HomeMy WebLinkAboutTrans 2011-02-22 Item 2D - Agreements - Strander Boulevard Extension Phase II wtih City of Renton and BNSF City of Tukwila
Jim Haggerton, Mayor
,;1 9 Qai INFORMATIONAL MEMORANDUM
TO: Mayor Haggerton
Transportation Committee
FROM: Bob Giberson, Public Works Director
DATE: February 14, 2011
SUBJECT: Strander Boulevard Extension Phase II
Interlocal Agreement and BNSF Assignment Agreement
ISSUE
Approve Interlocal Agreement (ILA) and BNSF Assignment Agreement with the City of Renton and Burlington
Northern Santa Fe (BNSF) Railway Company.
BACKGROUND
The previous ILA with the City of Renton was terminated since it dealt primarily with the relocation of UPRR railroad
tracks to the east in order to be adjacent to the BNSF railroad tracks. Unfortunately, an agreement for track relocation
could not be reached with UPRR. The City of Renton successfully convinced Puget Sound Regional Council (PSRC)
and Freight Mobility Strategic Investment Board (FMSIB) that the underpass option was equal to or better than the
overpass option, since UPRR would not participate in a track relocation effort. The City of Renton still has $12 million
in state and federal funds that have to be obligated by early Spring 2011. To help accomplish this, the attached
agreements need to move forward immediately. BNSF is an active partner in the planning and design of this Phase II
of the Strander Boulevard Extension Project (Phase I completed the Strander Blvd roadway work in Renton).
DISCUSSION
The current project design for Phase II (Naches Avenue to Sound Transit Commuter Rail Station) is nearly
complete (see attached map). Phase II includes a new BNSF bridge over a Strander Boulevard undercrossing
comprised of a two lane roadway that will tie into the south end of the new Sound Transit Commuter Rail Station
(Tukwila Longacres Station). All of the new BNSF bridge over Strander Blvd will be within Tukwila city limits.
The new ILA will allow the City of Renton to construct the BNSF bridge and related improvements within the City of
Tukwila in Tukwila's right -of -way. The BNSF Assignment Agreement assigns all the rights and responsibilities of
Tukwila under the BNSF Underpass Agreement to the City of Renton.
RECOMMENDATION
The Council is being asked to approve the new Interlocal Agreement with the City of Renton and the BNSF
Assignment Agreement with the City of Renton and BNSF and consider this item at the February 28, 2011
Committee of the Whole meeting and subsequent March 7, 2011 Regular Meeting.
Attachments: Figure 1 Phase 11
Interlocal Agreement with the City of Renton
Assignment Agreement (with Exhibit A: BNSF Underpass Agreement)
W \PW Eng1PROJECTS\A- RW RS Protects \98610403 Strander Extension \INFORMATION MEMO 2011 ILA_Assgnmt_BNSF Agrmt.doc
strander boulevard extension phase ii map
bnsf bridge
burlington northern santa fe bridge map
INTERLOCAL AGREEMENT
BETWEEN THE CITY OF RENTON AND THE CITY OF TUKWILA
REGARDING
PHASE II OF THE SW 27TH STREET/ STRANDER BLVD. EXTENSION PROJECT
THIS AGREEMENT is made and entered into by and between and the City of Renton,( "Renton") and
the City of Tukwila, ("Tukwila"). This Agreement is made for the purpose of performing the planning,
design, acquisition of necessary property, and construction of Phase II of the improvements to the SW
27th Street/Strander Blvd. Extension Project between West Valley Highway (SR -181) and Oakesdale
Ave. SW (`Project This Agreement does not address funding of the project.
RECITALS
A, Part of the Project is within the City of Renton and part of the Project is within the City of
Tukwila.
B. Renton and Tukwila have both identified the need for extending Strander Blvd./ SW 27th Street to
connect to Oakesdale Avenue South to provide an additional east/west arterial connection
between the cities.
C. It is in the best interest of Renton and Tukwila to establish a lead agency to manage this Project
and to provide for the design, environmental review, property acquisition and construction of the
Project.
D. Renton and Tukwila are authorized, pursuant to RCW Chapter 39.34, to enter into an interlocal
government cooperative agreement of this nature.
E. Renton previously completed construction of Phase I of the Strander Boulevard Extension Project
and is completing the design, environmental and right -of -way acquisition for Phase II (see Fig. 1).
NOW, THEREFORE, Renton and Tukwila agree as follows:
AGREEMENT
1. SCOPE OF WORK
Phase II of this Project will extend Strander Blvd./ SW 27th Street from Naches Ave SW under BNSF to
the south side of the Tukwila Sounder Commuter Rail Station (in between UPRR and BNSF tracks). oeieteh: W:\PW
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The future Phase III will complete the extension to West Valley Highway (SR -181) by constructing a
UPRR underpass and will complete the new east /west arterial connection between Renton and Tukwila.
2. TERMS AND CONDITIONS
2.1 Renton shall be the lead agency for the Project with regard to design, environmental review,
obtaining right -of -way and other property, if needed, construction and all other matters
pertinent to accomplishment of the Project.
2.2 Renton shall be responsible for the advertisement and selection of engineering and other
design consultants as necessary for the completion of the engineering design.
2.3 Renton shall be responsible for coordinating the public information and involvement effort
in both Cities. Tukwila shall be given the opportunity to attend and participate in any
public meetings.
2.4 Renton shall provide to Tukwila the necessary permit applications for the construction of
that portion of the Project within Tukwila's jurisdiction.
2.5 The parties to this Agreement shall appoint a contact person or persons to act as liaison for
the Project. These contact persons will meet on an "as needed" basis to provide guidance for
the Project and serve as a coordination body between the two agencies.
2.6 Renton will provide,30, 60 and 90 percent plans and specifications to Tukwila for review_ -1 Deleted: 70 and 95
Tukwila will provide written comments, if any, to Renton within the shortest time possible
(goal: 14,days or less) after Tukwila receives the plans and specifications. Deleted: 30
2.7 Renton shall be responsible for the acquisition of all property necessary for the Project.
Tukwila agrees to cooperate in Renton's efforts to acquire property that lies within
Tukwila's portion of the Project area. Any eminent domain proceedings which are instituted
as a result of this agreement in either Renton's boundaries or Tukwila's boundaries will be
funded by the Project. Property acquired for this Phase II project that is located in the City
of Tukwila shall remain vested with the City of Tukwila.
2.8 Tukwila agrees to use of all of their property designated by King County as Parcel No. 2523049006 Deleted: W:\PW
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2.9, _Tukwila_hereby grants to Renton, and their agents and assigns, right -of- entry into the Deleted: 8
incorporated limits of Tukwila for the purpose of performing any and all tasks necessary to
complete the Project.
