HomeMy WebLinkAboutContract CAG-07-148
*40101
RAILROAD OVERPASS AGREEMENT
BNSF File No's 091 685F, 091 686M, 091 687U
Hardie Avenue Railroad Overpass
U.S. D.O.T. No. 091 685F
Rainer Avenue Railroad Overpass
U.S. D.O.T. No. 091 686M
Shattuck Avenue Railroad Overpass
U.S. D.O.T. No. 091 687U
•
This Agreement ("Agreement"), is executed to be effective as of this day of ,
2002. ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware poration
("BNSF"), and the CITY OF RENTON, a political subdivision of the State of Washington ("Agency").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Renton, State of
Washington;
WHEREAS, BNSF desires to replace the existing Hardie, Rainer, and Shattuck Avenue Railroad
Overpasses by reconstructing the existing structures at railroad mileposts 11.55Z, 11.70Z, and 11.80Z
(respectively) on Line Segment 410,
WHEREAS, the City of Renton desires to participate in this reconstruction activity;
WHEREAS the City of Renton and BNSF have entered into a Memorandum of Understanding dated April
16, 2007 and supplemented by agreement dated July 17, 2007 detailing the parties' intent to advance this
project; and
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 reconstruction of the
Hardie, Rainier and Shattuck Avenue Railroad Overpasses (hereinafter referred to collectively 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. During portions
of construction, vehicular traffic will be excluded from the use of the affected streets. Additionally,
temporary controls during construction must be in compliance with Section 8A-5, "Temporary Traffic
Control Zones" of the Manual on Uniform Traffic Control Devices, U.S. Department of Transportation.
ARTICLE II-BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF
agrees as follows:
Form 0106 Rev.06/01/05
1. BNSF shall construct the structure on BNSF's right-of-way described further on Exhibit A,
excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain,
permission or authority from BNSF, to do the following:
(a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires,
pipelines and other facilities of like character upon, over or under the surface of said right-of-
way;
(b) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation,
such facilities as the BNSF may from time to time deem appropriate, provided such facilities
do not materially interfere with the Agency's use of the Structure;
(c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate,
provided such use or operations does not materially interfere with the Agency's use of the
Structure.
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 $8.95 million dollars
and as shown on Exhibit D attached hereto and made a part hereof. 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 notice to the Agency. Construction of the Project must include the following railroad work by
BNSF:
(a) Procurement of materials, equipment and supplies necessary for the railroad work (including
bridge construction, track construction, and associated grading);
(b) Final engineering, design, contract preparation; contract bid and award, and construction
management
(c) Furnishing flagging services necessary for the safety of BNSF's property and the operation
of its trains during construction of the Project as 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) Removal and disposal of the existing bridge structures;
(g) Removal and replacement of main track, grading to accommodate a track raise at Rainer
Avenue, installation of a new turnout and track to serve adjacent industries, and other
associated track work (including, but not limited to, removal and surfacing) as required to
construct the project.
(h) Reconstruction of the Structures (including all items incidental thereto);
(i) All necessary grading, including backfill of excavations
(j) Restoration of disturbed vegetation on BNSF's right-of-way;
(k) Acquisition of all required permits and approvals.
(I) Traffic Control.
(m) Restoration of Hardie, Rainier and Shattuck Avenues per approved plans supplied by
Agency.
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(n) 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;
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis and in
accordance with its labor agreements to perform such work with its own employees working under
applicable collective bargaining agreements.
4. BNSF may include as part of the cost of construction, insurance expenses, including self-
insurance expenses when such expenses cover the cost of Employer's Liability (including, without
limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the
Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or
amount of ultimate liability for injury, loss or death to BNSF's employees, if any.
5. 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. 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.
ARTICLE III—AGENCY OBLIGATIONS FOR WORK PERFORMED BY AGENCY
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 preliminary engineering plans for the Project. Said plans must be
submitted electronically in "PDF" to BNSF.
2. Agency must make a good faith effort to assist BNSF in obtaining any required permits and
approvals for the construction of the Project (including street closure permits, noise permits, and
temporary construction permits).
