets of enforcing such provisions, Including sanctions for non-complinhce; provided, however, that in the event the contractor becomes involved In, or is threatened with, litigation, with the subcontractor or vendor as a result of such direction by the contracting agency, the contractor may request the State of Colorado to eater Into such litigation to protect the interest of the State of Colorado. COLORADO LABOR PREFERENCE 6a Provisions of CRS 8-17-101 & 102 for pefarno of Colorado labor are applicable to this contract if public we& within the State am undertaken hereunder and are financed in whole or in part by State funds. b. When a construction contract for a public project is to be awarded to a bidder, a resident bidder shall be allowed a preference against a non-resident bidder from a state or foreign coudtry equal to the preference given or required by the state or foreign country in which the non-resident bidder is a resident if it is determined by the officer responsible for awarding the bid that compliance with the subsection .06 may cause denial of federal funds which would otherwise be available orwould otherwise be inconsistent with requirements of Federal law, this subsection shall be suspended, but only to the extent necessary to prevent denial of the moneys or to eliminate the inconsistency with Federal requirements (CRS 8-19-101 and 102). GENERAL 7. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this .. conuact. Any provision of this contract whether or not incorporated herein by reference which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, riles, and regulations shall be considered null and void. Nothing contained in any provision incorporated harem by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any prevision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contact is capable of execution . 8. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established. I ,- 9. Pursuant to CRS 24-30.202A (as amended), the state controller may withhold debts owed to state agencies under the vendor offaa Intercept system for. - (a) unpaid child support debt or child support arreaages; (b) unpaid balance of tax, accrued interest, or other charges specified in Article 22, Title 39, CRS; (c) unpaid loans due to the student ban division of the department ofhigher education; (d) owed amounts required to be paid to the unemployment compensation fund; and (e) other unpaid. debts owing to the state or any agency thereof; the amount of which is found to be owing as a result of final agency determination or reduced to judgment as certified by the controller. 10. The signatories aver the they are familiar with CRS 18-8-301, a seq., (Bribery and Corrupt Influences) end CRS 18-8-401, et seq, (Abuse of Public Office), and that no violation of such provisions is present - 11. The signatories.aver that to their hwwledgq no state employee has any personal or beneficial interest whatsoever In the service or property described hetem. (Full Legal Namej'�C By Position (Title) Social Security parties hereto have executed. I.D. Number If Corporation, Town/City/County, or Equivalent Aaest (Affix Seal) By Corporate Secretary, or Equivalent, To Ity ATTORNEY By Oale A. Norton Clerk State of Colorado ROY ROMER, GOVERNOR By. APPROVAL: APPROVALS C #R11b7asa;7 By For- "C-02C (0M4D60197) Revised 06n1197 Page 2 which is the last of 2 pages WHEREAS, the parties hereto now desire to complete this Phase III Fort Collins Consolidation project; and WHEREAS, Federal regulations (23 CFR, Part 646, Subpart B) require the State to contract with railroad companies on Federal -aid projects involving use of railroad property or adjustment to railroad facilities; and WHEREAS, the Local Agency and the Railroad Company understand that, pursuant to paragraph 646.220 of 23 CFR, the State is responsible for issuing written authorization for all phases of the work described herein, and that the costs for such work will be eligible for reimbursement only if the work is performed after written authorization by the State; and WHEREAS, the Local Agency has made application to the Public Utilities Commission, hereinafter referred to as PUC, for railroad force account work and grade crossing improvements, all in the City of Fort Collins, to provide safer crossings; and WHEREAS, the Local Agency will construct or cause to be constructed, the project work as herein defined; and WHEREAS, the Local Agency will be responsible for maintaining the project work constructed hereunder, and -the Railroad Company will be responsible for maintaining the track work and crossings installed hereunder; and WHEREAS, the Railroad Company is adequately staffed and suitably equipped to undertake and satisfactorily complete the proposed improvements, and can perform the railroad work more advantageously and more cost effectively than the State; and WHEREAS, it is in the public interest that the railroad work be performed by Railroad Company forces, on a Force Account basis; and NOW, THEREFORE, it is hereby agreed that: SECTION A. ARTICLE I GENERAL PROVISIONS FHWA = Federal Highway Administration 2. MUTCD = The Manual on Uniform Traffic Control Devices for Streets and Highways 3. PUC = Public Utilities Commission of Colorado 4. CFR = Code of Federal Regulations EXHIBI-L.L. ORDINANCE NO. 127, 2000 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROPRIATING UNANTICIPATED REVENUE IN THE CAPITAL PROJECTS FUND DOWNTOWN RAILROAD TRACK CONSOLIDATION CAPITAL PROJECT TO BE USED FOR IMPROVEMENTS ASSOCIATED WITH PHASE III OF THE RAILROAD CONSOLIDATION PROJECT WHEREAS, in 1992, the City of Fort Collins, the Burlington Northern Railroad, the Union Pacific Railroad and the Colorado Department of Transportation partnered to develop a railroad track consolidation plan which would improve train operations and eliminate a majority of tracks in the downtown area and reduce delays to motorists, traffic construction, air pollution, and improve the