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Portland & Western Railroad - Main St RR Crossing LETTER OF AGREEMENT 'Between CITY OF TIGARD A municipality of the State of Oregon and PORTLAND AND WESTERN RAILROAD,,INC. A State of New York corporation for Improvement of Railroad grade crossing at Main Street In Tigard, Oregon Crossing milepost no. FD 750.80 This agreement is entered into by and between City of Tigard, a municipality of the State of Oregon, hereinafter called "City" and Portland and Western Railroad., Inc., a New York corporation, hereinafter called "Company". In consideration.of the mutual obligations and benefits set forth herein, the parties,agree as follows regarding the replacement of the Company's railroad crossing of Main Street in Tigard, Oregon: 1. City Obligations 1.1 Pay documented construction costs, not to exceed $15,000 for reconstructing, by the Company, the installation of concrete panel crossing including roadway .approaches at Southern Pacific Railroad. 1.2 Pay the amount due under 1.1 above within 30 days of receipt of invoice, per the current City of Tigard fiscal policies and`procedures, provided that the work has been inspected and approved by the City prior to the date of receipt of the invoice. 1.3 Maintain, pursuant to applicable provisions of ORS 30.260 to 30.300, a self- insurance program, which provides property damage and personal injury coverage. 1.4 Provide traffic detour plan. 2. Company Obligations . 2.1 Remove the existing crossing surface:to a distance outside'of the rail sufficient to install a new crossing surface. The distance of removal outside of the rails shall extend beyond the existing cuts in pavement,which are approximately 5.feet outside of the rails. 2.2 Install a new concrete panel crossing.including,all necessary labor, equipment and materials, including but not limited to the following items: (a) Mobilization (b) Traffic control (c) Remove and dispose of existing AC pavement, base material, rails and ties. (d) Furnish and install new rails, crossties, ballast and concrete crossing panel Letter of Agreement—Portland and Western Railroad Inc Pagel (e) Construct AC roadway approaches. 2.3 Comply with traffic detour plan provided by City.. 2.4 Provide temporary protection and direction of traffic, including all signs, barricades, flashing lights and flaggers. Minimum requirements for traffic control plan shall be as shown on "Traffic Control Typical Retail"of the City of Tigard, Public Improvements.Design-Standards. 2.5 Close the crossing and detour for a single period no longer than 67 hours beginning at 8:00 p.m. on Friday and ending at 3:00 p.m. on the following.Monday. At least 20 working days prior to closing the street, prepare and submit for City review and approval a traffic control plan. 2.6 Remove the existing roadway approaches and pave the new approaches to the crossing to provide a smooth surface that will allow the traffic on Main Street to safely and comfortably travel over the crossing without slowing down. The slopes of the new roadway approaches shall be in accordance to OAR 860-42-215. 2.7 Begin no work prior to August 1, 2000 and complete all work no.later than August 31, 2000. 2.8 The Company agrees to comply with the Civil Rights Act of 1964 and 1991:i Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation.Act of 1973, and Title VI as implemented by 45 CFR 80 and 84 which states in part, "no qualified person shall on the basis of disability, race, color, or national origin be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which received or benefits from federal financial assistance. 2.9 Company shall not employ any person performing work under this contract for more then eight hours in any one day, or 40 hours in any one week; except in cases of necessity, emergency, or where the public policy absolutely requires it. Company shall pay all individuals performing work under this contract at least time-and-a-half pay for all overtime in excess of eight hours a day and for work performed on Saturday or any legal holiday specified in ORS 279:334. If this contract is for personal services.as defined in ORS 279.051, the company shall pay all individuals performing personal services under this contract at least time-and-a-half for all overtime worked in excess of 40hours in any one week, except for individuals who are excluded under ORS 653.010 to 653.261 or under 29'USC sections 201-209, from receiving overtime. If this.is for a public work subject to ORS 279.348 to 379.363 or the Davis-Bacon Act (40 USC 2761), the Company agrees to abide by the provisions of ORS 279.350 or 40 USC 2761,whichever is applicable. 2.10 All contracts between the company and its contractor for the construction work will require the contractor to obtain insurance acceptable to City in full force and effect throughout the term of this contract. Such insurance shall cover all risks arising directly or indirectly out of Contractor's activities or work hereunder, including the operations of its subcontractors of any tier. Such insurance shall include provisions that such insurance is primary insurance with respect to the interests of City and that any other insurance maintained by City is excess and not contributory insurance with the insurance required hereunder. Letter of Agreement—Portland and Western Railroad Inc Page 2 2.11 The policy or policies of insurance maintained by the Contractor and its subcontractor shall provide at least the following limits and coverages: (a) Commercial General Liability Insurance: Contractor shall obtain, at contractor's expense, and keep in ,effect during the term of this: contract, Comprehensive General Liability Insurance covering Bodily Injury and Property Damage on an "occurrence" form (1986:ISO or equivalent). This coverage shall include Contractual Liability insurance for the indemnity provided under this contract. The following insurance will be carred: Coverage Limit General Aggregate 2,000,000 Products-Completed Operations Aggregate 1,000,000 Personal &Advertising Injury 1,000,000 Each Occurrence 1,000,000 Fire Damage.