3. Agency must make any and all arrangements for the installation or relocation of wire lines, pipe
lines and other facilities owned by Agency which may be necessary for the construction of the Project.
4. Agency must maintain D.O.T. Crossing numbers in a conspicuous location below the
Structures.
5. 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.
6. 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
contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing
work on BNSF property or near BNSF tracks.
7. 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 (Edward Allard — 206 625 6179) and/or 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
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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) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering
representative (Edward Allard —206 625 6179) to stop construction at no cost to the
Agency or BNSF until these items are completed.
(c) In addition to the liability terms contained elsewhere in this Agreement and to the
fullest extent permitted by law, the contractor hereby indemnifies, defends and holds
harmless BNSF for, from and against all cost, liability, and expense whatsoever
(including, without limitation, attorney's fees and court costs and expenses) arising
out of or in any way contributed to by any act or omission of Contractor, its
subcontractors, agents and/or employees that cause or in any way or degree
contribute to (1) any damage to or destruction of any Lines by Contractor, and/or its
subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-
of-way, (2) any injury to or death of any person employed by or on behalf of any
telecommunications company, and/or its contractor, agents and/or employees, on
BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of
action for alleged loss of profits or revenue by, or loss of service by a customer or
user of such telecommunication company(ies) Any obligation to indemnify, defend
and hold harmless BNSF pursuant to this provision shall not apply to costs, liability,
and expenses caused by the sole negligence of BNSF, its agents, employees,
successors or assigns. Where such costs, liability, and expenses are caused by or
result from the concurrent negligence of: (a) BNSF, its agents, employees,
successors or assigns and (b) the contractor, its agents or employees, this
indemnity provision shall be valid and enforceable only to the extent of the
negligence of the contractor or its agents or employees.
(d) 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.
8. Except as otherwise provided below in this Section 8, all construction work performed hereunder
by Agency for any work required to be performed by the Agency 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-I, and (ii) delivered to and secured
BNSF's approval of the required insurance; and
(d) If at any time, in the opinion of Agency, the contractor has failed to prosecute with
diligence the work specified in and by the terms of said contract, Agency may terminate
its contract with the contractor and take control over the work and proceed to complete
the same by day labor or by employing another contractor(s) provided; however, that any
contractor(s) replacing the original contractor(s) must comply with the obligations in favor
of BNSF set forth above and, provided further, that if such construction is performed by
day labor, Agency will, at its expense, procure and maintain on behalf of BNSF the
insurance required by Exhibit C-1.
Form 0106 Rev.06/01/05
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(e) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's
representative (Edward Allard — 206-625-6179) two 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.
9. Nothing in this Agreement is intended to be construed as a requirement for an indemnification
against the sole negligence of BNSF its officers, employees or agents. Moreover, for any work performed
in the State of Washington, Agency will require its contractor to indemnify BNSF and any other railroad
company occupying or using BNSF's right-of-way or line of railroad against all loss, liability and damages,
including environmental damages, hazardous materials damage, penalties or fines that maybe assessed,
caused by or resulting from the contractor's negligence, provided, however, if such loss, liability, damage,
penalties or fines are caused by or result from the concurrent negligence of(a) BNSF or BNSF's officers,
employees, or agents, and (b) the Agency's contractor or the contractor's employees, agents or
subcontractors, such indemnity shall be valid and enforceable only to the extent of the negligence of the
Agency's contractor or the contractor's employees, agents or subcontractors. Likewise, if such loss,
liability, damage, penalties or fines are caused by or result from the concurrent negligence of(a) BNSF or
the BNSF's officers, employees or agents, and (b) the Agency officers, employees or agents, such
indemnity shall be valid and enforceable only to the extent of the negligence of the Agency's officers,
employees or agents.
10. Pursuant to this section and Article IV, Section 6 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.
11. Agency shall install and maintain sacrificial beams on Shattuck Avenue (one on each roadway
approach) in advance of the Structure on Shattuck Avenue.
