HomeMy WebLinkAboutBF-20602570_Renton Mural Contract Number: BF-20602570
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Right of Entry, Release of Claim and Indemnity Agreement
This Right of Entry, Release of Claim and Indemnity Agreement (this “Agreement”) is entered
into as of ___________, 2025 (the “Effective Date”), by and between BNSF RAILWAY
COMPANY ("Railroad”) and Renton Art Oasis (“RAO”). This Agreement acknowledges the
receipt of a request from RAO and its agents, contractors and invitees (hereinafter collectively
called "Permittee") for right of entry permission from Railroad.
1) Scope
Permittee’s access to Railroad's property at Milepost 2.25 on the Seattle Subdivision in
Renton, WA will be limited to public access at the bridge abutment and shall be solely for the
purpose of painting the roadway facing side of the bridge abutment. In no event shall Permittee
access Railroad’s property at any location other than that expressly described herein, and in
no event shall Permittee access or cross Railroad tracks.
2) Risk
Permittee fully realizes that its presence on Railroad's premises involves danger and risk to
Permittee, including the possibility of Permittee's injury or death and damage to or loss of its
property. Permittee also realizes that its presence may be a cause of damage to property of
Railroad or others or injury or death to other persons, including employees of Railroad.
3) Terms and Conditions
Railroad will grant Permittee's request for right of entry, but only in consideration of the
condition that Permittee agrees to the following terms and conditions:
a) By acceptance of this Agreement, Permittee agrees to release Railroad from any claims
arising from the performance of this Agreement which Permittee, Permittee's company or
any of its employees, subcontractors, agents or invitees could otherwise assert against
Railroad, regardless of the negligence of Railroad, except to the extent that such claims
are proximately caused by the intentional misconduct or gross negligence of Railroad.
Permittee further agrees to indemnify and save harmless Railroad for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to
all persons including both Permittee's and Railroad's officers and employees, and for loss
or damage to property belonging to any person, arising from Permittee's acts or omissions
or failure to perform any obligation hereunder. THE LIABILITY ASSUMED BY
PERMITTEE SHALL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE
DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR
CONTRIBUTED TO BY THE NEGLIGENCE OF RAILROAD, ITS AGENTS, SERVANTS,
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EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS
NEGLIGENCE OF RAILROAD.
b) Permittee shall keep and maintain Railroad's premises in a safe and sanitary condition,
restoring the premises upon cancellation of this agreement to essentially the same
condition when first utilized by Permittee, and to the satisfaction of Railroad.
c) Permittee will not interview, talk with, or in any way disturb any of Railroad's employees.
d) Except with the express permission of Railroad, Permittee will not operate, lift, move,
manipulate, board, or pass between any of Railroad's equipment or other property.
e) In using the premises, Permittee shall comply with any and all requirements imposed by
federal or state statutes or by ordinances, orders, or regulations of any governmental body
having jurisdiction thereover.
f) Railroad retains the right to refuse any Permittee access to Railroad property or to require
any Permittee to exit Railroad property at any time with or without cause. Railroad shall
have the right to terminate this agreement immediately if Railroad finds that Permittee is
acting in an unsafe manner in any way.
g) If, while Permittee is on the property of Railroad, Permittee is required to be accompanied
by a flagger in accordance with Railroad’s requirements attached hereto as Exhibit C and
Exhibit C1, Permittee shall provide notice to Railroad and Permittee shall be accompanied
by a flagger designated by Railroad. Permittee agrees to reimburse Railroad, within thirty
(30) days after receipt of written advice from Railroad, for all cost and expense incurred by
Railroad in connection with Permittee's presence on the premises, including but not limited
to the furnishing of Railroad's flagger. The estimated cost for one flagger is approximately
$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. Negotiations for Railroad labor or collective bargaining
agreements and other rate changes may increase actual or estimated flagging rates.
h) Before entering onto Railroad property, Permittee must conduct a thorough safety briefing.
The briefing must include the Railroad's flagger (if one is required) or Railroad’s Project
Representative named in Section 7 below (if no flagger is required) and include the
procedures the Permittee will use to protect its agents, contractors and invitees from any
equipment adjacent to or moving across any Railroad tracks.
i) Each Permittee that is an individual must be at least 18 years of age and must, prior to
entering on any property of Railroad, sign a Personal Release and Waiver on the form
attached hereto as Exhibit A.
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j) Permittee shall 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 the provisions set forth in Exhibit C and Exhibit C-1, attached hereto and by
reference made a part hereof.
k) Permittee shall notify Railroad’s Project Representative named in Section 7 below at least
two (2) days in advance when Permittee plans to clean, wash or prepare Railroad’s
property for the Project. Railroad’s Project Representative must be in attendance for all
preparatory work and may stop any such work and advise Permittee if a less abrasive
procedure needs to be used.
l) Permittee shall be required to provide design and description details of the Project to the
Railroad for its written approval, as well as secure any permits or approvals required by
the agency and shall have secured approval from the City of Kent and any other applicable
government agency(ies) for the design of the Project. A copy of the design and description
details of the Project shall be attached hereto as Exhibit D. If the Railroad or the City of
Kent at any time revokes its respective approval of the Project for any reason, Permittee
shall, at its sole cost and expense, immediately remove the Project and return Railroad’s
property to its original condition.
m) Permittee understands that Railroad may in the future do repairs or replacement of portions
of Railroad property where the Project is located and that Railroad will not be required to
restore all or any portion of the Project that is impacted by such Railroad work.
