HomeMy WebLinkAbout01-088 - Burlington Northern and Santa Fe Railway (BNSF) - South 180th Street Underpass Construction and Maintenance Agreement0 I - c� !�'3
CONSTRUCTION AND MAINTENANCE AGREEMENT
SOUTH 180"'STREET UNDERPASS (MP 12.16)
TUKWILA, WASHINGTON
RAILWAY Contract NO.
File No
AGREEMENT, made this day of 2001, between THE BURLINGTON NORTHERN
AND SANTA FE RAILWAY COMPANY, a Delaware co oration, hereinafter referred to as the "Railwa", and
TUKWILA, WASHINGTON, a municipal corporation, hereinafter referred to as the "Agency". y
RECITALS:
WHEREAS: the Seattle Subdivision is currently owned and operated by the Railway; and
WHEREAS: in the interest of aiding motor vehicle and railway traffic the Agency is proposing to replace the "at -
grade" crossing by constructing a new roadway bridge underpass.
WHEREAS: the centerline of the new roadway underpass and roadway alignment will cross the Railway's right of
way and tracks at RR Sta. 971+33, RR MP 12.16, as shown on the map marked as Exhibit *A" attached hereto and
by reference, made a part hereof, and
WHEREAS: the Agency will require construction and maintenance easements from the Railway for the project which
is located in the NE 1/4 of the NW 1/4 and the SE 1/4 of the NW 1/4 of Section 36, Twp. 23 N., Rge 4 E., WIVI as
shown on the map marked Exhibit "A', and
WHEREAS: the Railway will be required to perform certain work on its facilities, and
WHEREAS: the parties hereto desire that the work to be performed by the Agency in connection with said
construction be performed in accordance with plans and specifications to be prepared by the Agency, and
WHEREAS: the Agency is willing to undertake the construction of said project with Agency, state, federal and local
funds and funds from the Railway consistent with 23 CFR 646.21 0(b)(3), and
WHEREAS: the Railway is willing to consent !o the ax&cuttloil of ire said project upon the terms and conditions
herein stated and not otherwise. and
WHEREAS: the parties hereto desire to contract for work to be performed by each of them in connection with this
project and the payment of costs and expenses therein involved, and
ARTICLE I
AGREEMENT:
NOW THEREFORE, in consideration of the covenants of the Agency hereinafter contained, and faithful performance
thereof, Railway agrees:
The Agency shall finance the project from available City, State, Port. Federal and Railway funds.
In accordance with 23 CFR 646 B. which by this reference is incorporated in this agreement, the RAILWAY will
receive certain ascertainable benefits from said project and, therefore, will be required to contribute to the cost
of said project.
Q- rd G
In consideration for the closure of the grade crossing, the Railway will contribute 5% of the project costs
consistent with 23CFRO46.210(b)(3).Based on the Project Cost Estimate, the Railway'sshare isdetermined
The Agency shall prepare and submit progress project costs and the Railway shall tender payment within sixty
days after the receipt of a billing from the Agency, according to the following schedule.
a) Award of Contract byAgency (May 2UO1) $433.333
b)Project at 50%completion (date invoice expected) $433.333
c) Project completion (date invoice expected) $433,334
The Agency shall prepare and submit aninvoice in the amount and onthe date shown above and the Railway
shall tender payment within sixty days after the receipt of a billing from the Agency.
During construction, the Agency will make all direct payments to its prime contractor.
3. The Railway shall grant to the Agency, at no cost to the Agency, atemporary construction permit for
purposes n�yupon and across �eRaUway�hgh�o�vay.auouU�edinbmwnonExhibh~a�acnod---'-'
Upon the execution of this Agreement the Agency is hereby granted a right -of -entry onto the Hoi|wmy'a
properly as shown on Exhibit ^A*, attoohed, outlined in brown and is authorized tncommence construction
work for said project subject 1n requirements of this agreement.