ARTICLE IV—JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. This agreement shall constitute Agency's notice to BNSF for authority to proceed with the railroad
work. Any work mutually agreed to prior to the execution of this agreement shall be considered approved
if both Agency and BNSF agree to inclusion of said work and costs as part of this agreement.
Specifically, authority to purchase long lead items (bridge steel) and the retention of a professional
engineering services to advance final design are authorized as being a part of this agreement Said costs
shall be included in the $8.95 million dollar cost of this project. Should the cost of this project exceed
$8.95 million, BNSF and Agency agree to split costs as set forth in the amended Memorandum of
Understanding (MOU) dated July 17, 2007. Costs attributable to Agency (such as utility work not
necessary for the bridge reconstruction), shall be the Agency's sole responsibility.
2. 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.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule
for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in
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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
reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or
costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. Agency must observe 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 construction observation 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 Agency's project manager for appropriate
corrective action.
5. Pursuant to this section and Article III, Section 10 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.
6. All expenses detailed in statements sent to Agency pursuant to Article II, Section 5 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.
7. In addition to the terms and conditions set forth elsewhere in this Agreement BNSF and Agency
agree to the following terms upon completion of construction of the Project:
(a) BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, the
Structure, any access gates installed pursuant to the Project, railroad drainage, and all
other railroad facilities. BNSF may, at its option, perform maintenance on the Structure in
order to avoid conflicts with train operations. In the event such maintenance involves
emergency repairs, BNSF will notify Agency at its earliest opportunity.
(b) Agency will own and maintain, at its sole cost and expense the highway approaches, and
appurtenances thereto, lighting, drainage and any access roadways to BNSF gates
installed pursuant to this Agreement.
(c) Agency must apply and maintain vertical clearance signs which consistently and
accurately describe the minimum actual vertical clearance from the bottom of the
Structure to the top of any pavement.
(d) 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.
(e) 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.
(f) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs
(i) alterations or modifications to the Structure, or (ii) any maintenance or other work on
the Structure with heavy tools, equipment or machinery at ground surface level
horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or
Form 0106 Rev. 06/01/05
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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
As used in this paragraph, "Railroad" means "Burlington Northern Santa Fe Corporation",
"BNSF RAILWAY COMPANY"and the subsidiaries, successors,assigns and affiliates of each.
In lieu of providing a Railroad Protective Liability Policy, Agency may participate in BNSF's
Blanket Railroad Protective Liability Insurance Policy if available to Agency or its contractors.
The limits of coverage are the same as above.
8. Agency hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from
Agency right of way to BNSF tracks for maintenance purposes.
9. BNSF may, at its expense, make future changes or additions to the railroad components of the
Structure if necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i)
the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional
track or tracks, or(iii)the right to build other facilities in connection with the operation of its railroad. Such
changes or additions must not change or alter the highway components of the Structure. If it becomes
necessary or desirable in the future to change, alter, widen or reconstruct the highway components of the
Structure to accommodate railroad projects, the cost of such work, including any cost incidental to
alteration of railroad or highway facilities made necessary by any such changes to the Structure, will be
divided between BNSF and Agency in such shares as may be mutually agreed to by the parties hereto.
10. 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.
11. 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 one(1) year from
the date of final BNSF invoice under this Agreement
12. 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.
13. In the event construction of the Project does not commence within 12 months of the Effective
Date, this Agreement will become null and void.
Form 0106 Rev.06/01/05
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14. Neither termination nor expiration of this Agreement will release either party from any liability or
obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination or expiration.
15. 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.
16. This Agreement (including exhibits, Memorandum of Understanding dated April 16, 2007 and
amended July 17, 2007, Engineering Agreement dated June 21, 2007, Letter of Authorization to
Purchase Materials for the Purposes of Constructing the New Railroad Bridges Over Rainier Avenue,
Hardie Avenue, and Shattuck Avenue dated June 19, 2007 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 with
respect to the subject matter herein.