2.1O The final acceptance of the Project design shall be by Renton after review by Tukwila. Deleted: 2.9
3. CONSTRUCTION CONTRACT BIDDING
3.1 Renton shall perform project planning, provide a project definition and prepare the contract
bid documents for the Project.
3.2 Renton shall advertise the contract in the official legal publication for the City of Renton
and, if necessary, other newspapers to provide the widest possible coverage commensurate
with the size of the Project.
3.3 Renton will provide to Tukwila a copy of the plans and specifications advertised for bid.
3.4 Renton will open the bids. Renton will notify Tukwila of the time and date of the opening of
Deleted: which will be
the bids,Tukwilamay, b_ u_ t need not, attend the opening of the bids. approximately five to six weeks
after the Project is advertised.
3.5 Renton will tabulate the bids. Renton shall provide a dated, verified copy of the bid
Deleted: The bid tabulations will
tabulations to Tukwila. identify the estimated construction,
inspection, and overhead cost, based
upon the lowest responsible bid.
3.6 Renton shall award the contract to the lowest responsive, responsible bidder for the total
Project, subject to applicable laws and regulations.
4. CONTRACT ADMINISTRATION
4.1 Renton shall provide the necessary engineering, administrative, inspection, clerical and
other services necessary for the execution of the Project. In providing such services within
Tukwila, Renton's ,Public Works Administrator may
exercise all the powers and perform all Deleted: Planning/Building/
the duties vested by law or ordinance in the City of Tukwila Engineer or other Tukwila
officer or department charged with street administration.
4.2 Renton will at all times keep Tukwila advised as to the progress of the Project, and shall not Deleted: W:\PW
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order or approve any changes in the approved Project design that substantially change the Projects \86rw03 Strander
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nature of the Project within the limits of the City of Tukwila without first consulting with
and gaining the approval of Tukwila.
4.3 Prior to Project completion, both parties shall perform a mutual final inspection of the
Project. Tukwila may provide a written deficiency list to Renton within ten working days
after the final inspection. The contractor will complete only construction deficiencies that
1 Deleted: Planning/Building/
comply with the contract specifications. Final Project acceptance will be by Renton's ,Public
Works Administrator.
5. OWNERSHIP AND MAINTENANCE
5.1 Relocated water and sewer utilities in Tukwila currently owned and operated by Renton will
remain City of Renton facilities and Renton will assume ownership and maintenance after
final contract acceptance by the City of Renton.
5.2 Through a permanent easement granted by Tukwila, stormwater detention facilities
required for the Phase II project located on the Tukwila parcel shall be owned and
maintained by Renton, including the underground pump station, the above ground
maintenance building that houses the emergency generator (if any), the pond, access roads,
and outfall piping. The easement shall include a description of Renton's obligation.
6. DURATION.
This Agreement shall remain in effect upon approval and execution of the Agreement by both parties.
7. TERMINATION.
Either party may terminate this Agreement by giving thirty (30) days written notice of termination,to Deleted: of
the other party.
INDEMNIFICATION AND HOLD HARMLESS Deleted: 9
Washington State law shall govern the respective liability between the parties to this Agreement for
any loss due to property damage or personal injury arising out of the activities conducted pursuant to Deleted: W:\PW
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IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date last
written below.
CITY OF RENTON CITY OF TUKWILA
Title: Title:
Date Date
APPROVED AS TO FORM: APPROVED AS TO FORM:
Renton City Attorney Tukwila City Attorney
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ASSIGNMENT AGREEMENT BETWEEN THE
CITY OF TUKWILA, THE CITY OF RENTON, AND BNSF
BNSF RAILROAD BRIDGE CONSTRUCTION AND MAINTENANCE
THIS ASSIGNMENT AGREEMENT "Agreement is made and entered into by and
between the City of Tukwila, a Washington municipal corporation "Tukwila" or "Assignor
and the City of Renton, a Washington municipal corporation "Renton" or "Assignee in
consideration of the mutual covenants herein contained °';and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, witnesseth:
WHEREAS, the Renton is the Project Sponsor for the proposed Strander Blvd/SW 27` St.
Extension Project "Project and
WHEREAS, Tukwila and Renton have been collaborating and cooperating on the design and
construction of the Project; and
WHEREAS, the Project necessitates that a new railroad crossing at separated grades be
constructed "Strander Boulevard Underpass and
WHEREAS, the proposed Strander Boulevard Underpass will be located wholly within
Tukwila city limits and
WHEREAS, Renton, as the Project Sponsor,. requires, in 'Order to maintain certain grant
funding for construction of the Project, that there be in place an agreement between the BNSF
Railway Company "BNSF and JUIcwila for the construction and maintenance of the
Strander Boulevard Underpass "Underpass Agreement and
n
WHEREAS, Tukwila is a' participant,, in and benefits from the design and construction of the
Strander Boulevard Underpass; and since the Strander Boulevard Underpass is within the
Tukwila city limits, Tukwila executed the Underpass Agreement with BNSF, attached hereto
as Exhibit A; and
WHEREAS Tukwila wishes,to assign all of its rights and responsibilities under the Underpass
Agreement to Renton and,Renton, as the Project Sponsor, agrees to accept assignment of the
Underpass Agreement from Tukwila;
NOW THEREFORE, in consideration of the terms and conditions set forth within the
Underpass Agreement, it is agreed to by and between Tukwila and Renton as follows:
1. Tukwila and Renton hereby agree that Tukwila shall assign all its right, title, and interest,
and delegate all its obligations responsibilities and duties, in and to the Underpass
Agreement, to Renton.
2. Renton hereby accepts the assignment of all of Tukwila's obligations responsibilities and
duties under the Underpass Agreement and all of Tukwila's right, title and interest in and
to the Underpass Agreement.
3. As of the date of execution of this Agreement, Tukwila shall have no further rights,
obligations, and liabilities of any kind whatsoever under the Underpass Agreement, and
the Underpass Agreement, including the terms, conditions, covenants, agreements and
exhibits contained therein, shall be binding only on Renton and BNSF.
4. Renton agrees to indemnify Tukwila from any and all claims, actions, judgments,
liabilities, proceedings and costs, including reasonable attorneys' fees and other costs of
defense and damages, resulting from Renton's performance on or after the date of
execution of this Agreement.
5. Pursuant to the foregoing terms and conditions, BNSF hereby grants its consent to the
Assignment and represents and warrants that it shall not raise any claim against Tukwila
in connection with the breach, default, or non performance of the Underpass Agreement
by Renton on or after the date of execution of this Agreement.
6. This Agreement contains the entire understanding among the Parties hereto with respect
to the assignment of the BNSF agreement to Renton from Tukwila.
7. No changes, alterations, or modifications to this Agreement shall be effective unless made
in writing and signed by all Parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed.