4. To furnish all |abor, matena|o, tuo|m, and oqu/pment, and do "Railroad Work" required due to the construction
of the Pnojoot, such railroad work and the estimated cost thereof being as shown in Exhibit ~B~ attached hereto
and made aperlhereof. |nthe event that construction ofthe Project has not commenced within six (G)months
from the effective date of this Agnaemont. Railway may, in its sole and absolute discmhon, navion the cost
estimates set forth in said Exhibit~B-. In such case, Railway shall provide \nthe Agency its revised cost
estimates highlighting all changes that are made. Exhibit~B~. addressing fiber optic work is a preliminary
estimate only. Adetailed estimate will beinserted into the agreement prior toconstruction. Any item ofwork
incidental 10those items listed inExhibit ~B~.but not specifically mentioned therein, may beincluded onpart of
this agreement as anitem ofwork upon written approval nfAgency, ifpracticable.
The Railway may submit progress bills to the Agency during the progress ofthe work for the actual cost of
services and expenses. The Agency will then pay progress bills within 3Odays after receipt of a property
submitted bill. |fthe billing is disputed for any reason, the Agency will promptly notify the Railway and will pay
any undisputed amount.
The Railway and the Agency shall maintain records regarding the work performed and the costs and expenses
incurred by the parties for the project in accordance with generally accepted accounting principles and
practices. Said records shall be made available to the other party, urfor Agency, or federal uud|\, upon
request during normal business hours. for a period of three years after the final payment.
Construction ofthe Project shall Include the following work byRailway:
(a) Preliminary engineering, design, and contract preparation,
(b) Furnishing of engineering and inspection as required for construction of said Project
(a) Construct 2Q3A.STFofnew 13G#[WR. and 1new w11Turnout, HH136w.
(b) Remove 3165.1 TFofexisting rail, including 3Turnouts and dispose.
(o} Remove 2existing 6O'cnoauingsurfaces and dispose.
A$ Remove existing active warning devices (cond|ovenu. Oaten, bungalow and activation devices) and
transport them toalocal storage location as directed by Agency.
(o Bury fiber optic cable.
(g) Furnishing of such watchmen and flagmen as may be necessary for the safety of its property and the
operation ofits trains during construction /fsaid Project; and
Stage
(a) Shift 48OSTFofnew and existing rail tooriginal alignment after the, underpass is complete.
(b) Construct 112.5TFcdreinstated cross -over including 1#11Turnout RH(new).Center Siding toMainline
#2.
(c) Move New #11RHTurnout 0ocross-over and construct new #11LHTurnout, Mainline #1.
(d) Reestablish fiber optic lines across and attached to railroad bridge over So. 180 'h Street.
(e) Furnishing of such watchmen and flagmen as may be necessary for the safety of its property and the
operation nfits trains during construction ofsaid Project.
5. Todoall work provided in Article |. Section 4above with its own employees working under Railroad Labor
Agreements orbynontmotor(o).itnecessary, and ononactual cost basis.
U. Agency agrees /o reimburse Railway for work of an emergency nature caused by Agency or Agency's
oontnaotmr, inconnection with the Project which Railway deems is reasonably necessary for the immediate
restoration of railroad opmmdono, orfor the protection of persons or Railway property. Such work may be
performed by Railway without prior approval ofAgency and Agency agrees \o reimburse Railway for all such
emergency work.
7. To submit toAgency for payment upon completion of the Project, adetailed statement covering the cost ofthe
work performed by Railway. segregated as to labor and materials, and in accordance with and subject to the
terms and provisions of Federal Highway Administration's FHPK8 143, as amended. All applicable portions d
the Federal Highway Administration's FHPM082.1 as amended and FHPN\ 143as amended are byreference
incorporated herein and made apart hereof.
ARTICLE 11
IN CONSIDERATION of the covenants of Railway herein set forth and the faithful performance thereof, Agency
agrees aofollows:
1. To furnish to Railway plans and specifications for the ProjectFour sets of said plans,
together with two co
pies
ofspecifications, shall be submitted to Railway for approval ph —
prior of construction. After nQ
been approved by both parties hereto, said aumand spauif�abareonm �hereby adopted and incorporated into
this agreement byreference. '
2. To make any and all arrangements to secure the location or relocation of wire lines, pipe lines and other facilities
owned byprivate pensono, companiea, coqmznohono, political subdivisions orpublic utilities other than BNSF
which may be found necessary to locate or m|0000o in any manner whatsoever due to the construction o/ the
project.
