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HomeMy Public PortalAboutORD10988 ® BILL NO. 87-176 SPONSORED BY COUNCILMAN SORGMEYER ORDINANCE NO. /O 9 Af AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRACT WITH THE MISSOURI PACIFIC RAILROAD COMPANY FOR RUBBERIZED CROSSINGS ON INDUSTRIAL DRIVE AND JAYCEE DRIVE. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and Clerk are hereby authorized and directed to execute a contract with the Missouri Pacific Railroad Company for rubberized crossing on Industrial Drive and Jaycee Drive. . Section 2. The contract shall be substantially the same in form and content as that contract attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed Approved drA Officer yor ATTEST: r City Clerk UNION PACIFIC RAILROAD COMPANY CONTRACTS&REAL ESTATE DEPARTMENT B.E LEE ROOM 1211 GENERAL DIRECTOR 1119 DODGE STREET R.F.NIEHAUS ' OMAHA,NEBRASKA 99179 DIRECTOR W.F.SOMERVELL DIRECTOR February 16, 1988 rCrossing: Public: MO-Jefferson City, Industrial Drive (DOT No. 442661N) f 9 Crossing: Public: MO-Jefferson City Jaycee Drive (DOT No. 442675W) Mr. Robert M. Bates Director of Public Works City of Jefferson City 320 East McCarty Jefferson City, Missouri 65101 Dear Mr. Bates: Refer to previous correspondence concerning two agreements covering the installation of rubber pad crossings at Industrial Drive and Jaycee Drive. Returned herewith are fully executed originals of agreements dated February 3, 1988 between Missouri Pacific Railroad Company and the City of Jefferson City covering the widening and improvement of an existing crossing at Jaycee Drive and the improvement of an existing crossing at Industrial Drive in Jefferson City, Missouri . Sincerely, '­�- P_ . qq'��' R. E. JACKSON, JR. Manager-Contracts Attachment PHC 861216 JAYCEE.PX Form Approved, AVP-Law Improvement of Existing Jaycee Drive Public Road Crossing at Mile Post 125.4 (DOT No. 442675W) Jefferson City, Cole County, Missouri TH S AGREEMENT, made and entered into as of the . 3 day of - , 19 ,FS , by and between MISSOURI PACIFIC RAILROAD COMPANY, aVDelaware corporation (hereinafter the "Railroad Company") , and the CITY OF JEFFERSON CITY, a municipal corporation of the State of Missouri (hereinafter the "Political Body") , WITNESSETH: RECITALS: The Political Body desires to undertake as its project the widening and improvement of an existing public grade crossing at Jaycee Drive in Jefferson City, Cole County, Missouri (hereinafter the "Project") . The Political Body desires the right to continue to use that portion of the right of way of the Railroad Company at Mile Post 325.40 (hereinafter the "Crossing Area") shown outlined in heavy solid lines on the attached print dated August 24, 1987, marked Exhibit A, for the Project. AGREEMENT: NOW THEREFORE, it is mutually agreed by and between the parties hereto as follows: Article I. RAILROAD COMPANY GRANTS RIGHT. For and in consideration of the Political Body's agree- ment to perform and abide by the terms of this Agreement, including Exhibits A and B, attached hereto, the Railroad Company hereby grants to the Political Body, the right to reestablish, reconstruct, maintain, repair, renew and continue to use a public highway at grade on and across the Crossing Area, together with the right of entry to control and remove from the Railroad Company's right of way, on each side of the Crossing Area, weeds and vegetation which may obstruct the view of motorists approaching the Crossing Area to trains approaching the Crossing Area. Article II. WORK TO BE PERFORMED. (a) The Railroad Company, at the sole cost and expense of Political Body, shall furnish one 93-ft. rubber pad crossing at the location for the crossing described in paragraph (b) below. (b) The Railroad Company may make any and all changes, alterations or relocations , whether temporary or permanent, and may provide flagging and other protective services and devices, which in the Railroad Company' s judgment may be or become neces- sary or expedient because of the Project. Such work shall include, without limitation, furnishing all labor, equipment and supervision necessary to (1) remove the existing Jaycee Drive crossing and materials, (2) install one 93-ft. rubber pad crossing, (3) furnisl and install filter fabric and drain pipe, (4) relay and field weld rail, and (5) renew cross ties and ballast. (c) Political Body, hereby expressly stipulates and agrees to reimburse Railroad the actual cost of the rubber pad crossing material to be furnished by Railroad Company pursuant to paragraph (a) of this Article II, which is estimated to be $20,520.00, said cost to be computed in accordance with Railroad's customary practices. Article III. EFFECTIVE DATE; TERM. This Agreement shall become effective as of the date first herein written, or the date work commences on the Project, whichever is earlier, and shall continue in full force and effect until terminated as herein provided. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in duplicate as of the date first herein written. MISSOURI PACIFIC RAILROAD COMPANY By Title Dir.-Contracts & Real Estate ATTEST: CITY OF JEFFERSON CITY (MISSOURI) By Title: Its (Seal) Pursuant to Re0blutio n/ No. 16 Fjf8 dated a , 19W, hereto attached. 2 - COLAE CO. , Mo. SyV it Sec. 2, T. 44 Md R.12,W. � •�O ` v 7C ..� K "' th Ar QD 14 ' 1 \ \ ---- �dl INDj1,5 °RlAL. D*R V& Revnowe exist. C4 pfd t,!,D, CroSSir�9, Insta/d 9l7 �Rubber Ci-oadinc���o�rf �ot�r arrd Filter fabric, rQcne�,v cress Pies and b�allasf. EXHIBIT A MISSOURI PACIFIC RAILROAD CUTWAL KG= InisrA4,4 jeaaseR C.aossl va ✓Ayc&,a Del v,06 Tooe r.No.!l5 area W #cmw• clowm am" cm NM=A: a�r♦sw• � �r. nAen�r W1[xM,KWKY co ® BILL NO. 87-176 SPONSORED BY COUNCILMAN BORGMEYER ORDINANCE NO. /Q 5 eg AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONTRACT WITH THE MISSOURI PACIFIC RAILROAD COMPANY FOR RUBBERIZED CROSSINGS ON INDUSTRIAL DRIVE AND JAYCEE DRIVE. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and Clerk are hereby authorized and directed to execute a contract with the Missouri Pacific Railroad Company for rubberized crossing on Industrial Drive and Jaycee Drive. . Section 2. The contract shall be substantially the same in form and content as that contract attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed _ 7.x-�,ay Approved Officer ayor ATTEST: City Clerk `� i ", . PHC 861216 ` Form Approved, AVP-Law EXHIBIT B AOL Public Highway Crossing Section I. CONDITIONS AND COVENANTS. (a) The Railroad Company makes no covenant or warranty of title, for quiet possession or against encumbrances. The Political Body shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the Political Body shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad Company's property by or under authority of the Political Body for the purpose of conveying electric power or communications incidental to the Political Body's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad Company, and in such nanner as not adversely to affect communication or signal lines of the Railroad Can pany or its licensees now or hereafter located upon said property. No nonparty shall be admitted by,the Po litical Body to use or occupy any part of the Railroad Company's property without the Railroad Company's written consent. Nothing herein shall obligate the Railroad Company to give such consent. (b) The Railroad Company reserves the right to cross the Crossing Area with such railroad tracks as nay be required for its convenience or purposes in such manner as not