safety of City streets; and WHEREAS, since 1992, a total of $1,800,000 has been appropriated for the railroad consolidation project (the "Project'); and WHEREAS, the City has been awarded a $500,000 grant from the Colorado Department of Transportation to be used for design and construction of Phase III of the Project, including upgrading the crossings, relocating and reconstructing track, and designing and constructing street improvements related to the crossings at Linden Street and Lincoln Avenue; and WHEREAS, no City matching funds are required; and WHEREAS, Article V, Section 9, of the Charter of the City of Fort Collins permits the City Council to make supplemental appropriations by ordinance at any time during the fiscal year, provided that the total amount of such supplemental.appropriations, in combination with all previous appropriations for that fiscal year, does not exceed the then current estimate of actual and anticipated revenues to be received during the fiscal year; and . WHEREAS, it is the desire of the Council to appropriate the sum of $500,000 in unanticipated revenue in the Capital Projects Fund Downtown Railroad Track Consolidation project to be used for the design and construction of Phase III,improvements to the railroad tracks and railroad crossings at Linden Street and Lincoln Avenue. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that there is hereby appropriated for expenditure from unanticipated revenue in the Capital Projects Fund Downtown Railroad Track Consolidation Project, the sum of FIVE HUNDRED THOUSAND DOLLARS ($500,000), from a grant from the Colorado Department of Transportation, to be used for the design and construction of Phase III improvements to the railroad crossings at Linden Street and Lincoln Avenue. ' Introduced and considered favorably on first reading and ordered published this 19th day of September, A.D. 2000, and to be presented for final passage on the 3rd day of October, A.D. 2000. - C4� %/ )e- _ Mayor Pro Tern ATTEST: MI\_ \�Lem Kai M Passed and adopted on final reading this 3rd day of October, A.D. 2000. Mayor ATTEST: _EA ORDINANCE NO. 70, 1993 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE CERTAIN INTERGOVERNMENTAL AGREEMENTS WHEREAS, Article II, Section 16, of the City Charter empowers the Council, by ordinance or resolution, to enter into contracts with other governmental bodies to furnish governmental services and make charges for such services, or enter into cooperative or joint activities with other governmental bodies; and WHEREAS, Section 29-1-203, C.R.S., also provides that governments may cooperate or contract with one another to provide certain services or facilities when such cooperation or contracts are authorized by each party thereto with the approval of its legislative body or other authority having the power to so approve; and WHEREAS, certain of the intergovernmental agreements executed by the City are routine in nature; and WHEREAS, the City Council considers it to be in the best interests of the City that the City Manager or his designee should be authorized to execute such routine agreements without the necessity of Council review and approval on a case -by -case basis. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Manager or his designee is hereby authorized to execute agreements between the City and other governmental entities when the proposed agreement: (1) involves the direct, monetary payment of less than Five Thousand Dollars ($5,000) consideration by the City and, in the judgment of the '`City "Manager, does not entail any significant policy considerations; or (2) is in furtherance of a policy, work plan item, project or agreement which has been specifically approved by the City Council, and: (a) the execution of the agreement is required by state or federal law; or (b) any direct, monetary payment to be made by the City under the terms of the agreement does not exceed Fifty Thousand Dollars ($50,000). Section 2. That the City Manager shall forthwith notify the Council of the execution of any agreement under the authority granted in Section 1 above which entails a City expenditure of more than Twenty-five Thousand Dollars ($25,000). 1 Section 3. That all other intergovernmental agreements or cooperative activities between the City and other governmental entities not meeting the criteria described above shall be submitted to the City Council for review, and any approval thereof shall be by ordinance or resolution of the City Council. Introduced, considered favorably on first reading, and ordered published this 6th day of July, A.D. 1993, and to be presented fo ' al passago.he 20th day of"July, A.D. 1993. r ATTEST: Passed and adopted on final reading this 20th day" July, A.D. 1 893. Mayor EXMBIT P In compliance with Title VI of the Civil Rights Act of 1964 and with Section 162(a) of the Federal Aid Highway Act of 1973, the Contractor, for itself, its assignees and successors in interest, agree as follows: A. Compliance with Regulations. The Contractor will comply with the Regulations of the Department bf Transportation relative to nondiscrimination in Federally -assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations'), which are herein incorporated by reference and made part of this contract. B. Nondiscrimination. The Contractor, with regaid to the work performed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color, sex, mental or physical handicap or national origin in the selection and retention of Subcontractors, including procurement of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix C of the Regulations. C. Solicitations for Subcontracts. Including Procurement of Materials and Equipment In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurement of materials or equipment, each potential Subcontractor or supplier shall be notified by the Contractor of the Contractor of the Contractors' obligations under this contract and the Regulations relative to nondiscrimination on the ground of race, color, sex, mental or physical handicap or national origin. D. Information and Reports. The Contractor will provide all information and reports required by the Regulations, or orders and instructions issued pursuant thereto, and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the State or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to famish this information, the Contractor shall so certify to the State, or the FHWA as appropriate, and shall set forth what efforts have been made to obtain the information. E. Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the State shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: (1) Withholding of payments to the Contractor under the contract until the Contractor complies, and/or; (2) Cancellation, termination or suspension of the contract, in whole or in part. F. Incorporation of Provisions. The Contractor will include the provisions of Paragraphs A through F in every subcontract, including procurement of materials and leases of equipf d6nt, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that, in the event the Contractor becomes involved in, or is threatened with, litigation with a Subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interest of the State and, in addition, the Contractor may request the FHWA to enter into such litigation to protect the interest of the United States. n No Text LANDSWING IN PAWWAY Exhibit c of I AINO IAINO L_ cn z 0 1111111►1►II►1► I RIVERSIDE AVE. NORTH NUTMIV IN UPRR-LINCOLN STREET RAILROAD CROSSING SKETCH I No Text LANDSCAPING PA AT Exhibit C I JEFFERSON ST. U MGR W MATERIRL IN UPRR—LINDEN STREET RAILROAD CROSSING SKETCH 5. CRS = Colorado Revised Statutes 6. The term "eligible charges" shall include only those actual incurred costs, as provided in 23 CFR, Part 140, which are directly attributable to project no. STA M455-046, 12690, and which are incurred following written authorization by the State for the various work functions except as provided in Article III, Section B. The term "railroad work," as depicted in Exhibit C, shall consist of the following work performed by Railroad Company force account method and shall include the following: Track work construction including shifting and relocating track at Lincoln Ave. and at Linden St. and installing concrete crossing surfaces at both locations. If the Local Agency or the Local Agency's contractor perform work within 25 feet of the centerline of the Railroad Company's track, flagging and protective services by the Railroad Company are required as provided herein. 8. The term "project work," as depicted in Exhibit C, shall consist of the following work performed by the Local Agency or the Local Agency's contractor: At both Lincoln Ave. and at Linden St., the south crossings will be eliminated and the north crossings will be reconstructed and widened to accommodate a sidewalk on each side of the street, as well as two travel lanes, two bicycle lanes, a right turn lane, a left turn lane, and a median will be constructed to protect the center gate post. SECTION B. EXHIBITS The exhibits listed below are attached hereto and made a part of this contract: Exhibit A - Local Agency Ordinance or Resolution Exhibit B - Civil Rights Exhibit Exhibit C - Maps showing crossing locations Exhibit D - Contractor's Right of Entry Agreement Exhibit E - Railroad Company force account estimate Contractor's Right of Entry - 07/01/00 Form Approved - AVP Law CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of Folder No. \ 20_, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter referred to as the "Rail- road"); and corporation (hereinafter referred to as the "Contractor'). RECITALS: Contractor has been hired by perform work relating to (the "work"), partially located on property of Railroad in the vicinity of [, which Work is the subject of a Contract dated Railroad and a (hereinafter " ") to between Contractor has requested Railroad to permit it to perform the work on Railroad property, and Railroad is agreeable thereto, subject to the following terms and conditions. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: ARTICLE 1 =' —DEFINITION OF CONTRACTOR For purposes of this agreement, all references in this agreement to the Contractor shall include the Contractors 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 Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing any work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS A AND A-1 The terms and conditions contained in Exhibits A and A-1, attached hereto, are hereby made a part of this agreement. CAT13V CWVKWS ROW a Enay • MAW Contractor's Right of Entry - 07/01/00 Folder No. Form Approved - AVP Law ARTICLE 4 - ALL EXPENSES TO BE "BORNE BY CONTRACTOR: RAILROAD REPRESENTATIVE The Contractor shall bear any and all costs and expenses associated with any work performed by the Contractor, or any costs or expenses incurred by the Railroad relating to this agreement. All work performed by Contractor on Railroad's property shall be performed in a manner satisfactory to the Railroad's or his authorized representative (hereinafter the "Railroad Representative") identified below: ARTICLE 5 - TERM: TERMINATION a). The grant of right herein made to Contractor shall commence on the date of this agreement, and continue until unless sooner terminated as herein 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 property. b). This agreement may be terminated by either party on ten (10) days written notice to the other party. ARTICLE 6 - CERTIFICATE OF INSURANCE a). Before commencing any work, Contractor will provide Railroad with a Certificate issued by its insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 of this agreement it 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 Contractor, performance of any work on the property of the Railroad. b). Contractor 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 [Insert mailing