3. To construct the Project as shown on Exhibit ~A~ and do all work provided for in the plans and specifications for
the Pnqect, except such work that Railway herein agrees to do. Principal elements of work tobeperformed by
Agency inthe construction of the Project are amfollows:
(u) Construct the temporary and permanent railway roadbed and furnish and place the sub -ballast as directed
bythe Railway.
(b) Construct the railroad bridge over South 1001h Street.
(c) Lower South 18OmStreet under the railroad bridge.
(d) Provide adequate drainage of the overhead structure away from the Railways tracks and protect track
drainage tothe satisfaction dthe Railway.
(e) Except aootherwise provided herein, /umhh all plans, engineering, supervision, labor, matohe|, supplies,
'
(f) Perform all other work not specifically mentioned as work to be performed by the Railway necessary to
complete the project inaccordance with the plans and specifications.
4. To furnish all labor, materials, tools, and equipment inperforming the work hagrees to perform herein. All work
o/construction with respect 0nsaid Project shall boundertaken byAgency, nrAgency's contractor an oho||be
pe�nnneda\auchhmmmaoehaUnotendangeror/ntedemw�hthemsdenndhme!yopeogionao(Rai|-— track
and other facilities.
5. To require its contractor(s) rat least 3Ocalendar days inadvance of commencing
work on Railway property or near Rauwayatmcma. when requesting a Railway flagman in accordance with the
requirements of"The Right of Entry Agreement" attached hereto, inorder Voprotect Railway from damage 1oits
trains and property.
b. To require its contractor(s) to fumish Railway's Manager of Public Projects, for approval, four copies of
plans and two sets of calculations of any shoring or cribbing proposed to be used over. under, or adjacent to
Rai|wmy'x tracks,
'
7. The Agency agrees toinclude the following provisions in its contract with acontractor performing work on said
Project.
$4 Fiber optic cable systems owned byvarious telecommunication companies may cross or run parallel in
Raik*a�s rail corridor. The Contractor shall be responsible to contact Railway an----�' the
telecommunications companies to determine whether there are any fiber optic cable systems located within
the Project boundaries that could bedamaged ortheir service disrupted
7�ed due to the constructionof the
Project. The contractor shall also pothole all lines either shown on the plans or marked in the field�n order
10verify their locations. The contractor shall also use all reasonable methods when working inthaFai\way
raUconidortodetennineufonyntherfibaropho||nommaye�s1 - �
(b) Failure to nohhy, pothole or identify these lines shall be sufficient cause for the AgencyEngineer ko�op
��
construction atnocotothe Agency orRailway unh|these items eecompleted. Costs for repairs and loss
Of revenues aoJv'oDis duo to damage to these facilities through negligent acts by the contractor shall be
the sole responsibility of the contractor. The contractor shall indemnity and hold the Agency and the
Railway harmless against and from all cost. liability and expense arising out of or in any way contributed \o
these negligent acts o/the contractor.
(o) The telecommunication companies shall be responsible for the rearrangement ofany facilities determined to
interfere with the construction. The contractor shall cooperate fully with any company performing these
rearrangements.
8. To also incorporate ineach contract for constniction of the Project, orthe specifications therefor, the provisions
set forth in ArticleU. Gechono4L 5.8. 7.9(u). and 18(b).and inArticle III, Sectkzns3. 4. 10. and 11, and the
provisions set forth hn the "Right -of -Entry Agreement* attached hereto and by reference made a part hereof,
9. That, except as hereinafter otherwise pmvided, all work to be performed hereunder by Agency in the
construction of the Project will beperformed pursuant toacontract orcontracts tobelet byAgency, and all such
contracts shall provide.
(a) That all work performed thereunder, within the limits of Railway's right of way shall be performed in a good
and workmanlike munner, and in accordance with plans and specifications approved by Rui|vvoy. Those
changes ormodifications duringconstmchonthataMectaaferyorRaiiwmy'sopenadonomh U also be mubj*nttoRai|way'nappmvol;
(b) That nnwork shall bocommenced within Rekwmy's right ofwayunU|euohofthecontr� aonoemployed in
connection with said work shall have (i) executed and delivered 0z Railway an Agreementinthehmnnof
"The Right -of -Entry Agreement" delivered to and secured Railways approval of �rance required by
said "Right -of -Entry Agreement".
