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Reg 2016-11-21 Item 3F - Agreement - Boeing Access Road Over BNRR Bridge Rehabilitation with BNSF Railway Company for $149,428
COUNCIL AGENDA SYNOPSIS Inilialf Meeting Date Prepared by r1lu} or s re erY Council review 11 /21 /16 BG (j e ❑ Ordinance rlllg Date ❑ Bid Award Mlg Dale ❑ Public Hearing Mpg Date ❑ Other Mfg Date Mfg SPONSOR ❑ Council ❑ Mayor ❑ HR • DCD • Finance ❑ Fire ❑ IT ❑ P&R ❑ Police le Pilo, SPONSOR'S This Overpass Agreement with Burlington Northern Santa Fe Railroad is for the Boeing SUMMARY Access Road over BNRR Bridge Rehabilitation Project. The Overpass Agreement is required for construction and maintenance costs for work in the railroad's right -of -way and covers inspections and railroad flagging. Council is being asked to approve the Overpass Agreement with BNSF for $149,428.00. REVIEWED BY ❑ COW Mtg. ❑ CA &P Cmte ❑ F &S Cmte Cmte ❑ Arts Comm. ❑ Parks Comm. COMMITTEE CHAIR: /1 Transportation ITEM INFORMATION ITEM No. 3.F. CAS NUMBER: STAFF SPONSOR: BOB GIBERSON ORR lN.il, AGENDA DATE: 11/21/16 AGENDA ITEM TITLE Boeing Access Rd over BNRR Bridge Rehabilitation BNSF Railroad's Overpass Agreement CATEGORY ❑ Discussion AItg Dale ► Motion Date 11/21/16 ❑ Resolution Mg Dale ❑ Ordinance rlllg Date ❑ Bid Award Mlg Dale ❑ Public Hearing Mpg Date ❑ Other Mfg Date Mfg SPONSOR ❑ Council ❑ Mayor ❑ HR • DCD • Finance ❑ Fire ❑ IT ❑ P&R ❑ Police le Pilo, SPONSOR'S This Overpass Agreement with Burlington Northern Santa Fe Railroad is for the Boeing SUMMARY Access Road over BNRR Bridge Rehabilitation Project. The Overpass Agreement is required for construction and maintenance costs for work in the railroad's right -of -way and covers inspections and railroad flagging. Council is being asked to approve the Overpass Agreement with BNSF for $149,428.00. REVIEWED BY ❑ COW Mtg. ❑ CA &P Cmte ❑ F &S Cmte Cmte ❑ Arts Comm. ❑ Parks Comm. COMMITTEE CHAIR: /1 Transportation Cmte ❑ Planning Comm. DENNIS ROBERTSON • Utilities DATE: 11/7/16 RECOMMENDATIONS: SPONSOR /ADMIN. Comnri Public Works YFEE unanimous Approval; Forward to Consent Agenda COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $149,428.00 $1,224,000.00 $0.00 Fund Source: 104 ARTERIAL STREETS (PAGE 10, PROPOSED 2017 CIP) Comments: MTG. DATE RECORD OF COUNCIL ACTION 11/21/16 MTG. DATE ATTACHMENTS 11/21/16 Informational Memorandum dated 11/04/16 Page 10, Proposed 2017 CIP BNSF Overpass Agreement Minutes from the Transportation Committee meeting of 11/07/15 21 22 City of Tukwila Allan Ekberg, Mayor Public Works Department - Bob Giberson, Director INFORMATIONAL MEMORANDUM TO: Transportation Committee FROM: Bob Giberson, Public Works Director-' BY: Steve Carstens, Senior Program Manager CC: Mayor Ekberg DATE: November 4, 2016 SUBJECT: Boeing Access Rd over BNRR Bridge Rehabilitation Project Project No. 9941 0408 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 RFOs 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:VRW EngIPROJECTS A- RW & RS Projects\Boenng Access Rd Bridge Rehab (9941040805 ROW Esmt Permits'dnfu Memo BNSF Cm Ag gl 110416.docx 23 24 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: spells, 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 Project Location 4 , . r°- ti 1 I+ti'� W 1S �r: X11 ,.....r,,4, , ,,. Design 1,249 84 20 ► 111111111► i 1,353 Land (RPM 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 10 25 Project Location 4 , . r°- ti 1 I+ti'� W 1S �r: X11 ,.....r,,4, , ,,. OR En Ilk� j it ► 111111111► i 2017 - 2022 Capital improvement Program 10 25 OVERPASS AGREEMENT BNSF File No. BF10009078 Boeing Access Rd U.S. D.O.T. No. 0855970 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 1) 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. 1 27 ARTICLE I1) 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. Z 28 Upon Agency's payment to BNSF of the additional sum of $ zero and No /100 Dollars ($O.00), such payment to be made within thirty (30) days of issuing the Notice to Proceed pursuant to Article HI, 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 11, 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. 3 29 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 ill) 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 4 30 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:llwww.bnsf.com/ communities /faaslpdflutility.