HomeMy WebLinkAboutContract 33861 CITY SECRETARY
CONTRACT NO.
Maintenance A reement
This Maintenance Agreement (Agreement") is made by and between the City of Fort
Worth ( "City"), a home-rule municipal corporation located in Tarrant, Denton, and Wise
Counties, Texas, having its principal office at 1000 Throckmorton, Fort Worth, Texas,
and Quality Signal Construction, LLC, ("QSC"), a licensed Texas corporation, having its
principal office at 3602 N. Sylvania Ave., Fort Worth, TX 76111, with reference to the
following facts:
A. On February 2, 2005 the City entered into an agreement with the
Fort Worth and Western Railroad Company ("Railroad") whereby the
Railroad granted the City an at-grade crossing at Museum Way and the
City agreed to install and maintain the crossing and install and maintain
warning signal devices to implement the Museum Way crossing and at the
W. 7 h Crossing install and maintain warning signal devices, and at both
crossings install and maintain "quiet zones" as that term is defined and
regulated by Federal Railroad Administration.
B. To fullfill its obligations under its agreement with the Railroad, the
City seeks an independent contractor knowledgable in the maintenance of
Warning, Signal Devices and Quiet Zone Devices.
1.
Services to be provided by Contractor
1.1 Contractor agrees to maintain the at-grade crossings at Museum Way and W.7t'
Street, including highway-rail grade crossing warning systems and quiet-zone
equipment once installed, as follows:
Crossing signals - all testing, cleaning, painting, replacement of
broken reflectors and lenses, signal, lamp replacement, bonding,
primary battery replacement, storage battery maintenance, light
alignment, bell maintenance, relay inspection and testing, cable
inspection and testing, gate arm inspection, gate mechanism
inspection, troubleshooting, ground test circuits, exit gate
management system with integrated active vehicle detection,
backup wayside horn system, and quiet zone confirmation signals.
All such work shall be performed in accordance with 49CFR,
Chapter II, Federal Railroad Administration(FRA).
1.2 Contractor's maintenance services shall conform to all applicable federal, state
and local standards, including the testing and inspection by contractor of all such grade-
crossing warning devices at thirty-day intervals, and shall include all tests and inspections
as required by 49 CFR Chapter II, part 234 G grade-crossing signal-system safety and
Part 236, Rules, standards and Instruction governing the installation, inspection,
maintenance, and repair of signal and train control systems, devices, and appliances.
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These requirements shall include tests on cables and relays. All cables and relays that fail
to meet FRA standards will be repaired or replaced by contractor.
1.3 If any piece of equipment to be maintained by Contractor is damaged or
destroyed, Contractor shall promptly repair such equipment. However, if the cost of such
repair exceeds $500, and if the condition of the crossing warning signal system presents
an immediate danger to the traveling public, Contractor shall take the followings steps in
order:
A. Promptly initiate efforts to warn highway users and railroad employees at the
subject crossing as directed by 49 CFR Chapter II, part 234. Continue such
efforts until appropriate repairs have been made and the crossing warning system
is functioning properly.
B. Notify City immediately.
C. Make a reasonable attempt to thoroughly diagnose and repair equipment before
replacement of costly signal system components.
D. Upon receiving direction from City concerning cost to make repairs, make such
repairs in a timely manner.
E. Notify City and FWWR that crossing warning system is functioning properly.
1.4 During the term of this Agreement, Contractor shall prepare and file with the
appropriate government agencies all documentation required by such agencies in
connection with the Signal and Crossing Systems. All FRA required forms shall be kept
at Contractor's office at 3602 N. Sylvania Avenue, Fort Worth, TX 76111 with a copy of
all reports forwarded to the City within 10 days after the form is completed.
1.5 Contractor shall provide sufficient personnel and supplies in order for the services
required pursuant to this Agreement to be performed 24 hours per day, 365 days per year.
Contractor shall provide the City, the Railroad, and the Fort Worth Police Department the
telephone number and such other contact information as may be requested in order that
communication with Contractor can be maintained 24 hours per day.
2.
