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HomeMy WebLinkAboutReg 2019-02-04 Item 4F - Contract Amendment #2 - Increased Flagging and Railroad Costs for Boeing Access Road Over BNRR Rehabilitation with BNSF for $150,000COUNCIL AGENDA SYNOPSIS Initials Meeting Date 02/04/19 Prepared by HH /e Mayor's review Council review ITEM INFORMATION ITEM No. 4.F. STAFF SPONSOR: HENRY HASH ORIGINAL AGENDA DATE: 02/04/19 AGENDA ITEM TITLE Boeing Access Road over BNRR Bridge Rehabilitation Project Additional BNSF Railroad Flagging Expenses CATEGORY ❑ Discussion Mtg Date I Motion Date 02/04/19 ❑ Resolution Mtg Date ❑ Ordinance Mtg Date II Bid Award ❑ Public Hearing Mtg Date ❑ Other Mtg Date Mtg Mtg Date SPONSOR ❑Council ❑Mayor ❑HR ❑DCD 11Finance ❑Fire ❑TS DP&R ❑Police 11PW ❑Court SPONSOR'S Council is being asked to approve additional costs for Burlington Northern Santa Fe's SUMMARY (BNSF) railroad flagging and inspection fees during construction of the Boeing Access Road over BNRR Bridge Rehabilitation Project. The original contract with BNSF to work over the railroad's right-of-way was $149,000, $300,000 was added on 5/7/18, and now additional fees of $150,000 are necessary to finish the project. Council is being asked to approve additional costs for BNSF railroad flagging in the amount of $150,000. REVIEWED BY ❑ C.O.W. Mtg. ❑ CDN Comm ❑ Finance Comm. ❑ Public Safety Comm. ® Trans &Infrastructure ❑ Arts Comm. ❑ Parks Comm. ❑ Planning Comm. DATE: 01/23/19 COMMII"IEE CHAIR: ZAK IDAN RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE Department of Public Works Unanimous Approval; Forward to Consent Agenda COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $150,000.00 $3,875,668.00 $ Fund Source: 104 FUND ARTERIAL STREETS (PAGE 11, 2019 CIP) Comments: Grant funded MTG. DATE RECORD OF COUNCIL ACTION 02/04/19 MTG. DATE ATTACHMENTS 02/04/19 Informational Memorandum dated 01/18/19 2019 CIP, page 11 BNSF Agreement Minutes from the Transportation & Infrastructure Committee meeting of 1/23/19 47 48 Allan Ekberg, Mayor Public Works Department - Henry Hash, Director INFORMATIONAL MEMORANDUM TO: Transportation and Infrastructure Committee FROM: Henry Hash, Public Works Director di. - BY: Steve Carstens, Senior Program Manager CC: Mayor Ekberg DATE: January 18, 2016 SUBJECT: Boeing Access Rd over BNRR Bridge Rehabilitation Project 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:1PW Eng1PROJECTSIA• RW 8 RS Projects\Boeing Access Rd Bridge Rehab (99410408)102 Funding and FinancelContractslBNSFIInfo Memo bnsf flagging 20190118 gl.docx 49 50 PROJECT: DESCRIPTION: JUSTIFICATION: STATUS: MAINT. IMPACT: COMMENT: CITY OF TUKWILA CAPITAL PROJECT SUMMARY 2019 to 2024 Boeing Access Rd over BNRR Bridge Rehabilitation Project No. 99410408 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 spalls, exposed rusty anchor bolts and reinforcements and some cracks. The existing railings do not meet current bridge standards. Type, size, and location draft report (specifically required for bridges) was completed in 2005. Federal grant 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 be reduced. 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 $000's) Through Estimated 2017 2018 2019 2020 2021 2022 2023 2024 BEYOND TOTAL EXPENSES Design 1,419 1,419 Land (RAN) 0 Const. Mgmt. 301 1,833 157 2,291 Construction 6,724 1,050 7,774 TOTAL EXPENSES 1,720 8,557 1,207 0 0 0 0 0 0 11,484 FUND SOURCES Awarded Grant 1,232 6,971 840 9,043 Proposed Grant 0 Fund Balance -Bond 2,441 2,441 Mitigation 0 City Oper. Revenue (1,953) 1,586 367 0 0 0 0 0 0 0 TOTAL SOURCES 1,720 8,557 1,207 0 0 0 0 0 0 11,484 2019 - 2024 Capital Improvement Program 11 51 52 16-151 Council Approval 11 /21 /16 OVERPASS AGREEMENT BNSF File No. BF10009078 Boeing Access Rd U.S. D.O.T. No. 085597G LS 051 MP 07.020X Seattle Subdivision This Agreement ("Agreement"), is executed to be effective as of WAo[ 'Z & ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delawhre corporation ("BNSF"), and the City of Tukwila, a political subdivision of the State of Washington ("Agency"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of Tukwila, State of Washington; and WHEREAS, Agency desires to widen and improve the existing structure known as the Boeing Access Rd Bridge, D.O.T. No. 085597G. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I) SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of the proposed improvements to the Boeing Access Rd Bridge (hereinafter referred to as the "Structure"), more particularly described on the Exhibit A, which is attached hereto and incorporated herein, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation. Additionally, temporary controls during construction must comply with Section 8A-08, "Temporary Traffic Control Zones" of the Manual of Uniform Traffic Control Devices ("MUTCD"), U.S. Department of Transportation. 1 53 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 54 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. 3 55 4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or Agency's contractor in connection with the Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse BNSF for all such emergency work. 5. BNSF may charge Agency for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for completed force -account work within thirty (30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end. Finance charges will be noted on invoices sent to Agency under this section. ARTICLE III) AGENCY OBLIGATIONS In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows: 1. Agency must furnish to BNSF plans and specifications for the Project. One digital copy of said plans (reduced size 11" x 17"), together with calculations, and specifications in English Units, must be submitted to BNSF for approval prior to commencement of any construction. BNSF will give Agency final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and 4 56 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:l/www.bnsf.com/communities/fags/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project.. 