HomeMy WebLinkAboutTrans 2016-11-07 Item 1A - Agreement - Boeing Access Road Over BNRR Bridge Rehabilitation (Burlington Northern Santa Fe (BNSF) Overpass AgreementCity of Tukwila
Allan Ekberg, Mayor
Public Works Department - Bob Giberson, Director
INFORMATIONAL MEMORANDUM
TO: Transportation Committee ��>>
FROM: Bob Giberson, Public Works Director-'1/2A
BY: Steve Carstens, Senior Program Manager
CC: Mayor Ekberg
DATE: November 4, 2016
SUBJECT: Boeing Access Rd over BNRR Bridge Rehabilitation Protect
Project No. 99410408
BNSF Overpass Agreement
ISSUE
Approve Burlington Northern Santa Fe's (BNSF) Overpass Agreement.
BACKGROUND
In October 2013, the City contracted with Jacobs Engineering, Inc. to provide the design for the
rehabilitation of the Boeing Access Rd over BNRR Bridge. Since that time, the City has been
working with BNSF to finalize an agreement which allows the project to be constructed over their
right -of -way. This Overpass Agreement allows the City and its contractor to work in the BNSF right -
of -way and pays for required railroad flagging and inspection services performed by BNSF.
ANALYSIS
BNSF's Overpass Agreement is for required construction and maintenance costs related to the
work over the railroad's right -of -way and covers inspection services and flagging required by the
BNSF. Attached are the Overpass Agreement, Exhibit A -1 for the flagging services, and Exhibit A-
2 for inspection services.
FISCAL IMPACT
The Overpass Agreement is within the approved construction management budget which includes
a contingency for unanticipated work. Staff is currently working on RFQs for the construction
management contract and hopes to advertise for construction bids in early 2017.
Contract CM Budget
BNSF Flagging and Inspection $149,428.00 $1,224,000.00
RECOMMENDATION
Council is being asked to approve the Overpass Agreement with BNSF for the Boeing Access Rd
over BNRR Rehabilitation Project in the amount of $149,428.00 and consider this item on the
Consent Agenda at the November 21, 2016 Regular Meeting.
Attachment: Page 10, Proposed 2017 CIP
BNSF C/M Agreement
W: \PW Eng \PROJECTS\A- RW & RS Projects \Boeing Access Rd Bridge Rehab (99410408) \05 ROW Esmt Permits \Info Memo BNSF CM Ag gl 110416.docx
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CITY OF TUKWILA CAPITAL PROJECT SUMMARY
2017 to 2022
PROJECT: Boeing Access Rd over BNRR Bridge Rehabilitation Project No. 99410408
DESCRIPTION: Rehabilitate the existing bridge with a 340' long concrete or steel bridge structure. It will be 6 lanes and have
a sidewalk on one side.
The existing bridge is structurally and seismically deficient. Several pedestals are leaning, have concrete
JUSTIFICATION: spalls, exposed rusty anchor bolts and reinforcements and some cracks. The existing railings do not meet
current bridge standards.
Type, size, and location draft report (specifically required for bridges) was completed in 2005. Federal grant
STATUS: applications were submitted in 2008 and 2010 and the bridge rehabilitation was successful for funding in
2012 for federal bridge funds. A Public Works Trust Fund (PWTF) loan was rescinded in 2013.
MAINT. IMPACT: Maintenance will be reduced.
COMMENT:
Bridge will be rehabilitated in phases to allow continued traffic use. Federal bridge grant of $9,745,600
requires a 20% local match. A bond issue for the City match was issued in 2015 with the Interurban Ave S.
FINANCIAL Through Estimated
(in $000's)
2015 2016 2017
2018 2019 2020 2021 2022 BEYOND TOTAL
EXPENSES
0 Project Location
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Design
1,249
84
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1,353
Land (R/W)
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0
Const. Mgmt.
1,224
1,224
Construction
9,745
9,745
TOTAL EXPENSES
1,249
84
10,989
0
0
0
0
0
0
12,322
FUND SOURCES
Awarded Grant
905
63
8,777
9,745
Proposed Grant
0
Fund Balance -Bond
344
21
2,212
2,577
Mitigation
0
City Oper. Revenue
0
0
0
0
0
0
0
0
0
0
TOTAL SOURCES
1,249
84
10,989
0
0
0
0
0
0
12,322
2017 - 2022 Capital Improvement Program
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2017 - 2022 Capital Improvement Program
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OVERPASS AGREEMENT
BNSF File No. BF10009078
Boeing Access Rd
U.S. D.O.T. No. 085597G
LS 051
MP 07.020X
Seattle Subdivision
This Agreement ( "Agreement "), is executed to be effective as of
( "Effective Date "), by and between BNSF RAILWAY COMPANY, a Delaware
corporation ( "BNSF "), and the City of Tukwila, a political subdivision of the State of
Washington ( "Agency ").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of
Tukwila, State of Washington; and
WHEREAS, Agency desires to widen and improve the existing structure known as the
Boeing Access Rd Bridge, D.O.T. No. 085597G.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I) SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the
construction of the proposed improvements to the Boeing Access Rd Bridge (hereinafter
referred to as the "Structure "), more particularly described on the Exhibit A, which is
attached hereto and incorporated herein, including, but not limited to, any and all
changes to telephone, telegraph, signal and electrical lines and appurtenances,
temporary and permanent track work, fencing, grading, alterations to or new
construction of drainage facilities, preliminary and construction engineering and contract
preparation. Additionally, temporary controls during construction must comply with
Section 8A -08, "Temporary Traffic Control Zones" of the Manual of Uniform Traffic
Control Devices ( "MUTCD "), U.S. Department of Transportation.
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ARTICLE II) BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful
performance thereof, BNSF agrees as follows:
1. Upon Agency's payment to BNSF of an administrative fee in the sum of zero and
No /100 Dollars ($0.00), together with the Temporary Construction License Fee in the
sum of $0 and No /100 Dollars ($0.00), BNSF hereby grants to Agency, its successors
and assigns, upon and subject to the terms and conditions set forth in this Agreement, a
temporary non - exclusive license (hereinafter called, "Temporary Construction License ")
to construct the Structure across or upon the portion of BNSF's right -of -way described
further on Exhibit A -1, excepting and reserving BNSF's rights, and the rights of any
others who have obtained, or may obtain, permission or authority from BNSF, to do the
following:
(a) Operate, maintain, renew and /or relocate any and all existing railroad
track or tracks, wires, pipelines and other facilities of like character upon,
over or under the surface of said right -of -way;
(b) Construct, operate, maintain, renew and /or relocate upon said right -of-
way, without limitation, such facilities as the BNSF may from time to time
deem appropriate, provided such facilities do not materially interfere with
the Agency's use of the Structure;
(c) Otherwise use or operate the right -of -way as BNSF may from time to time
deem appropriate, provided such use or operations does not materially
interfere with the Agency's use of the Structure; and
(d) Require the Agency or its contractor to execute a Temporary Construction
Crossing Agreement, for any temporary crossing requested to aid in the
construction of this Project.
The term of the Temporary Construction License begins on the Effective Date
and ends on the earlier of (i) substantial completion of the Structure, or (ii) eighteen
months following the Effective Date. The Temporary Construction License and related
rights given by BNSF to Agency in this provision are without warranty of title of any kind,
express or implied, and no covenant of warranty of title will be implied from the use of
any word or words herein contained. The Temporary Construction License is for
construction of the Structure only and shall not be used by Agency for any other
purpose. Agency acknowledges and agrees that Agency shall not have the right, under
the Temporary Construction License, to use the Structure for any other purpose than
construction. In the event Agency is evicted by anyone owning, or claiming title to or
any interest in said right -of -way, BNSF will not be liable to Agency for any damages,
losses or any expenses of any nature whatsoever. The granting of similar rights to
others, subsequent to the date of this Agreement, will not impair or interfere with the
rights granted to Agency herein.
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Upon Agency's payment to BNSF of the additional sum of $ zero and No /100
Dollars ($0.00), such payment to be made within thirty (30) days of issuing the Notice to
Proceed pursuant to Article III, Section 16 of this Agreement, and provided further that
Agency is in compliance with the term and conditions of this Agreement, BNSF will
grant to Agency, its successors and assigns, an easement (hereinafter called, the
"Easement ") to enter upon and use that portion of BNSF's right -of -way as is necessary
to use and maintain the Structure, substantially in the form of Exhibit B attached to this
Agreement. If Agency fails to pay BNSF within the thirty day time period set forth in the
preceding sentence, BNSF may stop construction of the Project until full payment is
received by BNSF.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work
required for the construction of the Project, such railroad work and the estimated cost
thereof being as shown on Exhibit D attached hereto and made a part hereof. In the
event construction on the Project has not commenced within six (6) months following
the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost
estimates set forth in said Exhibit D. In such event, the revised cost estimates will
become a part of this Agreement as though originally set forth herein. Any item of work
incidental to the items listed on Exhibit D not specifically mentioned therein may be
included as a part of this Agreement upon written approval of Agency, which approval
will not be unreasonably withheld. Construction of the Project must include the following
railroad work by BNSF:
(a) Procurement of materials, equipment and supplies necessary for the
railroad work;
(b) Preliminary engineering, design, and contract preparation;
(c) Furnishing of flagging services during construction of the Project as
required and set forth in further detail on Exhibit C;
(d) Furnishing engineering and inspection as required in connection with the
construction of the Project;
(e) Providing a contract project coordinator, at Agency's expense, to serve as
a project manager for the Project
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost
basis, when BNSF, in its sole discretion, determines it is required by its labor
agreements to perform such work with its own employees working under applicable
collective bargaining agreements.
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4. Agency agrees to reimburse BNSF for work of an emergency nature caused by
Agency or Agency's contractor in connection with the Project which BNSF deems is
reasonably necessary for the immediate restoration of railroad operations, or for the
protection of persons or BNSF property. Such work may be performed by BNSF
without prior approval of Agency and Agency agrees to fully reimburse BNSF for all
such emergency work.
5. BNSF may charge Agency for insurance expenses, including self- insurance
expenses, when such expenses cover the cost of Employer's Liability (including, without
limitation, liability under the Federal Employer's Liability Act) in connection with the
construction of the Project. Such charges will be considered part of the actual cost of
the Project, regardless of the nature or amount of ultimate liability for injury, loss or
death to BNSF's employees, if any.
6. During the construction of the Project, BNSF will send Agency progressive
invoices detailing the costs of the railroad work performed by BNSF under this
Agreement. Agency must reimburse BNSF for completed force - account work within
thirty (30) days of the date of the invoice for such work. Upon completion of the Project,
BNSF will send Agency a detailed invoice of final costs, segregated as to labor and
materials for each item in the recapitulation shown on Exhibit D. Pursuant to this
section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety
(90) days of the date of the final invoice. BNSF will assess a finance charge of .033%
per day (12% per annum) on any unpaid sums or other charges due under this
Agreement which are past its credit terms. The finance charge continues to accrue
daily until the date payment is received by BNSF, not the date payment is made or the
date postmarked on the payment. Finance charges will be assessed on delinquent
sums and other charges as of the end of the month and will be reduced by amounts in
dispute and any unposted payments received by the month's end. Finance charges will
be noted on invoices sent to Agency under this section.
ARTICLE III) AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof,
Agency agrees as follows:
1. Agency must furnish to BNSF plans and specifications for the Project. One
digital copy of said plans (reduced size 11" x 17 "), together with calculations, and
specifications in English Units, must be submitted to BNSF for approval prior to
commencement of any construction. BNSF will give Agency final written approval of the
plans and specifications substantially in the form of Exhibit E, attached to this
Agreement and made a part hereof. Upon BNSF's final written approval of the plans
and specifications, said plans and specifications will become part of this Agreement and
are hereby incorporated herein. Any approval of the plans and specifications by BNSF
shall in no way obligate BNSF in any manner with respect to the finished product design
and /or construction. Any approval by BNSF shall mean only that the plans and
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specifications meet the subjective standards of BNSF, and such approval by BNSF shall
not be deemed to mean that the plans and specifications or construction is structurally
sound and appropriate or that such plans and specifications meet applicable
regulations, laws, statutes or local ordinances and /or building codes.
2. Agency must make any required application and obtain all required permits and
approvals for the construction of the Project.
3. Agency must provide for and maintain minimum vertical and horizontal
clearances, as required in Exhibit C and as approved by BNSF as part of the plans and
specifications for the Project.