Monthly Service Charges,Maintenance Materials and Supplies; Billing
2.1 Contractor shall furnish all maintenance materials and supplies consumed by
Contractor in providing the maintenance services describe in the Agreement, whether
such services are provided in response to damaged grade crossings, acts of God, or
testing of cables and relays. Contractor shall provide the following materials with no
mark-up: bonds, track connections, lenses, reflectors, signal bulbs, arrestors, fuses, and
shear pins. All other consumable materials required by Contractor in rendering the
maintenance services required hereunder will be billed at cost plus 10% handling charge.
RAILROAD MAINTENANCE AGREEMENT
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In addition to the materials cost, if any, Contractor shall bill City for labor and shipping.
All services, including materials, labor, and shipping shall be billed without tax.
2.2 Contractor shall submit invoices to City together with necessary supporting
documents to substantiate the materials consumed and labor provided. City shall remit
payment of invoices within 30 days from the date that the invoice is received.
2.3 Contractor shall end monthly billing statements, as formulated below, to the City
on the 1st business day of each month, for services provided during the previous month,
commencing with the 1st day of the first month following the execution of this
Agreement. The City shall pay such monthly bills in full within 30 days from the date
the invoice is received.
2.4 The monthly compensation fees for the services to be performed by Contractor
shall be as follows:
Highway-Rail Grade Crossing Warning System Maintenance:
1St Year 2nd Year 3rd Year
$/month $/month $/month
FWWR& Museum Way $500.00 $515.00 $530.45
FWWR& W 7th Street $800.00 $824.00 $848.72
Quiet Zone Device Maintenance
FWWR& Museum Way $150.00 $154.50 $159.14
FWWR& W 7th Street $150.00 $154.50 $159.14
TOTAL/YEAR $1600.00 $1648.00 $1697.45
3.
Insurance Requirements
3.1 At its own expense and during the term of this Agreement, Contractor shall
maintain the following insurance:
(a) Workers' Compensation Insurance providing Statutory Benefits under the
Workers' Compensation Act of the State of Texas and/or any other state or
Federal Law of Laws applicable to the contractor's employees performing
the work under this instrument, and Employer's Liability Insurance of not
less than $500,000 each accident, $500,000 each employee for disease and
$500,000 limit for disease.
(b) Comprehensive Automotive Liability Insurance providing limits to be not
less than $2,000,000 per occurrence for bodily injury and property damage
and $2,000,000 in the aggregate for all occurrences. If any part of the
RAILROAD MAINTENANCE AGREEMENT
Page 3 of 8
work is sublet, similar insurance shall be provided by or on behalf of the
subcontractor(s)to cover their operations.
(c) Comprehensive General Liability Insurance providing limits to be not less
than $2,000,000 per occurrence for bodily injury and property damage and
$2,000,000 in the aggregate for all occurrences. If any part of the work is
sublet, similar insurance shall be provided by or on behalf of the
subcontractor(s)to cover their operations.
(d) Contractors' Protective Liability Insurance providing limits to be not less
than $2,000,000 per occurrence for bodily injury and property damage and
$2,000,000 in the aggregate for all occurrences. If any part of the work is
sublet, similar insurance shall be provided by or on behalf of the
subcontractor(s)to cover their operations.
(e) Railroad Protective Liability Insurance (which includes Bodily Injury,
Property Damage and Physical Damage Insurance) providing limits to be
not less than $2,000,000 per occurrence for bodily injury and property
damage and$6,000,000 in the aggregate for all occurrences. If any part of
the work is sublet, similar insurance shall be provided by or on behalf of
the subcontractor(s)to cover their operations.
Fort Worth and Western Railroad Insurance Requirements
In additional to the insurance requirements for the City of Fort Worth, the
Contractor is required to execute the attached"Right of Entry Agreement"
with the Fort Worth and Western Railroad(see Exhibit A). This agreement
contains any additional insurance requirements for the railroad.
3.2 Contractor shall comply with the following additional insurance requirements:
a. All policies required hereunder shall be written on an"occurrence basis."
b. The City and the Railroad, their officers, employees and servants shall be
endorsed as an additional insured on Contractor's insurance policies excepting
employer's liability insurance coverage under Contractor's workers' compensation
insurance policy.
b. Certificates of insurance shall be delivered to the City of Fort Worth,
Transportation and Public Works Department, 1000 Throckmorton Street, Fort
Worth, TX 76102, before beginning any services required under this Agreement.
