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Home My WebLink AboutContract 11-058 • Council Approval 3/7/11 . CAG-11-037 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`h 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 Tukwila for the construction and maintenance of the Strander Boulevard Underpass ("Underpass Agreement"); and WHEREAS, Tukwila is not a participant in, and does not benefits from, the design and construction of the Strander Boulevard Underpass; however, because 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, because Tukwila is not a participant in the design and construction of the Strander Boulevard Underpass, 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 Agreementherein, it is agreed to by and between Tukwila and.Renton as follows: ",0 Last Saved by:.RuckeD1183 on:1/19/2011 7:02:27 AM Pile:C:tDocwnents and Sehingelrpoko01183 1DeoktoplG-BS-.T8 talm¢-(19-17_200.dgn Copyright©BergerABAM.All Rights Reserved. 14 RRO I iI &mD Tl r • �j oOr [ it N)mw -< N e( P _ OO C�JI 0 C IrrI 1 � 1 cn O U) li iII �to � LA } �1I 1, � t, � •��•' -n ? ` ` { t I —..___.._.....— Z l _. _ �...._...._ ______� �t ,A t 1 G t � III � ! � \ %•• • i -I- t it _ t � I i co �xLA z CD ( 1 ~• N � 1 $ u, I ._.—..._....._.._. 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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 Pagel of 3 0 Law Department Approved 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. IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: David P. Schneider Title: General Director-Land Revenue Management STATE OF TEXAS § COUNTY OF TARRANT § On this day of 2011, before me, the undersigned, a Notary Public in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider to me known to be the General Director-Land Revenue Management of BNSF Railway Company, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned,and on oath stated that he is authorized to execute the said instrument Witness my hand and official seal hereto affixed the day and year first above written. Notary Public in and for the State of Texas Residing at Fort Worth,Texas My appointment expires: Page 2 of 3 Law Department Approved GRANTEE: CITY OF TU ILA, a nicipal carporation By: c ' Name: Title: STATE OF WCASkL*,CtAtn § COUNTY OF WAt"MOTOW § This instrument was acknowledged before me on the day of Apr,L. 2011, by k AA�g6�K-) (name) as MAgO� (title) of t Ti, k w e I C a YY►t u 1( a,4 -COY �r ' r Notary Public (Seal) My appointment expires: i 46- Z feet -14 it, SIA Page 3 of 3 0 0 ,n Y' co r O N a 'r,• j O °z `�N L°ii.l Y••U m r! ! > vi J c� m oO20 i I ! 7 J ^J>� Z z w m¢ __ } I_,; O 3 2 r o cZ I i c a �� cc 3. v w I DO 0<: I m �. � N30 a !1 1 7 = 2 j 1n��• rn t/1 O N Vd 0 4) I' zfn>zvnLL- fn j W j , ! c>W 1+ 4 1 N S ¢z W LL.z m Li h ry oo aw (�y fn X, w wm� cooft a l ;i In t; I ON ', so•czol a 101 cnw iW � a"°cwt'"d s-aE•bi�l1 j �� 0.) L _ e+ Z O• a v �Q CD+ m e'. •lfcl 1 V_ I ��'�' C T T T s! to �. L v i- 3 ONIX'0313 HO'Z;Zp'9-dN TS-f£Ol S3 O 00 U m W L C la D m m Iy 0 C C m C F d ,_i5 n o'j„9 99at8 8 0 v Zm a I I o I ONIX ldO-Blj'OZ96-AB'99•OfOI S3 d C 813— m I + + I -N + 0 o ,I m N 00 —. In _ O II Q O O 1 y v O ;Us o c v rn V) v •Oa8 tIQ4 of 04lyD19J 8uDl tt l4lD JO BJOJJ9 -.lo—DD •A;I IDn 843{nOQD An 4DW t l D14948JOtJ W t4wt JSN9 8tµOu IDUDi—Pe P—ft9 841 441•^A14D"9 0 -+.+ aq Dl—P DuD iIDDD of 4oafpn8 el 41 ♦fM •taw=p BtJ.DD Au ID�841 ul AWIMOO AVAI M JSNG Ao Detn o t141 F Q EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General i 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 tinder Section') of said Exhibit"C-I". Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh,USA,214303-8519. 0 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-I 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 alt 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: City of Tukwila Bob Giberson 6300 Southcenter Blvd STE 100 Tukwila,WA 98188-2544 ® 1.0:1.05 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 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. 0 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 92904411. 0 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 I 0 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 9vorking drawing must include the proposed method of installation and removal of falscwork, 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 calcu€mions 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 track. 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 sv'Nwnv.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 'lhe 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 rail,%vay 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 Ute Railway and provide blasting plans to the Railway for review seven(7) calendar days prior to conducting any blasting operations adjacent to or on Railvay's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' Horizontally from ccntcrfine of nearest track . 21'-6" Venically above top of rail 2T-0' Vertically above top of rail for electric wires carrying less than 750 volts . 