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HomeMy WebLinkAboutSpecial 2019-02-11 Item 2F - Contract Amendment #2 - Increased Flagging and Railroad Costs for Boeing Access Road over BNRR Rehabilitation with BNSF for $150,000• CIL GENDA SPSIS St*ift *it q.attka* a444944.' 4VV, Meeting Date Prepared by Mayor's r view Council review t<6-p-tr 02/04/19 HH 4i," ' ITEM INFORMATION ITEM No. Spec 2.F. STAFF SPONSOR: HENRY HASH ORIGINAL AGENDA DATE: 02/04/19 AGENDA ITEM TITLE Boeing Access Road over BNRR Bridge Rehabilitation Additional BNSF Railroad Flagging Expenses Project CATEGORY C Discussion VI Mohan Date 02/04/19 El Resolution Mg Date • Ordinance . Bid Award Public Hearing • Other Mtg Date Mg MtgDate Mtg Date Mtg Date Mtg Date SPONSOR jCoundI •Mayor EHR CDC) Finance Fire EITS OP&R JPoIice DPW EICourt 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. 1 CDN Comm Ill Finance Comm. Comm. CHAIR: • Public Safety Comm. IA Trans &Infrastructure 1 Arts Comm. • Parks • Planning Comm. DATE: 01/23/19 COMMI i 1EE ZAK IDAN RECOMMENDATIONS: SPONSOR/ADMIN. CommrfrEE Department of Public Works Approval; Forward to Consent Agenda Unanimous 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 COUNCILACTION 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 9 3 94 Allan 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 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. Jacobs Main CM Contracts BNSF Flagging and Inspection Original BNSF Amendment No. 1 New BNSF Amendment No, 2 PCL Change Orders to date No. 1 - 20 Construction 25% Contingency Total Contract Budget $1,785,249.83 $2,291,000.00 149,428.00 300,000.00 150,000.00 579,481.00 $2,964,158.83 1,584,668.00 Grant $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 Eng1PROJECTSlAii RW & RS Projects1Boeing Access Rd Bridge Rehab (99410408)102 Funding and Finance1Contracts1BNSRInfo Memo bnsf flagging 20190118 gl.docx 95 96 CITY OF TUKWILA CAPITAL PROJECT SUMMARY 2019 to 2024 PROJECT: Boeing Access Rd over BNRR Bridge Rehabilitation Project No. 99410408 DESCRIPTION: Rehabilitate the existing bridge with a 340' long concrete or steel bridge structure. It will be 6 lanes and have a sidewalk on one side. The existing bridge is structurally and seismically deficient. Several pedestals are leaning, have concrete JUSTIFICATION: spells, exposed rusty anchor bolts and reinforcements and some cracks. The existing railings do not meet current bridge standards. Type, size, and location draft report (specifically required for bridges) was completed in 2005. Federal STATUS: 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. MAINT. IMPACT: Maintenance will be reduced. COMMENT: Bridge will be rehabilitated in phases to allow continued traffic use. Federal bridge grant of $9,745,600 requires a 20% local match. A bond issue for the City match was issued in 2015 with the Interurban Ave S. FINANCIAL Through Estimated in $000's) 2017 2018 2019 2020 2021 2022 2023 2024 BEYOND TOTAL EXPENSES Design 1,419 1,419 Land (R/VV) 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 97 98 16-151 Council Approval 11/21/1O OVERPASS AGREEMENT BN8FFjka No. BF10009070 Boeing Access Rd U.8.O.O.T No.Q85597G LGO51 yNPO7.02D* Seattle Subdivision This baeffective amof ("Effective Uate^), by and between 8N8F RAILWAY COMPANY. o Oe|awbno corporation /^BNSF'1, and the City of TuMwUa, a political subdivision of the State of Washington ("Agency"). RECITALS: WHEREAS, BN8F oxvoo and operates a Umn of railroad in and through the City of Tukwila, State of Washington; and WHEREAS, to widen and improve the existing structure known oothe 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 andouffioencyofvyhichanaherebvaoknom/|odoad. the parties agree eafollows: ARTICLE 1) SCOPE OF WORK 1. The bann "Project" as used herein includes any and all work related to the construction ofthe proposed1m to the Boeing Access RdBridge (hereinafter referred to as the "Structure), more particularly described on the Exhibit A, which is attached hereto and incorporated herein, indudin0, but not |in1|b*d to, any and all changes to telephone, te|e0naph, signal and electrical lines and appurtenmnces, temporary and permanent track work, hanoing. Qroding, a[tmneUono to or now construction of drainage haci||Lhsa, preliminary and construction engineering and contract preparation. AddiUona||y, temporary controls during construction rnuoY comply h Section 8Ar08. "Temporary Traffic Control Zones" of the [Nmnum| of Uniform Traffic Control Devices /^MUTC>O^\. U.S. Department ofTransportation. 