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 Ieft blank; (f) Intentionally Ieft 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; 5 31 (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 "htto: / /bnsfcontractor.comf"; notify BNSF when, pursuant to the requirements of Exhibit C, a flogger 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) 32 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 6 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 theft 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 loss 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 7 33 (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 0 -1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article 111 and IV; and (ii) the provisions set forth in Exhibit 0, Exhibit Cl - 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 (1) executed and delivered to BNSF an agreement in the form of Exhibit 0-1, 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 8 34 date on which Agency andfor 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 9 35 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: (1) Agency (or any of its contractors) performs the Project work in a mariner 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 10 36 Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (1) 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 37 Manager Evidence Preservation 2600 Lou Menk Drive, AOB -3 Fort Worth, Texas 76131 Or electronically to: Manager Evidence Preservation Section 130aa.bnsf, com 7. Pursuant to this section and Article il, 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 38 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 (1) 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 39 • 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 40 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 41 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: 42 BNSF's Manager of Public Projects Richard W Wagner 2454 Occidental Avenue South Ste 2D Seattle, WA 98134 206.625.6152 Richard.Wagnera..BNSF.com Robin Tischmak City Engineer City of Tukwila 6300 Southcenter Blvd, Suite 100 Tukwila, WA 98188 (206) 431 -2455 16 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 -- 1D, WA & BC AGENCY CITY OF TIUKWILA, WASHINGTON By: Printed Name: Allan Ekberg Title: Mayor, City of Tukwila 43 Exhibit A [Insert drawing of the Project and/or Structure] 18 44 C • ¢ r t•a -8, r/ . lffl�•fif riteir imazir CA41151T A O.W. R.& N. CO V66' rl•ErfL PALM-JO . C 4.5(t M.P. 176.3 nw SSEATTLE,KN6 CCUNTY,WASH. p qqyy,, �..{!w h.l if of WoVunyr !f iti% /to ails* .f . y hs W. R..r. 5CALL esiaCt • +rMSi rC E Of CHEF £N- ,ItrvEs9• flat tl' 41RAH■kSr 54148 LEGEND Lr.••r.. F. a • 4.0 .N � 40/1. ignr N +.r 10 .44 - RA 45 46 EXHIBIT B 19 47 RUSSELL H. WANT, CHAIRMAR C ONNf551QMER, FIR5T DISTRICT 48 ARCHIE E. PHELPS JOS. A. WHETSTONE C OMNlSSIORER, SECOMD DISTRICT KING COUNTY COMMISSIONERS 402 COUNTY -CITY 9UILDENG SEATTLE December 12, 1944 Department of Highways Transportation Building Olympia, Washington Dear Sir: Attention: Earl F. Dickinson COMNISSIO$ER. THTRp DISTRICT 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 109 and bears the County Auditor's File No. 3433396. Very truly yours, BOARD OF COUNTY COMMISSIONERS ROBERT A. MORRIS, Cl k o Board By DES ym • cc- S.Murray, Resident Engineer Operating Dept.,Union. Pacific R.R.Co., 828 Pittock Block Portland 5, Oregon Deputy L e THIS A ' `4 made and entered into Me cV 'IA ef day 044, by and between ORAWR-VADHINGTON RAILRUM & i4AVIGs fO3 co T, on Qregon oarpmratton, and its lessee MON kA ;l 'I( itaLloA0 oa,way, a Utah corporation (hereinafter eollsow tively sailed "kiailrroed C.r m rsi t "), parties of the first per: and the MATS Of LaUnINGTON, eating by and through its Dire0,05, at i 1ghweys (hereinafter ached "atata'°') and the C + M Ott KING, a County of the Etot* of *a s zt gtoa (hereinafter called "4oUntr } i parties of the second part* WXfgg88zT84 aXTA.Laa The cow" state end Raid Companies nies and tabors are parties to 4 written aontraat dirtied Jane nes 1041 providing for the oonntruntian by the Mate end aain.tix nos the County of t viaduct over and across this ri€ bt of wy and tracks of the Railroad Compatales and °there, to aceommodate Aaaoae Rem, Boeing Airereft FlamAra seattle-Renton„ DL..w 1 (58)o and the Railroad Companies therein agreed to grant au eaesment ups and across