n) Permittee shall be responsible for any future maintenance or repairs to the Project,
including but not limited to removal of graffiti and must secure Railroad’s permission prior
to conducting any maintenance or repairs. If Permittee fails to maintain the Project in its
original condition, including the prompt removal of any graffiti, Railroad shall have the right
to require the Permittee, at Permittee’s sole cost and expense, to immediately remove the
Project and return Railroad’s property to its original condition. For maintenance or repair
work, Permittee shall additionally abide by the requirements listed in Section 4 below.
o) Access to Railroad’s property by Permittee for the purposes of installing, repairing, and
maintaining the Project contemplated herein shall only take place during daylight hours.
p) Permittee shall complete project on Railroad property within 6 weeks of the start of the
project and no later than 12/01/2026. Notwithstanding the foregoing, Permittee’s right to
access Railroad property pursuant to this Agreement shall terminate upon completion of
the project.
4) Future Maintenance
a) Before Permittee enters upon the property of Railroad in order to perform its maintenance
obligations hereunder, each Permittee that is an individual must be at least 18 years of age
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and must, prior to entering on any property of Railroad, sign a Personal Release and
Waiver on the form attached hereto as Exhibit A.
b) Before Permittee enters upon the property of Railroad in order to perform its maintenance
obligations hereunder, Permittee must provide and maintain in effect insurance, at
Permittee’s expense, as described in Section 5 below.
5) Insurance
Before entering upon the property of Railroad, Permittee must provide and maintain in effect
insurance, at Permittee's expense, as described below:
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 Permittee. Coverage must be purchased on a post 2004
ISO occurrence form or equivalent and include coverage for, but not limited 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 or language, 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 to obligations under this Agreement
or services being performed under this Agreement may be included on the policy.
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c) Workers Compensation and Employers Liability insurance including coverage for, but not
limited to:
• Permittee’s statutory liability under the worker’s compensation laws of the
state(s) in which the services are 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) Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
Permittee 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.
Permittee 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
Permittee’s care, custody or control.
Allocated Loss Expense shall be in addition to all policy limits for coverages referenced
above.
Permittee is not allowed to self-insure without the prior written consent of Railroad. If
granted by Railroad, any self-insured retention or other financial responsibility for claims
shall be covered directly by Permittee in lieu of insurance. Any and all Railroad liabilities
that would otherwise, in accordance with the provisions of this Agreement, be covered by
Permittee’s insurance will be covered as if Permittee elected not to include a deductible,
self-insured retention or other financial responsibility for claims.
Prior to commencing services, Permittee shall furnish to Railroad an acceptable
certificate(s) of insurance from an authorized representative evidencing the required
coverage(s), endorsements, and amendments.
Permittee shall notify Railroad in writing at least 30 days prior to any cancellation, non-
renewal, substitution or material alteration.
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Any insurance policy shall 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 provided.
If coverage is purchased on a “claims made” basis, Permittee hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation or termination
of this contract. Annually Permittee agrees to provide evidence of such coverage as
required hereunder.
Permittee represents that this Agreement has been thoroughly reviewed by Permittee’s
insurance agent(s)/broker(s), who have been instructed by Permittee to procure the
insurance coverage required by this Agreement.
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 Permittee, Permittee shall require
that the subcontractor shall provide and maintain insurance coverage(s) as set forth herein,
naming Railroad as an additional insured, and shall require that the subcontractor shall
release, defend and indemnify Railroad to the same extent and under the same terms and
conditions as Permittee is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section shall entitle, but not require, Railroad
to terminate this Agreement immediately. Acceptance of a certificate that does not comply
with this section shall not operate as a waiver of Permittee's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Permittee shall not be deemed to release or diminish the liability of Permittee including,
without limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Railroad shall not be limited by the amount of the required insurance
coverage.
In the event of a claim or lawsuit involving Railroad arising out of this agreement, Permittee
will make available any required policy covering such claim or lawsuit.
For purposes of this section, “Railroad” shall mean “Burlington Northern Santa Fe LLC”,
“BNSF Railway Company” and the subsidiaries, successors, assigns and affiliates of each.
6) Environmental
a) Environmental Policy. Railroad's policy is to operate in a way that protects and enhances
the environment, protects the health and safety of employees and the communities where
we operate, complies with environmental laws and regulations and continuously improves
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our environmental performance – including monitoring and measuring environmental
indicators and goals. Permittee shall not place, deposit, spill, or discard any material on
Railroad property or otherwise take any action that may negatively impact Railroad
property or the health and safety of Railroad employees.
b) Compliance with Environmental Laws. Permittee 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"). Permittee
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.
c) Notice of Release. Permittee shall give Railroad immediate notice to Railroad'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 Permittee'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.
d) Remediation of Release. In the event that Railroad has notice from Permittee or otherwise
of a release or violation of Environmental Laws which occurred or may occur during the
term of this Agreement, Railroad may require Permittee, at Permittee's sole risk and
expense, to take timely measures to investigate, remediate, respond to or otherwise cure
such release or violation affecting the premises.
7) Notices
Permittee shall notify Kyle Leatham, Manager Public Projects (“Railroad’s Project
Representative”), at least ten (10) business days in advance of any requested entry upon
Railroad's premises. Railroad’s Project Representative shall determine the appropriate date
and time for Permittee to access Railroad’s property. Railroad reserves the right to deny any
request for access by Permittee with or without cause.