RAILROAD MAINTENANCE AGREEMENT
Page 4 of 8
C. Any failure on part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirements
specified herein.
d. Each insurance policy shall be endorsed to provide the City a minimum
thirty days notice of cancellation, non-renewal, and/or material change in policy
terms or coverage. A ten days notice shall be acceptable in the event of non-
payment of premium.
e. Insurers must be authorized to do business in the State of Texas and have a
current A.M. Best rating of A: VII or an equivalent measure of financial strength
and solvency.
f. Deductible limits, or self-funded retention limits, on each policy must not
exceed $10,000.00 per occurrence unless otherwise approved by the City.
g. Other than worker's compensation insurance, and in lieu of traditional
insurance, the City may consider alternative coverage or risk treatment measures
through insurance pools or risk retention groups. The City must approve in
writing any alternative coverage.
h. All insurance policies required hereunder shall include a waiver of
subrogation providing rights of recovery in favor of the City and the Railroad.
i. City shall not be responsible for the direct payment of insurance premium
costs for Contractor's insurance.
j. Contractor's insurance policies shall each be endorsed to provide that such
insurance is primary protection and any self-funded or commercial coverage
maintained by City shall not be called upon to contribute to loss recovery.
k. In the course of services being provided under this Agreement, Contractor
shall report, in a timely manner, to City's officially designated contract
administrator any known loss occurrence that could give rise to a liability claim or
lawsuit or that could result in a property loss.
1. Contractor's liability shall not be limited to the specified amounts of
insurance required herein.
M. Upon the City's request,Contractor shall provide complete copies of all
insurance policies required by these contract documents.
n. Subcontractors shall be deemed agents of Contractor and are subject to the
terms hereof.
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RAILROAD MAINTENANCE AGREEMENTI--II 9 R
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3.3 Fort Worth and Western Railroad Insurance Requirements
In addition to the City of Fort Worth insurance requirements listed above,
the Contractor is required to satisfy the requirements of and execute the
attached "Right of Entry Agreement" with the Fort Worth and Western
Railroad (see Exhibit A). The Right of Entry Agreement contains the
railroad's insurance requirements.
4.
Termination
4.1 This Agreement may be terminated by Contractor upon thirty-days written notice
to the City for any of the following:
(a) City's bankruptcy, insolvency, or assignment for the benefit of creditors;
(b) City's failure to pay any amounts owed Contractor under the terms of this
Agreement, and such default continues for fifteen days after the date the payment
was due.
4.2 This Agreement may be terminated by the City upon thirty-days written notice to
Contractor if Contractor fails to perform reasonably satisfactorily under the terms and
conditions of this Agreement, and City has given Contractor written notice itemizing the
defects or deficiencies of Contractor 's performance and has given Contractor 45 days in
which to cure the defects or deficiencies.
4.3 This Agreement may be terminated by the City for convenience and without cause
upon 10 days written notice.
5.
Indemnification
Contractor also covenants and agrees to, and by these presents does hereby, fully
indemnify, hold harmless and defend the City, its officers, agents and employees from all
suits, actions or claims of any character, whether real or asserted, brought for or on
account of any injuries or damages sustained by any persons (including death) or to any
property, resulting from or in connection with the construction, design, performance or
completion of any work to be performed by said Contractor, its contractors,
subcontractors, officers, agents or employees, or in consequence of any failure to
properly safeguard the work or on account of any act, intentional or otherwise, neglect or
misconduct of said Contractor, its contractors, sub-contractors, officers, agents or
employees, even if such injuries, death, or damages are caused, in whole or in part, by
the alleged negligence of the CUP, its officers, servants, or emnloyees.
It is understood that the foregoing is not intended to cover matters in which
the City, its officers, employees or agents have been found to be negligent or grossly
nezheent or to have committed malfeasance.
RAILROAD MAINTENANCE AGREEMENT
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6.
Term
This Agreement shall remain in full force and effect for a period of one year for
the services to be rendered by Contractor hereunder. This Agreement shall renew for two
additional one year periods.
7.
Miscellaneous
7.1 Drug Testing. Contractor shall comply with FRA's drug and alcohol testing
program.
7.2 BindingEffect.ffect. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors, assigns, personal representatives, and
heirs. No party, however, may assign this Agreement, or any portion thereof, to any
person without the prior written consent, not to be unreasonably withheld, of the other
party.