2$'-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.46101/05 I • 25' Horizontally from centerline of nearest track Z3'-3 W' 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 Railvwav and to the City of Tuk-wrila and must not be undertaken until approved in writing by . the Railway,and until the City of Tukwila his 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,andror 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 bonze by the Agency. • 1.03.07 The details of construction affecting the Raihvays 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 Cite 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 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 teens 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 Contractors tools,equipmettL 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 fit 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+rill perform wrrork within 25 feet of die centerline of a track must develop and implement a Roadway Worker Prot€ction/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines list:d in the on track safety portion of the Safety Orientation_ This Program must provide Roadway Worker proteetion/on track training for all employees of file 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 wrorv:cnntractororientation.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.'llte Contractor must designate an on-site Project Supervisor+vlto will serve as the contact person for the Raihvay 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 dagger Services: • 1.05A 1, Tile Contractor must give Railway's Roadmaster(telephone 206-625-6462)a minimum of thirty(30) calendar days advance notice vvhen Nagging services will be required so that the Roadmaster can make appropriate arrangements(i.e.,bulletin the danger'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.06/01/05 the Contractor must give the Roadmaster five(5)working days advance notice so that appropriate anangLmtents can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Rail%%ay'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, hen cranes or similar equipment positioned beyond 25-feet from the track centcriine 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. 0 1.05.02b When any excavation is performed below the bottom of tic elevation,if,in the opinion of Railway's representative,track or other Railway facilities may,be subject to movement or settlement. 0 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. 0 1.05.02d NVlten any hazard is presented to Railway track,communications,signal,electrical,or other facilities either due to persons,material,equipment or blasting in the vicinity. 0 1.05.02c Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. 0 1.05.03 Flagging services will be performed by qualified Railway flaggers. • I.05.03a flagging crew generally consists of one employee. Howvever,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 Rail wvay 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 !'ILL BE USED TO CALCULATE THE ACTUAL COSTS OF Fi.,AGGING PURSUANT TO THIS PARAGRAPH. 0 1.05.03d The average train traffic on this route is 23 freight trains per 24-hour period a_a timetable sped of 50 MPH and 28 passenger trains at a timetable speed of 19 MPH. 1.06 Contractor General Safety Requirements 0 1.06.01 !Fork in the proximity of railway track(s)is potentially harcrrdous 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. 0 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 flogger,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). 0 1.06.03 Workers most not work within 25 feet of the centerline of any track without an on track safety Form 0106 Rev.06!01M strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (I)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 flaglwork 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. 0 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. 0 1.06.05 Any employ=,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 Railways Property by that employee will be denied. 0 1.06.06 Any damage to Railway Property, or any ha72rd 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. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly %veapons in their possession while working on Railways Property. 0 1.06.08 All personnel protective equipment(PPQ used on Railway Property must meet applicable OSHA and ANSI specifications.Current Railway personnel protective equipment requirements are listed on the web site, w vw,wr,.contractoroiientation.com,however,a partial list of the requirements include: a)safety glasses with permanently affixed side shields (no yetlowv tenses); 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%vork wear. Hearing protection,fall protection,gloves,and respirators must be worn as required by Sate 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.) 0 1.06.09 THE CONTRACTOR NIVST NOT PILE OR STORE ANY MATERIALS,MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINT; OF THE NEAREST RAILWAY TRACK. aINIATERIALS, MACHINERY OR EQUIPMENT MUST NOT HE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHR1,4V RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SA11E 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. 0 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment mast 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.inwt be IcR inoperable and secured against movement.(Sec internet Engineering Contractor Safety Orientation program for more detailed specifications) 0 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with wvate'r drainage.Any work perrormed over water must meet all Federal.State and Local regulations. 