4. Agency must acquire all rights of way necessary for the construction of the
Project.
5. Agency must make any and all arrangements, in compliance with BNSF's Utility
Accommodation Manual (http: / /www.bnsf.com /communities /fags /pdf /utilitv.pdf), for the
installation or relocation of wire lines, pipe lines and other facilities owned by private
persons, companies, corporations, political subdivisions or public utilities other than
BNSF which may be necessary for the construction of the Project..
6. Agency must construct the Project as shown on the attached Exhibit A and do all
work ( "Agency's Work ") provided for in the plans and specifications for the Project,
except railroad work that will be performed by BNSF hereunder. Agency must furnish
all labor, materials, tools and equipment for the performance of Agency's Work. The
principal elements of Agency's Work are as follows:
(a) Construction of the Structure;
(b) All necessary grading and paving, including backfill of excavations and
restoration of disturbed vegetation on BNSF's right -of -way;
(c) Provide suitable drainage, both temporary and permanent;
(d) Intentionally left blank;
(e) Intentionally left blank;
(f) Intentionally left blank
(g) Provide appropriate pedestrian control during construction;
(h) Intentionally left blank
(i) Installation and maintenance of an 8 -ft. high fence and /or concrete
combination (throw fence) on the outside barrier of the Structure;
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(j) Job site cleanup including removal of all construction materials, concrete
debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and
other waste materials to the satisfaction of BNSF.
7. Agency must apply and maintain said D.O.T. Crossing number 085597G in a
conspicuous location on the Structure.
8. Agency's Work must be performed by Agency or Agency's contractor in a
manner that will not endanger or interfere with the safe and timely operations of BNSF
and its facilities.
9. For any future inspection or maintenance, either routine or otherwise, performed
by subcontractors on behalf of the Agency, Agency shall require the subcontractors to
comply with the provisions of the attached Exhibit C and execute the agreement
attached hereto as Exhibit C -1. Prior to performing any future maintenance with its own
personnel, Agency shall: comply with all of BNSF's applicable safety rules and
regulations; require any Agency employee performing maintenance to complete the
safety training program at the BNSF's Internet Website "http: / /bnsfcontractor.com/ ";
notify BNSF when, pursuant to the requirements of Exhibit C, a flagger is required to be
present; procure, and have approved by BNSF's Risk Management Department,
Railroad Protective Liability insurance.
10. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty
(30) calendar days prior to requesting a BNSF flagman in accordance with the
requirements of Exhibit C attached hereto. Additionally, Agency must require its
contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior
to commencing work on BNSF property or near BNSF tracks.
11. Agency or its contractor(s) must submit a digital of any plans (including
calculations in English Units) for proposed shoring, falsework or cribbing to be used
over, under, or adjacent to BNSF's tracks to BNSF's Manager of Public Projects for
approval. The shoring, falsework or cribbing used by Agency's contractor shall comply
with the BNSF Bridge Requirements set forth on Exhibit F and all applicable
requirements promulgated by state and federal agencies, departments, commissions
and other legislative bodies. If necessary, Agency must submit a digital copy of a
professionally engineered demolition plan, as set forth in Exhibit G, with applicable
calculations to BNSF's Manager of Public Projects.
12. Agency must include the following provisions in any contract with its provider(s)
performing work on said Project:
(a) The Provider is placed on notice that fiber optic, communication and
other cable lines and systems (collectively, the "Lines ") owned by
various telecommunications companies may be buried on BNSF's
property or right -of -way. The locations of these Lines have been
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included on the plans based on information from the
telecommunications companies. The Provider will be responsible for
contacting BNSF and the telecommunications companies and notifying
them of any work that may damage these Lines or facilities and /or
interfere with their service. The Provider must also mark all Lines
shown on the plans or marked in the field in order to verify their
locations. The Provider must also use all reasonable methods when
working in the BNSF right -of -way or on BNSF property to determine if
any other Lines (fiber optic, cable, communication or otherwise) may
exist.
(b) The Provider will be responsible for the rearrangement of any facilities
or Lines determined to interfere with the construction. The Provider
must cooperate fully with any telecommunications company (ies) in
performing such rearrangements.
(c) Failure to mark or identify these Lines will be sufficient cause for BNSF
to stop construction at no cost to the Agency or BNSF until these items
are completed.
(d) In addition to the liability terms contained elsewhere in this Agreement,
the Provider hereby indemnifies, defends and holds harmless BNSF
for, from and against all cost, liability, and expense whatsoever
(including, without limitation, attorney's fees and court costs and
expenses) arising out of or in any way contributed to by any act or
omission of Provider, its subcontractors, agents and /or employees that
cause or in any way or degree contribute to (1) any damage to or
destruction of any Lines by Provider, and /or its subcontractors, agents
and /or employees, on BNSF's property or within BNSF's right -of -way,
(2) any injury to or death of any person employed by or on behalf of
any telecommunications company, and /or its contractor, agents and /or
employees, on BNSF's property or within BNSF's right -of -way, and /or
(3) any claim or cause of action for alleged loss of profits or revenue
by, or Toss of service by a customer or user of such telecommunication
company(ies). THE LIABILITY ASSUMED BY PROVIDER WILL NOT
BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE
DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION
OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES
OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS
ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. It is mutually
negotiated between the parties that the indemnification obligation
shall include all claims brought by Agency's employees against
BNSF, its agents, servants, employees or otherwise, and Agency
expressly waives its immunity under the industrial insurance act
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(RCW Title 51) and assumes potential liability for all actions
brought by its employees.
13. Agency must require compliance with the obligations set forth in this agreement,
including Exhibit C and Exhibit C -1, and incorporate in each prime contract for
construction of the Project, or the specifications therefor (i) the provisions set forth in
Article III and IV; and (ii) the provisions set forth in Exhibit C, Exhibit C -I, and Exhibit F
attached hereto and by reference made a part hereof.
14. Except as otherwise provided below in this Section 13, all construction work
performed hereunder by Agency for the Project will be pursuant to a contract or
contracts to be let by Agency, and all such contracts must include the following:
(a) All work performed under such contract or contracts within the limits of
BNSF's right -of -way must be performed in a good and workmanlike
manner in accordance with plans and specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF
operations must be subject to BNSF's approval;
(c) No work will be commenced within BNSF's right -of -way until each of the
prime contractors employed in connection with said work must have (i)
executed and delivered to BNSF an agreement in the form of Exhibit C -I,
and (ii) delivered to and secured BNSF's approval of the required
insurance; and
(d) To facilitate scheduling for the Project, Agency shall have its contractor
give BNSF's representative four (4) weeks advance notice of the proposed
times and dates for work windows. BNSF and Agency's contractor will
establish mutually agreeable work windows for the Project. BNSF has the
right at any time to revise or change the work windows, due to train
operations or service obligations. BNSF will not be responsible for any
additional costs and expenses resulting from a change in work windows.
Additional costs and expenses resulting from a change in work windows
shall be accounted for in the contractor's expenses for the Project.
(e) The plans and specifications for the Project must be in compliance with
the Bridge Requirements set forth on Exhibit F, attached to this
Agreement and incorporated herein.
15. Agency must advise the appropriate BNSF Manager of Public Projects, in writing,
of the completion date of the Project within thirty (30) days after such completion date.
Additionally, Agency must notify BNSF's Manager of Public Projects, in writing, of the
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date on which Agency and /or its Contractor will meet with BNSF for the purpose of
making final inspection of the Project.
16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY
RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS
AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL
REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND
OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE
EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY
ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART)
(I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY
THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE
SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR
ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE
TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY
PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR
INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY
OR RIGHT -OF -WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT
MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR
OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR
CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY
OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE
LIABILITY ASSUMED BY AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT
IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS
AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. It is mutually negotiated
between the parties that the indemnification obligation shall include all claims
brought by Agency's employees against BNSF, its agents, servants, employees
or otherwise, and Agency expressly waives its immunity under the industrial
insurance act (RCW Title 51) and assumes potential liability for all actions
brought by its employees.
17. Agency must give BNSF's Manager of Public Projects written notice to proceed
( "Notice to Proceed ") with the railroad work after receipt of necessary funds for the
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Project. BNSF will not begin the railroad work (including, without limitation,
procurement of supplies, equipment or materials) until written notice to proceed is
received from Agency.
ARTICLE IV) JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the
following:
1. All work contemplated in this Agreement must be performed in a good and
workmanlike manner and each portion must be promptly commenced by the party
obligated hereunder to perform the same and thereafter diligently prosecuted to
conclusion in its logical order and sequence. Furthermore, any changes or
modifications during construction which affect BNSF will be subject to BNSF's written
approval prior to the commencement of any such changes or modifications from the NW
Division Manager Engineering Services.
2. The work hereunder must be done in accordance with the Bridge Requirements
set forth on Exhibit F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's
construction schedule for all Project work. The parties hereto mutually agree that
BNSF's failure to complete the railroad work in accordance with the construction
schedule due to inclement weather or unforeseen railroad emergencies will not
constitute a breach of this Agreement by BNSF and will not subject BNSF to any
liability. Regardless of the requirements of the construction schedule, BNSF reserves
the right to reallocate the labor forces assigned to complete the railroad work in the
event of an emergency to provide for the immediate restoration of railroad operations of
either (BNSF or its related railroads) or to protect persons or property on or near any
BNSF owned property. BNSF will not be liable for any additional costs or expenses
resulting from any such reallocation of its labor forces. The parties mutually agree that
any reallocation of labor forces by BNSF pursuant to this provision and any direct or
indirect consequences or costs resulting from any such reallocation will not constitute a
breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the
following events take place: (i) Agency (or any of its contractors) performs the Project
work in a manner contrary to the plans and specifications approved by BNSF; (ii)
Agency (or any of its contractors), in BNSF's opinion, prosecutes the Project work in a
manner that is hazardous to BNSF property, facilities or the safe and expeditious
movement of railroad traffic; (iii) the insurance described in the attached Exhibit C -1 is
canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the
Temporary Construction License or the Easement pursuant to Article II, Section 1 of this
Agreement. The work stoppage will continue until all necessary actions are taken by
Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division
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Engineer or until proof of additional insurance has been delivered to and accepted by
BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction
License, or (iii) the Easement, BNSF may immediately terminate the Temporary
Construction License or the Easement. Any such work stoppage under this provision
will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in
addition to any other rights BNSF may have including, but not limited to, actions or suits
for damages or lost profits. In the event that BNSF desires to stop construction work on
the Project, BNSF agrees to immediately notify the following individual in writing:
Robin Tischmak
City Engineer
City of Tukwila
6300 Southcenter Blvd, Suite 100
Tukwila, WA 98188
5. Agency must supervise and inspect the operations of all Agency contractors to
ensure compliance with the plans and specifications approved by BNSF, the terms of
this Agreement and all safety requirements of BNSF. If BNSF determines that proper
supervision and inspection are not being performed by Agency personnel at any time
during construction of the Project, BNSF has the right to stop construction (within or
adjacent to its operating right -of -way). Construction of the Project will not proceed until
Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the
situation is not being corrected in an expeditious manner, BNSF will immediately notify
Robin Tischmak
City Engineer
City of Tukwila
6300 Southcenter Blvd, Suite 100
Tukwila, WA 98188
for appropriate corrective action.
6. Agency agrees to provide, to the BNSF Manager Evidence Preservation, such
Project documentation and records as are agreed to between the parties including: any
project applications; any letters of approval and /or authorization forms (eg. PR -1240 or
the equivalent); any and all payment Voucher forms requesting FHWA reimbursement
(eg. PR -20 or the equivalent) or any other such project authorization or funding records
as BNSF may request from time to time. Such records will be provided by the Agency
to BNSF on a mutually agreeable schedule or within two (2) months after such records
are generated or received by the Agency. Section 130 Documentation shall be
provided to BNSF in the one of the following manners:
11
13
Manager Evidence Preservation
2600 Lou Menk Drive, AOB -3
Fort Worth, Texas 76131
Or electronically to:
Manager Evidence Preservation
Section 130@bnsf.com
7. Pursuant to this section and Article II, Section 6 herein, Agency must reimburse
BNSF in full for the actual costs of all work performed by BNSF under this Agreement
(including taxes, such as applicable sales and use taxes, business and occupation
taxes, and similar taxes), less BNSF's Share as set forth in Article IV, Section 6 herein.
BNSF's Share must be paid upon completion of the Project.