7.3 Governing Law. The provisions of this Agreement shall be governed by and
construed in accordance with the laws of the State of Texas. Venue shall lie exclusively
in any court of competent jurisdiction located in Tarrant County, Texas.
7.4 Notices. "Notice," except in Section 1.4, means a written notice required or
permitted under this Agreement. For non-emergency notice, a notice shall be deemed
given or sent when deposited, as certified mail or for overnight delivery, postage and fees
prepaid, in the United States mails; when delivered to Federal Express, United Parcel
Service, DHL Worldwide Express, or Airborne Express, for overnight delivery, charges
prepaid or charged to the sender's account; when personally delivered to the recipient;
when transmitted by electronically confirmed as having been successfully transmitted; or
when delivered to the home or office of a recipient in the care of a person whom the
sender has reason to believe will promptly communicate the notice to the recipient.
Emergency notice may be given to the individuals listed below and such notice may be
given by e-mail or facsimile with confirmation of delivery by return e-mail or telephone
call.
If to Fort Worth:
Mr. Russell Wiles
Department of Transportation and Public Works
1000 Throckmorton
Fort Worth, Texas 76102
Russell.wilesAfortworth og v.org
Telephone 817-392-7978
Facsimile 817-392-2433
Page RAILROAD MAINTENANCE AGREEMENT 1 TI ,f�b
e 7
If to Contractor:
Jim Leimbacher, General Manager
Quality Signal Construction
3602 N. Sylvania Ave.
Fort Worth, TX 76111
jleimbachernaegualitysignal.com
Telephone: 817-834-0665
Facsimile: 817-546-0707
7.5 Entire Agreement. This Agreement constitutes the entire agreement among the
parties regarding the subject matter of this Agreement, and no previous statement,
promise, agreement, inducement or representation, whether oral or written, shall be of
any further force or effect unless expressly set forth herein. All parties acknowledge and
agree that they have been advised of and had the opportunity to seek the advice of
counsel of their own choosing regarding the terms of this Agreement and the advisability
of executing it. All parties acknowledge and agree that they have each fully read and
understood the terms of this Agreement. Should any part of this Agreement be held by a
court of competent jurisdiction to be unenforceable or invalid, the remaining portions of
this Agreement shall remain in full force and effect.
In witness hereof, the following parties hereto have executed this Agreement on
U of , 2006.
Approval Recommended: City of Fort Worth
By:
Robert Goode, P. E., Director Marc Aatt
Transportation and Public Works Assistant City Manager
ATTEST: Approved as to Form and Legality:
Marty Hendrix Amy am
City Secretary Assistan ity Attorney
i
ATTEST: Contractor:
By
Bernard Bunney, Presid t
RAILROAD MAINTENANCE AGREEMENT
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EXAMPLE
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT, dated , is made by and between FORT
WORTH & WESTERN RAILROAD COMPANY located at 6300 Ridglea Place,
Suite 1200, Fort Worth, Texas 76116 (hereinafter "FWWR"), and
(hereinafter "Contractor").
Subject to the provisions hereof and pursuant to the Permanent Public
Street Crossing, Sanitary Sewer and Railroad Warning and Safety Devices
Easement between the Fort Worth & Western Railroad Company and the City of
Fort Worth, FWWR hereby grants to Contractor right of entry to maintain and
repair the grade crossing warning systems located at 7th Street and Museum
Way, Fort Worth, Tarrant County, Texas (hereinafter "Premises").
Subcontractors shall be deemed agents of Contractor and are subject to the
terms of this Agreement.
Contractor shall:
1. Perform that portion of the work in accordance with plans and
specifications approved in advance by FWWR and in such manner and at such
times as shall not endanger or interfere with FWWR and its representatives.
2. Notify FWWR at least seventy-two (72) hours before commencing work on
FWWR premises for safety purposes and coordination of maintenance and repair
with FWWR's signal contractor, Quality Signal Construction, Inc.
3. Keep all equipment, tools and materials stored at lease 25 feet from the
center line of any operable track. Explosives or other highly inflammable
substances or any hazardous materials regulated pursuant to federal or state
regulation will not be stored on Premises.
4. Remove all of Contractor's tools, equipment and materials from premises
promptly upon completion of work, restoring premises to the same state and
condition as when Contractor entered thereon.