10. (a) Railway shall have the right to request that any Agency employee, any Agency contractor, or any employee
of a Agency contractor who performs any work within Railway's right of way and which affects Railways
operations or facilities, be removed from the Project for incompetence, neglect of duty, unsafe conduct or
misconduct. In the event Agency or its contractor elects not to honor such request, Railway may stop work
within its right of way until the matter has been fully resolved to Railway's satisfaction. The party whose
employee has been asked to leave the Project will indemnify the requesting party against any claims arising
from such removal.
(b) '
and invitees shall wear the I current BNSF
Personnel Protective Equipment ("PPE") when on the Railway's rail corridor. Railway PPE shall meet
applicable OSHA and ANSI specifications. Existing Railway PPE requirements are: (1) safety glasses;
permanently affixed side shields; no yellow lenses; (if) hard hats with high visibility orange cover; (iii) safety
shoes with hardened toe, above the ankle lace up and a defined heel; and (iv) high visibility reflective orange
vests. Hearing protection, fall protection and respirators will be worn as required by state and federal
11. To advise Railway's Manager Public Projects, in writing, of the completion date of the Project within thirty (30)
days after such completion and to notify Railway's Manager Public Projects, in writing, of the date on which
Agency and/or its Contractor will meet with Railway for the purpose of making final inspection of the.Project.
ARTICLE III
UWCONSIDERATION odthe premises, hismutually agreed oafollows:
1That all work contemplated in this agreement shall be performed in a good and workmanlike manner, in
accordance with plans and specifications approved by BNSF, and each portion shall be promptly commenced
by the parties hereto obligated to do the same and thereafter diligently prosecuted to conclusion in its logical
order and sequence. Furthermore, any changes or modifications during construction that affect Railway shall
be subject to approval by Railway prior to commencement of such changes or modifications.
2, That such work shall be done in accordance with detailed plans and specifications approved by both
3. Agency and Railway shall to the extent roasonably practicable adhere to the construction schedule for all
Project work. The parties agree that Railway's failure to complete Railroad work in accordance with the
construction schedule by reason of inclement weather, unforeseen railroad emergencies, or other conditions
beyond its reasonable control, will not constitute a breach of this Agreement by Railway nor subject Railway to
any liability or responsibility for added expense to the Agency.
4. In the event of on unforeseen railroad emergency and regardless of the requirements of the coombmn0on
schedule, Railway reserves the tight to reallocate all or a portion of its labor forces assigned to perform the
Railroad Work when Railway believes such reallocation is necessary to provide for the immediate restoration of
railroad operations of Railway or its affiliates or to protect persons or property on or near any Railway owned
property or any related railroad. Railway will reassign such labor forces to again perform the Railroad Work
when, in its sole but good faith opinion, such emergency conclition no longer exists. Railway will not be liaNe for
any additional costs Or eXP6ilses of the Project resulting from any such reallocation of iis labor forces. The
parties further agree that such reallocation of labor forces by Railway and any direct or indirect results of such
reallocation will not constitute a breach of this Agreement by Railway,
5. That it any Agency Contractor shall prosecute the Project contrary to the Plans and Specifications or ifany
Agency Contractor shall prosecute the Project work inamanner Railway deems tobehazardous to~its pmperty facilities or the neYa and expeditious movement of its tna#io, or the insurance described in ~The Right -of -Entry
"
Agreement" here nfshall becanceled duhm
during the RoUwaymhoUhave thh right
u
the work until the acts or omissions of such Agency Contractor have been fully rectified to the satisfaction of
stop
pailway's Division Engineer, oradditional insurance has been delivered to and accepted byRailway, Such work
stoppage shall not give rise toorimpose upon Railway any liability to Ago
Railwayncy, or to any Agency Contractor. The
right of Railway to stop the work is in addition to any other rights Railway may have which include, but are not
limited to, actions for damages or lost profits. In the event that
\ogive immediate nc�icothomc�inwhUngtnthose indi�dua|o�m.hgi------`-~``~~~~''`=""/^y'���
'
nn nSection 22o|this Article Ui
The Agency shall supervise and inspect the operations of all Agency contractors to assure compliance with the
plans and apeoif/oahono.the terms ofthis agmementand aUsafety requirements ofAgenoy |/ot�any Umedurin
construction Agency determines that proper supervision and inspection is not being Agency.