address] ARTICLE 7 - CHOICE OF FORUM This agreement shall be governed, construed and enforced in accordance with the laws of the state of Litigation arising out of or connected with this agreement may be instituted and maintained in the courts of the states of Nebraska and 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 8 - DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE At the request of Railroad, Contractor shall remove from Railroad property any employee of Contractor or any subcontractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any daims arising from the removal of any such employee from Railroad property. catr erPC40.aon wpd of Entry -ad.dx l Contractor's Right of Entry - 07/01/00 Folder No. Form Approved - AVP Law ARTICLE 9 - ADMINISTRATIVE FEE Contractor shall pay to Railroad Dollars ($_ ) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this agreement. ARTICLE 10 - SPECIAL PROVISIONS a). No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. b). Explosives or other highly flammable substances shall not be stored on Railroad property without the prior written approval of the Railroad Representative. written. IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate as of the date first herein (Name of Contractor) By: Title: UNION PACIFIC RAILROAD COMPANY By: Title: C',TEMPC4nftcW, WgM of EnYy•MAW Contractor's Right of Entry - 07/01/00 Form Approved - AVP Law Folder No. EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. a. The Contractor agrees to notify the Railroad Representative at least 10 working days in advance of Contractor commencing its work and at least 10 working days in advance of proposed performance of any work by the Contractor 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. 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 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 10-day notice, the Railroad Representative will determine and inform the Contractor whether a flagman need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly pay to Railroad all charges connected with such services within 30 days after presentation of a bill therefor. b. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men 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 & welfare, supplemental sickness, Railroad Retirement & UC, supplemental pension, Empl. Liability & Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect on the day of execution of this agreement. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays; two and one-half'times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between the 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, the Contractor shall pay on the basis of the new rates and charges. C. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is furnished, unless he 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 said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad Company by assignment,-,,. of such flagman to other work , even though the Contractor may not be working during such time. When it becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor must provide the Railroad a minimum of 5 days notice prior to the cessation of the need for a flagman. If 5 days notice of cessation is not given, the Contractor will still be required to pay flagging charges for the 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 10 days notice must then be given to the Railroad if flagging service are needed again after such five day cessation notice has been given Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED a. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of 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, 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 Railroad without liability to the Licensee 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 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. Exhibit A Page 1 of 4 Q%TB %CWftCWs RgM or Entry -sw.it= . - 0 Contractor's Right of Entry - 07/01/00 Folder No. Forth Approved - AVID Law No work performed by Contractor 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 Contractor at any time that would in any manner impair the safety thereof. When not in use, Contractor's machinery and materials shall be kept at least 50 feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroad's tracks except at existing open public crossings. Section 4. MECHANIC'S LIENS. The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. The 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 the Railroad for any such work performed. The Contractor 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 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. a. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, and will commence no work on the right of way until all such protection or relocation has been accomplished. b. In addition to other indemnity provisions in this Agreement, the Contractor 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 Contractor, 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/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. COMPLIANCE WITH LAWS. In the prosecution of the work covered by this agreement, the Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The Contractor shall use only such methods as are consistent with safety, both as concerns the Contractor, the Contractor's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Contractor (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 Contractor 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 Contractor shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attomeys' fees, court costs and expenses. The Contractor 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 7. 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 Contractor (and not by way of limitation), the following special safety rules shall be followed: Exhibit A Page 2 of 4 c1TELVOW adeh Wpvl of Envy .