unreasonably to interfere with its use as a public highway. In the event the Railroad Company shall place tracks upon the Crossing Area, the Political Body shall, at its sole cost and expense, modify the highway to conform with the rai l line. (c) The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or not, and also to any renewals thereof. The Po litical Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the railroad property, unless the Political Body at its own expense settles with and obtains releases from such nonparties. (d) The Railroad Company reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by waY of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; also the right to cross the Crossing Area with all kinds of equipment. The mIroad Company further reserves the right to attach signal, communication or power lines to any highway cilities locafod upon the property. (e) So far as it lawfully may do so, the Political Body will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad Company's operating property. (f) If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the highway and its appurtenances, or for the performance of any work in connection with the Project, the Political Body will acquire all such other property and rights at its own expense and without expense to the Railroad Company. Section 2. CONSTRUCTION OF HIGHWAY. (a) The Po litical Body, at its own expense, will app IV for and obtain all public authority required by lawn ordinance, rule or regulation for the Project, and will furnish the Railroad Company upon request with satisfactory evidence that such authority has been obtained. (b) Except as my be otherwise specifically provided herein, the Political Body, at its own expense, will furnish all necessary labor, material and equipment, and shall construct and complete the highway and all appurtenances thereof. Time appurtenances shall include, without limitation, all necessary and proper drainage facilities, guard rails or barriers, and right of way fences between the highway and the railroad tracks. Upon completion of the Project, the Political Body shall remove from the Railroad Compan�I's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad Company. (c) The Railroad Company will receive no ascertainable benefit from the construction of the Project, and, except as may be specifically provided herein, shall not be required to pay or contribute any part of the cost thereof. If the Project is to be financed in whole or in part by Federal funds, all construction work by the Political Body shall be performed and any reimbursement to the Railroad Company for work it performs shall be made, in accordance with the applicable Federal acts, regulations, and this Agreement. (d) All construction work of the Political Body upon the Railroad Company's property (including but not limited to, construction of the highway and all appurtenances and all related and incidental work) shall be Wrformed and completed in a manner satisfactory to the Chief Engineer of the Railroad Company or his authorized presentative and in accordance with detailed plans and specifications prepared by and at the expense of the Political Body, and approved in writing by the Railroad Company's Chief Engineer. Paw I of 6 l 29 PK 861216 Form Approved, AVP-Law (e) All construction work of the Political Body shall be performed diligently and completed within a reasonable time, and in any event within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad Company's General Manager. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad Company's written consent and subject to such reasonable conditions as the Railroad Company may specify. It is understood that the Railroad Coff"Iny's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that mmovemm>snt or stoppage of trains, engines or cars may cause delays in the work of the Political Body. The Political Body hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad Company. (f) if the Project includes construction of a structure over which trains are to be operated, or for which the Railroad Company has any responsibility for maintenance, the Po litical Body shall furnish the Railroad Companyy Permanent reproducible rants of all design and shop drawings as soon as possible after approval by the Chief En sneer of the Railroad Company or his authorized representative. Upon completion of construction, the Political Body shall furnish the Railroad Company two sets of was constructed" prints and, in addition, upon request of the Chief Engineer of the Railroad Company, "as constructed" permanent reproducible prints of all or any portion of the structure. Section 3. INJURY AND DAMAGE TO PROPERTY. If the Political Body, in the grformance of any work contemplated by this Agreement or by the failure to do or perform anything for which the litical Body,is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad Carnpany or of any other person lawfully occupying or usingg the property of the Railroad Company, such property shall be replaced or repaired by the Po litical Body at the Po11tIcaI Body's own expanse, or by the Railroad Company at the expense of the Po litical Body, and to the satisfaction of the Railroad Company's Chief Engineer. Section 4. PAYMENT FOR WORK BY THE RAILROAD COMPANY. (a) Bills for work and materials shall be paid by the Political Body prmptly upon receipt thereof. The Railroad Company will submit to the Po litical Body current b I I I s for flagging and other protective services and devices during progress of the Project. The Railroad Company will submit final billing for flapppgingg and other protective services within one hundred and twenty (120) days after completion of the Project, provided the Political Body advises the Railroad Company of the commencement of the 120-day period by giving the Railroad Company written notification of completion of the Project. (b) The Railroad Copany ma contract for the performance of any of its work by other than railroad forces. The Railroad CoaWny,shail notify the Po litical Body of the contract price within ninety (90) days after it is awarded. Unless the Railroad Company's work is to be performed on a fixed price basis, the Political Body shall reimburse the Railroad Company for the amount of the contract. Section 5. MAINTEONCE. (a) If the Project involves a grade crossing: (I) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area, except the portions between the track tie ends, which shall be maintained by and at the expense of the Railroad Company. (2) If, in the future, the Political Body elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area, replaced with paving or sand surfacing material other than timber planking, the Railroad Company, at the Political Body's expense, shall install such replacement surfacing, including without limitation, such repair or replacement as is occasioned by repair or rehabilitation of the Railroad Company's tracks through the Crossing Area. (b) If the Project involves a public highway crossing under the Railroad's tracks: (1) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire substructure of the highway-railroad grade separation structure. (2) The Railroad Company shall, at its own sole expense, maintain and repair, or cause to be maintained and repaired, the entire superstructure of the highway-railroad grade separation structure. (c) If the Project involves a public highway crossing over the Railroad's tracks, the Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired, and