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HomeMy WebLinkAbout1984-03-06; City Council; Resolution 75291 2 3 4 5 6 7 E s l( 13 1; 1: 1L It It 1' Pt l! 2( 2: 2; 2; 24 2: 2( 2: 2E RESOLUTION NO. 7529 A RESOLUTION OF THE CITY CXluNCIL OF THE CITY OF CARLSBAD, CALJFoF5IIA, APPWVING AN AGREEPENT BE'I" TSIE CITY OF CARLSJ3AD Ap;ID THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY FOR CYlNSTRUCTION AND MAINTE3lANCE IN CYlNNEC'I'ION WITH THE POINSETTIA LANE BRIDGE - CON'IWiC'I' NO. 3079. The City Council of the City of Carlsbad, California, does hereby resolve as ollows: 1. That certain agreement between the City of Carlsbad and the Atchison, bpeka and Santa Fe Railway Company for construction and maintenance, referred tx is Supplemental Agreement, a copy of which is attached hereto and incorporated ierein by reference, is hereby approved. 2. The Mayor of the City of Carlsbad is hereby authorized and directed to txecute said ilgreement for and on behalf of the City of Carlsbad. PASSED, AppRovED ADOPTED at a regular meeting of the City Council of thc :ity of Carlsbad held the 6thday of March , 1984, by the iollowing vote, to wit: AYES: Council Members Casler, Lewis, Kulchin, Chick and Prescc NOES: IQXE ABSENT: None UTEST: LdeA MARY H. VLER, Mayor Y - QETE-JA L. RAUT- Z, City Clerk t 435-Ponto Poinsettia Lane OH-56 (Supplement) SUPPLEMENTAL AGREEMENT, made as of this 7, day of FA-., /p between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaw/are corporation, hereinafter referred to as "Santa Fe", and CITY OF CARLSBAD, a political subdivision of the State of California, hereinafter, referred to as Yity". RE C ITA L S: Santa Fe and City are now parties to a contract dated July 18, 1973, Santa Fe's Secretary's Contract No. 142079, being hereafter referred to as "Original Contract", under which City proposes to construct an overpass crossing of Santa Fe's San Diego - Los Angeles tracks at Poinsettia Lane by means of a reinforced concrete structure and approaches thereto to serve the new development in the City of Carlsbad, County of San Diego, State of California. The parties desire to modify the Original Contract as hereinafter provided. AGREEMENT: It is mutually agreed that, Article I, Paragraph 4; Article 11, Paragraphs 7 and 9; and Article 111, Paragraph 4(b) are deleted in their entirety and the following paragraphs are substituted: ARTICLE I 4. To submit to City periodic bills covering the cost of work performed by Santa Fe, and upon completion of the structure, a detailed statement of final costs segregated as to labor and materials, for each item in the recapitulation on Exhibit ''B'', attached hereto and made a part hereof. The rates and schedules for labor, equipment and materials, and manner of billing shall be as set forth in the Federal Aid Highway Program Manual, U. S. Department of Transportation, and any revisions thereof or amendments thereto, which said manual is hereby incorporated in and made a part of this agreement by reference. 3 -1- ARTICLE I1 7. To require its contractor, or contractors, to notify Santa Fe 48 hours in advance of any blasting, so that proper flagging protection may be provided to prevent damage to Santa Fe's trains or property. ARTICLE I1 9. To incorporate in each prime contract for construction of structure, or the specifications therefor, the provisions, entitled "Relations with Railway Company" set forth in Exhibits "C", llC-l", and .!'C-2", attached hereto and made a part hereof, and accepts responsibility of compliance by its prime contractor. ARTICLE I11 4(b) Provided, further, that all expense incurred by Santa Fe, and billed to City, for which City is obligated to reimburse Santa Fe, shall be in accordance with and subject to the terms and provisions of the Federal Aid Highway Program Manual, U. S. Department of Transportation, and any revisions therefor or amendments thereto, and in accordance with the provisions set forth in Article I, Section 4. Also, Original Contract is further amended by the insertion of the Paragraphs 12, 13 and 14 to Article 111, as follows: 12. Before entering upon Santa Fe's property for maintenance purposes, City will notify the AGM-Engineering of Santa Fe in advance, to obtain proper authorization and, if work is contracted, will require its prime contractor, to comply with the obligations in favor of Santa Fe as provided in said Exhibits "C", and accepts responsibility of compliance by its prime contractor. "C-1" and "C-2", 13. City shall indemnify and save harmless Santa Fey its agents and employes against all liability, claims, demands, damages, or costs for (a) death or bodily injury to persons, including without limitation the employes of the parties hereto, (b) injury to property, including without limitation, the property of the parties -2- hereto, (c) design defects, or (d) any other loss, damage, or expense arising under either (a), (b), or (c), and all fines or penalties imposed upon or assessed against Santa Fe, and all expenses of investigating and defending against same, arising in any manner out of (1) use, occupancy or presence of City, its contractors, subcontractors, employes, or agents in, on, or about the construction and/or maintenance site, (2) the performance, or failure to perform, by the City, its contractors, subcontractors, employes, or agents, its work or any obligation under this agreement, or (3) the sole or contributing acts or omissions of City, its contractors, subcontractors, employes, or agents in, on, or about the construction site. Nothing contained in this provision is intended to, nor shall be deemed or construed to indemnify Santa Fe from its sole negligence or willful misconduct, or that of its agents, servants or independent contractors who are directly responsible to it, as provided in California Civil Code Section 2782. 