17. 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: Edward Allard
2454 Occidental Ave S.
Suite 1A
Seattle, WA 98134
Agency: Derek R. Akesson, PE
Transportation Systems Division-Design
Renton City Hall-5th Floor
1055 South Grady Way
Renton, Washington 98055
Form 0106 Rev.06/01/05
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
BNS 'AILWAY COMPANY
it ?
By:
Printed Name: ..ZI .4 ,Gtit ,w
Title: t'
AGENCY
CITY OF RENTON
By:
Printed Name: J Kathy Keolker
Title: Mayor
WITNESS:
Attest: --.A9tAt /3 I/3 Orel
ichele Neumann, Deputy City Clerk
Form 0106 Rev.06/01/05
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DATE; 1-12-07
WILSON Mixt APPROVED;
LINE SAM 0410 ASST.OI[CTw STURM OESIWI rlAl 110: 0410-1,.1-02 DPW; 545 t7
*aril Noire
LAW DEPARTMENT APPROVED
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
• 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as
"Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter
referred to as "Railway Property", during the reconstruction of the Rainer, Hardie, and Shattuck Avenue
Bridges.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 3 of said Exhibit"C-1". Questions regarding procurement of the
Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh,USA,214-303-8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railways 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.
• 1.01.05 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.
• 1.01.06 The Contractor must notify the City of Renton 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 Renton Bridges_
• 1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 '/z
horizontal to 1 vertical slope beginning at eleven(11)feet from centerline of the nearest track, both measured
perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings
showing details of construction affecting Railway Property and tracks. The working drawing must include the
proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract
plans and two sets of structural calculations of any falsework, shoring or cribbing. All calculations must take
into consideration railway surcharge loading and must be designed to meet American Railway Engineering and
Maintenance-of-Way Association(previously known as American Railway Engineering Association) Coopers
E-80 live loading standard.All drawings and calculations must be stamped by a registered professional engineer
licensed to practice in the state the project is located.The Contractor must not begin work until notified by the
Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes
and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be
relieved of responsibility for results obtained by the implementation of said approved plans.
1 Form 0102 Rev.01/20/05
Nei
• 1.01.08 Subject to the movement of Railway's trains,Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner.The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation,found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees,subcontractors,agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 NOT USED.
• 1.03.03 The Contractor must abide by the following temporary clearances during construction:
■ 15' Horizontally from centerline of nearest track
■ 21'-6" Vertically above top of rail
• 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
• 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
• 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
• 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
• 1.03.04 Upon completion of construction,the following clearances shall be maintained:
• 25' Horizontally from centerline of nearest track
• 23'-3 'A" Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the City of Renton and must not be undertaken until approved in writing by the
Railway, and until the City of Renton has obtained any necessary authorization from the State Regulatory
Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is
delayed pending Railway approval,and/or the State Regulatory Authority's approval.
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell-tales or other protective devices Railway deems necessary for protection of Railway operations.The cost of
tell-tales or protective devices will be borne by the Agency.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by the City of Renton for approval before work is undertaken and this
work must not be undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings,the Contractor must not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
2 Form 0102 Rev.01/20/05
*re'
"Temporary Private 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 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 terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
• 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor,its subcontractors,agents or invitees. This training is reinforced at the job site
through job safety briefings.Additionally,each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientation.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities.The Contractor must designate an on-site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets(MSDS),at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster a minimum of thirty (30) calendar days advance
notice when flagging services will be required so that the Roadmaster can make appropriate arrangements(i.e.,
bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary,the Contractor must
give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under
and/or within twenty-five(25)feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip
over or other catastrophic occurrence,but not limited thereto for the following conditions:
• 1.05.02a When in the opinion of the Railway's Representative it is necessary to safeguard Railway's Property,
employees,trains,engines and facilities.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's
representative,track or other Railway facilities may be subject to movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
• 1.05.02d When any hazard is presented to Railway track,communications,signal,electrical,or other facilities
either due to persons,material,equipment or blasting in the vicinity.
3 Form 0102 Rev.01/20/05
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However,additional personnel may be required to
protect Railway Property and operations,if deemed necessary by the Railways Representative.