8) Duration
This Agreement shall become effective on the Effective Date and may be terminated at any
time thereafter by either party upon five (5) days' notice in writing to be served upon the other
party, stating therein the date that such termination shall take place. No termination shall
release Permittee from any liability or obligation under this Agreement, whether of indemnity
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or otherwise, resulting from any acts, omissions or events occurring prior to the time of
termination.
9) General Provisions
a) To the maximum extent possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this Agreement.
b) All the covenants and provisions of this Agreement shall be binding upon the heirs, legal
representatives, successors and assigns of Permittee. No assignment by Permittee shall
be binding upon Railroad without the written consent of Railroad in each instance.
c) All questions arising under this Agreement shall be decided according to the laws of the
State of Texas.
10) Waiver
The waiver by Railroad of the breach of any provision herein by Permittee shall in no way
impair the right of Railroad to enforce that provision or any other provision of this Agreement.
11) Entire Agreement
This Agreement is the full and complete agreement between Railroad and Permittee with
respect to all matters covered herein and supersedes any and all other agreements between
the parties with respect to such matters. No provision of this Agreement may be modified,
waived or amended except by a written instrument executed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the Effective Date.
BNSF RAILWAY COMPANY
__________________________________
(Name Signed)
__________________________________
(Name Printed)
__________________________________
(Title)
Renton Art Oasis
__________________________________
(Name Signed)
__________________________________
(Name Printed)
__________________________________
(Title)
Docusign Envelope ID: 84C47A0F-A57C-8953-8058-7523E17F73A2
President
Cathy Gonzales
Manager Public Projects
Kyle Leatham
EXHIBIT A
Personal Release and Waiver
I, ,
Print name
in consideration of the permission granted to me by BNSF Railway Company ("BNSF") to enter upon
the premises of BNSF limited to the area of Milepost 2.25 on the Seattle Subdivision in Renton,
Washington will be limited to public access at the bridge abutment and shall be solely for the purpose
of painting the roadway facing side of the bridge abutment., hereby agree to the terms and conditions
contained in this release.
I do hereby assume all risk of my personal injury or death, and loss of or damage to property
in my custody or possession, which shall in any manner arise from my presence on or about
the property of BNSF, regardless of cause, including but not limited to injury, death, loss or
damage caused by defects in tracks, roadbed, structures, trains, engines, cars, or other
equipment or by any accident or event of any kind whatsoever, however it may occur or be
caused, WHETHER THE SAME BE CAUSED BY OR CONTRIBUTED TO BY THE NEGLIGENCE
OF BNSF, ITS OFFICERS, EMPLOYEES, AGENTS, OR ANY THIRD PARTY; and I hereby, for
myself, my heirs, and legal representatives, release and forever discharge BNSF and its
subsidiaries and affiliated companies, and their respective officers, agents, and employees,
from all claims, liabilities, and costs of every kind relating to or by reason of any such injury,
death, loss or damage.
It is understood and agreed that execution of this release assures BNSF that my conduct while in, on,
or about the equipment and property of BNSF will not conflict with general, safety, and operating rules
as they apply to my activities while thereon. It is further understood that this includes, but is not
restricted to, the prohibition of the use of alcohol or narcotics, or being under their influence while
thereon, also playing of practical jokes, or scuffling, or other activities jeopardizing my safety or that of
others. If any violation of the regulations of any and all governmental authorities having jurisdiction
results in any fine or penalty by said regulatory authority, I shall promptly pay such fine and indemnify
BNSF against the cost of any such fine or penalty, or otherwise handle such matter to a conclusion
satisfactory to BNSF. I understand that the permission granted hereunder is revocable by BNSF at
will.
Signature
Print Name:
BNSF Railway Company
By:
Name:
Title:
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Cathy Gonzales
Cathy Gonzales
Kyle Leatham
Manager Public Projects
Contract Number: BF-20602570
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EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1) General
A. 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
_______________________________________________________________________
_______________________________________________________________________
______________________________________________________________________.
B. 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.
C. The Contractor must plan, schedule and conduct all work activities so as not to interfere
with the movement of any trains on Railway Property.
D. 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
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construction work on the Project, Railway agrees to immediately notify the following
individual in writing:
_______________________
_______________________
_______________________
_______________________
E. The Contractor is responsible for determining and complying with all Federal, State and
Local Governmental laws and regulations, including, but not limited to Environmental Laws
(as defined below) 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.
F. The Contractor must notify (RAO) at (_____)_________________ and Railway's Manager
Public Projects, telephone number (_____)_________________ at least thirty (30)
calendar days before commencing any work on Railway Property. Contractor’s notification
to Railway must refer to Railway's file ___________.
G. 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.
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425-246-0427
Cathy Gonzales
rentonartoasis@gmail.com
Contract Number: BF-20602570
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H. 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.
2) Contractor Safety Orientation
A. 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.BNSFContractor.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.
3) Railway Requirements
A. 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 RAO.
B. The Contractor must notify the Railway's Project Engineer ________________________
at (_____)_________________ 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.
C. The Contractor must abide by the following temporary clearances during construction:
▪ 15’-0” 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
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D. Upon completion of construction, the following clearances shall be maintained: [Note to
Drafter: The vertical clearance should mirror the final negotiated design clearance]
▪ 25’ Horizontally from centerline of nearest track
▪ 23’ 6” Vertically above top of rail
E. Any infringement within State statutory clearances due to the Contractor's operations must
be submitted to the Railway and to the (RAO) and must not be undertaken until approved
in writing by the Railway, and until the (RAO) 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.
F. 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 RAO.
G. The details of construction affecting the Railway's Property and tracks not included in the
contract plans must be submitted to the Railway by (RAO) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
H. 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.
I. 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 Railway's 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.