99 ARTICLEU1) BNSF OBLIGATIONS In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BN8Fagrees oofollows: 1. Upon Agency's paymenttoBN8Fofan administrative fee inthe sum ofzero and No/100 Dollars /$O.00\ together with the Temporary Construction License Fee in the sum of $Oand No/1OODollars ($O.00).BNSFhereby grants hoAgency, 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 BNGF's right-of-way described further on Exh|bitAr1. excepting and reserving BN8F'a r`hts, and the rights of any others who have obtained, or may obtain, permission or authority from BNGF. to do the (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelinesand other facilities oflike character Upon. over orunder the surface ofsaid right-of-way; (b) {}onotruct, operate, nnoiotoin, renew and/or relocate upon said right-of- way, without limitation, such hgcU|Ues an the 8N8F may from time to time deem oppnopriate, provided such facilities do not materially interfere with the Agency's use of the Structure; /o\ Otherwise use o[operate the hght-of-weyaoBN3Fmay from time totime deem oppnopr|obe, provided such use or operations does not rnoteha|k/ interfere with the Agency's use ofthe Structure; and (d) Require the Agency orits contractor to execute aTemporary Construction Crossing Aoroenlent, for any temporary crossing requested to aid in the construction of this Project. The term of the Temporary Construction License begins onthe Effective Date and ends on the ead|sn of(U 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 |nnp|iad from the use of any word or words herein contained. The Tonmporan/ Construction License is for construction of the Structure on|y and shall not be used bY Aqency for anY other purpose. Agency h | d s and agrees that Ab U 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. 2 100 Upon Agency's payment to BNSF of the additional eunn of$ zero and No/100 Dollars such payment tobgmade within thirty 00days ofissuing the Notice to Proceed pursuant to Article U|. Section 16 ofthis Agreement, and provided further that Agency is in compliance with the term and conditions of this Agnaenlont. BN8Fw/|| grant to Agency, its successors and asoigno, an meoanlont (hereinafter neUod. the "Easement") to enter upon and use that portion ofBNSF's right-of-way as is necessary to use and maintain the Gtruoturo, oUbabondaUy in the form of Exhibit B attached to this Agreement. If Agency'fails topay BNSFwithin the thirty day time period set forth inthe preceding sentence, BN8F may stop construction of the Project until full payment is received byBN8F 2- BN8F will furnish all labor, materials, top|a, 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 O attached hereto and made o port hereof. In the event construction on the Project has not commenced within six G months following the Effective Date, BN8F may, in its sole and absolute dioomyt|�, revise the nos enUnnebam set forth in said Exhibit D. In such avent, the revised coot estimates will become mpart ofthis Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit O not specifically mentioned therein may be included as a pod of this Agreement upon written approval ofAgency, which approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF: (a) Procurement of matehaka, equipment and supplies necessary for the railroad work; 8d Preliminary engineering, design, mnd contract preparation; (c) Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C; k8 Furnishing engineering and inspection as required in connection with the construction of the Project; bd Providing mcontract project coordinator, atAgency's expense, hoserve oo a project manager for the Project 3.BN8Fwill doall railroad work set forth inArticle U.Section 2above onanactual cost basis, when BNSF, in its sole diooraUon, determines it in required by its labor mgnaonnenta to perform such work with its own employees xvork|oO under applicable collective bargaining agreements. 101 4. Agency agrees to reimburse BN8F for work of an emergency a[ucaused by Agency or Agency's contractor in connection with the Project which 8N8F doenln is reasonably necessary for the hnnnodhahe restoration of railroad openeUuna, mrfor the protection of persons or BN8F 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. BNOF may charge Agency for insurance expenses, including self-insurance expenses, when such expenses cover the cost ofEmployer's U bi|ity(k7c(uding.xvdhnut 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 u|Unnote liability for injury, |omu or death toBN8F'semployees, ifany. 6. During the construction of the Project BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BN@F under this Agency must reimburse BNRF for completed force -account work within thirty (30) days of the date of the invoice for such work. Upon completion of the Project, BNSFv«i|| send Agency odotoi|ed invoice of final cooto, segregated as to labor and materials for each item in the recapitulation shown on Exhibit O. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety (SO) days of the date of the hno| invoice. BNSFvvi|| oaaeos a finance charge of .033% per day (12Y6 per annu on any unpaid sVnno 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 dote payment is made orthe date postmarked on the payment. Finance charges will be assessed on delinquent nVDna and other charges as of the end of the month and will he reduced by amounts in dispute and any unpootedpayments received bythe nlonth'send. 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 BN8F p|mUn and specifications for the Project. One digital copy of said plans (reduced size 11^ x1T1. together with calculations, and specifications in English Units, must be ouhnlithsd to BN8F for approval prior to commencement of any construction. BNGF will give Agency final written approval of the plans and specifications substantially in the form of Exhibit E' attached to this Aonaannent and made o part hereof. Upon BN8F'o final written approval of the plans and specifications, said plans and specifications will become part ofthis Agreement and are hereby incorporated herein. Any approval of the plans and specifications by RNGF shall innoway obligate 8yJ@F|nany manner with respect tothe finished product design and/or construction. Any approval by BN8F shall mean only that the plans and 4 102 specifications meet the subjective standards cfBN8F.and such BNSFohoU not be deemed to mean that the plans and specifications or con ` oUon is � structurally sound and appropriate or that such plans and specifications meet opp|bmh: regulations, laws, statutes orlocal 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, osrequired |nExhibbCandaoapprUvodbvBNGFoapmrtofthep[anoand 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 BNGFsUtility Accommodation Manual (http://www.bnsf-com/communities/faqs/pdf/utility.odo, 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.. 0. Agency must construct the Project 000hovvnonthaattmohedEnhibitAandduaU work ("Agency's VVorh^\ provided for in the plans and specifications for the Project, except railroad work that will be performed by BN8F hereunder. Agency must furnish all |abDr, nnabada(s, tools and equipment for the performance of Agency's Work. The principal elements ofAgency's Work are asfollows: bd Construction ofthe Structure; (b) All necessary grading and paving, including boohfiU ofexcavations and restoration ofdisturbed vegetation on ON8Fa right-of-way; (c) Provide suitable drainage, both temporary and permanent; (d) Intentionally left blank; (e) Intentionally left blank; Al Intentionally left blank io\ Provide appropriate pedestrian control during construction; (h) Intentionally left blank (i) Installation and maintenance of an 8-ft. high 0anna and/or oononake combination (throw fence) onthe outside barrier ofthe Structure; 5 103 U\ Job site cleanup including rannove| of all construction nnabahmhs, 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 o conspicuous location on the Structure. O' Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and Unne]y operations of BN8F and its facilities. S. For any future inspection or maintenance, either routine or otherwise, performed bysubcontractors nnbehalf 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 EwhibitO-1. Prior to performing any future maintenance with its own poceonno{. Agency shall: comply with all of BNGF'a applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNGF\* Internet VVebaitm "hitp:Vbnshcontrantor'con/^; notify BNSF xvhen, pursuant to the requirements of Exhibit C. e flaggm/ is required to be present; procure, and have approved by BN8F'o Risk Management Oaportment, Railroad Protective Liability insurance. 10^ Agency must require its mm BN8PoRoadmmster at least thirty (30) calendar days prior to requesting o BNGF flognnao /n accordance with the requirements of Exhibit {} attached hereto. Additionally,Agency must require its contractor(s) to notify BNSF's Manager ofPublic Projects thirty /30\ calendar days prior tocommencing work onBNGFproperty ornear 8NSFtracks. 11 Agency or its contractor(s) must submit a digital of any plans (including calculations in English Units) for proposed ahohng, fo|oewvorb or cribbing to be used over, under, or adjacent to BNGFo tracks to BN8Fn Manager ofPublic Projects for approval. The shoring, fa|se orknrmibb|ng used bvAgency'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, oonlnniooiono and other legislative bodies. If necessary, Agency must submit a digital copy of professionally engineered demolition p|an, as met forth in Exhibit G. with applicable calculations hoBN8F'oManager ofPublic Projects. 