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CAG-07-194 AGREEMENT REGARDING RAILROAD GRADE CROSSINGS CITY OF RENTON and CONNER HOMES AT BARBEE MILL, LLC This Agreement regarding Railroad Grade Crossings is entered into this ag day of , 2007 by and between the City of Renton, a Washington municipal corporation("City") and Conner Homes at Barbee Mill, LLC, a Washington limited liability company("Conner"). (The above date is for purposes of reference to this Agreement. The effective date of this Agreement is the date on which all parties have executed the Agreement.) RECITALS A. Conner is in the process of developing a residential construction project in the City of Renton on property legally described in attached Exhibit A and commonly referred to as "Barbee Mill". B. Access to the Barbee Mill development requires access at two locations across railroad right-of-way owned and operated by BNSF Railway Company ("BNSF"). The two locations are referred to"grade crossings"and are located at points referred to as"Mile Post 6.06"and"Mile Post 6.23". C. BNSF requires, as a condition of approval of the two grade crossings providing access to the Barbee Mill development,that for each crossing, the City enter into the following agreements with BNSF: a. a Construction and Maintenance Agreement in the form attached as Exhibit B ("the C & M Agreement") b. an Easement Agreement for Grade Crossing in the form attached as Exhibit C ("the Easement Agreement") c. a Memorandum of Easement in the form attached as Exhibit D ("the Memorandum Agreement") D. BNSF also requires, as a condition of approval of access to the Barbee Mill development across its right-of-way,that for each crossing, Conner enter into the following agreement with BNSF: a. A General Construction Agreement in the form attached as Exhibit E ("the General Construction Agreement") AGREEMENT REGARDING RAILROAD GRADE CROSSINGS - 1 E. The agreements listed in Recitals C and D are collectively referred to as"the Agreements". F. Pursuant to the terms of the Agreements, certain improvements necessary for the railroad grade crossings will be constructed by BNSF and its employees, agents or contractors, and other improvements will be constructed by Conner, its employees, agents and contractors. G. Pursuant to the terms of the Agreements,the City is obligated to pay BNSF for certain easement rights and to reimburse BNSF for certain construction costs. H. Pursuant to the terms of the Agreements,the City is obligated to undertake certain maintenance obligations regarding the railroad grade crossings. I. Conner and the City seek to transfer responsibility for payment for the easement rights and the construction and maintenance obligations related to the two railroad grade crossings from the City to Conner. AGREEMENT The City of Renton and Conner Homes at Barbee Mills,LLC, in consideration of the mutual promises, benefits and responsibilities assigned and assumed herein, the sufficiency of which has been determined by both parties to be adequate, agree as follows: 1. Execution of Agreements; Transmittal to BNSF. Upon payment by Conner to the City of the sum set forth in Section 2(a), posting of the performance bond identified in Section 3, and delivery to City of the General Construction Agreements executed by Conner pursuant to Section 4,the City agrees to immediately take the following actions: a. Execute the two C&M Agreements for the grade crossings at Mile Post 6.23 and Mile Post 6.06 and transmit the originals thereof to BNSF. b. Execute the two Easement Agreements for the grade crossings at Mile Post 6.23 and Mile Post 6.06 and transmit the originals thereof to BNSF. c. Transmit the original General Construction Agreements executed by Conner to BNSF. d. Issue Notice to Proceed to BNSF's Manager of Public Projects in accordance with Section 12 of each of the C&M Agreements. e. Pay BNSF the sum of Three Hundred Ten Thousand One Hundred Forty Four Dollars ($310,144.00) as compensation for the Easement Agreement related to the grade crossings at Mile Post 6.06. f. Pay BNSF the sum of Two Hundred Twenty-Seven Thousand and Eight Dollars ($ 227,008.00)as compensation for the Easement Agreement related to the grade crossings at Mile Post 6.23. AGREEMENT REGARDING RAILROAD GRADE CROSSINGS -2 g. Issue Notice to BNSF approving the location of the signals and signal bungalows for each grade crossing as contemplated by Article III, Section 2,of the C&M Agreements. 2. Conner Payments to City. a. Conner shall, immediately upon execution of this Agreement, pay the following sums to the City: i. Three Hundred Ten Thousand, One Hundred and Forty-Four $310,144.00, which is the full amount to be paid by the City to BNSF for the Easement Agreement related to the grade crossing at Mile Post 6.06. ii. Two Hundred Twenty-Seven Thousand and Eight Dollars ($227,008.00),which is the full amount to be paid by the City to BNSF for the Easement Agreement related to the grade crossing at Mile Post 6.23. b. Pursuant to the C&M Agreements, the City is obligated to pay BNSF for BNSF's actual costs of construction engineering, installation labor, and materials costs of constructing the grade crossings(as detailed in the C&M Agreements). Such payments to BNSF are due within thirty(30) days of the date of BNSF's invoices for such work. Conner shall reimburse City for such costs as follows: i. City shall,within seven days of receipt of an invoice from BNSF, transmit the invoice to Conner. ii. Conner shall, within ten days of receipt of a BNSF invoice from the City, transmit payment for the amount of the invoice to City. iii. City shall, within seven days of receipt of a payment from Conner pursuant to the preceding subsection,transmit payment to BNSF for the invoice. iv. In the event that the City or Conner fails to transmit invoices or payments pursuant to the schedule set forth in subsections 2(b)(i- iii), above,the party failing to comply with the schedule shall be responsible for payment of any interest or late payment penalties owed to BNSF as the result of late payment. 3. Performance Bond. a. In order to secure Conner's payment of BNSF invoices pursuant to Section 2(b), Conner shall, contemporaneously with execution of this Agreement,post a performance and payment bond in the amount of one hundred and ten percent(110%)of the estimated total cost of the BNSF work contemplated by the C&M Agreements. The amount of that bond shall be Five Hundred and Three Thousand Dollars ($503,000.00). AGREEMENT REGARDING RAILROAD GRADE CROSSINGS - 3 b. The City and Conner have requested that BNSF waive the requirement that the grade crossings include certain crossing signal equipment in light of the fact that use of the affected railroad line is being modified in the near future in a manner that may eliminate any need for such equipment. In the event that BNSF agrees to such a modification to the scope of work in the C&M Agreements, the City and Conner shall renegotiate the amount of the performance and payment bond to reflect the revised estimated cost of the BNSF work. 4. Execution of General Construction Agreement. Simultaneously with execution of this Agreement, Conner has executed and delivered to the City originals of the General Construction Agreements for the Grade Crossings at Mile Post 6.06 and Mile Post 6.23. Conner and the City acknowledge that Conner may not commence construction of those improvements for which Conner is responsible pursuant to the General Construction Agreements until those agreements have been executed by BNSF and Conner has delivered proof of insurance as required by BNSF pursuant to the General Construction Agreements. 5. Assumption of Construction and Maintenance Obligations. Conner hereby assumes all construction and maintenance obligations of the City which are created by the C&M Agreements,the General Construction Agreements and the Easement Agreements. a. Conner will, at Conner's sole expense, construct all the improvements contemplated by Article III of the C&M Agreements and the General Construction Agreements which are the responsibility of either the City or Conner pursuant to those Agreements. b. Conner will, at Conner's sole cost, comply with the requirements of the General Construction Agreements related to safety, train delays and other operational requirements. c. Conner will provide the barricades and other traffic controls required by Article III, Section 7 of the C&M Agreements at Conner's sole expense. d. Conner will provide the Surety Bond to BNSF that is required by Article III, Section 10(a) of the C&M Agreements at Conner's sole expense. 6. Indemnification. Conner hereby agrees to indemnify,hold the City harmless and defend the City against from any and all claims, liability, damages, costs, expenses,and judgments arising from the negligent or intentional misconduct of Conner's respective officers, employees, agents, or contractors occurring as the result of the construction,maintenance or use of the grade crossings or otherwise arising from the subject matter of this Agreement, provided such the obligations to indemnify, hold harmless and defend the City shall not apply to losses arising from the negligent or intentional misconduct of the City, its employees, contractors and agents. AGREEMENT REGARDING RAILROAD GRADE CROSSINGS -4 7. Assignment. Conner shall have the right to assign the ongoing maintenance responsibilities for the grade crossings which it is assuming from the City to a perpetual Homeowners Association for the Barbee Mill development. Such Homeowners Association shall be created and operated pursuant to RCW ch. 64.38. 8. Final Plat Recording. The City agrees that final plat approval will not be delayed by the City as the result of the fact that the grade crossings contemplated by this Agreement are not completed,provided Conner shall have paid the easement fees specified in Section 2(a) and provided a performance and payment bond pursuant to Section 3 as security for the completion of those improvements related to the grade crossings. Conner agrees that no occupancy approvals for homes in the Barbee Mill project will be issued by the City until the grade crossings which are the subject of this Agreement have been completed and are available for use. 9. General Provisions. a. This Agreement contains all of the agreements of the parties with respect to any matter covered or mentioned in this Agreement. b. No provision of this Agreement may be amended or modified except by written agreement signed by the Parties. c. Any provision of this Agreement which is declared invalid or illegal shall in no way effect or invalidate any other provision. d. Each party represents and warrants that the individuals executing this Agreement are duly authorized to execute this Agreement. e. In the event any of the Parties default on the performance of any terms of this Agreement or any of the Parties file a lawsuit for the enforcement of this Agreement,the prevailing party shall be entitled to recover its attorneys' fees,expert witness fees, costs and expenses. Venue for any such action shall be exclusively in King County, Washington. f. Time is of the essence of this Agreement and in each and all of its provisions in which performance is a factor. g. This Agreement shall run with the land and shall be binding upon Conner and its heirs, successors, and assigns, and upon the City of Renton and its successors and assigns. Conner Homes at Barbee Mill LLC By: _ T C ^ - Its: 1 • • Dated iD g--7 AGREEMENT REGARDING RAILROAD GRADE CROSSINGS - 5 CITY OF RENTON By: Ka�.h Keolker y Y _ Approved as to legal form: Its: Mayor Dated rJei,„,dse4 a r a OO 7 Attest: Lawrence J. Warren, City of Renton Attorney &1 u) i By: Bonnie I . Walton ` Its: City Clerk �c,, Air2007 `' , Dated �r9?N�r ar � Q •7 State of Washington ) 0' C ..c,7 ) ss. .,. County of King ) I certify that I know or have satisfactory evidence that J it er , ' the person who appeared before me, and said person acknowledged th. he :he) signed this instrument, on oath stated thatpshe)was authorized to execute the instrument and acknowledged it as the ,res;den '6- of Conner Homes at Barbee Mill LLC to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: /O . /7( 07 p moi T! 4��;�...°� YY. Print N y LPA" NOTARY PUBLIC in arp9for the State of "cr' ` c) e Washington,residing at /1A!'h-lc lit%Sh -- rn = s My commission expires: /(- a 9 AGREEMENT REGARDING RAILROAD GRADE CROSSINGS - 6 State of Washington ) ) ss. County of King ) I certify that I know or have satisfactory evidence that c),1\\,,,\\L„., is the person who appeared before me, and said person acknowledged that s e igned this instrument, on oath stated that het I was authorized to execute the instrument and acknowledged it as the r�r���� �L of the City of Renton to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: \ J -`3CC Print ame: Cri-4.�w �, i�\o,lcc NOTARY PUBLIC in and for the State of Washington, residing at \L-,--kr My commission expires: I l 3el0 AGREEMENT REGARDING RAILROAD GRADE CROSSINGS - 7 EXHIBIT A To Agreement Regarding Railroad Grad Crossings City of Renton And Conner Homes at Barbee Mill, LLC Barbee Mill Legal Description THAT PORTION OF GOVERNEMENT LOT 1, SECTION 32, TOWNSHIP 24 NORTH, RANGE 5 EAST, WILLAMETTE MERIDIAN, IN KING COUNTY, WASHINGTON, AND OF SECOND CLASS SHORELANDS ADJOINING, LYING WESTERLY OF THE NORTHERN PACIFIC RAILROAD RIGHT OF WAY; EXCEPT THAT PORTION , IF ANY, OF SAID SHORELANDS DESCRIBED AS LYING NORTH OF THE WESTERLY PRODUCTION OF THE NORTH LINE OF SAID GOVERNMENT LOT 1. • CA44-I&11---- BNSF TBNSF Right-of-Way Mile Post 6.06 Line Segment 405 DOT#927464T Barbee Mill—N 41st Street CONSTRUCTION AND MAINTENANCE AGREEMENT THIS GRADE CROSSING SURFACE AND SIGNAL INSTALLATION AGREEMENT (hereinafter called, "Agreement"), is executed to be effective as of , 2007, by and between the CITY OF RENTON,a Political Subdivision of the State Washington(hereinafter called, "AGENCY"),and BNSF RAILWAY COMPANY,a Delaware Corporation(hereinafter called, "BNSF"); WITNESSETH: WHEREAS,BNSF operates a freight transportation system by rail with operations throughout the United States and Canada;and WHEREAS, in the interest of aiding vehicular travel and public safety, the AGENCY is undertaking a project to install railroad crossing signals and activation equipment known as the Barbee Mill—N 41St Street Project; WHEREAS, the Barbee Mill —N 41st Street Project is located on the Woodinville Subdivision at Line Segment 405, Milepost 6.06 and will be designated as U.S. DOT crossing #927464T as indicated on Exhibit "A", attached hereto and incorporated herein; WHEREAS, the parties agree that the BNSF will receive no ascertainable benefit from the installation of advance warning signs, pavement marking stop bars or crossing signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); WHEREAS,AGENCY also desires BNSF to install a new concrete and rubber crossing surface; WHEREAS,the existing Private crossing located at Milepost 5.99,DOT crossing#091739J will be closed and removed upon said construction of the N 41st Street crossing; WHEREAS, the AGENCY is paying for the acquisition and installation of crossing signal equipment and the new crossing surface at N 41st Street; WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the crossing signal equipment and the new crossing surface described in the scope of work herein, and upon the terms and conditions set forth below. 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 in this agreement includes any and all work related to the installation of grade crossing surfacing, and grade crossing signals and activation equipment at U.S. DOT crossing #927464T, more particularly described on 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, installation of advance warning signs and pavement marking stop bars, installation of any new crossing surface, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation. 