14. In the event that construction has not begun for a period of three years from date of signing agreement, this agreement shall be null. and void. 15. City agrees that, notwithstanding any provision herein to the contrary, if City shall deem it necessary or desirable in the future to widen the structure herein contemplated, it shall do so at its sole cost and expense and at no cost nor expense to Santa Fe. EXHIBITS Exhibits A, By C, C-1 and C-2 are hereby revised and attached hereto. X X X -3- IN WITNESS WHEREOF, the parties hereto have duly executed this agreement the day and year first above written. TLIE ATCHISON, TOPEKA AND SAlpTA FE RAILWAY COMPARY APF"L[L Asst. General Manager-Engineering The Atchiscn, Topeka and Santa Fe Ra(l\wy Corn pa ny 185 6 1C R* .? BY Its D(ECUTI\/E V!CE PRESIDENT CITY OF CARLSBAD Its -4 - 3fj056 SECY'S NO. r E X H I B IT 'A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE. RAILWAY COMPANY AND CITY OF CARLSBAD CHICAGO, ILLINOIS SCALE: 1 IN. TO 100 FT. -6L2Sb-h DIV. DIST. DATE December 14, 1983 ffiM&---- GEF ENGINEER DESCRIPTION APPROVED I I I I Sfa. Z/OO+37 M. P 233 +364/ -To Fullerton To Naiional City- Description: A reinforced comrefe structure locatedon fhe Railway Companys Riqht of way as shown bid. .Land covered by this contract shown shaded. I San Diego Comfy, Califom@ C.E. DRAWING NO. 1 -Of000 7 I 1 -,% C.E. FILE NO.64-607-00671 DIV. DWG. NO. DiV. FILE NO. G.M. FILE NO. Mfi? &nset&Lm OH THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY - COAST LINES E MI I BI T lrB1' Estimated cost of Labor and Material required for Engineering, Inspection, and Flagging, and make temporary and permanent changes in Communication and Signal Systems for construction of Poinsettia Lane Overpass crossing of Los Angeies Division, 4th District track at Mile Post 233+3841 at Ponto. Office of A.G.M. - Engineering Los Angeles, January 5, 1984 File: 435-Ponto (Poinsettia Lane) ESL6/1856C THE mSON, TOPEKA AND SANTA FE Signal Material Comm. Material Permanent Signal Material Comm. Material Handling at Storehouse Use Taxes Transportation to Site of Job Equipment Rental Estimated Cost of Material E XHI BIT " B " $ 3,854 1,314 6,351 1 , 085 630 794 2 98 1, io5 $15,431 LABOR : Engineering, Inspection and Flagging Com. Engineering (Preliminary) Comm. Engineering (Construction) Temporary Work Signal Engineering Signal Labor Communication Labor Permanent Work Signal Engineering Signal Labor Communication Labor $5 , 000 ' 78 78 180 1,803 2,066 270 2 , 705 2 , 066 Payroll Associated Costs (Vacation, Paid Holiday, Retirement, Unemployment Tax, Health & Welfare Benefits, Group Life Insurance, Workman's Comp. & Liab. Ins. , and Excise Tax) 6,639 Insurance 1,037 Expenses 3,908 Billing and Accounting 413 Estimated Cost of Labor Total Estimated Cost of Labor and Material $26 , 243 $41 , 674 Contingency Credit for Material Recovered 4,167 (675) Total Estimated Cost of Work to be performed by Santa Fe , forces and paid for by the City of Carslbad $45,166 Off ice of AGM-Engineering -Los Angeles, January 3, 1984 File: 435-Ponto Poinsettia Lane O.H. EXHIBIT "C" RELATIONS WITH RAILWAY COMPANY -1.01 General.--The Contractor, as n prerequisite for award, shall he satisfactory as to his responsihility and ability to perform the work over and across the prop+rty and over or under the tracks of The Atchison, Topeka and Santn Fe Railway Company. It is expected that The Atchison, Topeka and Santa Fe Railway Company will cooperate with the Contractor to the end that the work may be handled in an efficient manner, but the Contractor shall have no claim for damages or extra compensation in the event his work is held up by the work of the Railway Company forces. -1.02 Agreement.--Before doing any work on Railway right of way, or property, the Contractor will be required to execute and deliver to The Atchison, Topeka and Santa Fe Railway Company a letter agreement, in the form attached hereto, obligating the Contractor to provide and keep in full force and ef Fect the insurance called for under "insurance" of these special provisions. -1.03 Railway Requirements.--The Contractor shall cooperate with The Atchison, Topeka and Santa Fe Railway Company where work is over or under the tracks, or within the limits of Railway property in order to expedite the work and to avoid interference with the operation of Railway equipment. The Contractor shall comply with tli(. rules and regulations of Railway or the instructions of its rcl)t f.srtiLativ(lx ill rcbLntion to thv prop.1 manner of protecting the tracks and property of Railway and thci Lrnffic moving on such tracks, as well as the wires, signals and other property of Railway, its tenants or licensees, at and in the vicinity of the work during the period of construction. The Contractor shall perform his work in such manner and at such times as shall not endanger or interfere with the safe and timely operation of the tracks and property of Railway and the traffic moving on such tracks, as well as wires, signals and other property