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HomeMy WebLinkAboutTIC 2019-01-23 Item 2B - Funding - Boeing Access Road BNRR Bridge Rehabilitation: BNSF Flagging ExpensesAllan Ekberg, Mayor Public Works Department - Henry Hash, Director INFOR ATIONAL E ORANDU TO: Transportation and Infrastructure Committee FROM: Henry Hash, Public Works Director BY: Steve Steve Carstens, Senior Program Manager CC: Mayor Ekberg DATE: January 18, 2016 SUBJECT: Boeing Access Rd over BNRR Bridge Rehabilitation Protect Project No. 99410408, Contract No. 16-151 BNSF Flagging Expenses ISSUE Approve Burlington Northern Santa Fe's (BNSF) flagging and inspection cost increases. 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. The BNSF 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 The original BNSF's Overpass Agreement was for $149,428.00 and Amendment No, 1 approved an additional $300,000 for a total of $449,428.00. As the project is close to completion, additional costs from BNSF are estimated to be $150,000.00 to finish the project. Attached are the Overpass Agreement, including exhibits for flagging services and inspection services, FISCAL IMPACT The Overpass Agreement is within the approved construction management budget and the 25% construction contingency. Contract Budget Grant Jacobs Main CM Contracts $1,785,249.83 $2,291,000.00 BNSF Flagging and Inspection Original 149,428.00 BNSF Amendment No. 1 300,000.00 New BNSF Amendment No. 2 150,000.00 PCL Change Orders to date No. 1 - 20 579,481.00 Construction 25% Contingency 1,584,668.00 Total $2,964,158.83 $3,875,668.00 $3,100,534,00 The Federal Bridge Replacement Advisory Committee (BRAC) grant is funded at 80% with a 20% city match, RECOMMENDATION Council is being asked to approve the increased flagging and railroad costs with BNSF for the Boeing Access Rd over BNRR Rehabilitation Project in the amount of $150,000.00 and consider this item on the Consent Agenda at the February 4, 2019 Regular Meeting. ATTACHMENTS • 2019 CIP page 11 • BNSF C/M Agreement W:\PW Eng1PROJECTS1A- RW & RS Projects1Boeing Access Rd Bridge Rehab (99410408)102 Funding and Finance\Contracts\BNSF\Info Memo bnsf flagging 20190118 gl.docx 9 STATUS: MA|mT IMPACT: COMMENT: CITY OF TUKWILA CAPITAL PROJECT SUMMARY 2019 to 2024 Boeing Access Rdover BNRRBridge Rehabilitation Project No. oo41o4Vo Rehabilitate the existing bridge with a 340' long concrete or steel bridge structure. It will be 6 lanes and have osidewalk onone side. The existing bridge is structurally and seismically deficient. Several pedestals are leaning, have concrete opoUs, exposed rusty anchor bolts and reinforcements and some cracks. The existing railings donot meet current bridge standards. Type, size, and location draft report (specifically required for bridges) was completed in2OO5.Federal grant 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. Maintenance will boreduced. 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 (in*u00's) Through Estimated couo 2021 unoc onoo 2024 oEYnmo TOTAL EXPENSES Design L=nd(R8y@ covst. Mgmt. Construction TOTAL EXpsmSse 1/13 301 1.720 1.833 0.724 8.557 157 1.060 1.207 o n n n u o 1.419 g 2.291 7.774 11.484 FUND SOURCES Awarded Grant Proposed Grant FundBa|anm*BnnU Mitigation CdyOper. Revenue 1.232 2.441 (1.953) 6.871 1.506 840 567 O O O O O n 9.043 V 2,441 O V Location �V''_=_~_t W* ' -- 'IT ' e°���__�� cis _1=r-30St^=--����_�_-����-��° umo-000*Capital Improvement Program 11 10 OVERPASS AGREEMENT 18-151 Council Approval 11/21/16 BN8FFile No. BF10009078 Boeing Access Rd U.S. D.O.T. No.0855S7G L8O51 MPO7.O2OX Seattle Subdivision This \onoenant ("A~reenemt"), is executed to be effective as of 16k-L ("Effective 3aKg"), by and between BNGF RAILWAY COMPANY, a De|axAre corporation /'`BNSF"\, and the City of Tukwi|o, o political subdivision of the State of Washington ("Agency"). VVHEFlEA8. BNGF owns and operates a line of railroad in and through the City of Tukwila, State of Washington; and VVHEREAS. Agency desires hJwiden and improve the existing structure known as the Boeing Access Rd Bhdge, D.O.T. No. 085597G. NOW, THEREFC]RE, in consideration ofthe mutual covenants and agreements of the parties contained hgm*in. the receipt and nuMio|enoy of which are hereby aoknoxv|adgod, the parties agree as follows: ARTICLE 1) SCOPE OF WORK 1. The term "Project" as used herein includes any and all vxod« related to the construction of the proposed improvements to the Boeing Access Rd Bridge (hereinafter referred to as the "S*rWctume',), more particularly described on the Exhibit A. which is attached hereto and incorporated hena|n, inc|uding, but not limited to, any and all changes to to|ephone, tm|egnaph, signal and electrical lines and appurtenaDneo. Gynlpmnary and permanent track vvo[k. Nanoing, g[adinQ, alterations to or new construction of drainage faoi|iUes, preliminary and construction engineering and contract preparation. Additiona||y, temporary controls during construction must comply with Section GA-OO. "Temporary Traffic Control Zones" of the N1mnum| of Uniform Traffic Control Devices (''K8UTCO"). U.S. Department of Transportation, 57' 7 11 ARTICLE II) BNSF OBLIGATIONS In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. Upon Agency's payment to BNSF of an administrative fee in the sum of zero