• 1.05.03b Each time a flagger is called,the minimum period for billing will be the eight(8)hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the City of Renton. The estimated cost for one (1) flagger is $800.00 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, transportation, meals,
lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes
authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate
in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of
flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 4 freight trains per 24-hour period at a timetable speed of 10
MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s)is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction.All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track,the job briefing must include the Railway's flagger,as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority,(3)the method of communication to stop and resume work,and(4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed,must notify the flagger immediately,and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends,the Railroad's representative in charge of the project must be notified.A
minimum of two employees must be present at all times.
• 1.06.05 Any employees,agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol,or in the possession of same,will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come
4 Form 0102 Rev.0120/05
'toe 'tole
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
weapons in their possession while working on Railway's Property.
• 1.06.08 All personnel protective equipment(PPE)used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above-the-ankle lace-up and a defined heel; and d)high visibility retro-reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection,fall protection,gloves,and respirators must be worn as
required by State and Federal regulations.(NOTE—Should there be a discrepancy between the information
contained on the web site and the information in this paragraph,the web site will govern.)
• 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT
WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS, WHERE STORAGE OF
THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING.PRIOR
TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH
CONCURRENCE OF THE RAILROAD'S REPRESENTATIVE.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade,pan or bucket,they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement.(See internes Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage.Any work performed over water must meet all Federal,State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be;200 KV or below - 15 feet;200 to 350 KV-20 feet;350 to 500 KV-25 feet;500
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 (Rulsty Olson — 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.
5 Form 0102 Rev.0120/05
None` "isdr
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and
the owner of the utility can be identified,then the Contractor must also notify the owner immediately. If there
is any doubt about the location of underground cables or lines of any kind,no work must be performed until the
exact location has been determined. There will be no exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and,regardless of
depth,must be shored where there is any danger to tracks,structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or
protected when not being worked on. When leaving work site areas at night and over weekends,the areas must
be secured and Ieft in a condition that will ensure that Railway employees and other personnel who may be
working or passing through the area are protected from all hazards.All excavations must be back filled as soon
as possible.
1.08 Hazardous Waste,Substances and Material Reporting
• 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious
material,including but not limited to any non-containerized commodity or material,on or adjacent to Railway's
Property, in or near any surface water, swamp, wetlands or waterways,while performing any work under this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties:and(c)exercise due care with respect to the release,including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration(FRA)reporting requirements.Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately(by phone
mail if unable to contact in person)to the Railway's representative in charge of the project. The Non-Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at
1(817)352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
6 Form 0102 Rev.olrzo/o5
Nue
NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St 2. Date: Time:
County: 3. Temperature: 4. Weather
(if non-Railway location)
5. Social Security#
6. Name(last,first,mi)
7. Address: Street: City: St. Zip:
8. Date of Birth: and/or Age Gender:
(if available)
9. (a) Injury: (b)Body Part:
(i.e.(a)Laceration(b)Hand)
11. Description of Accident(To include location,action,result,etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr.Name 30.Date:
14. Dr.Address:
Street: City: St: Zip:
15. Hospital Name:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
FAX TO
RAILWAY AT(817)352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
7 Form 0102 Rev.0120/05
Nine w400''
EXHIBIT "C-1"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File:
Agency Project:
Gentlemen:
The undersigned (hereinafter called, the"Contractor"), has entered into a contract(the "Contract") dated
, 2007, with City of Renton. Washington for the performance of certain work in
connection with the following project: Reconstruction of Rainer, Hardie and Shattuck Avenue Bridges.