&W.dw Contractor's Right of Entry - 07/01/00 Form Approved - AVP Law Folder No. a. The Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. The Contractor 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 Contractor 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 Contractor 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, drug, narcotic or other substance that may inhibit the safe performance of work by the employee. b. The employees of the Contractor 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 wom. If flare -legged trousers are wom, the trouser bottoms must be tied to prevent catching. The employees should wear sturdy and protective work boots and at least the following protective equipment: (1) Protective head gear that meets American National Standard-Z89.1-latest revision. It is suggested that all hardhats be affixed with Contractor's or subcontractor's company logo or name. (2) Eye protection that meets American National Standard for occupational and educational eye and face protection, Z87.1-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 Contractor shall be equipped with audible back-up warning devices. If in the opinion of the Railroad Representative any of Contractor's or any of its subcontractor's equipment is unsafe for use on the Railroad's right-of-way, the Contractor, at the request of the Railroad Representative, shall remove such equipment from the Railroad's right-of-way. Section 8. INDEMNITY. a. As used in this Section, "Railroad" includes other railroad companies using the Railroad's property at or near the location of the Contractor'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: (a) injury to or death of persons whomsoever (including the Railroads o.fiFers, agents, and employees, the Contractor's officers, agents, and employees, as well as any other person); and/or (b) daiiia -'to or loss or destruction of property whatsoever (including Contractor's property, 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 Contractor agrees to indemnify and hold harmless the Railroad from 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, omission or negligence arising out of performance or nonperformance of this agreement regardless of whether contributed to in part by the negligence or fault of Railroad. However, the Contractor shall not indemnify the Railroad when the Loss is caused by the sole negligence 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 anyjury 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. Section 9. RESTORATION OF PROPERTY. In the event the Railroad authorizes the Contractor to take down any 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 Contractor, then in that event the Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same ExrrbitA Page 3 of 4 FITEMPCW Wado % wght a Enh'- SWAM Contractor's Right of Entry - 07/01/00 Form Approved - AVP Law Folder No. condition as the same were in before such fence was taken down or such other property was moved or disturbed. The Contractor shall remove all of Contractor's tools, equipment and materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF BREACH. Waiver by the Railroad of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Contractor shall in no way impair the right of the Railroad to avail itself of any remedy for any subsequent breach thereof. Section 11. ASSIGNMENT - SUBCONTRACTING. The Contractor 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 Contractor permission to subcontract all or any portion of the work herein described, the Contractor 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 A Page 4 of 4 QATB P4wftdurs wgM ofEnwy- ud.dx r Contractor's Right of Entry - 07/01/00 Folder No. Form Approved - AVP Law Exhibit A-1 UNION PACIFIC RAILROAD CONTRACT INSURANCE REQUIREMENTS Third Party Contractors Right Of Entry Agreement Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: (a) General Liability insurance providing bodily injury including death, personal injury and property damage coverage with a combined single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. This insurance shall contain broad form contractual liability with a separate general aggregate for the project (ISO Form CG 25 03 or equivalent). Exclusions for explosion, collapse and underground hazard shall be removed. Coverage purchased on a claims made forth shall provide for at least a two (2) year extended reporting or discovery period if (a) the coverage changes from a claims made forth to an occurrence form, (b) there is a lapse/cancellation of coverage, or (c) the succeeding claims made policy retroactive date is different for the expiring policy. (b) Automobile Liability insurance providing bodily injury and property damage coverage with a combined single limit of at least $2,000,000 each occurrence or claim. This insurance shall cover all motor vehicles including hired and non -owned, and mobile equipment if excluded from coverage under the general public liability insurance. (c) Workers' Compensation insurance covering Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement, and Employers' Liability, If such insurance will not cover the liability of Contractor in states that require participation instate workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self4risured, evidence of state approval must be provided. (d) Railroad Protective Liability insurance naming the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" (ISO Forth CG 00 35 or equivalent) and include pollution arising out of fuels and lubricants brought to the job site (ISO Form CG 28 31 or equivalent). A binder of insurance for Railroad Protective Liability must be submitted to the Railroad and the original policy Contractor and its insurers shall endorse the required insurance policy(ies) to waive their right of subrogation against Railroad. Contractor and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody and control. Contractor's ifisuranbeshalIr be primary with respect to any insurance carried by Railroad. The