5. Reimburse FWWR for all costs and expense incurred by FWWR in
connection with said work, including without limitation the expense of furnishing
such inspectors, watchmen and flagmen as FWWR deems necessary, the
installation and removal of false work and restoration of FWWR's property to the
same condition as when Contractor entered thereon.
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6. Contractor and subcontractors hereby agree, in the conduct of its
operations hereunder, to abide by and comply with all applicable laws, statutes,
rules and regulations of any federal, state or municipal authority, or any other
public body having jurisdiction, including, without limitation, laws, ordinances and
governmental regulations controlling air, water, noise, solid wastes and other
pollution, and environmental damages, and to file all reports or statements
required in connection with the conduct of its business. Contractor and
subcontractors shall and does hereby indemnify and hold harmless FWWR from
any and all loss, cost or expense whatsoever, incurred by reason of any violation
of such rules and regulations.
7. RISK ALLOCATION AND INDEMNITY
(A) FOR PURPOSES OF ITEM 7, THE "COMPANY GROUP" SHALL
BE COMPRISED OF:
(1) FORT WORTH & WESTERN RAILROAD COMPANY, ITS
PARENT COMPANIES, ITS SUBSIDIARY COMPANIES, ITS AFFILIATE
COMPANIES, AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
SERVANTS, AGENTS, REPRESENTATIVES AND INVITEES; AND
(II) OTHER CONTRACTORS, OTHER THAN CONTRACTOR
HIRED BY FWWR AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES AND INVITEES.
(B) FOR PURPOSES OF THIS ITEM 7, THE "CONTRACTOR
GROUP" SHALL BE COMPRISED OF:
(1) CONTRACTOR, ITS AFFILIATE COMPANIES, AND THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS, AGENTS,
REPRESENTATIVES AND INVITEES; AND
(II) ANY CONTRACTOR HIRED BY CONTRACTOR WITH THE
CONSENT OF FWWR AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, SERVANTS, AGENTS, REPRESENTATIVES AND INVITEES OF
SUCH CONTRACTOR.
(C) CONTRACTOR AGREES TO PROTECT, DEFEND, INDEMNIFY
AND HOLD COMPANY GROUP HARMLESS FROM AND AGAINST ANY AND
ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND
CHARACTER ARISING OUT OF OR RESULTING FROM THE WORK OR
SERVICES THAT ARE THE SUBJECT MATTER OF THIS AGREEMENT, ON
ACCOUNT OF PERSONAL OR BODILY INJURY, ILLNESS, OR DEATH OF
ANY PERSON OR DAMAGE TO OR LOSS OF ANY PROPERTY,
REGARDLESS OF WHO MAY BE AT FAULT OR OTHERWISE RESPONSIBLE
UNDER ANY CONTRACT, STATUTE, RULE OR THEORY OF LAW, EVEN
THOUGH THE SUBJECT LOSS, DAMAGE, INJURY, ILLNESS OR DEATH
MAY HAVE BEEN CAUSED OR BROUGHT ABOUT IN WHOLE OR IN PART
BY (a) THE SOLE, CONCURRENT, ACTIVE, PASSIVE, PRIMARY OR
SECONDARY NEGLIGENCE OF ANY PARTY, INCLUDING WITHOUT
LIMITATION THE COMPANY GROUP OR THE CONTRACTOR GROUP, (b)
THE STRICT LIABILITY, STRICT PRODUCTS LIABILITY, BREACHES OF
EXPRESS OR IMPLIED WARRANTIES, AND/OR THE LEGAL FAULT OF ANY
PARTY, INCLUDING WITHOUT LIMITATION THE COMPANY GROUP OR THE
CONTRACTOR GROUP, AND (c) ANY DEFECT OF ANY PROPERTY OR
EQUIPMENT OF ANY PARTY, INCLUDING, WITHOUT LIMITATION
COMPANY GROUP OR THE CONTRACTOR GROUP AND INCLUDING ANY
DEFECTS PREEXISTING THE DATE OF THIS AGREEMENT.