J. 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.
4) Contractor Roadway Worker on Track Safety Program and Safety Action Plan
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A. 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.BNSFContractor.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.
B. Contractor shall have a background investigation performed on all of its employees,
subcontractors and agents who will be performing any services for Railroad under this
Agreement which are determined by Railroad in its sole discretion a) to be on Railroad’s
property, or b) that require access to Railroad Critical Infrastructure, Railroad Critical
Information Systems, Railroad’s Employees, Hazardous Materials on Railroad’s property
or is being transported by or otherwise in the custody of Railroad, or Freight in Transit
involving Railroad.
i) The required background screening shall at a minimum meet the rail industry
background screening criteria defined by the e-RAILSAFE Program as outlined at
www.erailsafe.com, in addition to any other applicable regulatory requirements.
ii) Contractor shall obtain written consent from all its employees, subcontractors or
agents screened in compliance with the e-RAILSAFE Program to participate in the
Program on their behalf and to release completed background information to
Railroad’s designee. Contractor shall be subject to periodic audit to ensure
compliance.
iii) Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its
employees, subcontractors or agents to perform services hereunder who are not first
approved under e-RAILSAFE Program standards. Railroad shall have the right to deny
entry onto its premises or access as described in this section above to any of
Contractor's employees, subcontractors or agents who do not display the authorized
identification badge issued by a background screening service meeting the standards
set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may not be
unreasonable, may pose a threat to the safety or security of Railroad's operations,
assets or personnel.
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iv) Contractors shall be responsible for ensuring that its employees, subcontractors and
agents are United States citizens or legally working in the United States under a lawful
and appropriate work VISA or other work authorization.
5) Railway Flagger Services
A. The Contractor must give BNSF’s Scheduling Agent (BNSFScheduling@wilsonco.com) a
minimum of thirty (30) calendar days advance notice when flagging services will be
required so that the Scheduling Agent can make appropriate arrangements (i.e., obtain
availability and cost estimate for three (3) approved vendors for selection). 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, the Contractor must give
the Scheduling Agent ten (10) working days advance notice so that appropriate
arrangements can be made to abolish the position pursuant to union requirements.
B. Unless determined otherwise by Railway’s Project Representative, protective flagging
services will be required 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:
i) When, upon inspection by Railway’s Representative, other conditions warrant.
ii) 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.
iii) When work in any way interferes with the safe operation of trains at timetable speeds.
iv) 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.
v) Special permission must be obtained from the Railway before moving heavy or
cumbersome objects or equipment which might result in making the track impassable.
C. Flagging services will be performed by qualified Railway flaggers.
i) 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.
ii) Each time a flagger is called, the minimum period for billing will be the eight (8) hour
basic day.
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iii) The cost of flagger services provided by the Railway will be borne by (RAO) and
invoiced through BNSF’s Scheduling Agent. The estimated cost for one (1) flagger is
approximately between $1,200.00-$2,000.00 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,
scheduling 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.
The cost of inspector coordinator services provided by the railway will be borne by
Contractor. The estimated cost for inspector coordinator services is approximately
$1,200 per day. The contractor shall reimburse the railroad for actual costs of
inspection services.
iv) The average train traffic on this route is ______ freight trains per 24-hour period at a
timetable speed ______ MPH and ______ passenger trains at a timetable speed of
______ MPH.
6) Contractor General Safety Requirements
A. 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.
B. 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).
C. Workers must not work within 25 feet of the centerline of any track without an on track
safety 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
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flagger immediately, and be given a job briefing when working within 25 feet of the center
line of track.
D. When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railway's representative in charge of the project must
be notified. A minimum of two employees must be present at all times.
E. 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.
F. Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railway's 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 Railway's 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.
G. 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.
H. 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.BNSFContractor.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 Railway’s
representative in charge of the project is to be contacted regarding local specifications for
meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection,
gloves, and respirators must be worn as required by State and Federal regulations. (NOTE
– Should there be a discrepancy between the information contained on the web site
and the information in this paragraph, the web site will govern.)
I. 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
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CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH
A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE.
J. 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
internet Engineering Contractor Safety Orientation program for more detailed
specifications)
K. 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.
L. 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 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.
7) Excavation
A. 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 (______________).
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.
B. 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.
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C. 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.
D. 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.
E. Excavations and restoration must be conducted in accordance with all applicable Legal
Requirements and the environmental provisions of Section 8.
F. All fill materials to be imported to Railway’s property shall be certified clean fill or from a
Railway-approved source, and must otherwise be suitable for its intended purpose as
backfill material. Supporting documentation shall be provided to Railway upon request.
G. Contractor must meet the appropriate compaction requirements for all fills and will be
responsible for settlement of all fills, erosion, and embankments that may occur as a result
of the placement fill.
8) Environmental Requirements:
A. Contractor must comply with all Environmental Laws (as defined below). Contractor must
not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground
storage tank," as those terms are defined by Environmental Laws, on the Railway Property
or the right of way. Contractor will not handle, transport, release or suffer the release of
Hazardous Materials (as defined below).
B. If Contractor discovers any hazardous waste, hazardous substance, petroleum or other
deleterious material, including but not limited to any release of Hazardous Materials
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. Contractor must also give Railway prompt notice of all measures
undertaken to investigate, remediate, or respond to any aforementioned condition.