1 Form 0104 Rev. 10/04/05 • ARTICLE II—BNSF OBLIGATIONS In consideration of the covenants of AGENCY set forth herein and the faithful performance thereof,BNSF agrees as follows: 1. The BNSF will,using its own labor forces under applicable labor agreements,install the Crossing Signal Equipment and the new crossing surface at N 41st Street. The work will be performed at AGENCY's expense and in accordance with the MUTCD and the plans and specifications approved by AGENCY. The plans and specifications are attached to this Agreement as Exhibit"A"and incorporated 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 Three Hundred Ten One Hundred Forty Four and No/100 Dollars ($310,144)as compensation for the Easement within thirty(30)days of issuing a Notice to Proceed pursuant to Article III, Section 12 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. A detailed estimate of BNSF'S construction engineering, installation labor (including the costs, if any, of electrical service from a public utility) and material costs required for the Project are attached hereto as Exhibit"D" and incorporated herein. In the event construction for the Project has not commenced within six (6) months following the effective date of this Agreement, 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. 3. BNSF will furnish all labor,materials,tools and equipment for the railroad portion of the work required for the construction of the Project. 4. The BNSF will, at AGENCY'S expense, remove the existing Private crossing located at Milepost 5.99, DOT crossing#091739J,including obliteration of the crossing between the rails and two feet outside thereof. 5. The BNSF will,at AGENCY'S expense,dispose of all scrap from the BNSF'S work hereunder. 6. The BNSF will finalize and complete billing of all incurred costs under this Agreement no later than one (1)year following installation of the Crossing Signal Equipment and the new crossing surface. ARTICLE HI—AGENCY OBLIGATIONS In consideration of the covenants of BNSF set forth herein and the faithful performance thereof,AGENCY agrees as follows: 1. AGENCY must perform,at AGENCY'S expense,the following work: a) Installation of a pavement marking stop bar in accordance with the Manual on Uniform Traffic Control Devices(hereinafter called,"MUTCD"). b) Installation of advance warning signs in accordance with the MUTCD. c) All other work required to complete the Barbee Mill—N 41st Street Project. 2 Form 0104 Rev. 10/04/05 2. The AGENCY will approve the location of the signals and signal bungalow prior to installation by BNSF. 3. Actual costs for engineering, materials and labor (including third party charges for the installation of electrical service) associated with the installation of the Crossing Signal Equipment and the new crossing surface must be paid by the AGENCY as provided in 23 Code of Federal Regulations (Revised 2001) including, but not limited to,Parts 1, 140, 172 and 646(hereinafter called,"23 CFR")" 4. In the event the services of a consultant are needed after execution of this Agreement due to any exigency of the BNSF and the Project, the AGENCY and the BNSF will mutually agree, in writing, as to the selection of a consultant and the applicable scope of work to be performed by such consultant. All work performed hereunder by any consultant and any resulting costs must be paid by AGENCY as a part of the costs for the Project. 5. During the installation of the Crossing Signal Equipment and the new crossing surface of N 41st Street, BNSF will send AGENCY progressive invoices detailing the costs of the 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, 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 (mance 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. 6. Upon execution of this Agreement by both parties hereto, BNSF will send AGENCY an invoice detailing the total amount owed by AGENCY for the new crossing surface. AGENCY agrees to pay BNSF actual costs to perform BNSF Work. AGENCY's ESTIMATED total cost for the new crossing surface is Seventy Eight Thousand Four Hundred One and No/100 Dollars ($78,401.00) and for the new crossing signal is One Hundred Fifty Thousand Five Hundred Twelve and No/100 Dollars($150,512.00). 7. The AGENCY shall provide, at its own cost and expense, all necessary barricades, lights or traffic control devices for detouring vehicular traffic at the C Street crossing during installation of the new crossing surface and signals. 8. The AGENCY agrees to allow BNSF to drain water from the N 4155 Street crossing area into existing AGENCY storm sewers,if such storm sewers are available. Drain pipes and filter fabric necessary for such drainage will be furnished and installed by BNSF as part of the work under Article II,Section 2. 9. This Agreement begins on the effective date set forth above and remains in effect until completion of all work contemplated in this Agreement and AGENCY's payment of the amounts set forth in Section 2 above. 10. AGENCY agrees to provide BNSF with one of the following credit enhancements guaranteeing the total amount of AGENCY'S financial obligations (including, without limitation, liquidated damages, indemnity obligations and other expenses)under this Agreement: (a) Surety Bond to be provided by Agency's Contractor underwritten by an insurance company listed in the Department of Treasury Federal Register with terms acceptable to BNSF, in BNSF'S sole discretion; AGENCY should forward the surety bond to Ted Johnson, Manager of Credit, BNSF, 2400 Western Center Boulevard,Fort Worth,Texas 76131 (phone: 817-352-4194). 3 Form 0104 Rev. 10/04/05 11. The AGENCY must have advanced railroad crossing warning signs and standard pavement markings in place at the crossing shown on Exhibit"A"(if the same are required by the MUTCD) prior to the acceptance of this Project by the AGENCY. The AGENCY assumes full responsibility for the maintenance of advanced warning signs and pavement markings and agrees to hold harmless and indemnify the BNSF for any claims, damages or losses, in whole or in part,caused by or due to the AGENCY'S failure to maintain the advanced warning signs and markings or other requirements of the MUTCD. 12. The AGENCY must give BNSF's Manager of Public Projects written notice to proceed with the railroad portion of the 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 and the GENERAL CONSTRUCTION AGREEMENT has been executed by BNSF and Agency's Contractor. 13. Should AGENCY require a Contractor to perform work associated with this Project on or within BNSF right-of-way, AGENCY shall include the BNSF's GENERAL CONSTRUCTION AGREEMENT and CONTRACTOR REQUIREMENTS attached hereto and made a part here of as Exhibit"C"to this Agreement,in all plans and specifications issued for the Project. AGENCY's contractor shall not commence work on BNSF right of way until said GENERAL CONSTRUCTION AGREEMENT is executed by both the BNSF and the AGENCY's Contractor following issuance of the notice to proceed as specified in Article III,Section 12,above. ARTICLE IV-JOINT OBLIGATIONS In consideration of the mutual covenants of the parties contained herein and the premises, the parties mutually agree as follows: 1. All cost records of the RAILROAD pertaining to the Project will be open to inspection and audit at any reasonable time by representatives of the AGENCY (including the legislative auditor and fiscal analyst for the AGENCY)for a period of one(1)year from the date of the final RAILROAD invoice under this Agreement. 2. Upon completion of the installation of the Crossing Signal Equipment and the new crossing surface, the BNSF, will, at its sole cost and expense,operate and maintain the Crossing Signal Equipment and the new crossing surface in proper condition. 3. Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the AGENCY or any other appropriate governmental or legislative authority increase the AGENCY'S portion of maintenance costs under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the AGENCY'S increased portion of maintenance costs will be incorporated into and made a part of this Agreement. 4. If a railway or a highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment or the new crossing surface installed hereunder, the costs for such rearrangement, relocation or alteration will be the responsibility of the party requesting such changes. 5. If any of the Crossing Signal Equipment is partially or wholly destroyed, then such repair and/or replacement costs must be distributed among the parties as follows: a) In the event the BNSF's sole negligence destroys or damages the Crossing Signal Equipment, BNSF must reimburse AGENCY for the costs to replace or repair such Crossing Signal Equipment. b) In the event the Crossing Signal Equipment is damaged or destroyed by any other cause, AGENCY must, at its sole cost and expense, reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment. 6. If the Crossing Signal Equipment installed hereunder cannot, through age, be maintained, or, by virtue of its obsolescence, requires replacement, the cost of installation of new crossing signal equipment will be negotiated 4 Form 0104 Rev. 10/04/05 • by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and applicable AGENCY at the time of such replacement is warranted. 7. This Agreement will inure to the benefit of and be binding on the parties hereto, their successors, and assigns. 8. In the event any paragraph contained in this Agreement or any item,part,or term within any particular paragraph is determined by a court of competent jurisdiction to be invalid or unenforceable,the validity of the remaining paragraphs or items will not be affected;and the rights and obligations of the parties will be construed and enforced as if this Agreement did not contain that particular paragraph or item held to be invalid or unenforceable. 9. This Agreement may be signed in counterparts,any one of which will be deemed to be an original. The parties further agree that any facsimile copy of a party's signature is valid and binding to the same extent as an original signature. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BNSF RAILWAY COMPANY By: Printed Name: Title: CITY OF RENTON,WA By: Printed Name: Title: 5 Form 0104 Rev. 10/04/05 0 o PORI1 JN OF GOVERNMENT LOT 1, SEC. 32, T24N, R5E, W.M. CONSTR HON NOTES €� x 1)OPEN FACE CURB FRAME AND GRATE. SEE " CD 15 1 #. (-) DETAIL ON SHEET 03.94 _ / - 1 .0 VANED FRAME AND GRATE PER DETAILS ON / / 100 GNRR R/W - 60' 9/W PC STA 20+47.71 18.00' RT FL 38.63 SHEET C3.95 z • / •" ! f, 1/4 A FL 39.07 BASIN o 3 // YS •I 25' I it _ I 3/4 A FL X89 SEESTANDARD AILS ON SHEET IN CFR.4 SE AND GRATE,3 A FL _ / DP,SIGN AND'CONSTRUCTION / W 'BY D�ERS ', '1 I _- - - PT STA = 20+82.71 52.91' LT FL 41.15 (�,SOUR LOCKING COVER AND FRAME, PER m B CD ~' ;/�_ _ - ©.08951 •E 1 A 89- 50' 45" DETAILS ON SHEET C3.95 0 �_ E. Q A 19 •6.64, 17.26"LT ,. ! - l_ - R = 35.00' t g Z 1--- / I : 1 L = 54.88' 5 ROUND SOLID LOCKING COVER AND FRAME, W o % N Q I-I "� / - PWE I J j 999 SEE DETAIL ON SHEET 03.94 a o Rfy • J / - +� a -.a o ,{ I PC STA 20+47.59 18.00' LT FL 3863 0 Z �+ 1 - / e,• - 1/4 R 3880 ROUND SOLID NON-LOCKING COVER AND tin: J 5 n p / - �+t._ --._ /� i I 1/2 2 FL 39.13 FRAME, SEE DETAIL ON SHEET C3-94 o d zo W C ST 18 TYPE 6, 15-25 LT Or / /�// s s - 3/4 A FL 39.46 R CATCH BASIN, TYPE2 PER ' Z O 0 i / �I-p�1 I r� � 3 ���� PT STA 20+82.59 52.97 LT FL 39.62 STRUCTUREPLACEMENTDETAIL ONSHEET _ Ls �U CD W Sff-` 01.10 12 CLAS. :��i• / baa. i Al t/' ��e%4;,' _ _J _J y n U / _ `_ -71 `Eia ic/� '�' p= 89' S6' 42" C3.94. v, ,n P W Z_J / 5=Se72 f!Q �.'1I�I ,•n I R = 35.00' OD Q / ,'AMP 11 I IMP 1 ' lirl L = 54.94 6" PVC (OUNIFSS NOTED OTHERWISE ON u a 1, Q Cc Q Q Q (y::: /. ,,�.''1", ®_I®_I 1�_ I ��� -. __ SEE DETAILS SHOF AIN EET C�6C APPROX.TION LENGTH o m m(/) C)f j - SEE SHEET C5.92 /' ':-...c---. t•' �_"• - T 1 _ I N 41ST 03 _-- D UPSTREAM INVERT ELEV. AS NOTED ON N Z d. / „- „, - T� I STA 21+03.57= ... - ` ,, FOR PIPE ENCASEM / i a m. �_ ,- Ii' • CENTERLINE �- PLANS. ?- - -��/ 11 ' • y LAKE WA BLVD (o Q • /, .• �/. ,.� I, - -- 9®6" ROOF DRAIN CLEANOUT, PER DETAIL ON _ i. Q i . -'d •. ik '_ ' '_� 3 -x! 1. 21,00 . SHEET 03.96 0 tt�� R R �� S&:'7n _ I CL EIEV=38.15 Y Q 4/ t,,,:06'/AI �:;_�' I C ELEV=38-3 10 WOODEN BOLLARDS, TYPE AS NOTED, PER z 3.97 g� \ I f �.. / ip ',.rgtits.-M .-•- LL - 1 F II • _ TOP E1EV=38.5 4 V"'' /- • /• -. --,,,i,..- "- h dr& f _._ _-_ i �E 31`' -- TOE ELEV=29.5 TOP ELEV=38.3_..iiiiiminiiiii-- 11 6 GROUND MOUNTED ETAL ON SHEET CSTREET NAME SIGN AND o�0 4* 9L9 d _ .- _ f• 1®ei n1 _=` POST, PER DETAILS ON SHEET 03.97 A. e o 4sq�o' / / •�"e.._.-- _= �- - s, I .. 'ROPOSED 12" LCPE IN CASING a m �. // - ------- - _ TOE ELEV=25.0 t _ / �4®�_` _ 12 SIDEWALK RAMP PER DETAIL ON SHEEP m a // / ® � \ 1 SFE 05.92 FOR CASING DETAIL 03.91 �•: a /, / !' e eit8 �pup�a i ��" 1 j 13 SURVEY MONUMENT CASE AND COVER, PER , eg�tZ`73¢ ,,v o / % • "! ��`nr • f a'- a - i DETAIL ON SHEET C3.98 k \4- O� d Q/-, s / / � / • - , 14 TYPE III BARRICADE, PER DETAIL ON SHEEP 3 til Q 3 , _ ( ( r- - .`-r'- b r, ••:�...r l I' 03.98 looa,M,(s/re 1 } SECTION ?. _ - PC t8. 1 . ' I'. 'RE INLET STA 19+ 60 . 17.24 RT li _ ' Z 1•• SEE SHEET G7;10 -1; ' ( 1"=2O• 03.03 15 NEIGHBORHOOD DELIVERY AND COLLECTION , a•+-.€ I Y_T.' L�. I ,I BOX UNIT INSTALLATION PER DETAIL ON '--�W 1.• '•.i 1 I 1111° - - SHED--03,98 P I , IFN AL NOTES �'`�' - h f PIPE INLET L.4 ' _•, :K I4 " - R' S A 19+2768 955R7 'i ,1 r 1 1.FOR TYPICAL ROADWAY SECTIONS DETAILS SEE :1 rp-usT o• Ililt.* i I 1 .0 30 - ' - " B - 089417YPE 1 ` :. I - SHEETS C3.89 AND 03.90. i � _ Lt,rale: , ; ll c 14- I. r46 '-' STA 18}77 86.,15. .,zRT 'Q ' - - - • -..-. j't i i 44.5 � 'Zi_ _ PUF ` ,_r '• 2 FOR DRNEWAY LOCATIONS SEE OVERALL ROADWAY _. Reso,ed37.9 ,• '1 1 I� "i r •', I 1 ,,:-. (? I' J , '' PLAN SHEEP C2.40. 02.41 AND 02.42 Y)LBLK MATCHUNE 18+50 SHEET C3.02 I .......,,,_ RLSSEAL I _ _ P88Nt30 '� _ _ _ - - 1 FOR DRIVEWAY, CURB AND SIDEWALK SEE DETAILS '�..' C788N130 s_ ..... - - "I SHEET C3.91 AND C3.92. - 1g,IM 4.FOR i;ATCH BASIN TYPE AS NOTED, SEE DETAILS •' '`s �.Tj 0788EAL 619 �I m • ON SHELIS C3.93. 5 0788E,90 d - C7980270 - m ... C7880500 _, n m PVI STA - 20+73.62 cFOR TYPICAL UTILITY COVER AND RIM 788050 1 60 - -- - _ - c7 N iPV1 STA = 20+52.37 PVI ELEV = 40.24 ?..1,. - - - - 55 5.ADJUSTMENTS TO PROPOSED FINISH GRADE. SEE RC C788U63o _ .. a + FM ELEV = 38.97 Al) -416 -.nm'? - - -. _ ADJUSTMENT i-0' PAVEMENT AND OVERLAY DETAIL C788821 o , _ - - eoi-. A.D. = 5.62 K =-4 81 ,_ a 11- w - -: - ON SHEET 03.96. t�1 07880430 9Y - 4 - K = 3.56 z ',. _-..• 1 C788L650 0 X 3`¢ : ¢ N,O.. I20;QQ' VC I. W. +w> - L^J C7B8L610 Z gg9 - 120.00'VC I .w v Ngo - 6.FOR PIPE COMPACTION DESIGN AND BACKFILL SEE LU C788U620 . .. 50 _ _- - _ - -_ _-: >L'a ?.....�, 50 _ DETAIL SHEET -„.--==.-r :s,,.4,..: rL < V1 ii • C3 96 C788Ga32 % - - O m O o n •W+a N V,.. Z m n v O' 07887070 - -e t0 10 t` M O O Q 17888800 N• oi m ✓1 N� m Z m O CN, - CL C788N036 ,n ++ .m•1 ,mry .M .a ,o ..i +<.W C7861130 w - m - - N N. II +m - 0 Q O ,,j .. s78er22o i u i 45 m 0 o w_3 _ 45 C788N630 ¢ z Z g s r•1 .. .. .-. -. X H.__ N.. W NW TO - C788T071 Q x g 04 o,0 n OF OF LL ..� 0 �6 g C788Ga6o fa O .. - •._II PROPOSED GRADE r 0 W W o> m m w :. - 0•w •AT CENTERLINE - - N w em 07860950 -3 `d x I / 11 / •# o: n .. __- 5 5 .. '�/� 6 40 U .. _ o_a 1.85% _ /i - 6. x 111! pill 111 Z W r /� z i 0.88% .A..r- 0 39. ( L(U. IP' i/ g -_J a - I--1- .'. �i I //' W / \ �y' ZCC 0 35 0 12'tCPE //1 __ __- 35 V i� C �CLCC r- �� a H 80 + ... O - C89s0 .::/! FIBER OPTIC _ .:. /' L 1 ,�,. - U Q o , :� ,�\ .RIM-37.95 , • .NOTE: - - ; j i/' KEYMAP �`�V) m / I IE=34 33 / u,xlssEiaim401)880 s I/1 ' 30 ..Z - y1 _/ - ( - : / 1. THE CONTRACTOR SHALL LOCATE THE EXISTING - - Jo Q �Y J .. ___-�' \ J UTILITIES WITHIN THE BNSF RDW AND TAKE � 0-1 m -_ / : WASHINGTON BLVD ROW.PRIOR TO CONSTRUCTION. - - m . U `'3 LF�12" LCPE � 35�F 5=0.507.t 2" LOPE 300E 510.502 12" LCPE O / _ _ _ __ _ 5' 0' 5' 10' � Ira= 1. O S=0:50% - - .. \ / _ _ .. _ _ ¶ M��T o 1 j T -EXIST GRADE VER CALF 0 25 :. . . 10"W _ T - ] - -AT CENTERLINE 0 •\-- .._. _ TfW=33.59 / __ 11 __ _ _. - _ _.. 25 20' 0' 20' 40'Woa 10" W� 1 SAME CB L - I . _a TOP=33.29 •- m XIST..12"W - 96" METRO SS - - - o n a '?fD - 06957 RI ONTAL S IN HO Z CALF FEET W 20 0 gm's 34-LF 12`LOPE EMS Sod 20 RECOMMENDED FOR APPROVALIncorporated KALI BEFORE YOU DIG 1 800-42_4-5555 B W 0 : W C4Z .u S=0:50% .. :. 