their property therefor. NOW, TRAMSFOREt it is agreed by mid between the partite as follows; Frey t jen 1. (e) 8o tar as they 1aI,y may de as, the Ra i lyda4 Companies hereby great to the State and County. subjeet to each and all of the teems, previsions, conditions, tweets* reservations and exemptions contained 1a this amt, a licenses permit and easement to cc"intruot, maintain, repair, renew sad u said vieduet upon, over and scram! the right of way end treats of the Railroad Compentas, eb ve the eurfao0 thereof, within t following described area situate it tie Qounty of Ringo state of W.shi.stont -1- 49 A ntriP saf land ens hundred twenty ( 1601 teat wide situate in the Northeast ,q,uartar.of the Southweet queer inlad of 8w *) of Jeatioa Three (0) , TovnehiP lvantPPt 45) North, Range Four (4) East of the Willamette Mort4i an King Const , Washington, being 01 that part € f the right of wear Of the Oregon-washington S d &Navigation Company, leased to the Union. Pacific lra Railroad rompsay, that ilea within Sixty (60) feet, measured at right eagle,* PA eneh side of and parallel with the hereinafter described venter r line of Aeoses Read, hoeina Iltraratt Plianta, `3eatt.l.hamtor ii .' 1 (8) ea same is arc, loozated and staled out over and across said right of way. ?a d center line of oceea iioad as surveyed, located and staked out, over and across said right of way and other property being descries an follows to-wits Beginnins at a point on the north sad south center line of said "elation Three (3) that is seven hired fifty -two ana seven tenths (752,7) feet distant youth PTO; the °enter of said ovation meavured along said north and 6etrth center line; thanes) westerly along a st ra i ht line that forms an angle of eightrifOur degrees and thirty four minutes, (84° WV) ) from south to west with said north and south canter lire Of : ts8ion Throe (3) a distance of seven hundred fortywone end ain tenths t741•0) feet to a point in the seater Tine of the mein track of said : 6111raed Gempany at �inll ad vey etation r65 pima 12,7 Whioh equals =_+aacss Road `Aarvey :tatiaa 13 plus 38.36; acid straight line forma an eu ;1e of sixty- eevar de sea and twenty -six x inutee (67' ad') from :goat to north rth with a tangent to said main tuck ut itetlroad FurYe r natation 265 plus 1E.?; thence a ntinutzG ueuterly along said ;truiaht line s di atenee of two hundred o e,tty an4 twentr-eight hundredths (z ,2e) feet to -cocoa Road . asrvey tation 16 plug 1E4". The area i ereinbetare described is shown and represented by yellow color on izawing No, 54596 dated .7uly 20, 11344, hereto annexed, mr %ed n hibit 05,d uy 4M g x erexenac made s part of this agreement, (b) in addition thereto, the iiai1roed uompenieo sun tar as they lawfully may d© so, hereby 'rant to the &tate and Gounty, rsub joct to aaoh and all of the terms, proviciona, aandttiens, Graqr 50 oeveneete, reservations end exceaptione twin oantained: a liaaneee permit and eseement to sonatruet, m aintain,F repair, renew and use epee of aid re adwecy upon the folios described property of the Railroa o tee in Xing County, Washington: Two stripe of Crane esaah torty (40) tot wide adjoining one on each side of and parallel with the above due bed one hundred twenty (2) foot strip of land to be Used for overhead AO00.46 Road Crossingand extend n westerly from the easterly line or the right > of wag of geld hatlead Company to a line Which form an angle of sixty...even defies and thirty miauteea (t 7' 30') from went. to north with seld °enter line of o€ oss Road at Bighway t urvey . ;tenon Za plus 8E.?3 thereof, The last-deeerlbed property is shown and indioeztesd by green early can map Exhibit A hereto. (e) The presses stove deaseribe 3 in S a spun (a) e. d (b Mail be Used by the stets and County only for %'he purpaese afore,* said and not otherwise, one it at any time the property of the Mamie Campania* hoioinbe ore in this sootiest des*ribcd or suy part or parte thereof, shall permanently cease to be used for the p*rposea aforesaid or ill be used for purpaaes unauthorised hereby then the casement hereby granted ea to such property or parts therea shall *ease end Wit#. (d) `flea rights hereby granted *hell be and are subject to all outstanding superior ri► te, whether pub1i,e a r privets, end 6nr extensions or renewele thereof, and the Railroad Companies reserve the night to