C. If Railway has notice from Contractor or otherwise of a release or violation of Environmental
Laws arising in any way with respect to the work which occurred or may occur during the
term of this Agreement, Railway may require Contractor, at Contractor’s sole risk and
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expense, to take timely measures to investigate, remediate, respond to or otherwise cure
such release or violation affecting the Railway’s Property.
D. If during the construction or subsequent maintenance of the work or Structures, or any
other soil-disturbing activities, soils or other materials considered to be environmentally
impacted are encountered, Contractor will stop work immediately and notify Railway. After
consultation with Railway, Contractor shall, at Contractor’s expense, characterize any such
impacted soils. Upon receiving sampling results, Contractor shall, at Contractor’s expense,
in consultation with Railway, manage, remove, and/or dispose any such impacted soils
offsite at an appropriately-licensed facility in accordance with Environmental Laws. Soil
characterization and applicable disposal requirements, shall be in accordance with
applicable federal, state, and local Environmental Laws or in consultation with an RAO
having the capacity and authority to make such a determination.
E. All soils and materials to be removed from the Railway Property or right of way must be
properly characterized, managed, transported, and disposed of at an appropriately-
licensed facility, at Contractor’s expense, in accordance with all Environmental Laws.
Contractor shall be the “Generator” of any and all such materials and waste, as such term
is defined in Environmental Laws.
F. Notwithstanding anything in this Section 1.08, Contractor understands that Railway has no
duty or obligation to monitor Contractor’s use of the property or right of way to determine
Contractor’s compliance with Environmental Laws, it being solely Contractor’s
responsibility to ensure that Contractor’s use is compliant. Regulatory plans and a
minimum of two (2) years of records/inspections shall be readily available. Contractor shall
promptly provide the same to the Railroad upon request.
G. “Environmental Law(s)” shall mean any federal, state, local, or tribal law, statute,
ordinance, code, rule, regulation, policy, common law, license, authorization, decision,
order, or injunction which pertains to health, safety, any Hazardous Material, or the
environment (including but not limited to ground, air, water, or noise pollution or
contamination, and underground or above-ground tanks) and shall include, without
limitation, CERCLA 42 U.S.C. §9601 et seq.; the Resource Conservation and Recovery
Act, 42 U.S.C. §6901 et seq., CERCLA; the Hazardous Materials Transportation Act, 49
U.S.C. §5101 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq.;
the Clean Air Act, 42 U.S.C. §7401 et seq.; the Toxic Substances Control Act, 15 U.S.C.
§2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. §300f et seq.; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. 11001 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 to 136y; the Oil Pollution Act, 33
U.S.C. 2701 et seq.; and the Occupational Safety and Health Act, 29 U.S.C. 651 et seq.;
all as have been amended from time to time, and any other federal, state, local, or tribal
environmental requirements, together with all rules, regulations, orders, and decrees now
or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or
may be changed or amended or come into effect in the future.
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H. “Hazardous Material(s)” shall include but shall not be limited to any substance, material, or
waste that is regulated by any Environmental Law or otherwise regulated by any federal,
state, local, or tribal governmental authority because of toxic, flammable, explosive,
corrosive, reactive, radioactive or other properties that may be hazardous to human health
or the environment, including without limitation asbestos and asbestos-containing
materials, radon, petroleum and petroleum products, urea formaldehyde foam insulation,
methane, lead-based paint, polychlorinated biphenyl compounds, hydrocarbons or like
substances and their additives or constituents, pesticides, agricultural chemicals, and any
other special, toxic, or hazardous (i) substances, (ii) materials, or (iii) wastes of any kind,
including without limitation those now or hereafter defined, determined, or identified as
“hazardous chemicals,” “hazardous substances,” “hazardous materials,” “toxic
substances,” or “hazardous wastes” in any Environmental Law.
9) Personal Injury Reporting
A. 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.
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident/incident, highway rail grade crossing
accident or automobile accident, ensure that appropriate information is obtained, forms
completed and that data entry personnel are aware that injuries relate to that specific event.)
Injured Person Type:
Passenger on train (C) Non-employee (N)
(i.e., emp of another railroad, or, non-BNSF emp
involved in vehicle accident, including company
vehicles)
Contractor/safety
sensitive (F) Contractor/non-safety sensitive (G)
Volunteer/safety
sensitive (H) Volunteer/other non-safety sensitive (I)
Non-trespasser (D) - to include highway users involved in highway rail grade
crossing accidents who did not go around or through gates
Trespasser (E) - to include highway users involved in highway rail grade crossing
accidents who went around or through gates
Non-trespasser (J) - Off railroad property
If train involved, Train ID:
________________________________
Transmit attached information to Accident/Incident Reporting Center by:
Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident-
Reporting.Center@BNSF.com
Officer Providing Information:
(Name) (Employee No.) (Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING
REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903
AND 83 U.S.C. 490
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
Please complete this form and provide to the BNSF supervisor, who will input this information into the EHS Star system. For questions, call (817)
352-1267 or email Safety.IncidentReporting@BNSF.com.
Accident City/State: Date: Time:
County: Temperature: Weather:
(if non-BNSF location)
Name (Last/First/MI):
Age: Gender (if available):
Company:
eRailsafe Badge Number: Expiration Date:
BNSF Contractor Badge Number: Expiration Date:
Injury: _ Body Part:
(e.g., laceration) (e.g., hand)
Description of accident (including how accident occurred, potential cause, etc.):
Work activity in progress at time of accident:
Tools, machinery, or hazardous materials involved in accident:
Treatment:
First Aid Only
Required Medical Treatment
Other Medical Treatment:
Dr. Name: Date:
Dr. Street Address: City: State: Zip:
Hospital Name:
Hospital Street Address: City: State: Zip:
Diagnosis:
THIS REPORT IS PART OF BNSF’S ACCIDENT REPORT PURSUANT TO THE ACCIDENT REPORTS STATUTE AND, AS SUCH SHALL NOT “BE ADMITTED
AS EVIDENCE OR USED FOR ANY PURPOSE IN ANY SUIT OR ACTION FOR DAMAGES GROWING OUT OF ANY MATTER MENTIONED IN SAID
REPORT….” 49 U.S.C. § 20903. See 49 C.F.R. § 225.7(b).