10230 1rE ria n;.e.suite 400 - - By: Dote: Kirkland,Washington 98033 ,� 15 :. .. _ .. Phone: (4251 822-4446 g 15 By: Date- FAX. (425( 827-9577 W 2 W By: Date: 30785.001.001.D5 Internet: TRT Otak.COY "i," F to v1n om N nN •n m� N No --e' n� n m ,o z m Project No. w"g o� �� N mm m �o 003.03 �o r1 n N" ,„ "1 "'n "'< ca v < x o2 By: Dote: a a Sheet No. 0 z 18+50 19+00 19+50 20+00 20+50 21+00 21+50 Sheet of It EXHIBIT "B" EASEMENT AGREEMENT FOR GRADE CROSSING (C&M Agreement) THIS EASEMENT AGREEMENT FOR GRADE CROSSING ("Easement Agreement") is made and entered into as of the day of 2007, ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF RENTON, a subdivision of the State of Washington ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Renton, County of. King, State of Washington, at Mile Post 6.06, [DOT # 927464T], 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 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 incorpor tted - -- herein, 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"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the 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; Exhibit"A" (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Section 3 No Warranty of 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 RESPONSIBLETO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATiNG TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR 'URPOSE OF-"ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEP_I.S.-.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 warrantiesthatGrantee 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 Exhibit"A" 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 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 Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. -- Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean_Water Art, 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, "storages" "transfer" or "disposal facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Exhibit"A" 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 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„cnst' Grantor's failure to perform any obligations of Grantee or Grantee's C onti-actor.S shall not alter the liability allocation set forth in this Easement Agreement. _ 8„' 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 the Eternises 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 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 • Exhibit"A” (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. 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 oi 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 SectitYn 1031: Grantor shall bear all expenses associated with the use of Apex, or necessary to-gtrafify this-frarrsaction 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 10.31. 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 sixty (60) 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. Exhibit"A" 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 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 shalt 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. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: Name: Title: Exhibit"A" PORTION OF SEC. 32, T24N, R5E, W.M. n4‘ 530'54'57'1W- -..1 ; -. I ►+ ci i u L. I T _ am*� I-- 7 i C--- I 'C . ' RP�ILROAD CENT�RIJINE BNF (--- z TF�ACKS Li- _ In , RIGHT-0 WAY .\ a . ��.. I S30'54'57"W I I 1- -- _:_ -I \ c \ I (f)32557,'_TO M.P.- �I co - _ . � . 6.00 S'-MEASURE r ALON RIGHT-OF ' I o - - -WAY ;CENTERLLNEi 'i • 48.4., / I . . f I 1 -.I / •2 'ERMANENT PUBLIC a'SEME i I\ I I t �' \ .�I N30'54'57"E *,: _ _1 4fl7,.,__----._ ___ . TRUE--P01NT OF-- --------- .__ _._ _.._ -__ -__._.._._.___-- BEGINNING-_--- __ -----LAK E W H11s-GTO -- 3LV D . — _ - 20' 0' 20' 40' 11•',•• .1.1Milliii...1.11 Or) - _ __ _ _ __ SCALLE-,I! IN FEET o`�\ Barbee Mill NOTE:LOCATED 1L161.8E sFEETIS LtiT ""` Railroad Crossing M.P. 6.06 SOUTHWESTERLY, MEASURED w - Permanent Easement = 9,692 SF ALONG BNSF RIGHT-OF-WAY IncorporatedExhibit A CENTERLINE, FROM NORTH Points Dr.Dr. 10230 NE Pulntsf+� Sukin¢d,Ifeehm`bn D099 �o�: �6 �-s,s Page o LINE OF SECTION 32 L Tl f 3 a2i-957+ Otak Exhibit C788S054 EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 96.92 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line in Government Lot 1, Section 32, Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 48.46 feet each side of the following described centerline: . Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way;thence southwesterly along said centerline, S.30°54'57"W., 836.23;then leaving said right-of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly-railroad right- of-way margin and the 1'KUE POINT OF BEGINNING of herein described centerline; thegnce N.59°05'03"W., 100.00 feet to a point on the westerly right-of-way margin and the terminus of this description. Containing an area of 9,692 square feet, more or less. H:\carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site\N.41 St.Legal 5-04-07.doc031104 WHEN RECORDED MAIL TO: Memorandum of Easement GRANTOR: BNSF RAILWAY COMPANY GRANTEE: THE CITY OF RENTON Abbreviated Legal Description: Assessor Property Tax Parcel Account Numbers: (None Railroad Right of Way) THIS MEMORANDUM OF EASEMENT is thereby executed this day of , 2007, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and THE CITY OF RENTON, a political subdivision of the State of Washington ("Grantee"), whose address for purposes of this instrument is 1055 S. Grady Way, Renton, WA 98055, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. Page 1 of 3 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 ) }ss._ COUNTY OF TARRANT ) On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider and Patricia Zbichorski, to me known to be the General Director-Land Revenue Management, and Assistant Secretary, respectively, 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 they are authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. 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: My appointment expires: Page 2 of 3 GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: 111111111 Name: Title: STATE OF WASHINGTON § §ss. COUNTY OF ICING § On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and sworn, personally appeared and , to me known to be the and , respectively, of the City of Renton, the corporation that accepted 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 they are authorized to accept said instrument for said corporation. Witness my hand and official seal hereto affixed the day and year first above written. Notary Public for the State of Washington Residing at: 41111 My appointment expires: Page 3 of 3 EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 96.92 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line in Government Lot 1, Section 32, Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 48.46 feet each side of the following described centerline: Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way,thence southwesterly along said centerline, S.30°54'57"W., 836.23;then leaving said right-of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right- of-way margin and the 'TRUE POINT OF BEGINNING of herein described centerline; thence N.59°05'03"W., 100.00 feet to a point on the westerly right-of-way margin and the terminus of this description. Containing an area of 9,692 square feet, more or less. H:\carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site\N.41 St.Legal 5-04-07.doc031104 LAW DEPARTMENT APPROVED Exhibit "C" Part 1 GENERAL CONSTRUCTION AGREEMENT (FOR CONSTRUCTION PROJECTS PERFORMED BY AN AGENCY'S CONTRACTOR ON OR ADJACENT TO BNSF'S PROPERTY) This General Construction Agreement("Agreement")is entered into effective as of 2007,by and between ("Contractor"),and BNSF RAILWAY COMPANY("Railway"). WHEREAS,Railway operates a freight transportation system by rail with operations throughout the United States and Canada;and WHEREAS, the City of Renton, WA, desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property,and Contractor is willing to perform such services;and WHEREAS, the City of Renton and the Railway have entered into a separate CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_requiring this contract. NOW, THEREFORE, in consideration of Railway entering this Agreement with Contractor and granting • Contractor permission to enter upon the Premises(defined herein),Contractor agrees with Railway as follows: SECTION 1. SCOPE OF SERVICES Contractor and/or Agency will perform the following services, hereinafter described as "Work": All work necessary to construct the Barbee Mill — N 41st Street Project as defined in the CONSTRUCTION AND • MAINTENANCE AGREEMENT,dated ,200_, that will not be performed by the Railway under said agreement. Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway; and(ii)Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice-president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES The City of Renton will be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. 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 1 Form 0101 Rev.09/15/05 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. 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 4. 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 limited 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: • Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. (d) Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least$2,000,000 per occurrence and$6,000,000 in the aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93 and include the following: 2 Form 0101 Rev.09/15/05 • 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 include Evacuation Expense Coverage 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: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care,custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy will be 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 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. 3 Form 0101 Rev.09/15/05 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 5.CONTRACTOR REQUIREMENTS (a)While on or about the Premises, Contractor must fully comply with Railway's Contractor Requirements set forth on Exhibit "C" attached to and made a part of this Agreement. The Contractor Requirements include clearance requirements and personal protective equipment requirements. Contractor will be responsible for becoming familiar with Railway's "Contractor Requirements". (b)Prior to entering the Premises,each person providing labor,material, supervision,or services connected with the Work to be performed on or about the Premises must complete the safety training program (hereinafter called, "Railway Contractor Safety Orientation") at the following internet website: "conractororientation.com". Contractor must ensure that each of its employees, subcontractors, agents or invitees completes the Railway Contractor Safety Orientation before any Work is performed under this Agreement. Additionally, Contractor must ensure that each and every employee of Contractor, its subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation prior to entering the Premises. Contractor must renew the Railway Contractor Safety Orientation annually. (c) Prior to entering the Premises, the Contractor must prepare and implement a safety action plan acceptable to Railway. Contractor must audit compliance with that plan during the course of Contractor's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by Railway at all reasonable times. (d)When not in use, Contractor's machinery and materials must be kept at least 50 feet from the centerline of Railway's nearest track. Contractor must not cross Railway's tracks except at existing open public crossings. SECTION 6.INDEPENDENT CONTRACTOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. 4 Form 0101 Rev.09/15/05 SECTION 7.TRAIN DELAYS Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway.performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a 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 (John Li) four (4) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan,schedule,coordinate and conduct all Contractor's work so as to not cause any delays to any trains. 5 Form 0101 Rev.09/15/05 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above. BNSF Railway Company [Insert Contractor's Name] Signature: Signature: Printed Name: Printed Name: Title: Title: Contact Person: Address Fax: Phone: E-mail: Form 0101 Rev. 09/15/05 Exhibit "C" Part 2 CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of the City of Renton's Barbee Mill —N 41st Street Project as described in that certain agreement entered into by the City of Renton and the BNSF Railway Company entitled CONSTRUCTION AND MAINTENANCE AGREEMENT, dated 20 • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the GENERAL CONSTRUCTION Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 4 of said GENERAL CONSTRUCTION agreement. • 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. • 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, in writing, at least thirty(30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railroad's file:US DOT No.927464T. • 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 '/ 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 1 Form 0102 Rev.01/20/05 and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor • must ensure that each and every one of its employees,subcontractors,agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 NO BLASTING SHALL BE ALLOWED ON RAILWAY'S PROPERTY. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000.volts • 1.03.04 Upon completion of construction,the following clearances shall be maintained: • 25' Horizontally from centerline of nearest track • 23'-3'/2" Vertically above top of rail ,s 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. 2 Form 0102 Rev.01/20/05 • • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary 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(Edward White—206.625.6462)a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements(i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, 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. 3 Form 0102 Rev.01/20/05 • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons,material,equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway 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 1 freight trains per 24-hour period at a timetable speed of 10 MPH and 0 passenger trains. 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. 4 Form 0102 Rev.01/20/05 • 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 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 interfere with the sight distances of motorists 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 internet 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(Phone: 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.01/20/05 • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind,no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and,regardless of depth,must be shored where there is any danger to tracks,structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material,on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and(c)exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA)reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately(by phone mail if unable to contact in person)to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. 6 Form 0102 Rev.01/20/05 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.01/20/05 Exhibit"D" CROSSING SURFACE ESTIMATE MAINTAIN PROPRIETARY CONFIDENTIALITY • THE B. N. S. F. RAILWAY COMPANY � FHPM ESTIMATE FOR N(41 IT Street CITY OF RENTON Ii LOCATION:— DETAILS OF ESTIMATE PLAN ITEM: 000119290 VERSION: 1 PURPOSE, JUSTIFICATION AND DESCRIPTION Illli DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER DTD INSTALL A NEW 56' CONCRETE CROSSING FOR A RESIDENTIAL DEVELOPMENT. IN ADDITION, TO INSTALL, A CROSSING AT MP 5.99 WILL BE REMOVED. — LS 405 — MP 6.07 — MAIN /1 LINE `! w ST �j„_`G1 WOODINVILLE SUBDIVISION — NORTHWEST NORTH DIVISION ry"'#'r d/' -C. RDM ED WHITE — DE GREG JACOBSON 100% BILLABLE TO CITY OF RENTON, WA BILLING FOR THIS PROJECT SHOULD BE DIRECTED T0: CITY OF RENTON 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 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 WHERE NO MILEPOST SIGNS EXIST SUCH AS YARDS. THI$ ESTIMATE IS GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL, AND OVERHEAD. 