ronewed, the entire highway-rallroad grade separation structure. Section 6. CHANGES IN GRADE. If at any time the Railroad Company shall elect, or be required by competent authority to, raise or ®lower the grade of a I I or any portion of the track or tracks located on the Crossing Area, the Political Body shall, at its own expense, conform the public highway in the Crossing Area to conform with the change of grade of the trackage. Paw h2 of 6 2 t PK 861216 Form Approved, AVP-Law ection 7. REARRANGEMENT OF WARNING DEVICES. If for public or Railroad Company convenience the rearrangement of any warning device installed hereunder is necessitated on account of improvements for either railroad, highway, or both, and before rearrangnment of said warning device is undertaken, the expense incidental thereto shall be determined by negotiation, agreemen t or by competent authority. Section B. SAFETY MEASURES: PROTECTION OF RAILROAD COMPANY OPERATIONS. It is understood and recognized that safety and continuity of the Railroad Company's operations and comimnications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the Political Body that: (a) Definitions. All references in this Agreement to the Political Body shall include the Political Body's contractors, su ontractors, officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the Political Body shall include work both within and outside of railroad property. (b) Compliance With Laws. In the prosecution of the work covered by this Agreement, the Political Body shall comply with-all app ice a ederal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body's agents and employees, the officers, agents, employees and property of the Railroad Company and the public in general. The Political Body (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Adminie by the Political Body to comply with any such laws, regulations, and enactments, shall result in any fine,stration regulations shall be followed when work is performed on the Railroad Company's premises. If any failur penalty, cost or charge being assessed, imposed or charged against the Railroad Company, the Political Body shall reimburse and indemnify the Railroad Company for any such fine, penalty, cost, or c rge, including without limitation attorney's fees, court costs and expenses. The Political Body further agrees in the event of any such action, upon notice thereof being provided by the Railroad Company, to defend such action free of cost, charge, or expense to the Railroad Company. (c) No Interference or Delays. The Political Body shall not do, suffer or permit anything which will may obstructT of tiger, interfere WI T111, hinder or delay maintenance or operation of the Railroad Company's arks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad Company's property or facilities. (d) Supervision. The Political Body, at its own expense, shall adequately police and supervise all work to be rfornUBF-Me Political Body, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad Company or such others may be responsible, or to property of the Railroad Company or such others. The responsibility of the Political Body for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad Company's approval of plans and specifications, or by the Railroad Company's collaboration in performance of any work, or by the presence at the worksite of the Railroad Company's representatives, or by compliance by the Political Body,wmth any requests or recommendations made by such representatives. If a representative of the Railroad Company is assigned to the Project, the Political Body will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad Company's property and operations. (e) Susp2nsion of Work. If at any time the Political Body's engineers or the Chief Engineer of the Railroad Company or the rr respective representatives shall be of the opinion that any work of the Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. (f) Removal of Debris. The Political Body shall not cause suffer or permit material or debris to be deposited or cas upon, or To s I ide or fall upon any property or facilities of the Railroad C ny; and any such material and debris shall be promptly removedpfrom the Railroad Company's property by the Political BodyY at the Political Body's own expense or by the Railroad Company at the expense of the Political Body. The Political Body shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad Company's property during snow removal from the Crossing Area. (g) Explosives. The Political Body shall not discharge any explosives on or in the vicinity of the Railroad Company's property without the prior consent of the Railroad Company's Chief Engineer, which shall not be given if, in the sole discretion of the Railroad Company's Chief Engineer, such discharge would be dangerous or would interfere with the Railroad Company's property or facilities. For the purposes hereof, the "vicinity of the Railroad Company's preporty0 shall be deemed to be any place on the Railroad Company's property or in such close oximity to the Railroad Company's property that the discharge of explosives could cause injury to the Railroad ny's employees or other persons or cause damge to or Interference with the facilities or operations on the ilroad Company's property. The Railroad Company reserves the right to impose such conditions restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad Company, in Paoe 2976 3 of 6 3 M1 PK 861216 Form Approved, AVP-Law the Railroad Company's sole discretion, Wray deem to be necessar�r, desirable or appropriate. In addition to any �nditions, restrictions or limitations as may be specifically imposed: (1) Unless the Railroad Company's Chief Engineer agrees otherwise, the Political Body shall provide no less than 48 hours notice, excluding weekends and holidays, before discharging any explosives. (2) Any explosives loaded in holes or placed or otherwise readied for discharge on a day shall be discharged on the same day during daylight hours, and at mutually acceptable times. (3) The Political Body, at its own expense, shall take all precautionary measures and construct all temporary shelters necessary to guard against danger of damage, destruction or interference arising out of or connected with any blasting or any transportation, handling, storage, security or use of explosives. (4) The Political BodyY shall require explosives to be transported, handled, stored or otherwise secured and used In a manner satisfactory•to the Railroad Company and in accordance with local, state and Federal laws, rules, and regulations, including, without limitation, United States Department of Labor, Bureau of labor Standards, Safety and Health Regulations for Construction, 29 CFR Part 1518, Subpart U--"Blasting and the Use of Explosives"; and Occupational Safety and Health Administration Occupational Safety and Health Standards, 29 CFR Part 1910, Subpart H--"Hazardous Materials". (h) Obstructions to View. Except as otherwise specifically provided herein, the Political Body shall not cause or permit the view a ong the tracks of the Railroad Company to be obstructed, nor place any combustible material on the premises, nor erect any structures thereon. If public law or regulation requires control or removal of weeds or vegetation on each side of the Crossing Area, the Political Body will perform such control or removal work without expense to the Railroad or, if the Po litical Body may not lawfully perform the control or removal work, reimburse