CITY OF TUKWILA CITY OF RENTON
Jim Haggerton, Mayor Denis Law, Mayor
Dated Dated
Attest/Authenticated: Attest/Authenticated:
Tukwila City Clerk Renton City Clerk
Approved as to Form: Approved as to Form:
ASSIGNMENT AGREEMENT Tukwila and Renton
Strander Blvd /SW 27th St BNSF
Page 2
Tukwila City Attorney Renton City Attorney
Agreed and Accepted by:
BNSF RAILWAY COMPANY
By:
Name:
Title:
ASSIGNMENT AGREEMENT Tukwila and Renton
Strander Blvd /SW 27th St BNSF
Page 3
UNDERPASS AGREEMENT
Strander Boulevard Underpass
U.S. D.O.T. No. 929044V
BNSF LS 51 MP 11.06X
This Agreement "Agreement is executed to be effective as of this day of
20 "Effective Date by and between BNSF RAILWAY COMPANY, a Delaware corporation
"BNSF and the CITY OF TUKWILA, a municipal corporation 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;
WHEREAS, Agency desires to construct a new crossing at separated grades to be known as the
Strander Boulevard Underpass and designated as D.O.T. No. 929044V; and
WHEREAS, per separate agreements, the existing Longacres Way roadway undercrossing designated as
D.O.T. No. 085611A will be permanently closed and removed upon completion of construction and the
placing in service of the Strander Boulevard Underpass under BNSF and Union Pacific tracks.
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 Strander Boulevard Underpass (hereinafter referred to as the "Structure more particularly
described on the Exhibit A 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.
ARTICLE II BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF
agrees as follows:
1, In consideration of the faithful performance of the Agency's covenants contained herein, 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, 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.
Prior to commencing any work on BNSF's property or right -of -way, Agency must pay BNSF the
sum of and No /100 Dollars 1 as compensation for the Temporary Construction
License. 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) three (3) years and two (2) 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 Aoencv for any other Purpose. Agency
acknowledges and agrees that Agency shall not have the right, under the Temporary Construction
License, to use the Structure. 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 Fable 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.
Upon receiving the payment from Agency described in the subsequent sentence and provided
Agency is in compliance with the terms 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. Agency must pay BNSF the sum of and
No /100 Dollars as compensation for the Easement within thirty (30) days of issuing a Notice
to Proceed pursuant to Article III, Section 17 of 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 flagging services 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;
(f) Construction and removal of shoofly tracks for two main tracks including the lining over and
lining back of portions of the existing main tracks;
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(g) Modifications and relocations to BNSF signal or telecommunications facilities as necessary
for construction of the shoofly tracks and Structure; and
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.
4. Agency agrees to allow BNSF immediate access for work of an emergency nature which BNSF
deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection
of persons or BNSF property. If it is determined that the need for such emergency work caused by the
negligence of Agency or Agency's contractor in connection with the Project Agency shall reimburse BNSF
up to $5,000.00 for such work. If the cost of the work exceeds $5,000.00 it shall be the responsibility of
BNSF to seek such payment through the Agency's claims process. Such work may be performed by
BNSF without prior approval of Agency.
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 I11— 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. Electronic (PDF) copies 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 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.
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3. Agency must provide for and maintain minimum vertical and horizontal clearances, as required
and 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 including
property for the new access road from Strander to BNSF ROW.
5. Agency must make any and all arrangements 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) Construction of all items associated with the Project not identified in Article II above or
required to be performed by BNSF as stated elsewhere in this Agreement;
(c) All necessary excavation, grading and paving, including backfill of excavations and
restoration of disturbed vegetation on BNSF's right -of -way. Prior to any earth being
excavated by Agency on BNSF property, Agency shall conform to all State and Federal
environmental policies and requirements for removal of earth;
(d) Earthwork grading including placement of twelve (12) inches of sub ballast for the
shooflys and for the permanent replacement of the main tracks. Agency shall leave the
earthwork in place on the west side of the tracks and on the east side of the tracks
dependent on land acquisition done outside of this agreement, prior to the completion of
the Agency's project, for future 3 and 4 main tracks
(e) Provide suitable drainage, both temporary and permanent;
(f) Improvements and land acquisition(s) necessary in order to provide BNSF with a
permanent gravel access road from Strander Boulevard to BNSF right -of -way for
maintenance purposes;
(g) 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 929044V 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 execute 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 "contractororientation.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. In order to prevent damage to BNSF trains and property, 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
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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 electronic (PDF) copies of any plans (including
calculations in English Units) for proposed shoring or cribbing to be used over, under, or adjacent to
BNSF's tracks to BNSF's Project Representative for approval. The shoring or cribbing used by Agency's
contractor shall comply with BNSF Bridge Requirements set forth on Exhibit F attached to this Agreement
and incorporated herein. Additionally, the shoring and cribbing must comply with all applicable
requirements promulgated by state and federal agencies, departments, commissions and other legislative
bodies.
12. Agency must include the following provisions in any contract with its contractor(s) performing
work on said Project:
(a) The Contractor 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 included on the plans based on information from the
telecommunications companies. The contractor will be responsible for contacting
BNSF's Engineering Representative (Ben Steinkamp 206 625 6189), BNSF's Signal
Representative (Eric Shaffstall 206 272 -3771) and the telecommunications
companies and notifying them of any work that may damage these Lines or facilities
and /or interfere with their service. The contractor must also mark all Lines shown on
the plans or marked in the field in order to verify their locations. The contractor 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 Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor 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's Engineering
Representative 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 contractor
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 Contractor, 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
Contractor, 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 Toss of profits or revenue by, or Toss of service by a
customer or user of such telecommunication company(ies). THE LIABILITY
ASSUMED BY CONTRACTOR WILL APPLY ONLY TO THE EXTENT OF THE
NEGLIGENCE OF CONTRACTOR, ITS AGENTS OR EMPLOYEES, AND 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.
(e) For any Work performed in the State of Washington, the Contractor agrees to
5
indemnify Railroad against all loss, liability and damages, including environmental
damage, hazardous materials damage, or penalties or fines that may be assessed,
caused by or resulting from the concurrent negligence of (a) the Railroad or the
Railroad's agents or employees, and (b) the Contractor or the Contractors agents or
employees, to the extent of the Contractors negligence.
(f) It is mutually negotiated between the parties that the indemnification obligation
shall include all claims brought by Contractor's employees against BNSF, its
agents, servants, employees or otherwise, and Contractor expressly waives its
immunity under the industrial insurance act (RCW Title 51) and assumes
potential liability for all actions brought by its employees.
13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit
C and Exhibit C -1, and incorporate in each prime contract for construction of the Project, or the
specifications therefor (i) the provisions set forth in Article III; (ii) the provisions set forth in Article IV; and
(iii) the provisions set forth in Exhibit C and Exhibit C -1, attached hereto and by reference made a part
hereof.