of Railway, its tenants or licensees, at or in the vicinity of the work. The Contractor shnll take protective measures necessary to keep Railroad facilities, including track hallast, free of sand or debris resulting from his operations. Any damage to Railroad facilities resulting from Contractor's operations will be repaired or replaced by Railroad and the cost of such repairs or replacement shall be deducted from the Contractor's progress and final pay estimates. The Contractor shall not pile or store any materials, park or use his equipment closer to the center of the nearest Railway track, or overhead lines, than permitted by the following clearances: 10'-0" Horizontally from centerline of track 22'-h" Vertical ly above top o€ rail 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts 28'-0" Vertically above top of rail for electric wires :arrying 750 volts to 15,000 volts W'.O" 'Y+'-O'' Vertically above top of rail €or electric wires i.arrying more than 20,000 volts v1.1.1 irtllly :~hovt. top of rail for cl<sctt.ic wirc.s I arrying 15,OOU vol~s !I> ?O,O[)(l volts Any infringement on the above clearances or walkways due to the Contractor's operations shall be' suhmitted to the Railway and to the Engineer and shall not be undertaken until approved by the Railway, and until the Engineer has obtained any necessary authorization from the Public Utilities Commission for thr infringement. No extra compcnsarion will ha allowed in the event the Contractor's work is delayed penditig Railway approval, and I'ublic Utilities Commission authorization. In the case of impaired vertical clearance above top of rail, Railway shall have the option of inst.3lling tell-tales or other protective devices Railway deems necessary for protection of Railway trainmen or rail trafEic. The details of construction affecting the Railway tracks and property not included in the contract plans shall be suhmitted to the Railway for approval before such work is undertaken. If the Contractor desires to move his equipment or materials across Railway's tracks he shall obtain permission from Railway and, should it be required, the Contractor shall obtain a private crossing agreement. the expense of the Contractor. The crossing installation for the use of the Contractor, if required, shall be at 1. The Contractor shall, upon completion of the work covered by this contract to be performed by the Contractor upon the premises or over or beneath the tracks of Railway, promptly remove from the premises of Railway all of Contractor's tools, implements and other materials, whether brought upon said premises by said Contractor or any Subcontractor, employ<: or agent of Contractor or of any Subcontractor, and cause said premises to be left in a clean Ind presentable condition. -1.04 Protection of Railroad Facilities:- ( I) Ilpon ndvance notification of not lass than 24 hours by contractor, Railroad representatives, con<liictors, flagman or watchmen will be provided by Railroad to-protect its facilities, property and movements of its trains or engines. In general, Railroad will furnish such personnel or other protective services: (a) When any part of any equipment is standing or being operated within 10 feet, measured horizontally, from centerline of any track on which trains may operate, or when any erection or construction activities are in progress within such limits, regardless of elevation above or below track. (b) For any excavation below elevation of track subgrade if, in the opinion of Railroad's representative, track or other railroad facilities may be subject to settlement of movement. (c) For any clearing, grubbing, grading, or blasting in proximity to Railroad facilities which, in the opinion of Railroad's representative, may endanger Railroad facilities or operations. (2) Railroad will furnish such personnel or other protective services when, in the opinion of Railroad's representative, Railroad facilities, including, but not limited to, tracks, buildings, ' signals, wire lines or pipelines, may be endangered. (3) Information as to the Railroad employes which may be required to provide protection to Railroad facilities is as follows: Maximum nase pziy Niii1IIw-r (11) Clasni firat ion (8) for 8 hours (c) Headquarters ( D) 3 Pilot Conductors 115.02 Full erton 1 Yard Engine Foreman -- -- 2 Yard Engine Helpers -- -- --.. 1-' x-. 2 Sect ion Foreman Trackmen 82.34 70.08 Full erton Ful lerton 1 BSB Foreman 84.26 Oceanside 2 B&B Carpenters 78.79 Oceans i de In general, a flagging crew consists of three men, as indi-ated in the above grouping, although under some conditions less than three men may be sufficient. Rates of pay, payment for overtime, niimber of hours to be paid €or, and travel, meal and lodging allowances will be in accordance with lahor union agreements in effect at the time the work is p1:rformed. l'o all direct labor costs, there shall be added additional charges for Vacation Allowance; Holiday Pay; Health and Welfare; Railroad Retirement and Unemployment Taxes; Public Liability, Property Damage, and Workman's Compensation Insurance; and Accounting and Billing. For estimating purposes only, these additives collectively may he considered as approximately 65% of all direct labor coqts. The ahovc rates are for in€ormation only, and rates in effect at the time of construction will be used. The cost OE all Railroad personnel, equipment, and facilities deemed necessary by the Railway and provided hy the Railway for the protection of Railroad facilities and trains, during the period of construction wirhin Railway right of way and the cost of installing protective devices in the case oE impaircd clearance, shall be borne by the Contractor. The Contractor shall be responsible for payment of all costs incurred for any damages to Railroad roadbed, track and/or property resulting from use, occupancy, presence of its employes or agents on or about the construction site. (4) Railroad will submit its €inal bills for flagging and related services to City/- after completion of the project. City/- will pay all flagging charges. -1.05 Work by Railway Company.