the Railroad Company for the cost of performing such control or removal. If the crossing is not equipped with automatic train activated warning devices with gaffe arms: (1) The Political Body shall control or remove weeds and vegetation within and on each side of the Crossing Area so that the view of approaching motorists to approaching trains is not obstructed by weeds or vegetation; and (2) Insofar as it Trey lawfully may do so, the Political Body will not permit non-parties to construct sight obstructing buildings or other permanent structures on property adjacent to the right-of-way. (1) Excavation. If the Political Body shall excavate from existing slopes or create new slopes jacent to the roc s o� the Railroad Company, the Political Body shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad Company. The Political Body shall not do or cause to be done any work which will or may disturb the stability of any area or adverse IV affect the Railroad Company's tracks or facilities . The Po litical Body, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trench I ng.per formed by the Political Body in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and rrointained with materials and in a manner approved by the Railroad Company's Chief Engineer to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad Conpany's operations in the vicinity. (j) Oreinaor. The Political Body, at the Political Body's own expense, shall provide and maintain suitable facIII ies or draining the highway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad Company. The Political Body, at the Political Body's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad Company's culvert and draine facilities), so that said waters may not, because of any facilities or work of the Political ag Body, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad Company or any part thereof, or property of others. The Political Body shall not obstruct or interfere with existing ditches or drainage facilities. (k) Notice. Before commencing any work, the Political Body shall provide 48 hours prior notice (excluding weok nos and holidays) to the Railroad Company's Chief Engineer. (1) Fiber Optic Cables. Fiber optic cable systems Trey be buried on the Railroad Company's property. The Political Bo y s a e 9—PIMe the Railroad Company at 1-800-336-9193 (24-hour number) to determine if fiber optic cable is buried anywhere on the Railroad Company s property to be used by the Political Body. If it is the Political Body, will telephone the telecommunications ca."ny(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad Company's property. The Political Body shall protect all fiber optic cable systems from damage or destruction. Protection of the fiber optic cables stems by the Political Body is an absolute duty and necessity. In addition to the ®rabiilty terms provided elsewhere in this Agreement, the Political Body shall Indemnify and hold the Railroad 411111coinpany harmless against and from all cost, liability, and expense whatsoever (including without limitation, attorney's fens and court costs and expenses) arising out of or in any way contributed to by any act or omission aN 4 of 6 4 PHC 861216 Form Approved, AVP-Law of the Political Body, its contractor, agents and/or employees, that causes or in any way or degree contributes to Aftl) any damage to or destruction of any tetecommmunications system by the Political Body, and/or its contractor, nts and/or employees, on the Railroad Company's property; (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 the Railroad Company's property; or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service b a customer or user of, such telecommunication company or companies, whether or not third parties or the Railroad C Company, its contractor, agents and/or employees contributed thereto. Section 9. INTERIM WARMING DEVICES. If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the Political Body shall intatl adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect thirodf3ring public until the new or improved devices have been installed. Section 10. LIABILITY INSURANCE. (a) Before construction work begins, the Political Body or its contractors shall provide to the Railroad Company the original and one copy of a Railroad Protective Liability Insurance Policy, naming the Railroad Company as insured, with limits as specified in the Federal Highway Program Manual which is current when construction and/or maintenance work begins, but in no event less than $2 million per occurrence/$6 million aggregate. The policy must be in effect during the entire time the Political Body or its contractor is working on Railroad Company property. (b) All contractors and subcontractors working on Railroad Company property shall provide to Railroad Company a certificate verifying that a standard contractor's Comprehensive General Liability Policy with broad form endorsement with a combined single limit of $2,000,000 per occurrence, is effective with respect to such contractor and subcontractor. Such certificate shall state that the policy will not terminate or be modified without the Railroad Company being given thirty (30) days notice. (c) The insurance policies shall define the terms "person" to include employees of the Railroad Company, as well as other persons, and the term "property" as herein used shall include, as well as other property, property owned by and property in the care, custody or control of the Railroad Company. (d) Each policy shall conform substantially with the Public Liability and Property Damage Pot icy ovidod in United States Department of Transportation, Federal Highway Administration directives as published in s Federal-Aid Highway Program Manual, Volume 6, Chapter 6, Section 2, Subsection 2, and be issued by a reliable nsurer satisfactory to the Railroad Company and authorized to do business in the State in which the work is to be performed. Each policy shall cover all work to be performed and all operations to be conducted under this Agreement. The monetary limits of insurance furnished in connection with the future reconstruction or maintenance work on the highway in the vicinityy of the Railroad Company's said trackage and facilities shall conform to the limits prescribed by the Railroad Company in connection with new public projects at the time the work of maintenance or reconstruction is performed. Section 11. OTHER RAILROADS. All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad Company and any other railroad company lawfully using the Railroad Company's property or facilities. Section 12. REMEDIES FOR BREACH OR NONUSE. (a) If the Political Body shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad Company, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad Company is necessary to place the highway and appurtenances in such condition as will not mmenace, endanger or interfere with the Railroad Company's facilities or operations or jeopardize the Railroad Company's employees; and the Political Body will reimburse the Railroad Company for the expenses thereof. (b) o L.by the Political Body of the Crossing Area for public roadway purposes continuing at any time for a period eighteen (18) months shall, at the option of the Railroad Company, work a termination of this Agreement and of all rights of the Political Body hereunder. (c) The Political Body will surrender peaceable possession of the Crossing Area upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. Section 13. MODIFICATION - ENTIRE AGREEMENT. No waiver, modification or amendment of this agreement shall be of any force or effect unless made in writing, signed by the Political Body and the Railroad Company and specifying with particularity the nature and Otent of such waiver, modification or amendment. Any waiver by the Railroad Company of any default by the litical Body shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the Political Body and Pw 5 of 6 5 29 PHC 861216 Forte Approved, AVP-law t Railroad Company and cancel and supersede any prior negotiations, understandings or agreements, whether CItten or oral, with respect to the work of any part thereof. tIon 14. ASSIGN#NT: SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned without the written consent of the Railroad Company. Subject hereto, this Agreement shall be binding upon and Inure to the benefit of the parties hereto and their successors and assigns. AWL Pa0e6of6 6 • JEFFCITY.PX ® THIS AGREEMENT, executed in duplicate, this day of , 1988, by and between MISSOURI PACIFIC RAILROAD COMP Y, a Delaware corporation, hereinafter called "Railroad Company" , and the CITY OF JEFFERSON CITY, a municipal corporation of the State of Missouri, hereinafter called "Political Body", WITNESSETH: RECITALS: As part of its program to improve Industrial Drive (DOT No. 442661N) , Political Body desires that Railroad Company improve the existing Industrial Drive crossing, at grade, along, over and across Railroad Company's Track No. 117-33 at Jefferson City, Cole County, Missouri, to which Railroad Company is agreeable but solely upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: 1 . Railroad Company, at the sale cost and expense of Political Body, shall furnish one 108-ft. rubber pad crossing at the location for the crossing described in Section 2 below. 2. Railroad Company, at its sole cost and expense, shall furnish all labor, equipment and supervision for, and shall remove -the existing crossing and materials, install one 108-ft. rubber pad crossing, furnish and install filter fabric and drain pipe, relay and field weld rail, and renew cross ties and ballast, all at the intersection of Railroad Company' s Track No. 117-33 with Industrial Drive in the City of Jefferson City, Cole County, Missouri, as shown generally on Railroad Company' s print dated August 21, 1987 , attached hereto and marked Exhibit "A" . 3. Political Body, hereby expressly stipulates and agrees to reimburse Railroad the actual cost of the rubber pad crossing material to furnished by Railroad Company pursuant to Section 1 hereof, which is estimated to be $24 ,624 .00 , said cost to be computed in accordance with Railroad' s customary practices. 4 . Political Body, its successors and assigns, except as provided in Sections 1 and 2 hereof, shall perform or cause to be performed, all of the work incident to improving and maintaining the roadway over Railroad Company's track, including grading, drainage, drainage structures, surfacing and paving, at Political Body' s sole cost and expense. 5 . Railroad Company assumes no liability for injury to or death of persons or for loss of or damage to property arising or growing out of, or which may be clue, in any manner, to or in ® connection with, the Political Body's work or aforesaid use of its roadway over Railroad Company's track. 6. Political Body hereby agrees to see that the work conducted by it or on its behalf hereunder on or about the affected premises is performed in a manner satisfactory to Railroad Company' s Chief Engineer or authorized representative and in such manner and at such times as not to delay, interfere with, or obstruct the safe passage of Railroad Company's trains or the functioning of its signal and communication systems, and as well not to damage any property of Railroad Company, its tenants or licensees. 7 . Political Body hereby agrees to reimburse Railroad Company for the cost of repairing any property of Railroad Company, or others, damaged, lost or destroyed in connection with the performance of roadway improvement or maintenance work by or for the account of Political Body on or about Railroad Company's track. 8 . Covenants herein shall inure to or bind each party's successors and assigns; provided: no right of Political Body shall be transferred or assigned, either voluntarily or involuntarily, except by express agreement acceptable to Railroad Company. Railroad Company or Political Body may waive any default at any time of the other without affecting or impairing any right arising from any subsequent default. 9 . Political Body shall, when returning this agreement to Railroad Company signed, cause same to be accompanied by such order, resolution or ordinance of the governing body of Political Body, passed and approved as by .law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of Political Body with the power so to do, and which shall also certify that funds have been appropriated and are available for the payment of any sums agreed to be paid by Political Body hereunder. 2 - IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the day and year first hereinabove written. MISSOURI PACIFIC RAILROAD COMPANY By T tle. Dir.-Coniracis & Real cst to ATTEST: CITY OF JEFFERSON CITY, MI,SOURI By Title: e: (Seal) 3 - , • •aC�2 6C/N CoLl.p Co., Mo. SW¢ 4N.-.Pc.S'ec.I, T.44 N. R./2 h/. v � h rD•3'oo't y 4' � N se' I h v Tr,rc.No.//S • • � • Te Merit Trk. 14 y i lc,3 oc RCmOVC cxi sf. 104'JO TD.H-oy ¢�rr�bcr c�-,ossii�q.� dnsta!! (� /�8•Rubber c�-ossir�cJ, }•i/der• fab�vc and pe�-f.�oip�. R�ncw cross dies and !Sa/last MISSOURI PACIFIC RAILROAD ccHTm MEG= IN574L4 RUDae.4 CROSS/A! I1V4U57RlAL dRlV� 77zx. No.117•33 W=w Kam c a m mom cm msmal MN TiIMM 7W WAZ V's None CY/2 EV'I PK 861216 Form Approved, AVP-law EXHIBIT 8 Public Highway Crossing Section I. CONDITIONS AND COVENANTS. (a) The Railroad Company makes no covenant or warranty of title, for quiet possession or against encumbrances. The Political Body shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the Political Body shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad Company's property by or under authority of the Political Body for the purpose of conveying electric Power or communications incidental to the Political Body's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad Company, and in such manner as not adversely to affect communication or signal lines of the Railroad Company or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the Political Body to use or occup� anl► part of the Railroad Company's property without the Railroad Company's written consent. Nothing herein shat ob igate the Railroad Company to give such consent. (b) The Railroad Company reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes in such manner as not unreasonably to interfere with its use as a public highway. In the event the Railroad Company shall place tracks upon the Crossing Area, the Political Body shall, at its sole cost and expense, modify the highway to conform with the rail line. (c) The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or not, and also to any renewals thereof. The Political Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the railroad property, unless the Political Body at its own expense settles with and obtains releases from such nonparties. (d) The Railroad Company reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; also the right to cross the Crossing Area wIth all kinds of equipment. The Railroad Company further reserves the right to attach