(D) CONTRACTOR HEREBY ACKNOWLEDGES AND AGREES
THAT IT HAS READ THIS AGREEMENT IN ITS ENTIRETY, THAT IT IS FULLY
INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF ALL TERMS,
CONDITIONS AND EFFECTS OF THIS AGREEMENT, THAT IT HAS HAD AN
OPPORTUNITY TO CONSULT OR HAS BEEN REPRESENTED BY LEGAL
COUNSEL OF ITS CHOICE PRECEDING THE EXECUTION OF THIS
AGREEMENT, AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS
OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE TERMS OF
ITEMS 7.A AND 7.C, RESULT IN CONTRACTOR GOUP ASSUMING CERTAIN
LIABILITIES WITH RESPECT TO CERTAIN WORK OR SERVICES AND
RELIEVING COMPANY GROUP OF ITS RESPONSIBILITY FOR SUCH
LIABILITY. CONTRACTOR AGREES THAT IT WILL NOT CONTEST THE
VALIDITY OR ENFORCEABILITY OF ANY INDEMNITY OR EXCULPATORY
PROVISION OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ON
THE BASIS THAT CONTRACTOR HAD NO NOTICE OR KNOWLEDGE OF
SUCH PROVISION OR THAT THE PROVISION WAS NOT "CONSPICUOUS".
(E) FWWR WILL NOTIFY CONTRACTOR OF ANY CLAIM, DEMAND
OR SUIT THAT MAY BE PRESENTED TO OR SERVED UPON IT BY ANY
PERSON ARISING OUT OF OR RESULTING FROM THE WORK OR
SERVICES THAT ARE SUBJECT MATTER OF THIS AGREEMENT,
AFFORDING CONTRACTOR AN OPPORTUNITY TO ASSUME THE DEFENSE
OF SUCH CLAIM.
8. PERSONAL PROPERTY WAIVER — ALL PERSONAL PROPERTY,
INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED
MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF
CONTRACTOR ONLY, AND FWWR SHALL NOT BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN
WHOLE OR IN PART TO THE NEGLIGENCE OF FWWR.
9. Insurance —
(a) Contractor shall provide, at Contractor's expense, with an
insurance company or companies authorized to do business in the states where
the work or services are to be performed, insurance coverage in the kind and in
the amounts as follows:
(i) Workers' Compensation Insurance in full compliance with all
applicable state and federal laws and regulations and Employers' Liability
Insurance on an occurrence basis of $1,000,000 per occurrence covering injury,
illness, or death to any employee or leased employee and including a borrowed
servant/alternate employer endorsement.
(ii) Commercial General Liability Insurance on ISO Form CG 00 01
0196 or subsequent form and on an occurrence basis, with limits of $1,000,000
for bodily injury, sickness or death in any one occurrence, $1,000,000 for loss or
damage to property in any one occurrence, $1,000,000 for personal and
advertising injury in any one occurrence, and $2,000,000 general and
products/completed operations aggregates, with blanket contractual liability,
including, without limitation, coverage for the indemnity agreements set forth in
Item 7 of this Agreement, and with a pollution liability coverage extension
endorsement on ISO Form CG 04 22 11 85.
(iii) Automobile Liability Insurance on ISO Form CA 00 01 07 97 and on
an occurrence basis covering owned, non-owned, specifically described, hired
and all other vehicles used by Contractor, with limits of $1,000,000 applicable to
bodily injury, illness or death in any one occurrence and $1,000,000 for any loss
or damage to property in any once occurrence, with blanket contractual liability,
including, without limitation, coverage for the indemnity agreements set forth in
Item 7 of this Agreement, and with broadened pollution liability coverage on ISO
Form CA 99 48 12 93.
(b) Umbrella or Excess Liability Insurance on a follow form, afford no
less coverage than the primary policy and on an occurrence basis over that
insurance coverage required in subsections (i), (ii) and (iii) above, with limits of
$10,000,000.
(c) The policies of insurance noted above shall be endorsed to waive
all rights of subrogation in favor of FWWR for all claims, demands, and causes of
action of every kind and character arising out of or resulting from the work or
services that are the subject matter of this Agreement. The policies of insurance
noted above contain no exclusion with respect to property of FWWR in the care,
custody or control of Contractor. The exclusions for railroads (except where the
Premises are more than fifty feet (50') from any railroad including but not limited
to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and
explosion, collapse and underground hazard shall be specifically deleted from all
policies of insurance noted above.