12. Agency must include the following provisions inany contract with itsprovider(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 BN8Fa property or right-of-way. The locations of these Lines have been 6 104 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 7 105 (RCWTitle 51) and assumes potential liability for all actions brought bvits employees. 13. Agency must require compliance xvdh the obligations mat forth in this agreement, including Exhibit C and Exhibit C4, and incorporate in each prime contract for construction of the Project, or the specifications therefor the provisions set forth in Article ||| and |V; and (|i)the provisions set forth in Exhibit C. Exhibit {}-iand Exhibit attached hereto and by reference made apart 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 performedunder such contract orcontracts within the limits of BNGF's right-of-way must be per -formed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; 0d Changes or modifications during construction that affect safety orBNGF operations must be subject to BNSF's approval; (c) Nowork will be commenced within BN8F's U| each ofthe prime contractors employed in connection with said work must have (i) executed and delivered to BNSF an agreement in the ybrn of ExhibitC'|. and (U) delivered to and secured ONGF'o approval of the required insurance; and (d) To facilitate scheduling for the Project, Agency shall have its contractor ive BNSF's representative four (4) weeks advance noticeof the 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 ofPublic Projects, in writing of the completion date of the Project within thirty (30)days after such completion date. Additionally, Agency must notify BNSF'nManager ofPublic Projects, |nwriting, ofthe 8 106 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 9 107 Project. BN8F will not begin the railroad work (including, without UnnitaUon, procurement of nupp|ies, equipment or nnataUo]o> until written notice to proceed is received from Agency. ARTICLE IV) JOINT OBLIGATIONS IN CONSIDERATION of the prem|ses, the parties hereto mutually agree to the 1. All work contemplated in this Agreement must be performed in m 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. FUdhernnone, any changes or nl8difioaUo0n during construction which affect BNSF will be subject to BN8F'o written approval prior to the commencement of any such changes or modifications from the NW Division Manager Engineering Services. 2. The work hereunder must bedone |naccordance with the Bridge set forth on Exhibit F and the detailed plans and specifications approved by BNSF. 3. Agency must require its the construction schedule for all Project work. The parties hereto mutually agree that BNGF"s failure to complete the railroad xxod< in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNGF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNGF na$an/oa the right to reallocate the labor forces assigned to complete the railroad work ihthe event of an emergency to provide for the immediate restoration of railroad operations of either /BN8F or its related railroads) or to protect persons o/ property on or near any BNGF owned property. BNSF will not be liable for any additional costs or expenses paeu|Ung from any such reallocation of its labor forces. The parties mutually agree that any reallocation oflabor forces by BN8F pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach ofthis Agreement byBNGF. 4. BNSFwill have the right to stop construction work onthe 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 11, 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 10 108 Engineer or until proof ofadditional insurance has been delivered to and accepted by BN8F. In the event ofa breach of(U this Agreement, UU the Temporary Construction License, or i the Emmepnent. BNSF may immediately baMmkl'to the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the port of BNSF BNGF'a right to stop the work is in odd/bon to any other rights BNGF may have inn|ud/p0, but not limited to, actions or suits for damages orlost profits. |nthe event that BN8Fdesires hostop construction work qn the Project, BNSF agrees to immediately notify the following individual in writing: Robin 7lachnmok City Engineer City 0fTukwila 0300 Southoerdar8|Vd. Suite 100 Tukwila, VVAS8188 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 R8bnTisachmek City Engineer City ofTukwila 83OO8outhuenterBlvd, Suite 100 Tukwila, VVA9O1OO 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: 11 109 Manager Evidence Preservation 2O8OLou MenkDrive, /\OB-3 Fort Worth, Texas 78131 Or electronically to: Manager Evidence Preservation Section1 conl 7. Pursuant to this section and Article |!. Section herein, Agency must na|nnbunee 8N8F in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and Use taxeo, business and occupation [axao, and similar taxes), |eea BNGF's Share as set forth in Article |V. Section 8 herein. BN8F`oShare must bepaid upon completion ofthe Project. |nany action brought under this Agreement, the prevailing Party shall baentitled to recover its actual costs attorneys foes pursuant to California Civil Code Section 1717, as well as other litigation coats, including expertwitness fees. The prevailing Podv shall also be entitled to recover all actual attorneys haas and litigation costs incurred in connection with the enforcement of judgment arising from such action or proceeding. 