6. Agency must construct the Project as shown on the attached Exhibit A and do all work ("Agency's Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency's Work. The principal elements of Agency's Work are as follows: (a) Construction of the Structure; (b) All necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF's right-of-way; (c) Provide suitable drainage, both temporary and permanent; (d) Intentionally left blank; (e) Intentionally left blank; (f) Intentionally left blank (g) Provide appropriate pedestrian control during construction; (h) Intentionally left blank (I) Installation and maintenance of an 8-ft. high fence and/or concrete combination (throw fence) on the outside barrier of the Structure; 5 57 (j) Job site cleanup including removal of all construction materials, concrete debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF. 7. Agency must apply and maintain said D.O.T. Crossing number 085597G in a conspicuous location on the Structure. 8. Agency's Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities, 9. For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to comply with the provisions of the attached Exhibit C and execute the agreement attached hereto as Exhibit C-1. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF's Internet Website "http://bnsfcontractor.com/"; notify BNSF when, pursuant to the requirements of Exhibit C, a flagger is required to be present; procure, and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. 10. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 11. Agency or its contractor(s) must submit a digital of any plans (including calculations in English Units) for proposed shoring, falsework or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring, falsework or cribbing used by Agency's contractor shall comply with the BNSF Bridge Requirements set forth on Exhibit F and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. If necessary, Agency must submit a digital copy of a professionally engineered demolition plan, as set forth in Exhibit G, with applicable calculations to BNSF's Manager of Public Projects. 12. Agency must include the following provisions in any contract with its provider(s) performing work on said Project: (a) The Provider is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications companies may be buried on BNSF's property or right-of-way. The locations of these Lines have been 6 58 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 59 (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 Ill 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 8 60 date on which Agency and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project. 16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. It is mutually negotiated between the parties that the indemnification obligation shall include all claims brought by Agency's employees against BNSF, its agents, servants, employees or otherwise, and Agency expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes potential liability for all actions brought by its employees. 17. Agency must give BNSF's Manager of Public Projects written notice to proceed ("Notice to Proceed") with the railroad work after receipt of necessary funds for the 9 61 Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from Agency. ARTICLE IV) JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's written approval prior to the commencement of any such changes or modifications from the NW Division Manager Engineering Services. 2. The work hereunder must be done in accordance with the Bridge Requirements set forth on Exhibit F and the detailed plans and specifications approved by BNSF. 3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion, prosecutes the Project work in a manner that is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division 10 62 Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Robin Tischmak City Engineer City of Tukwila 6300 Southcenter Blvd, Suite 100 Tukwila, WA 98188 5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Robin Tischmak City Engineer City of Tukwila 6300 Southcenter Blvd, Suite 100 Tukwila, WA 98188 for appropriate corrective action. 6. Agency agrees to provide, to the BNSF Manager Evidence Preservation, such Project documentation and records as are agreed to between the parties including: any project applications; any letters of approval and/or authorization forms (eg. PR-1240 or the equivalent); any and all payment Voucher forms requesting FHWA reimbursement (eg. PR-20 or the equivalent) or any other such project authorization or funding records as BNSF may request from time to time. Such records will be provided by the Agency to BNSF on a mutually agreeable schedule or within two (2) months after such records are generated or received by the Agency. Section 130 Documentation shall be provided to BNSF in the one of the following manners: 11 63 Manager Evidence Preservation 2600 Lou Menk Drive, AOB-3 Fort Worth, Texas 76131 Or electronically to: Manager Evidence Preservation Section130(�bnsf.corn 7. Pursuant to this section and Article II, Section 6 herein, Agency must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF's Share as set forth in Article IV, Section 6 herein. BNSF's Share must be paid upon completion of the Project. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. 8. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal -Aid Policy Guide, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement. 9. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 800 832-5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period. 10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference D.O.T. Crossing No. 085597G and must state the time that construction activities will begin. 12 64 11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the following terms upon completion of construction of the Project: (a) Agency will own and maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for the costs of maintenance performed by BNSF pursuant to this subsection (b) (b) Agency must, at Agency's sole cost and expense, keep the Structure painted and free from graffiti. (c) Agency must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto. (d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. (e) Agency must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals. (f) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or its contractors and/or agents must procure and maintain the following insurance coverage, which may be changed from time to time: Railroad Protective Liability insurance naming only BNSF as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 12 04 and include the following: 13 65 • 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 66 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 patty 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 67 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 vvhUng and will be deemed sufficiently given when sent by certified nnai|, return receipt requested, tothe parties etthe following addresses: AGENCY: BNGPaManager ofPublic Projects Richard VVWaqnor 2454Occidental Avenue South Ste 2O Seattle, VVAgO134 206.625.6152 Richard.VVmqnor(cDBNGF.corn RobinTischDlak City Engineer City ofTukwila G3O0GouthC8nt8[Blvd, Suite 100 Tukwila, VVAQ8188 (206)431-2455 16 68 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 R4ILWAY COMPANY By.7-41/v( /( Printed Name: Richard Wagner Title: Manager Public Projects NW Division — ID, WA & BC AGENCY Printed Name: Allan Ekberg Title: Mayor, City of Tukwila / 69 70 City of Tukwila City Council Transportation & Infrastructure Committee TRANSPORTATION & INFRASTRUCTURE COMMITTEE Meeting Minutes January 23, 2019 - 5:30 p.m. - Hazelnut Conference Room, City Hall Councilmembers: Zak Idan, Chair; Kate Kruller, Thomas McLeod Staff: David Cline, Henry Hash, Hari Ponnekanti, Ryan Larson, Cyndy Knighton, Jack Pace, Steve Carstens, Mike Perfetti, Gail Labanara, Laurel Humphrey Guest: Todd Bennett, Northwest Hydraulic Consultants, Inc. CALL TO ORDER: Committee Chair Idan called the meeting to order at 5:30 p.m. I. PRESENTATIONS II. BUSINESS AGENDA A. Contract Completion: Major Maintenance of Three Bridges Staff is seeking Council approval of contract completion and release of retainage to Razz Construction, Inc. in the amount of $2,642,339.81 for the Major Maintenance of Three Bridges Project. This project included seismic retrofits and major rehabilitation work on the Beacon Avenue Bridge, Frank Zepp Bridge, and Grady Way Bridge, and was completed on time and under budget. UNANIMOUS APPROVAL. FORWARD TO FEBRUARY 4, 2019 REGULAR CONSENT AGENDA. B. BNSF Flagging and Inspection Services Staff is seeking Council approval of BNSF's increased flagging and inspection costs for the remainder of the Boeing Access Road over BNRR Bridge Rehabilitation Project. An Overpass Agreement currently in effect allows the City and its contractor to work in the BNSF right-of-way and paysforthe required railroad flagging and inspection services performed by BNSF. The original flagging and inspection fees were estimated at $149,428, and Amendment No. 1 approved an additional $300,000. BNSF is requesting an additional $150,000 to finish the project. Committee members expressed frustration at the continued cost increases and asked why BNSF cannot provide better estimates at the beginning of the project. BSNF determines the number of flaggers based on safety risks and the City must pay. Councilmember Kruller stated she will bring this up with National League of Cities. Staff does not expect any more flagging charges before the project completion. The total project is expected to cost below the total budget as well as below the total Federal Bridge Replacement Advisory Committee grant. Chair Idan suggested assuming a higher number of flaggers in future dealings with BSNF. UNANIMOUS APPROVAL. FORWARD TO FEBRUARY 4, 2019 REGULAR CONSENT AGENDA. C. Grant Acceptance: Green the Green Staff is seeking Council approval to sign an agreement with the Rose Foundation for $25,000 for the Green the Green Project. Green the Green is a public -private partnership that will restore sections for the Green/Duwamish River to provide habitat for ESA -listed Puget Sound Chinook salmon. The Rose Foundation funding requires no City match and will be used to extend the project area to the south, restoring an additional 450 lineal feet of shoreline with native vegetation. UNANIMOUS APPROVAL. FORWARD TO FEBRUARY 4, 2019 REGULAR CONSENT AGENDA. 71