0 1.06.12 All power line wires must be considered dangerous and of hiJi 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_06101/05 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 'rhe 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 die utility can be identified,then the Contractor must also notify the owner immediately. If there is any doubt about dte location of underground caNcs or lines of arty 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 drat will ensure that Raihvay employees and other personnel who may be working or passing through the area are protected from all hazards.All excavations must be back lilted 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 o: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 pre with respect to the release.including the taking of any appropriate measure to minimize the impact of such release. y 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 Contractors 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 Lie project. 17tc 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. I Form 0106 Rev.06101/05 NON-EMPLOYEE PERSONAL INJURY DATA COLLFCTION' INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. 1T SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/St 2. Date: Time: County: 3. Temperature: 4. Feather (if non-Railx%gy location) 5. Social Security 0 6. Name(last,first,mi) 7. Address: Street: City: St. "Zip: 8. Date of Birth: and/or Aga Gender: (if available) 9. (a) Injury: (b)Body Part: (i.e (a)Laceration(b)hand) It. Description of Aocident(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: Gin^ St Zip: 15. Hospital Name: 16. Hospital Address: Street: City: St: Zip: 17. Diagtursis: FAX TO RAILWAY AT(817)352-7595 AND COPY TO RAILNVAY RO.ADMASTER FAX Ii Form 0106 Rev.0640110S EXHIBIT"C-1" Agreement Between BNSF M41LNVAY COMPANY and the CONTRACTOR BNSF 1WLNVAY COMPANY Attention:iilanagerPublic 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 RYNILRVAY COie4;'ANY("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 ofTulAvtla(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 Punier,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 INDENINITY Contractor hereby waives,releases,indemnifies, de€ends and holds harmless Railway for all judgments,awards, claims,demands,and expenses(including attorneys'fees),for injury or death to all persons,including Railways and Contractor's oftiecrs and employees,and for loss and damage to property belonging to any person,arising in any manner from Contractor's or any of Contractors subcontractors'acts or omissions or any work performed on or about Railway's property or right-of-6vay. 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(RC%V'title 51)and assumes potential liability for all actions brought by its employees. 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 CLAIi\IED. Form 0103 Rev.03/01105 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 ltand12 to a conclusion such claims,and in the event of a suit being brought against Rnih+ay,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 writs 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 indemnifv 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 1 TERINi This Agreement is effective from the date of the Contract until(i)the completion of the project set forth. herein, and (6) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INISUR4,NCE 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 S2,03-0,000 each occurrence and an aggregate limit of at least $4,000,030 but in no event less than the amount otherwise carried by the contractor_ Coverage must be purchased on a post 1.998 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 • wire legal liability • Products and completed operations This policy shall also contain the follow=ing endorsements,which shall be indicated on the certificate of insurance: • TTte 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. O Waiver of subrogation in favor of and acceptable to Railroad. O Additional insured endorsement in favor of and acceptable to Railroad. O 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.06101!05 B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence,and incluca coverage for,but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned,used or hired The policy shalt also contain the following endorsements or language,w9uich 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 rand non-contributing with respect to any insurance carried by Railroad. C. Workers Compensation and Employers Liability insurance including coverage for,but not limited to: • Contractors statutory liability under the worker's compensation laws of the state(s)in w=hich 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 i.:iability 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 fonn CG 00 35 10 93 and include tine 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 Licensoes 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 contractors 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 coveted by contractor's insurance will be covered as if contractor elected not to include a deductible,self-insured retention or other fitiantcial responsibility for claims. Prior to commencing the Work,contractor must furnish to Railroad an acceptable ecrtificatc(s)of insurance including an original signature ofthe authorized representative evidencing the required coverage,endorsements,and amendments. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such Forty 0106 Rev.06/01M • i policy(ics)to notify Railroad in writing at least 30 days prior to any cancellation, non-renc%val, 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 Ivlammager Public Projects 2454 Occidental Ave S Suite 2D Seattle,WA 95134 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 states)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 indemnif;,Railroad herein. Failure to provide evidence as required by this section�vill 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 mvaimcr of contractor's obligations hereunder. The fact(tint 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 Fc Corporation', "BNSF. RAILWAY COWANY"and the subsidiaries,successors,assigns and affiliates of each. Section 4. EXHIBIT"C"CONTR;XCI'OR REQUIREMENTS 'fhe 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 appartcnances thereto,resulting from use,occupancy,or presence of its employees,representatives,or agents or subcontractors on or about tie construction site. Section S. 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 affcets 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 0105 P.ev.06101105 For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as . determined from Raihway'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,internodal, coal and freight trains operate under incentive/penalty contracts between Raihvay and its custaner(s). Under these arrangements,if Raihwav does not ineet 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. 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. Damages for train delay are currently$676.27 per hour per incident THE RATE THEN iN EFFECT AT THE T111E OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WiLL BE USED TO CALCULATE TIME 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 wvindows. 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 acrd 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:_7_ip:� Fax: Phone: E-mail: Form 0106 Rev.05101105 Exhibit D ,e••a MAINTAIN PROPRIETARY CONFIDENII IALITY a»a»♦ BNSF RAILWAY COMPANY FHPM ESTIMATE FOR CITY OF TUKWILA - LOCATION TUKWILA DETAILS OF ESTIMATE PLAN ITEM: 000175941 VERSION: PURPOSE,JUSTIFICATION AND DESCRIPTION Pip-FLAGGING-LS 51-MP 11.060-STRANDER BLVD-TUKWILA,WA-SEATTLE SUB-N%VN DIV-RDM HUGHES-DE 111POL DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER: . FLAGGING FOR UNDERPASS CONSTRUCTION BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: 1000,1,BILLABLE TO CITY OF TUK\VI LA,\VA MAINTAIN PROPRIETARY CONFIDENTIALITY THE PHYSICAL LIMITS OF THIS PROJECT ARE DESCRIBED BY LINE SEGMENT,N41LE POST RANGES.AND IN SOME CASES TRACK WU`MBER THIS IS T14E PRIMARY AREA FOR THE PROJECT.THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS. PROJECTS THAT INCLUDE SIGNAL,ELECTRICAL,OR TELECOMMUNICATION EQUIPMENT MAY REQUIRE ACTIVITY BEYOND THESE DEFINED TRACK LIMITS.ALL OR PORTIONS OF SOME PROJECTS M,AY OCCUR IN AREAS WHERE NO MILEPOST SIGNS FIST SUCH AS YARDS. THIS ESTIMATE IS GOOD FOR 90 DAYS.THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR.' ATERIAL,AND - OVERHEAD. DESCRIPTION QUANTITY UINI COST TOTALS seas»arias LABOR .....arias FLAGGING-OTHERRO.W. CAP 2931.0 MH 72324 PAYROLL ASSOCIATED COSTS 43,763 EQUIMMENT EXPENSES 23,917 . DA LABOR OVERHEADS 69.634 INSURANCE EXPENSES 11.253 TOTAL LABOR COST 221.071 221.071 se•a•a•aaaaas MATERIAL ............. TOTAL DIATERIAL COST 0 0 assse.aa•s OTHER asassssasa `DOTAL OTHER ITEMS COST - 0 0 PROJECT SUBTOTAL 221,071 CONTINIGENCIES 22,107 BILL PREPARATION FEE - 2,432 GROSS PROJECT COST 245.610 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 245,610 Page 5 of 5 Exhibit D "+k" MAINTAIN PROPRIETARY CONFIDENTIALITY •'ks• BNSF RAILWAY COMPANY FIIPN4 ESTIMATE FOR CITY OF TUKWILA LOCATION 'TUKWILA DETAILS OF ESTIMATE PLANITEM: 000175942 VERSION: I PURPOSE,JUSTIFICATION AND DESCRIPTION PIP-INSPECTION-LS 51-::\4P 11.060-STRANDER.BLVD-TUKWIL.4,WA-SEATTLE SUB-NWN DIV-RDM HUGHES-DE I IIPOL DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER: INSPECTION FOR UNDERPASS CONSTRUCTION BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: 100%BILLABLE TO CITY OF TUKWILA,WA .LI.AI\TFAIN, PROPRIETARY CONFIDENTIALITY THE PHYSICAL LIMCFS OF THIS PROJECT ARE DESCRJBED BY LINE SEGMENT,MILE POST RANGES.AND IN SOME CASEi TRACK - NUMBER.THIS IS THE PRIMARY AREA FOR THE PROJECT.THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS. PROJECTS THAT INCLUDE SIGNAL,ELECTRICAL,OR TELECOMMUNICATION EQUIPMENT MAY REQUIRE ACTIVITY BEYOND THESE DEFINED TRACK LIMITS.ALL OR PORTIONS OF SOME PROJECTS MAY OCCUR IN AREAS WIIERE NO MILEPOST SIGNS FIST SUCH AS YARDS. THIS ESTIMATE IS GOOD FOR 90 DAYS.THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR,MATERIAL,AND OVERHEAD. . DESCRIPTION QUANTITY Ulm COST TOTALS ssksrsr#rr LABOR ss••rr•.w . TOTAL LABOR COST 0 0 •#k••rrk•k•kk MATERIAL sesrsssssss•s TOTAL MATERIAL COST 0 0 #i#•ikkikr OTHER sksk##srrs INSPFCTION 1.0 LS 150.000 - TOTAL OTHER ITE\4S COST 150,000 150.000 PROJECT SUBTOTAL 150,000 CONTINGENCIES 151000 BILL.PREPARATION FEE 1.650 GROSS PROJECT COST 166,650 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 166,650 IIII Page 3 of 3 i Exhibit D AUTHORITY FOR EXPENDITURE (FOR IN-111IN:AL P,NSF RAILWAY USE ONLY) .......... - LOCATION: VARIOUS TO TUKWILA LINE SEGMENT: 51 AFENUMBER: PLANITEM NUMBER: VARIOUS MILEPOST: 10.5 TO 11.0 RFA NUMBER: 5909911 PROPERTY OF: BNSF RAILWAY COMPANY DIVISION: NW CPARW—MBER: CB96021I OPERATED BY: BNSF RAILWAY COMPANY SUBDIVISION: SEATTLE BUDGETYF.AR: 2011 JOINT FACILITY: VARIOUS TRACKTYPE: S BUVGF'TCiASS: 6 %BILLABLE(-1-): 100.0 TAX STATE: WA REPORTING OFFICE: 117 SPONSOR: VP ENGINEERING CENTER/ROLLUP: 53504 PURPOSE,JUSTIFICATION AND DESCRIPTION PIP-FINAL ALIGNMENT-SHIFT CONSTRUCTION AT STRA\DER BLVD-LS 51 SEATTLE SUB N1VN DIV-RQSCR B.STEINKAMP-100:5 Bill-ABLE TO XXXXX PLAN ITEM UNE SEG BEG MP FND\9P TRK NBR BEGIN STATION END STATION PROJECT TYPE BUD YEAR 000176750 51 10.5 11.0 S FINAL ALIGNMT TUKWILA PUBLIC IMPROVEMENT PROJECT 2011 000176757 51 10.5 11.0 S SHOOFLYI TUKWILA PUBLIC L?.4PROVEMENTPROJECT 2011 000176764 51 10.5 11.0 S SHOOFLY2 TUKWILA PUBLIC IMPROVEMENT PROJECT 2011 CASH CAPITAL NONC.ASHCAPITAL OPERATINGEYP REMOVALCOSCS BILLABLE- TOTALS LABOR COSTS 0 0 0 0 865,946 865,946 MATERIAL COSTS 0 0 0 0 489,259 489.259 OTHERCOSTS 0 0 ' 0 0 284.330 . 