Performance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY
("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be
commenced within Railway Property until the Contractor employed in connection with said work for the
State of Washington_ (i) executes and delivers to Railway an Agreement in the form hereof, and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this
Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of
Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to
execute this Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway
Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has
agreed and does hereby agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor shall indemnify and hold the RAILWAY and its agents, employees and/or officers
harmless from and shall process and defend at its own expense any and all claims,demands,suits at law
or equity, actions, penalties, losses, damages or costs, of whatever kind or nature, brought against the
RAILWAY arising in any manner from the Contractor's or any of Contractor's subcontractors'acts or
omissions or failure to perform any obligations hereunder. Provided, however, that if such claims,
demands,suits, at law or equity, actions, penalties, losses, damages or costs are caused by or result
from the concurrent negligence of(a)the Contractor or any of its subcontractors and (b)the RAILWAY, its
agents, employees and/or officers, this indemnity provision shall be valid and enforceable only to the
extent of the negligence of the Contractor or any of its subcontractors and provided further, that nothing
herein shall require the Contractor to hold harmless or defend the RAILWAY, its agents, employees
and/or officers from any claims,demands, suits at law or equity, actions, penalties, losses, damages or
costs arising from the sole negligence of the RAILWAY, its agents, employees and/or officers.
The indemnification obligation shall include all claims brought by Contractor's employees against
RAILWAY, its agents, servants, employees or otherwise,and Contractor expressly waives its immunity
under the industrial insurance act(RCW Title 51)and assumes potential liability for all actions brought by
its employees.
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It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
Section 2.TERM
This Agreement is effective from the date of the Contract until(i)the completion of the project set
forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing
and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this
Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual
liability
with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit
of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or
equivalent and include coverage for, but not limit to the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the
certificate of insurance:
• It is agreed that any workers' compensation exclusion does not apply to Railroad
payments related to the Federal Employers Liability Act or a Railroad Wage
Continuation Program or similar programs and any payments made are deemed not
to be either payments made or obligations assumed under any Workers
Compensation,disability benefits, or unemployment compensation law or similar law.
• The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
• Any exclusions related to the explosion, collapse and underground hazards must be
removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be
included on the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at
least$1,000,000 per occurrence, and include coverage for, but not limited to the following:
• Bodily injury and property damage
• Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including coverage for, but not
limited to:
• Washington's statutory liability under the worker's compensation laws of the state(s)
in which the work is to be performed. If optional under State law, the insurance must
cover all employees anyway.
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• 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.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage
of at
least $5,000,000 per occurrence and $10,000,000 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.
• 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
Other Requirements:
Contractor agrees to waive its right of recovery against Railroad for all other claims and suits
against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive
their right of subrogation against Railroad for all claims and suits. The certificate of insurance must
reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its
insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or
property under contractor's care, custody or control. All waivers referred to in this paragraph apply only to
the extent permitted by the laws of the state of Washington.
Contractor's insurance policies through policy endorsement, must include wording which states
that the policy is primary and non-contributing with respect to any insurance carried by Railroad. The
certificate of insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad
Protective) must include a severability of interest endorsement and Railroad must be named as an
additional insured with respect to work performed under this agreement. Severability of interest and
naming Railroad as additional insured must be indicated on the certificate of insurance.
Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self-insured retention or other financial responsibility for claims must be
covered directly by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in
accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered
as if contractor elected not to include a deductible, self-insured retention or other financial responsibility
for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s)of
insurance including an original signature of the authorized representative evidencing the required
coverage, endorsements, and amendments and referencing the contract audit/folder number if available.
The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such
policy(ies)to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution
or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon
request from Railroad, a certified duplicate original of any required policy must be furnished. Contractor
should send the certificate(s)to the following address:
BNSF RISK MANAGEMENT
2500 Lou Menk Drive AOB-1
Fort Worth, TX 76131-2828
Fax: 817-352-7207
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Form 0103 Rev.09/15/05
Any insurance policy must be written by a reputable insurance company acceptable to Railroad
or with a current Best's Guide Rating of A-and Class VII or better, and authorized to do business in the
state(s)in which the service is to be provide.
Contractor represents that this Agreement has been thoroughly reviewed by contractor's
insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage
required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages
referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance
coverage to reflect then-current risk management practices in the railroad industry and underwriting
practices in the insurance industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that
the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an
additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the
same extent and under the same terms and conditions as contractor is required to release, defend and
indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to
terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section
will not operate as a waiver of contractor's obligations hereunder.