In any action brought under this Agreement, the prevailing Party shall be entitled to
recover its actual costs and attorneys fees pursuant to California Civil Code Section
1717, as well as other litigation costs, including expert witness fees. The prevailing
Party shall also be entitled to recover all actual attorneys fees and litigation costs
incurred in connection with the enforcement of a judgment arising from such action or
proceeding.
8. All expenses detailed in statements sent to Agency pursuant to Article II, Section
6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23
Code of Federal Regulations, and the Federal -Aid Policy Guide, U.S. Department of
Transportation, as amended from time to time, which manual is hereby incorporated into
and made a part of this Agreement by reference. The parties mutually agree that
BNSF's preliminary engineering, design, and contract preparation costs described in
Article II, Section 2 herein are part of the costs of the Project even though such work
may have preceded the date of this Agreement.
9. The parties mutually agree that neither construction activities for the Project, nor
future maintenance of the Structure once completed, will be permitted during the fourth
quarter of each calendar year. Emergency work will be permitted only upon prior
notification to BNSF's Network Operations Center (telephone number: 800 832 - 5452).
The parties hereto mutually understand and agree that trains cannot be subjected to
delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the
construction of the Project will not commence until Agency gives BNSF's Manager of
Public Projects thirty (30) days prior written notice of such commencement. The
commencement notice will reference D.O.T. Crossing No. 085597G and must state the
time that construction activities will begin.
12
14
11. In addition to the terms and conditions set forth elsewhere in this Agreement,
including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and
Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and maintain, at its sole cost and expense, the Structure,
the highway approaches, and appurtenances thereto, lighting, drainage
and any access roadways to BNSF gates installed pursuant to this
Agreement. BNSF may, at its option, perform maintenance on the
Structure in order to avoid conflicts with train operations. BNSF will notify
Agency prior to performing any such maintenance on the Structure. In the
event such maintenance involves emergency repairs, BNSF will notify
Agency at its earliest opportunity. Agency must fully reimburse BNSF for
the costs of maintenance performed by BNSF pursuant to this subsection
(b).
(b) Agency must, at Agency's sole cost and expense, keep the Structure
painted and free from graffiti.
(c) Agency must provide BNSF with any and all necessary permits and
maintain roadway traffic controls, at no cost to BNSF, whenever requested
by BNSF to allow BNSF to inspect the Structure or to make emergency
repairs thereto.
(d) It is expressly understood by Agency and BNSF that any right to install
utilities will be governed by a separate permit or license agreement
between the parties hereto.
(e) Agency must keep the Structure and surrounding areas clean and free
from birds, pigeons, scavengers, vermin, creatures and other animals.
(f)
If Agency (including its contractors and agents) or BNSF, on behalf of
Agency, performs (i) alterations or modifications to the Structure, or (ii)
any maintenance or other work on the Structure with heavy tools,
equipment or machinery at ground surface level horizontally within 25' -0"
of the centerline of the nearest track, or (iii) any maintenance or other
work outside the limits of the deck of the Structure vertically above the top
of the rail, then Agency or its contractors and /or agents must procure and
maintain the following insurance coverage, which may be changed from
time to time:
Railroad Protective Liability insurance naming only BNSF as the
Insured with coverage of at least $5,000,000 per occurrence and
$10,000,000 in the aggregate. The policy shall be issued on a
standard ISO form CG 00 35 12 04 and include the following:
13
15
• Endorsed to include the Pollution Exclusion Amendment
• Endorsed to include the Limited Seepage and Pollution
Endorsement.
• Endorsed to remove any exclusion for punitive damages.
• Endorsed to include Evacuation Expense Coverage Endorsement.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to BNSF prior to performing
any work or services under this Agreement
• Definition of "Physical Damage to Property" shall be endorsed to
read: "means direct and accidental loss of or damage to all property
owned by any named insured and all property in any named
insured' care, custody, and control arising out of the acts or
omissions of the contractor named on the Declarations.
As used in this paragraph, "BNSF" means "Burlington Northern Santa
Fe, LLC ", "BNSF RAILWAY COMPANY" and the subsidiaries,
successors, assigns and affiliates of each.
In lieu of providing a Railroad Protective Liability Policy, Agency may
participate in BNSF's Blanket Railroad Protective Liability Insurance
Policy if available to Agency or its contractors. The limits of coverage
are the same as above.
12. Agency hereby grants to BNSF, at no cost or expense to BNSF, a permanent
right of access from Agency property to BNSF tracks for maintenance purposes.
13. Agency must provide one set of digital as -built plans (prepared in English Units)
to BNSF, as well as one set of computer diskettes containing as built CAD drawings of
the Structure and identifying the software used for the CAD drawings. The "as built
plans" must comply with the Bridge Requirements set forth on Exhibit F and depict all
information in BNSF engineering stationing and mile post pluses. The "as built plans"
must also include plan and profile, structural bridge drawings and specifications, and
drainage plans. All improvements and facilities must be shown.
14. Subject to the restrictions imposed by Article IV, Section 9 above and in
accordance with the requirements of Article III, Section 9 above, Agency must notify and
obtain prior authorization from BNSF's Manager of Public Projects before entering
BNSF's right -of -way for INSPECTION OR MAINTENANCE purposes, and the BNSF
Manager of Public Projects will determine if flagging is required. If the construction work
hereunder is contracted, Agency must require its prime contractor(s) to comply with the
obligations set forth in Exhibit C and Exhibit C -1, as the same may be revised from time
to time. Agency will be responsible for its contractor(s) compliance with such
obligations.
15. In the event that BNSF shall deem it necessary or desirable in the future, in the
performance of its duty as a common carrier, to raise or lower the grade or change the
14
16
alignment of its tracks or to lay additional track or tracks or to build other facilities in
connection with the operation of its railroad, BNSF shall, at its expense, have full right to
make such changes or additions, provided such changes or additions do not change or
alter the Structure herein proposed to be constructed and provided further, however,
that should it become necessary or desirable in the future to change, alter, widen or
reconstruct the Structure to accommodate railroad projects, the cost of such work,
including any cost incidental to alteration of railroad or highway facilities made
necessary by the alteration of the Structure shall be the sole responsibility of Agency.
16. Agency may, at Agency's sole expense, alter or reconstruct the highway
components of the Structure if necessary or desirable, due to traffic conditions or
pedestrian or other recreational traffic, provided, however, that any such alteration or
reconstruction must receive BNSF's prior written approval as evidenced by either a
supplement to this Agreement, or execution of a new agreement that provides for the
termination of this Agreement. Furthermore, any alteration or reconstruction of the
highway components of the Structure will be covered by a Commission Order.
17. Any books, papers, records and accounts of the parties hereto relating to the
work hereunder or the costs or expenses for labor and material connected with the
construction will at all reasonable times be open to inspection and audit by the agents
and authorized representatives of the parties hereto, as well as the State of
Washington and the Federal Highway Administration, for a period of three (3) years
from the date of final BNSF invoice under this Agreement.
18. The covenants and provisions of this Agreement are binding upon and inure to
the benefit of the successors and assigns of the parties hereto. Notwithstanding the
preceding sentence, neither party hereto may assign any of its rights or obligations
hereunder without the prior written consent of the other party.
19. In the event construction of the Project does not commence within eighteen
months of the Effective Date, this Agreement will become null and void.
20. Neither termination nor expiration of this Agreement 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.
21. To the maximum extent possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law. If any
provision of this Agreement is prohibited by, or held to be invalid under, applicable law,
such provision will be ineffective solely to the extent of such prohibition or invalidity and
the remainder of the provision will be enforceable.
22. This Agreement (including exhibits and other documents, manuals, etc.
incorporated herein) is the full and complete agreement between BNSF and Agency
15
17
with respect to the subject matter herein and supersedes any and all other prior
agreements between the parties hereto.
23. Any notice provided for herein or concerning this Agreement must be in writing
and will be deemed sufficiently given when sent by certified mail, return receipt
requested, to the parties at the following addresses:
BNSF:
AGENCY:
BNSF's Manager of Public Projects
Richard W Wagner
2454 Occidental Avenue South Ste 2D
Seattle, WA 98134
206.625.6152
Richard.Wagner( BNSF.com
Robin Tischmak
City Engineer
City of Tukwila
6300 Southcenter Blvd, Suite 100
Tukwila, WA 98188
(206) 431 -2455
16
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and attested by its duly qualified and authorized officials as of the day and
year first above written.
WITNESS:
WITNESS:
17
BNSF RAILWAY COMPANY
By:
Printed Name: Richard Wagner
Title: Manager Public Proiects NW
Division — ID, WA & BC
AGENCY
CITY OF TUKWILA, WASHINGTON
By:
Printed Name: Allan Ekberg
Title: Manor, City of Tukwila
19
Exhibit A
[Insert drawing of the Project and /or Structure]
18
20
1
4
y
t, l4 81T A
QWALN. CO.
1.06C*1 1ACI:`t AKILIVA6 CO - LCy }Ce
M.R 176,3 near
5£ATTLE,14,46 COUNTY,WASH.
�c iMya,IM l*..I:.' M1ewya5
' Aollr.l+ R t f May hr Ma
sa.pr.11.1 n e1 O.., ..d A...“ is. GaN•y.
�E SCA1f i .100'
+ + . et.c.C1 C ENGEJNi1 E Mna
Ci ORAMING NG ? 4796
L GE ND
Erna..) P. 6n•rawl
Ra•away MOH
, ra.+.m, t RY S ., Noon 'SAW -__ .r. •
■4460Ca 1■Ant ray tinkl.oad ---- . --A.A1.
21
EXHIBIT B
19
RUSSELL H. FLUENT. CHAIRMAN
COMMISSIONER. FIRST DISTRICT
ARCHIE E. PHELPS JOS. A. WHETSTONE
COMMISSIONER. SECOND DISTRICT COMMISSIONER. THIRD DISTRICT
KING COUNTY COMMISSIONERS
402 COUNTY -CITY BUILDING
SEATTLE
December 12, 1944
Department of Highways
Transportation Building
Olympia, Washington
Dear Sir: Attention: Earl F. Dickinson
This will acknowledge receipt of duly executed agreement be-
tween Oregon - Washington Railroad & Navigation Company, Union
Pacific Railroad Company, State of Washington and County of
King.
In accordance with your request of December 5, 1944, this
document has been recorded in the office of the King County
Auditor in volume 2290 of Deeds at Page 409 and bears the
County Auditor's File No. 3433396.
Very truly yours,
BOARD OF COUNTY COMMISSIONERS
ROBERT A. MORRIS, Cl k off' Board
By
MES:ym
•
cc- S.Murray, Resident Engineer
Operating Dept.,Union Pacific R.R.Co.,
828 Pittock Block
Portland 5, Oregon
Deputy
• N
L
23
Trild AGitanaft made and entered into thin -Q -� 61 of
1944, by and helium tali` - ri " R Ramat &
P VXOI ZON CONEWs an Oregon corporations a its lessee VOIM
kACIYIC AAILROA4 U 1 ARY, a Utah a orporatten (hereinafter soils**
timely e.1 *Railroad compdntie) , parties of this first parts
and t • RUTS 01 USRIBOTON, act by and through its Dire0,01 ems'
Highways (hereinafter oat *State) and Oa Q0l 01 ,
County of the vat.** of Washington (hereinafter called 'o' )s
pa,lsa of tb 0000nd parts.
li�'TSS8zTrn
42011,8113;
The County. nate au4 Railroad mantes and oth
parities to writtan dontrat 3e4 $ ads 1 providing for
the coast ation by the Stet* e4 atl itrnan4s tb County era
viaduct over and corona the rigbt of way and tracks of the Railroad
Companion and other *, to accomodate A000130 Roads Boeing Airman
Fran% 5 natt1s- Bent , i .W 1 (58), and the Railroad Companies
therein ; .
exceed to ant en aasament upon and across their property
therefor.