14. Except as otherwise provided below in this Section, 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 will
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 a letter agreement in the form of Exhibit C -1, and (ii) delivered to and secured
BNSF's approval of the required insurance;
(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
contractors 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.
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 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 THE LAWS OF THE STATE OF WASHINGTON,
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,
6
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, (11) 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 APPLY ONLY TO THE EXTENT OF THE NEGLIGENCE OF AGENCY,
ITS AGENTS OR EMPLOYEES, AND THIS 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 with the railroad
work after receipt of necessary funds for the 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 approval prior
to the commencement of any such changes or modifications.
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 (BNSF or its related railroads) or to protect persons or
property on or near any BNSF owned property. BNSF wit not be liable for any additional costs or
expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any
7
reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or
costs resulting from any such reallocation wilt 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 which 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 Engineer or until 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:
Bob Giberson
City of Tukwila
6300 Southcenter Blvd Suite 100
Tukwila, WA 98188 -2544
5. Agency must supervise and inspect the operations of all Agency contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all
safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is
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 the City of Tukwila
for appropriate corrective action.
6. Section intentionally deleted.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, out of funds made available
to it for the construction of the Project, reimburse BNSF in full for the actual costs of all work performed by
BNSF under this Agreement.
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 Federal Aid Highway Program Manual, 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 no 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. 929044V
and must state the time that construction activities will begin.
8
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) BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, any
BNSF access gates installed pursuant to the Project, railroad drainage, and all other
railroad facilities.
(b) 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) in an amount not to exceed $5,000.00, unless
submitted through the Agency's claims process.
(c) Agency must, at Agency's sole cost and expense, keep the Structure painted and free
from graffiti.
(d) Agency must apply and maintain vertical clearance signs which consistently and
accurately describe the minimum actual vertical clearance from the bottom of the
Structure to the top of any pavement.
(e) Agency agrees to reimburse BNSF for the cost of track surfacing due to settlement
caused by the construction of the Structure for a period not to ecee two (2) years from Comment [sKi] Ryan 1 understand
the date of final inspection pursuant to Article III, Section 15. thatBNSFrouhnetyresurfacest�lrtrack4
as part of ns general maintenance
(f) Agency must provide BNSF with any and all necessary permits and maintain roadway Woulan'- tth�ssetttem ntrssaetie
subsumed m the maintenance that BNSF
traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to sattea�yperfomiing
inspect the Structure or to make emergency repairs thereto. Comment [b>4 we
maintamow hack' but if thesiructwe or
(g) It is expressly understood by Agency and BNSF that any right to install utilities will be itsdrauiagerscausrigtheprobl
governed by a separate permit or license agreement between the parties hereto. ,separate e from„generat maintenance
(h) Agency must keep the Structure and surrounding areas clean and free from birds,
pigeons, scavengers, vermin, creatures and other animals.
(i) 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 to the superstructure of the Structure, then Agency or its contractors and /or
agents must procure and maintain the following insurance coverage:
Railroad Protective Liability insurance naming only the Railroad as the Insured
with coverage of at least $2,000,000 per occurrence and $6,000,000 in the
aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93
and include the following:
Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
10 93)
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to remove any exclusion for punitive damages.
No other endorsements restricting coverage may be added.
The original policy must be provided to the Railroad prior to performing any
work or services under this Agreement
9
As used in this paragraph, "Railroad" means "Burlington Northern Santa Fe
Corporation "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
Strander Boulevard to BNSF right -of -way for maintenance purposes.
13. Agency must provide one set of as built plans (prepared in Enalish 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, 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. BNSF may, at its expense, make future changes or additions to the railroad components of the
Structure if necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i)
the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional
track or tracks, or (iii) the right to build other facilities in connection with the operation of its railroad. Such
changes or additions must not change or alter the highway components of the Structure. If it becomes
necessary or desirable in the future to change, alter, widen or reconstruct the highway components of 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 any such changes to the Structure, will be
divided between BNSF and Agency in such shares as may be mutually agreed to by the parties hereto.
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 not encroach further upon or occupy
the surface of BNSF's right -of -way to a greater extent than is contemplated by the plans and
specifications to be approved by BNSF pursuant to Article III, Section 1 herein, without obtaining BNSF's
prior written consent and the execution of a supplement to this Agreement or the completion of a separate
agreement.
17. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or
the costs or expenses for labor and material connected with the construction will at all reasonable times
be open to inspection and audit by the agents and authorized representatives of the parties hereto, as
well as the State of Washington and the Federal Highway Administration, for a period of three (3) years
from the date of final BNSF invoice under this Agreement.
18. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party.
19. In the event construction of the Project does not commence within 12 months of the Effective
Date, this Agreement will become null and void.
10
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 with respect to the subject matter herein
and supersedes any and all other prior agreements between the parties hereto.
23. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the
following addresses:
BNSF Railway Company: BNSF Manager Public Projects
2454 Occidental Avenue South Suite 2D
Seattle, WA 98134
Agency: City of Tukwila
Bob Giberson
6300 Southcenter Blvd STE 100
Tukwila, WA 98188 -2544
11
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.
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
WITNESS:
AGENCY
CITY OF TUKWILA
By:
Printed Name:
Title:
WITNESS:
Exhibit A
[Insert drawings of the Temporary Construction License and Structure]
Exhibit B
EASEMENT AGREEMENT
FOR STRANDER BOULEVARD UNDERPASS
(Underpass Agreement)
THIS EASEMENT AGREEMENT FOR THE STRANDER BOULEVARD UNDERPASS "Easement
Agreement is made and entered into as of the day of 20 "Effective Date by and
between BNSF RAILWAY COMPANY, a Delaware corporation "Grantor and the CITY OF TUKWILA, a
municipal corporation of the State of Washington "Grantee
A. Grantor owns or controls certain real property situated at or near the vicinity of Tukwila, County
of King, State of Washington, at Mile Post 11.06X, (Project 929044V], as described or depicted on Exhibit "A-
1" attached hereto and made a part hereof (the "Premises
B. Grantor and Grantee have entered into that certain Underpass Agreement dated as of
concerning improvements on or near the Premises (the
"Underpass Agreement
C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the
Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set
forth in this Easement Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein,
the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
Section 1 Grantina of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the
UNDERPASS Agreement. Any improvements to be constructed in connection with the
Easement Purpose are referred to herein as "Improvements" and shall be constructed,
located, configured and maintained by Grantee in strict accordance with the terms of this
Easement Agreement and the UNDERPASS Agreement.
