Strategies for Improving the Project Agreement Process between Highway Agencies and Railroads (2010) / Chapter Skim
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Appendix C - Model Agreements
Appendix C - Model Agreements
Pages 100-176
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From page 100... ...
The master project agreement also can be the contractual vehicle for the highway agency to fund activities at the railroad, such as paying for dedicated personnel, authorizing preliminary engineering reviews, or compensating the railroad for general staff activities conducted in support of the partnering process. • Preliminary Engineering Agreement.
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From page 101... ...
• Warning Devices Agreement. Warning devices -- for example, gates and lights -- are regularly installed, maintained, improved, and replaced.
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From page 102... ...
There are several benefits to developing a formal memorandum of understanding, including the following: • The act of agreeing on language that explains how the project-agreement process should work requires both parties to agree on a commonly recognized process that they acknowledge to be efficient, logical, and mutually beneficial. • The MOU can serve as a training tool for new staff, or for staff who only occasionally are involved with railroad/highway coordination efforts.
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From page 103... ...
NOW, THEREFORE, be it resolved that the DEPARTMENT and the RAILROAD enter into this MEMORANDUM OF UNDERSTANDING on to commemorate and memorialize their intention to coordinate their activities involving highway and railroad project agreements to the common benefit of both PARTIES, the taxpayer, and the RAILROAD'S shareholders. Section 2: Partnering Both PARTIES agree to operate in a cooperative fashion of Partnering, which includes both PARTIES' acknowledgment of the rights, responsibilities, and institutional obligations of the other while also attempting to positively and constructively assist the other with the development of agreements, plans, specifications, and estimates to enable the ongoing maintenance and repair of highway facilities.
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From page 104... ...
This PRELIMINARY ENGINEERING AGREEMENT shall include mutually agreeable provisions for compensating the RAILROAD for its expenses in relation to the review of plans, specifications, and estimates. Both PARTIES commit themselves to a good-faith effort to develop a mutually agreeable standard PRELIMINARY ENGINEERING AGREEMENT that can be used to efficiently and economically authorize PRELIMINARY ENGINEERING activities.
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From page 105... ...
These actual response times in comparison to desired response times may later be subject to discussion and process-improvement efforts by the PARTIES. Section 10: Stages for Review Both PARTIES agree to identify the desired stages of project review and coordination that they mutually agree to for various types or categories of projects.
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From page 106... ...
Authorization of PRELIMINARY ENGINEERING AGREEMENT; b. Response to 30% plan submittals; c.
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From page 107... ...
A MASTER AGREEMENT that includes standard provisions and protections which address insurance requirements, preliminary engineering, indemnification, due notice, contractor requirements, flagging, and other provisions that are usually and customarily common to all projects; b. A PRELIMINARY ENGINEERING AGREEMENT that includes standard contractual provisions for the authorization of preliminary engineering activities and for the payment, audit, and review of the subsequent engineering activities; c.
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From page 108... ...
In the master project agreement, legally binding commitments are made. They relate to the payment of fees for preliminary engineering, the agreement to impose contract provisions on construction contractors, and the obligation of the highway agency to perform certain functions on a regular basis.
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From page 109... ...
NOW, THEREFORE, the DEPARTMENT and RAILROAD agree to be parties to this MASTER AGREEMENT, which shall consist exclusively of the provisions enumerated below. Section 2: Applicability of Statutes 1.
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From page 110... ...
2. Standard Agreements The PARTIES agree to adopt a specific and mutually agreeable STANDARD PRELIMINARY ENGINEERING AGREEMENT that will address the provision of preliminary engineering reviews by the RAILROAD for projects of the DEPARTMENT, and to address compensation to the RAILROAD for those reviews and all related activities.
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From page 111... ...
5. Insurance The DEPARTMENT agrees to require as part of any contract documents, plans, or specifications that the contractor shall provide railroad protective liability insurance in the amount of $5,000,000 for combined single limit per occurrence of bodily injury, death, and property damage, with an aggregate limit of $10,000,000 applying separately annually, as set forth in Federal-Aid Policy Guide, Chapter 1, Subchapter G, Part 646, Subpart A (23 CFR 646A)
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From page 112... ...