--Railroad will rearrange its tracks, telephone, telegraph, and signal lines and appurtenances, and will perform any other work in connection therewith, except grading to be done by others. E18b/0937P 2. agreement betwecii THE ATCHISON, TOPEKA AND SANTA EE RAILWAY COMPANY AND THE CONTRACTOR IN CONNECTION WITH The Atchison, Topeka and Santa Fe Railway Company One Santa Fe Plaza, 5200 E. Sheila Street Los Angeles, CA 90040 Attention: General Manaqer Gentlemen: The undersigned has entered into a contract dated , 19-, with the , for the performance of certain work in connection with - in the pcrformanr-r, of which work tlic underzigned will necessarily bc required to conduct operations wrLhin your riqliL of way dnd prolx'rty. The Contract provides that no work shall be commenced within your right of way or property until the contractor employed in connection with said work for shall have executed and delivered to you a letter agreement in the form hereof and shall have provided insurance of the coverage and limits specified in said contract. If this letter agreement is executed by other than the Owner, General Partner, President or Vice President of the undersigned firm, evidence is furnished to you herewith certifying that the signatory is empowered to execute this agreement for the firm. Accordingly, as one of the inducements to and as part of the consideration for your granting per- mission to the undersigned to enter upon your right of way or property for the performance of so much of the work as is necessary to be done within your right of way or property, the undersigned, effective on the date of the contract with the , has agreed and does hereby agree with you as follows: 1. The undersigned shall indemnify and save harmless the Santa Fe, its agents and employees against all liability, claims, demands, damages, or costs for (a) death or bodily injury to persons, including without limitation the employees of the parties hereto, (b) injury to property, including without limi- tation, the property of the parties hereto, fc) design defects, or (d) any other loss, damage, or expense arising under either (a), (b), or (c), and all fines or penalties imposed upon or assessed against Santa Fe, and all expenses of investigating and defending against same, arising in any manner out of (1) use, occupancy or presence of the undersigned, sub-contractorsl employees, or agents in, on, or about the construction site,(2) the performance, or failure to perform, by the undersigned, its subcontractors, employees, or agents, its work or any obligation under this agreement, or (3) the sole or contributing acts or omissions of the undersigned, its subcontractors, employees, or agents in, on, or about the construction site. Nothing contained in this provision is intended to, nor shall be deemed or construed to, indemnify Santa Fe from its sole negligence or willful misconduct, or that of its agents, servants or independent contractors who are directly responsible to it. 2. That the undersigned will procure, and maintain in force, insurance meeting all of the requirements outlined in the special provisions for and in contract referred to in the second paragraph above, and there is handed you herewith: (1) Original Policy in Railroad Protective Liability Fom, favor of The Atchison, Topeka and Santa Ee Railway Company, One Santa Fe Plaza, 5200 East Sheila Street, Los Angeles, CA 90040, and Certificate reflecting the existence of Contractor's Public Liability and Property Damage Liability Insurance and Contractor's Protective Public Liability and Property Damage Liability Insurance, (2) meeting such requirements. It is further distinctly understood and agreed by the undersigned that its liability to the Railway Company herein under Paragraph 1, will not in any way be limited to the amount of insurance obtained and carried by the undersigned in connection with said contract. That the undersigned will observe and comply with all the provisions, obligations and limita- 3. tions to be observed by Contractor which are contained in the sub-division of the specifications of the contract referred to in the second paragraph hereof, entitled "&%ations with Railway Company", and shall include, but not be limited to, payment of all costs incurred for any damages to Railroad roadbed, tracks, and/or property, resulting from use, occupancy, presence of its employees or agents on or about the construction site. 1. Kindly acknowledge receipt of this letter and of the insurance policies herein provided to be furnished to you by signing and returning to the undersigned a copy of this letter, which shall there- upon constitute an agreement between us. Yours truly, Receipt of the foregoing letter and of the policies and certificates of insurance herein provided to be furnished is hereby acknowledged this day of ,19-, THE. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY 2. 13 In addition to and spec i f icat ions, the hereinaftt r specified. EXHIBIT 'IC-2" RAILROAD PROTECTIVE INSUKANCE any other form of insurance or bonds required under the terms of the contract Contractor will be required to carry insurance of the kinds and in the amount8 Such insurance shall be approved by: THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY hereinafter called "Railroad" before any work is performed on Railroad property and shall be carried until all work required to be performed on or adjacent to the Railroad's property under the terms of the contract is satisfactorily completed as determined by the Engineer, and thereafter until all tools, equipment and material have been removed from Railroad's property and such property is left in a clean and presentable condition. The insurance herein required shall be obtained by the successful bidder, and the original and certified copies of a11 policies as hereinafter specified shall be furnished to the Engineer. 'I'he Contractor shall {urnish the Engineer with one (1) certified copy of each of the executed policies icquired by 1, 2, and 3 below, and in addition, shtrll furnish Railroad through the Engineer, one (1) ccrtificatr reflecting the existence of the executed policies required by 1 and 2 and the original policies of the insurance required by 3 below. A certification of such copies of insurance shall guarantee that the policy under 1 and 2 will not be amended, altered, modified, or cancelled insofar as the coverage contemplated hereunder is concerned, without at least thirty (30) days' notice mailed by registered m.iil to the Engineer and to Railroad. Full compensation for all premiums which the Contractor is require(1 to pay on all the insurance described hereinafter shall be considered as included in the pricc-s paid for the various items of work to be perforcYed under the contract, and no additional allowance will be made therefor or €or additional premiums which may be required by extensions of the policies of insurance. The approximate ratio of the estimated cost of the work over or under or within 50 feet of Railroad's tracks to the total estimated contract cost is 0.---. 1. Contractor's Public Liability and Property Damage Liability Insurance Tl~e Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property, carry regular contractor's Public Liability and Property Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnished for and in behalf oE Railroad as hereinafter provided , If any part of the work within or adjacent to Railroad's property is subcontracted, the Contractor in addition to carrying the above insurance, shall provide the above insurance in behalf of the subcontractors to cover their operations. 2. Contractor's Protective Public Liability and Property Damage Liability Insurance The Contractor shall, with respect to the operations performed for him by subcontractors who do work within or acljacent to Railroad's property, carry in his own behalf regular Contractor's Protective Public Liability and Property Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnished for aud in behalf of Kailroad as hereinafter provided. 3. Railroad's Protective Public Liability and Property Damage Liability Insurance The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property or that of any of his subcontractors who do work within or adjacent to Railroad's property, have issued and furnished separately, policy or policies of insurance in the Railroad Protective Liability Form as hereinafter specified in favor of The Atchison, Topeka and Santa Fe Railway Company, One Santa Fe Plaza, 5200 East Sheila Street, Los Angeles, CA 90040. 1. RAILROAD PROTECTIVE LIABtLITI FORM (Name of Insurance Company) DECLARATIONS ltem 1. Named Insured: The Atchison, Topeka and Santa Fe Railway Company One Santa Fe Plaza, 5200 E. Sheila Street Los Angeles, CA 90040 Item 2. Policy Period: From to 12:Ol a.m., Standard Time, at the designated job site stated herein. 1 t I’III 3. Tlw inaurnnce afforded is only with respect to such of t.he [ollowing coverages as are indicated in Item 6 by specific premium charge or charges. liahillty against such coverage or coverages shall be as stated herein, subject to all the terms of this policy having reference thereto. The limit of the Company’s Coverages Limits of Liability A Bodily Injury Liability $2 million Combined Single Limit per occurrence, with an aggregate limit of $6 million for the term of the policy. R Property Damage Liability & C and Physical Damage to Property Ttem 4. Name an(l Address of Contractor: Item 5. Name and Address 01 Governmental Authority for whom the work by the Contractor is being ptsrformcd: Item 6. Designation of the Job Site and Description of Work: I’rrmium Rates pcr $100 of Cost Advance Premiums I%ases Coverage A Coverages BbC Coverage A Coverages BbC Contract Rental (‘OSt $ $ 8 $ cost $ $ Countersigned 19- BY (Name of Insurance Company) 2. A insurance company, herein called the Company, agrees with the insured named in the Declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the Declarations mad(. by the named insured and subject to all of the terms of this policy: INSUK ING AGREEME N 1,'s I. Coverage A - Bodily Injury Liability To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, hereinafter