and No/100 Dollars ($0.00), together with the Temporary Construction License Fee in the sum of $0 and No/100 Dollars ($0.00), BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction License") to construct the Structure across or upon the portion of BNSF's right-of-way described further on Exhibit A-1, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right-of-way; (b) Construct, operate, maintain, renew and/or relocate upon said right-of- way, without limitation, such facilities as the BNSF may from time to time deem appropriate, provided such facilities do not materially interfere with the Agency's use of the Structure; (c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate, provided such use or operations does not materially interfere with the Agency's use of the Structure; and (d) Require the Agency or its contractor to execute a Temporary Construction Crossing Agreement, for any temporary crossing requested to aid in the construction of this Project. The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of (i) substantial completion of the Structure, or (ii) eighteen months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Agency in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for construction of the Structure only and shall not be used by Agency for any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Structure for any other purpose than construction. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein. 2 12 Upon Agency's payment to BNSF of the additional sum of $ zero and No/100 Dollars ($0.00), such payment to be made within thirty (30) days of issuing the Notice to Proceed pursuant to Article III, Section 16 of this Agreement, and provided further that Agency is in compliance with the term and conditions of this Agreement, BNSF will grant to Agency, its successors and assigns, an easement (hereinafter called, the "Easement") to enter upon and use that portion of BNSF's right-of-way as is necessary to use and maintain the Structure, substantially in the form of Exhibit B attached to this Agreement. If Agency fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of Agency, which approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C; (d) Furnishing engineering and inspection as required in connection with the construction of the Project; (e) Providing a contract project coordinator, at Agency's expense, to serve as a project manager for the Project 3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements. 13 4. Agency agrees to reimburse BN8F for work of an emergency nature caused by Agency orAgency's contractor in connection with the Project which BN8F deems is reasonably necessary for the immediate restoration of railroad ope[aUono, orfor the protection of persons or BN8F property. Such work may be performed by BN8F without prior approval of Agency and Agency agrees to fully reimburse BN8F for all such emergency work. 5. BN8F 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 coat of the Project, regardless of the nature or amount of u|dmnaho liability for injury, loss o, death to BNGF's employees, if any. 0. During the construction of the Proheot. BN8F will mend Agency progressive invoices detailing the costs of the railroad work performed by BN8F under this Agreement. Agency must reimburse BN8F for completed force -account work within thirty (30) days of the date of the invoice for such vVu[k. Upon completion of the Project, BN8F will send Agency a detailed invoice of final oonts, segregated as to labor and materials for each item in the recapitulation ohVxvn on Exhibit D. Pursuant to this section and Article |V. Section 7 herein. Agency must pay the final invoice within ninety /DO\ days of the date of the final |nVoice. BNGF will aameuo a finance charge of .03396 per day (1296 per annunl) 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 BN8F, not the date payment in made or the date postmarked on the payment. Finance charges will be assessed on delinquent aunnm and other charges as of the end of the month and will be reduced by amounts in dispute and onyunpostad payments received by the mnonth's end. Finance charges will benoted oninvoices sent toAgency under this section, ARTICLE 111) 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 na|cu|stione, and specifications in English Umits, must be submitted to BNGF 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 BNGF'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 ofthe plans and specifications byBNGF shall innoway obligate BN8Finany manner with respect tothe finished product design and/or construction. Any approval by BNGF shall mean only that the plans and 4 14 specifications meet the subjective standards ofBNGF.and such approval b«BN8Fshall 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, |axvn, 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 c|eonanoea, as required in Exhibit and as approved by BNGFae part ofthe plans and specifications for the Project, 4. Agency must acquire all rights of way necessary for the construction of the 5. Agency must make any and all arrangements, in compliance with BNGF's Ub|hv Accommodation Manual /hVo:/hwvxvv.bns[con/connmnuniUeo/��qp/pd�uU|ib/`pdM. for the installation or relocation of wire |iDeo, pipe lines and other facilities owned by private