9. Control of Worksite Both PARTIES agree that the RAILROAD Roadmaster or designee shall have control over all aspects of the construction or maintenance operations that will have any effect on RAILROAD property, the operation of trains, the safe conduct of railroad operations, or that will have any effect on utilities or other assets on railroad rights-of-way.
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From page 113... ...
The PARTIES agree to develop "lump sum" payment schedules for recurring items such as flagging services, the installation of grade crossing warning devices, costs necessary for the pavement and ride-surface repair of at-grade crossings, and other recurring costs as authorized in Federal-Aid Policy Guide, Subchapter G, Part 646B, Attachment 3, of July 6, 2005. The PARTIES agree to identify such simplified payment schedules that are to the mutual convenience of both PARTIES and that satisfy the due diligence under which both PARTIES are required to operate.
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From page 114... ...
By making the authorization of preliminary engineering reviews routine, the parties can quickly get consultant reviewers under contract so that reviews and mutual consultations can begin.
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From page 115... ...
Section 5: Work by the Department The DEPARTMENT shall furnish or cause to be furnished, at its expense, all the labor, materials, and work equipment required to perform and complete: 1. The preliminary engineering work required for preparation of plans, specifications, and special provisions; and 2.
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From page 116... ...
RAILROAD may elect, by delivery of notice to the DEPARTMENT, to immediately cease all further Engineering Work unless and until the DEPARTMENT provides such approval and confirmation. Section 10: Reimbursable Expenses The DEPARTMENT shall reimburse the RAILROAD for all costs and expenses incurred by the RAILROAD in connection with the Preliminary Engineering Work as detailed in the Estimate.
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From page 117... ...
3. However, this AGREEMENT shall cease immediately, without penalty to or payment by the DEPARTMENT, should the State General Assembly or Federal Highway Administration fail to appropriate or otherwise make available funds for the Project, and this AGREEMENT will become NULL and VOID, except that the DEPARTMENT shall reimburse the RAILROAD for all costs incurred by the RAILROAD prior to the notice of cancellation.
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From page 118... ...
In WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed in duplicate counterparts, each by its duly authorized officers and each of which shall be considered as an original, as of the date of this AGREEMENT. Executed by the RAILROAD and the DEPARTMENT, this day of , 20 .
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From page 119... ...
3. The review of construction cost estimates, site surveys, assessments, studies, and related construction documents submitted to the RAILROAD by DEPARTMENT for the Project ("Engineering Work")
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From page 120... ...
120ATTACHMENT B STATE-REQUIRED ETHICAL STANDARDS GOVERNING CONTRACT PROCUREMENT The certifications hereinafter made by the RAILROAD are each a material representation of fact. The DEPARTMENT may terminate the agreement if it is later determined that the RAILROAD rendered a false or erroneous certification.
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From page 121... ...
The highway agencies and railroads often share the cost of the crossing improvement, or at least coordinate the efforts to minimize disruption to traffic and to economize on their respective efforts. These standard agreements address resurfacing projects that are paid for with federal and state funds.
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From page 122... ...
for each crossing project. Include: Exhibit A: Work Statement Exhibit B: Cost Estimate
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From page 123... ...
, hereinafter referred to as the RAILROAD, and the State of , Department of Transportation, hereinafter referred to as the DEPARTMENT, is entered into on this day of , 20 . The HIGHWAY AUTHORITY and the RAILROAD agree to repair the at-grade crossing located at and further agree as follows: Section 1: Work Statement and Performance The RAILROAD and the HIGHWAY AUTHORITY have determined the extent of the repair to be performed at this crossing, including railway, railway approach modifications, and replacement of existing sidewalks and/or recreational trails.
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From page 124... ...
Pavement markings and stop lines shall be placed by the HIGHWAY AUTHORITY as required by the Highway Manual on Uniform Traffic Control Devices for Streets and Highways. If the existing traffic control devices at a multiple-track highway-rail grade crossing become improperly placed or inaccurate because of removal of some of the tracks, the existing devices shall be relocated and/or modified at RAILROAD expense pursuant to the Manual on Uniform Traffic Control Devices, Part 8.