NOW, FRB, it is awed by and Waimea the some.
as follorraa
section 1. (or) So tar an thay laitelly may 1. m s the
Reilros4 denies hereby ant to the State and County, is
each and all of the terns, previsions, conditions, covasants.
reservations and ezeoptione 'contained in this agreement, s Use se,
pert and east to construct, mac tntsin, repair, renew end use
said viaduct upon, wear and aerosol the night of way and trash* et
the his i lroad monies, above the surface thereof, within the
toUoting described arm nituate in the Qounty of Kings state eT
ttaShingtent
A aril, of lend elm Wired twenty (120) feet vide
situate ig the i i st uarter. of the Southwest ~ter
:Si or s ) •of Three e (5), '�t� T t t
2s) Worth, Range Four (4) Zest of the Willamette Meridian
Xing Count, Washington* being all Chet pert of the
Wight of we/ of the Oregono.Weshington Ael3roa4 &bfitimigation
Company, learn to the Union Pacific Railroad s,'empany, that
1100 WAWA e Xty (60) feet, measured Ott rat antes* an
es+eh side of end parallel with the hereinafter deseribed
•enter line of AC0080 Road, Boeing 4 raraft Planta,
Seattle- a tton 11104 1 (6) es sate is aurvee red, located
and Stsked out, over and aerose said right of way.
Said center line of Aottelle .€mad as surveyed, feted
and ete)ed out, over and aerrms said rift of way and other
property ty bei deianrtbad as follows for -grit:
Seginning at a point on the north and south center line
or said Section Three (3) that is men hundred fit 4 ry
and seven tenths 054.7) feet distant uouth from the °enter
of said seetion measured along -mid north and south cutter
Liner;
thence westerly y a long a straight line that forms an
angle of eightr.teur degrees and thlrtywtour minutes
($4' ') frni south to west with said north and south
center line of immtion The (3) ea distance of seven humored
fort n+e and six tenths (941. ) feet to a Point in the
center line tit the main trash of said Nailroed Oompany at
tallroed °. tirvey nation 65 pluo 12.7 which equals cc
Read liurvvey V;tation 13 plus) 59.6; said straight line terms
an Incle of sixty -sever degrees and twenty -six minutes
(67- 26') from went to north with a tangent to acid anin
trek at itetlroad IuxVey .itatton 265 plus 12.9;
thence continuing eatsrly lone said strniaht line a
dietenee of two hundred elzhty any twenty*etghi hun4reathe
(240.28) feet to ; .coess ho t4 ..1u *vay tion 1e pine 19.64.
The area hareinbe fore deseribed is shown and represented by yellow
color on %:ciawing No, 54390 dated 4uly 20, 1944, hereto annexed,
marked ed " hibit .f" end by this reference made s part of this
agreement.
(b) In addition thereto, the Aailroad Uasi$nies so tar
es they lawfully may do so, hereby grant to the State and county,
subject to each and all of the terms, provie1ous,, conditions,
covenants, reservations end exceptions loin contain d, a lima **
permit and ea at to construct, maintain* repair* sew and me
pes of sold roadway mpon tits following described property of tbso
Railroad Coles In ging County* Washington,
Teo strips of land sash forty (40) feet wide adjoining
one on each side of end parallel with the above described
e hundred twenty (320) foot , etr1P of loud to be used for
overhead Aftess Hoed Crossing* and wester] .
y
the easterly line mot' the right of W07 of 0* _d Ael roM
Company to a line web forma W. on o 01 a .atya eveea
degrees and thin minutes (7* ' f west to north
with said center line of .sooesz Road at Highway aurvey
citation 1$ plus SX.73 thereof.
The last -des rjbsd property is shown and Ind/mated by green Belot
on map ambit A hereto.
(o) The premises above deseribed in paragraphs Ca) and (b4
shell be used by the State and Count ► only for the purposes afore*
said and not otherwise, sod it et amY ttse the property of the
Railroad Companies hereinbetore in d* sootier& dea ibed, or sui
,part or parts thereof* shall permonontlY cease to be need for the
purposes aforesaid or shall be used for purpose* unauthorised hefty
then the east hereby anted as to ouch property or parts theme
all °ease end mate*
(4) The rights herehrSramted ebeU be and are sub3eot tO 1
all outstanding superior rlata, whether pnbiie or pritvet., and
extensions or renewals thy, and the Railroad Companies reserve
the right to use the property boreinbefore described* for asy► end 4
purposes not inconsistent with the lio±eenee#, permit and easement
hereby meted, and pa rti u1ar y reserve the right* **jolt to **td
easement* ent, to oenstruot edditiovoi tram *,, trawls or facilities way
along* over* undear, or across the areas destribt, at any time asd
front time to time as end when they determine.
2
(e) The Railroad Companim by to iaatru nat 1th.r
grant nor intend to aunt any greater estate or right than Unt
herei abotore expressly ssiy dee rtb+I dt tomwit, an easement for the MA*
poaa aforesaid. The mooment hereby waited tne],udeo ohlf
property harelabefore in this seetion deawribed and so other prep*.
arty of the Railroad monies whatsoever, and the Arlo or County
X11 not aid will not mu:roach upon, osoupy or use aay otb.z
arty or tho Railroad monies with said highway or with any sorfoths
support* slop* or onhanksont thereof,.
(t) ThO natio and County y or one of thou will eso400,
bear and pay . all tams dad assessments of whatsoever kind or motor*,
Whether generoi, . looal or speeial, bere'ettar during the tam of tbis
a. a at lotted or assessed upon or against the proporty desolibed
in this eaettoa .3, exempting tees levied upon ma against the sane
as a component part of the Railroad aeuren%eas propax i ate the Slats
of aadt so a "bolo'.
Aeotion 24 Raid ttaduct and highway tharoon shall bi
oonstrueted by the State and minteleed by the Gty ea Pratfall
in the corament dated aid, i t44, betimes the stet.* u'ty,
Railroad Osten and others, all without expense to the Railroad
:nim.r
Bootion R. If the state and duty or sithOr of *t ab
tail, rafaae or meat to do, hoop, *User,* and porta= seek as
of the term, provisions* mantle** and **tomato cat this Ogronanst,
the Ueilroed COUpenim my, upon giving to the matt WA # ' or
either at the* sistaty 00 i 'WV written notiee of sir inteatielt
as to dos %em nate the lieenees pert and easement bare *sbefare
grentsd end all rights of the State and County ins to, under end hr
Virtue of the moss and may have any other rom047 ovallwao fay the
plea.
rectisn 4, This agreement shell be being npen and iSOWO
to the benefit of the parties hereto and their respective emeseasosr
and assigns. but neither the Mate no the County shall *IWO or
transfer this agreement or any interest herein or right he reender
without first obtaining the written consent of the Mailrest
Companies*
IN WITNESS WHLRIOIN the parties veto have emeuted $hI*
agreement as of the Aar and year rust herds wx jtt n
unommv meant*
UNION airkG1 ilialehtL4D aOlikANT
By
At
ism nn
Approveco as o
day of__
At tea t
At
ne General
ry�{,��(� �q.jc., .,�. as ones
.4s lard of wO1ML y a-
un y► ltv to jj��ti re of t ier
14r44,4147
eobee
tai-J
AGREEMENT
(Contract Dept. No. 29125 )
between
OREGON WASHINGTON RAILROAD & NAVIGATION CO.,
UNION PACIFIC RAILROAD COMPANY,
and
STATE. o (ASr41NGTOP4 gild
COUNTY OF KING
Id Ring Coounnty .�
SW\
Att
g�r
ePri
r
(
aJ
Access Roads, DA - WI 56 (1)
Sec. 2, Seattle - Renton Boeing Aircraft
Plants
C. roe( L
A R' 37'60'
111
/ 4
f
-7. .... , , 7-- ., Z1 ...")' sue °„'°,r r"v. "-"w.
Fr
s.
EXHIBIT A
QWR. &N.GO.
UNION mom RALRMO CO — LEASE
M.P. 176 -3 near
SEATTLE,K1NG COUNTY, WASH.
,ILF Na.4 adlh lliI N W.MM.
ReOrW Rhht .1 Way f..
....Leah... .1 O■■■■N Aas... MM W.,wy.
aa a Aioe
Or N✓ CNEF
ENGIM ,, Ml4♦
CLORAWING NO
LEGEND
r«....■ N O...Mad loud. and
Aa.e.ay MI.d— Ya New
Ca.....nr 1. Re■..ay y■M NON - -- —Awn
CARS M Ce, R.p,Y .f..., ..IMN Red
30
VOLE aW PAGEJO4
Fl
3444262
The NORTHERN PACIFIC RAILWAY CC PANY, a Wisconsin corporation,
hereinafter referred to as the "Railway Company ", does hereby in con-
sideration of One Dollar,=to.it in hand paid, the receipt whereof is
' hereby .acknovtl edged , and, 'o th3 agre eras nta herein contained, GRANT
.to the STATE Oh' WASHINGTON,' hereinafter called the "State" permission
save as herein lim ted';';t:o,use for highway purposes, in common with the
use of said Ra `lw kCompaz r for railroad purposes, and to construct
.thereover an 0verhead,Accesa: Road Viaduct to carry traffic from Eaat
Marginal Way to Empire,Way for the Boeing .Aircraft Corporation near
the south city limits .of the -.city of Seattle, in the location indicated
on the attached plat prepared in the office of the Assistant Chief
Engineer of said °Railway`Company, dated April 7th 1944 and identified
as Exhibit "A" ,, t o-wit i'_ : .
R. W. 4431
A, strip of land onie';hundred twenty (120) feet in width, or
sixty (60) feet wide`ap a permanent easement on each side
of the .center line ::§f' said Access Road. over and aoross that
portion of its railroad•right of way in the north half of
southwest quarter (1V ofSW,) of section three (3), township
twenty -three (23)`u6Fith`of. range four' (4 east of the Willam-
ette Meridian, shain';outliried :in RED on said plat attached
hereto and made art'hereof� A,
identified as Exhibit "",(to-
'"" a'=p
'gether With the right to encroach with slopes not to exceed
a total of 200 feet or 100 feet on either side of said highway
center line for highway approach embankments.)
The rights hereby granted'are subject, however, to any and ell
existing rights of the Railway Company and to,eny permits and leases
that may heretofore have been granted by said Railway Company across or
along said above described premises.
The State shall at. its sole oast and expense provide and maintain
connections with .any existing culverts or such additional culverts as the
Railway . Company may. elect to construot so as to divert the drainage through
the highway grade on the easenent strip. If at axy time in the future, due
to the construction or improvement of said highway, drainage conditions should
require a Change in the existing culverts or the placing of any new culverts
through the roadbed of the Railway Company, the State shall bear the entire
expense of Contraction of same and shall provide such additional culverts
as mey be necessary to keep the Railway Company's right of Way free from
accumulation of water.
The State shall indemnify and save harmless the Railway Company from
any and all claim; for flood damage due to the constructionof said highway
across the Railway Company's right of way.
The State also agrees that in removing snow from said Highway and
from said overhead Viaduct to perform the Work in such a manner so as not to
deposit' the snow on the roadbed and tracks of the Railway Company.
In tie event the construction and maintenance of said highway shall
interfere with or .damage the poles and wires of the Railway Company or the
Western -Union Telegraph Company or other Telegraph or Telephone Company
doing business with th§ consent" of said Railway Company, the Railway Company
may relocate Said poles sad wires or repair boy damage done thereto and the
State shall pay all coat of such work. upon presentation of bills therefor.
1.
31
voL2300 rrcE583
The State agreed to indemnify and save harmless the Railwey Company
and any other Railtey Oompany that may be using its tracks with its
consent, from any and all- loss, cost, damage or expense arising in any
manner out of the performance of any of tin work herein provided to be
performed by th3, State or :its contractor, regardless of whether such loss,
cost, damage orexpense arises out of damage to or destruction of the
property of ths;tttailway Company or of any person, firm or corporation
whatsoever, or-'out of claims for personal injuries or death.
`, 1944.
iORT1 RN PACIFIC RAILWAY COMPANY,
By
VicaPresident.
Accepted:
STATE OF WASHINGTON,
Department' Highways,`
By
Director of Highways.
STATE OF MINNESOTA )
tsa
County of Ramsey. ) •
On this day of 44,
before me personally appeared . W.Scan to me known to be the Vico
President of tha corporation that executed t within and foregoing
instrument, and acka 1edged said instrument to be the free and voluntary
act and deed of said oorp;oration, for the uses and purposes therein
mentioned, and on oath%atated that he was authorized to execute said
instrument and that the"seal affixed is the corporate seal of said
corporation.
IN NITNESS1;141E12ECF S';have hereunto set my hand and affixed
my - .official seal the day; and• year first above written.