policy(ies) required under (a) and (b) above shall provide severability of interests and shall name Railroad as an additional insured. Prior to commencing the Work, Contractor shall fumish to Railroad certificate(s) of insurance evidencing the required coverage and endorsements and upon request, a certified duplicate original of any required policy. The certificates) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any material alteration including any change in the retroactive date in any claims -made" policies or substantial reduction of aggregate limits, if such limits apply, or any cancellation at least thirty (30) days prior thereto. The insurance policy(ies) shall be written by a reputable insurance company(ies) acceptable to Railroad or with a current Bests Insurance Guide Rating of B and Class VII or better, and authorized to do business in the state(s) in which the Job Site is located. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. If Contractor fails to procure and maintain insurance as required, Railroad may elect to do so at the cost of Contractor. The fact that insurance is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor, Including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. Q%TEMRCW"dj $ Plght of Enby- 8W.d= X_.: Location: Mile Post 32 +1- Ft Collins Branch r•�I�-..J.. Scope of Work & PRELIMINARY Estimate Description: Track Consolidation Protect - Final Phase r V(l V011111*, VVIVIOVV Item Onty. Unit unit Cost Engineering 1 Lot $40,000 UPRR Forces EO Construd Track 133# 213 T.F. 98 $20874 Shin Track-25%rw Renewal 600 T.F. 19 $11400 Rel"fe No. 10133M RH 1 Ea. 6.450 E6 450 Relocate No. 10133k RHTO 80% lie renewal 1 Ea. 12 000 $12 000 EO Install Track Elements NOAO LO. 1330 2 Ea. 14 500 $29 000 Install Conmie X-in s 2 -100' 200 T.F. 456 E91 200 InstallX-in Signals - Seamte i L.S. EO Remow 8 Reft No. 10 t.o.s 2 Ea. 3500 E7000 EO EO E of ment Rental 1 L.S. 10,000 E10 000 EO so Redm Track-b ContractAslsMerels 6194 T.F. EO - 2660 -- so so so $0, r _. EO EO EO EO EO EO EO EO EO E0 0 so $0 $o CwUn endes 10.00% $18792 Subtotal -so $246716 E2650 EsffmstedbYJEP 07.101r99mv.1011WO h:lExwMco1hns.x1s Total $244,066 SECTION C. REFERENCE DOCUMENTS The following are made a part of this contract by reference, the same as if attached hereto including any supplements or amendments thereto dated prior to the date of this contract. 23 CFR Part 140 Subpart I 23 CFR Part 646 Subpart A 23 CFR Part 646 Subpart B MUTCD Dated 1988 ARTICLE H COMMITMENTS ON THE PART OF THE LOCAL AGENCY SECTION A. PRE -CONTRACT_ ADMINISTRATIVE TASKS Certain administrative tasks are necessary to be performed prior to execution of this Contract and the Local Agency agrees that the costs of those tasks, whether incurred by the Local Agency or the State shall be eligible for reimbursement from project funds. Said tasks include, but are not limited to, preparation of this Contract. SECTION B. PUC APPLICATION The Local Agency has made application to the PUC requesting a PUC order providing for the improvements described herein. The Local Agency shall submit a copy of this fully executed Contract to the PUC as a late -filed exhibit. The Local Agency shall participate in any hearing before the PUC in this matter. The State's issuance of authorization to proceed with the railroad work shall be contingent upon PUC approval. SECTION C. UTILITIES The Local Agency shall be responsible for obtaining proper clearance or approval, in writing, or formal agreement if utility adjustments are required, from utility companies which may be involved in the project. The Local Agency shall furnish the State with documentation of such clearance or approval prior to installation of the proposed improvements. SECTION D. RIGHT OF WAY The Local Agency shall provide written certification to the State that the proposed project will be constructed on existing right of way, or that if right of way is acquired for the completion of the project that such acquisition was made in accordance with FHWA and State regulations. SECTION E. COST ESTIMATES Prior to execution of this Contract, the Local Agency shall review the Railroad Company's plan and estimate (Exhibit E) for the railroad work defined in Article I, Section A, and shall notify the State, in writing, whether the estimate is acceptable as a basis for reimbursing the Railroad Company for eligible charges. The Local Agency shall also provide the State with the Local Agency's cost estimate for construction zone signing, including detouring of traffic if required, pavement marking, and any other work that the Local Agency will be responsible for in connection with this crossing improvement. The State will assist in determining these costs if requested by the Local Agency. SECTION F. CROSSING IMPROVEMENT WORK The Local Agency shall coordinate the crossing improvement work and shall inspect the railroad work performed by Railroad Company forces. The Local Agency shall not initiate or authorize any crossing improvement work, including the railroad work until the State has issued the Article IV, Section A (2) notice to proceed to the Local Agency and the Railroad Company. In the event that such work is initiated by the Local Agency prior to issuance of the notice to proceed, the Local Agency shall be solely - responsible for all costs incurred for work performed prior to such issuance. After receipt of the notice to proceed from the State, the Railroad Company shall notify the Local Agency and the State at least ten working days in advance of beginning the railroad work so that the Local Agency can arrange for construction zone traffic control as required in the traffic control plan shown in the plans for the project, and the State can arrange for administration and inspection. The Local Agency shall also be responsible for the application of pavement markings as required by MUTCD. The Railroad Company shall furnish the Local Agency and the State a copy of the completion notice the Railroad Company furnishes to the PUC. SECTION G. LOCAL AGENCY ACTIVITIES 1. Plans. Specifications. and Estimate. The Local Agency shall prepare design plans, specifications and estimate for the project work in accord with the State's Roadway and Bridge Design Manuals and Standard Specifications for Road and Bridge Construction. Said plans, specifications and estimate shall govern the installation of the project work. The cost estimate shall be of the form prescribed in 23 CFR, Part 646, Subpart B. Any Local Agency use of an engineering consultant to perform the design, specifications and estimate must comply with all applicable provisions of 23 CFR 172. 