1.2 Grant. Grantor does hereby grant unto Grantee a non exclusive easement "Easement over
the Premises for the Easement Purpose and for no other purpose. The Easement is granted
subject to any and all restrictions, covenants, easements, licenses, permits, leases and other
encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises
and subject to all with all applicable federal, state and local laws, regulations, ordinances,
restrictions, covenants and court or administrative decisions and orders, including
Environmental Laws (defined below) and zoning laws (collectively, "Laws Grantor may not
make any alterations or improvements or perform any maintenance or repair activities within the
Premises except in accordance with the terms and conditions of the UNDERPASS Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor
and any other parties who may obtain written permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any existing pipe, power, communication, cable, or utility lines and
appurtenances and other facilities or structures of like character (collectively, "Lines
upon, over, under or across the Premises;
Form 106; Rev. 06/01/05
1
(b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and
relocate any tracks or additional facilities or structures upon, over, under or across the
Premises; and
(c) to use the Premises in any manner as the Grantor in its sole discretion deems
appropriate, provided Grantor uses all commercially reasonable efforts to avoid material
interference with the use of the Premises by Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of
this Easement Agreement, shall be perpetual.
Section 3 No Warranty of Anv Conditions of the Premises. Grantee acknowledges that Grantor has
made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any
personal property located thereon, or the nature or extent of Grantors ownership interest in the Premises.
Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to
entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR
CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL
OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO
ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEES
CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON
OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS
INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT
IN THE PREMISES IN AN "AS IS, WHERE IS" AND 'WITH ALL FAULTS" CONDITION, AND SUBJECT TO
ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has
inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its
physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee
acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's
Contractors (as hereinafter defined) can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE
TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR
USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of. the eviction of Grantee by
anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the
affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the
lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as
may be necessary to obtain any required permits, approvals or authorizations from applicable governmental
authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance,
or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will
provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such
fill or embankment shall or may obstruct the natural and pre- existing drainage from such lands and premises of
the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve
such natural and pre- existing drainage, and shall also wherever necessary, construct extensions of existing
drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate
sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and
workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or
other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities
(collectively, "Other Improvements Grantee will be responsible at Grantee's sole risk to locate and make any
adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other
Improvements notifying them of any work that may damage these Other Improvements and /or interfere with their
service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must
mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in
Form 106; Rev. 06/01/05
2
order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor
property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist.
The Grantee agrees to keep the above described premises free and clear from combustible materials and to cut
and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises,
said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee
and local laws and regulations and abate any and all hazard of fire.
Section 6 Taxes and Recordino Fees. Grantee shall pay when due any taxes, assessments or other
charges (collectively, "Taxes levied or assessed upon the Improvements by any governmental or quasi
governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the
Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount
prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees
incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor
shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against
Grantor, including all of Grantor's legal fees and expenses.
Section 7 Environmental.
7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and
local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation
and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws Grantee shall not
maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms
are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the
release of "hazardous waste" or "hazardous substances as "hazardous waste" and "hazardous substances"
may now or in the future be defined by any Environmental Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource
Operations Center at (800) 832 -5452 of any release of hazardous substances on or from the Premises, violation
of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to
promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of
all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such
release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a
release or violation of Environmental Laws which occurred or may occur during the term of this Easement
Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during
the construction or subsequent maintenance of the Improvements, soils or other materials considered to be
environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils.
Determination of soils contamination and applicable disposal procedures thereof, will be made only by an
agency having the capacity and authority to make such a determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or
activities upon the Premises known to Grantee which create a risk of harm to persons, property or the
environment and shall take whatever action is necessary to prevent injury to persons or property arising out of
such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of
any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to
Grantor's request for information regarding said conditions or activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory
to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above
stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor
may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon
Form 106; Rev. 06/01/05
3
Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in
Section 9.
Section 8 Default and Termination.
8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly
perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific
performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of
such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or
remove any interference with the activities or property of Grantor, or anyone or anything present on the rail
corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all
costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to
perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this
Easement Agreement.
8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five
(5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the
Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to
terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any
way affect Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from
any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises
are restored as required by Section 9.
8.4 Non exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and
not in limitation of, any other remedies that Grantor may have under the UNDERPASS Agreement, at law or in
equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement,
whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee
shall, at its sole cost and expense, immediately perform the following:
(a) remove all or such portion of Grantee's Improvements and all appurtenances
thereto from the Premises, as Grantor directs at Grantor's sole discretion;
(b) repair and restore any damage to the Premises arising from, growing out of, or
connected with Grantee's use of the Premises;
(c) remedy any unsafe conditions on the Premises created or aggravated by
Grantee; and
(d) leave the Premises in the condition which existed as of the Effective Date.
9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct
Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee
shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed
by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement
Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to
the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon
any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until
the Premises are surrendered.
Form 106; Rev. 06/01/05
4
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or
attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized
to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by
Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure
of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or
any other section of this Easement Agreement.
Section 11 Tax Exchanae Grantor reserves the right to assign this Easement Agreement to Apex
Property Track Exchange, Inc. "Apex Apex is a qualified intermediary within the meaning of Section 1031
of the Internal Revenue Cade of 1986, as amended, and Treas. Reg. 1.1031(k) -1(g), for the purpose of
completing a tax deferred exchange under said Section 1031. Grantor shall bear all expenses associated with
the use of Apex, or necessary to qualify this transaction as a tax deferred exchange, and, except as otherwise
provided herein, shall protect, reimburse, indemnify and hold harmless Grantee from and against any and all
reasonable and necessary additional costs, expenses, including, attorneys fees, and liabilities which Grantee
may incur as a result of Grantor's use of Apex or the qualification of this transaction as a tax deferred
transaction pursuant to Section 1031. Grantee shall cooperate with Grantor with respect to this tax deferred
exchange, and upon Grantor's request, shall execute such documents as may be required to effect this tax
deferred exchange.
Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall
be delivered in the manner set forth in the UNDERPASS Agreement. Notices to Grantor under this Easement
shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk
Drive, Fort Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by
notice to Grantee.
Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in
recordable form and shall not be placed on public record and any such recording shall be a breach of this
Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached
hereto as Exhibit "B -1" (the "Memorandum of Easement subject to changes required, if any, to conform
such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate
records in the county where the Premises are located. If a Memorandum of Easement is not executed by the
parties and recorded as described above within days of the Effective Date, Grantor shall have the right to
terminate this Easement Agreement upon notice to Grantee.
Section 14 Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of this Easement
Agreement shall be decided according to the substantive Laws of the State of Washington without regard to
conflicts of law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of
Grantee herein contained shall be the joint and several covenants and agreements of such parties. This
instrument and all of the terms, covenants and provisions hereof shalt inure to the benefit of and be binding
upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run
with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement
Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under
present or future Laws, such provision will be fully severable and this Easement Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining
provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision
herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms
Form 106; Rev. 06/01/05
5
to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee
with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other
agreements between the parties hereto relating to Grantee's use of the Premises as described herein.