284,330 TOTALS 0 0 0 0 1,634,535 - 1,639.535 SYSTEM MAINTENANCE AND PLANNING- KANSAS CITY _ � PRINTED ON_0111412011 ESTIMATE REF.NUMBER: 5909911 ESTIMATED BY:STEFFEN COSITNG DA'fS` 01/14/2011 PRINTED BY:STEFFEN Page I of 17 Exhibit D assn, MAINTAIN PROPRIETARY CONFIDENTIALITY 'aaaa BNSF RAILWAY COMPANY FIIPM ESTIMATE FOR WILL BE PROVIDED LOCATION FINA1.ALIGN':1MT TO TIJK\VILA DETAILS OF ESTIMATE PLAN ITEM: 000176750 VERSION: I PURPOSE,JUSTIFICATION AND DESCRIPTION DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER PIP-FINAL ALIGNMENT-SHIFT CONSTRUCTION AT STRANDER BLVD LS 51 SEATTLE SUB N\4,N DI V MP 10.5-3 i TO BE PROVIDED BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: LINEOVL•R TRACK FROM SHOOFLY RFA REQUESTED BY:BEN STEINKAMP AFE REQUESTED BY: MA MAIN PROPRIETARYCONFIDENTLALITY THE PHYSICAL.LLAMFFS OF THIS PROJECT ARE DESCRIBED BY LINE SEGMENT,MILE POST RANGES,AND IN SOME CASES TRACK _ NUMBER.THIS IS THE PRIMARY AREA FOR THE PROJECT.THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS.PROJECTS THAT INCLUDE SIGNAL.ELECTRICAL.OR TELECOMMUNICATION EQUIPMENT MAY REQUIRE ACTIVITY BEYOND THESE DEFINED TRACK LIMITS.ALL OR PORTIONS OF SOME PROJECTS MAY OCCUR IN AREAS WHHRENO MILEPOST SIGNS EXIST SUCH AS YARDS.THIS ESTIMATE IS GOOD FOR 90 DAYS.THEREAFITERTHE[ESTIMATE IS SUBJECTTO CHANGE 1N COST FOR LABOR, MATERIAL,AND OVERHEAD. - DESCRIPTION QUANTITY UTAM COST TOTALS A#fa,satai ' LABOR saaesarres LINEOVERTRACK-OPER 1920.0 MH _ 47,824 PLACE CROSS TIES-CAP 300.0 MF1 7,473 PLACE FIELD\MELDS.CAP 710 Ml{ 2.015 SIGNAL LABOR-TIES 60.0 MH 1,342 SURFACE TRACK-REPLACEMENT-CAP 250.0 MH 6,790 UNLOAD BALLAST-REPLACEMENT-CAP '710 MH 1,794 UNLOAD CROSS TIES-ADDITION-GAP 240.0 Mil 5,978 UNLOAD OTM-ADDITIONAL-CAP 3.0 MFl 75- PAYROLL ASSOCIATED COSTS 44,647 EQUIPMENT EXPENSES 43,415 DA LABOR OVERHE ADS 71,041 INSURANCE EXPENSES 11,610 TOTAL LABOR COST 244,557 244,557 MATERIAL - #=cr•===•#srr BALLAST,SPRAGUE,WA (MTN,NWN,NAPE. 500.0 NT"• - '2,750 RAIL,TRANSN,BE.,40 FT.136-14 WORN 132 3.0 EA X - 9,512 SPIKE,TRACK,519 X6-IN,241 PER KEG 200.0 EA 74 TIE,TRK,GRADE 5.PRE-PLATED,PANDROI_0N,ROUND 100.0 EA•• 10,000 WELDKIT•GENERIC FOR ALL RAIL WEIGHTS 3.0 KT 556 SIGNALMATERIAL 5.0 DAY 875 MATERIAL HANDLING LI-'5 ONLINE TRANSPORTATIONN, 7,954 USE TAX 2,076 OFFLINE TRANSPORTATION is TOTAL MATERIAL COST' 33.950 33.950 OTHER CRANE RENTAL 1.0 LS .20.000'. LOADER RENTAL 1.0 LS 25,000 TOTAL OTHER ITEMS COST 45,000 45,000 PROJECT SUBTOTAL 323;07 CONTINGENCIES 16,396 BILL PREPARATION FEE ?,400 Page 6 of 17 Exhibit D GROSS PROJECT COST 343,303 LESS COST PAID BY BNSF - 0 TOTAL BI LLABLE COST 343,303 Page 7 of 17 Exhibit 0 ACCT CST RSN PPE DESCRIPTION QTYIST OT VIN1 CASH NONCASH OPER REMOVAL •OTHER SUBTOTAL 45,000 0 0 •GANG SUBTOTAL NONE•NO GANG NEEDED 45,000 0 0 0 R 123 FLAGGING-OTHER R.O.W. CAP 320.00 160.0 MH 26,901 i "LABOR SUBTOTAL 26.901 0 0 0 'ADDITIVES PAYROLL ASSOCIATED COSTS 16,277 ' DA LABOR OVERHEADS 25,919 - MSURANCE EXPENSES 4.234 'GANG SUBTOTAL FLAGA9AN-1\I-FLAG.MAN,I MAN 73.331 0 0 - 0 PROJECT SUBTOTAL 601,344 0 0 1,036 CONTINGENCIES 60,134 0 -0 0 BILL PREPARATIONFEf_ 6,855 0 0 10 PROJECT GROSS COST 66$,333 0 0 1,046 LESS COST PAID BY OTHERS 668,333 0 6 1,046 PROJECTNETCOST 0 0 0 0 Page 10 of 17 Exhibit D ***** MANITAN PROPRIETARY CONFIDENTIALITY **x*r BNSF RAILWAY COMPANY FHPM ESTIMATE FOR TOB£PROVIDED LOCATION SHDOFLYI TO TUKAV'ILA DETAILS OF ESTIMATE PLAN iTl M: 000176757 VERSION: I PURPOSE,JUSTH ICATION AND DESCRIPTION DESCRIPTION OF PROJECTAS PROVIDED BY PROJECT ENGINEER PIP-FIRST SHOOFLY WEST OF MA NS FOR MAIN 2 AND MAIN 3 BRIDGE CONSTRUCTION AT STRANDER BLVD LS 51 SEATTLE SUB NiVN DIV MP 10.5-11 TO BE PROVIDED BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: RFA REQUESTED BY:BEN STEINKA\1P AFE REQUESTED BY: MAINTAIN PROPRIETARY CONFIDENTIALITY THE PHYSICAL LIMITS OF THIS PROJECT ARE DESCRIBED BY LINE SEGMENT,MILE POST RANGES,AND IN SOME CASES TRACK NUMBER.THIS IS THE PRIMARY AREA FOR THE PROJECT.THERE WILL BE CASES INHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS,PROJECTS TILAT INCLUDE SIGNAL,ELECTRICAL,OR TELECOMMUNICATION EQUIPMENT MAY REQUIRE ACTIVITY BEYOND THESE DEFINED TRACK LIMITS.ALL OR PORTIONS OF SOME PROJECTS MAX OCCUR IN AREAS WHERENO MILEPOST SIGNS EXIST SUCH AS YARDS.THIS ESTIMATE IS GOOD FOR 90 DAYS.THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL,AND OVERHEAD. DESCRIPTION QUANTITY UIM COST TOTAL S a:.asxre•e LABOR axxxssx•rx FLAGGING-OTHER R.O,W:CAP 480.0 MH 26.90t PLACE CROSS TIES-CAP 300,0 MH 7,47; PLACE FIELD WELDS-CAP 72.0 MH 2,015 PLACE RABIOTM-CAP 1920.0 \111 47,824 SIGNALLABOR-T'IES 60.0 \111 1,842 SURFACETP,ACK-RI-PLACEMENT-CAP 240.0 \114 6,790 UNLOAD CROSS TIES-ADDITION-GAP 240.4 MH 5,978 UNLOAD RAI1.lOTM-ADDITION-GAP 192,0 MH 4,783 PAYROLL ASSOCIATED COSTS 62,688 EQUIPMENT EXPENSES 45,130 DA LABOR OVERHEADS 99,821 INSURANCE EXPENSES IC303 TOTAL LABOR COST 327,548 327,548 - MATERIAL xea,••x•,•,>s - BALLAST,SPRAGUE,WA (MTN,NWN,NWE. 700.0 NT** 3,850 RAIL TRANSN.BF40FT.1;6-V4WOR:N132 8.0 FIX X S..i12 RAIL,136 LB NEW WELDED,PREMIUM: 2100.0 LF 46,095 SPIKE,TRACK,Sri