use the propu ty hereinbefore described, for nay esad * purposes not iaaeaonatat*nt with the lianas, permit end easement hereby granted, and ti.e ul.a ') ' reserve the right, subjeet to emit easement, to oonetruot additional frame, traits or faeilities upon: along., over, under, or across the areas degstribed, at any time and from time to time erg and when they determine, 51 (s) The Railroad do panics by this Inatrummat noilaamg grant not intend to &rant any gryntorr estate €r right than that hareinbefore ezpreaaly described, to -mit, On easement for the pa popes Quaid. Thy mays/ant hereby gated %naludea only the property harainbefore in %hies emotion described and no other erg of the Railroad Gempsnies whatsoever, and the .state or doter' raft end vilI not enurooch upon* on *soupy oz` U60 any other pry' arty or th* Railroad Oempaniae with omit highswir or with anY aaxvi , support, elope et embankment thereof, (t 1 The Auto and City or one of them will antaumit, hear and pay all texas and nab asnente of whatsoever kind er nature, whether genera .e local or special, hereafter during the tars et this agreement levied or aseetscd upon or against the property aes in this eetian .1, xaepting texas Xevied upon and agninat the seise an a component part of the Railroad C*s nteo' property is the state of weahingiot ea a whol . Beetien 24 Said viaduct and higOvei t001400 a e001X coat ruste4 by the Mate ant maintained by the 4o $y as Providat in the agreement dated :use a4, ltSS, between tha state, county' Railroad Companies sct'i -ethers, all without expense to the Rallro04 C ew laniee. amities We It tie State and ty or either of than shall t0±11 refuse or neglect to de, keep,, observe and porters sit sad a of the tense, provisions, °auditions and covenants of this isareastato the tiailreed COMpusiwo may, upon gives to the aloft ono qtr or either of then qty OW degree' in %eau miles vt their Satestiew 52 so to do, terminate the Iieenae, permit and easement hereinhotare granted and all rights of the State and County ie. to, weir end by Virtue of the same, and may have any other remedy available in the promisee, neetivn 44 This agreement sill be binding upon stet Mere to the benefit of the parties hereto and their raap.otive OWSWISDPS and assigns, but neither the :mate no the minty shell *maga or transfer this agreement er any interest herein or right hereunder without first obtaining the written oonsent of the $aiiesd companies. IN WITHOS m % the parties hereto have axe sited that agreement as of the day and year first herein written' oftwom.ustaavroN oAl) & N.,0110421.014 WAWA, UNIO l'AGI : R&I.LhO441 U0 4141r 3y; Approve:, as o fo -_ day of Attoets 57C Gm d71'A y, 5 oner tie 40era of t%ounty aeOmiew o ra of King Osenty 53 54 8 0 0 •, LIN x°42 • I p ca rd Om GI a) • U .4 Lea +fi 1 s. / ti. Gr9Cr a. a:•3raa 111 • KXM MIT A 0.W R.& N. CO. NINCOI FACIre #M. GAD CO - LESxc M.R 170.3 neu SEATTLE,KJ O COUNTY, WASH.' e�R.W.aJ Aiyhf of X Na 1I{a" ea.ONNik. d Ww!.1[oeq:.p p� ae.Le i.ppf cm. •E••anEr•' ENGI FE YJu CE. MANIOC NO 142011 LEGEND lr.w.i w Ort.Nud .___ y aM,d- Nita.. Ca. N.a, wl.ed 14I 55 30 vat4at U PAGE0.04, 3411262 The N0RTWJ RN PACIFIC RATIaYAY COMPANY, a Wisconsin corporation, hereinafter referred to as the "Railway Company", does hereby in con- sideration One Dollar.'to it in hand paid, the receipt whereof is "hereby .acknov {leaged, aisct'o£•tie agreements herein contained, GRANT to the STATE OF VfAfHTN'GT{7N,' hereinafter called the "State" permiss ion save as herein lilted; - t''o,use for higtr y purposes, in common with the uae of said Rar`iw Compat,er for railroad purposes, and to oonstruot thereover an 0`verhead,Accese; Road Viaduct to carry traffic from Rest Marginal Way to EmpireAay for the Boeing Aircraft Corporation near the south city limits of the -City of Seattle, in the looation indicated .on•-the attached plat prepared in his office of the Assistant Chief Engineer of said"Rai1,ay'Company, dated. April 7th 1944 and identified Exhibit "A "o- rtnit:;... • A< strip of lend one•;hundred twenty (120) foot in width, ow sixty (SG) feet wide "as a permanent easement on each side of the .center 7.inef said Aeeess Road, over •and across that portion of its railroad'right of way in the north half of south rest quarter_�,(N ufSw) of section three (3), township twenty -three (23) ~iigith • of, range four (4; east