signal, communication or power lines to any highway facilities located upon the property. (e) So far as it lawfully may do so, the Political Body will assume, bear and pay all taxes and assessmants of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad Company's operating property. (f) If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the highway and its appurtenances, or for the performance of any work in connection with the Project, the Political Body will acquire al such other property and rights at its own expense and without expense to the Railroad Company. Section 2. CONSTRUCTION OF HIGHWAY. (a) The Political Body, at its own expense, will apply for and obtain all public authority required by law+ ordinance, rule or regulation for the Project, and will furnish the Railroad Company upon request with satisfactory evidence that such authority has been obtained. (b) Except as may be otherwise specifically provided herein, the Political Body, at its own expense, will furnish all necessary labor, mater ial and equipment, and shall construct and complete the highway and all appurtenances9s thereof. The appurtenances right include, without limitation, all necessary and proper drainage coompletion,ofuthe Project the Political BBodytshallaremoveefromm then Railroad highway and structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad Company. (c) The Railroad Company will receive no ascertainable benefit from the construction of the Project, and, except as may be specifically provided herein, shall not be required to pay or contribute any part of the cost thereof. If the Project is to be financed in whole or In part by Federal funds, all construction work by the Political Body shall be performed and any reimbursement to the Railroad Company for work It performs shall be made, in accordance with the applicable Federal acts, regulations, and this Agreement. (d) All construction work of the Political Body upon the Railroad Company's property (including but not limited to, construction of the highway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Chief Engineer of the Railroad Company or his authorized representative and in accordance with detailed plans and specifications prepared by and at the expense of the Political Body, and approved in writing by the Railroad Company's Chief Engineer. I PerIof6 29 PHC 861216 Form Approved, AVP-law (e) All construction work of the Political Body shall be performed diligently and completed within a reasonable time, and in any event within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad Company's General Manager. No part of the Protect shall be suspended, discontinued or unduly delayed without the Railroad Company's written consent and subject to such reasonable conditions as the Railroad Company may specify. It is understood that the Railroad Company's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work c the Political Sod . The Political Body hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad Company. (f) If the Project includes construction of a structure over which trains are to be operated, or for which the Railroad Company has any responsibility for maintenance, the Political Body Shall furnish the Railroad Campanyy permanent reproducible prints of all design and shop drawings as soon as possible after approval by the Chief En ineer of the Railroad Company or his authorized representative. Upon completion of construction, the Political Body shall furnish the Railroad Company two sets of "as constructed" prints and, in addition, upon request of the Chief Engineer of the Railroad Company, "as constructed" permanent reproducible prints of all or any portion of the structure. Section 3. INJURY AND DAMAGE TO PROPERTY. If the Political Body, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the Political Body,is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad C ny or of any other person lawful occupying or using the property of the Railroad Company, such property shall be replaced or repaired by the Political Body at the Political Body's own expense, or by the Railroad Company at the expense of the Political Body, and to the satisfaction of the Railroad Company's Chief Engineer. Section 4. PAYMENT FOR WORK BY THE RAILROAD COMPANY. (a) Bills for work and materials shall be paid by the,Political Body prompt)y upon receipt thereof. The Railroad Company will submit to the Political Body current bills for flagging and other protective services and devices during pr, ress of the Project. The Railroad Company will submit final billing for flagging and other protective services whin one hundred and twenty (120) days after completion of the Project, provided the Political Body advises the Railroad Company of the commencement of the 120-0ay period by giving the Railroad Company written notification of completion of the Project. (G) The Railroad Company may.contract for the performance of any of its work by other than railroad forces. The Railroad Conpanyshhaal I notify the Political Body of the contract price within ninety (90) days after it is awarded. Unless the Railroad Company's work is to be performed on a fixed price basis, the Political Body shall reimburse the Railroad Company for the amount of the contract. Section 5. MAINTENANCE. (a) If the Project involves a grade crossing: (1) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossin� Area except the portions between the track tie ends, which shall be maintained by and at the expense of the Rai road Gpany. (2) If, in the future, the Political Body elects to have the surfacing material between the track tie ends, or between tracks if there ms more than one railroad track across the Crossing Area replaced with paving or some surfacing material other than timber planking, the Railroad Company, at the Political Body's expense, shall install such replacement surfacing, including without Iimitation, such repair or replacement as is occasioned by repair or rehabilitation of the Railroad Company's tracks through the Crossing Area. (b) If the Project involves a public highway crossing under the Railroad's tracks: (1) The Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire substructure of the highway-railroad grade separation structure. (2) The Railroad Company shall, at its own sole expense, maintain and repair, or cause to be maintained and repaired, the entire superstructure of the highway-railroad grade separation structure. (c) If the Project involves a public highway crossing over the Railroad's tracks, the Political Body shall, at its own sole expense, maintain, repair, and renew, or cause to be maintained, repaired, and renewed, the entire highway-railroad grade separation structure. Section 6. CHANGES IN GRADE. If at any time the Railroad Cortpany shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the track or tracks located on the Crossing Area, the Political Body shall, at its own expense, conform the public highway in the Crossing Area to conform with the change of grade of the trackage. 