X 64N.241 PER KEG 200.0 EA 74 TIE.TRK,GRADE-4,PRE-PLATED.PANDROL.61N.ROUND 1050.0 GA** 105,000 TIE.TRK,GRADE5,TREATED,HARDWOOD,8.5FT - 500.0 EA ** 23,500 WELDKIT,GENERIC FOR ALL RAIL WEIGHTS 8.0 KT 556 SIGNAL MATERIAL - 5.0 DAY 875 MATERIAL HANDLING 9,419 ONLINE TRANSPORTATION 14,723 USE TAX 17.210 OFFLNETRANSPORTATION 18 TOTAL MATERIAL COS( 229,832 - 229.832 xaxxaaxaie - - OTHER - xxre•sx,a, - CRANE RENTAL � 1.0 LS 20,000 LOADER RENTAL - - 1.0 LS 25,000 TOTAL OTHER ITEMS COST 45,000 45,000 PROJECT SUBTOTAL 602380 CONTINGENCIES 60.134 Page i1 of 17 Exhibit D BILL PREPARATION FEE 6,864 GROSS PROJECT COST 669,379 LESS COST PAID BY BNSF U TOTAL BILLABLE COST 669379 Page 12 of 17 I Exhibit D `••'• MAINTAIN PROPRIETARY CONFIDENTIALITY ••ss# BNSF RAILWAY COMPANY FHPN1 ESTIMATE FOR TO BE PROVIDED LOCATION SHOOFLY2 TO TUKWILA DETAILS OF ESTIMATE PLAN ITEM: 000176-764 VERSION: I PURPOSE,JUSTIFICATION ANDDESCRIPTION _ DESCRIPTION OF PROJECT AS PROL7DED BY PROJECT ENG WEER PIP-SECFOND SHOOFLY WEST OF MAINS FOR MAIN 2 AND MAIN 3 BRIDGE CONSTRUCTION AT STRANDER BLVD LS 51 SEATTLE SUB NWN, DIV\4P€OS-1 I TO BE PROVIDED BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: RFA REQUESTED BY:BEN STEINK.A,\IP AFE REQUESTED BY: MAINTAIN PROPRIETARY CONFIDENTIALITY THE PHYSICAL LIMITS OF THIS PROJECT ARE DESCRIBED BY LINE SFGMENT,,MILE POST RANGES,AND IN SOME CASES TRACK NUMBER.THIS IS THE PRIMARY AREA FOR THE PROJECT.THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS.PROJECTS THAT INCLUDE SIGNAL,ELECfRI CAL,OR TELECOMMUNICATION EQUIPMENTMAY REQUIRE ACTI ITY BEYOND THESE DEFINED TRACK LIMITS.ALL OR PORTIONS OF SOME PROJECTS MAY OCCUR IN AREAS WHERE NO MILEPOST SIGNS EXIST SUCH AS YARDS.THIS ESTIMATE IS GOOD FOR 90 DAYS,THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL-AND OVERHEAD. - DESCRIPTION - QUANTITY UtM COST TOTALS LABOR ff{#pfaf ff FLAGGING-OTHER R.O.W:CAP 480.0 MH 11,956 PLACE CROSS TIES-CAP 300.0 Mli 7,473 PLACE FIELD WELDS-CAP 72.0 MH - -_ 1015 PLACE RAILIOTM-CAP 1920.0 MH 47,824 SIGNAL LABOR-TIES 60.0 MH 1,€42 SURFACE TRACK-REPLACEMENT-CAP 240.0 MH 61790 UNLOAD CROSS TIES-ADDITION-CAP 240.0 MH 5,978 UNLOAD RAILIOTM-ADDITION=CAP 192.0 MH 4,783 PAYROLL ASSOCIATED COSTS $3,645 EQUIPMENT EXPENSES 52,164 DA LABOR OVER HEADS 85,421 INSURANCE EXPENSES 13,950 TOTALLABORCOST 293,841 293,841 #f«a#«#wfxfff MATERIAL #f ffifffff«ff BALLAST.SPRAGUE,W'A (MI:d,NWN,NWE, 500.0 NT'• 2.750 RAIL.;TRANSN,BF.40 FT,136-114 WORN 132 8.0 EA X 8,512 RAIL,1361,6 NEW WELDED,PREMIUM: 2100.0 LF 46.095 SPIKE,TRACK,518X6-IN.241 PER KEG 200.0 EA 74 TIE,TRK,GRADE 5,PRE-PL.ATEDPANDR046IN,ROUND 1050.0 EA •• 105,009 TIE,TRK.,GRADE 3,TREATF-D,HARDWOOD,8.5 FT - 500.0 EA f• _23.500 WELDKIT,GENERIC FOR ALL RAIL\-EIGHTS 10 KT 556 SIGNALMATERIAL 5.0 DAY 87S MATERIAL HANDLING - - 9,364 ONLINE TRANSPORTATION 11,623 USETAX 37,110 OFFLINE TRANSPORTATION 18 TOTAL MATERIAL COST 225.477 225,477 Naha#.asaa# OTHER «####af#•a - - - CRANE RENTAL _ 1.0 1S 20.000 LOADER RENTAL 1.0 LS 25,000 TOTAL OTHER ITEMS COST - - 45,000 45.1100 PROJECT SUBTOTAL 564.318 CO NTING ESC I ES 56.328 Page 16 of 17 Exhibit D RILL PREPARA-ION FEE 6207 GROSS PROJECT COST 626,853 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 636,853 Page 17 of 17 xxxxx MA14N7AIN PROPRIETARY CO.\TFIDE\'MALITY FxFxF BNSF RAILWAY COMPANY FHPM ESTIMATE FOR TO WHO LOCATION CP TUKWILA TO TUKW ILA DETAILS OF ESTIMATE PLAN ITEM: 000177702 VERSION: 1 PURPOSE,JUSTIFICATION AND DESCRIPTION FIEER OPTIC PROJECT-STRANDER BLVD RELOCATION LS 51 MP 10.5-I i SEATTLE SUB NWN D.IV REQUESTOR BEN STEINKAMP DESCRIPTION QUAN7-,TY UIM COST TOTALS fxaaa•sata - LABOR FFFFftRFFi COMMUNICATSONS LABOR 3300.0 MH 11,293 LABOR-OTHER R.O.W.EXPENDITURE-CAP 300.0 MH 7,046 SIGNAL TECH\RCIAN LABOR-CAP 300.0 MH 8,683 PAYROLL ASSOCIATED COSTS 16,350 EQUIPME\7 EXPENSES 15,598 DA LABOR OVERHEADS 26.034 INSURANCE EXPENSES 4,252 TOTAL LABOR COST 99,556 59,556 +etfmtsfftaft - . MATERIAL xFFxxtrtaffaf MATERIAL 1.0 LS 90.944 MATERIAL HANDLING 4,547 USE TAX 8,307 OFFLI\S TRANSPORTATION 1,145 TOTAL MATERIAL COST 1044.943 104,943 xtxxsamsat OTHER fttffxfxFt CONTRACTED CONSTRUCTION 1.0 LS 265,120 E:VGI TERINGICONSTRUCTIONil4A\zAGEME\'T 1,0 LS 155.360 TOTAL OTHER ITEMS COST 420,480 420,480 PROJECT SUBTOTA L 614,979 CONTINGENCIES 8.479 BILL PREPARATION FEE 6,235 GROSS PROJECT COST 629._693 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 629,693 Exhibit E [Public Projects Managers 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 I 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, Megan McIntyre Manager.Public Projects Exhibit F Bridge Requirements BRIDGE DESIGN,PLANS&SPEC]FICATioNs: 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%,600/4 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 imitation to bid on construction of the Structure,the Agency should conduct a pre-bid meeting %vhcre prospective Contractors have the opportunity to communicate with BNSF personnel as to the site spebific 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 BNSI 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 rv-ay,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%.ill 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%valls,placing concrete,placing soil backfll and compaction processes.'Certain components,normally produced off site,%ill 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. I f the QC services provided arc 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 electrenic set of the bridge plans labeled"As Built".Those plans will reflect any mid 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 o€the track and ballast over the bridge and the earth embankment. approaches. The Agency will be responsible far maintenance of the structural components cfthe bridge,including- deck waterproofing and paint. Form 0106 Rev.G6101105 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 strcambed, 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 strcambed laterel migration and strcambed degradation remed.iation. 