pen;Vne. CQnnpan|em, corpnrations, political subdivisions or public utilities other than BN8Fwhich may benecessary for the construction ofthe P 'oct.. 8. Agency must construct the Project as shown on the attached Exhibit Aand do all work ("Agency's Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by 8N8F hereunder. Agency must furnish all |obmr, rnaterim|o, tools and equipment for the performance of Agency's VVnrk. The principal elements of Agency's Work are as follows: e /\ (�onohuoUonof�he8�uc�una�' `' /b\ All necessary grading and peving, including beckfiU of excavations and restoration of disturbed vegetation on BN8F's right-of-way; (c) Provide suitable drainage, both temporary and permanent; (d) Intentionally left blank; /e\ Intentionally left blank; 0l Intentionally left blank (o) Provide appropriate pedestrian control during construction; (h) Intentionally left blank U) Installation and maintenance of an 0-ft. high fence and/or concrete combination (throw fence) onthe outside barrier ofthe Structure; S 15 U) Job site cleanup including removal ofall construction materials, concrete debho, surplus soi|, refuse, contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF, 7. Agency must apply and maintain said D.C.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 Unlek/ operations PyBN8F and its facilities. 9. For any future inspection ormaintenance, either routine orotherwise, performed by subcontractors on behalf of the Aoency. Agency ohmU 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 personne|. Agency ohm||: comply with all of BN8F's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNGF'o Internet VVaboiba ,http:8bnsfcxontnaobmr.corn/'; notify BNSFwhen, pursuant tothe requirements ofExhibit C.aflaggorisrequired to be present; pronure, and have approved by BN8F's Risk Management Oepartnnent, Railroad Protective Liability insurance. 10. Agency must require its contractor(s) tonotify BNGF's Roadmasterat least thirty C30> calendar days prior to requesting a DN8F flagman in accordance with the requirements of Exhibit {} attached hereto. /\ddUUona|k/. Agency nnuo1 require its contractor(s) to notify BN8F'o Manager ofPublic Projects thirty (30) calendar days prior tocommencing work on BN8Fproperty ornear BN8Ftracks. 11. Agency or its contractor(s) must oubrnb a digital of any plans (including calculations in English Units) for proposed shohO0, hs|sexvod«orcribbing to be used over, under. or adjacent to BN8F's tracks to BN8F'e Manager ofPublic Projects for approval. The shoring, fa|aam/orkorcribbing used byAgency's contractor shall comply with the BNBF Bridge Requirements set forth on Exhibit F and all applicable requirements promulgated by state and federal agenoies, departnneOts, commissions and other |egin/oUxe bodies. If necessary, Agency must submit e digital copy of professionally engineered demolition p|en, as set forth in Exhibit CS, with applicable calculations toBMSF'aManager ofPublic Projects. 12. Agency must include the following provisions in any contract with its provider(s) performing work on said Project: (a) The Provider |splaced qnnotice that fiber optic, communication and other cable lines and oyobanln (collectively, the "Lines") owned by various ba|aconnnnunioaUona companies may be buried on BNSF'n property or right-of-way. The locations of these Lines have been G 16 included on the plans based on information from the telecommunications companies. The Provider will be responsible for contacting BNSF and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Provider must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The Provider must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) The Provider will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Provider must cooperate fully with any telecommunications company (ies) in performing such rearrangements. (c) Failure to mark or identify these Lines will be sufficient cause for BNSF to stop construction at no cost to the Agency or BNSF until these items are completed. (d) In addition to the liability terms contained elsewhere in this Agreement, the Provider hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Provider, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Provider, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or 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 17 (RCW Title 51) and assumes potential liability for all actions brought by its employees. 13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article III and IV; and (ii) the provisions set forth in Exhibit C, Exhibit C-I, and Exhibit F attached hereto and by reference made a part hereof. 14. Except as otherwise provided below in this Section 13, all construction work performed hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following: (a) All work performed under such contract or contracts within the limits of BNSF's right-of-way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; (c) No work will be commenced within BNSF's right-of-way until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF an agreement in the form of Exhibit C-I, and (ii) delivered to and secured BNSF's approval of the required insurance; and (d) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's representative four (4) weeks advance notice of the proposed times and dates for work windows. BNSF and Agency's contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor's expenses for the Project. (e) The plans and specifications for the Project must be in compliance with the Bridge Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein. 15. Agency must advise the appropriate BNSF Manager of Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. Additionally, Agency must notify BNSF's Manager of Public Projects, in writing, of the 18 date on which Agency and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project. 