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From page 125... ...
Section 16: Integration and Amendment This AGREEMENT and its exhibits constitute the entire Agreement between the DEPARTMENT, the RAILROAD, and the HIGHWAY AUTHORITY concerning this project. If the DEPARTMENT determines that a substantial change is to be made in the project work described in Exhibit A, the DEPARTMENT will furnish the written approval of the change.
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From page 126... ...
IN WITNESS WHEREOF the RAILROAD, the HIGHWAY AUTHORITY, and the DEPARTMENT hereto have caused this AGREEMENT to be executed by their duly authorized officers as of the dates indicated below. Executed by the RAILROAD this Name of Railroad day of , 20 By Name and Title Executed by the HIGHWAY AUTHORITY this Name of Highway Authority day of , 20 By Name and Title Executed by the DEPARTMENT this Name of Department day of , 20 By Name and Title
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From page 127... ...
days before the actual starting date to allow the HIGHWAY AUTHORITY adequate time to provide and install appropriate signs on the detour. The RAILROAD shall also advise the State Project Inspector fourteen (14)
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From page 128... ...
Railroad forces Railroad's Contractor Highway Authority forces Highway Authority's Contractor 7. Drainage (mark with an X)
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From page 129... ...
Include: Exhibit A: Work Statement Exhibit B: Cost Estimate
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From page 130... ...
, hereinafter referred to as the RAILROAD, and the State of , Department of Transportation, hereinafter called the DEPARTMENT, is entered into on this day of , 20 . The HIGHWAY AUTHORITY and the RAILROAD agree to repair the at-grade crossing located at and further agree as follows: Section 1: Work Statement and Performance The RAILROAD and the HIGHWAY AUTHORITY have determined the extent of the repair to be performed at this crossing, including railway, railway approach modifications, and replacement of existing sidewalks and/or recreational trails.
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From page 131... ...
The DEPARTMENT shall arrange an inspection with the RAILROAD and the HIGHWAY AUTHORITY in order for all parties to determine whether the project work has been completed in accordance with the terms of this AGREEMENT or Amendments thereto. Pavement markings and stop lines shall be placed by the HIGHWAY AUTHORITY as required by the Highway Manual on Uniform Traffic Control Devices for Streets and Highways.
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From page 132... ...
If the DEPARTMENT determines that a substantial change is to be made in the project work described in Exhibit A, the DEPARTMENT will furnish the written approval of the change. Section 17: Termination for Convenience In the event of nonappropriation of federal funds, the DEPARTMENT may terminate this AGREEMENT in whole or in part, when the DEPARTMENT, HIGHWAY AUTHORITY, and the RAILROAD agree that the continuation of the Project would not produce beneficial results commensurate with future disbursement of federal funds.
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From page 133... ...
IN WITNESS WHEREOF the RAILROAD, the HIGHWAY AUTHORITY, and the DEPARTMENT hereto have caused this AGREEMENT to be executed by their duly authorized officers as of the dates indicated below. Executed by the RAILROAD this Name of Railroad day of , 20 By Name and Title Executed by the HIGHWAY AUTHORITY this Name of Highway Authority day of , 20 By Name and Title Executed by the DEPARTMENT this Name of Department day of , 20 By Name and Title
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From page 134... ...
days before the actual starting date to allow the HIGHWAY AUTHORITY adequate time to provide and install appropriate signs on the detour. The RAILROAD shall also advise the State Project Inspector fourteen (14)
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From page 135... ...
and/or Recreational Trail Replacement by Highway Authority The quadrants requiring upgrades to meet ADA requirements (mark with an X) Sidewalk (5′ width required)
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From page 136... ...
These activities require strict control of construction activities and close coordination among the highway agency, the railroad, and the contractor.
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From page 137... ...