by Agency
peroonnm'Agency sUaUhave the hght\ostop conatrucdon(vvithino/adjacent toits openahpgright ofway) and ty
request that the Agency corn�t the situation before construction � allowed to proceed. | Railway believes �h"
snuenonmnot being no�eok�/inanexpedhinuomanner, Railway ehaUimm immediately oh�^ � the Agency so that the
T The Project shall not be commenced by Railway until Agency has issued Railway a "Notice to Proceed".
Agency's Contractor shall not commence construction of the Project until the Agency shall have given not less
than thirty (30) days prior written notice to Agency's Manager of Public Projects which notice shall state the time
that Agency's Contractor plans to begin construction of the Project. Each notice shall make reference to
Railway's file name: Tukwila, WA. - South 180th Street underpass construction .
R. The construction of said Project shall be performed and effected in such a manner as not to irkodenm with the
safe and timely operation of locomotives, traino, oacars�
and on track maintenance equipment. over Rai|wm
8. Upon completion and acceptance by the Agency and the Railway of the railroad supporting structure asprovided
for in this Agreement:
(a) The Railway shall own and maintain, atits sole cost and expense, railsando�erod/noad�oUd�nupon�eehoc�re. ' ' ' '
(N Agency will own and maintain, at its sole cost and expense, the bridge abutments, piers, the roadway,
sidewalks, retaining walls, drainage facilities, lighting, landscaping, facades, aesthetic treatments and other
facilities of the roadway. The Agency agrees that prior to any such maintenance work or repair of the fagade
and/or the aesthetic treatments located on the bridge structure, it will furnish the Railway details of the
proposed work for approval. At any time the Railway deems that safe operation of trains is in danger due to
the condition of the property of the Agency as stated herein, the Railway shall notify the Agency and the
Agency shall perform the maintenance functions necessary to ensure safe operations of trains over the
10. Before entering upon Railway's right of way for maintenance purposes, Agency shall notify Railway's Manager
Pishlic Projects to cbtair. Pric-r authofizatiun, and, H work is contracted, Agency will require its contractor(s) to
comply with the obligations in favor of Railway, set forth in the *Right -of-Entry Agreement" as may be revised
from time to time, and accepts responsibility for compliance by its contractor(s).
11. Agency shall indemnity and save harmless Railway, its agents and employees, against all liability, claims,
demands, damages. or costs for (a) death or bodily injury to persons including, without limitation, the employees
of the parties hereto, (b) injury to property including, without limitation, the property of the parties hereto, (c)
design defects, or (d) any other loss, damage or expense arising under either (a), (b) or (c), and all fines or
penalties imposed upon or assessed against Railway, and all expenses of investigating and defending against
same, arising in any manner out of (1) activities, use, or presence, or negligence of Agency, or Agency's
employees, or Agency's contractors, subcontractors, agents, invitees or any of their employees, in, on, or near
Railway's right of way, or, (2) The performance, or failure to perform, by the Agency, its contractors,
subcontractors, or agents, its work or any obligation tin der this agreem-ent..
12 The Ra������m����or���������|im��������
"""�wapplicable laws, rules or regulations, m
uno. pn�vded�haddheuaehu|nao�cd�hmovancaeinQ/orUhe purpose
of separating highway and railroad traffic shall not thereby be impaired and reasonable notice of significant
changes affecting the roadway is given to the Agency.
13 The Agency will not do, or permit anything within the easement area which will interfere with orendanger the
facilities moperations of the Railway. The Agency further agrees that the minimum vertical clearance from the
top of roadway to bottom cdconcrete spans will not be reduced to less than feet inches ( ' ^). The
minimum horizontal and vertical clearances for construction ahoU be as shown on the approved plans. The
Railway shall not intentionally do, nor permit, anything that will interfere with or endanger roadway facilities or
vehicular traffic using the under crossing.