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EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File: ______________________________________
RAO Project: ______________________________________
Renton Art Oasis, a/an (hereinafter called “Contractor”), has entered into an agreement
(hereinafter called “Agreement”) dated ______________, 20__, [***Drafter’s Note: insert the
date of the contract between the RAO and the Contractor here] with [Drafter’s Note: insert
the name of the RAO here] for the performance of certain work in connection with the following
project:___________________. Performance of such work will necessarily require Contractor to
enter BNSF RAILWAY COMPANY (hereinafter called "Railway") right of way and property
(hereinafter called "Railway Property"). The Agreement provides that no work will be commenced
within Railway Property until the Contractor employed in connection with said work for [insert
RAO name here] (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 Agreement,
has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
A. 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. THE LIABILITY ASSUMED BY
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CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE
DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR
CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS,
EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE INTENSIONAL MISCONDUCT OR GROSS
NEGLIGENCE OF RAILWAY.
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.
B. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, 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.
C. 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.
D. 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
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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
Railway to the fullest extent permitted by applicable law.
E. It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
2) TERM
A. This Agreement is effective from the date of the Agreement 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.
3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability “CGL” Insurance
i) The policy will provide 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 provider. Coverage must be purchased on a post 2004 ISO occurrence form or
equivalent and include coverage for, but not limited to, the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury and Advertising Injury
(3) Fire legal liability
(4) Products and completed operations
ii) This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
(1) definition of “Insured Contract” will be amended to remove any exclusion or other
limitation for any work being done within 50 feet of RAILWAY’s property.
(2) Waiver of subrogation in favor of and acceptable to RAILWAY; and
(3) Additional insured endorsement in favor of and acceptable to RAILWAY and include
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coverage for ongoing operations and completed operations; and
(4) Separation of insureds; and
(5) The policy will be primary and non-contributing with respect to any insurance carried
by RAILWAY.
iii) 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 Railway employees.
iv) 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.
B. Business Automobile Insurance
i) The insurance will provide minimum coverage with a combined single limit of at least
$1,000,000 per accident, and include coverage for, but not limited to the following:
(1) Bodily injury and property damage
(2) Any and all vehicles owned, used or hired
ii) The policy will include the following endorsements or language, which will be
indicated on or attached to the certificate of insurance:
(1) Waiver of subrogation in favor of and acceptable to RAILWAY;
(2) Additional insured endorsement in favor of and acceptable to RAILWAY;
(3) Separation of insureds;
(4) The policy shall be primary and non-contributing with respect to any insurance
carried by RAILWAY.
C. Workers Compensation and Employers Liability Insurance
i) Workers Compensation and Employers Liability insurance including coverage for, but
not limited to:
(1) Contractor’s statutory liability under the worker’s compensation laws of the state(s)
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in which the work is to be performed. If optional under State law, the insurance must
cover all employees anyway.
(2) 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.
ii) This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
(1) Waiver of subrogation in favor of and acceptable to Railway.
D. Railroad Protective Liability insurance
i) Railroad Protective Liability insurance naming only the Railway 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 12 04 and include the
following:
(1) Endorsed to include the Pollution Exclusion Amendment
(2) Endorsed to include the Limited Seepage and Pollution Endorsement.
(3) Endorsed to remove any exclusion for punitive damages.
(4) No other endorsements restricting coverage may be added.
(5) The original policy must be provided to the Railway prior to performing any work or
services under this Agreement.
(6) Definition of “Physical Damage to Property” shall be endorsed to read: “means direct
and accidental loss of or damage to all property owned by any named insured and
all property in any named insured’ care, custody, and control arising out of the acts
or omissions of the contractor named on the Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if
available) in Railway’s Blanket Railroad Protective Liability Insurance Policy.
E. Other Requirements:
i) Where allowable by law, all policies (applying to coverage listed above) shall contain
no exclusion for punitive damages.
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ii) Contractor agrees to waive its right of recovery against Railway for all claims and suits
against Railway. In addition, its insurers, through the terms of the policy or policy
endorsement, waive their right of subrogation against Railway for all claims and suits.
Contractor further waives its right of recovery, and its insurers also waive their right of
subrogation against Railway for loss of its owned or leased property or property under
Contractor’s care, custody or control.
iii) Allocated Loss Expense shall be in addition to all policy limits for coverages referenced
above.
iv) Contractor is not allowed to self-insure without the prior written consent of Railway. If
granted by Railway, any self-insured retention or other financial responsibility for
claims shall be covered directly by Contractor in lieu of insurance. Any and all Railway
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.
v) Prior to commencing services, Contractor shall furnish to Railway an acceptable
certificate(s) of insurance from an authorized representative evidencing the required
coverage(s), endorsements, and amendments. The certificate should be directed to
the following address:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: BNSF@certfocus.com
www.certfocus.com
vi) Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non-
renewal, substitution or material alteration.
vii) Any insurance policy shall be written by a reputable insurance company acceptable to
Railway 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 provided.