; WHEREAS, the RAILROAD desires to cooperate with the DEPARTMENT in the construction of the Project by permitting the construction and future maintenance of the Project over its track and right-of-way and the performance of other services as may be required that do not interfere with the RAILROAD'S use and enjoyment of the right-of-way; WHEREAS, the RAILROAD desires to cooperate with the DEPARTMENT in the construction of the Project with the understanding that the DEPARTMENT will be solely responsible for the cost of constructing and maintaining the new bridge and bearing all other costs and expenses associated with the Project. NOW, THEREFORE, in consideration of the mutual covenants and agreement of the PARTIES contained herein, the receipt and sufficiency of which are hereby acknowledged, the PARTIES agree as follows: Section 1: Scope of Work The RAILROAD, the DEPARTMENT, and/or their Contractor agree to perform the work, including but not limited to construction of said Structure; the necessary earthwork to effect the clearance, grading, drainage, and paving of the highway; the sodding, seeding, and planting of slopes; the highway guardrails; the preliminary engineering; and the construction engineering required, as detailed in Exhibit A
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From page 138... ...
5. The DEPARTMENT agrees to reimburse the RAILROAD for work of an emergency nature caused by the DEPARTMENT or the DEPARTMENT'S contractor in connection with the Project that the RAILROAD deems is reasonably necessary for the immediate restoration of railroad operations or for the protection of persons or RAILROAD property.
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From page 139... ...
to notify the RAILROAD'S Roadmaster at least thirty (30) calendar days before commencing work on or over RAILROAD property or near the RAILROAD'S tracks.
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From page 140... ...
Moreover, for any work performed in the State of , the DEPARTMENT will require its contractor to indemnify the RAILROAD and any other railroad company occupying or using the RAILROAD'S right-of-way or line of railroad against all loss, liability, and damages, including environmental damages, hazardous materials damages, penalties, or fines that may be assessed for, caused by, or the result of the contractor's negligence; provided, however, that if such loss, liability, damages, penalties, or fines are caused by or result from the concurrent negligence of (a) the RAILROAD or the RAILROAD'S officers, employees, or agents and (b)
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From page 141... ...
The DEPARTMENT will own and maintain, at its sole cost and expense, the Overpass, including the highway approaches and the appurtenances thereto, lighting, drainage, and any access roadway up to any gate to RAILROAD property installed pursuant to this AGREEMENT. If the RAILROAD determines in good faith that emergency maintenance work on the Overpass is needed for the immediate restoration of railroad operations or for the protection of persons or RAILROAD property, such work may be performed by the RAILROAD without prior approval of the DEPARTMENT.
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From page 142... ...
9. Any books, papers, records, and accounts of the PARTIES hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the PARTIES hereto, as well as the State of and the Federal Highway Administration, for a period of three (3)
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From page 143... ...
IN WITNESS WHEREOF, the parties hereto have caused this MASTER AGREEMENT to be executed in duplicate by their proper officers thereunto duly authorized, as of the day and year first herein written. RAILROAD (Federal Tax ID # )
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From page 144... ...
144EXHIBIT A DETAILED PLAN OF STRUCTURE/OVERPASS FOR PROJECT Note: The plans will include structure, grading, paving, drainage, and fence.
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From page 145... ...
145EXHIBIT B DETAILED PLANS HIGHLIGHTING RIGHT-OF-WAY AND TEMPORARY EASEMENTS REQUIRED FOR PROJECT Note: These plans will highlight and color code plans in Exhibit A to show the easement, slope, footing, and temporary construction easement and additional square feet to allow the Department to work on construction and will include square feet for other necessary work.
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From page 146... ...
in Exhibit B, the DEPARTMENT agrees to pay the RAILROAD the sum of $ for a one-year term. The DEPARTMENT agrees to pay the RAILROAD the sum of $ as compensation for the combined Footing, Slope, and Temporary Construction Easements.
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From page 147... ...
Changes in communication and signal lines, interlocking and signal apparatus, costing $ . Furnishing of flagging services and other protective services necessary for the safety of the RAILROAD'S personnel and property and for the operation of its trains during construction of the Project, costing $ .
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From page 148... ...