2. Advertisement for Bids - Contract. The Local Agency shall advertise the invitation for bids and enter into a construction contract with the lowest responsible bidder for the project work across or adjacent to Union Pacific's property. 3. Construction by the Local Agency. The Local Agency shall perform, or cause to be performed, in manner acceptable to the Union Pacific, all project work across and adjacent to the Union Pacific's property in accordance with the approved plans, specifications and project special provisions. 4. Supervision by the Local Agency. The Local Agency shall maintain supervision over the operations of its contractor while performing project work across or adjacent to the Union Pacific's property. However, at all times such contractor shall be considered an independent contractor, and not an employee of the Local Agency. 5. Plans and Specifications. Detailed construction plans and specifications for the portion of the project work, for project no. STA M455-046, 12690, on or across the Union Pacific's property, shall be famished to the Union Pacific by the Local Agency at the Local Agency's expense. Work across or adjacent to railroad property not provided for by said plans and specifications, shall be done or performed only by and with the prior written consent of the Union Pacific. 6. Utilities. The Local Agency's construction contract shall include provisions that its construction contractor take such measures as the Union Pacific and the Local Agency may agree upon in writing respecting any utilities located upon the Union Pacific's right of way as hereinafter provided. It is understood and agreed that the owner of any utility, located on the property, retains the right to move, repair, recondition or relocate the same. The Local Agency shall require that if, during progress of the project work, the Local Agency's contractor shall discover any utility that has a right to be on the Union Pacific's right of way, but that is not specifically mentioned and provided for elsewhere on the plans for the project work, which utility must be moved, repaired, reconditioned or relocated because of the construction of this project, the Local Agency's contractor shall initiate immediate notice thereof to the Local Agency and the Union Pacific, and the Local Agency will furnish directions respecting the same; but, unless otherwise agreed upon between the Local Agency and the Union Pacific, the Local Agency will authorize its contractor to make only such temporary or emergency repairs as may be required to protect and safeguard the utility and the property of the Union Pacific prior to commencement of work thereon by the owner of the utility or the Union Pacific. When such operations are undertaken by the owners of the utility or the Union Pacific, the Local Agency will require its contractor to cooperate to the extent that ample protection of such work will be provided, to the end that the entire project contemplated by this contract may be expedited. The terms "utility" and "utilities" as used herein include all properties and facilities of any person, firm or corporation constituting any part of the utility system, including, but not limited to pipe lines, wire lines, fiber optic lines, tube lines, water and gas mains, electrical conduits, sewer pipes, overhead wiring, and supporting structures and appurtenances. 7. Protective Services (Specifications for Construction). In consideration of the requirements of 23 CFF, Part 646, Subpart B, and Part 140, Subpart I, the Local Agency agrees that any contract awarded to any contractor as herein provided will include in the specifications for construction the following general information: a. The provisions of this contract applicable to the protective services Union Pacific may require during the performance of the project work across or adjacent to railroad property. b. A list of the number and the classifications of the Union Pacific's employees that may be furnished by the Union Pacific during progress of the project work and the applicable rates of pay of such employees and other charges that are to be an obligation of the Local Agency's contractor for reimbursement to the Union Pacific. C. The times and manner in which the Union Pacific will submit its billings to the Local Agency. 8. Advance Warning Protection. The Local Agency shall require its contractor to furnish, maintain and install advance warning signs or barricade protection which maybe required for the duration of the project work for the protection of the Union Pacific's facilities and the work contemplated hereunder. SECTION H. LOCAL AGENCY'S CONSTRUCTION CONTRACTOR ACTIVITIES 1. Contractor's Defaults and Omissions. To the extent authorized by law, the Local Agency shall require its contractor to correct or eliminate any defaults or omissions of Local Agency's contractor for all project work performed relative to this contract. 