viii)If coverage is purchased on a “claims made” basis, Contractor hereby agrees to
maintain coverage in force for a minimum of three years after expiration, cancellation
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or termination of this Agreement. Annually Contractor agrees to provide evidence of
such coverage as required hereunder.
ix) 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.
x) Not more frequently than once every five years, Railway 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.
xi) If any portion of the operation is to be subcontracted by Contractor, Contractor shall
require that the subcontractor shall provide and maintain insurance coverage(s) as set
forth herein, naming Railway as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Railway to the same extent and
under the same terms and conditions as Contractor is required to release, defend and
indemnify Railway herein.
xii) Failure to provide evidence as required by this section shall entitle, but not require,
Railway to terminate this Agreement immediately. Acceptance of a certificate that
does not comply with this section shall not operate as a waiver of Contractor's
obligations hereunder.
xiii)The fact that insurance (including, without limitation, self-insurance) is obtained by
Contractor shall 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 Railway shall not be limited by the amount of the required
insurance coverage.
xiv) In the event of a claim or lawsuit involving Railway arising out of this agreement,
Contractor will make available any required policy covering such claim or lawsuit.
xv) These insurance provisions are intended to be a separate and distinct obligation on
the part of the Contractor. Therefore, these provisions shall be enforceable and
Contractor shall be bound thereby regardless of whether or not indemnity provisions
are determined to be enforceable in the jurisdiction in which the work covered
hereunder is performed.
xvi) For purposes of this section, Railway shall mean “Burlington Northern Santa Fe
LLC”, “BNSF Railway Company” and the subsidiaries, successors, assigns and
affiliates of each.
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4) SALES AND OTHER TAXES
A. In the event applicable sales taxes of a state or political subdivision of a state of the United
States are levied or assessed in connection with and directly related to any amounts
invoiced by Contractor to Railway (“Sales Taxes”), Railway shall be responsible for paying
only the Sales Taxes that Contractor separately states on the invoice or other billing
documents provided to Railway; provided, however, that (i) nothing herein shall preclude
Railway from claiming whatever Sales Tax exemptions are applicable to amounts
Contractor bills Railway, (ii) Contractor shall be responsible for all sales, use, excise,
consumption, services and other taxes which may accrue on all services, materials,
equipment, supplies or fixtures that Contractor and its subcontractors use or consume in
the performance of this Agreement, (iii) Contractor shall be responsible for Sales Taxes
(together with any penalties, fines or interest thereon) that Contractor fails to separately
state on the invoice or other billing documents provided to Railway or fails to collect at the
time of payment by Railway of invoiced amounts (except where Railway claims a Sales
Tax exemption), and (iv) Contractor shall be responsible for Sales Taxes (together with
any penalties, fines or interest thereon) if Contractor fails to issue separate invoices for
each state in which Contractor delivers goods, provides services or, if applicable, transfers
intangible rights to Railway.
B. Upon request, Contractor shall provide Railway satisfactory evidence that all taxes
(together with any penalties, fines or interest thereon) that Contractor is responsible to pay
under this Agreement have been paid. If a written claim is made against Contractor for
Sales Taxes with respect to which Railway may be liable for under this Agreement,
Contractor shall promptly notify Railway of such claim and provide Railway copies of all
correspondence received from the taxing authority. Railway shall have the right to contest,
protest, or claim a refund, in Railway’s own name, any Sales Taxes paid by Railway to
Contractor or for which Railway might otherwise be responsible for under this Agreement;
provided, however, that if Railway is not permitted by law to contest any such Sales Tax in
its own name, Contractor shall, if requested by Railway at Railway’s sole cost and expense,
contest in Contractor’s own name the validity, applicability or amount of such Sales Tax
and allow Railway to control and conduct such contest.
C. Railway retains the right to withhold from payments made under this Agreement amounts
required to be withheld under tax laws of any jurisdiction. If Contractor is claiming a
withholding exemption or a reduction in the withholding rate of any jurisdiction on any
payments under this Agreement, before any payments are made (and in each succeeding
period or year as required by law), Contractor agrees to furnish to Railway a properly
completed exemption form prescribed by such jurisdiction. Contractor shall be responsible
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for any taxes, interest or penalties assessed against Railway with respect to withholding
taxes that Railway does not withhold from payments to Contractor.
5) ENVIRONMENTAL
i) Contractor shall strictly comply with all Environmental Laws (as defined below).
Contractor shall not maintain a "treatment," "storage," "transfer" or "disposal" facility,
or "underground storage tank," as those terms are defined by Environmental Laws, on
the Railway Property or the right of way. Contractor will not handle, transport, release
or suffer the release of Hazardous Materials (as defined below) on or about the
Premises. Small quantities of diesel fuel, engine oil, and hydraulic fluids used in the
operation of Contractor’s equipment shall not be deemed a violation of this Section 5.
ii) Contractor shall give Railroad immediate notice to Railroad’s Resource Operations
Center at (800) 832-5452 of any release of Hazardous Materials on, from, or affecting the
Premises. Contractor shall immediately respond to any release on or from the Premises.