148EXHIBIT E APPROVAL BY THE RAILROAD OF THE PROJECT The RAILROAD hereby approves the plans and specifications and Temporary Easement and other work detailed in Exhibit A and Exhibit B RAILROAD (Federal Tax ID # )
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From page 149... ...
149EXHIBIT F DEPARTMENT AND RAILROAD DESIGNATED CONTACTS FOR THE PROJECT Note: This Exhibit will list contacts for the Railroad and the Department. RAILROAD'S MANAGER OF PUBLIC PROJECTS Railroad: Name: Contact Phone: RAILROAD'S ENGINEERING REPRESENTATIVE Railroad: Name: Contact Phone: DEPARTMENT PROJECT MANAGER Name: Contact Phone: Mailing Address:
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From page 150... ...
The following model agreement addresses installation, repair, and upkeep of warning devices.
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From page 151... ...
WHEREAS, the local public authority, if applicable, having jurisdiction of the highway or street crossing is referred to in this MASTER AGREEMENT and each Supplement as the "LOCAL AUTHORITY." NOW, THEREFORE, in consideration of the mutual covenants and agreement of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1: Scope of Work The RAILROAD will provide all the work, labor, material, and services to install the warning devices, hereinafter called "signals," at the locations described in the applicable Supplement. The LOCAL AUTHORITY shall perform those services necessary to facilitate the processing of all documents required for orderly progress of the project in accordance with the policies and procedures of the State of and the Federal-Aid Policy of the Federal Highway Administration.
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From page 152... ...
B If a LOCAL AUTHORITY has jurisdiction of the highway or street and will have the responsibility to perform the work described in Section 4A or any other work set forth in this MASTER AGREEMENT or shall be responsible for any other obligations under this MASTER AGREEMENT, the DEPARTMENT in a separate agreement with the LOCAL AUTHORITY shall require the LOCAL AUTHORITY to perform such work and/or be responsible for such obligations and shall require the LOCAL AUTHORITY to comply with the terms and conditions contained in this MASTER AGREEMENT and in the respective Supplement.
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From page 153... ...
days of receipt of said final invoice. Section 12: Preliminary Engineering Costs The DEPARTMENT and the RAILROAD acknowledge that the cost of preliminary engineering incurred prior to approval of the specific project by the FHWA is ineligible for reimbursement with Federal funds and will therefore be reimbursed with State funds if incurred after the DEPARTMENT'S request for preparation of estimates.
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From page 154... ...
Section 16: Indemnification Nothing in this MASTER AGREEMENT is intended to be construed as a requirement for an indemnification against the sole negligence of the RAILROAD, its officers, employees, or agents. Moreover, for any work performed in the State of , the DEPARTMENT will require its contractor to indemnify the RAILROAD and any other railroad company occupying or using the RAILROAD'S right-of-way or line of railroad against all loss, liability, and damages, including environmental damages, hazardous materials damages, penalties, or fines that may be assessed for, caused by, or the result of the contractor's negligence; provided, however, that if such loss, liability, damages, penalties, or fines are caused by or result from the concurrent negligence of (a)
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From page 155... ...
and Railroad Company ("RAILROAD") entered into a RAILROAD–HIGHWAY MASTER AGREEMENT ("MASTER AGREEMENT")
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From page 156... ...
Engineering and Accounting 3. Liability Insurance 4.
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From page 159... ...
at [also include a 24-hour, 7-day number for emergency calls] to determine if fiber optic cable is located within the job site area on RAILROAD property.
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From page 160... ...
14. The DEPARTMENT and LOCAL AUTHORITY shall protect and hold harmless the RAILROAD and the RAILROAD'S tenants from and against all loss, liability, and damage arising from activities of the DEPARTMENT or LOCAL AUTHORITY on RAILROAD property during and after Project work.
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From page 161... ...
The Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of the RAILROAD as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000.
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From page 162... ...
L The fact that insurance is obtained by the Contractor will not be deemed to release or diminish the liability of the Contractor, including, without limitation, liability under the indemnity provisions of this MASTER AGREEMENT.
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From page 163... ...
