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HomeMy WebLinkAboutTwin Creeks Rail - New Grade Crossing AgreementRE Contract: RR Pr*ctW. 09CORP02R XORA9-M VEM13.34320 CONSTRUCTION AND MAINTENANCE AGREEMENT CONSTRUCTION OF NEW GRADE CROSSING MILEPOST 446.35 CITY OF CENTRAL POINT, COUNTY OF JACKSON, STATE OF OREGON THIS AGREEMENT made this °-)N� day of 2017, by and between the CITY OF CENTRAL POINT, hereinafter called "Roadway Authority", and the CENTRAL OREGON & PACIFIC RAILROAD, INC., a Delaware corporation, hereinafter called "Railway": WITNESSETH: WHEREAS, the Railway currently holds interest in real estate situated at or near Central Point, County of Jackson, State of Oregon, at Mile Post 446.35, Roseburg Subdivision, and RAILWAY has the right to possess and operate over the Premises, as such term is defined below; and WHEREAS, in the interest of public safety and aiding motor vehicle and pedestrian traffic, Roadway Authority wishes to construct a new public crossing approximately 130 feet wide and extending Twin Creeks Crossing east of Twin Creeks Park, resulting in an at -grade crossing over Railway's land and tracks, specifically located at Railway's Milepost 446.35, Roseburg Subdivision (heretofore and hereinafter called "Premises"), with DOT# 927297W, Railroad Project # 09CORP02R, hereinafter called "Project"; located in the City of Central Point, County of Jackson, State of Oregon attached hereto and hereby made a part hereof as Exhibit "A" is a Project Print showing the type, size and location of the new at -grade crossing structure; and WHEREAS, The Oregon Department of Transportation issued rail crossing Order Number 51228 authorizing the construction of the new crossings, and the installation of approximately 3,268 track feet of continuously welded rail on the crossings approaches as described herein (hereinafter called "Structure'); and WHEREAS, the Roadway Authority is willing to undertake the entire cost and expense of construction of the Structure with City funds available for this purpose and the Railway is willing to consent to and assist with the work related to the implementation of the Project upon the terms and conditions herein stated and not otherwise; and WHEREAS, the Roadway Authority has acquired an easement from Railway for the proposed Structure through agreement # CORP080625, and WHEREAS, said Structure shall be constructed in accordance with plans and designs, which shall be subject to the mutual approval of Railway and Roadway Authority, and WHEREAS, the Railway and Roadway Authority hereto desire to contract with reference to the work to be done by each of those in connection therewith, the manner of the work to be performed, and the payment of costs and expense therein involved. NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is mutually agreed as follows: Upon receipt of payment from Roadway Authority described in the subsequent sentence and provided Roadway Authority is in compliance with the terms and conditions of this Agreement, Railway agrees to grant to Roadway Authority, its successors and assigns, an easement (hereinafter called, the "Easement") to enter upon and use that portion of Railway's right-of-way as is necessary to use and maintain the Structure, substantially in the form of Exhibit "A" attached to this Agreement. Roadway Page 1 of 10 RE Contract: RR Project#: 09CORP02R XORPJUM VEM1&34320 Authority has paid Railway the sum of One Hundred and Twenty -Five Thousand and No/100 Dollars ($125,000) as compensation for the Easement. I. Performance of Work The Roadway Authority and Railway will each perform various items of work as described below: A. WORK TO BE PERFORMED AND MATERIALS FURNISHED BY EITHER ROADWAY AUTHORITY OR ITS CONTRACTOR AT ROADWAY AUTHORITY EXPENSE 1. Proiect Plans & SDec'fiications and Construction Except as otherwise herein provided, furnish all plans, engineering, supervision, labor, material, supplies and equipment necessary for construction of the Structure. Roadway Authority shall obtain written approval of Project Plans & Specifications prior to construction of the Structure. 