8. All expenses detailed instatements sent to Agency pursuanttoArticle 118ectio 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 11, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement. g. The parties mutually agree that neither construction activities for the Project, future maintenance ofthaStmotunaoncenomp/eted.wiUbepermitteddminQthe fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BN8F'o Network Operations Center (telephone number: 800'832-5452\. The parties hereto nnutVo||y understand and agree that trains cannot be subjected to delay during this time period. 10. Subject to the restrictions imposed by Article |V, Section S above, the construction of the Project will not commence until Agency gives BNGF)$ Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference O.{}T.Crooaing No. O855g7Gand must state the time that construction activities will begin. 110 11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated /n Exhibit F, BNSF and Agency agree bJthe following terms upon completion ofconstruction of the Project: (a) /\0encym/iUownondrnaintain.at its sole cost and expense, the Structure, the highway oppnoaohen, and appurtenances theneto. UghUng, 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 hoperforming any such maintenance onthe Structure. In the event such maintenance involves emergency repoins. BNSF will notify Agency atits earliest opportunity. Agency must fully reimburse BNSF for the coats of maintenance performed by BNSF pursuant to this subsection 8d Agency must, at Agency's sole cost and expense, keep the Structure painted and free from graffiti, (c) Agency nnuod provide BNSF with any and all necessary permits and maintain roadway traffic controls, atnocost toBNSF, 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 aepmneby 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. /D IfAgency (including its contractors and or BN8F, on behalf of Agency, performs (i) eKenabnna or modifications to the Structure, i) any maintenance or other m/nd« on the Structure with heavy tOols, equipment or machinery at ground surface level horizontally within 35''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 310.000.000 in the aggregate. The policy shall be issued on a standard ISO form C<3003512O4and include the following: 13 ill ° Endorsed bzinclude 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 bo provided tPB&/SFprior to performing any work orservices under this Agreement ° Definition of "Physical [)onlage 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' cane, custody, and control arising out of the acts or omissions ofthe contractor named onthe Declarations. As used in this paragraph, ^ByJ8Fnlegna "Burlington Northern Santa Fe, LLC", ^8NE;F RA||0VAy COMPANY" and the subsidiaries, successors, assigns and affiliates ofeach. In lieu of providing a Railroad Protective Liability Policy, Agency may participate Railroad Protective Liability Insurance Policy if available to /\oanoy orits contractors. The ||rnba of coverage are the same aoabove. 12- Agency hereby grants to BNSF, at no cost or expense to BN8F,m permanent right ofaccess from Agency property toBNGFtracks for maintenance purposes. 13. Agency must provide one set ofdigital as -built plans inEnq|ishUnits) toBN8F,aawell aoone set ofcomputer diskettes containing aabuilt CAD drawings of the Structure and identifying the software used for the CAD drawings. The "an built p|eno" 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 p|mno' must also include plan and profi|e, ebootVna| bridge drawings and specificahona, and drainage plans. All improvements and facilities must beshown. 14. Subject to the restrictions imposed by Article IV Section S above and in accordance with the requirementsofArtic|e|U.8mobon9mbove.Aoenoyrnuotn nd obtain prior authorization from BN8F's Manager of Public Projects before entering BNSF'o right-of-way for INSPECTION OR MAINTENANCE purpooeo, and the BN8F Manager ofPublic Projects wiUdeterrnineifOaggingianyqu|[ad. |fthe 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-11, 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 BN8Fshall deem itnecessary ordesirable in the future, in the performance of its duty as a common carrier, to raise or lower the grade or change the 14 112 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, o|bsr, 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. 