3e DESCRIPTION QUANTITY U/M COST TOTAL $ LABOR BUILD TRACK PANELS — REPLACEMENT 48.00 MH 929 PLACE FIELD WELDS — CAP 32.00 MH 676 PLACE PUBLIC CROSSING — CAP 112.00 MH 2,168 REMOVE PUBLIC CROSSING 32.00 MH 623 SIGNAL FIELD LABOR — CAP 19.00 MN 430 SURFACE TRACK — REPLACEMENT — CAP 24.00 MH 503 UNLOAD BALLAST — REPLACEMENT — CAP 12.00 MH 233 UNLOAD CROSSING MATERIAL — PUBLIC — CAP 28.00 MH 542 WORK TRAIN — BALLAST — REPLACEMENT — CAP 36.00 MH 1,359 PAYROLL ASSOCIATED COSTS 5,461 EQUIPMENT EXPENSES 3,987 DA LABOR OVERHEADS 7,481 • PERDIEM EXPENSES 150 INSURANCE EXPENSES 1,172 TOTAL LABOR COST 25,714 25,714 MATERIAL BALLAST, FROM SPRAGUE, WA (MTN, 200.00 NT ** 852 'III CLIP, PANOROL, NO. E-2055 (FOR ALL WEIGHTS RA 144.00 EA 175 WORK TRAIN FUEL — GRADE XINGS 900.00 GAL 1,422 JOINT, COMPROMISE, 115# TO 1001, NP, LH, 3L & 2.00 PR 394 JOINT, COMPROMISE, 115# TO 100#, NP, RH, 3L & 2.00 PR 394 RAIL, TRANSN,LB,25 FT, 136-1/4 WORN 115 2.00 EA 2,171 RAIL, TRANSN,R2,25 FT, 136-1/4 WORN 115 2.00 EA 2,171 RAIL, 136 LB NEW WELDED, PREMIUM : 160.00 LF ** 2,746 TIE, TRK,10',PRE—PLATED,PANDROL,6",ROUND HOLE 54.00 EA ** 4,878 TIE, TRK,GRADE 5,PRE—PLATED,PANDROL,5.5",ROUN 20.00 EA ** 1,475 TIE, TRE,GRADE 5,PRE—PLATED,PANDROL,6",ROUND 16.00 EA ** 1,173 WELDKIT, GENERIC FOR ALL RAIL WEIGHTS 4.00 KT 212 CONC 136 08—SEC WITH FILLER FOR WOOD 56.00 FT 7,392 CONCRETE XING RAMP AND PANEL RESTRAINT, COMPL 1.00 ST 192 ASPHALT 60.00 NT ** 9,000 SIGNAL MATERIAL 2.30 DAY 345 MATERIAL HANDLING 1,670 • ONLINE TRANSPORTATION 2,086 USE TAX 2,931 OFFLINE TRANSPORTATION 270 TOTAL MATERIAL COST 41,949 41, 49 1 OTHER LEASED EQUIPMENT WITH OPERATOR 2.30 DAY 3,450 TOTAL OTHER ITEMS COST 3,450 3,450 PROJECT SUBTOTAL 71,113 CONTINGENCIES 6,897 BILL PREPARATION FEE 391 GROSS PROJECT COST 78,401 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 78,401 !Ij iE k4 CROSSING SIGNAL ESTIMATE MAINTAIN PROPRIETARY CONFIDENTIALITY THE B. N. S. F. RAILWAY COMPANY FHPM ESTIMATE FOR CITY OF RENTON LOCATION:- MP 4.4 DETAILS OF ESTIMATE PLAN ITEM: 000119064 VERSION: 1 PURPOSE, JUSTIFICATION AND DESCRIPTION E t4 41 et INSTALL CONSTANT WARNING AND FLASHER WITH GATES AT'C"STRL+B6 LN RENTON, WA. NORTHWEST DIV., WOODINVILLE SUBDIV., L/S 0405, M.P. 6.07, DOT # 927464T MONTHLY POWER UTILITY COST CENTER : 61504 THE MATERIAL LIST BELOW REFLECTS TYPICAL REPRESENTIVE PACKAGES USED FOR-ESTIMATING PURPOSE ONLY. CONTINUING CONTRACTS HAVE BEEN ESTABLISHED FOR PORTIONS OP SIGNAL WORK ON THE BNSF RAILROAD. THEY CAN BE EXPECTED TO CHANGE AFTER THE ENGINEERING PROCESS, DETAILED AND ACCURATE MATERIAL LISTS WILL BE FURNISHED WHEN ENGINEERING IS COMPLETED. THIS ESTIMATE IS GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL, AND OVERHEAD. SIGNAL WORK ONLY THE CITY OF RENTON IS FUNDING THIS PROJECT 100%. MAINTAIN PROPRIETARY CONFIDENTIALITY. DESCRIPTION QUANTITY U/M COST TOTAL $ LABOR ELECTRICAL LABOR F/POWER TRANS SYS 54.00 MH 1,277 SIGNAL FIELD LABOR - CAP 672.00 MH 14,664 SIGNAL SHOP LABOR - CAP 64.00 NH 1,447 PAYROLL ASSOCIATED COSTS 12,733 EQUIPMENT EXPENSES 4,596 DA LABOR OVERHEADS 17,442 • INSURANCE EXPENSES 2,737 TOTAL LABOR COST 54,896 54,896 MATERIAL BATTERY 1.00 EA N 4,546 BONDING MATERIAL 1.00 EA N 1,500 BUNGALOW 6X6 1.00 EA N 8,612 BUNGALOW MATERIAL 1.00 LS N 3,399 CABLE 1.00 EA N 3,096 CHARGERS 1.00 LS N 810 CONDUIT, PVC 4•, SCH 80 75.00 FT N 293 CONSTANT WARNING 1.00 EA N 13,015 FIELD MATERIAL 1.00 LS N 3,073 t1t FOUNDATION 2.00 EA N 970 GATE KEEPER 2.00 EA N 3,550 GATE MECH. MODEL 95 COMPLETE 2.00 EA N 10,600 • LAMP RESISTOR 1.00 EA N 761 LED LIGHT ADJUSTMENT 8.00 EA N 1,792 LED LIGHT GATE KIT 2.00 EA N 732 LIGHT OUT DETECTOR 1.00 EA N 682 MATERIAL FOR ELECTRICAL 1.00 EA 1,500 RECORDER 1.00 EA N 2,220 RTU-6, CELLULAR MONITOR 1.00 EA N 2,060 SHUNT, NBS 2.00 EA N 1,058 MATERIAL HANDLING 75 USE TAX 5,408 OFFLINE TRANSPORTATION 801 TOTAL MATERIAL COST 70,753 70,753 OTHER AC POWER SERVICE 1.00 EA 5,000 CONTRACT ENGR. 1.00 EA N 5,000 FILL DIRT 10.00 CY N 250 SURFACE ROCK 10.00 CY N 250 TOTAL OTHER ITEMS COST 10,500 10,500 PROJECT SUBTOTAL 136,149 CONTINGENCIES 13,614 BILL PREPARATION FEE 749 GROSS PROJECT COST 150,512 LESS COST PAID BY WISP 0 fs TOTAL BILLABLE COST 150,512 — f .. X1-} I�3 BNSF Right-of-Way Mile Post 6.23 Line Segment 405 DOT#927465A Barbee Mill N 43rd Street CONSTRUCTION AND MAINTENANCE AGREEMENT THIS CONSTRUCTION AND MAINTENANCE AGREEMENT (hereinafter called, "Agreement"), is executed to be effective as of 2007, by and between the CITY OF RENTON, a Political Subdivision of the State Washington (hereinafter called, "AGENCY"), and BNSF RAILWAY COMPANY, a Delaware Corporation(hereinafter called, "BNSF"); WITNESSETH: WHEREAS, BNSF operates a freight transportation system by rail with operations throughout the United States and Canada;and WHEREAS, in the interest of aiding vehicular travel and public safety, the AGENCY is undertaking a project to install railroad crossing signals and activation equipment known as the Barbee Mill — N 43rd Street Project; WHEREAS, the Barbee Mill — N 43`d Street Project is located on the Woodinville Subdivision at Line Segment 405, Milepost 6.23 and will be designated as U.S. DOT crossing #927465A as indicated on Exhibit "A", attached hereto and incorporated herein; WHEREAS, the parties agree that the BNSF will receive no ascertainable benefit from the installation of advance warning signs, pavement marking stop bars or crossing signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); WHEREAS, AGENCY also desires BNSF to install a new concrete and rubber crossing surface; WHEREAS,the existing Private crossing located at Milepost 6.20,DOT crossing#091740D will be closed and removed upon said construction of the N 43rd Street crossing; WHEREAS, the AGENCY is paying for the acquisition and installation of crossing signal equipment and the new crossing surface at N 43rd Street; WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the crossing signal equipment and the new crossing surface described in the scope of work herein, and upon the terms and conditions set forth below. 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 in this agreement includes any and all work related to the installation of grade crossing surfacing, and grade crossing signals and activation equipment at U.S. DOT crossing #927465A, more particularly described on 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, installation of advance warning signs and pavement marking stop bars, installation of any new crossing surface, temporary and permanent track 1 Form 0104 Rev. 10/04/05 s 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. The BNSF will, using its own labor forces under applicable labor agreements,install the Crossing Signal Equipment and the new crossing surface at N 43rd Street. The work will be performed at AGENCY's expense and in accordance with the MUTCD and the plans and specifications approved by AGENCY. The plans and specifications are attached to this Agreement as Exhibit"A"and incorporated 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 Two Hundred Twenty Seven Thousand Eight and No/100 Dollars ($227,008.00) as compensation for the Easement within thirty (30)days of issuing a Notice to Proceed pursuant to Article III, Section 12 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. A detailed estimate of BNSF'S construction engineering, installation labor (including the costs, if any, of electrical service from a public utility)and material costs required for the Project are attached hereto as Exhibit"D" and incorporated herein. In the event construction for the Project has not commenced within six (6) months following the effective date of this Agreement, 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. 3. BNSF will furnish all labor,materials,tools and equipment for the railroad portion of the work required for the construction of the Project. 4. The BNSF will, at AGENCY'S expense, remove the existing Private crossing located at Milepost 6.20, DOT crossing#091740D, including obliteration of the crossing between the rails and two feet outside thereof. 5. The BNSF will,at AGENCY'S expense,dispose of all scrap from the BNSF'S work hereunder. 6. The BNSF will finalize and complete billing of all incurred costs under this Agreement no later than one (1)year following installation of the Crossing Signal Equipment and the new crossing surface. 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 perform,at AGENCY'S expense,the following work: a) Installation of a pavement marking stop bar in accordance with the Manual on Uniform Traffic Control Devices(hereinafter called,"MUTCD"). 2 Form 0104 Rev. 10/04/05 b) Installation of advance warning signs in accordance with the MUTCD. c) All other work required to complete the Barbee Mill—N 43rd Street Project. 2. The AGENCY will approve the location of the signals and signal bungalow prior to installation by BNSF. 3. Actual costs for engineering, materials and labor (including third party charges for the installation of electrical service) associated with the installation of the Crossing Signal Equipment and the new crossing surface must be paid by the AGENCY as provided in 23 Code of Federal Regulations (Revised 2001) including, but not limited to,Parts 1, 140, 172 and 646(hereinafter called,"23 CFR")" 4. In the event the services of a consultant are needed after execution of this Agreement due to any exigency of the BNSF and the Project, the AGENCY and the BNSF will mutually agree, in writing, as to the selection of a consultant and the applicable scope of work to be performed by such consultant. All work performed hereunder by any consultant and any resulting costs must be paid by AGENCY as a part of the costs for the Project. 5. During the installation of the Crossing Signal Equipment and the new crossing surface of N 43rd Street, BNSF will send AGENCY progressive invoices detailing the costs of the 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, 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. 6. Upon execution of this Agreement by both parties hereto, BNSF will send AGENCY an invoice detailing the total amount owed by AGENCY for the new crossing surface. AGENCY agrees to pay BNSF actual costs to perform BNSF Work. AGENCY's ESTIMATED total cost for the new crossing surface is Seventy Eight Thousand Four Hundred One and No/100 Dollars ($78,401.00) and for the new crossing signal is One Hundred Fifty Thousand Six Hundred Thirty One and No/100 Dollars($150,631.00). 7. The AGENCY shall provide, at its own cost and expense, all necessary barricades, lights or traffic control devices for detouring vehicular traffic at the N 43rd Street crossing during installation of the new crossing surface and signals. 8. The AGENCY agrees to allow BNSF to drain water from the N 43rd Street crossing area into existing AGENCY storm sewers,if such storm sewers are available. Drain pipes and filter fabric necessary for such drainage will be furnished and installed by BNSF as part of the work under Article II,Section 2. 9. This Agreement begins on the effective date set forth above and remains in effect until completion of all work contemplated in this Agreement and AGENCY's payment of the amounts set forth in Section 2 above. 10. AGENCY agrees to provide BNSF with the following credit enhancements guaranteeing the total amount of AGENCY'S financial obligations (including, without limitation, liquidated damages, indemnity obligations and other expenses)under this Agreement: (a) Surety Bond to be provided by Agency's Contractor underwritten by an insurance company listed in the Department of Treasury Federal Register with terms acceptable to BNSF, in BNSF'S sole discretion; 3 Form 0104 Rev. 10/04/05 AGE CY Boulevard,Fort should forward the Worth Suretyto 11. Texas 7613] ( honed Ted Johnson, Manager of Project byirherOssing shown or have advanced ) Credit, BNS 2400 Western and pavement AGENCY AGENCY. The Exhibit v (if the railroad crossing warning Center ole or in part markings and on ExENCY assumes same are required b tsigns and standard or other requirements by or due ees to hold tear responsibility Y MUTCD) 9uirements oft to the harmless and ' Y for the prior t pavement markings in 12 he MUTC AGENCY'S indemnify the instate acceptance railroad portionTo AGENCY give BD. S failure to maintain he adSP vanced Y claims,ce of advanced Warning signs must udinNSF' d warning signs g °r losses, in received g' without lie work after receipts Manager ofgas and markings from AGENCY limitation, the GENERAL of Public Agent AC Procure necessary funds forProjects Agency's Contractor, procurement of supplies, written notice to ERnt COpplies, equipment Project. BNSF Proceed with 1 r CONSTRUCT/ON or materials) will not begin teethe (inc right-of-way, ighr_of-3. should AGENCY re AGREEMENT until written notice railroad CONTRACTOR AGENCI, quire a Contractor has been e to proceed work plans and specifications pe Should REQUIREMENTS require include heor t perform Work executed by BNSd way until said at1 N issued attac NSF's associated Contractor GENERAL for the attached hereto and GENERAL CO with this Project following CONSTRUProJect. gGENC made a parr here CONSTRUCT/ON °° °r within B g issuance of the CTION NSF notice to AGENCY's AGREEMENT is executed shall as of Exhibit "N F this and ARTICLE proceed as is executed b not commence work agreement,in all LE IV_ DINT OBLIGATION specified in Article III,Section BNSF and rhBAG NSF right of S above. ENCY's mutuallyIn consideration agree as follows: I. All vof the mutual covenants of the reasonable cost record parties contained °able time by re sof the R herein and the premises, the the pro Parties 2. one(1)Year from AGENCY (including Ject isl be o BNSF will,Poncompletion of date of the g the legislative pen to inspection final ROA))invoice and fiscal analyst audit at surface in at��sole cost the installation ofRAIL A Proper c and ex °voice under anal any onditexpense, the Crossing this Agreement.fa for the 3. operate and maintain he nal Notwithstanding ma n t Equipment subsequent] passed asse nd�ng the preceding Crossing Signal nd he new crossi increase the AGENCY, amended by heProvision, if Equipment and Sihe g surface the such regulations, Portio AGENCY Y re ew crossing will be into ordinances maintenance or y other A an incorporated > ac S'of ace costs an her appy ns' ordinances, acts, d into and rules or other laws under Priate rules or 4. made a part of s and therhis Agreement increasedmortio or legislative relocation If a railway or his Agreement. AGEN I„S ' BNSF receive gislative laws a hi C will r authority reloc ng Signal E highway the benefit of ation oi'alteration or the improv Portio any ratioement ° °f maintenance thenew crossing rearrangement, costs S. responsibility of e part installed arh changes.es. Cross If anyhe Party re hereunder, the relocation, replacement costs of the Crossing Si questing such chs costs for r alteration of the must a) be distributed nal Equipment is Partially or µ, ages. such rearrangement In the as follows: holly destroyed, then such repair Equipment B event the BNS Signal Equipm nSF must reimburse AGENCY destroys p r and/or CY for Ys or damages he costs to replace the Crossing or repair such Crossing A b) In the event the Crossing Signal Equipment is damaged or destroyed by any other cause, AGENCY must, at its sole cost and expense, reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment. 6. If the Crossing Signal Equipment installed hereunder cannot, through age, be maintained, or, by virtue of its obsolescence, requires replacement, the cost of installation of new crossing signal equipment will be negotiated by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and applicable AGENCY at the time of such replacement is warranted. 7. This Agreement will inure to the benefit of and be binding on the parties hereto, their successors, and assigns. 8. In the event any paragraph contained in this Agreement or any item,part,or term within any particular paragraph is determined by a court of competent jurisdiction to be invalid or unenforceable,the validity of the remaining paragraphs or items will not be affected;and the rights and obligations of the parties will be construed and enforced as if this Agreement did not contain that particular paragraph or item held to be invalid or unenforceable. 9. This Agreement may be signed in counterparts,any one of which will be deemed to be an original. The parties further agree that any facsimile copy of a party's signature is valid and binding to the same extent as an original signature. 5 Form 0104 Rev. 10/04/05 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BNSF RAILWAY COMPANY By: Printed Name: Title: CITY OF RENTON,WA By: Printed Name: Title: 6 Form 0104 Rev. 10/04/05 PORTION OF GOVERNMENT LOT 1, SEC. 32, T24N,R5E, W.M. CONSTRl,..HON NOTES g PC STA 11+25.18 18.00' LT FL 3547 0 OPEN FACE CURB FRAME AND GRATE, SEE �o $ Ux SEE SHEET C3.10 16 1/2 A FL 35.30 DETAIL ON SHEET C3.94 N A € - 2 VANED FRAME AND GRATE PER DETAILS ON C8143 ' .3 �1/i I .100' Ir 3/4 FL 35.21 z 1.r� SEE SHEET , BRP'_R/W 'yl 60' R/W / PT STA 11+59.65 46.95' LT FL 35.13 SHEET C3.95 i 03.100.1. ..a 25' 25' ! I i / , _ = BOD 2' 51` o I 1!I I I ( R 35.00' SSTANDARD ON SHEET C3.9FRAME AND GRATE. N o (,yU �, 34 • 'I''''.1 I 08142 I. I-' I I^� • / i L = 48.90" 0 SOLID LOCKING COVER AND FRAME, PER g C_D c , SEE SHEET C3 10 j I !! PC STA 11+10.04 18.00' RT FL 36.57 ��DETNLS ON SHEET 03.95 0 _ 8 Z 0 / , t I 1 I I' 1 =•,'• I it 1 1/4 FL 35.89 5 ROUND SOLID LOCKING COVER AND FRAME, rc Q +' � -.