32
Easement W44 31
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EXHIBIT '1'
lama ua
34
vot2506 AGE411
3592972
E A S E M E N T
The PACIFIC COAST R. R. CO., a Washington corporation,
hereinafter referred to as the "Railroad Company," does hereby,
in consideration of One Dollar to it in hand paid, the receipt
whereof is hereby acknowledged, and of the agreements herein con-
tained, GRANT to the STATE OF WASHINGTON, hereinafter called the
"State," permission, save as herein limited, to construct an
Overhead Access Road Viaduct over a strip of land and to maintain
and use said Viaduct for highway purposes to carry traffic from
East Marginal Way to Empire Way for the Boeing Airplane Company
near the south city limits of the City of Seattle, in the location
indicated on the attached plat prepared in the office of the As-
sistant Chief Engineer of the Northern Pacific Railway Company,
dated April 7th, 1944 and identified as Exhibit "A ",to -wit:
A strip of land one hundred twenty (120) feet
in width, or sixty (60) feet wide as a per-
manent easement on each side of the center
line of said Access Road over and across that the
portion of North half ofsSouthwest quarterf(NI way of SW *)
of Section three (3), Township twenty -three
(23) North of Range four (4) East of the
Willamette Meridian, shown outlined in RED
on said plat attached hereto and made a part
hereof, identified as Exhibit "A."
The rights hereby granted are subject, however, to any
and all existing rights of the Railroad Company and to any permits
and leases that may heretofore have been granted by said Railroad
Company across or along said above described premises. Said
Viaduct shall be constructed in such a manner and of sufficient
height above Railroad Company's existing tracks so that the use
of said tracks for railroad purposes will not be interfered with
and the maintenance of overhead electric power lines for use by
Railroad Company or any lessee of its, will not be prevented.
The State, at its sole cost and expense, shall provide
and maintain connections with any existing culverts or such addi-
tional culverts as the Railroad Company may elect to construct so
as to divert the drainage through the highway grade on the ease-
ment strip. If at any time in the future, due to the construction
or improvement of said highway, drainage conditions should require
a change in the existing culverts, or the placing of any new cul-
verts through the roadbed of the Railroad Company, the State shall
bear the entire expense of construction of same and shall provide
such additional culverts as may be necessary to keep the Railroad
Company's right of way free from accumulation of water.
The State shall indemnify and save harmless the Rail-
road Company from any and all claims for flood damage due to the
construction of said highway across the Railroad Company's right
of way.
The State also agrees that, in removing snow from said
highway and from said overhead Viaduct, it will perform the work
in such a manner as not to deposit the snow on the roadbed and
tracks of the Railroad Company.
•(1) 35
voi25O6 PAGE418
In the event the construction and maintenance of said
highway shall interfere with or damage the poles and wires of
the Railroad Company or the Western Union Telegraph Company or
other telegraph or telephone company doing business with the
consent of said Railroad Company, the Railroad Company may re-
locate said poles and wires or repair any damage done thereto
and the State shall pay all cost of such work upon presentation
of bills therefor.
The State agrees to indemnify and save harmless the
Railroad Company and any other Railway Company that may be using
its tracks with its consent, from any and all loss, cost, damage
or expense arising in any manner out of the performance of any
of the work herein provided to be performed by the State or its
contractor, regardless of whether such loss, cost, damage or
expense arises out of damage to or destruction of the property
of the Railroad Company or of any person, firm or corporation
whatsoever, or out of the claims for personal injuries or death.
In case said Viaduct shall at any time finally cease
to be used for highway purposes, or by operation of law or other-
wise becomes vacated or abandoned, this easement and all rights
hereunder granted shall immediately cease and terminate and if
Railroad Company elects, State shall remove said Viaduct at
State's expense.
DATED this 4 day of
Accepted:
STATE OF WASHINGTON,
Department of Highways,
By
PACIFIC COAST R. R. CO.
1946.
Director o Highways
(2)
36
STATE OF WASHINGTON ) SS
COUNTY OF KING )
On this Sf ,day of , 1946, before
me personally appeared A 7-Ar[y5 and #414710)V6
, to me known to be the President and Secretary,
respectively, of PACIFIC COAST R. R. CO., the corporation that exe-
cuted the within and foregoing instrument and acknowledged said in-
strument to be the free and voluntary act and deed of said corpora-
tion for the use and purposes therein mentioned, and on oath
stated that they were authorized to execute said instrument and that
the seal affixed is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and af-
fixed my official seal the day and year in this Certificate first
above written.
'VO[.25n6 PACE419
f•fled ?dr Recora 3d °
Requestof )J4
ROBERT MORRIS.
nty Auditor
L .
Notary Public in and for the State
of Washington, residing at
37
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CASEMENT
=tom 1 a c■ Ic. Co.as -t k.R• Co
FILED for - Record at Request
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38
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39
B/VSF
RA /LWAY
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General:
• 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY,
hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and /or right -of -way, hereafter referred to as "Railway Property ",
during the construction of Boeing Access Road Bridge.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies
of the Exhibit "C -1" Agreement, in the form attached hereto, obligating the Contractor
to provide and maintain in full force and effect the insurance called for under Section
3 of said Exhibit "C-1". Questions regarding procurement of the Railroad Protective
Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214 -303-
8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as
not to interfere with the movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the
absolute right of Railway to cause the Contractor's work on Railway's Property to
cease if, in the opinion of Railway, Contractor's activities create a hazard to
Railway's Property, employees, and /or operations. Railway will have the right to stop
construction work on the Project if any of the following events take place: (i)
Contractor (or any of its subcontractors) performs the Project work in a manner
contrary to the plans and specifications approved by Railway; (ii) Contractor (or any
of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner
which is hazardous to Railway property, facilities or the safe and expeditious
movement of railroad traffic; (iii) the insurance described in the attached Exhibit C -1
is canceled during the course of the Project; or (iv) Contractor fails to pay Railway
for the Temporary Construction License or the Easement. The work stoppage will
continue until all necessary actions are taken by Contractor or its subcontractor to
rectify the situation to the satisfaction of Railway's Division Engineer or until
additional insurance has been delivered to and accepted by Railway. In the event of
a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the
Easement, Railway may immediately terminate the Temporary Construction License
or the Easement. Any such work stoppage under this provision will not give rise to
any liability on the part of Railway. Railway's right to stop the work is in addition to
any other rights Railway may have including, but not limited to, actions or suits for
damages or lost profits. In the event that Railway desires to stop construction work
34
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B/VSF
AA /L WAY
on the Project, Railway agrees to immediately notify the following individual in
writing:
Robin Tischmak
City Engineer
City of Tukwila
6300 Southcenter Blvd, Suite 100
Tukwila, WA 98188
Desk: (206) 431 -2455
• 1.01.05 The Contractor is responsible for determining and complying with all
Federal, State and Local Governmental laws and regulations, including, but not
limited to environmental laws and regulations (including but not limited to the
Resource Conservation and Recovery Act, as amended; the Clean Water Act, the
Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health
and safety laws and regulations. The Contractor hereby indemnifies, defends and
holds harmless Railway for, from and against all fines or penalties imposed or
assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify City of Tukwila Washington at
and Railway's Manager Public Projects, telephone number ( ) at least thirty
(30) calendar days before commencing any work on Railway Property. Contractor's
notification to Railway must refer to Railway's file
• 1.01.07 For any bridge demolition and /or falsework above any tracks or any
excavations located with any part of the excavations located within, whichever is
greater, twenty -five (25) feet of the nearest track or intersecting a slope from the
plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11)
feet from centerline of the nearest track, both measured perpendicular to center line
of track, the Contractor must furnish the Railway five sets of working drawings
showing details of construction affecting Railway Property and tracks. The working
drawing must include the proposed method of installation and removal of falsework,
shoring or cribbing, not included in the contract plans and two sets of structural
calculations of any falsework, shoring or cribbing. For all excavation and shoring
submittal plans, the current "BNSF -UPRR Guidelines for Temporary Shoring" must
be used for determining the design loading conditions to be used in shoring design,
and all calculations and submittals must be in accordance with the current "BNSF-
UPRR Guidelines for Temporary Shoring ". All submittal drawings and calculations
must be stamped by a registered professional engineer licensed to practice in the
state the project is located. All calculations must take into consideration railway
surcharge loading and must be designed to meet American Railway Engineering
and Maintenance -of -Way Association (previously known as American Railway
Engineering Association) Coopers E -80 live loading standard. All drawings and
35
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RA /L WAY
calculations must be stamped by a registered professional engineer licensed to
practice in the state the project is located. The Contractor must not begin work until
notified by the Railway that plans have been approved. The Contractor will be
required to use lifting devices such as, cranes and /or winches to place or to remove
any falsework over Railway's tracks. In no case will the Contractor be relieved of
responsibility for results obtained by the implementation of said approved plans.
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with
the Contractor such that the work may be handled and performed in an efficient
manner. The Contractor will have no claim whatsoever for any type of damages or
for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees
may enter Railway Property without first having completed Railway's
Engineering Contractor Safety Orientation, found on the web site
http: / /bnsfcontractor.com /. The Contractor must ensure that each of its
employees, subcontractors, agents or invitees completes Railway's
Engineering Contractor Safety Orientation through Internet sessions before
any work is performed on the Project. Additionally, the Contractor must
ensure that each and every one of its employees, subcontractors, agents or
invitees possesses a card certifying completion of the Railway Contractor
Safety Orientation before entering Railway Property. The Contractor is
responsible for the cost of the Railway Contractor Safety Orientation. The
Contractor must renew the Railway Contractor Safety Orientation annually.
Further clarification can be found on the web site or from the Railway's
Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep
railway facilities, including track ballast, free of sand, debris, and other foreign
objects and materials resulting from his operations. Any damage to railway facilities
resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railway's Division Engineer
at (_) and provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any
blasting operations adjacent to or on Railway's Property.
36
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B/1 /SF
o9.4 /Z HAY
• 1.03.03 The Contractor must abide by the following temporary clearances during
construction:
• 15' -0"
• 21' -6"
• 27' -0"
volts
• 28' -0"
• 30' -0"
• 34' -0"
• 1.03.04 Upon
maintained:
• 25'
• 23' 6"
Horizontally from centerline of nearest track
Vertically above top of rail
Vertically above top of rail for electric wires carrying less than 750
Vertically above top of rail for electric wires carrying 750 volts to
15,000 volts
Vertically above top of rail for electric wires carrying 15,000 volts to
20,000 volts
Vertically above top of rail for electric wires carrying more than
20,000 volts
completion of construction, the following clearances shall be
Horizontally from centerline of nearest track
Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's
operations must be submitted to the Railway and to the City of Tukwila
Washington and must not be undertaken until approved in writing by the Railway,
and until the City of Tukwila Washington has obtained any necessary
authorization from the State Regulatory Authority for the infringement. No extra
compensation will be allowed in the event the Contractor's work is delayed pending
Railway approval, and /or the State Regulatory Authority's approval.
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will
have the option of installing tell -tales or other protective devices Railway deems
necessary for protection of Railway operations. The cost of tell -tales or protective
devices will be borne by the Agency.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not
included in the contract plans must be submitted to the Railway by City of Tukwila
Washington for approval before work is undertaken and this work must not be
undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings, the Contractor must not move any
equipment or materials across Railway's tracks until permission has been obtained
from the Railway. The Contractor must obtain a "Temporary Construction Crossing
Agreement" from the Railway prior to moving his equipment or materials across the
Railways tracks. The temporary crossing must be gated and locked at all times when
not required for use by the Contractor. The temporary crossing for use of the
Contractor will be constructed and, at the completion of the project, removed at the
37
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B /VSF
/7A /LWAY
expense of the Contractor.
• 1.03.09 Discharge, release or spill on the Railway Property of any hazardous
substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous
waste is prohibited and Contractor must immediately notify the Railway's Resource
Operations Center at 1(800) 832 -5452, of any discharge, release or spills in excess
of a reportable quantity. Contractor must not allow Railway Property to become a
treatment, storage or transfer facility as those terms are defined in the Resource
Conservation and Recovery Act or any state analogue.
• 1.03.10 The Contractor upon completion of the work covered by this contract,
must promptly remove from the Railway's Property all of Contractor's tools,
equipment, implements and other materials, whether brought upon said property by
said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition
acceptable to the Railway's representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety
Action Plan:
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a
track must develop and implement a Roadway Worker Protection /On Track Safety
Program and work with Railway Project Representative to develop an on track safety
strategy as described in the guidelines listed in the on track safety portion of the
Safety Orientation. This Program must provide Roadway Worker protection /on track
training for all employees of the Contractor, its subcontractors, agents or invitees.