The fact that insurance(including, without limitation, self-insurance) is obtained by contractor will
not be deemed to release or diminish the liability of contractor including, without limitation, liability under
the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the
amount of the required insurance coverage.
For purposes of this section, Railroad means"Burlington Northern Santa Fe Corporation", "BNSF
RAILWAY COMPANY"and the subsidiaries,successors, assigns and affiliates of each.
Section 4. EXHIBIT"C"CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and
limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit"C"attached to
the Contract and this Agreement, including, but not be limited to, payment of all costs incurred for any
damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or
presence of its employees, representatives, or agents or subcontractors on or about the construction site.
Section 5. PROTECTION OF RAILWAY FACILITIES AND RAILWAY FLAGGER SERVICES
(a). The Contractor shall give a minimum of at least 30 calendar days notice to the RAILWAYs
Roadmaster,at telephone(206)625-6462, in advance of when flagging services will initially be required
to bulletin the flaggers position and shall provide five(5)working days notice to the Roadmaster to
abolish the position per union requirements. Any such work occurring subsequent to the work for which
the 30-day notice was provided shall require at least 72 hours notice to BNSF's Roadmaster.
(b). RAILWAY flagger and protective services and devices will be required and furnished when
Contractor's work activities are located over or under of and within twenty-five(25)feet measured
horizontally from center line of the nearest track and when cranes or similar equipment positioned outside
of 25-foot horizontally from track center line that could foul the track in the event of tip over or other
catastrophic occurrence, but not limited thereto for the following conditions:
(1).When in the opinion of the RAILWAY's representative, it is necessary to safeguard
RAILWAY's Property, employees,trains, engines and facilities.
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(2).When any excavation is performed below the bottom of tie elevation, if, in the opinion of
RAILWAY's representative, track or other RAILWAY facilities may be subject to movement or settlement.
(3).When work in any way interferes with the safe operation of trains at timetable speeds.
(4).When any hazard is presented to RAILWAY track,communications, signal, electrical,or
other facilities either due to persons, material, equipment or blasting in the vicinity.
(5)Use of the temporary construction crossing.
(6). Special permission must be obtained from the RAILWAY before moving heavy or
cumbersome objects or equipment which might result in making the track impassable.
(c). Flagging services will be performed by qualified RAILWAY flaggers. The base cost per day
for(1)flagger is$600 which includes vacation allowance, paid holidays, RAILWAY and Unemployment:
Insurance, Public Liability and Property Damage Insurance, health and welfare benefits,transportation,
meals, lodging and supervision,for an eight(8)hour basic day with time and one-half or double time for
overtime, rest days and holidays. These rates are subject to any increases which may result from
RAILWAY Employees-RAILWAY Management negotiations or which may be authorized by Federal
authorities. State/Contractor will be billed on actual costs in effect at time work is performed.
(1). A flagging crew generally consists of one employee. However, additional personnel may
be required to protect RAILWAY Property and operations, if deemed necessary by the RAILWAY's
representative.
(2). Each time a flagger is called, the minimum period for billing shall be the eight(8)hour
basic day.
(3). The cost of flagger services provided by the RAILWAY,when deemed necessary by the
RAILWAY's representative,will be borne by the State/Contractor.
Section 6. TRAIN DELAY
No work performed by Contractor shall cause any interference with the constant, continuous and
uninterrupted use of the tracks, property and facilities of the RAILWAY, it's lessees, licensees or others,
unless specifically permitted under this agreement,or specifically authorized in advance by the RAILWAY
Representative. Nothing shall be done or suffered to be done by the Contractor at any time that would in
any manner impair the safety thereof.When not in use, Contractor's machinery and materials shall be
kept at least 50 feet from the centerline of RAILWAY's nearest track or except when located within a
fenced area or approved by RAILWAY, and there shall be no vehicular crossings of RAILWAY's track
except at existing open public crossings, or via the temporary construction crossing.