__.. _ gL. I 06, 1/2 A FL 34.80 o (n N") % '�► 1 _ _ { 1 I 3/4 p FL 33.72 SEE DETAIL ON SHEET 03.94 a o 8 Z D ', _, `� i# - I - I I I _ I 'J; 10 ROUND SOLID NON-LOCKING COVER AND o I / PT STA 11+44.83 56.88' RT FL 33.03 ,', • , :/ A= 96D 22' 10' FRAME, SEE DETAIL ON SHEET C3.94 0 0 0 Zfr.---11- II rr R 35.00' w k Z C"-13 ',11 �� ` I �'..' �<_� r r L= 58.87' 0 REVERSE CATCH BASIN, TYPE 2, PER 8 Q Q I ' v ' + \I .� I I _ 1' STRUCTURE PLACEMENT DETAIL ON SHEET o LTJ-U '�' p` • --I--1 I , / 03.94. J ,n y�e Q m U U Z J r I,• •! T -1--.4ttit'‘,1--.:N.-1, ; •�` - �I ' , 8�,6" PVC (UNLESS NOTED OTHERWISE ON 2 Q D 0 Li. 1_ II e • I f I / PUN) ROOF DRAIN COUFCTION PIPE, m x y I Q CC p r O I I _ • ' r1 s -#tri) , r--____- c13 '--- SEE DETAILS SHEET 03.96, APPROX. LENGTH o m m(n -r - - --- _ AND UPSTREAM INVERT ELEV. AS NOTED ON K Z EL '.',, - ( k _ ry - k- ] ;-/ 1 __ PLANS. o Q UO I0 p0 ,�31 . m ---- _- i T( 1 90,6" ROOF DRAIN CLEANOUT, PER DETAIL ON R R m '' T -„ 8 iS -� _ (s' - 1 .i SHEET 03.96 a z o z -- s' Y Q , I -'''...4.,;-.7%----' 1' ! 10 WOODEN BOLLARDS, TYPE AS NOTED, PER g -. It # } _ ; _ mm } -' t _ (' DE7PJL ON SHEET 03.97 ` I. L t `r3 p 1 _ 11 GROU D MOUNTED STR ET NAME SIG AND O L S4r '• z ) .�" I _ I 1 NOTE: POST,NPER DETAILS ONESHEET C3.97N 0� of..�87 9' ' ' BIZIEF-,CW- 11 'f } 1 _'� �• - r • _ �' PERFORMED ONi PRIOR TO ANY CPV• O ..L,_,_OF P1iOFERIY (WITHIN a SIDEWALK RAMP PER DETAIL ON SHEET el Rb '' ' Ct S ' SHEET x '/ '� S=•- I THE PROPOSED R.O. ), THE 3ARBEE MILL DEVELOPER L.. W 3.10 ''® I A!l ' BNS 1 ilt .e • MUST PROVIDE SUFFICIENT DOCL .E TALION THAT 13 SURVEY MONUMENT CASE AND COVER, PER .iii .p�a251340 v , / , 1 f THERE ARE NO CONTAMINANTS Ph„NT IN SOIL OR rstS._ R a I'I y ,I --7- 1 ' 1'1i, f _ , GROUNDWATER FOR THE R0 N AR, ABOVE THE - DETAIL ON SHEET 03.98 ,' ,S/O NAL,,N. Cr GT`� s = 1,r I I ' ' I. i CLEANUP LEVELS UNDER THE A T ` jlc SITE 0 TYPE III BARRICADE, PER DETAIL ON SHEET ,1,1ry•` 0 O o I -5 ■ 1, .I • CLEANUP REGULAIONS FOR THE 4v&.hI STATE I : /s/aet"' I s ,,,,,,,,,s,,___,--.; . '""II"� ;il'• .- .. I I.. 1\�I ' I ,;� '� DEPARTMENT OF ECOLOGY WITHIN'THE M�T�1. TOXICS b 03.98 �.,Z _ If. - ' ' i CONTROL•ACT(MICA) CHAPTER 173 40 W" _ t T- a.. l-^.. ,2 g0 15 NEIGHBORHOOD DELIVERY AND COLLECTION R E''W � • v ------.,--,- R r - ( --- -. BOX UNIT INSTALLATION PER DETAIL ON ~ 1' _ A+,,`��+ _ _ I I I SHEET 03.98 {{ • GENERAL o I' ,t �d I _ SEE4AHEET C3 10 i• ' I I - NOTES , 'a = .�' - v _- NOTES ., LL - - ONS DETAILS SEE ' I •` _�r� RETS TYPICAL AND C SEC ''� -1 .. I %aEF us7 FOR Y as==_mss= i - - � Ir ' ,=F - v i• - -- 3n=r" �. . 1 1. TYP ROADWAY n _ --.4 11 F_ I - 'r ' •' . NEWAY LOCATIONS SEE OVERALL ROADWAY , rte'€ __ ^ - - I . f - _ 2.FOR DR Resoled a _ _: ,. I • - I I I _ I - - - SHEET C2. 02.41 AND 02.42. - 1rLeLX SEE SHEET 03.10 Purl 1 , , RLssFu. $ 3.FOR DRIVEWAY, CURB AND SIDEWALK SEE DETAILS 'at RLSSEA 30 ea \ -- I�- - ON SHEET C3.91 AND C3.92.C788N1 _ C7880900 is A- - :.. -... :. - - 4.FOR CATCH GAS1N TYPE AS NOTED, SEE DETAILS -' �. KSOStAI. ,.,�c • i I �, 07888190 g _ _3. • - _ ON SHEEIs 03.93. C7888270 ._ C7880500 7 55 5.FOR TYPICAL UTILITY COVER AND RIM C788U61 O _ _. - 1-- _ _ _ _. -. _ ADJUSTMENTS TO PROPOSED FINISH GRADE. SEE C788063o _ ADJUSTMENT FOR PAVEMENT AND OVERLAY DETAIL c788A210 m Y- - - - - - - ON SHEET C3.96. C788A2109430 o - - < + - PVI STA = 11+12.73 - - - - C780L650 p # _ - oo o - PV/-ELEV - 37.04 6 FOR PIPE COMPACTION DESIGN AND BACKFILL SEE L, 1 W 07880670 z o 4 50 � d Q A.D. = -9.29 PVI STA - 11+43.01 - - DETAIL ON SHEET C3.96 1�'1 CD C7880620 < G �. 3 :.. - ¢� ....K = 2.15 PVI ELEV - 34-:1.1_. :.. ' - --i. : 5� _.�.�� ._-„�. --a.-�.a+ ��- u Q 07889032 a -. ,. Til c788r07o yj - : :: - d+ & - : i 20.00' VC I A:D. _ 6:90: : :. : :. z n88Reoo ao o K = 2.90 • C788N036 N d o : m 0 N n ¢ 120 00' VC I a .. ' 03 • NOTE: o s786rzzo z 45 VI cin + +.M ni o n. ° 3 45 C788N630 i 3 - - 0 z - - 0 0 R,� m _. .... Z - :._ 1.COORDINATE ROADWAY IMPROVEMENTS AND _... -77 c788r071 �' \ in .Q O z0_._ _ _0 II _II.II : •-- N m z -o^ - ta c007 TRANSN1ON AREA WITH BNSF. - C C7880460 C7889033 - .5' m .i -c - - - :w o ¢w Q-1 ` J G•r> _ .7 o +° ."e > :Non_. : CONTRACTOR SHALL VERIFY AND IDENTIFY EXIST. 5 - _ ',/ C7 _ 2 TO VER � H i 2 40 - - .N - m Iii v: _ w +rni m 3n"7 - - UNDERGROUND UTILITY OR'.SIZE PRIOR TO' ANY 40 `.- (nCD F o m N +n eowsTRucnoN:- (11111111111 Z W a - _ - ... la- z m w._ -w _ g^w _ _. _ _ _ 3:CAUTION: UNDERGROUND HIGH PRESSURE GAS i �J�' :/'' c44 CiLL a - .. O�7.,,�O -0 40% x o �,9 .MAIN .. .. I ti,v1.��y ,/:/ 2 Q . . 0 8D% (/ LS _ A �i m w ev rn� :'2,.-&C,..,-\-,-:='.',,, ', w ----- ¢9 :. 4.THE CONTRACTOR SHALL LOCATE THE EXISTING _ / /i LC Q 35 _. :_: t... _ �� •� - - :.:-. UTILITIES WITHIN THE BNSF ROW AND LAKE _ _ :"_ 35 1If 7,/Ii// 1:4 Q o -- -- WASHINGTON BLVD ROW PRIOR TO CONSTRUCTION. - / H >_ } -__ oc m -- : -PROPOSED GRADE �, - XIST 10" W �/iii to SHEET Ho.�088 Y 30 .:AT CENTT72UNE sis® .. 30 6C):-5 - _ Q / ,000•1_ \711111111111.0.090. oRltSs Norm mtivexlg Ul!i QEXISL:GAS �JM,,�-_ `-- . 5 0' S'' 110' T-1U ( CL z i EXIST. GAS.. E VERTICAL SCALE IN FEET a 0 25 - EXIST. 12" W EXIST.-12" W . 25 20' 0' 20' 40' O 1.1 i IN 22"PIPE CASING - A IST.CENiERDE : - HORIZONTAL SCALE IN FLET -< i o : :: EXIST. 84" METRO SS (SEE NOTE 2, - - - 20 _- EXIST. FIBER OPTIC UNE (SEE NOTE 2)- IE=19.07 .. - .: _ 20 ALL BEFORE YOU OIG 1-800-424-SSS '; iii _ EXIST 12'55 -.._ Incorporated cc RECOMMENDED FOR APPROVAL P E IE=1624 .: ' -. .. _ By: Dote. tom NB Rots Awe.Suite)i and,Washington 98033 Phone: (425) 822-4446 S .. ::. . . .:_ :. ... 15 By: Dote. FAB: (425) 827-9577 .0011 C.3' o - 0 30788.001 0011..DS Y e G/,, °J'� - Nm '0 o n mrn w ev - z o B Dote: Project No. q 3 w �' �M nM n nn n n„nj n n- ' w¢ BY: Date: C3. a g o_ Sheet No. z 10+00 10+50 11+00 11+50 12+00 Sheet XX of EXHIBIT "B" EASEMENT AGREEMENT FOR GRADE CROSSING (C&M Agreement) THIS EASEMENT AGREEMENT FOR GRADE CROSSING ("Easement Agreement") is made • and entered into as of the day of 2007, ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF RENTON, a subdivision of the State of Washington ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Renton, County of King, State of Washington, at Mile Post 6.23, [DOT # 927465A], 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 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 Ease lent ' irr3se (as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and condition3 - set forth in this Easement Agreement. • for and in consideration of the foregoing recitals which :ire herein, niu,ual promises contained herein, and other good and valuable consideration, the reoe°pt and sufficiency of which are hereby acknowledged,the parties agree as follows: Seojzoi; 1 g°antinq 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"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the 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; Exhibit"A" (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Section 3 No Warranty of 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 GuNF OHMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE AGCE TS PLL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, VVrlERE 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 ,ondition 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 Exhibit"A" 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 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 Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall-strictly"comply with all federal, state and local environmental Laws in its use of the Premises, including,but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer"__or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be _ defined by any Environmental aws. - - 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Exhibit"A" 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 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 fiv (5) days' notice +n 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 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 Exhibit"A" (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. 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 seta_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 sixty (60) 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. Exhibit"A" 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 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. . itistr ument which terms--shall be-infult-farce-and effect for purposes of this Easement even if the G&ISA _ Agreement is, for whatever reason, no longer in effect. Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: 411 Name: Title: GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: Name: Title: Exhibit"A" EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 70.94 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line, in Government Lot 5, Section 29, and Government Lot 1, Section 32, all in Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 35.47 feet either side of the following described centerline: Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way,thence N.30°54'57"E., along said centerline, 27.20 feet ; then leaving said right- of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right-of-way margin and the 'IRUE POINT OF BEGINNING of herein described centerline;thence N,59°05'03"W., 100.00 feet to a point on the westerly railroad right-of-way rnsrgln.and the terminus of this description. '1.b2 sidelines of above described easement to be lengthened or shortened to intr2rse__ct 1 thoad.right of way margins. Containing an area of 7,094 square feet, more or less. H:\carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Sae\N 43rd S.Legal 5-04-07.doc031104 PORTION OF SEC. 29 & 32, T24N, R5E, W.M. „ YL ®� r �_A L_ °v J/ /C 0� NE 42ND PL. -.- _ - _ _ - /. __ — — c;'' CENTERLINE BNSF I { RIGHT—OF—WAY I I —EXIST. < I I RAILROAD 1 189.00 h M.P.,i 6.03 AS _O al i TRACKS ..._.. . . _ .. - ..,..MESU ED_ ALONG- �joi RIGHT—OF— AY CENTERLINE...- ,, 1 I il 4� ��EI.. _± a i! 35.4 35.47 '` I o - '494'_PRMANENTWLIC EASE E\IT`\• _ - TiRUE I, POIN '; OF I\ 2 :EGI- - 36 I ___I___\.„ 1 --- Hi_- , SCALE IN FEET Barbee Mill NOTE: M LOCATED1161.8LE OST 6 IS FEET Railroad Crossing M.P. 6.23 SOUTHWESTERLY, MEASURED Permanent Easement = 7,094 SF ALONG BNSF RIGHT—OF—WAY Incorporated 10230 NI Points Dr.1400 Exhibit A .. CENTERLINE, FROM NORTH a. a DB j LINE OF SECTION 32 Pr ('2S 'Zl- Otak Exhibit2C788S055 WHEN RECORDED MAIL TO: Memorandum of Easement GRANTOR: BNSF RAILWAY COMPANY GRANTEE: THE CITY OF RENTON Abbreviated Legal Description: Assessor Property Tax Parcel Account Numbers: (None Railroad Right of Way) THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2007, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and THE CITY OF RENTON, a political subdivision of the State of Washington ("Grantee"), whose address for purposes of this instrument is 1055 S. Grady Way, Renton, WA 98055, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit"A"attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. Page 1 of 3 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 ss. COUWW3f'Y', FTARRANT. ) On !,his Clay of -- - 2007, before me, the undersigned, a Notar;..Publio _ in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider and Patricia Zbichorski, to me known to be the General Director-Land Revenue Management, and Assistant Secretary, respectively, of BNSF Railway Company, the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and need of said corporation, for the uses and purposes therein mentioned, and on oath stated that they aro authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. 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: My appointment expires: Page 2 of 3 GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: Name: Title: STATE OF WASHINGTON § §ss. COUNTY OF KING § On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and-sworn, personally apptmimd and to me 4enawn to be the and , respectively, of the City of Renton, the corporation that accepted 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 they are authorized to accept said instrument for said corporation. Witness my hand and official seal hereto affixed the day and year first above written. Notary Public for the State of Washington 411111 Residing at: My appointment expires: Page 3 of 3 e , Z3 Exhibit "C" Part 1 GENERAL CONSTRUCTION AGREEMENT (FOR CONSTRUCTION PROJECTS PERFORMED BY AN AGENCY'S CONTRACTOR ON OR ADJACENT TO BNSF'S PROPERTY) This General Construction Agreement("Agreement")is entered into effective as of 2007,by and between ("Contractor"),and BNSF RAILWAY COMPANY("Railway"). WHEREAS,Railway operates a freight transportation system by rail with operations throughout the United States and Canada;and WHEREAS, the City of Renton, WA, desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property,and Contractor is willing to perform such services;and WHEREAS, the City of Renton and the Railway have entered into a separate CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_requiring this contract. NOW, THEREFORE, in consideration of Railway entering this Agreement with Contractor and granting Contractor permission to enter upon the Premises(defined herein),Contractor agrees with Railway as follows: SECTION 1. SCOPE OF SERVICES Contractor and/or Agency will perform the following services,hereinafter described as "Work": All work necessary to construct the Barbee Mill — N 43`d Street Project as defined in the CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_,that will not be performed by the Railway under said agreement. Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway;and(ii)Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice-president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES The City of Renton will be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. 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, 1 Form 0101 Rev.09/15/05 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. 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 4. 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 limited 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: • Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. (d) Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least$2,000,000 per occurrence and$6,000,000 in the aggregate. The policy 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) 2 Form 0101 Rev.09/15/05 • Endorsed to include the Limited Seepage and Pollution Endorsement • Endorsed to include Evacuation Expense Coverage 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: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care,custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy will be 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 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. 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. 3 Form 0101 Rev.09/15/05 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 5.CONTRACTOR REQUIREMENTS • (a)While on or about the Premises,Contractor must fully comply with Railway's Contractor Requirements set forth on Exhibit "C" attached to and made a part of this Agreement. The Contractor Requirements include clearance requirements and personal protective equipment requirements. Contractor will be responsible for becoming familiar with Railway's "Contractor Requirements". (b)Prior to entering the Premises,each person providing labor,material, supervision,or services connected with the Work to be performed on or about the Premises must complete the safety training program (hereinafter called, "Railway Contractor Safety Orientation") at the following internet website: "conractororientation.com". Contractor must ensure that each of its employees, subcontractors, agents or invitees completes the Railway Contractor Safety Orientation before any Work is performed under this Agreement. Additionally, Contractor must ensure that each and every employee of Contractor, its subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation prior to entering the Premises. Contractor must renew the Railway Contractor Safety Orientation annually. (c) Prior to entering the Premises, the Contractor must prepare and implement a safety action plan acceptable to Railway. Contractor must audit compliance with that plan during the course of Contractor's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by Railway at all reasonable times. (d)When not in use, Contractor's machinery and materials must be kept at least 50 feet from the centerline of Railway's nearest track. Contractor must not cross Railway's tracks except at existing open public crossings. SECTION 6.INDEPENDENT CONTRACTOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. 