This training is reinforced at the job site through job safety briefings. Additionally,
each Contractor must develop and implement the Safety Action Plan, as provided for
on the web site http: / /bnsfcontractor.com /, which will be made available to
Railway prior to commencement of any work on Railway Property. During the
performance of work, the Contractor must audit its work activities. The Contractor
must designate an on -site Project Supervisor who will serve as the contact person
for the Railway and who will maintain a copy of the Safety Action Plan, safety audits,
and Material Safety Datasheets (MSDS), at the job site.
• 1.04.02 Contractor shall have a background investigation performed on all of its
employees, subcontractors and agents who will be performing any services for
Railroad under this Agreement which are determined by Railroad in its sole
discretion a) to be on Railroad's property, or b) that require access to Railroad
Critical Infrastructure, Railroad Critical Information Systems, Railroad's Employees,
Hazardous Materials on Railroad's property or is being transported by or otherwise
in the custody of Railroad, or Freight in Transit involving Railroad.
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AA /L WAY
The required background screening shall at a minimum meet the rail industry
background screening criteria defined by the e- RAILSAFE Program as outlined at
http: / /www.e- railsafe.com, in addition to any other applicable regulatory
requirements.
Contractor shall obtain written consent from all its employees, subcontractors or
agents screened in compliance with the e- RAILSAFE Program to participate in the
Program on their behalf and to release completed background information to
Railroad's designee. Contractor shall be subject to periodic audit to ensure
compliance.
Contractor subject to the e- RAILSAFE Program hereunder shall not permit any of its
employees, subcontractors or agents to perform services hereunder who are not first
approved under e- RAILSAFE Program standards. Railroad shall have the right to
deny entry onto its premises or access as described in this section above to any of
Contractor's employees, subcontractors or agents who do not display the authorized
identification badge issued by a background screening service meeting the
standards set forth in the e- RAILSAFE Program, or who in Railroad's opinion, which
may not be unreasonable, may pose a threat to the safety or security of Railroad's
operations, assets or personnel.
Contractors shall be responsible for ensuring that its employees, subcontractors and
agents are United States citizens or legally working in the United States under a
lawful and appropriate work VISA or other work authorization.
1.05 Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster (telephone )
a minimum of thirty (30) calendar days advance notice when flagging services will be
required so that the Roadmaster can make appropriate arrangements (i.e., bulletin
the flagger's position). If flagging services are scheduled in advance by the
Contractor and it is subsequently determined by the parties hereto that such
services are no longer necessary, the Contractor must give the Roadmaster five (5)
working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative,
Railway flagger will be required and furnished when Contractor's work activities are
located over, under and /or within twenty -five (25) feet measured horizontally from
centerline of the nearest track and when cranes or similar equipment positioned
beyond 25 -feet from the track centerline could foul the track in the event of tip over
or other catastrophic occurrence, but not limited thereto for the following conditions:
39
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RAILWAY
• 1.05.02a When, upon inspection by Railway's Representative, other conditions
warrant.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if,
in the opinion of Railway's representative, track or other Railway
facilities may be subject to movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at
timetable speeds.
• 1.05.02d When any hazard is presented to Railway track, communications,
signal, electrical, or other facilities either due to persons, material,
equipment or blasting in the vicinity.
• 1.05.02e Special permission must be obtained from the Railway before moving
heavy or cumbersome objects or equipment which might result in
making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However,
additional personnel may be required to protect Railway Property and
operations, if deemed necessary by the Railways Representative.
• 1.05.03b Each time a flagger is called, the minimum period for billing will be the
eight (8) hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by
City of Tukwila Washington. The estimated cost for one (1) flagger is
approximately between $800.00- $1,600.00 for an eight (8) hour basic
day with time and one -half or double time for overtime, rest days and
holidays. The estimated cost for each flagger includes vacation
allowance, paid holidays, Railway and unemployment insurance, public
liability and property damage insurance, health and welfare benefits,
vehicle, transportation, meals, lodging, radio, equipment, supervision
and other costs incidental to performing flagging services.
Negotiations for Railway labor or collective bargaining agreements and
rate changes authorized by appropriate Federal authorities may
increase actual or estimated flagging rates. THE FLAGGING RATE IN
EFFECT AT THE TIME OF PERFORMANCE BY THE
CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE
ACTUAL COSTS OF FLAGGING PURSUANT TO THIS
PARAGRAPH.
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RA /L WAY
• 1.05.03d The average train traffic on this route is 36 freight trains per 24 -hour
period at a timetable speed 50 MPH and 24 passenger trains at a
timetable speed of 79 MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where
movement of trains and equipment can occur at any time and in any direction. All
work performed by contractors within 25 feet of any track must be in compliance with
FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety
briefing must be conducted with all personnel involved with the task and repeated
when the personnel or task changes. If the task is within 25 feet of any track, the job
briefing must include the Railway's flagger, as applicable, and include the
procedures the Contractor will use to protect its employees, subcontractors, agents
or invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without
an on track safety strategy approved by the Railway's Project Representative.
When authority is provided, every contractor employee must know: (1) who the
Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the
method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag /work limits that
were not previously job briefed, must notify the flagger immediately, and be given a
job briefing when working within 25 feet of the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property
after normal working hours or on weekends, the Railway's representative in charge
of the project must be notified. A minimum of two employees must be present at all
times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors
under suspicion of being under the influence of drugs or alcohol, or in the
possession of same, will be removed from the Railway's Property and subsequently
released to the custody of a representative of Contractor management. Future
access to the Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains
must be reported immediately to the Railway's representative in charge of the
project. Any vehicle or machine which may come in contact with track, signal
equipment, or structure (bridge) and could result in a train derailment must be
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/FA /L WAY
reported immediately to the Railway representative in charge of the project and to
the Railway's Resource Operations Center at 1(800) 832 -5452. Local emergency
numbers are to be obtained from the Railway representative in charge of the project
prior to the start of any work and must be posted at the job site.
• 1.06.07 For safety reasons, all persons are prohibited from having pocket knives,
firearms or other deadly weapons in their possession while working on Railway's
Property.
• 1.06.08 All personnel protective equipment (PPE) used on Railway Property must
meet applicable OSHA and ANSI specifications. Current Railway personnel
protective equipment requirements are listed on the web site,
http://bnsfcontractor.com /, however, a partial list of the requirements include: a)
safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats;
c) safety shoe with: hardened toes, above - the -ankle lace -up and a defined heel; and
d) high visibility retro - reflective work wear. The Railway's representative in charge of
the project is to be contacted regarding local specifications for meeting requirements
relating to hi- visibility work wear. Hearing protection, fall protection, gloves, and
respirators must be worn as required by State and Federal regulations. N( OTE —
Should there be a discrepancy between the information contained on the web
site and the information in this paragraph, the web site will govern.)
• 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS,
MACHINERY OR EQUIPMENT CLOSER THAN 25' -0" TO THE CENTER LINE OF
THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT
MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY /RAIL
AT -GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING,
WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN
APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE
CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE
OF THE RAILWAY'S REPRESENTATIVE.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running.
Parked machines or equipment must be in gear with brakes set and if equipped with
blade, pan or bucket, they must be lowered to the ground. All machinery and
equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation
program for more detailed specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that
would interfere with water drainage. Any work performed over water must meet all
Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage
42
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RA /L WAY
unless informed to the contrary by proper authority. For all power lines the minimum
clearance between the lines and any part of the equipment or load must be; 200 KV
or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV -
35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a
minimum clearance of 45 feet must be maintained. A person must be designated to
observe clearance of the equipment and give a timely warning for all operations
where it is difficult for an operator to maintain the desired clearance by visual means.
1.07 Excavation:
• 1.07.01 Before excavating, the Contractor must determine whether any
underground pipe lines, electric wires, or cables, including fiber optic cable systems
are present and located within the Project work area. The Contractor must
determine whether excavation on Railway's Property could cause damage to buried
cables resulting in delay to Railway traffic and disruption of service to users. Delays
and disruptions to service may cause business interruptions involving loss of
revenue and profits. Before commencing excavation, the Contractor must contact
BNSF's Field Engineering Representative ( ). All underground
and overhead wires will be considered HIGH VOLTAGE and dangerous until verified
with the company having ownership of the line. It is the Contractor's
responsibility to notify any other companies that have underground utilities in
the area and arrange for the location of all underground utilities before
excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately
before continuing excavation in the area if obstructions are encountered which do
not appear on drawings. If the obstruction is a utility and the owner of the utility can
be identified, then the Contractor must also notify the owner immediately. If there is
any doubt about the location of underground cables or lines of any kind, no work
must be performed until the exact location has been determined. There will be no
exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA
regulations and, regardless of depth, must be shored where there is any danger to
tracks, structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be
covered, guarded and /or protected when not being worked on. When leaving work
site areas at night and over weekends, the areas must be secured and left in a
condition that will ensure that Railway employees and other personnel who may be
working or passing through the area are protected from all hazards. All excavations
must be back filled as soon as possible.
43
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Asrours
RAILWAY
1.08 Hazardous Waste, Substances and Material Reporting:
• 1.08.01 If Contractor discovers any hazardous waste, hazardous substance,
petroleum or other deleterious material, including but not limited to any
non - containerized commodity or material, on or adjacent to Railway's Property, in or
near any surface water, swamp, wetlands or waterways, while performing any work
under this Agreement, Contractor must immediately: (a) notify the Railway's
Resource Operations Center at 1(800) 832 -5452, of such discovery: (b) take
safeguards necessary to protect its employees, subcontractors, agents and /or third
parties: and (c) exercise due care with respect to the release, including the taking of
any appropriate measure to minimize the impact of such release.
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance
with Federal Railroad Administration (FRA) reporting requirements. Any personal
injury sustained by an employee of the Contractor, subcontractor or Contractor's
invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the
project. The Non - Employee Personal Injury Data Collection Form contained herein
is to be completed and sent by Fax to the Railway at 1(817) 352 -7595 and to the
Railway's Project Representative no later than the close of shift on the date of the
injury.
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B /VSIF
NA IL WAY
B /VSF
A:4 /I 1464 NON - EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident /incident, highway rail grade crossing accident or automobile
accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that
injuries relate to that specific event.)
Injured Person Type:
riPassenger on train (C)
Non- employee (N)
(ie emp of anotherrailraad, or, non- BNSfemp involved in vehicle accident including
company vehicles)
riContractor /safety sensitive (F) ri Contractor /non- safety sensitive (G)
n Volunteer /safety sensitive (H) n Volunteer /other non- safety sensitive (I)
nNon - trespasser (0) - to include highway users involved in highway rail grade crossing accidents who did not
go around or through gates
n Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went
around or through gates
• Non - trespasser (J) - Off railroad property
If train involved, Train ID:
Transmit attached information to Accident /Incident Reporting Center by:
Fax 1 -817 -352 -7595 or by Phone I- 800- 697 -6736 or email to: Accident- Reportinq.CenterMBNSF.com
Officer Providing Information:
(Name)
(Employee No.) (Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM
DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
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NON- EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT
INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
I. Accident City /St:
County:
(if non BNSF location)
Mile Post / Line Segment:
5. Driver's License No (and state) or other ID:
6. Name (last, first, mi):
7. Address:
B. Date of Birth:
2. Date: Time:
3. Temperature: 4. Weather:
SSN (required):
City:
St: Zip:
and /or Age:
(if available)
Shone Number: Employer:
Gender:
9. Injury: 10. Body Part:
(i.e., Laceration, etc.) (i.e., Hand, etc.)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
First Aid Only
Required Medical Treatment
I I Other Medical Treatment
13. Dr. Name:
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
City:
Date:
City:
St: Zip:
St: Zip:
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS
AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
52
Railway File:
EXHIBIT "C -1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Agency Project: Boeing Access Rd Bridge (085597G) Widening
< %Contractor.LegalName %> [Insert contractor's legal name here](hereinafter
called "Contractor "), has entered into an agreement (hereinafter called "Agreement ")
dated , 201_, [** *Drafter's Note: insert the date of the contract
between the Agency and the Contractor here] with City of Tukwila, WA for the
performance of certain work in connection with the following
project: Performance of such work will necessarily require
Contractor to enter BNSF RAILWAY COMPANY (hereinafter called "Railway ") right of
way and property (hereinafter called "Railway Property "). The Agreement provides that
no work will be commenced within Railway Property until the Contractor employed in
connection with said work for City of Tukwila, WA (i) executes and delivers to Railway
an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits
specified in such Agreement and Section 3 herein. If this Agreement is executed by a
party who is not the Owner, General Partner, President or Vice President of Contractor,
Contractor must furnish evidence to Railway certifying that the signatory is empowered
to execute this Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date
of the Agreement, has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless
Railway for all judgments, awards, claims, demands, and expenses (including
attorneys' fees), for injury or death to all persons, including Railway's and
Contractor's officers and employees, and for loss and damage to property
belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or
about Railway's property or right -of -way.