29g®eh2 of 6 2 PK 861216 Form Approved, AVP-Law Section 7. REARRANGEMENT OF WARNING DEVICES. If for public or Railroad Company convenience the rearrangement of any warning device installed hereunder is necessitated on account of improvements for either railroad, highway, or both, and before rearrangement of said warning device is undertaken, the expense incidental thereto shall be determined by negotiation, agreement, or by competent authority. Section 8. SAFETY MEASURES: PROTECTION OF RAILROAD COMPANY OPERATIONS. It Is understood and recognized that safety and continuity of the Railroad Company's operations and communications are of the utmost importance; and in order that the same my be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the Political Body that: (a) Definitions. All references in this Agreement to the Political Body shall include the Political Body's contractors, su ontractors, officers, agents and employees and others acting under its or their authority; and all references in this Agreement to work of the Political Body shall include work both within and outside of railroad property. (b) C�alia�nce With Laws. In the prosecution of the work covered by this Agreement, the Political Body shall comply with all applicable ederal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body's agents and employees, the officers, agents, employees and property of the Railroad Company and the public in general. The Political Body (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad Company's premises. If an V failure by the Political Body to comply with any such laws, regulations and enactments, shall result in any fine, penalty, cost or charggee being assessed, imposed or chargcd against the �isailroad Company, the Political Body shall reimburse and indemnify the Railroad Company for any such fine penalty, cost, or charge,,including without limitation attorney's fees, court costs and expenses. The Political Body further agrees in the event of any such action, upon nolico thereof being provided by the Railroad Company, to defend such action free of cost, charge, or expense to the Railroad Company. (c) No Interference or Dela s. The Political Body shall not do, suffer or permit anything which will or may obstruct' endanger, in er ere with hinder or delay maintenance or operation of the Railroad Company's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad Company's property or facilities. (d) Supervision. The Political Body, at its own exppeense, shall adequately police and supervise all work to be rforn y Political Body, and shall not inflict injury to persons or damage to property for the safety of wham or of which the Railroad Company or such others mak be responsible, or to property of the Railroad Company or such others. The responsibility of the Political Body for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad Company's appproval of plans and specifications, or by the Railroad Company's collaboration in performance of any work, or by the presence at the works Ite of the Railroad Company's representatives, or by compliance by the Po litical Body.wIth any requests or recommendations made by such representatives. If a representative of the Railroad Company is assigned to the Project, the Political Body will give due consideration to, suggestions and recommendations made by such representative for the safety and protection of the Railroad Company's property and operations. (e) Suspension of Work. If at any time the Political Body's engineers or the Chief Engineer of the Railroad Company or Tneir respect ve representatives shall be of the opinion that any work of the Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. (f) Removal of Debris. The Political Body shall not cause suffer or permit material or debris to be deposited or cos upon, o o s ide or fall upon an property or facilities of they Railroad Conpanp andd any such PPooliticalaBBoody'ss owwnsexpenssee or byttherRailrroad Company Ratithhee expensee of thhe�Poli by ihBPylitThelPoliticaltBody shall not cause, suffer or tica removal from the Crossing �p�rmit any snow to be plowed or cast upon the Railroad Company's property during snow (g) Explosives. The Political Body shall not discharge any explosives on or in the vicinity of the Railroad Company s property without the prior consent of the Railroad Company's Chief Engineer, which shall not be given if, in the sole discretion of the Railroad Company's Chief Engineer, such discharge would t* dangerous or would interfere with the Railroad Company's property or facilities. For the purposes hereof, the "vicinity of the Railroad Company's property" shell be deemed to be any place on the Railroad Company's property or in such close proximity to the Railroad Company's property that the discharge of explosives could cause injury to the Railroad Company's employees or other persons or cause damage to or interference with the facilities or operations on the ®Railroad Company's property. The Railroad Company reserves the right to impose such conditions restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad Company, in gage 3 of 6 3 PHC 861216 Form Approved, AVP-law the Railroad Company's sole discretion, nay deem to be necessary, desirable or appropriate. In addition to any conditions, restrictions or limitations as may be specifically imposed: (1) Unless the Railroad Company's Chief Engineer agrees otherwise, the Political Body shall provide no less than 48 hours notice, excluding weekends and holidays, before discharging any explosives. (2) Any explosives loaded in holes or placed or otherwise readied for discharge on a day shall be discharged on the same day during daylight hours, and at mutually acceptable times. (3) The Political Body, at its own expense, shall take all precautionary measures and construct all temporary shelters necessary to guard against danger of damage, destruction or interference arising out of or connected with any blasting or any transportation, handling, storAge, security or use of explosives. (4) The Political Bodyy shall require explosives to be transported, handled, stored or otherwise secured and used in a manner satisfactoryto the Railroad Company and in accordance with local, state and Federal laws, rules and regulations, including, without limitation, United States Department of Labor, Bureau of Labor Standards, Safety and Health Regulations for Construction, 29 CFR Part 1518, Subpart U—"Blasting and the Use of Explosives"- and Occupational Safety and Health Administration Occupational Safety and Health Standards, 29 CFR Part 1910, subpart H---"Hazardous Materials". (h) Obstructions to View. Except as otherwise specifically provided herein, the Political Body shall not cause or perms view-along the tracks of the Railroad Company to be obstructed, nor place any combustible material on the premises, nor erect any structures thereon. If public law or regulation requires control or removal of weeds or vegetation on each side of the Crossing Area, the Political Body will perform such control or removal work without expense to the Railroad or, if the Political Body may not lawfully perform the control or removal work, reimburse the Railroad Company for the cost of performing such control or removal. If the crossing is not equipped with automatic train activated warning devices with gate arms: (1) The Political Body shall control or remove weeds and vegetation within and on each side of the Crossing Area so that the view of approaching motorists to approaching trains is not obstructed by weeds or vegetation; and (2) Insofar as it may lawfully may do so, the Political Body will not permit non-parties to construct sight obstructing buildings or other permanent structures on property adjacent to the right-of-way. (i) Excavation. If the Political Body shall excavate from existing slopes or create new slopes dftadjacent to the ra`fi"ck o the Railroad Company, the Political Body shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad Company. The Political Body