4 Form 0101 Rev.09/15/05 SECTION 7.TRAIN DELAYS Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a 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 (John Li) four (4) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan,schedule,coordinate and conduct all Contractor's work so as to not cause any delays to any trains. 5 Form 0101 Rev.09/15/05 IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed as of the day and year first written above. BNSF Railway Company [Insert Contractor's Name] Signature: Signature: Printed Name: Printed Name: Title: Title: Contact Person: Address Fax: Phone: E-mail: Form 0101 Rev.09/15/05 Exhibit "C" Part 2 CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of the City of Renton's Barbee Mill—N 41st Street Project as described in that certain agreement entered into by the City of Renton and the BNSF Railway Company entitled CONSTRUCTION AND MAINTENANCE AGREEMENT, dated 20 • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the GENERAL CONSTRUCTION Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 4 of said GENERAL CONSTRUCTION agreement. • 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. • 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, in writing, at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railroad's file:US DOT No.927464T. • 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 1 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 1 Form 0102 Rev.01/20/05 and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees,subcontractors,agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 NO BLASTING SHALL BE ALLOWED ON RAILWAY'S PROPERTY. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction,the following clearances shall be maintained: • 25' Horizontally from centerline of nearest track • 23'-3 '/z" 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. 2 Form 0102 Rev.01/20/05 • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary 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(Edward White—206.625.6462) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements(i.e.,bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, 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. 3 Form 0102 Rev.01/20/05 • 1.05.02d When any hazard is presented to Railway track, communications, signal,electrical, or other facilities either due to persons,material,equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway naggers. • 1.05.03a Flagging crew generally consists of one employee. However,additional personnel may be required to protect Railway Property and operations,if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called,the minimum period for billing will be the eight(8)hour basic day. • 1.05.03c The cost of flagger services provided by the Railway, 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 1 freight trains per 24-hour period at a timetable speed of 10 MPH and 0 passenger trains. 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. 4 Form 0102 Rev.01/20/05 • 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 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 interfere with the sight distances of motorists 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 internet 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(Phone: 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.01/20/05 • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind,no work must be performed until the • exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and,regardless of depth,must be shored where there is any danger to tracks,structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or • protected when not being worked on. When leaving work site areas at night and over weekends,the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards.All excavations must be back filled as soon as possible. 1.08 Hazardous Waste,Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material,on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and(c)exercise due care with respect to the release,including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA)reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person)to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. 6 Form 0102 Rev.01/20/05 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.01/20/05 Exhibit"D" CROSSING SURFACE ESTIMATE MAINTAIN PROPRIETARY CONFIDENTIALITY ii THE B. N. S. F. RAILWAY COMPANY 43RD St-MeL FHPM ESTIMATE FOR CITY ST RENTON LOCATION:- 'DETAILS OF ESTIMATE PLAN ITEM: 000119302 VERSION: I PURPOSE, JUSTIFICATION AND DESCRIPTION DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER DTD INSTALL A NEW 56' CONCRETE CROSSING FOR A RESIDENTIAL DEVELOPMENT. IN ADDITION, TO INSTALL, A CROSSING AT MP 6.2$ WILL BE REMOVED. - LS 405 - MP 6.18 - - rPT - MAIN LINE atree-t WOODINVILLE SUBDIVISION - NORTHWEST NORTH DIVISION u 45 RDM ED WRITE - DE GREG JACOBSON 100% BILLABLE TO CITY OF RENTON, WA . BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: CITY OF RENION 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 PROJECI. THERE WILL BE CASES II WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS. PROJECTS IHAT INCLUDE SIGNAL, ELECTRICAL, OR TELECOMMUNICATION EQUIPMENT MAY REQUIRE ACTIVITY BEYOND THESE DEFINED TRACK LIMITS. ALL OR PORIIONS 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 U/M COST TOTAL $ r*r rrr+*** LABOR BUILD TRACK PANELS - REPLACEMENT 48.00 MN 929 PLACE FIELD WELDS - CAP 32.00 MH 676 PLACE PUBLIC CROSSING - CAP 112.00 MH 2,168 REMOVE PUBLIC CROSSING 32.00 MN 623 SIGNAL FIELD LABOR - CAP 19.00 MH 430 SURFACE TRACE - REPLACEMENT - CAP 24.00 MH 503 UNLOAD BALLAST - REPLACEMENT - CAP 12.00 MH 233 UNLOAD CROSSING MATERIAL - PUBLIC - CAP 28.00 MH 542 WORK TRAIN - BALLAST - REPLACEMENT - CAP 36.00 MH 1,359 PAYROLL ASSOCIATED COSTS 5,461 EQUIPMENT EXPENSES 3,987 DA LABOR OVERHEADS 7,481 PERDIEM EXPENSES 150 INSURANCE EXPENSES 1,172 TOTAL LABOR COST 25,714 25,714 MATERIAL BALLAST, FROM SPRAGUE, WA (MTN, 200.00 NT '* 852 CLIP, PANDROL, NO. E-2055 (FOR ALL WEIGHTS RA 144.00 EA 175 WORK TRAIN FUEL - GRADE XINGS 900.00 GAL 1,422 • If JOINT, COMPROMISE, 115# TO 1008, NP, LH, 3L & 2.00 PR 394 JOINT, COMPROMISE, 115# TO 100#, NP, RH, 3L & 2.00 PR 394 RAIL, TRANSN,LH,25 FT, 136-1/4 WORN 115 2.00 EA 2,171 RAIL, TRANSN,RH,25 FT, 136-1/4 WORN 115 2.00 EA 2,171 RAIL, 136 LB NEW WELDED, PREMIUM : 160.00 LF ** 2,746 TIE, TRK,10',PRE-PLATED,PANDROL,6",ROUND HOLE 54.00 EA " 4,876 TIE, TRK,GRADE 5,PRE-PLATED,PANDROL,5.5",ROUN 20.00 EA '* 1,475 TIE, TRK,GRADE 5,PRE-PLATED,PANDROL,6',ROUND 16.00 EA " 1,173 WELDKIT, GENERIC FOR ALL RAIL WEIGHTS 4.00 KT 212 CONC 136 08-SEC WITH FILLER FOR WOOD 56.00 FT 7,392 CONCRETE XING RAMP AND PANEL RESTRAINT, COMPL 1.00 ST 192 ASPHALT 60.00 NT ** 9,000 SIGNAL MATERIAL 2.30 DAY 345 MATERIAL HANDLING 1,670 ONLINE TRANSPORTATION 2,086 USE TAX 2,931 OFFLINE TRANSPORTATION 270 TOTAL MATERIAL COST 41,949 41,949 1 • OTHER LEASED EQUIPMENT WITH OPERATOR 2.30 DAY 3,450 TOTAL OTHER ITEMS COST 3,450 3,450 PROJECT SUBTOTAL 71,113 CONTINGENCIES 6,897 BILL PREPARATION FEE 391 GROSS PROJECT COST 78,401 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 78,401 f�f [ - t . • • CROSSING SIGNAL ESTIMATE MAINTAIN PROPRIETARY CONFIDENTIALITY THE B. N. S. F. RAILWAY COMPANY FHPM ESTIMATE FOR CITY OF RENTON LOCATION:- MP 4.4 DETAILS OF ESTIMATE PLAN ITEM: 000119065 VERSION: 1 PURPOSE, JUSTIFICATION AND DESCRIPTION MONTHLY POWER UTILITY COST CENTER 4'-t#51reek"61504 INSTALL CONSTANT WARNING AND FLASHER WITH GATES AT rSTRE...AIN RENTON, WA. NORTHWEST DIV., WOODINVILLE SUBDIV., L/S 0405, M.P. 6.18, DOT 8 927465A THE MATERIAL LIST BELOW REFLECTS TYPICAL REPRESENTIVE PACKAGES USED FOR ESTIMATING PURPOSE ONLY. CONTINUING CONTRACTS HAVE BEEN ESTABLISHED POR PORTIONS OF SIGNAL WORK ON THE BNSF • RAILROAD. THEY CAN BE EXPECTED TO CHANGE AFTER THE ENGINEERING PROCESS, DETAILED AND ACCURATE MATERIAL LISTS WILL BE FURNISHED WHEN ENGINEERING IS COMPLETED. • THIS ESTIMATE IS GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL, AND OVERHEAD. SIGNAL WORK ONLY THE CITY OF RENTON IS FUNDING THIS PROJECT 1008. MAINTAIN PROPRIETARY CONFIDENTIALITY. DESCRIPTION QUANTITY U/M COST TOTAL $ LABOR ELECTRICAL LABOR F/POWER TRANS SYS 54.00 MH 1,277 SIGNAL FIELD LABOR - CAP 672.00 MH 14,664 SIGNAL SHOP LABOR - CAP 64.00 MN 1,447 PAYROLL ASSOCIATED COSTS 12,733 EQUIPMENT EXPENSES 4,596 DA LABOR OVERHEADS 17,442 INSURANCE EXPENSES 2,737 TOTAL LABOR COST 54,896 54,896 MATERIAL BATTERY 1.00 EA N 4,547 BONDING MATERIAL 1.00 EA N 1,500 BUNGALOW 6X6 1.00 EA N 8,612 BUNGALOW MATERIAL 1.00 LS N 3.399 CABLE 1.00 EA N 3,096 CHARGERS 1.00 LS N 810 CONDUIT, PVC 4", SCR 80 100.00 FT N 390 CONSTANT WARNING 1.00 EA N 13,015 FIELD MATERIAL 1.00 LS N 3,073 FOUNDATION 2.00 EA N 970 GATE KEEPER 2.00 EA N 3,550 GATE MECH. MODEL 95 COMPLETE 2.00 EA N 10,800 LAMP RESISTOR 1.00 EA N 761 LED LIGHT ADJUSTMENT 8.00 EA N 1,792 LED LIGHT GATE KIT 2.00 EA N 732 LIGHT OUT DETECTOR 1.00 EA N 682 MATERIAL FOR ELECTRICAL 1.00 EA 1,500 RECORDER 1.00 EA N 2,220 RTU-6, CELLULAR MONITOR 1.00 EA N 2,060 SHUNT, NBS 2.00 EA N 1,058 MATERIAL HANDLING 75 USE TAX 5,416 OFFLINE TRANSPORTATION 802 TOTAL MATERIAL COST 70,860 70,860 OTHER AC POWER SERVICE 1.00 EA 5,000 CONTRACT ERGR_ 1.00 EA N 5,000 FILL DIRT 10.00 CY N 250 SURFACE ROCK 10.00 CY N 250 TOTAL OTHER ITEMS COST 10,500 10,500 PROJECT SUBTOTAL 136,256 CONTINGENCIES 13,625 BILL PREPARATION FEE 750 GROSS PROJECT COST 150,631 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 150,631 ) ) ) 1!� C1/ EXHIBIT irr- EASEMENT AGREEMENT FOR GRADE CROSSING (C&M Agreement) THIS EASEMENT AGREEMENT FOR GRADE CROSSING ("Easement Agreement") is made • and entered into as of the day of 2007, ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF RENTON, a subdivision of the State of Washington ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Renton, County of King, State of Washington, at Mile Post 6.23, [DOT # 927465A], 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 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 Ease ent =' irr ose (as defined below). G. Granton has agreed to grant Grantee such easement, subject to the terms and coi idition. set forth in this Easement Agreement. • JOW. EREFORE, for and in consideration of the foregoing recitals which are herein, tiie ii+u,ual promises contained herein, and other good and valuable consideration, the receipt arid sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 iSArantinq 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"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the 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; Exhibit"A" • (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Section 3 No Warranty of 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 fS 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_LirvliTATIONS 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 ,.ondition 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 Grantors 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 Exhibit"A" 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 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 Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the dazardous M:'terials Transportation Act, the Comprehensive Environrnental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage,' "transfer"_.or "_disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be - defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Exhibit"A" • • 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 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 fi Pi(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 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 Exhibit"A" • (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. 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 sixty (60) 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. Exhibit"A" 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 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-fullforce 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. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: 40° Name: Title: GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: Name: Title: Exhibit"A" • EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 70.94 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line, in Government Lot 5, Section 29, and Government Lot 1, Section 32, all in Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 35.47 feet either side of the following described centerline: Commencing at the North Quarter Corner of said Section 32; thence N.88°48'22"W. along the north line of said Section 32,a distance of 1,055.37 feet to the centerline of said railroad right-of-way,thence N.30°54'57"E., along said centerline, 27.20 feet ; then leaving said right- of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right-of-way margin and the TRUE POINT OF BEGINNING of herein described centerline; thence N.39°05'03"W., 100.00 feet to a point on the westerly railroad right-of-way rn rgm and the terminus of this description. The sidelines of above described easement to be lengthened or shortenedto intersect ,a-id railroad right-of-way margins. Containing an area of 7,094 square feet, more or less. H:carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site\N 43rd S.Legal 5-04-07.doc031104 PORTION OF SEC. 29 & 32, T24N, R5E, W.M. YYJ Ak L J< J®L YY "' ,)4 !C Nir 0 c5) NE 42ND - PL. '7-771 1 ,.. ii 1 in ('�/ W 11 O J Z _ CENTERLINE BNSF I.I j_ ., RIGHT—OF—WAY- � I >- f .; I XIST. < 0 \ \ 1 RAILROAD 1189.00 • M.P. 6.0D AS o 1 TTRACKS Li_ _ -__M (S. .RED._- ALON } - . fl RIGHT—OF—WAY CENTERLINE...._.. -_:. ... N30"S4'S7 E. — . i co 35.47', 35.47 ' I o _ I r -- - 0'94' PERMANENT ' iBLIC EASEME T `\1 TRUE �, I, POINT OF i\, :EGI - 36 I 20' 0' 20' 40' _ , SCALE IN FEET , `.".. OtakNOTE: MILE POST 6 IS S. Barbee Mill LOCATED 1161.8 FEET m" `" Railroad Crossing M.P. 6.23 SOUTHWESTERLY, MEASURED u co Permanent Easement = 7,094 SF ALONG BNSF RIGHT—OF—WAY Incorporated Exhibit A - - CENTERLINE, FROM NORTH iir10230 116 Points Or.f� � lama. a Page 2 of 2 LINE OF SECTION 32. Otak Exhibit 07885055 Trces ezr-esr+ , WHEN RECORDED MAIL TO: Memorandum of Easement GRANTOR: BNSF RAILWAY COMPANY GRANTEE: THE CITY OF RENTON Abbreviated Legal Description: Assessor Property Tax Parcel Account Numbers: (None Railroad Right of Way) THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2007, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and THE CITY OF RENTON, a political subdivision of the State of Washington ("Grantee"), whose address for purposes of this instrument is 1055 S. Grady Way, Renton, WA 98055, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. Page 1 of 3 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 ) ss. COUNTY OF TARRANT ) On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider and Patricia Zbichorski, to me known to be the General Director-Land Revenue Management, and Assistant Secretary, respectively, 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 they are authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. 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: My appointment expires: Page 2 of 3 GRANTEE: � � �► G l y THE CITY OF RENTON, 46. '••,tJ{ a political subdivision of the State of Washington (11 V e4"-17?