14. The Railway momwea the right to make modifications or additions to its facilities within the limits of its right-of-
way subject to applicable laws, rules or regulations, provided that the usefulness of the under crossing for the
purpose of separating highway and railroad traffic ehoU not thereby be impaired and reasonable notice of
significant changes affecting the roadway iogiven tothe Agency.
15. If the highway under crossing shall atany time cease hobeused bythe public asahighway underposa or shall
byopenahonoflaw or��hem�aebecome vao�edorabandoned, the hg�mand bena�s tothe Agency u'derthis
Agreement shall immediately cease and the Railway shall be entitled to repossess the land to which ^^ it has
executed easements tothe Agency and touse the land thereafter auifthis Agreement had never been ~^~~'u1ed
without the neoessdyofany fud�horin�pmoaedingo. AdciUona||y'Uthe ReUwoyame|e�s.the Agency~a||e^
`
its own cost and expense. remove the highway under crossing bridge, and fill in the opening in
~ '''`nne^'
satisfactory rothe Railway.
16. Either party hereto may assign any receivables due them under this Agreement provided, however, such
assignments shall not relieve the assignor of any of ha rights or obligations "
under this ' mem—`-- No
modification or amendment to this Agreement shall be valid until the same is reduced to writing ~~~~utnd
with the same /onnaUUmsaswere o�endar�toth�Agmement. v
17.This Agreement shall beinterpreted inaccordance with the laws ofthe State n/Washington.
18. If the Railway enters into a contract or agreement with a contractor to perform any of the work, which the RaUway
is required to perform under the tamno of this Agreement, the Railway, for itme|f, its assigns and successors in
interest, agrees that it will not discriminate in its choice of con\nan\nm and will include all the nondiscrimination
provisions set forth in Exhibit E attached hereto and by this reference made a part odthis Agreement, inany such
contract or agreement.
19. The covenants and provisions oythis Agreement shall bebinding upon and inure tothe benefit of the successors
and assigns of the parties hereto. except that no party may assign any of its rights or obligations hereunder
without the prior written consent of the other party.
20. In the event that construction of the Project has not begun fora period of three yearn from the date of this
agreement, this agreement shall become null and void.
21. This Agreement cancels and supersedes any preceding agreements pertaining to said crossing.
22, Any notice provided for or concerning this agreement shall be in writing and be deemed sufficiently given when
sent by certified mail, return receipt requested. to the parties at the following addresses:
The Burlington Northern and Raikmay's Manager ofPublic Projects
Santa FwRailway Company:
John K0.(7N|ko)CnvNeo
2454Occidental Avenue So..Suite 1'A
Seattle, WA. S8134-1451
Telephone No. (2O8)825-G14G
Ta|aoopyNo.:(2DG)G25-6l1G
With acopy to: Division Engineer
2454Occidental Ave. So. — Ste 1,4
Saa�|�.VV��9B134
Telephone No. (20S)G25-G3G3
Ta|eoopyNo. (206)U2E-O2SG
7
TUKWILA, WASHINGTON
Roadmaster
605 Puyallup Avenue
Tacoma, WA. 98421
Telephone No. (253) 591-2563
Telecopy No. (253) 591-2627
Brian Shelton, P.E.
City Engineer
6300 Southcenter Blvd.
Tukwila, WA. 98188
Telephone No. (206) 433-0179
Telecopy No. (206) 431-3665
This Agreement shall inure to the benefit of and be binding on the parties hereto, their successors and assigns.
IN WITNESS WHEREOF, County has caused this Agreement to be executed and witnessed by its duly qualified and
authorized officials, and BNSF has executed this Agreement, both as of the day and year first above written.
PTO
T
Wington Nodhorn Santa Fe Low DapartwA
APPROVED AS TO FORM
By: � Mtt Title. '�City Afio(ney
THE BURLINGTON NORTHERN AND
SAN FE RAILWAY POMPANY
13�
Vice Presidelt - Mechanical &
(�Jgine' ring
TUKWILA, WASHINGTON
By
Title - Mayor
P