However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to
defend and hold Grantor harmless in any prior written agreement between the parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
14.7 The terms of the UNDERPASS Agreement are incorporated herein as if fully set forth in this
instrument which terms shall be in full force and effect for purposes of this Easement even if the UNDERPASS
Agreement is, for whatever reason, no longer in effect.
[Signature page follows]
Form 106; Rev. 06/01/05
6
Witness the execution of this Easement Agreement as of the date first set forth above.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By
Name:
Title:
GRANTEE:
CITY OF TUKWILA,
a municipal corporation of the State of Washington
By:
Name:
Title:
Form 106; Rev. 06/01/05
7
EXHIBIT "B -1"
Memorandum of Easement
THIS MEMORANDUM OF EASEMENT is hereby executed this day of
20_, by and between BNSF RAILWAY COMPANY, a Delaware corporation "Grantor"), whose
address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY
OF TUKWILA, a municipal corporation of the State of Washington "Grantee whose address for
purposes of this instrument is which terms "Grantor" and
"Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal
representatives, successors and assigns of the respective parties:
WITNESSETH:
WHEREAS, Grantor owns or controls certain real property situated in King County, Washington
as described on Exhibit "A -1" attached hereto and incorporated herein by reference (the "Premises');
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated
(the "Easement Agreement which set forth, among other things, the terms of an easement granted by
Grantor to Grantee over and across the Premises (the "Easement and
WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the
Easement Agreement of record.
For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor
does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across
the Premises.
The term of the Easement, unless sooner terminated under provisions of the Easement
Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall
be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by
the terms of the Easement Agreement.
All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated
herein by this reference for all purposes as though written out at length herein, and both the Easement
Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or
document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede
any of the provisions of the Easement Agreement and, to the extent there may be any conflict or
inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement
Agreement shall control.
[Signature page follows]
Exhibit "8 -1"
EXHIBIT "C't
CONTRACTOR REQUIREMENTS
1.01 General
1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as
"Railway" where work is over or under on or adjacent to Railway property and/or right -of -way, hereafter
referred to as "Railway Property during the construction of the Strander Boulevard Underpass.
1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C -1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 3 of said Exhibit "C -1 Questions regarding procurement of the
Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214 303 -8519.
1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause
the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create
a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction
work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors)
performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii)
Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which
is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the
insurance described in the attached Exhibit C -1 is canceled during the course of the Project; or (iv) Contractor
fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue
until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction
of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In
the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement,
Railway may immediately terminate the Temporary Construction License or the Easement. Any such work
stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop
the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for
damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway
agrees to immediately notify the following individual in writing:
Comm nt [MTM3} City needs to
ent0� city ontact infocmahoa,?`" "i
l
1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local l
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including
but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and
regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all
fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
1.01.06 The Contractor must notify the City of Tukwila and Railway's Manager Public Projects, telephone
number 206 625 -6146 at least thirty (30) calendar days before commencing any work on Railway Property.
Contractors notification to Railway, must refer to Railroad's file 929044V.
1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part
of the excavations located within, whichever is greater, twenty -five (25) feet of the nearest track or intersecting
a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from
centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish
the Railway five sets of working drawings showing details of construction affecting Railway Property and
tracks. The working drawing must include the proposed method of installation and removal of falsework,
shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework,
shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF -UPRR Guidelines for
Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design,
and all calculations and submittals must be in accordance with the current 'BNSF -UPRR Guidelines for
Temporary Shoring All submittal drawings and calculations must be stamped by a registered professional
engineer licensed to practice in the state the project is located. All calculations must take into consideration
railway surcharge loading and must be designed to meet American Railway Engineering and
Maintenance -of -Way Association (previously known as American Railway Engineering Association) Coopers
E -80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer
licensed to practice in the state the project is located. The Contractor must not begin work until notified by the
Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes
and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be
relieved of responsibility for results obtained by the implementation of said approved plans.
1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
1.03.02 The Contractor must notify the Railway and provide blasting plans to the Railway for review seven (7)
calendar days prior to conducting any blasting operations adjacent to or on Railway's Property.
1.03.03 The Contractor must abide by the following temporary clearances during construction:
15' Horizontally from centerline of nearest track
21' -6" Vertically above top of rail
27' -0" Vertically above top of rail for electric wires carrying less than 750 volts
28' -0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
30' -0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
34' -0" Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Upon completion of construction, the following clearances shall be maintained:
Form 0106 Rev. 06/01/05
25' Honzontally from centerline of nearest track
23' -3 1/4' Vertically above top of rail
1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the City of Tukwila and must not be undertaken until approved in writing by
the Railway, and until the City of Tukwila has obtained any necessary authorization from the State Regulatory
Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is
delayed pending Railway approval, and/or the State Regulatory Authority's approval.
1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by the City of Tukwila for approval before work is undertaken and this
work must not be undertaken until approved by the Railway.
1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
"Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials
across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for
use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the
completion of the project, removed at the expense of the Contractor.
1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railways Resource Operations Center at 1(800) 832 -5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor, its subcontractors, agents, or invitees. This training is reinforced at the job site
through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientalion.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
1.05 Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster (telephone 206 625 -6462) a minimum of thirty (30)
calendar days advance notice when flagging services will be required so that the Roadmaster can make
appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by
the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary,
Form 0106 Rev. 06 /01105
the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements
can be made to abolish the position pursuant to union requirements.
1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required
and furnished when Contractor's work activities are Located over, under and/or within twenty-five (25) feet
measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned
beyond 25 -feet from the track centerline could foul the track in the event of tip over or other catastrophic
occurrence, but not limited thereto for the following conditions:
1.05.02a When, upon inspection by Railway's Representative, other conditions warrant.
1.05.02b When any excavation is performed below the bottom of tie elevation, if in the opinion of Railway's
representative, track or other Railway facilities may be subject to movement or settlement.
1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities
either due to persons, material, equipment or blasting in the vicinity.
1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
1.05.03 Flagging services will be performed by qualified Railway naggers.
1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to
protect Railway Property and operations, if deemed necessary by the Railways Representative.
1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.
1.05.03c The cost of flagger services provided by the Railway will be borne by the City of Tukwila. The
estimated cost for one (1) flagger is approximately between $800.00- $1,600.00 for an eight (8) hour basic day
with time and one -half or double time for overtime, rest days and holidays. The estimated cost for each flagger
includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property
damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment,
supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or
collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase
actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF
PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE
ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH.