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 front 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.06/01105 f f � 1 ,7 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 matters covered herein and the assignment of the BNSF agreement to Renton from Tukwila. supersedes and cancels and prior understanding with respect to the matters covered herein. 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 ' L Jim erton, May Denis Law, Mayor Da Dated Attest/Authenticated: Attest/Authenticated: ASSIGNMENT AGREEMENT—Tukwila and Renton Strander Blvd/SW 27h St—BNSF Page 2 �� I ' . i Tukwila City Clerk Ja on A. Seth, Deputy City Clerk Approved as to Form: Approved as to Form: Tuk it it #rney Renton City Attorney Agreed and Accepted by: BNSF RAILWAY COMPANY By: Name: X&al /: 141 Ail-f Title: �'1� I ASSIGNMENT AGREEMENT-Tukwila and Renton Strander Blvd/SW 27"'St-BNSF Page 3 . ',. • � � � � , i �I� I I III �I 11-049 RIDERIPASS AGREEMENT Council r App oval 3/7/11 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 �Q day of L (� corporation 201 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware p ("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 P 9 /akin in service of the Strander Boulevard Underpass under BNSF and Union Pacific tracks. i 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; (qtVQ6f a c'�( 61AJAL-S T A t ' T (b) Construct, operate, maintain, renew and/or relocate upon sVright-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 one-hundred sixty-two thousand, two-hundred seventy-three No/100 Dollars ($162,273) 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 Agency for any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Structure. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein. 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 one-hundred seventy-three thousand, four-hundred and No/100 Dollars ($173,400) 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; 2 (g) Modifications andiocations to BNSF signal or telecommunications faalities 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. expenses 5. BNSF may charge Agency for insurance expenses,including self-insurance e pe when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees,if any. 6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for completed .force-account work within thirty (30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send Agency a detailed invoice of final costs,segregated as to labor and materials_for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety (90)days of the date of the final invoice. BNSF will assess a finance charge of.033%per day(12%per annum)on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end. Finance charges will be noted on invoices sent to Agency under this section. ARTICLE III—AGENCY OBLIGATIONS In consideration of the covenants of BNSF set forth herein and the faithful performance thereof.Agency agrees as follows: 1. Agency must furnish to BNSF plans and specifications for the Project. 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 speclications meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes. 2. Agency must make any required application and obtain all required permits and approvals for the construction of the Project. 3 a 3. Agency must provide for4bmaintain minimum vertical and horizontal dearanko 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 3rd and 4`h 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 G1. Prior to performing any future maintenanoe 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 BNSFs 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 4 contractor(s) to notify BNSFs Manager of Public Projects thirty(30)calendar days prior Itmencing work on BNSF property or near BNSF tracks. 11. Agency or its oDntractor(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. i (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 BNSFs right-of-way,(2)any injury to ordeath 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 BNSFs right-of-way,and/or(3)any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ie4 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 lead against all loss,liability and damages,including e�mental damage,hazardous materials damage,or penalties or fines that may b�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 Contractor's agents or employees,to the extent of the Contractor's 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 contractor's expenses for the Project. (e) The plans and specifications for the Project must be in compliance with the Bridge Requirements set forth on Exhibit F. 