10. Agency may, at Agency's sole expenne, alter or reconstruct the highway components of the Structure if naoamao[y or dmsinab|e, due to traffic conditions or pedestrian or other recreational traffic, provided, hovvevor, that any h alteration or naconmhUotk»n must receive BNGF`e prior vvhtban approval as evidenced by either a supplement to this Aorgennent, or execution of new agreement that provides for the termination of this /\on*enlenL 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 period of three (3) years from the date offinal []NGFinvoice under this Agreement. 18. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the muocaaeore and assigns of the parties hereto. Notwithstanding the preceding mentanoo, neither party hereto may ssign any ofits rights or obligations hereunder without the prior written consent ofthe other party. 19. In the event construction of the Project does not oornmnmnoe within eighteen months ofthe Effective Date, this Agreement will become null and void. 20. Neither termination nor expirationof this Agreement will release either party from any liability or obligation under this Aoreen1ent, whether of indemnity or othenmiso, resulting from any acts, omissions orevents happening prior to the date oftermination or expiration. 21. To the maximum extent . each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable |a«K If any provision of this Aonoonlent is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent ofsuch prohibition or invalidity and the remainder ofthe provision will be enforceable. 22. This Agreement (including exhibits and other documents, manuals, etc, incorporated herein) is the full and complete agreement between BN8F and Agency 15 113 with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 23. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified n1aU. return receipt requested, to the parties at the following addresses: BNGPoManager ofPublic Projects Richard VyWoqner 2454Occidental Avenue South Ste 2O Seattle, VVAg8134 206,625.8152 Richand.Waqnmr(cDB—GF.00m RobinTischnnok City Engineer City ofTukwila O3OO8outhoenterBlvd, Suite 1OO Tukwila, VVAS8188 (206)431-2455 16 114 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 FMALWAY COMPANY ByVG( 7 • Printed Name: Richard Wagner Title: Manager Public Projects NW Division — ID, WA & BC AGENCY CITY OF TU By: -e Printed Name: ION Allan Ekberg Title: Mayor, City of Tukwk 115 116 C^ty J[T U- ^ TRANSPORTATION 8^INFRASTRUCTURE COMMITTEE Meeting Minutes Jonuory23, 2019 - 5:30 p.m. - Hazelnut Conference Room, City Hall [oundimenlber:Zak |dan.Chair; Kate KruiLer,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. K. PRESENTATIONS 11, BUSVNESSAGENDA A. Contract Completion: Major K4aintenanceofThrerBhdges Staff is seekingCouncil approval of contract completion and release of retainageto Razz Construction, Inc. in the amount of $2�42,339.8I for the Major Maintenance of Three Bridges Project. This project included seismic retrofits and [naiOr rehabilitation work on the Beacon Avenue Bridge' Fr8nkZepp Bridge' and Grady Way Bridge' and was completed on time and under budget. W0A0UK4O0S APPROVAL. FORWARD TO FE00Q&RY 4°2019 REGULAR CONSENT AGENDA. B. BNSF Flagging and Inspection Services Staff is seeking Council approval of BNSPs increased flagging and inspection costs for the remainder of the Boeing Access Road over BNRR Bridge Rehabilitation Project. An Overpass Agreement currently in effect allows the City and its contractor to work in the BNSF right-of-way and pays forthe required railroad flagging and inspection services performed by BNSF. The original flagging and inspection fees were estimated 8t$I49'428` and Amendment No. I approved an additional $300'000. 8NSF is requesting an additinno|$l50,00V to finish the project. Committee members expressed frustration at the continued cost increases and asked vvhv 8NSFc8nOot provide better estimates atthe beginning ofthe project. BSNFdeterminestheoumberVffiaggerS based onsafety risks and the City must pay. CVundimennberKruiierstated she will bring this up with National League ofCities. Staff does not expect any more flagging charges before the project completion. The total project isexpected tocost below the total budget 3SVvp||8sbelow the total Federal Bridge Replacement Advisory Committee grant. Chair |dansuggested assuming higher number of fioggers infuture dealings with 8SNF. UNANIMOUS APPROVAL. FORWARD TO FEBRUARY4,2019 REGULAR CONSENTAGE0DA, 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 projectareatothesnuth, restoring an additional 450 lineal feet of shoreline with native vegetation, UNANIMOUS APPROVAL. FORWARD TO FEBRUARY4,2019 REGULAR CONSENT AGENDA. 117