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(d) All policies of insurance noted above, with the exception of
Workers' Compensation Insurance and Employer's Liability Insurance, shall be
endorsed to name FWWR as blanket additional insured for all claims, demands
and causes of action of every kind and character arising out of or resulting from
the work or services that are the subject matter of this Agreement. The
obligation to name FWWR as an additional insured shall be separate and
independent from the indemnity obligations set forth in Item 7. FWWR shall be
entitled to status as an additional insured even if the indemnity provisions in Item
7 are unenforceable.
(e) All such insurance required shall be issued by American insurance
companies rated by A.M. Best Company as B+1X or higher or by Underwriters at
Lloyds of London or at the Institute of London Underwriters Companies, and shall
not be canceled or materially amended or changed without 30 days prior written
notice having first been furnished to FWWR.
(f) All policies of insurance, except Workers' Compensation and
Employers' Liability Insurance, shall be endorsed to provide that all such
insurance shall be primary and non-contributing with any other insurance
maintained by FWWR regarding all claims, demands and causes of action of
every kind and character arising out of or resulting from the work or services that
are the subject matter of this Agreement.
(g) Prior to commencement of the work or services, Contractor shall
deliver to FWWR a Certificate of Insurance, certifying the existence and limits of
the insurance coverages stated above and noting the applicable endorsements
described above. The policy(ies) shall contain a provision that obligates the
insurance company(ies) issuing such policy(ies) to notify FWWR in writing at
least 30 days prior to any cancellation, non-renewal, substitution or material
alteration. This cancellation provision shall be indicated on the certificate of
insurance. Upon request from FWWR, a certified duplicate original of any
required policy shall be furnished.
h. All notices and certificates shall be mailed to Fort Worth & Western
Railroad, 6300 Ridglea Place, Suite 1200, Fort Worth, Texas 76116.
i. FWWR may reasonably modify the required insurance coverage to
reflect future risk management practices in the railroad industry and underwriting
practices in the insurance industry.
j. If any portion of the operation is to be subcontracted by Contractor,
subcontractors shall be insured under Contractor's insurance coverage providing
and maintaining insurance coverages as set forth herein, naming FWWR as an
additional insured, and shall require that the subcontractor shall release, defend
and indemnify FWWR to the same extent and under the same terms and
conditions as Contractor is required to release, defend and indemnify FWWR
herein.
k. Failure to provide evidence as required by this Item 9 shall entitle,
but not require, FWWR to terminate this Agreement immediately. Acceptance of
a certificate that does not comply with this section shall not operate as a waiver
of Contractor's obligations hereunder.
I. The fact that insurance (including, without limitation, self-insurance)
is obtained by Contractor shall not be deemed to release or diminish the liability
of Contractor including, without limitation, liability under the indemnity provisions
of this Agreement. Damages recoverable by FWWR shall not be limited by the
amount of the required insurance coverage.
(m) Contractor WARRANTS that this Agreement has been thoroughly
reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed
by Contractor to procure the insurance coverage required by this Agreement and
acknowledges that Contractor's insurance coverage will be primary.
10. It is further agreed that the execution of this Agreement shall not constitute
a waiver by FWWR, with respect to third party claims asserted against Contractor
and/or its subcontractors, of any defense allowed by law.
11. Neither termination nor expiration will release either party from any liability
or obligation under this Agreement, whether of indemnity or otherwise, resulting
from any acts, omissions or events happening prior to the date of termination or
expiration.
12. All questions concerning the interpretation or application of provisions of
this Agreement shall be decided according to the substantive laws of the State of
Texas without regard to conflicts of law.
13. To the maximum extent possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by, or held to be invalid
under, applicable law, such provision shall be ineffective solely to the extent of
such prohibition or invalidity, and this shall not invalidate the remainder of such
provision or any other provision of this Agreement.
14. In the event that Contractor consists of two or more parties, all the
covenants and agreements of Contractor herein contained shall be the joint and
several covenants and agreements of such parties.
15. The waiver by FWWR of the breach of any provision herein by Contractor
shall in no way impair the right of FWWR to enforce that provision for any
subsequent breach thereof.
OP141VI-h-11,1 ENO
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed in duplicate the first day and year first above written.
CONTRACTOR: FWWR:
FORT WORTH &WESTERN
RAILROAD
By: By:
Printed Name: Jim M. Martin
Title: President & COO