This obligation shall not include such claims, costs, damages, or expenses
which may be caused by the sole negligence of Railway or its contractors,
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agents or employees; Provided, that if the claims or damages are caused
by or result from the concurrent negligence or other acts or omissions of
(a) Railway, its contractors, agents or employees and (b) Contractor, its
subcontractors, agents or employees, this provision shall be valid and
enforceable only to the extent of the negligence of the Contractor, its
subcontractors, agents or employees.
It is mutually negotiated between the parties that the indemnification
obligation shall include all claims brought by Contractor's employees
against Railway, its agents, servants, employees or otherwise, and
Contractor expressly waives its immunity under the industrial insurance
act (RCW Title 51) and assumes potential liability for all actions brought by
its employees.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR
INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST
RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT,
INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY
APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO
CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway,
that it will adjust and settle all claims made against Railway, and will, at Railway's
discretion, appear and defend any suits or actions of law or in equity brought
against Railway on any claim or cause of action arising or growing out of or in
any manner connected with any liability assumed by Contractor under this
Agreement for which Railway is liable or is alleged to be liable. Railway will give
notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such
claims, and in the event of a suit being brought against Railway, Railway may
forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle
such suits and protect, indemnify, and save harmless Railway from and against
all damages, judgments, decrees, attorney's fees, costs, and expenses growing
out of or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any
portion of this Article shall be deemed to be inapplicable for any reason, including
without limitation as a result of a decision of an applicable court, legislative
enactment or regulatory order, the parties agree that this Article shall be
interpreted as requiring Contractor to indemnify Railway to the fullest extent
permitted by applicable law.
It is mutually understood and agreed that the assumption of liabilities and
indemnification provided for in this Agreement survive any termination of this
Agreement.
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2) TERM
This Agreement is effective from the date of the Agreement until (i) the
completion of the project set forth herein, and (ii) full and complete payment to
Railway of any and all sums or other amounts owing and due hereunder.
3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the
life of this Agreement the following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad
form contractual liability with a combined single limit of a minimum of
$5,000,000 each occurrence and an aggregate limit of at least $10,000,000
but in no event less than the amount otherwise carried by the Contractor.
Coverage must be purchased on a post 2004 ISO occurrence form or
equivalent and include coverage for, but not limit to the following:
e Bodily Injury and Property Damage
e Personal Injury and Advertising Injury
e Fire legal liability
e Products and completed operations
This policy shall also contain the following endorsements, which shall be
indicated on the certificate of insurance:
e The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
e Waver of subrogation in favor of and acceptable to Railway.
e Additional insured endorsement in favor of and acceptable to Railway.
e Separation of insureds.
e The policy shall be primary and non - contributing with respect to any
insurance carried by Railway.
It is agreed that the workers' compensation and employers' liability related
exclusions in the Commercial General Liability insurance policy(s) required
herein are intended to apply to employees of the policy holder and shall not
apply to Railway employees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being
performed under this agreement.
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B. Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for,
but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which
shall be indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non - contributing with respect to any
insurance carried by Railway.
C. Workers Compensation and Employers Liability insurance including coverage
for, but not limited to:
♦ Contractor's statutory liability under the worker's compensation laws of
the state(s) in which the work is to be performed. If optional under
State law, the insurance must cover all employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each
accident, $500,000 by disease policy limit, $500,000 by disease each
employee.
This policy shall also contain the following endorsements or language, which
shall be indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
D. Railroad Protective Liability insurance naming only the Railway as the
Insured with coverage of at least $5,000,000 per occurrence and $10,000,000
in the aggregate. The policy Must be issued on a standard ISO form CG 00
35 12 04 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railway prior to performing
any work or services under this Agreement
♦ Definition of "Physical Damage to Property" shall be endorsed to read:
"means direct and accidental loss of or damage to all property owned
by any named insured and all property in any named insured' care,
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custody, and control arising out of the acts or omissions of the
contractor named on the Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate
(if available) in Railway's Blanket Railroad Protective Liability Insurance Policy.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall
contain no exclusion for punitive damages.
Contractor agrees to waive its right of recovery against Railway for all claims and
suits against Railway. In addition, its insurers, through the terms of the policy or
policy endorsement, waive their right of subrogation against Railway for all
claims and suits. Contractor further waives its right of recovery, and its insurers
also waive their right of subrogation against Railway for loss of its owned or
leased property or property under Contractor's care, custody or control.
Allocated Loss Expense shall be in addition to all policy limits for coverages
referenced above.
Contractor is not allowed to self- insure without the prior written consent of
Railway. If granted by Railway, any self - insured retention or other financial
responsibility for claims shall be covered directly by Contractor in lieu of
insurance. Any and all Railway liabilities that would otherwise, in accordance
with the provisions of this Agreement, be covered by Contractor's insurance will
be covered as if Contractor elected not to include a deductible, self- insured
retention or other financial responsibility for claims.
Prior to commencing services, Contractor shall furnish to Railway an acceptable
certificate(s) of insurance from an authorized representative evidencing the
required coverage(s), endorsements, and amendments. The certificate should be
directed to the following address:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877 - 576 -2378
Fax number: 817 - 840 -7487
Email: BNSF @certfocus.com
www.certfocus.com
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Contractor shall notify Railway in writing at least 30 days prior to any
cancellation, non - renewal, substitution or material alteration.
Any insurance policy shall be written by a reputable insurance company
acceptable to Railway or with a current Best's Guide Rating of A- and Class VII
or better, and authorized to do business in the state(s) in which the service is to
be provided.
If coverage is purchased on a "claims made" basis, Contractor hereby agrees to
maintain coverage in force for a minimum of three years after expiration,
cancellation or termination of this Agreement. Annually Contractor agrees to
provide evidence of such coverage as required hereunder.
Contractor represents 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.
Not more frequently than once every five years, Railway may reasonably modify
the required insurance coverage to reflect then - current risk management
practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by Contractor, Contractor
shall require that the subcontractor shall provide and maintain insurance
coverage(s) as set forth herein, naming Railway as an additional insured, and
shall require that the subcontractor shall release, defend and indemnify Railway
to the same extent and under the same terms and conditions as Contractor is
required to release, defend and indemnify Railway herein.
Failure to provide evidence as required by this section shall entitle, but not
require, Railway 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.
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 Railway shall not be limited by the
amount of the required insurance coverage.
In the event of a claim or lawsuit involving Railway arising out of this agreement,
Contractor will make available any required policy covering such claim or lawsuit.
These insurance provisions are intended to be a separate and distinct obligation
on the part of the Contractor. Therefore, these provisions shall be enforceable
and Contractor shall be bound thereby regardless of whether or not indemnity
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provisions are determined to be enforceable in the jurisdiction in which the work
covered hereunder is performed.
For purposes of this section, Railway shall mean "Burlington Northern Santa Fe
LLC ", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
4) SALES AND OTHER TAXES
In the event applicable sales taxes of a state or political subdivision of a state of
the United States are levied or assessed in connection with and directly related
to any amounts invoiced by Contractor to Railway ( "Sales Taxes "), Railway shall
be responsible for paying only the Sales Taxes that Contractor separately states
on the invoice or other billing documents provided to Railway; provided, however,
that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax
exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor
shall be responsible for all sales, use, excise, consumption, services and other
taxes which may accrue on all services, materials, equipment, supplies or
fixtures that Contractor and its subcontractors use or consume in the
performance of this Agreement, (iii) Contractor shall be responsible for Sales
Taxes (together with any penalties, fines or interest thereon) that Contractor fails
to separately state on the invoice or other billing documents provided to Railway
or fails to collect at the time of payment by Railway of invoiced amounts (except
where Railway claims a Sales Tax exemption), and (iv) Contractor shall be
responsible for Sales Taxes (together with any penalties, fines or interest
thereon) if Contractor fails to issue separate invoices for each state in which
Contractor delivers goods, provides services or, if applicable, transfers intangible
rights to Railway.
Upon request, Contractor shall provide Railway satisfactory evidence that all
taxes (together with any penalties, fines or interest thereon) that Contractor is
responsible to pay under this Agreement have been paid. If a written claim is
made against Contractor for Sales Taxes with respect to which Railway may be
liable for under this Agreement, Contractor shall promptly notify Railway of such
claim and provide Railway copies of all correspondence received from the taxing
authority. Railway shall have the right to contest, protest, or claim a refund, in
Railway's own name, any Sales Taxes paid by Railway to Contractor or for which
Railway might otherwise be responsible for under this Agreement; provided,
however, that if Railway is not permitted by law to contest any such Sales Tax in
its own name, Contractor shall, if requested by Railway at Railway's sole cost
and expense, contest in Contractor's own name the validity, applicability or
amount of such Sales Tax and allow Railway to control and conduct such
contest.
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Railway retains the right to withhold from payments made under this Agreement
amounts required to be withheld under tax laws of any jurisdiction. If Contractor
is claiming a withholding exemption or a reduction in the withholding rate of any
jurisdiction on any payments under this Agreement, before any payments are
made (and in each succeeding period or year as required by law), Contractor
agrees to furnish to Railway a properly completed exemption form prescribed by
such jurisdiction. Contractor shall be responsible for any taxes, interest or
penalties assessed against Railway with respect to withholding taxes that
Railway does not withhold from payments to Contractor.
5) EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations,
requirements and limitations contained in the Agreement, and the Contractor
Requirements set forth on Exhibit "C" attached to the Agreement and this
Agreement, including, but not be limited to, payment of all costs incurred for any
damages to Railway roadbed, tracks, and /or appurtenances thereto, resulting
from use, occupancy, or presence of its employees, representatives, or agents or
subcontractors on or about the construction site. Contractor shall execute a
Temporary Construction Crossing Agreement or Private Crossing Agreement
( http:// www. bnsf .com /communitieslfagslpermits- real - estate /), for any temporary
crossing requested to aid in the construction of this Project, if approved by BNSF.
6) TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and against
all damages arising from any unscheduled delay to a freight or passenger train
which affects Railway's ability to fully utilize its equipment and to meet customer
service and contract obligations. Contractor will be billed, as further provided
below, for the economic losses arising from loss of use of equipment, contractual
loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway
performing work under this Agreement. Railway agrees that it will not perform
any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train
hour rate per train as determined from Railway's records. Any disruption to train
traffic may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain
other grain, intermodal, coal and freight trains operate under incentive /penalty
contracts between Railway and its customer(s). Under these arrangements, if
Railway does not meet its contract service commitments, Railway may suffer loss
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of performance or incentive pay and /or be subject to penalty payments.
Contractor is responsible for any train performance and incentive penalties or
other contractual economic losses actually incurred by Railway which are
attributable to a train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary
and confidential. In the event of a train delay covered by this Agreement,
Railway will share information relevant to any train delay to the extent consistent
with Railway confidentiality obligations. The rate then in effect at the time of
performance by the Contractor hereunder will be used to calculate the actual
costs of train delay pursuant to this agreement.
Contractor and its subcontractors must give Railway's representative
} (j weeks advance notice of the times and
dates for proposed work windows. Railway and Contractor will establish mutually
agreeable work windows for the project. Railway has the right at any time to
revise or change the work windows due to train operations or service obligations.
Railway will not be responsible for any additional costs or expenses resulting
from a change in work windows. Additional costs or expenses resulting from a
change in work windows shall be accounted for in Contractor's expenses for the
project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer the day and year first above written.
< %Contractor.LegalName %> BNSF Railway Company
By: By:
Printed Name: Name: Richard W. Wagner
Manager Public Projects NW Division
Title:
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E -mail:
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Accepted and effective on 2016.
62
EXHIBIT D
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Date:
Exhibit E
[Public Projects Manager's letterhead]
Mr. /Ms.