-4-- By: 1:k 'TT Name: Kathl Keolker Title: Mayor • Attest : / r t,PLZ CV Lia 12440407 007 Bonnie I . Walton, City Clerk STATE OF WASHINGTON § §ss. COUNTY OF KING § On this (9.g_- day of ( O\k ' - - t , 2007, before me, the undersigned, a Notary Public in an for the State of . �k�; , duly commissioned and sworn, personally appeared and , to me known to be the reccethiely, of the City of Renton, the corporatiA that accepted 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 they are authorized to accept said instrument for said corporation. Witness my hand and official seal hereto affixed the ay ancl-yearjfirst above written. No :ry'ublic for the State of Wash gton Residing at: My appointment expires:fila--)1 X10 Page 3 of 3 EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 70.94 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line, in Government Lot 5, Section 29, and Government Lot 1, Section 32, all in Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 35.47 feet either side of the following described centerline: Commencing at the North Quarter Corner of said Section 32; thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way,thence N.30°54'57"E., along said centerline, 27.20 feet ;then leaving said right- of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right-of-way margin and the 'IRUE POINT OF BEGINNING of herein described centerline;thence N.59°05'03"W., 100.00 feet to a point on the westerly railroad right-of-way margin and the terminus of this description. The sidelines of above described easement to be lengthened or shortened to intersect said railroad right-of-way margins. Containing an area of 7,094 square feet, more or less. H:\carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site\N.43rd S.Legal 5-04-07.doc03l 104 PORTION OF SEC. 29 & 32, T24N, R5E, W.M. rr rr YYJ ®L JL —I1.; L YY )I IC y 0161 NE 42ND PL. _ T , I. 7 in J N In I_/ z CENTERLINE BNSF 4. RIGHT—OF—WAY XIST. f o RAILROAD j 1189.00 M.P. i 6.0,,0 AS TRACKS tL _.M ED--ALON —vRIGHT—O — AY CENTERLINE -2— I 4as ' ` I o �LN3n545EE _ I Z . ....\ . i 35.47' 35.47 1 o • 94,' P?RMANENT '4BLIC EASEM T \ _ -- 7JRUE 1, - POIN j' OF EGI 1 36 � \. 20' 0' 20' 40' - -`;\:i1' _ riliWil.-111.1.11.1.1111 ,, SCALE IN FEET `t NOTE: MILE POST 6 IS Barbee Mill LOCATED 1161.8 FEET Railroad Crossing M.P. 6.23 SOUTHWESTERLY, MEASURED Incorporated Permanent Easement = 7,094 SF ALONG BNSF RIGHT—OF—WAY 10230 NE Points Dr.1400 Exhibit A .. - CENTERLINE, FROM NORTH Sirldend Raehintloa 08033 ��: X25 ��48 Page 2 of 2 LINE OF SECTION 32. . - TAI: 424 8Z7-95" Otak Exhibit C788S055 -� - w < C f EXHIBIT " ' EASEMENT AGREEMENT FOR GRADE CROSSING (C&M Agreement) THIS EASEMENT AGREEMENT FOR GRADE CROSSING ("Easement Agreement") is made and entered into as of the day of 2007, ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF RENTON, a subdivision of the State of Washington ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Renton, County of King, State of Washington, at Mile Post 6.06, [DOT # 927464T], 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 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"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the 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; Exhibit"A" (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Section 3 No Warranty of 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 t 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,-AL,L---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 Exhibit"A" 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 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 Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. _ 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the,Oil Pollution Act, the "Hazardous Materials Transportation Act, the Comprehensive nviionmentaI- Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred t"do ispose osal" s the "Environmental Laws"). Grantee shall- not maintain a "treatment," 'storage," facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environmentandshall take whatever that to prevent injury to prproperty arising out f such conditions or actvte ; provded however, Gantee's eportngtoGantor hall not relieve Exhibit"A" 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 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 foi: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 Agreetnent by serving. five,(,5) days' notice in writing upon Grantee if Grantee should abandon or cease to n the:'Premises for thy_Easemenf`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 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 Exhibit"K (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. 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 Seaii-1031: Grantor shall bear all expenses associated with the use of Apex, or necessary to-qualify this frarrsaction 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 10.31. 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 sixty (60) 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. Exhibit"A" 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 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.harm.less 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 CM 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 Agreementdate first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: 44111 Name: Title: GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: Name: Title: Exhibit"A" EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 96.92 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line in Government Lot 1, Section 32, Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 48.46 feet each side of the following described centerline: . Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way,thence southwesterly along said centerline, S.30°54'57"W.,836.23;then leaving said right-of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right- of-way margin and the TRUE POINT OF BEGINNING of herein described centerline; thane N.59°05'03"W., 100.00 feet to a point on the westerly right-of-way marginand the terminus of this description. Containing an area of 9,692 square feet, more or less. H:\carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Sae\N.41 St.Legal 5-04-07.doc031104 ® PORTION OF SEC. 32, T24N, R5E, W.M.. t 1 --- \-::: me i 4! _S30_'554'57"W-... �\1 , * __—. .1111111 ' �. u 1 ' ! Tt TIS®SSaiiilra�': ' =I p FA : _ ."-I 1 _ . - _ c– I + .. co _ )4I_S._.T.I � 17.0-:oIli, Q, -CENTER-Lk-NE_ BNSF of ' RPILROADa- a T CKs 0 RIGHT-O--WAY a - 1._-- S30'54'57"W l ` tI _ 1 . .__.. I, _ _ ._ 32E 157':_T-0.,NIP- ,I: � ._- \ 6.00 S='MEASi MEASURED A'LON RIGHT=OF ' i I I 0-WAY CENTERLINE' i r 1 , ; 46 ... 48.4:, ..._ . I \ '_ ,1 t -, .' '2 'ERMANENT PUBLIC SEME i I+ - I i N30'5457E \ -- - - TRUE-POINT-OF-- -----. __._ . . ------._. BEGINNING -LAKE— ASH1 o CTO _ L . _ 20' 0' 20' 0 Mi IN FEET ^ -- SCALE NOTE: MILE POST 6 IS ��' Barbee Mill LOCATED 1161.8 FEET -. �'3y,,. Railroad Crossing M.P. 6.06 SOUTHWESTERLY, MEASURED EM-....- Permanent Easement = 9,692 SF ALONG BNSF RIGHT-OF-WAY Incorporated Exhibit A CENTERLINE, FROM NORTH \ozso ea eo�v�.x+44 Page 2 of L LINE OF SECTION 32 girtlmd.xmemcwa ABoss TO: . • (-.) eaz-4++e .� (4�) e��� Otak Exhibit C788S054 WHEN RECORDED MAIL TO: Memorandum of Easement GRANTOR: BNSF RAILWAY COMPANY GRANTEE: THE CITY OF RENTON Abbreviated Legal Description: Assessor Property Tax Parcel Account Numbers: (None Railroad Right of Way) THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2007, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and THE CITY OF RENTON, a political subdivision of the State of Washington ("Grantee"), whose address for purposes of this instrument is 1055 S. Grady Way, Renton, WA 98055, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit"A"attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. Page 1 of 3 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 ) ss. COUNTY OF TARRANT On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider and Patricia Zbichorski, to me known to be the General Director-Land Revenue Management, and Assistant Secretary, respectively, 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 they are authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. 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: My appointment expires: Page 2 of 3 GRANTEE: THE CITY OF RENTON, s 'J a political subd/ivisio/n of the State of Washington ;.n By: ('*'1 -,1 '• y Name: Kathy eolker • .. . Title: Mayor Attest: 'gy p o 'I Zd'aitS Bonnie I . Walton, City Clerk STATE OF WASHINGTON § §ss. COUNTY OF KING § S---1 On this o day of 1\c`.1\s,i v\-.-►L" , 2007, before me, the undersigned, a Notary Public in anc for the State� uof l. cw .---Its , duly commissioned and sworn, personally appeared .— \(..e� rL-` -anti—' , to me known to be the c-\. , respectively, of the City of Renton, the corporation that accepted 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 they are authorized to accept said instrument for said corporation. r.. Witness my hand and official seal hereto ixed the dry ryear fir bove written. Notary�Public ar_t)e State of Was . gton Residing at•: V- My appointment expires: R' 7Iabww Page 3 of 3 EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 96.92 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line in Government Lot 1, Section 32, Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 48.46 feet each side of the following described centerline: Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way,thence southwesterly along said centerline, S.30°54'57"W., 836.23; then leaving said right-of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right- of-way margin and the TRUE POINT OF BEGINNING of herein described centerline; thence N.59°05'03"W., 100.00 feet to a point on the westerly right-of-way margin and the terminus of this description. Containing an area of 9,692 square feet, more or less. H:karolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site0,7.41 Si Legal 5-04-07.doc03 I 104 CJSN ( (3iTa WHEN RECORDED MAIL TO: Memorandum of Easement GRANTOR: BNSF RAILWAY COMPANY GRANTEE: THE CITY OF RENTON Abbreviated Legal Description: Assessor Property Tax Parcel Account Numbers: (None Railroad Right of Way) THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2007, by and between- BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and THE CITY OF RENTON, a political subdivision of the State of Washington ("Grantee"), whose address for purposes of this instrument is 1055 S. Grady Way, Renton, WA 98055, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit"A"attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. Page 1 of 3 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 )ss. COUNTY' OF TARRANT ) On this day of , 2007, before me, the undersigned, a Notary.Public. in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider and Patricia Zbichorski, to me known to be the General Director-Land Revenue Management, and Assistant Secretary, respectively, 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 they are authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. 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: My appointment expires: Page 2 of 3 GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: 411111 Name: Title: STATE OF WASHINGTON § §ss. COUNTY OF KING § On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and sworn; personally appeared and to me_-known" to be the and , respectively, of the City of Renton, the corporation that accepted 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 they are authorized to accept said instrument for said corporation. Witness my hand and official seal hereto affixed the day and year first above written. Notary Public for the State of Washington Residing at: My appointment expires: Page 3 of 3 EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 70.94 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line, in Government Lot 5, Section 29, and Government Lot 1, Section 32, all in Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 35.47 feet either side of the following described centerline: Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way;thence N.30°54'57"E., along said centerline, 27.20 feet ;then leaving said right- of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right-of-way margin and the TRUE POINT OF BEGINNING of herein described centerline; thence N.59°05'03"W., 100.00 feet to a point on the westerly railroad right-of-way margin and the terminus of this description. The sidelines of above described easement to be lengthened or shortened to intersect said railroad right-of-way margins. Containing an area of 7,094 square feet,more or less. H:\carolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site\N.43rd S.Legal 5-04-07.doc031104 PORTION OF SEC. 29 & 32, T24N, R5E, W.M. rr rr rLi ®L J\_ J®L 4. YY )' IC r Lsj \ E 42ND T L f r, .. \ 're ,\ - .._ --1 LJ (Y 0 r.r) 0 CENTERLINE BNSF - ......... RIGHT-OF-WAY 7 I: XIST. 1189.001i M.P. 6.0,D AS o ( RAILROADRACKS __MENSU ED-....AEON - ___._.._ _. RIGHT-0 - AY CENTE. LINE.._. __..___ 4 i i_ , I =...._ �...� II I' N 3O 54'57 El c� - f 1' 35.47' 35.47 i o 94' PERMANENT `4BLIC EASE T `I -- , TRUE I, P•OIN `/ OF (J-' \, :EGI, - 36 I i - JI : iy :- : - 20' ' ; 0' 20' 40 (173 SCALE IN FEET i 0 • Barbee Mill NOTE:LOCATED M1L16E 18SFEETIS Railroad Crossing M.P. 6.23 SOUTHWESTERLY, MEASURED Incorporated Permanent Easement = 7,094 SF ALONG BNSF RIGHT-OF-WAY 10210/IPolesDr.1400 Exhibit A . CENTERLINE, FROM NORTH a r a9z Page 2 of 2 LINE OF SECTION 32. ?Az: • 425) ez1-9571 Otak Exhibit C788 S055 .:,��::w.w.ra�....,...T<...:K. :,,rv..:w:, ;::.,:...,,....::._,._..:.:...._ _ i WHEN RECORDED MAIL TO: gx(+.f S i D Memorandum of Easement GRANTOR: BNSF RAILWAY COMPANY GRANTEE: THE CITY OF RENTON Abbreviated Legal Description: Assessor Property Tax Parcel Account Numbers: (None Railroad Right of Way) THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2007, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and THE CITY OF RENTON, a political subdivision of the State of Washington ("Grantee"), whose address for purposes of this instrument is 1055 S. Grady Way, Renton, WA 98055, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in King County, Washington as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. Page 1 of 3 t 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 ) ss. COUNTY SOF TARRANT: ) On this - day of , 2007, before me, the undersigned, a Notary.Public. in and for the State of Texas, duly commissioned and sworn, personally appeared David P. Schneider and Patricia Zbichorski, to me known to be the General Director-Land Revenue Management, and Assistant Secretary, respectively, 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 they are authorized to execute the said instrument and that the seal affixed is the corporate seal of said corporation. 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: My appointment expires: Page 2 of 3 GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington By: 41111 Name: Title: STATE OF WASHINGTON § §ss. COUNTY OF KING § On this day of , 2007, before me, the undersigned, a Notary Public in and for the State of , duly commissioned and sworn, personally appeared., and to me known to be the and , respectively, of the City of Renton, the corporationthat accepted 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 they are authorized to accept said instrument for said corporation. Witness my hand and official seal hereto affixed the day and year first above written. Notary Public for the State of Washington Residing at: 4111 My appointment expires: Page 3 of 3 EXHIBIT "A" PERMANENT PUBLIC EASEMENT LEGAL DESCRIPTION A 96.92 foot wide easement for permanent public access purposes over a portion of the 100-foot wide right-of-way of the BNSF Railway Company's Seattle Belt Line in Government Lot 1, Section 32, Township 24 North, Range 5 East, W.M., King County, Washington, said easement being 48.46 feet each side of the following described centerline: Commencing at the North Quarter Corner of said Section 32;thence N.88°48'22"W. along the north line of said Section 32, a distance of 1,055.37 feet to the centerline of said railroad right-of-way;thence southwesterly along said centerline, S.30°54'57"W., 836.23;then leaving said right-of-way centerline S.59°05'03"E., 50.00 feet to a point on the easterly railroad right- of-way margin and the TRUE POINT OF BEGINNING of herein described centerline; thence N.59°05'03"W., 100.00 feet to a point on the westerly right-of-way margin and the terminus of this description. Containing an area of 9,692 square feet, more or less. H:karolsanders\Easements-WA\Renton\City of Renton\Barbee Mill Site\N.41 St.Legal 5-04-07.doc03 t 104 PORTION OF SEC. 32, T24N, R5E, W.M.. r ► I — 1111 I1111i 111 I Oo - N I ;I I \ 7 - 10 �n DIST _... . _ o .L" Rill ROD i RIGHT Cr-WAY CENTERLINE BNSF ...i . ..._. � _._ ..,n.. . . ..._ .....:._..- .. . .. _..� ...-_.._.CKS o • 0 Z i---- 'S30'5457"W I I a 3.25157' _TO. M P. 'i ..,e. .- _._ _.. ' z 6.00 tS MEASURE® ;;' ALON RIGHT-OF I I. - -- I o -WAY CENTERLINE' �.