(Any one fire) 50000 MedicalExpense (Any one person) 5,000 (b) Commercial Automobile Insurance: Contractor shall also obtain, at contractor's expense, and keep in effect during the term of the contract, "Symbol 1" Commercial Automobile Liability coverage including coverage for all owned, hired, and non-owned vehicles. The Combined 'Single Limit per occurrence shall not be less than$1,000,000. (c) Workers' Compensation/Employers' Insurance: To the extent the Contractor, its subcontractors, if any, and. all :employers providing work, labor or materials under this.Contract are subject,employers under the Oregon Workers' Compensation Law, they shall comply with ORS 656.017, Which requires them to provide workers' compensation coverage that satisfies. Oregon law for all their subject workers. Out-of-state employers must provide Oregon workers' compensation coverage for their.workers who work at a single location within; Oregon for more than 30 days in a calendar year. Contractors who perform work without the assistance or labor of any employee need not to obtain such coverage. To the extent that the Contractor,its subcontractors, if any, and all other employers providing work under this Contract are employers under the Federal Employer's Liability Act (45 USC §51 et seq.), they shall maintain insurance for liability imposed by FELA. Employer's Liability Insurance required by this section shall have coverage limits of not less than$100,000 each accident. (d) Additional Insured Provision: The City of Tigard, Oregon, its officers, directors, and employees shall be added as additional insured with respect to this contract. All Liability Insurance policies will be endorsed to show this additional coverage. (e) Notice of Cancellation: There shall be no cancellation, material change, and exhaustion of aggregate limits or intent not to renew insurance coverage without 30 days written notice to the City. Any failure to company with this provision will not affect the insurance coverage provided to the City. The 30 days notice of cancellation provision shall be physically endorsed on to the policy. Letter of Agreement—Portland and.Western Railroad Inc Page 3 R (f) Insurance Carrier Rating: Coverages provided by the Contractor must be underwritten by an insurance company deemed acceptable to the'City. The City reserves the right to reject all or any insurance carrier(s) with an unacceptable financial rating. (g) Certificates of Insurance: As evidence of the insurance coverage required by'the contract, the contractor shall furnish a Certificate of Insurance to the City. No contract shall.be effected until the required certificates have been received and approved by the City. The certificate will specify and document all provisions within this contract. A renewal certificate will be sent to the above address 10.days prior to coverage expiration. (h) Independent'Contractor Status: The service or services to be rendered under this contract are those of an independent contractor. Contractor is not an officer, employee or agent of the City as those terms are .used in ORS 30.265. (i) Primary Coverage Clarification: All parties to this contract hereby agree that .the contractor's coverage will be primary in the event of a loss. (j) Cross-Liability Clause: A cross-liability clause or separation of insureds clause will .be included in all general liability, professional liability, pollution and errors'and omissions policies required by this contract. Contractor's insurance policy shall contain provisions that such policies shall not be cancelled or their limits of liability reduced without (30) days prior notice to the City. A copy of each insurance policy, certified as a true copy by an authorized representative of the issuing insurance company, or at the discretion of City, in lieu thereof, a certificate in form satisfactory to City certifying to the issuance of such insurance shall be forwarded to: Vannie T. Nguyen, P.E. Engineering,Manager City of Tigard 13125 SW Hall Blvd. Tigard, Oregon 97223 Such policies or certificates must be delivered prior to commencement of the work. Ten.days cancellation notice shall be provided City by certified mail to the name at the address listed above in event of cancellation or non- renewal of the insurance. The procuring of such required insurance shall not be construed to limit contractor's liability hereunder. Notwithstanding.said insurance, Contractor shall be obligated for the total amount of any damage, injury,'or loss caused by negligence or neglect connected with this contract. Letter of Agreement—Portland and Western Railroad Inc Page 4 2..12 The company and its contractor warrants that all its work will be performed in accordance with generally accepted professional practices and standards as well as the requirements of applicable federal, state and local laws, it being understood that acceptance of a contractor's work by City shall not operate as a waiver or release. Contractor agrees to indemnify and defend the City, .its officers, agents and employees and hold them harmless from any and all liability, causes of action, claims, losses, damages,judgments or other costs or expensesincluding attorney's fees and witness costs and (at both trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity which.in any way arise from, during or in connection with the performance of the work described in this contract, except liability arising out of the negligence of the City and its employees. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. This agreement represents the entire integrated understanding of the parties. This agreement may be amended only in writing, executed by the same parties as the agreement itself. IN WITNESS WHEREOF the parties have caused the Agreement to be signed in their respective names by their duly authorized representatives as of the.dates set forth below. City of Tigard Portland and Western Railroad, Inc. William A.Wiiahan, City Manager ame -S-1 30f orl Date Title / �7 ? ©0 Date i:\eng\2000dpVneinllga letter of agreement.dol4/13/00 Letter of Agreement—Portland and Western Railroad Inc Page 5