of the Willam- ette Meridians staein_outlined'in RED on said plat attached hereto e,nd'made a rt'hereoi,- idehtified as Exhibit nA ",(to- ''gether.with the right to encroach with slopes not to exceed a total of 200 feet ar 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 Railetey Company and to any permits and leases that Keay heretofore have been granted by said Railway Company across or along said above described premises. The State shall at, its sold cost and expanse provide and maintain connections with .any :eXiet.ng culverts or such additional culverts as the Railway Company may. elect' to cartruct so as to divert the drainage through the highway grade an the easement strip. If at miry time in the future, due to the construction or improvement of said highway, drainage conditions should require a dhange in the existing culverts or the placing of any new culverts through the roadbed of the Railway Company, the State shall bear the entire expensa`of dorstrection of same and shall provide such additional oulverta as mar he necessary to keep the Railway Company "a right of way free from accumulation of Water. The State shell indemnify and save harmless the Railway Company from any and ail claims for flood damage due to the constructionof said highway across the Railway .Compenyra right of way. The State also agrees that in removing snow from said Hi.glmay and from said overhead Viaduct to perform the work in such a meaner ao as not to deposit' tie snow on the roadbed and tracks of the Railway caspary. In tlw event the construction and maintenanoe of said highway shall interfere with or .damage the poles and_ wires of the Railway Company or the Western-Maim Telegraph Company ar. other Telegraph or Telephone Company ding busthass with the ooteenk.of a id Railway Company, the Railway Company mar relocate iiaid poled amid wires or repair spy damage done thereto and the State awl pay all ooat of aunts : m orkc upon presentation of bills therefor. R. W. 4431 .) 57 1 voL2300 PmE583 The State agrees to-indemnify and save harmless the Rai 'hay ComIxLny and any other, ItailWay Company that may be using its tracks with its consent, from any and all- loss, oos-t„ damage or expense arising in any manner out of the performance of any of the work herein provided to be performeit5 by tl* State or.its contractor, regardless of whether such loss, cost, damage of':expense arises out of damage to or destruction of the property of theailway company Or of any person, firm or corporation whatsoever, or t of claims for personal injuries or death, licc:weP ; Dated t IAZ) :24.1(P 1944. liORTIERN' PACIFIC RAI aVAY COMPANY, /3y Viceres d e . Accepted: STATE OF ITASBINCTON, Departman 'Highways, By Director f g Imaye STATE OF MIMIES DTA ) e C ourrty of RBInsoy. ) ,. On this day of 44, befgre me pets onsilly aPP192430. , W. Scan to me born to be tke Vies President of the corperation that exeouted t within and foregoing instrument, and acknospidgedi said instrument to be the free and voluntary cot ancldbed of said'aLerpx1ratiOn, for the lilies and purposes therein% mentioned, and on oath','"etated that he was authorized to execute said instrument and that theY.seio. 'affixed it' the corporate seal of said .. corporation . . * IN WITNBSS=1*Eack:' F:heve hereunto at my had and affixed oroffLci1 seal tie dy idyeai first above written. • ,;-••••• 58 72- '-'1'1115:111tIteinkeekCirtkVAIR; ACIMITAI6ur.LAVre.it,Wiatr #44951r',- eq r 0 a cz LITa _ G c h• eavagai cr.z'5 vS 59 .,r.W }. EPA ...,.1 M�4I ..crave Auwar N— �wicr w •yy••.�..■• y-- .._... EXHIBIT •A` 61 vats PE4$7 3502972 E ASE] EN 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 an 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 portion of its railroad right of way in the North half of Southwest quarter (N* of SWi) of Section three (3), Township twenty -three (23) North of Range four (4) East of the Willamette Meridian, shown outlined in RID 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 track 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) 63 voL2506 PAGE 418 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. y DATED this � " day of Accepted: STATE OF WASHINGTON, Department of Highways, By PACIFIC COAST R. R. CO. 1946. 