Contractor shall be responsible to RAILWAY, including its affiliated RAILWAY companies, and its
tenants for damages for any unscheduled delay to freight or passenger trains that are caused by the
Contractor as follows:
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train
as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains
at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain,
intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its
customer(s). Under these arrangements, if Railway does not meet its contract service commitments,
Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments.
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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 for
certain trains may be as high as$50,000.00 per incident.
Contractor and its subcontractors must give Railway's representative (Roadmaster) four
(4) weeks advance notice of the times and dates for proposed work windows. Railway and
Contractor will work to 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. The Railway makes no gurantee that work windows of the requested lengths will be
granted to the Contractor. Railway will not be responsible for any additional costs or expenses
resulting from a change in,or denial of,work windows.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
To the maximum extent possible, each provision of the Agreement between BNSF Railway
Company and the Contractor, as set forth herein in Exhibit C-1, will be interpreted in such a
manner as to be effective and valid under the applicable laws of the state of Washington. If any
provision of this Agreement is prohibited by,or held to be invalid under such laws,such provision
will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the
provision will be enforceable.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original
copies of this letter,which, upon execution by Railway,will constitute an Agreement between us.
(Contractor) BNSF Railway Company
By: By:
Printed Name: Name:
Title: Manager Public Projects
Contact Person: Accepted and effective this day of 20_
Address:
City: State: Zip:
Fax:
Phone:
E-mail:
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Exhibit E)
Description BNSF Contractor Totals
Trackwork Associated with Bride Constr. •
$957,841
Total Trackwork $957,841 $957,841
Engr.Design $350,000
Engr.CM $200,000
Jacobs Vbration Monitoring $55,000
Environmental Testiing $50,000
Total Engineering,Ins. tions,Monitorin, $655,000 $665,000
Shattuck Materials and Installation $512,700
Shattuck-Contractor Demolition of Exist Br $30,000
Shattuck-Roadway and Civil $230,000
Total Shattuck $512,700 $260,000 $772,700
•
Rainier-Materials by BNSF $1,147,800
Rainier-Observation during Fabrication $18,200
Rainier-Contractor-Installed Pipe Pies 20" $191,664
Rainier-Contractor-Installed Pipe Pies 18" $19,094
Rainier-Installation by Contractor $1,755,000
Total Rainier $1,166,000 $1,966,758 $3,131,758
Hardie-Materials by BNSF $961,800
Hardie-Observation during Fabrication $18,200
Hardie-Contractor-Installed Pipe Pies 20" $145,200
Hardie-Concrete Pier Demolition $65,120
IIIHardie-Contractor-Installed Pipe Piles 18" $14,040III
Hardie-Remove old Piles ■-_ $12.500
Hardie-Installation by Contractor $1,690,000
111.=
$980,000 $1,926,860 $2,906,860 1111
Ell 111111111111111=1111M1 III=
Excavation _-- $78,540
Subballast Placement $117,240
Embankment Construction $67,500
Construction Entrances $14,000
Seeding $1,500
Erosion Conrol $50,000
Traffic Control $50,000
Remove 2 Billboards $5,000
Total Grading and Other Work $0 $383,780 $383,780
Sub-Total $4,271541 $4,536,398
Contractor-Bond $45,000
Contractor-Sales Tax $401.613
Sub-Total Sub-Total $4,271,541 $4,983,011 $9,254,552
10%Contingency $925,455
Total $10,180,007
ADJUSTMENTS
Center Pier Demolition at Rainier(vs.cut-off) $200,000
Shattuck Design $150,000 .
Shattuck Construction $512J00
Shattuck-Contractor Demolition of Exist Br $30,000
Shattuck-Roadway and Civil $230,000
Trackwork to accommodate raise for Rainier 8 Shattuck $750,000
Grading for track raise I $200,000
Sub-Total-Renton Extras $2,072,700
10%contingency on Renton Extras $207,270
Adjusted Renton Extras $2,279,970 $2,279,970
Adjusted total less City Extras $7,900,037
Amount Proposed In MOU $6,750,000
Difference $1,160,037
BNSF Obligation(60%) $676,019
City Obligation(50% $576,019
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