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, COIJOCOSTS AND ATTORNEYS' FEES) OF ANY NA 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) (1) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE,(10 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 11 OF THIS AGREEMENT,M ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE 11 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 contractors)to reasonably adhere to the Projects construction schedule for all Project work. The parties hereto mutually agree that BNSPs 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 will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any 7 reallocation of labor forces by Bepursuant to this provision and any direct or indirect Oquences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF will have the right to stop construction work on the Project if any of the following everts 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,in uiiing, 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 oost 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 Struchae. 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) accurately describe the dm minimum actual avert calaclearangce from lc the bottom tlof 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 exceed two(2)years from the date of final inspection pursuant to Article III,Section 15. (f) Agency must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto. (g) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. (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 used in this paragraph, "Railroad" means 'Burlington Northee Santa Fe As 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 English Units)to BNSF, as well as one set of computer diskettes containing as built CAD drawings of the Structure and identifying the software used for the CAD drawings. The"as built plans"must comply with the Bridge Requirements set forth on Exhibit F and depict all information in BNSF engineering stationing and mile post pluses. The"as built plans"must also include plan and profile,structural bridge drawings and specifications,and drainage plans. All improvements and facilities must be shown. 14. Subject to the restrictions imposed by Article IV,Section 9 above,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,after,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 l 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 ads,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 r IN WITNESS WHEREOF 0-0 hereto have caused this Agreement to fluted 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: VIOL' ' ew Title: w S: AGENCY ASS. L PaSident Engineering Services CITY C TuICWILA By: Printed Name: Title: M WITNESS: Law Department Approved 11-049, Exh. B Council Approval 3/7/11 EASEMENT AGREEMENT FOR STRANDER BLVD UNDERGROUND ROADWAY Attachment to C&M Agreement THIS EASEMENT AGREEMENT FOR ("Easement Agreement') is made and entered into as of the day of 2011, ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and The City of Tukwila, a municipal corporation ("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 , [Project # 929044V], as described or depicted on Exhibit "A" attached hereto and made a part hereof(the"Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of March 20, 2011, concerning improvements on or near the Premises (the"C&M 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 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M 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 C&M 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"),. Grantee 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 C&M 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; (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 o oh 2916/r(/RS Form 704;Rev.04/26/05 1 • • it Law Department Approved (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. 2.1 Grantee and Grantor agree that the just compensation for the Temporary Easement represents the purchase price for the first year of the Temporary Easement term and further agree that if the term of the Temporary Easement extends beyond one year, the just compensation for the balance (if any) of the Temporary Easement term is and shall be zero and No/100 Dollars($0.00). Section 3 No Warranty of Any 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 Grantor's 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 GRANTEE'S 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 704;Rev.04/26/05 2 • • I Law Department Approved 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 Recordinq 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 ll of Grantor's legal fees and expenses. 9 9 P 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 Re mediation 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 704;Rev.04/26/05 3 • • i Law Department Approved 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 C&M 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 ( ) P 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 704;Rev.04/26/05 4 • • �I i Law Department Approved 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 Exchange. 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 Code 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 C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. 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" (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 90 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 shall 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 Form 704;Rev.04/26/05 5 Law Department Approved 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 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 C&M 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 C&M Agreement is, for whatever reason, no longer in effect. Witness the execution of this Easement Agreement as of the date first set forth above. 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