64 Director o' Highways (2) v0L25fl6 pricw419 STATE OF WASHINGTON ) ) SS COUNTY OF KING ) On this day of , 1946, before me personally appeared T. IYS and /I. N AT TIAS , 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 WAEREOF, I have hereunto set my hand and af- fixed my official seal the day and year in this Certificate first above written. r�lud Tdr R Raquast at ROBERT, xvi L �� MQRRIS. nty fladitor Notary Public in and for the State of Washington, residing at _ .y__ 65 EASEMENT Imo) Trt CIT %c-, acts-17 •R' o FILED for Rcor1 at Request et 12i4 Access `Q tciS Sec. z, Seq ffle To Ren±on Boei n3 t'r%c rA f t- I C4 f,+ s 66 67 SlMISF • frd.cW4r 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: (1) 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 69 r rnar. A= R.are+rar 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 70 .S'/VF vr.z wsr r 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.comf. 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 71 AA AL WAY • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15-0" Horizontally from centerline of nearest track • 2'1' -6" Vertically above top of rail • 27' -0" Vertically above top of rail for electric wires carrying less than 750 volts • 28' -0 " Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30" -0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts 34' -0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction, the following clearances shall be maintained: • 25' Horizontally from centerline of nearest track • 23' 6" 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 72 RAILWAY 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 Railways 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: al 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.coml, 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. 38 73 AA/1 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 htto: / /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 roust 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 74 • 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. 40 75 AE3rnrsA Rod ■VA Y • 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 minirnum 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 41 76 RA /1 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.coml, 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-refiective 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. (NOTE — 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 77 .VAft 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 78 RA L WAY 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. 44 79 WUf - RA/WAr r A.aJL WAY r 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, farms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: ❑ Passenger on train (C) n Contractor /safety sensitive (F) r7 Non- employee (fl) (ia emp af another railroad. or non- B #SF imp !Wired in vehicle accident including company vehicles) Contractor /non- safety sensitive (0) • Volunteer /safety sensitive (H) in Volunteer /other non - safety sensitive (1) nNon- trespasser (0) - to include highway users involved in highway rail grade crossing accidents who did not go around or through gates pi Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates LNan- trespasser (J) - Off railroad property If train involved, Train ID: Transmit attached information to Accident /Incident Reporting Center by: Fax 1 -8I7 -352 -7595 or by Phone 1 -888- 697 -873E or email to: Accident- Reparting.Centerf9NSF.com Officer Providing Information: (Name) (Employee No.) (Phone #) REPORT PREPARED TD COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 209D3 AND 83 U.S.C. 490 45 80 NUN - EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REOUIREO TO BE COLLECTED PURSUANT TO FEDERAL REGULATION, IT SHOULD BE USED FOR COMPLIANCE WITH FEOERAL REGULATIONS ONLY AND IT IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY DR LIABILITY. I. Accident City /St: County: Of 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: SDI (required): City: and /or Age: (if available) Shone Number: Employer: St: Zip: Gender: E. Injury: ID. Body Part: (i.e., Laceration, et.) (i.e., Hand, etc.) II. Description of Accident (To include location, action. result. etc.): 12. Treatment: nFirst Aid Only ElRequired Medical Treatment nOther Medical Treatment 13, Dr. Name: Date: 14. Dr. Address: Street: 15, Hospital Name: City: St: Zip: 16. Hospital Address; Street City: St hp: 17. Diagnosis: 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 81 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, 47 of 62 82 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 Iaw or in equity brought against Railway an 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 Iaw. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement, 48 of fit 83 2) TERM This Agreement is effective from the date of the Agreement until (1) the completion of the project set forth herein, and (11) 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: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • 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. • Waver 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. 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. 49 of 62 84 B. Business Automobile Insurance. This insurance shall contain a combined single limit of at feast $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, 54 of 62 85 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 Toss 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 Rahway 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.0, Box 140528 Kansas City, MO 64114 Toll Free: 877-576-2378 Fax number: 817- 840 -7487 Email: BNSF@certfocus.com www.certfocus.corn 51 of 62 86 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 agents }fbroker(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 52 of 62 87 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. 53 of 62 88 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 /communities /fags /permits- 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 54 of 62 89 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 ( ) ) 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. 55 of 62 90 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: 56 of 62 Accepted and effective on 2016. 91 EXHIBIT D 57of62 92 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 fetter 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] 58 of 62 93 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 215. 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 59of62 94 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 60 of 62 95 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. 61 of 62 96 Exhibit G Avenue Grade Separation Project Estimated Total Project Cost 62 of 62 97 LOCATION PLANITENI NUMBER PROPERTY OF OPERATED BY JOINT FACILITY 4i BILLABLE (÷I -) BOEING 229744001 BNSF RAILWAY COMPANY BNSF RAILWAY COMPANY CITY DF TUKWILA 1000 PURPOSE. JUSTIFICATION AND DESCRIPTION PLAN ITEM AUTHORITY FOR EXPENDITURE L1NE SEGMENT 51 MILEPOST 7.02 DIVISION NW SUBDIVISION SEATTLE TRACT. TYPE 3 TAN STATE WA SPONSOR VP ENGINEERING e//4//7 A- AFE NUMBER RFA NUMBER 592.S516 CPAR NUMBER C8960016 BUDGET YEAR 2016 BUDGET CLASS 6 REPORTING OFFICE 716 CENTER+ROLLUP 29125 PIP ENGINEERING INSPECTION NWN DIY SEATTLE SUB L5 51 NIP 7 02.14 - DOT k 063597G - BOEING ACCESS BRIDGE - 100% BILLABLE TO CITY OF TUKWILA, WA PRIMARY FUNDING SOURCE IS CITY FUNDS •• BUY ANIERICAINI APPLIES'• LINE SEG BEG NIP END NIP TRK NBR BEGIN: STATION END STATION PROJECT TYPE BUD YEAR 229244001 51 7 02 7 02. BOEING BOEING INSPECTOR / COORDINATOR 2016 LABOR COSTS MATERIAL COSTS OTHER COSTS TOTALS CASH CAPITAL NONCASH CAPITAL 0 0 a 0 0 0 0 0 OPERATING EXP REMOVAL COSTS © 0 a 0 o a 0 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 99 (a a-, 2-1?-- " " MAINTAIN PROPRIETARY CONFIDENTIALITY BNSF RAILWAY COMPANY FHPM ESTIMATE FOR CITY OF TUKWILA LOCATION BOEING DETAILS OF ESTIMLATE PLAN ITEM 229144001 VERSION 1 PURPOSE, JUSTIFICATION AND DESCRIPTION PIP ENGINEERING INSPECTION NWN DIV SEATTLE SUB LS 51 MP 7 07X - DOT k 0S5597G - BOEING ACCESS BRIDGE - I00% BILLABLE TO CITY OF TUKWILA, WA REQUESTOR TYLER SCOTT GEYER 05109116 PRIMARY FUNDING SOURCE 15 CITY FUNDS " BUY AMIERICA(Nj APPLIES'" DESCRIPTION QUANTITY LI M COST TOTAL 5 LABOR OOOOOO TOTAL LABOR COST MATERIAL TOTAL MATERIAL COST OTHER ENGINEERING INSPECTION TOTAL OTHER ITEMS COST 0 0 0 0 1 0 LS 42,000 42,000 4 2,000 PROJECT SUBTOTAL 42,000 CONTINGENCIES 4,200 BILL PREPARATION FEE 46' GROSS PROJECT COST LESS COST PAID BY BNSF 46,662 0 TOTAL BILLABLE COST 46,667 Page 2 of 2 100 LOCATION BOEING PLANITE\I NUMBER 239244000 PROPERTY OF BNSF RAILWAY COMPANY OPERATED BY BNSF RAILWAY COS1PANY JOINT FACILITY CITY OFTUKWILA BILLABLE 04 -1 100 0 PURPOSE, JUSTIFICATION AND DESCRIPTION AUTHORITY FOR EXTENDITURE LINE SEGMENT 51 MILEPOST 703 DIVISION NW SUBDIVISION SEATTLE