2. Roadwav Construction As directed in Order Number 50837, Section 3 c, bear responsibility for the construction of the new highway roadbed outside of the Railway ties and the new roadway up to the edge of the railroad crossing surface to include but not limited to all pavement structure, pavement surface, shoulders, drainage, sidewalks, pavement striping, advance pavement markings, erosion control, tree cutting, mowing, and advance warning signs. 3. Subarade Utilitv Construction Bear responsibility for (i) ensuring that each utility line is installed in accordance with a written agreement with Railway and (ii) the construction of the new utility lines under the track for Roadway Authority use to be installed as part of this Project. All Subgrade Utility Crossings under tracks will be installed in accordance with Railway requirements and specifications. 4. Maintenance of Traffic Bear responsibility for all traffic detours, maintenance of traffic, and all other roadway modifications, permanent or temporary, necessary for Railway to complete crossing surface and warning device installations as needed. 5. Schedule & Notification Provide project construction schedule and notify Railway sixty (60) days prior to date Railway is to perform work and/or provide flagging services. B. WORK TO BE PERFORMED AND MATERIALS FURNISHED BY THE RAILWAY AT ROADWAY AUTHORITY EXPENSE 1. Enaineerina and Bill Preparation The Railway, at the Roadway Authority's expense shall perform preliminary and special engineering, review, and inspection, including field and office work and preparation of bills. 2. Construction SIGNAL WORK The Railway, at the Roadway Authority's expense per Errata Order Number 50851, Section 4(b), will install 4 new gates with LED flashers per the Roadway Authority's construction plans previously provided to the Railway and in accordance the attached drawings No R-07, dated January 2017 (or the latest revision) attached as Exhibit "A", and approximately 3,268 track feet of continuous welded rail on the track approaches, with projected cost estimates for construction described in Exhibit "B". CROSSING SURFACE/ RESURFACE WORK The Railway, at the Roadway Authority's expense, will install 138.125 feet of new concrete crossing surface at the crossing site in accordance with ODOT Order No. Page 2 of 10 50837, Section 4(a) and latest revision) attached described in Exhibit "B". RE Contract: RR Pr *&. 09CORP02R XORAILA VEM1334320 the attached drawing No. R-07, dated January 2017 (or the is Exhibit "A" with projected costs estimates for construction The estimate provided in Exhibit "B" is not intended to be a guarantee of construction costs and actual construction cost may differ based upon variables encountered at and during construction. For the Project, the work will commence following the release of a Notice to Proceed from the Roadway Authority. 3. Flaaaino Perform flagging and furnish requested services and devices during construction operations of the Roadway Authority or its contractor, as deemed necessary by the Railway. Any flagging cost or protective services performed by the Railway or its contractor shall be at the Roadway Authority's expense. 11. Construction Plans and Specifications The Roadway Authority or its contractors shall perform its work in accordance with detailed plans and specifications which shall be prepared by the Roadway Authority or its contractors and submitted to Railway Manager of Public Projects for approval of those sections that are within or adjacent to Railway's right-of-way, affecting facility or operations of the Railway. No work pursuant to said plans and specifications shall be performed on the right-of-way of the Railway prior to receipt of notices to proceed given by the Railway Manager of Public Projects and authorized representative to the Roadway Authority engineer or their respective authorized representatives. Nothing provided in this Agreement