163Pipe and Wire Agreement Agreements known generically as pipe and wire agreements are among the most commonly executed between highway agencies and railroads. These agreements are necessary whenever there is maintenance, construction, or installation of drainage pipes, pipelines, utility lines, or other linear structures that intersect a railway.
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From page 164... ...
. NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: Section 1: Federal-Aid Policy Guide All work, procedures in general, plans, estimates of cost, specifications, and statements of work for projects authorized under this MASTER AGREEMENT and each Supplement shall be prepared in such form and detail as to enable the DEPARTMENT to comply with the Federal-Aid Policy Guide as published in 23 CFR 140, Subpart I, and 23 CFR 646, Subparts A and B
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From page 165... ...
The DEPARTMENT will use the Application Form set forth in Exhibit D to provide details of wires to be used in the project. Exhibit C and Exhibit D are attached hereto and are hereby made part of this MASTER AGREEMENT.
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From page 166... ...
IN WITNESS WHEREOF, the parties hereto have caused this MASTER AGREEMENT to be executed in duplicate by their proper officers thereunto duly authorized, as of the day and year first herein written. RAILROAD DEPARTMENT (Federal Tax ID # )
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From page 167... ...
and Railroad Company ("RAILROAD") entered into a RAILROAD–HIGHWAY MASTER AGREEMENT ("MASTER AGREEMENT")
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From page 168... ...
at [also include a 24-hour, 7-day number for emergency calls] to determine if fiber optic cable is located within the job site area on RAILROAD property.
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From page 169... ...
14. The DEPARTMENT and LOCAL AUTHORITY shall protect and hold harmless the RAILROAD and the RAILROAD'S tenants from and against all loss, liability, and damage arising from activities of the DEPARTMENT or LOCAL AUTHORITY on RAILROAD property during and after Project work.
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From page 170... ...
The Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of the RAILROAD as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000.
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From page 171... ...
L The fact that insurance is obtained by the Contractor will not be deemed to release or diminish the liability of the Contractor, including, without limitation, liability under the indemnity provisions of this MASTER AGREEMENT.
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From page 172... ...
: Name, address, and telephone of bond underwriter: Applicant's acknowledgment of its responsibility to pay for required flagging services: Maintenance agreement included: Yes No Type of organization for which this relocation is required: Private company Public highway agency Municipality Other Is this relocation related to a federally funded project? Yes No Special circumstances: List any unusual or complicating circumstances that may affect the approach, duration, or difficulty of project.
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From page 173... ...
Installation method: Open trench Jacking Boring Installation plans included: Yes No If under, type of conduit: If over, type of wire: Name, address of protective liability carrier for contractor Name: Address: City: State: Zip: Phone: Fax: Amount of surety bond provided and underwriter Amount: Carrier: Maintenance agreement attached: Yes No Requested date of installation: Estimated days of installation: Contractor acknowledges need to schedule and pay for flagging: Type of organization for which this relocation is required: Private company Public highway agency Municipality Other Is this relocation related to a federally funded project? Yes No Special circumstances: List any unusual or complicating circumstances that may affect the approach, duration, or difficulty of project.
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From page 174... ...
This includes the measures to be taken to preserve the safety and flow of rail traffic, structural integrity of the roadway or structure, ease of maintenance, and the integrity of the utility facility. Utility installations on, over, or under RAILROAD property shall conform with requirements contained herein and/or, as a minimum, the appropriate requirements outlined in the following: i.
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From page 175... ...
Mendez, Administrator, Federal Highway Administration Ron Medford, Acting Administrator, National Highway Transportation Safety Administration John C Horsley, Executive Director, American Association of State Highway and Transportation Officials LIAISONS Tony Kane, Director, Engineering and Technical Services, American Association of State Highway and Transportation Officials Jeffrey F
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From page 176... ...
Accelerating solutions for highway safety, renewal, reliability, and capacity Strategies for Improving the Project Agreement Process Between Highway Agencies and Railroads REPORT S2-R16-RR-1 Im proving the ProjectA greem entProcess Betw een H ighw ay A gencies and Railroads 2 0 10 ISBN 978-0-309-12888-9 9 780309 128889 9 0 0 0 0
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