called "bodily injury", either (1) sustained by any person arising out of acts or omissions at the designated job site which are related to or are in connection with the work described in Item 6 of the Declarations, or (2j sustained at the designated job site by the contractor or any employe of the contractor or by any designated employe of the insured whether or not arising out of such acts or omissions. Coverage B - Property Damage Liability To pay on behalf of the insured all sunis which the insured shall become legally obligated to pay as damages because of physical injury to or destruction of property, including loss of use of any property due to such injury or destruction, hereinafter called "property damage", arising out of acts or omissions at the designated job site which are related to or are in connection with the work described in Item 6 of the Declarations. Coverage C - Physical Damage to Property To pay for direct and accidental loss of or damage io rolling stock and their contents, mechanical construction equipment, or motive power equipment, hereinafter called loss, arising out of acts or omissions at the designated job site which ara? related to or are in connection with the work described in Item 6 of the Declarations; provided such property is owned by the named insured or is leased or entrusted to the named insured under a base or trust agreement. Definitions Insured - The unqualified word "insured" includes tlke named insured and also includes any executive officer, director or stockholder thereof while acting within the scope of his duties as such. Contractor - The word "contractor" means the contractor designated in Item 4 of the Declarations and includes all subcontractors of said contractor but shall not include the named insured. I)csijinatcd employee of the insured - The words "designated employe of the insured" mean: (1) any supervisory employe of the insured at the jbbsite, or (2) any employe of the insured while operating, attached to or engaged on work trains or other railroad equipment at the jobsite which are assigned exclusively to the contractor. Contract - The word "contract" means any contract or agreement to carry a person or property for a consideration or any lease, trust, or interchange contract or agreement respecting motive power, rolling stock or mechanical construction equipment. Defensp, Settlement, Supplementary Payments With respect to such insurance as.is afforded by this policy under Coverages A and B, the Company shall: (a) defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient; 3. (b) pay, in addition to the applicable limits of liability: (1) all expenses incurred by the Company, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Company's liability thereon; (2) premirims on appeal bonds required in any such suit, premiums on bonds to release attachments for an amount not in excess of the applicable limit of liability of this policy, but without obligation to apply for OK furnish any such bonds; expenses incurred by the insured for such immediate medical and surgical relief to others as shall be imperative at the time of the occurrence; (3) (4) all reasonable expenses, other than loss of earnings, incurred by the.insured at the Company's request. IV. Policy Period, Territory This policy applies only to occurrences and losses during the policy period and within the United States of America, its territories or possessions, OK Canada. EXCLUSIONS This policy does not apply: tu liability assumed by the insured under any contract or agreement except a contract as defined herein; to bodily injury oi property damage caused intentionally by or at the direction of the insured; to tmlily injury, property damage OK loss which occurs after notification to the named insured of. the acceptance of the work by the governmental authority, other than bodily injury, property damage or loss resulting from the existence or removal of tools, uninstalled equipment and abandoned or unused materials; under Coverages A(1), B and C, to bodily injury, property damage or loss, the sole proximate cause of which is an act or omission of any insured other than acts or omissions of any designated employe of any insured; under Coverage A, to any obligation for which the iisured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law; provided that the Federal Employers' Liability Act, U.S. Code (1946), Title 45, Sections 51-60, as amended, shall for the purposes of this insurance be deemed not to be any similar law; under Coverage B, to injury to or destruction of property (I) owned by the named insured or (11) leased OK entrusted to the named insured under a lease or trust agreement. 1. Under any Liability Coverage, to injury, sicknr:ss, disease, death or destruction: (a) with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but €or its termination upon exhaustion of ith limit of liability; or resriltiny from the hazardous properties 01 nuclear material and with respect to which (1) any person or organization is rc,quired to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization. (b) 2. Under any medical Payments Coverage, or under any Supplementary-Payments provision relating to immediate medical or surgical relief, to expenses incurred with respect to bodily injury, sickness, disease or death resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization. 4. 