[Name of Agency Here]
[Address for Agency]
Re: Final Approval of Plans and Specifications dated , 20_, drafted
by [insert name of architecture or engineering
firm here] (hereinafter called, the "Plans and Specifications ")
Dear
This letter serves as BNSF RAILWAY COMPANY's ( "BNSF ") final written approval of the Plans
and Specifications covering the construction of
[insert description of the project here]. This final written approval is given to
[insert name of Agency here] ( "Agency ") pursuant to Article III, Section 1
of that certain Underpass Agreement between BNSF and Agency, dated , 20_,
which this Exhibit E is attached to and made a part thereof.
If the Plans and Specifications are revised by Agency subsequent to the date set forth above,
this letter shall no longer serve as final written approval of the Plans and Specifications and
Agency must resubmit said Plans and Specifications to BNSF for final written approval.
It is understood that the approvals contained in this letter do not cover, the approvals of plans
and specifications for any falsework, shoring, and demolition that may be subsequently
submitted to BNSF by CITY or its contractor for approval.
BNSF has not reviewed the design details or calculations for structural integrity or engineering
accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project.
Regards,
[Public Projects Manager's Name]
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Exhibit F
BNSF Bridge Requirements
BRIDGE DESIGN, PLANS & SPECIFICATIONS:
Except for the design of temporary falsework and shoring, BNSF review of the Structure plans
will be limited to the vertical and horizontal clearances, sight distance for existing train signals,
foundation dimensions and drainage characteristics as they relate to existing and future tracks.
BNSF will not review structural design calculations for the permanent Structure unless a member
or members are influenced by railroad live loads.
Temporary falsework and shoring plans and calculations must be reviewed and approved by
BNSF prior to beginning construction. The Agency shall perform an independent review of the
design calculations for temporary falsework and shoring prior to submitting them to BNSF for
approval. Temporary construction clearances must be no less than 15 feet measured horizontally
from the centerline of the nearest track and 21 feet -6 inches measured vertically from the top of
rail of the most elevated track to the bottom of lowest temporary falsework member. State
regulatory agencies may have more restrictive requirements for temporary railroad clearances.
For the permanent Structure, the Agency will submit plans showing the least horizontal distance
from the centerline of existing and future tracks to the face of the nearest member of the
proposed Structure. The location of the least horizontal distance must be accurately described
such that BNSF can determine where it will occur in both the horizontal and vertical plane. If
the permanent member is within 25 feet of the nearest track (or future track), collision walls shall
be incorporated into the permanent Structure design according to American Railway Engineering
and Maintenance Association Manual of Recommended Practice - Chapter 8 - Article 2.1.5.
For the permanent Structure, the Agency will submit plans showing the least vertical clearance
from top of the most elevated rail of existing and future tracks to the lowest point of the proposed
Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The
profile shall extend for 500 feet in each direction of the proposed Bridge and a separate profile
shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag
exists in the vicinity of the proposed Structure, the permanent Structure vertical clearance shall
be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to
beginning construction of the permanent Structure, the top of rail elevations should be checked
and verified that they have not changed from the assumed elevations utilized for the design of the
bridge.
Prior to issuing any invitation to bid on construction of the Structure, the Agency should
conduct a pre -bid meeting where prospective Providers have the opportunity to communicate
with BNSF personnel regarding site specific train speeds, train density, and general safety
requirements for men and equipment working near live tracks. Any invitation to bid and
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specifications for the Structure must be submitted to BNSF for review and approval prior to
letting of bids for the Project.
BRIDGE CONSTRUCTION:
After awarding the bid, but prior to the Provider entering BNSF's right -of —way or property, the
Agency should conduct a pre - construction meeting with BNSF personnel in attendance to
reiterate the safety requirements of construction activity adjacent to live tracks.
During construction, BNSF may require an independent engineering inspector to be present
during certain critical activities of the Project, including but not limited to: driving foundation
piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing
soil backfill and compaction processes. The Agency shall reimburse BNSF for all costs of
supplemental inspection services.
Within 90 days of the conclusion of the Project and final acceptance by BNSF, the Agency will
provide BNSF with a complete electronic set of the bridge plans labeled "As Built ". Those plans
will reflect any and all deviations from the original plans that occurred during construction. The
"As Built" plans will be submitted in Micro Station *.dgn electronic format (preferred) or
AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for
CAD plan preparation and not converted to another format prior to submission. Actual
measured "as constructed" clearances shall be shown as well as depth, size and location of all
foundation components. The plans shall show dimensioned locations of existing and relocated
utilities.
BRIDGE MAINTENANCE:
The Agency will be responsible for maintenance and repair of the Structure including the earth
retention components, embankment slopes, erosion control, surface drainage, fencing, deck
drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated
with the Project.
Fencing and other pedestrian access controls within BNSF's right -of -way and incorporated into
the Project shall be designed and maintained by the Agency. Trespasser control shall be the
responsibility of the Agency. Graffiti removal will be the responsibility of the Agency.
BRIDGE INSPECTION:
The Agency will conduct annual routine structural inspections. In the event of an earthquake,
fire, flood, damage from vehicular impacts or other emergent situations, the Agency will provide
an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe
passage of trains. If necessary the Agency will embargo weights or provide lane closures or
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other such measures to protect the structural integrity of the Structure such that there can be
continuous safe passage of trains until repairs are made.
BRIDGE ALTERATIONS:
Except as provided otherwise by this Agreement, there will be no alterations made to the
Structure that will alter the railroad vertical or horizontal clearances provided by the original
design. Pipelines will be not be added or attached to the Structure without first submitting plans
and calculations to BNSF for review and approval.
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Exhibit G
Avenue Grade Separation Project
Estimated Total Project Cost
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4-xl4 /0/7 A- I
ra- `1Z
AUTHORITY FOR EXPENDITURE
LOCATION
PLANITEM NUNIBER
PROPERTY OF
OPERATED BY
JOINT FACILITY
% BILLABLE ( + / -)
BOEING
229244001
BNSF RAILWAY COMPANY
BNSF RAILWAY COMPANY
CITY OF TUKWILA
100 0
LINE SEGMENT 51
MILEPOST 7.02
DIVISION NW
SUBDIVISION SEATTLE
TRACK TYPE 3
TAX STATE WA
SPONSOR VP ENGINEERING
AFE NUMBER
RFA NUMBER
CPAR NUMBER
BUDGET YEAR
BUDGET CLASS
REPORTING OFFICE
CENTER/ROLLUP
5928516
CB9600I6
2016
6
716
29125
PURPOSE, JUSTIFICATION AND DESCRIPTION
PLAN ITEM
PIP ENGINEERING INSPECTION NWN DIV SEATTLE SUB LS 51 MP 7 02X - DOT 8 085597G - BOEING ACCESS BRIDGE - 100% BILLABLE TO
CITY OF TUKWILA, WA
PRIMARY FUNDING SOURCE IS CITY FUNDS
" BUY AMERICA(N) APPLIES •'
LINE SEG BEG MP END MP TRK NBR BEGIN STATION END STATION
PROJECT TYPE
BUD YEAR
229244001 51
7 02 7 02 3 BOEING
BOEING
INSPECTOR / COORDINATOR
2016
LABOR COSTS
MATERIAL COSTS
OTHER COSTS
TOTALS
CASH CAPITAL
0
0
0
0
NONCASH CAPITAL
0
0
0
0
OPERATING EXP REMOVAL COSTS
O 0
O 0
O 0
O 0
BILLABLE
0
0
46,662
46,662
TOTALS
0
0
46,662
46,662
SYSTEM MAINTENANCE AND PLANNING
ESTIMATE REF NUMBER 5928516
COSTING DATE 05/11/2016
Page 1 of 2
PRINTED ON 05/13/2016
ESTIMATED BY Elkins
PRINTED BY Elkins
69
ti C• •. -- • �!
MAINTAIN PROPRIETARY CONFIDENTIALITY * * * **
BNSF RAILWAY CONIPANY
FHPM ESTIMATE FOR
CITY OF TUKWILA
LOCATION BOEING DETAILS OF ESTIMATE
PLAN ITEM 229244001 VERSION I
PURPOSE, JUSTIFICATION AND DESCRIPTION
PIP ENGINEERING INSPECTION NWN DIV SEATTLE SUB LS 51 NIP 7 02X - DOT # 085597G - BOEING ACCESS BRIDGE - 100% BILLABLE TO
CITY OF TUKWILA, WA
REQUESTOR TYLER SCOTT GEYER 05/09/16
PRINIARY FUNDING SOURCE IS CITY FUNDS
** BUY AMERICAN) APPLIES **
DESCRIPTION QUANTITY U M COST TOTAL S
LABOR
TOTAL LABOR COST
MATERIAL
TOTAL MATERIAL COST
OTHER
ENGINEERING INSPECTION
0 0
0 0
I 0 LS 42,000
TOTAL OTHER ITEMS COST 42,000 42,000
PROJECT SUBTOTAL 42,000
CONTINGENCIES 4,200
BILL PREPARATION FEE 462
GROSS PROJECT COST 46,662
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 46,662
Page 2 of 2
70
GbrvA'r ^
AUTHORITY FOR EXPENDITURE
LOCATION
PLANITEM NUMBER
PROPERTY OF
OPERATED BY
JOINT FACILITY
% BILLABLE ( + / -)
BOEING
229244000
BNSF RAILWAY COMPANY
BNSF RAILWAY CONIPANY
CITY OF TUKWILA
100 0
LINE SEGMENT 51
MILEPOST 702
DIVISION NW
SUBDIVISION SEATTLE
TRACT: TYPE 3
TAX STATE WA
SPONSOR VP ENGINEERING
AFE NUMBER
RFA NUMBER
CPAR NUMBER
BUDGET YEAR
BUDGET CLASS
REPORTING OFFICE
CENTER/ROLLUP
5928416
CB960016
2016
6
716
29125
PURPOSE, JUSTIFICATION AND DESCRIPTION
PIP FLAGGING NWN DIV SEATTLE SUB LS 51 MP 7 02X - DOT # 085597G - BOEING ACCESS BRIDGE - 100% BILLABLE TO CITY OF TUKWILA,
WA
PRIMARY FUNDING SOURCE IS CITY FUNDS
•• BUY AMERICA(N) APPLIES ••
PLAN ITEM LINE SEG BEG MP
END MP TRK NBR BEGIN STATION END STATION
PROJECT TYPE
BUD YEAR
229244000 51
702 702
3
BOEING
BOEING
FLAGGING
2016
LABOR COSTS
MATERIAL COSTS
OTHER COSTS
TOTALS
CASH CAPITAL
0
0
0
0
NONCASH CAPITAL
0
0
0
0
OPERATING EXP REMOVAL COSTS
O 0
O 0
O 0
O 0
BILLABLE
84,999
0
17,767
102,766
TOTALS
84,999
0
17,767
102,766
SYSTEM MAINTENANCE AND PLANNING
ESTIMATE REF NUMBER 5928416
COSTING DATE 05/11/2016
Page 1 of 2
PRINTED ON 05 13'2016
ESTIMATED BY Elkins
PRINTED BY Elkins
71
A r. 171 r ir4 ^C
* * * ** MAINTAIN PROPRIETARY CONFIDENTIALITY
BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
CITY OF TUKWILA
LOCATION BOEING DETAILS OF ESTIMATE
PLAN ITEM 229244000 VERSION 1
PURPOSE, JUSTIFICATION AND DESCRIPTION
PIP FLAGGING NWN DIV SEATTLE SUB LS 51 MP 7.02X - DOT # 085597G - BOEING ACCESS BRIDGE - 100% BILLABLE TO CITY OF TUKWILA
WA
REQUESTOR TYLER SCOTT GEYER 05/09/16
PRIMARY FUNDING SOURCE IS CITY FUNDS
** BUY AMERICAN) APPLIES **
DESCRIPTION QUANTITY U/M COST TOTAL $
LABOR
FLAGGING - GRADING - CAP
PAYROLL ASSOCIATED COSTS
DA OVERHEADS
EQUIPMENT EXPENSES
INSURANCE EXPENSES
TOTAL LABOR COST
MATERIAL
TOTAL MATERIAL COST
OTHER
RENTAL VEHICLE
TOTAL OTHER ITEMS COST
9000 MH
27,731
18,213
26,929
7,470
4,656
84,999 84,999
0 0
75 0 DAY 7,500
7,500 7,500
PROJECT SUBTOTAL 92,499
CONTINGENCIES 9,249
BILL PREPARATION FEE 1,018
GROSS PROJECT COST 102,766
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 102,766
Page 2 of 2
72