TRACT: TYPO 3 TAX STATE WA SPONSOR VP ENGINEERING AFE NUMBER - RFA NUMBER 5928416 CPAR NUMBER CB960016 BUDGET YEAR 2016 BUDGET CLASS 6 REPORTING OFFICE 710 CENTERIROLLUP 79125 PIP FLAGGING NWN DIV SEATTLE SUB L5 51 MP 7 02X - DOT if 085597G - BOEING ACCESS BRIDGE - 100% BILLABLE TO CITY OF TUKWILA, WA PRIMARY FUNDING SOURCE 15 CITY FUNDS " BUY AMERICA(N) APPLIES `• PLAN ITEM LINE SEG BEG MP END MP TRKNBR BEGIN STATION END STATION PROJECT TYPE BUD YEAR 229244000 51 707 707 3 BOEING BOEING FLAGGING 2016 LABOR COSTS MATERIAL COSTS OTHER COSTS TOTALS CASH CAPITAL NONCASH CAPITAL OPERATING EXP REMOVAL COSTS BILLABLE TOTALS 0 0 0 0 84,999 84,999 4 0 0 0 0 0 0 0 0 0 17,767 17,767 0 0 0 0 103,766 102,766 SYSTEM MAINTENANCE AND PLANNING ESTIMATE REF NUMBER 591841.6 COSTING DATE 0511 I1'3016 Page 1 of 2 PRJNTED ON 05'132016 ESTIMATED BY Elkins PRJNTED BY Elkins 101 v ••••• MAINTAIN PROPRIETARY CONFIDENTIALITY HNSF R.4ILWA Y COMPANY FHPM ESTIMATE FOR CITY OFTUKWILA LOCATION BOEING DETAILS OF ESTIMATE PLAN ITEM 229244000 VERSION I PURPOSE, JUSTIFICATION AND DESCRIPTION PIP FLAGGING NWN DIV SEATTLE SUB LS 51 MP 7:02.N - DOT k 0$55970 - BOEING ACCESS BRIDGE - 100% BILLABLE TO CITY OF TUKWILA. WA REQUESTOR TYLER SCOTT GEYER 05109/16 PRINtARY FUNDING SOURCE I5 CITY FUNDS •• BUY ANIERICA(N) APPLIES •• DESCRIPTION QUANTITY U /%1 COST TOTAL 5 LABOR FLAGGING • GRADING CAP PAYROLL ASSOCIATED COSTS DA OVERHEADS EQUIPMENT EXPENSES INSURANCE EXPENSES TOTAL LABOR COST •..,..•.•.•*a MATERIAL TOTAL MATERIAL COST OTHER RENTAL VEHICLE TOTAL OTHER ITEMS COST PROJECT SUBTOTAL CONTINGENCIES BILL PREPARATION FEE GROSS PROJECT COST LESS COST PAID BY BNSF 900 0 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 92,499 9,249 1,018 102,766 0 TOTAL BILLABLE COST i07,766 Page 2af2 102 City of Tukwila City Council Transportation Committee TRANSPORTATION COMMITTEE Meeting Minutes November 7, 2016 — 5:30 p. m. — Foster Conference Room, 6300 Building Councilmembers: Dennis Robertson, Chair; Verna Seal, De'Sean Quinn Staff: David Cline, Bob Giberson, Ryan Larson, Gail Labanara, Steve Carstens, Scott Bates, and Laurel Humphrey CALL TO ORDER: Committee Chair Robertson called the meeting to order at 5:3o p.m. I. PRESENTATIONS II. BUSINESS AGENDA A. Overpass Agreement: Boeing Access Road over BNRR Bridge Rehabilitation Project Staff is seeking Council approval of an Overpass Agreement with BNSF in the amount of $ 3.49,428.00 for the Boeing Access Road over BNRR Rehabilitation Project. This is required for construction and maintenance costs related to work over the railroad right -of -way and covers inspection and flagging services required by BNSF. UNANIMOUS APPROVAL. FORWARD TO NOVEMBER 21, 2016 REGULAR CONSENT AGENDA. B. Supplemental Agreement: 42nd Avenue South (South 160th Street — South 131st Place) Phase III Staff is seeking Council approval of Supplemental Agreement No. 6 to Contract No. 12 -010 in the amount of $218,783.05 with CH2M Hill for the 42nd Avenue South Phase III Project combined with the Gilliam Creek Culvert design. The project is at go% design and this supplement will redesign the relocation of storm water detention facilities in compliance with the City's shoreline buffer requirements and plan mitigation for landscaping and stream relocation. Additional utility coordination will also be required. Funding for this design is available from the proposed increased construction budget as reflected on the updated CIP page. UNANIMOUS APPROVAL. FORWARD TO NOVEMBER 14, 2016 COMMITTEE OF THE WHOLE. C. Bid Award: Tukwila International Boulevard and South 144th Street Midblock Crossing Staff is seeking Council approval of a construction contract in the amount of $88,300.00 with Westwater Construction Company for the Tukwila International Boulevard and South 144th Street Midblock Crossing. This project will retrofit the crossing with Rapid Flashing Rectangular beacons and ADA compliant curb ramps. Westwater was the low bidder of three bids received in October. UNANIMOUS APPROVAL. FORWARD TO NOVEMBER 21, 2016 REGULAR CONSENT AGENDA. D. Stop Sign and Crosswalk Guidelines Staff provided the Committee with a briefing on how stop signs, crosswalks, speed humps, and speed limit changes get approved for installation. Residents often make requests for traffic calming devices, but the City must follow the 2009 Edition of the Manual on Uniform Traffic 103