Any violation of Environmental Laws or any inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to Contractor’s use
of the Premises must be immediately reported to Railroad at
EnvironmentalLeases@bnsf.com. Contractor also shall give Railroad prompt notice of all
measures undertaken on behalf of Contractor to investigate, remediate, respond to or
otherwise cure a release or violation.
iii) If Railway has notice from Contractor or otherwise of a release or violation of
Environmental Laws caused by Contractor or arising in any way with respect to
Contractor’s work which occurred or may occur during the term of this Agreement, Railway
may require Contractor, at Contractor’s sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the
Railway’s Property.
iv) If during the construction or subsequent maintenance of the work or Structures, or any
other soil-disturbing activities, soils or other materials considered to be environmentally
impacted are encountered, Contractor will stop work immediately and notify Railway. After
consultation with Railway, Contractor shall characterize any such impacted soils. Upon
receiving sampling results, Contractor shall, in consultation with Railway, manage,
remove, and/or dispose any such impacted soils offsite at an appropriately-licensed facility
in accordance with Environmental Laws. Soil characterization and applicable disposal
requirements, shall be in accordance with applicable federal, state, and local
Environmental Laws or in consultation with an RAO having the capacity and authority to
make such a determination.
v) All soils and materials to be removed from the Railway Property or right of way must be
properly characterized, managed, transported, and disposed of at an appropriately-
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licensed facility in accordance with all Environmental Laws. Either Contractor or RAO
shall be the “Generator” of any and all such materials and waste, as such term is defined
in Environmental Laws.
vi) All fill materials to be imported to Railway’s property shall be certified clean fill or from
a Railway approved source, and supporting documentation shall be provided to Railway
upon request.
Contractor shall promptly report to Railroad in writing any conditions or activities upon the
Railroad Property known to Contractor which create a risk of harm to persons, property or
the environment and shall take all reasonable actions necessary to prevent injury to
persons or property arising out of such conditions or activities; provided, however, that
Contractor’s reporting to Railroad shall not relieve Contractor of any obligation whatsoever
imposed on it by this Agreement. Contractor shall promptly respond to Railroad’s request
for information regarding said conditions or activities.
vii) Notwithstanding anything in this Section 5, the parties agree that BNSF has no duty
or obligation to monitor Contractor’s use of the property or right of way to determine
Contractor’s compliance with Environmental Laws, it being solely Contractor’s
responsibility to ensure that Contractor’s use is compliant. Regulatory plans and a
minimum of two (2) years of records/inspections shall be readily available. Contractor
shall promptly provide the same to the Railroad upon request.
viii) "Environmental Law(s)” shall mean any federal, state, local, or tribal law, statute,
ordinance, code, rule, regulation, policy, common law, license, authorization, decision,
order, or injunction which pertains to health, safety, any Hazardous Material, or the
environment (including but not limited to ground, air, water, or noise pollution or
contamination, and underground or above-ground tanks) and shall include, without
limitation, CERCLA 42 U.S.C. §9601 et seq.; the Resource Conservation and Recovery
Act, 42 U.S.C. §6901 et seq., CERCLA; the Hazardous Materials Transportation Act, 49
U.S.C. §5101 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq.;
the Clean Air Act, 42 U.S.C. §7401 et seq.; the Toxic Substances Control Act, 15 U.S.C.
§2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. §300f et seq.; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. 11001 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 to 136y; the Oil Pollution Act, 33
U.S.C. 2701 et seq.; and the Occupational Safety and Health Act, 29 U.S.C. 651 et seq.;
all as have been amended from time to time, and any other federal, state, local, or tribal
environmental requirements, together with all rules, regulations, orders, and decrees now
or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or
may be changed or amended or come into effect in the future.
ix) “Hazardous Material(s)” shall include but shall not be limited to any substance, material,
or waste that is regulated by any Environmental Law or otherwise regulated by any federal,
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state, local, or tribal governmental authority because of toxic, flammable, explosive, corrosive,
reactive, radioactive or other properties that may be hazardous to human health or the
environment, including without limitation asbestos and asbestos-containing materials, radon,
petroleum and petroleum products, urea formaldehyde foam insulation, methane, lead-based
paint, polychlorinated biphenyl compounds, hydrocarbons or like substances and their
additives or constituents, pesticides, agricultural chemicals, and any other special, toxic, or
hazardous (i) substances, (ii) materials, or (iii) wastes of any kind, including without limitation
those now or hereafter defined, determined, or identified as “hazardous chemicals,”
“hazardous substances,” “hazardous materials,” “toxic substances,” or “hazardous wastes” in
any Environmental Law.
6) EXHIBIT “C” CONTRACTOR REQUIREMENTS
A. The Contractor must observe and comply with all provisions, obligations, requirements and
limitations contained in the Agreement, and the Contractor Requirements set forth on
Exhibit “C” attached to the Agreement 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. Contractor
shall execute a Temporary Construction Crossing Agreement or Private Crossing
Agreement (http://www.bnsf.com/communities/faqs/permits-real-estate/), for any
temporary crossing requested to aid in the construction of this Project, if approved by
BNSF.
7) TRAIN DELAY
A. 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.
B. 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.
C. 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
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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 train delay caused by Contractor or its subcontractors.
D. The contractual relationship between Railway and its customers is proprietary and
confidential. In the event of a train delay covered by this Agreement, Railway will share
information relevant to any train delay to the extent consistent with Railway confidentiality
obligations. 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.
E. Contractor and its subcontractors must give Railway’s representative
(___________________) _____ (__) 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.
F. Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed
by its duly authorized officer the day and year first above written.
BNSF RAILWAY COMPANY Renton Art Oasis
Signature: Signature:
Printed Name: Printed Name:
Title: Manager Public Projects Title:
Date: Date:
Accepted and effective this ______day of 20__.
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E-mail:
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4/28/2026
President
Cathy Gonzales
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EXHIBIT D
Project Design and Description
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