shall not do or cause to be done any work which will or may disturb the stability of any area or adverse) affect the Railroad Company's tracks or facilities . The Political Body,,at its own expense, shall instal and maintain adequate shoring and cribbing for all excavation and/or trench ing,performed by the Political Body in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad Company's Chief Engineer to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad Company's operations in the vicinity. (j) Drainage. The Political Body, at the Political Body's own expanse, shall provide and maintain suitable faciII ies or draining the highway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad Company. The Political Bud l, at the Political Body's own expense, shall provide adequate,passageway for the waters of any streams, bodies o� water and drainage facilities (either natural or artificial, and IncludIn water from the Railroad Company s culvert and dra mage facilities), so that said waters may not, because of any facilities or work of the Political Body, he iffil"ded, obstructed, diverted or caused to back up, interfere or damage the property of the Railroad Company or any part thereof, or pproperty of others. The Political Body shall not obstruct or with existing ditches or drainage facilities. (k) Notice. Before commencing any work, the Political Body shall provide 48 hours prior notice (excluding week-eWs and holidays) to the Railroad Company's Chief Engineer. (1) Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad Company's property. The Political way snalltele"p'-fione the Railroad Company at 1-800-336-9193 (24-hour number) to determine if fiber optic,cable is buried anywhere on the Railroad Company s property to be used by the Political Body. If it is, the Political Body will telephone the teIecomunI cat Ions cm"ny(Ias) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad Company's property. The Political Body shall protect all fiber optic cable systems from damage or destruction. Protection of the fiber optic cable systems by the Political Body is an absolute duty and necessity. In addition to the liability terms provided elsewhere in this A�reement, the Political Body shall indemnify and hold the Railroad Company harmless against and fran all cost, iabiIity, and expense whatsoever (including without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission 4 Pageh4 of 6 • PHC 861216 Form Approved, AVP-law of the Political Body, its contractor, agents and/or employees, that causes or in arty way or degree contributes to (1) any damage to or destruction of any telecommunications system by the Political Holy, and/or its contractor, agents and/or employees, on the Railroad Company's property; (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 the Railroad Company's property; or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of, such telecomnunication company or companies, whether or not third parties or the Railroad Company, its contractor, agents and/or employees contributed thereto. Section 9. INTERIM WARNING DEVICES. If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the Political Body shall intall adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect theme-Mring public until the new or improved devices have been installed. Section 10. LIABILITY INSURANCE. (a) Before construction work begins, the Political Body or its contractors shall provide to the Railroad Company the original and one copy of a Railroad Protective Liability Insurance Policy, naming the Railroad Company as insured, with limits as specified in the Federal Hi hway Program Manual which is current when construction and/or maintenance work begins, but in no event less than 2 million per occurrence/$6 million aggregate. The policy must be in effect during the entire time the Pol tical Body or its contractor is working on Railroad Company property. (b) All contractors and subcontractors working on Railroad Company property shall provide to Railroad Company a certificate verifying that a standard contractor's Comprehensive General Liability Policy with broad form endorsement with a combined single limit of $2,000,000 per occurrence, is effective with respect to such contractor and subcontractor. Such certificate shall state that the policy will not terminate or be modified without the Railroad Company being given thirty (30) days notice. (c) The insurance policies shall define the terms "person" to include employees of the Railroad Company, as well as other persons, and the term "property" as herein used shall include, as well as other property, property owned by and property in the care, custody or control of the Railroad Company. (d) Each policy shall conform substantially with the Public Liability and Property Damage Policy provided in United States Department of Transportation, Federal Highway Administration directives as published in its Federal-Aid Highway Program Manual, Volume 6, Chapter 6, Section 2, Subsection 2, and be issued by a reliable insurer satisfactory to the Railroad Company and authorized to do business in the State in which the work is to be performed. Each policy shall cover all work to be performed and all operations to be conducted under this Agreement. The monetary limits of insurance furnished in connection with the future reconstruction or maintenance work on the highway in the vicinity of the Railroad Company's said trackage and facilities shall conform to the limits prescribed by the Railroad Company in connection with new public projects at the time the work of maintenance or reconstruction is performed. Section 11. OTHER RAILROADS. All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad Company and any other railroad company lawfully using the Railroad Company's property or facilities. Section 12. REMEDIES FOR BREACH OR NONUSE. (a) If the Political Body shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad Company, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad Company is necessary to place the highway and appurtenances in such condition as wilt not menace, endanger or interfere with the Railroad Company's facilities or operations or jeopardize the Railroad Company's employees; and the Political Body will reimburse the Railroad Company for the expenses thereof. (b) r--by the Political Body of the Crossing Area for public roadway purposes continuing at an time for a period—o-f eighteen (18) months shall, at the option of the Railroad Company, work a termination of this Agreement and of all rights of the Political Body hereunder. (c) The Political Body will surrender peaceable possession of the Crossing Area upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. Section 13. MODIFICATION - ENTIRE AGREEMENT. No waiver, modification or amendment of this agreement shall be of any force or effect unless made in writing, signed by the Political Body and the Railroad Company and specifying ith particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad Company of any default by the Political Body shall not affect or impair any right arising fron any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the Political Body and 2978h of 6 5 PNC 961216 Form Approved. AVP-law the Railroad Company and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work of any part thereof. Section 14. ASSIGNIENT; SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned without the written consent of the Railroad Company. Subject hereto, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Pa 6 of 6 6