3. Under any Liability Coverage, to injury, sickness, disease, death or destruction resulting from the hazardous properties of nuclear material, if (a) the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom; (b) the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or (c) the injury, sickness, disease, death or destruction arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this cxclusioii (c) applies ouly to injury tu or destruction of property at such nuclear facility. 4. As used in this exclusion: "Hazardous properties" include radioactive, toxic or explosive properties; "nuclear material" means source material, special nuclear material or byproduct material; "source material", "Special nuclear material", and "byproduct material" have the meanings given them in the Atomic Energy Act of 1954, or in any law amendatory thereof. "spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; "waste" means any waste material: "nuclear (a) (b) (d) containing byproduct material and resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under Paragraph (a) or (b) thereof; faci 1 ity" means : any nuclear reactor any equipment or device designed or used for (1) separating the isotopes of uraniuni or plutonium, (2) processing or utilizing spent fuel, or (3) handling, proctsssing or packaging waste; any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235. any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material; "in jury". or "destruct ion" with respect to injury to or destruction of property, the word includes all forms of radioactive contamination of property. (h? under Coverage C, to loss due to nuclear reaction, nuclear radiation or radioactive contamination, or to any act or condition incident to any of the foregoing. CONDTTIONS (The conditions, except conditions 3, 4, 5, 7, 8, 9, 10, 11 and 12, apply to all coverages. Conditions 3, 4, 5, 7, 8, 9, 10, 11 and 12 apply only to the coverages noted thereunder.) 1. Premiuni The premium bases and rates €or the hazards described in the Declarations, are stated in accordance with the manuals in use by the Company. The term "contract cost" means the tot31 cost of all work described in Item 6 OF the Declarations. TIN, term "rental cost" means the total cost to the contractor for rental of work trains or other railroad equipment, including the remuneration of all employes of the insured while oiwmtinn attached to or eneaeed thereon. Lherein. Premium bases and rates for hazacds not so described are those applicable 2. 3. 4. 5. 6. 7. E. The advance premium stated in the Declarations is an estimated premium only. of this policy the earned premium shall be computed in accordance with the Company's rules, rates, rating plans, premiums and minimum premiums applicable to this insurance. If the earned premium thus computed exceeds the estimated advance premium paid, the Company shall look to the Contractor specified in the Declarations for any such excess; if less, the Company ahall return to the said contractor the unearned portion paid. Upon termination In no event shall payment of premium be an obligation of the named insured. Inspection The named insured shall make available to the Company records of information relating to the subject matter of this insurance. The Company shall be permitted to inspect all operations in connection with the work described in Item 6 of the Declarations. Limits of Liability The limits of bodily injury liability stated in the Declarations as Coverage A applicable to "each person" is the limit of the Company's liability for all damages, including damages for care and loss of services, arising out OE bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the Declarations as applicable to "each occurrence" is, subject to the above provisions respecting each person, the total limit of the Company's liability for all such damage arising out of bodily injury fiustained by two or more persons as the result of any one occurrence. lJLmits of Liability The limits of liability under Coverages B and C stated Coverages B&C as applicable to "each occurrence" is the total limit of the Company's arising out of physical injury to, destruction or loss of all property of one or more persons or organizations, including the loss of use of any property due to such injury or destruction under Coverage B, as the result of any one occurrence. Subject to the above provisions respecting "each occurrence", the limit of liability under Coverages B and C stated in the Declaration as "aggregate" is the total limit of the Company's liability for all dumages and all loss under Coverages B and C combined arising out of phvsical injury to, destruction or loss of property, including the loss of use of any property due to such injury or destruction under Coverage B. Under Coverage C, the limit of the Company's liability for loss shall not exceed the actual cash value of the property or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality. Severaiity of Interests Cove rages A&B The term "the insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limits of the Company's liability. Notice In the evrnt of an occurrence or loss, writterr notice containing particulare respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the Company or any of its authorized agents as soon as practicable. the insured, he shall immediately forward to the Company every demand, notice, summons or other process received by him or his representative. Assistance and Cooperation of the Insured Coverages A&B and, upon the Company's request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation OK incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident. Action Against Company Coverages h&B obligation to pay shall have been finally determined either by judgment against the insured alter actual trial or by written agreement of the insured, the claimant and the Company. Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. right under this policy to join the Company as a patty to any action against the insured to determine the insured's liability. insured's estate shall not relieve the Company of any of its obligations hereunder. - - -- strlficient to ident LTy the insured aiid also reasonably obtainable information with If claim is made or suit is brought against The insured shall cooperate with the Company No action shall lie against the Company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's No person or organization shall have any Bankruptcy or insolvency of the insured or of the 6. Coverage C No action shall lie against the Compan), unless, as a condition precedent thereto, thirty days after proof of lose is filed and the ert~ount of loss is determined an provided in thiH policy. there shall have been full compliance with all the terms of this policy nor until 9. Insured's Duties in Event of Loss In the event of loss the insured shall: Coverage C (a) protect the property, whether or not the loss is covered by this policy, and any further loss due to the insured's failure to protect shall not be recoverable under this policy; reasonable expenses incurred at the Company's request; (h) file with the Company, as soon as practicable after loss, his sworn proof of loss in such form and including such information as-the Company may reasonably require and shall, upon the Company's request, exhibit the damaged property. 10. Appraisal If the insured and the Company fail to agree as to the amount of loss, either may, Coverage C within 60 days after the proof of loss is filed, demand an appraisal of the loss. In such event the insured and the Company shall each select a competent appraiser, and the appraisers shall select a competent and disinterested umpire. The appraisers shall state separately the actual cash value and the amount of loss and failing to agree shall submit their differences to the umpire. determine the amount of loss. The insured and the Company shall each pay his chosen appraiser and shall bear equally the other expenses of the appraisal and umpire. An award in writing of any two shall The Company shall not be held to have waived any of its rights by any act relating to appraisal. 11. Payment of Loss The Company may pay for the loss in money but there shall be no Coverage C abandonment of the damaged property to the Company. -- 12. No Benefit to Bailee The insurance afforded by this policy shall not inure directly or Coverage C indirectly to the benefit of any carrier or bailee, other than the named insured, liable for loss to the property. 13. Subrogation In the event of any payment under this policy, the Company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. prejudice such rights. The insured shall do nothing after loss to 14, Application of Insurance The insurance afforded by this policy is primary insurance. 15. Three-Year Policy A policy period of three years is comprised of three consecutive annual Computation and adjustment of earned premium shall be made at Aggregate limits of liability as stated in this policy shall periods. the end of each annual period. apply separately to each annual period. Changes asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy. 16. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or stop the Company from 17. fyskiiiwl -- ArisipnmcAiit of intervet under this policy Hlioll not bLntl the Company until its consent is endorsed hereon. 18. Cancellation This policy may be cancelled by the named insured by mailing to the Company written notice stating when thereafter the cancellation shall be This policy may be cancelled by the Company by mailing to the named insured, effective. contractor and governmental authority at the respective addresses shown in this policy written noLice stating when not less than thirty days thereafter such cancellation shall be efEective. The mailing of notice as aforesaid shall be sufficient proof of notice. The efEective date and hour of cancellation stated in the notice shall become the end of the policy period. shall be equivalent to mailing. Delivery of such written notice either by the named insured or by the Company If the named insured cancels, earned premium shall be computed in accordance with the If the Company cancels, earned premium shall be customary short rate table and procedure. computed pro rata. or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. Premium adjustment may be made either at the time cancellation is effected 7. 19. Declarations By acceptance of this policy the nained insured agrees that such statement in the Declarations as are made by him are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the Company or any o€ its agents relating to this insurance. IN WITNESS WHEREOF, the Indemnity Company has caused this policy to be signed by its presidi countersigned on the Declarations page by a duly authorized agent of the Company. and (FACSIMILE OF SIGNATURE) Secretary (FACSIMILE OF SIGNATURE) President 8.