16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE 1I 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 19 P roi ect. BN8F will not begin the roi|nJod work (including, without Unnitadon, procurement of mupp|ias, equipment or nnatoha|o\ until written notice to proceed is received from Agency. ARTICLE IV) JOINT OBLIGATIONS IN CONSIDERATION of the prennises. the parties hereto rnutuo|b agree to the 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be p[onnotk/ commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthennons, any changes or modifications during construction which affect BN8F will be subject to BNGF's written approval prior tothe commencement ofany such changes Vrmodifications from the hJW 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 P construction schedule for all Project vvo[h. The parties hereto mutually agree that ONGF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute m breach of this Agreement by BN8F and will not subject BN8F to any |iabi|ih/. Regardless of the requirements of the construction schedule, BNSF Peoen/oa 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 (BN8F or its related railroads) or to protect persons or property on or near any BNGF owned property. BNGF will not he liable for any additional costs or expenses naau|Ung from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor bJrneo 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 byBNGF. 4. BNGF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in m manner contrary to the plans and specifications approved by BNGF; (ii) Agency (Or any of its contractors), in BN8F'e opinion, prosecutes the Project work in a manner that is hazardous to BN8F pnopedv, facilities or the safe and expeditious movement ufrailroad traffic; 8ii\ the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay BN8F for the Temporary Construction License orthe Easement pursuant toArticle ||. 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 BNGF's Division 0 20 Engineer or Vnb| proof ofadditional insurance has been delivered to and accepted by F. BNSIn the event of o breach of U) this Agreement,00 the Temporary Construction License, or (iiU the Eaoenmert. BN8F may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise toany liability onthe part ofBNGF. BNQF'ohght tostop the work iein addition to any other rights BNSF may have including, but not limited to, actions or suits for darnaQmo or lost profits. In the event that BNGF desires to stop construction vvo,h on the Project, BNSF agrees to immediately notify the following individual in writing: Robin 7lschmak City Engineer City ofTukwila 6300 Gouthoenber B|Vd, Suite 100 Tukwila, WA 98180 5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BN8F, the terms of this Agreement and all so#eb/ requirements ofBNSF. |fBN8F determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BN5F 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 aaUnhsobon. If BN@F feels the situation is not being corrected in an expeditious nlannar. BN@Fvvi|| immediately notify RobmTisChnl8h City Engineer City of Tukwila 6300 Smuthcmnter B|vd, Suite 100 Tukwila, WA 98188 for appropriate corrective action. G. 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 fVnna (eg. PR-1240 or the equivalent); any and all payment Voucher forms requesting FMVVA reimbursement (eg. PR-20 or the equivalent) or any other such project authorization or funding naoonda as BNGF may request from time to time. Such records will be provided bythe Agency to BNSF on o mutually agreeable schedule or within two (2) months after such records are generated or received by the Agency. Section 130 Documentation shall be provided toBNGFinthe one of the following manners: 11 21 Manager Evidence Preservation 25OOLou MmnkDrive, AOB-3 Fort Worth, Texas 70131 {}relectronically to: Manager Evidence Preservation Se.ctionl30@bnsf.com 7. Pursuant to this section and Article ||. Section 0 herein, Agency must mainnbunxe BN8F in full for the actual costa of all work performed by RNGF under this Agreement (including Coxes, such as applicable ao|ea and use teVoe, business and occupation texes, and similar taxes), |ema BN8F'o Share as set forth in Article |V. Section 8 herein, B/QSF'o8hana must be paid upon completion of the Project. In any action brought under this Agneernant, the prevailing Party ahoU be entitled to recover its actual costs and attorneys fees pursuant to California [|ixi| Code Section 1717, as well as other litigation coota, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys 0amo and litigation costs incurred in connection with the enforcement of o judgment arising from such action or proceeding. O. All expenses detailed in statements sent to Agency