with respect to said plans and specifications shall be construed or deemed to be ratification or an adoption by the Railway of either or both said plans as its own. III. Traffic Protection and Safety All work herein provided for, to be done by the Roadway Authority or its contractors on the Railway's right- of-way, shall be performed by the Roadway Authority or its contractors in a manner satisfactory to the Railway and shall be performed at such time and in such manner as not to interfere unnecessarily with the movement of trains or traffic upon the tracks of the Railway. The Roadway Authority or its contractors shall enter into a "Right -of -Entry Agreement" with the Railway prior to the first entry onto Railway's right-of- way. The Roadway Authority shall reimburse the Railway for all actual costs thereof, including, without limitation, both direct and indirect labor additives. The Railway will submit bills for flagging and other protective services and devices currently during the progress of the work contemplated by this Agreement. The Railway shall have one hundred twenty (120) days to submit complete billing for flagging and other protective services and devices, and the Roadway Authority shall pay such bills within thirty (30) days of it receipt of billing. Wherever the safeguarding of trains or traffic of the Railway is mentioned in this Agreement, it is intended to cover and include all users of the Railways tracks having permission for such use. The Roadway Authority's foregoing obligations in this Provision to require its contractors on the Railways right-of-way to first sign a "Right -of -Entry Agreement" shall survive the term of this Agreement to apply to any entry, including but not limited for purposes of inspection, repair, replacement or removal. IV. Compensation For and in consideration of the sum of Five Thousand and No/100ths Dollars ($5,000.00) such sum to be paid by the Roadway Authority to the Railway upon the execution and delivery of this Agreement, the terms and conditions of this Agreement, which are and subject to the terms and conditions of the Lease. Page 3 of 10 RE Contra 0, RR Project#: 09CORP02R XORFUL#. VEM13-34320 V. Conditions, Restrictions, and Limitations All the aforementioned rights are granted subject to the terms, provisions, conditions, restrictions, limitations, covenants, reservations and exceptions contained in this agreement, including, without limitation, those set forth in Exhibit "C" attached hereto and by this reference incorporated herein; and Roadway Authority, in the exercise of the rights and in the conduct of the Project, shall and will do, keep, observe and perform each and all of the terms, provisions, conditions, restrictions, limitations, covenants, reservations and exceptions. The Roadway Authority shall ensure that its contractor(s) obtain and provide to Railway evidence that such contractor(s) have procured the insurance coverage described in Exhibit "C", hereto attached, covering their work on Railways property covering this Project. If the Roadway Authority contracts any work on or adjacent to Railway's tracks or property, the Roadway Authority will require such contractor(s), to the extent allowed by law, to agree in writing to the extent not limited by the Oregon Tort Claims Act (ORS 30.269): "DEFEND, INDEMNIFY AND HOLD HARMLESS RAILWAY, ITS AFFILIATED AND PARENT COMPANIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITIES OF EVERY KIND (INCLUDING REASONABLE ATTORNEYS' FEES, COURT COSTS, AND OTHER EXPENSES RELATED THERETO) FOR INJURY TO OR DEATH OF A PERSON OR FOR LOSS OF OR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY WORK DONE, ACTION TAKEN OR PERMITTED BY THE CONTRACTOR. IN NO EVENT UNDER THIS AGREEMENT WILL RAILWAY HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE TERM "RAILWAY" AS USED IN THIS ARTICLE V SHALL INCLUDE THE SUCCESSORS, ASSIGNS, AND AFFILIATED COMPANIES OF RAILWAY, AND ANY OTHER RAILROAD COMPANY THAT MAY BE LAWFULLY OPERATING UPON AND OVER THE TRACKS, OR THE