2. Contractor's Operations. In consideration of the premises and of the rights granted to the Local Agency in Article II, Section H hereof, the Local Agency hereby agrees to include in its construction contract provisions which require its contractor to keep and perform the following covenants, conditions and stipulations: a. Notice. The Local Agency shall require all contractors to provide to Railroad Company the notifications that are required in Railroad Company's Contractor's Right of Entry Agreement. b. Contractor's Methods and Procedures. Unless methods and procedures are otherwise provided for in the construction plans and specifications approved by the Union Pacific and the Local Agency, the Local Agency's contractor and the Union Pacific shall agree, in advance of the contractor performing the project work, upon methods and procedures covering all construction across or adjacent to railroad property and, when required by the Union Pacific, the contractor shall submit such proposals in writing. The contractor shall at all times keep covered all pits or openings near or under tracks, except during the time required for actual operations in making such pits or openings and performing work therein. Provisions of this paragraph shall not be construed as relieving the contractor of or subjecting the Union Pacific or the Local Agency to any responsibility or liability for the contractor's operations, methods and procedures. C. Contract and License. The Local Agency shall require in its contract with its contractor performing project work under Local Agency's project no. STA M455-046, 12690, on Railroad Company properties pursuant to this contract, that its contractor shall enter into an agreement with the Railroad Company in the form of attached Exhibit D, and containing the covenants, conditions, and stipulations set forth therein. 3. Contractor's Insurance. The Local Agency shall require its contractor to furnish to the Local Agency the certificates and policies of insurance as described in the Contractor's Right of Entry Agreement, and the Local Agency shall deliver the same directly to the Union Pacific. All certificates and policies of insurance required hereunder shall comply with the requirements of 23 CFR, Part 646, Subpart A and as set forth in the Contractor's Right of Entry Agreement. Such insurance coverage shall be for: a. All damages arising out of bodily injuries to or death of one or more persons. b. All damages arising out of injury to or destruction of property. The Local Agency's contractor or its subcontractors shall not be allowed to enter upon or perform any project work on Railroad Company's properties unless or until the aforesaid insurance shall have been accepted in writing by the Railroad Company. All such insurance shall be kept in full force and effect during all times the Local Agency's contractor is performing any such work on or adjacent to the Railroad Company's properties. 4. Clearances. The Local Agency shall include provision in its construction contract which requires its contractor to abide by all clearance requirements as described in the Contractor's Right of Entry Agreement. 5. Crossings and Roadways. The Local Agency shall include provisions in its construction contract that the contractor shall only cross Union Pacific's tracks and right of way at existing open public crossings. If Local Agency's contractors need to cross at other locations, the contractor shall execute Union Pacific's Contractor's Road Crossing Agreement and be responsible for all costs and expenses in Railroad Company's installation and removal of the contractor's road crossing. 6. Delay to Trains. The Local Agency shall require its contractor to furnish, maintain and install, during performance of the project work, all advance warning signs or barricade protection that are expressly required by the Railroad Company for the duration of the project work. M 7. Protection of Fiber Optic Cable System. The Local Agency agrees to include the following provisions in its contract with any contractor performing any project work on Union Pacific's property: "Fiber optic cable systems may be buried on the Union Pacific'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. The contractor shall telephone Union Pacific during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour number for emergency calls) to determine if fiber optic cable is buried anywhere on Union Pacific's premises within the limits of the project. If it is, the contractor shall telephone the telecommunications companies involved, arrange for a cable locator and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on Union Pacific's premises. 8. Subcontractors. The Local Agency shall require its contractor to be and remain primarily liable and responsible to the Railroad Company for all acts or omissions of any subcontractor as described in the Contractor's Right of Entry Agreement. SECTION I. LOCAL AGENCY OBLIGATIONS 1. Obligation to Union Pacific's Tenants. The Union Pacific shall have no obligation with respect to removing, relocating, or reinstalling the facilities of its lessees or licensees, required to be removed, relocated or reinstalled incidental to the Local Agency's construction. The Local Agency shall make all arrangements with the lessees and/or licensees, which arrangements shall be subject to the approval of the Union Pacific. 2. Coordination of Work. The Local Agency's City Engineer, P. O. Box 580, Fort Collins, CO 80522, telephone 970 667-4670, is designated to coordinate the project work provided for herein. 3. Maintenance. Upon completion of construction of the project work, the Local Agency shall maintain, repair, renew, and reconstruct, at Local Agency expense, the project work in accordance with standard maintenance procedures. These maintenance requirements do not impose upon the Local Agency any responsibility for care or maintenance of pre-existing drainage not affected by or directly related to the project work herein described, nor for care or maintenance of the Union Pacific's roadbed, communication and signal lines, tracks and appurtenances. SECTION J. PROJECT PAYMENT PROVISIONS The State shall reimburse the Local Agency for incurred costs relative to the project following the State's review and approval of such charges, subject to the terms