pursuant to Article 11, Section O herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal ReQV|aUona, and the Federal -Aid Policy Guide, U.S. Department of TnmnoportaUon, as amended from time totime, which manual is hereby incorporated into and made o part of this Agreement by reference. The parties mutually agree that BNSF'e preliminary engineering, deoign, and contract preparation Costs described in Article ||. Section 2 herein are part of the costs of the Project even though such work may have preceded the date ofthis Agreement. S. The parties mutually agree that neither construction activities for the Project, no[ future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year. Emergency work will be pemmifted only upon prior notification to BNBF's Network Operations Center (telephone number: 800032-5452). The parties hereto mutually understand and agree that trains cannot be subjected to de/gydu[in0thiaUnneperiod. 10. Subject to the restrictions imposed by Article |\( Section S above, the construction of the Project will not commence until Agency gives BN8Fs 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, 22 11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the following terms upon completion of construction of the Project: (a) Agency will own and maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for the costs of maintenance performed by BNSF pursuant to this subsection (b). (b) Agency must, at Agency's sole cost and expense, keep the Structure painted and free from graffiti. (c) Agency must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto. (d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. (e) Agency must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals. (f) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or its contractors and/or agents must procure and maintain the following insurance coverage, which may be changed from time to time: Railroad Protective Liability insurance naming only BNSF as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard IS© form CG 00 35 12 04 and include the following: 23 * Endorsed toinclude the Pollution Exclusion Amendment ° Endorsed to include the Limited Seepage and Pollution Endorsement. * Endorsed toremove any exclusion for punitive damages. * Endorsed toinclude Evacuation Expense Coverage Endorsement. * Noother endorsements restricting coverage may beadded, • The original policy must be provided to BNSF prior to performing any work orservices under this Agreement w Definition of "Physical [>arnoge to Property" shall be endorsed to read: "means direct and accidental loss ofordamage toall property owned by any named insured and all property in any named insured' care, cuotody, and control arising out of the acts or omissions ofthe contractor named onthe Declarations. As used in this paragraph, ^BNSFmeons "Burlington Northern Santo Fe. LLC". ^BNGF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates ofeach. In lieu of providing a Railroad Protective Liability Policy, Agency may participate in BNSF's Blanket Railroad Protective Uobi|hx Insurance Policy if available to Agency or its contractors. The |inniCu of coverage are the same asabove. 12. Agency hereby grants to BN@F, at no cost orexpense to BN@F, 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 En-qlish Units) to BNSF, as well as one met ofcomputer diskettes containing as built CA[) drawings of the Structure and identifying the software used for the CAD drawings. The "as built p|ans" must comply with the Bridge Requirements set forth on Exhibit F and depict all information in BN8F engineering stationing and mile post pluses. The "as built plans" must also include plan and profile, structural bridge drawings and spedficuUoDs, and drainage plans. All improvements and facilities must be shown. 14. Subject to the restrictions imposed by Article |V Section 8 above and in accordance with the requirements of Article 111, Section 9 above, Agency must notify and obtain prior authorization from BNGF's Manager of Public Projects before entering BN8F's right-of-way for INSPECTION OR MAINTENANCE purposeo, and the BN8F Manager ofPublic Projects will determine if flagging is required. |fthe construction work hereunder is contnacted. Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit 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 BN8F shall deem it necessary or desirable in the futun», in the performance of its duty as a common carrier, to raise or lower the grade or change the 14 24 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 25 with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 33. Any notice provided for herein orconcerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified nnei|, return receipt requested, tothe parties at the following addresses, E8NSF: BNSF'sManager ofPublic Projects Richard VVVVeqner 2454Occidental Avenue South Ste 2[] Seattle, VVAS8134 208.625.6152 Richanj.VVaqOe[��BN8F.conl RobiOTisuhOmak City Engineer City ofTukwila 83OOSouthcente[Blvd, Suite 10O Tukwila, VVAS8188 16 26 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. ITNESS: WITNESS: (Lit& tk-B. 17 BNSF R IL AY CO PANY By. Printed Name: Richard Wagner Title: Manager Public Proiects NW Division — ID, WA & BC CY CITY •F T By: Printed Name: Title: Vayor, Citv ofTukwil 27