TRACKS CROSSING OR ADJACENT TO THE TRACKS, AND THE OFFICERS, AGENTS, INVITEES AND EMPLOYEES THEREOF. The Roadway Authority's foregoing obligations in this Provision to require its contractors, to the extent allowed by law and to the extent limited by Oregon tort claims act, to indemnify Railway shall survive the term of this Agreement. VI. Compliance with Federal Regulations The current provisions of 23 CFR (Code of Federal Regulations) parts 646, subpart B and 23 CFR parts 140, subpart I, shall apply to the work to be done under this agreement, and said memorandum is hereby incorporated in and made a part of this Agreement by reference. If the Railway enters into a contract or agreement with a contractor to perform any of the work, which the Railway is required to perform under the terms of this Agreement, the Railway, for itself, its assigns and successors in interest, agrees that it will not unlawfully discriminate in its choice of contractors. VII. Signatory Warranty Each signatory to this agreement certifies that he has the authority to enter into this agreement on behalf of his respective organization. VIII. Tenn, Ownership, and Maintenance Responsibilities The term of this Agreement commences on the date on the top of page one hereof and shall continue for a period not to exceed the earlier of the 12 months from the date construction commences within the Railway's Right -of -Way or completion of the construction of the Project as determined by the Railway. The Roadway Authority's obligations in the following paragraphs of this Provision and the indemnities in Exhibit "C" shall survive the term of this Agreement. Page 4 of 10 RE Contract: RR Project#: 09CORP02R XORAIL#: VEM1334320 Upon completion of the crossing, the Roadway Authority, at the Roadway Authority's expense, will be responsible for the maintenance of the highway roadbed outside of the railway ties and the roadway up to the edge of the railroad crossing surface to include but not limited to all pavement structure, pavement surface, shoulders, drainage, sidewalks, pavement striping, advance pavement markings, erosion control, tree cutting, mowing, and advance warning signs. Upon completion of the crossing, the Railway, at the Roadway Authority's expense, will be responsible for the maintenance of the railroad signal system, crossing surface, trackbed and rail components, plus the highway roadbed, for the width of the rail ties within the crossing area. This maintenance expense will be accomplished by a one-time lump sum payment of $10,000 as part of this Agreement. In addition, the Roadway Authority, at the Roadway Authority's expense, will be responsible for the complete future repair or replacement of said crossing surface and warning devices. This includes all crossing surface repair and replacement costs required due to Acts of God, normal wear and tear, and damage from accidents where third party accountability cannot be determined, and any other cause not attributable to the Railway. IX. Assignment Neither party has the right to assign this Agreement without the consent of the other. Notwithstanding the foregoing, this Agreement shall inure to the benefit of and be binding on the parties hereto, their successors, and assigns. X. Termination In the event that the Railway abandons the tracks at this crossing through a formal process before the agency or court having jurisdiction for such abandonment proceedings and receives approval from such agency or court, all Maintenance Fees as contained in "Section VIII Term, Ownership and Maintenance Responsibilities", will terminate at the next Agreement anniversary date. No compensation or refunds will be provided to the Roadway Authority by the Railway for mid -year Agreement terminations. XI. Construction The Roadway Authority shall complete all construction within one (1) year of the execution date of this agreement. If construction has not commenced within one (1) year, this agreement becomes null and void. If construction has commenced and is not