- ; 2 .r _. // 9 _. __ L — I I I ly \I / e; •2 RMANENTI PUBLIC SEMS I( ' 1 I I i' \ . - 7 \\ ._1 7, N30'54'57'E "*.L1 - TRUE-POINT-OF -----.—.- _._ ________.-. LA KE WASH-MST-01\ 20' 0' 20' 40' 0 SCALE IN FEET ot Barbee Mill 6 LOCATEDMI11618ST FEETIS Railroad Crossing M.P. 6.06 SOUTHWESTERLY, MEASURED Incorporated Permanent Easement = 9,692 SF ALONG BNSF RIGHT-OF-WAY tzo NE Points m•.f400 Exhibit A CENTERLINE, FROM NORTH Via.`,° `'� Page 2 of z LINE OF SECTION 32 Fa' 420 ar1-9577 Otak Exhibit C788S054 >..,,...P:. ..,., , �. .. >.r. tr Exhibit `0" . Part 1 GENERAL CONSTRUCTION AGREEMENT (FOR CONSTRUCTION PROJECTS PERFORMED BY AN AGENCY'S CONTRACTOR ON OR ADJACENT TO BNSF'S PROPERTY) This General Construction Agreement("Agreement")is entered into effective as of 2007,by and between ("Contractor"),and BNSF RAILWAY COMPANY("Railway"). WHEREAS,Railway operates a freight transportation system by rail with operations throughout the United States and Canada;and WHEREAS, the City of Renton, WA, desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property,and Contractor is willing to perform such services;and WHEREAS, the City of Renton and the Railway have entered into a separate CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_requiring this contract. NOW, THEREFORE, in consideration of Railway entering this Agreement with Contractor and granting Contractor permission to enter upon the Premises(defined herein),Contractor agrees with Railway as follows: SECTION 1. SCOPE OF SERVICES Contractor and/or Agency will perf ollowing services, hereinafter described as "Work": All work necessary to construct the Barbee Mill N 43rd Street Project as defined in the CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_,that will not be performed by the Railway under said agreement. Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway;and(ii)Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice-president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES The City of Renton will be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. 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, 1 Form 0101 Rev.09/15/05 • 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. 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 4. 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 limited 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: • Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. (d) Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least$2,000,000 per occurrence and$6,000,000 in the aggregate. The policy 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) 2 Form 0101 Rev.09/15/05 • Endorsed to include the Limited Seepage and Pollution Endorsement • Endorsed to include Evacuation Expense Coverage 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: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care,custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy will be 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 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. 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. 3 Form 0101 Rev.09/15/05 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 5.CONTRACTOR REQUIREMENTS • (a)While on or about the Premises,Contractor must fully comply with Railway's Contractor Requirements set forth on Exhibit "C" attached to and made a part of this Agreement. The Contractor Requirements include clearance requirements and personal protective equipment requirements. Contractor will be responsible for becoming familiar with Railway's "Contractor Requirements". (b)Prior to entering the Premises,each person providing labor,material, supervision,or services connected with the Work to be performed on or about the Premises must complete the safety training program (hereinafter called, "Railway Contractor Safety Orientation") at the following internet website: "conractororientation.com". Contractor must ensure that each of its employees, subcontractors, agents or invitees completes the Railway Contractor Safety Orientation before any Work is performed under this Agreement. Additionally, Contractor must ensure that each and every employee of Contractor, its subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation prior to entering the Premises. Contractor must renew the Railway Contractor Safety Orientation annually. (c) Prior to entering the Premises, the Contractor must prepare and implement a safety action plan acceptable to Railway. Contractor must audit compliance with that plan during the course of Contractor's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by Railway at all reasonable times. (d)When not in use, Contractor's machinery and materials must be kept at least 50 feet from the centerline of Railway's nearest track. Contractor must not cross Railway's tracks except at existing open public crossings. SECTION 6.INDEPENDENT CONTRACTOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. 4 Form 0101 Rev.09/15/05 SECTION 7.TRAIN DELAYS Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a 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 (John Li) four (4) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan,schedule,coordinate and conduct all Contractor's work so as to not cause any delays to any trains. 5 Form 0101 Rev.09/15/05 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above. BNSF Railway Company [Insert Contractor's Name] Signature: Signature: Printed Name: Printed Name: Title: Title: Contact Person: Address Fax: Phone: E-mail: Form 0101 Rev.09/15/05 k• Exhibit " Part 2 CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of the City of Renton's Barbee Mill— N 43rd Street Project as described in that certain agreement entered into by the City of Renton and the BNSF Railway Company entitled CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,20 • • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the GENERAL CONSTRUCTION Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 4 of said GENERAL CONSTRUCTION agreement. • 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. • 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, in writing, at least thirty (30)calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railroad's file:US DOT No.927465A. • 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 • 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 NO BLASTING SHALL BE ALLOWED ON RAILWAY'S PROPERTY. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction,the following clearances shall be maintained: • 25' Horizontally from centerline of nearest track • 23'-3 1" 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. 2 Form 0102 Rev.01/20/05 • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary 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(Edward White—206.625.6462)a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements(i.e., bulletin the nagger'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. 3 Form 0102 Rev.01/20/05 • 1.05.02d When any hazard is presented to Railway track,communications, signal,electrical, or other facilities either due to persons,material,equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway 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 1 freight trains per 24-hour period at a timetable speed of 10 MPH and 0 passenger trains. 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. 4 Form 0102 Rev.01/20/05 • 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 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 interfere with the sight distances of motorists 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 internet 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(Phone: 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.01/20/05 • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind,no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and,regardless of depth, must be shored where there is any danger to tracks,structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste,Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material,including but not limited to any non-containerized commodity or material,on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties:and(c)exercise due care with respect to the release,including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA)reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately(by phone mail if unable to contact in person)to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. 6 Form 0102 Rev.01/20/05 • • 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.01/20/05 N LAW DEPARTMENT APPROVED tt0 Exhibit "C" Part 1 GENERAL CONSTRUCTION AGREEMENT (FOR CONSTRUCTION PROJECTS PERFORMED BY AN AGENCY'S CONTRACTOR ON OR ADJACENT TO BNSF'S PROPERTY) This General Construction Agreement("Agreement")is entered into effective as of 2007,by and between ("Contractor"),and BNSF RAILWAY COMPANY("Railway"). WHEREAS,Railway operates a freight transportation system by rail with operations throughout the United States and Canada;and WHEREAS, the City of Renton, WA, desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property,and Contractor is willing to perform such services;and WHEREAS, the City of Renton and the Railway have entered into a separate CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_requiring this contract. NOW, THEREFORE, in consideration of Railway entering this Agreement with Contractor and granting Contractor permission to enter upon the Premises(defined herein),Contractor agrees with Railway as follows: SECTION 1. SCOPE OF SERVICES Contractor and/or Agency will perfo llowing services,hereinafter described as "Work": All work necessary to construct the Barbee Mill — 41st treet Project as defined in the CONSTRUCTION AND MAINTENANCE AGREEMENT,dated ,200_, that will not be performed by the Railway under said agreement. Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway;and(ii)Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice-president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES The City of Renton will be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. 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 1 Form 0101 Rev. 09/15/05 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. 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 4. 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 limited 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: • Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. (d) Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least$2,000,000 per occurrence and$6,000,000 in the aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93 and include the following: 2 Form 0101 Rev.09/15/05 • 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 include Evacuation Expense Coverage 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: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care,custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy will be 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 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. 3 Form 0101 Rev.09/15/05 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 5.CONTRACTOR REQUIREMENTS (a)While on or about the Premises,Contractor must fully comply with Railway's Contractor Requirements set forth on Exhibit "C" attached to and made a part of this Agreement. The Contractor Requirements include clearance requirements and personal protective equipment requirements. Contractor will be responsible for becoming familiar with Railway's "Contractor Requirements". (b)Prior to entering the Premises,each person providing labor,material, supervision,or services connected with the Work to be performed on or about the Premises must complete the safety training program (hereinafter called, "Railway Contractor Safety Orientation") at the following internet website: "conractororientation.com". Contractor must ensure that each of its employees, subcontractors, agents or invitees completes the Railway Contractor Safety Orientation before any Work is performed under this Agreement. Additionally, Contractor must ensure that each and every employee of Contractor, its subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation prior to entering the Premises. Contractor must renew the Railway Contractor Safety Orientation annually. (c) Prior to entering the Premises, the Contractor must prepare and implement a safety action plan acceptable to Railway. Contractor must audit compliance with that plan during the course of Contractor's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by Railway at all reasonable times. (d)When not in use, Contractor's machinery and materials must be kept at least 50 feet from the centerline • of Railway's nearest track. Contractor must not cross Railway's tracks except at existing open public crossings. SECTION 6.INDEPENDENT CONTRACTOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. 4 Form 0101 Rev.09/15/05 SECTION 7.TRAIN DELAYS Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway,performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a 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 (John Li) four (4) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan,schedule,coordinate and conduct all Contractor's work so as to not cause any delays to any trains. 5 Form 0101 Rev.09/15/05 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above. BNSF Railway Company [Insert Contractor's Name] Signature: Signature: Printed Name: Printed Name: Title: Title: Contact Person: Address Fax: Phone: E-mail: Form 0101 Rev.09/15/05 • F ,, Exhibit "0" Part 2 CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of the City of Renton's Barbee Mill —N 41st Street Project as described in that certain agreement entered into by the City of Renton and the BNSF Railway Company entitled CONSTRUCTION AND MAINTENANCE AGREEMENT, dated 20 • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the GENERAL CONSTRUCTION Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 4 of said GENERAL CONSTRUCTION agreement. • 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. • 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, in writing, at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railroad's file:US DOT No. 927464T. • 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 Form 0102 Rev.01/20/05 and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees,subcontractors,agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 NO BLASTING SHALL BE ALLOWED ON RAILWAY'S PROPERTY. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction,the following clearances shall be maintained: • 25' Horizontally from centerline of nearest track • 23'-3 'h" 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. 2 Form 0102 Rev.01/20/05 • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across • Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary 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(Edward White—206.625.6462) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements(i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, 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. 3 Form 0102 Rev.01/20/05 • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons,material,equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway 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 1 freight trains per 24-hour period at a timetable speed of 10 MPH and 0 passenger trains. 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. 4 Form 0102 Rev.01/20/05 • 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 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 interfere with the sight distances of motorists 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 internet 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(Phone: 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.01/20/05 • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind,no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and,regardless of depth,must be shored where there is any danger to tracks,structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends,the areas must • be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste,Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material,on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and(c)exercise due care with respect to the release,including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration(FRA)reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person)to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. 6 Form 0102 Rev.01/20/05 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.01/20/05