1.05.03d The average train traffic on this route is 23 freight trains per 24 -hour period at a timetable speed of 50
MPH and 28 passenger trains at a timetable speed of 79 MPH.
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
Form 0106 Rev. 06/01/05
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag /work limits that were not previously job
briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of
the center line of track
1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railways representative in charge of the project. Any vehicle or machine which may come
in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be
reported immediately to the Railway representative in charge of the project and to the Railways Resource
Operations Center at 1(800) 832 -5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at the job site.
1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly
weapons in their possession while working on Railway's Property.
1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above the -ankle lace -up and a defined heel; and d) high visibility retro- reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi- visability work wear. Hearing protection, fall protection, gloves, and respirators must be wom as
required by State and Federal regulations. (NOTE— Should there be a discreoancv between the information
contained on the web site and the information in this oaraeraoh. the web site will eovern.)
1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25' -0" TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT
WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY
CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW
OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE
CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE
RAILROAD'S REPRESENTATIVE.
1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to
the ground. All machinery and equipment Left unattended on Railway's Property must be left inoperable and
secured against movement. (See interne Engineering Contractor Safety Orientation program for more detailed
specifications)
1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below 15 feet; 200 to 350 KV 20 feet; 350 to 500 KV 25 feet; 500
Form 0106 Rev. 06/01/05
to 750 KV 35 feet; and 750 to 1000 KV 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact BNSF's Field Engineering Representative (Ben Steinkamp 206 625 6189). All
underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the
company having ownership of the line. It is the Contractor's responsibility to notify any other companies
that have underground utilities in the area and arrange for the location of all underground utilities
before excavating.
1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and
the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there
is any doubt about the location of underground cables or lines of any kind, no work must be performed until the
exact location has been determined. There will be no exceptions to these instructions.
1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of
depth, must be shored where there is any danger to tracks, structures or personnel.
1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or
protected when not being worked on. When leaving work site areas at night and over weekends, the areas must
be secured and left in a condition that will ensure that Railway employees and other personnel who may be
working or passing through the area are protected from all hazards. All excavations must be back filled as soon
as possible.
1.08 Hazardous Waste, Substances and Material Reporting
1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious
material, including but not limited to any non- containerized commodity or material, on or adjacent to Railway's
Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832 -5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the project. The Non Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at
1(817) 352 -7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
Form 0106 Rev. 06101105
NON EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
I. Accident City /St 2. Date: Time:
County: 3. Temperature: 4. Weather
(if non Railway location)
5. Social Security
6, Name (last, first, mi)
7. Address: Street: City: St. Zip:
8. Date of Birth: and /or Age Gender:
(if available)
9. (a) Injury: (b) Body Part:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
First Aid Only
Required Medical Treatment
Other Medical Treatment
13. Dr. Name 30. Date:
14. Dr. Address:
Street: City: St: Zip:
15. Hospital Name:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352 -7595
AND COPY TO
RAILWAY ROADMASTER FAX
Form 0106 Rev. 06/01/05
EXHIBIT "C -1"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: 929044V
Agency Project: Strander Boulevard Underpass
Gentlemen:
The undersigned (hereinafter called, the "Contractor has entered into a contract (the "Contract dated
20 with the City of Tukwila for the performance of certain work in connection with the
Strander Boulevard Underpass project. Performance of such work will necessarily require contractor to enter BNSF
RAILWAY COMPANY ("Railway right of way and property "Railway Property"). The Contract provides that
no work will be commenced within Railway Property until the Contractor employed in connection with said work
for the City of Tukwila (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides
insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is
executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor
must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards,
claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and
Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any
manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or
about Railway's property or right -of -way. This obligation shall not include such claims, costs, damages, or
expenses which may be caused by the sole negligence of Railway or its contractors, agents or employees;
Provided, that if the claims or damages are caused by or result from the concurrent negligence or other acts
or omissions of (a) Railway, its contractors, agents or employees and (b) Contractor, its subcontractors,
agents or employees, this provision shall be valid and enforceable only to the extent of the negligence of the
Contractor, its subcontractors, agents or employees.
It is mutually negotiated between the parties that the indemnification obligation shall include all
claims brought by Contractor's employees against Railway, its agents, servants, employees or otherwise, and
Contractor expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes
potential liability for all actions brought by its employees.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAItMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.
Form 0106 Rev. 06/01/05
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle
all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or
in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner
connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to
be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being
brought against Railway, Railway may forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify,
and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses
growing out of or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall
be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable
court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring
Contractor to indemnify Railroad to the fullest extent permitted by applicable law.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth
herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due
hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with
a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least
$4,000,000 but in no event less than the amount otherwise carried by the contractor. Coverage must be
purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the
following:
Bodily Injury and Property Damage
Personal Injury and Advertising Injury
Fire legal liability
Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on the certificate of
insurance:
The definition of insured contract shall be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
Waiver of subrogation in favor of and acceptable to Railroad.
Additional insured endorsement in favor of and acceptable to Railroad.
Separation of insureds.
The policy shall be primary and non contributing with respect to any insurance carried by
Railroad.
It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial
General Liability insurance policy(s) required herein are intended to apply to employees of the policy
holder and shall not apply to Railroad employees.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy with regard to the work being performed under this agreement.
Form 0106 Rev. 06/01/05
B. Business Automobile Insurance. This insurance shall contain a combined single limit of at feast
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
Bodily injury and property damage
Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
Waiver of subrogation in favor of and acceptable to Railroad.
Additional insured endorsement in favor or and acceptable to Railroad.
Separation of insureds.
The policy shall be primary and non contributing with respect to any insurance carried by
Railroad.
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
Contractor's statutory liability under the worker's compensation laws of the state(s) in
which the work is to be performed. If optional under State law, the insurance must cover
all employees anyway.
Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:
Waiver of subrogation in favor of and acceptable to Railroad.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least
$2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO
form CG 00 35 10 93 and include the following:
Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to remove any exclusion for punitive damages.
No other endorsements restricting coverage may be added.
The original policy must be provided to the Railroad prior to performing any work or
services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad
Protective Liability Insurance Policy available to contractor.
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive
damages and certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor is not allowed to self insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible, self insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance
including an original signature of the authorized representative evidencing the required coverage, endorsements, and
amendments. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such
Faun 0106 Rev. 06/01/05
policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non renewal, substitution or
material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from
Railroad, a certified duplicate original of any required policy must be furnished. Contractor should send the
certificate(s) to the following address:
BNSF Manager Public Projects
2454 Occidental Ave S Suite 2D
Seattle, WA 98134
Fax: 206 625 -6146
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Not
more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to
reflect then- current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation `BNSF
RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and limitations
contained in the Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this
Agreement, including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed,
tracks, and /or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or
agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated
railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a
freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
Form 0106 Rev. 06/01/05
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as
determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same
time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentive /penalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
tram delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a tram delay covered by this Agreement, Railway will share information relevant to any train delay to the
extent consistent with Railway confidentiality obligations. Damages for train delay are currently $676.27 per hour
per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE
CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN
DELAY PURSUANT TO THIS AGREEMENT.