complete, the Roadway Authority shall provide the Railway a time line for the completion of the construction. The Railway will review the time line and determine if amendments to the terms of this agreement or supplemental agreements are required prior to the completion of construction. XII. Buy America Railway acknowledges that this Agreement is for a federal -aid project and Railway shall comply with the Buy America provisions set forth in U.S.C. Section 313 and 23 CFR 635.410, in the procurement and use of steel and iron produced in the United States, subject to the conditions therein set forth. Page 5 of 10 RE CoWed* RR Pr*cUP. 09CORP02R XORAIL* VEM13-34320 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year hereinafter written. WITNESS: CITY OF CENTRAL POINT ROADWAY AUTHORITY ^` By:—C�-. C.�Y,�1 City Administrator v APPROVED AS TO CONTENT: PUBLIC WORK DEPARTMENT By: Public Works Director TO FORM: By: City Recorder COUNTERSI NED: By�� Financ D rector WITNESS: CENTRAL OREGON & PACIFIC RAILROAD, INC., a Delaware corporation A ti orized Representative Signature ;i—� i��U Authorized Representative Name (print) / Title Page 6 of 10 Exhibit "A" RR PROJECT # 09CORP02R At -Grade Crossing Construction MP 445.56 CENTRAL POINT, OREGON Print date: 01/22/17 4t RE Coft : RR Pro*W.. 09CORP02R XORPJL#: VEM13-34320 Page 7 of 10 RE Contract* RR Project#: 09CORP02R XORAIM. VEM13-34320 Exhibit "B" RR PROJECT # 09CORP02R Preliminary Cost Estimate for Total Railroad costs of Construction of PROJECT to Roadway Authority 40 s��mm.-.xro CRNTKM OIFl1110DM Allo PAfCWIC RAMJMD (COR!) aenmParr,{rsm.Ro .�utas rr W rrr! rr�.rz..rasrsa..�r. rrrrrr..r.r�. rtrrarr�� a.rcrrocr�r+rre. �� asr.r.yw.rrs �.ar��rr�r.r.. wrrr.r.��.�rrr btrm�ewm mn...mrwKnr�...w.awnvr�.r�.r.w® .�rrr.rww.s�.rr M.rr mRexu r.rrmmwerrrr.erw.�aw.v r�r.w® •P..r.mIllMCru�e+r.�.�.wns r.�.a.rlrro erarrrrwria�rlr+� �rm�enn dn.rsrra.sw.r��.u. •irrro�srYrA�r�w.Asr.�,r�rl wmm�r w rera<rn+r an rrefrgwe�.tsrrrnr�.ra��+r.rrr ss..�Asrswr.r! wrrrr�s �rrr r:�.ewr. tlr� rarrr�wrrrrrrr.rrrr Mfar 1wa�o.Orf .Ywr.w P.w orc.ww r.cr+a+s rl.: lrrlrrwar�r.r�lriariYlslr.wr/..�rsarra �teerrrrrr�rrr�awrlwr.r 1.rrrrYr.r��.tr rr�.rrrv�"rnrt s. rr+r+�r��rr�rrrs .. �Mrw-S�rrr�' !lrrr.rlr w.r.r�rr.p���r .. .iar+rtwnww+r�r+�ra4 rr.rir� Page 8 of 10 RE Contract: RR ProjedN: 09CORP02R XORAIM VEM13-34320 Exhibit C Insurance Requirements The coverage afforded hereunder shall include the liability assumed by the named insured under the following indemnification provisions contained in an agreement in writing between the named insured and CENTRAL OREGON & PACIFIC RAILROAD, covering work to be performed upon or adjacent to its property Mile Post 445.56, quoted herein below for convenience: TO THE EXTENT NOT LIMITED BY THE OREGON TORT CLAIMS ACT (ORS 30.269), , ROADWAY AUTHORITY OR, IN THE EVENT ITS CONTRACTOR IS THE ENTITY PERFORMING SERVICES ON THE PREMISES, ITS CONTRACTOR AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS RAILWAY, ITS AFFILIATED AND PARENT COMPANIES, AND THEIR RESPECTIVE OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITIES OF EVERY KIND (INCLUDING REASONABLE ATTORNEYS' FEES, COURT COSTS, AND OTHER EXPENSES RELATED THERETO) FOR INJURY TO OR DEATH OF A PERSON OR FOR LOSS OF OR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH ANY WORK DONE, ACTION TAKEN OR PERMITTED BY ROADWAY AUTHORITY OR ITS CONTRACTOR, AS THE CASE MAY BE. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, ROADWAY AUTHORITY AND RAILWAY, THAT THE INDEMNITY PROVIDED FOR IN THE FOREGOIN PARAGRAPH, TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNIFIES RAILWAY FOR ITS OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS ACTIVE OR PASSIVE, OR IS THE SOLE OR A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE; PROVIDED THAT SAID INDEMNITY SHALL NOT PROTECT RAILWAY FROM LIABILITY FOR DEATH, INJURY OR DAMAGE ARISING SOLELY OUT OF THE CRIMINAL ACTIONS OF RAILWAY, ITS OFFICERS, AGENTS AND EMPLOYEES. IT IS STIPULATED BY THE PARTIES THAT RAILWAY OWES NO DUTY TO ROADWAY AUTHORITY, ITS CLIENT, OR THEIR DIRECTORS, OFFICERS, EMPLOYEES AGENTS OR INVITEES TO PROVIDE A REASONABLY SAFE WORK PLACE AND THAT ALL PARTIES ENTERING ONTO RAILWAY PROPERTY DO SO AT THEIR SOLE RISK. IT IS ACKNOWLEDGED BY RAILWAY, THAT THE ROADWAY AUTHORITY IS SELF INSURED. The policy or policies shall provide coverage in amount of not less than Two Million Dollars ($2,000,000) combined single limit for all damages arising out of bodily injury to or death of persons and for loss of or damage to property. The policy or policies, where applicable and available, shall contain Insurance Services Office Standard Endorsement CG 2417. The policy must contain a waiver of subrogation in favor of the Railway and the Roadway Authority's insurance coverage is primary. No cancellation of this policy or modification of the coverage afforded under this endorsement shall be effective until ten (10) days' notice thereof has been given to: CENTRAL OREGON & PACIFIC RAILROAD (PSAP); Attn.: Property Management Dept., 333 SE Mosher, PO Box 1083, Roseburg, OR 97470 AND Genesee &Wyoming, Attn: Lary Romaine, 13901 Sutton Park Drive South, Suite 345C, Jacksonville, FL 32224 The policy as outlined herein shall name Railway and as an additional insured. The policy as outlined herein shall name Railway and affiliates as listed below as additional insured with respect to F.E.L.A. coverage, and/or if applicable under the laws of the State in which the work is performed. The policy as required herein shall name Genesee & Wyoming, Inc. and all their affiliated properties, including CENTRAL OREGON & PACIFIC RAILROAD, as insured's. Page 9 of 10 RE CoMract RR Project#: D9CORP02R XORNM VEM1334320 Railway requires that each Insurance Carrier providing coverage must be an Admitted Company in the State for which this Agreement is written and has an A.M. Best rating of "A" or better and a financial class rating of 10 or better. Prior to the performance of any work upon or adjacent to Railways property under this Agreement: (a) ROADWAY AUTHORITY shall furnish Railway, at ROADWAY AUTHORITY expense, a certified copy of a public liability and property damage liability Insurance policy Issued in the name of ROADWAY AUTHORITY covering the contractual liability assumed by ROADWAY AUTHORITY. The form, substance, and limits of said Insurance policy shall be subject to the approval of Railway and shall be in compliance with the provisions contained herein. It is acknowledged by Railway that the ROADWAY AUTHORITY is self Insured. (b) ROADWAY AUTHORITY shall furnish Railway, at ROADWAY AUTHORITY expense, a certificate of Workers Compensation coverage, including Federal Employee Liability Act coverage if applicable, for its workers and subcontractors in accordance with the requirements of the State or States in which said work is to be performed. It is acknowledged by Railway that the ROADWAY AUTHORITY Is self Insured. (c) ROADWAY AUTHORITY shall furnish a policy of Railway Protective coverage in the amount of Two million and no/100 dollars ($2,000,000.00) per occurrence, Six million and no/100 dollars ($6,000,000.00) aggregate with named insured as outlined herein. WARNING: ONLY A POLICY OF RAILROAD PROTECTIVE INSURANCE WHICH SPECIFICALLY NAMES GENESSE & WYOMING INC. AND ALL THEIR AFFILIATED PROPERTIES. INCLUDING CENTRAL OREGON & PACIFIC RAILROAD. AS THE INSURED PARTIES IS ACCEPTABLE AND A COPY OF SAID POLICY MUST BE RECEIVED PRIOR TO THIS PERMIT BEING APPROVED ON BEHALF OF RAILWAY. It is acknowledged by Railway that the ROADWAY AUTHORITY is self insured. ROADWAY AUTHORITY shall keep said insurance in full force and effect until all work to be performed upon or adjacent to the Premises under said contract is completed to the satisfaction of and accepted by Railway and thereafter until ROADWAY AUTHORITY has fulled the provisions of this Agreement with respect to the removal of tools, equipment and materials from the Premises. It is acknowledged by Railway that the ROADWAY AUTHORITY is self insured. Page 10 of 10