Contractor and its subcontractors must give Railway's representative four (4) weeks advance notice
of the times and dates for proposed work windows. Railway and Contractor will establish mutually
agreeable work windows for the project. Railway has the right at any time to revise or change the work
windows due to train operations or service obligations. Railway will not be responsible for any additional
costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a
change in work windows shall be accounted for in Contractor's expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this
letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor) BNSF Railway Company
By: By:
Printed Name: Name:
Title: Manager Public Projects
Contact Person: Accepted and effective 20
Address:
City: State: Zip:
Fax:
Phone:
E -mail:
Form 0106 Rev. 06/01/05
Exhibit D
[Insert Cost Estimates for Railroad Work here]
Form 0106 Rev. 06/01/05
Exhibit E
[Public Projects Manager's letterhead]
Date:
Mr./Ms.
Re: Final Approval of Plans and Specifications dated 20_, drafted by
(hereinafter called, the "Plans and Specifications
Dear
This letter serves as BNSF RAILWAY COMPANY's ("BNSF") final written approval of the
Plans and Specifications covering the construction of the Strander Boulevard Underpass. This
final written approval is given to the City of Tukwila "Agency pursuant to Article III, Section
1 of that certain Underpass Agreement between BNSF and Agency, dated
20 If the Plans and Specifications are revised by Agency subsequent to the date set forth
above, this letter shall no longer serve as final written approval of the Plans and Specifications
and Agency must resubmit said Plans and Specifications to BNSF for final written approval.
Regards,
Manager Public Projects
Forth 0106 Rev. 06/01/05
Exhibit F
Bridle Reauirements
BRIDGE DESIGN, PLANS SPECIFICATIONS:
Bridge design calculations will be submitted to BNSF for review and approval. Design calculations will be
summarized on a cover sheet to state the design dead load, design live load and amount of impact and any secondary
loads considered. Bridge design by other than a BNSF pre- approved consultant will be subject to a third party
design check at the Agency's expense.
For railroad bridges and culverts over waterways, BNSF will be provided with the Hydrology and Hydraulic design
criteria, calculations and site specific data, including electronic data utilized in computer simulation modeling.
Design considerations should include future land use changes that would increase the volume, velocity or sediment
transport characteristics of the streambed flows. Design shall include sediment transport calculations and erosion
control mitigation measures if necessary.
Bridge plans will be submitted to BNSF for review and approval at the 30 60% and 90% stage of design. The
final set of plans must be approved by BNSF prior to letting of bids for the Project.
Prior to issuing any invitation to bid on construction of the Structure, the Agency should conduct a pre -bid meeting
where prospective Contractors have the opportunity to communicate with BNSF personnel as to the site specific
train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any
invitation to bid and specifications for the Structure and the Project must be submitted to BNSF for review and
approval prior to letting of bids for the Project.
BRIDGE CONSTRUCTION:
After awarding the bid, but prior to the Contractor entering BNSF right of way, the Agency should conduct a pre
construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity
adjacent to live tracks.
During construction, BNSF will require an experienced Quality Control Inspector to be present during certain
critical times of the Project, including but not limited to: driving foundation piles, erecting falsework, construction
of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. Certain
components, normally produced off site, will require a QC inspector to be present, including the production of
precast concrete components and steel fabrication. The QC inspector will provide reports to BNSF including pile
driving records, concrete compressive test records, and other such reports requested by BNSF. QC Inspection
services can be provided by the Agency subject to acceptance by BNSF. If the QC services provided are not
acceptable, BNSF will provide an independent QC Inspection service to supplement the deficiencies. The Agency
shall reimburse BNSF for all costs of supplemental QC Inspection services.
Within 90 days of the conclusion of the Project and final acceptance by BNSF, the Agency will provide BNSF with
a complete electronic set of the bridge plans labeled "As Built Those plans will reflect any and all deviations from
the original plans that occurred during construction. The "As Built" plans will be submitted in Micro Station *.dgn
electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format
used for CAD plan preparation and not converted to another format prior to submission. The plans must show
dimensioned locations of existing and relocated utilities.
BRIDGE MAINTENANCE:
BNSF will be responsible for maintenance of the track and ballast over the bridge and the earth embankment
approaches. The Agency will be responsible for maintenance of the structural components of the bridge, including
deck waterproofing and paint.
Form 0106 Rev. 06/01/05
For bridges over roadways, the Agency will maintain the roadways under the bridge including signs, pedestrian
walkways, fences, drains, landscaping, earth retention components, embankment slopes, erosion control, surface
drainage, paint, walkways, handrails, lighting and other improvements associated with the Project. The Agency will
be responsible to post highway vertical clearance signs and maintain such signs to reflect potential future pavement
profile elevation changes. Clearance signs, traffic control signals or other signs should not be attached to a load
carrying member of the railroad bridge.
For railroad bridges over waterways, the Agency will be responsible for all aspects of channel maintenance across
BNSF's right -of -way, including toe of slope erosion control where the railroad embankment meets the streambed.
The Agency will be responsible for debris removal that may accumulate at bridge piers as well as silt removal, local
and general scour and remediation and streambed lateral migration and streambed degradation remediation.
Fencing and other trespass controls within BNSF's right -of -way and incorporated into the Project shall be designed
and maintained by the Agency. Graffiti removal will be the responsibility of the Agency.
BRIDGE INSPECTION:
BNSF will conduct annual routine structural inspections of railroad bridges over public roadways and waterways at
no cost to the Agency. The Agency shall provide traffic control under those bridges spanning roadways to enable
BNSF personnel or representatives to safely conduct the annual inspections. For routine annual inspections, BNSF
will give the public agency 7 days advance notice of traffic control requirements. In the event of an earthquake, fire,
flood, damage from vehicular impacts or other emergent situations, the Agency will provide traffic control in
roadways to allow immediate inspection by BNSF personnel or representatives. Traffic control will include lane
closures or other such measures to allow BNSF personnel, contractors and equipment to be safely positioned under
the superstructure.
Upon the conclusion of the BNSF inspection, the Agency will be notified of items in need of repair. If the Agency
does not complete the repairs requested by BNSF within a reasonable time period, BNSF personnel and/or
contractors will perform the repairs and invoice the Agency for the entire cost of such repairs. Regardless of the
nature or cause of such maintenance and repairs, traffic control will be provided by the Agency at no cost to BNSF
to allow safe access to the bridge.
Form 0106 Rev. 06 /01/05