HomeMy WebLinkAboutAdden 1 Owl C;AG-07-148, Adden #1-11
RECEIVED
UNDERPASS AGREEMENT AMENDMENT S': 2 J all
1
1 Transportation Systems Div.
BNSF File No. BF10001324
Rainier Avenue Underpass
U.S. D.O.T. No. 091686M
LS 410 MP 11.70 Z
Woodinville Subdivision
Agreejpent ("Agreement"), is executed to be effective as of
ThiPrIA S 291/ ("Effective Date"), by and between BNSF RAILWAY
O PANY, a Delaware corporation ("BNSF"), and the City of Renton, a political
subdivision of the State of WA ("Agency").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of
Renton, State of WA;
WHEREAS, BNSF and Agency entered into an agreement entitled "RAILROAD
OVERPASS AGREEMENT" dated August 6, 2007 and reference as BNSF Contract
Number BF46643;
WHEREAS, Agency desires to improve the existing Rainier Avenue underpass crossing
by widening the existing roadway under the railroad bridge designated as Rainier
Avenue Underpass in Renton, WA, LS 410 MP 1170Z, DOT 091686M, Woodinville
Subdivision;
WHEREAS, this agreement will serve as an amendment to the original contract; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE II) SECTIONS TO BE ADDED
Article II
6. 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 construct, use and maintain the street
improvements, substantially in the form of Exhibit B attached to this Amendment.
Agency must pay BNSF the sum of $19,272.00 as compensation for the
Easement within thirty (30) days of issuing a Notice to Proceed. 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.
Article III
13. Agency must provide for and maintain minimum vertical and horizontal
clearances, as required in Exhibit C attached to this Amendment and as
approved by BNSF as part of the plans and specifications for the Project.
14. Agency must acquire all rights of way necessary for the construction of the
Project.
15. Agency must construct the Project as shown on Exhibit A attached to this
Amendment and do all work ("Agency's Work") provided for in the plans and
specifications for the Project, except railroad work that will be performed by
BNSF hereunder. Agency must furnish all labor, materials, tools and equipment
for the performance of Agency's Work. The principal elements of Agency's Work
are as follows:
(a) All necessary grading and paving, including backfill of excavations
and restoration of disturbed vegetation on BNSF's right-of-way;
(b) Provide suitable drainage, both temporary and permanent;
(c) Provide appropriate pedestrian control during construction;
(d) Job site cleanup including removal of all construction materials,
concrete debris, surplus soil, refuse, contaminated soils, asphalt
debris, litter and other waste materials to the satisfaction of BNSF;
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(e) Provide all traffic control during construction;
(f) Reimburse BNSF for any and all costs, including flagging and
inspection, related to construction of the project. Estimates are attached
as Exhibit "D" to this Amendment.
ARTICLE III) Sections to be modified
Article Ill
Paragraph 7 (a) BNSF's Engineering Representative should be Ben Steinkamp —206-625-
6189 rather than Edward Allard - 206-625-6179
Paragraph 7 (b) BNSF's Engineering Representative should be Ben Steinkamp —206-625-
6189 rather than Edward Allard - 206-625-6179
Paragraph 8 (e) BNSF's Engineering Representative should be Ben Steinkamp — 206-625-
6189 rather than Edward Allard - 206-625-6179
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and attested by its duly qualified and authorized officials as of the day and
year first above written.
BNSF RAILWAY COMPANY
By:
Print ame: /9t01,f2
Title: if‘t irvJ c c 11
WITNESS:
AGENCY
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SN'' Fl_��,� CITY OF RENTON
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3: ' : BRIDGE DEVA110N 38.4 FT
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ELEVAl1OI ELEVATION BRIDGE EIEV CLEARANCE CAP EEVATNN 17.6 FT - APPRONYAIE PLE CAP
I 32+12.74 425'LT ROADWAY SURFACE 1877 19.82' 38.6' 18.78' ELEVATION 17.3 FT
2 31+9834 42.5'IT ROADWAY SMFACE 1877 1867 386' 18.98' III _
3 32+1840 75'LT ROADWAY SURFACE 20.92' 2839' 38.6' 1821' EREELLEMIL
4 31+88.16 75'LT ROADWAY SURFACE 2894 20.21' 38.6' 18.39'
S 32+10.20 45'LT. ROADWAY SURFACE 21.28' 20.42' 384' 17.98'
6 31+87.97 45'LT ROADWAY SURFACE 21.33' 20.25' 364' 1815' Danz CLEARANCE NOTES
7 32+07.17 425 RT ROADWAY SURFACE 2221' 2057' 364' 17.57
8 31+84.70 425 RT ROADWAY SURFACE 2221' 20.83' 364' 17.57 1. THE MAMMY 11R71CAL CLEARANCE KEYED THE MEAD GRADE RA WAY AND THE BOTTOM OF THE REF BRIDGE SIRUCRAE SHALL BE 17.5 FT.
THE MINIMUM CLEARANCE BERLIN TIE REM ORACLE SLOEUM MD RHE BOTTOM CF THE BNS+ERODE STRUCTURE SHALL BE 60 FT.
9 32+07.08: 525'RT TOP OF Mom 2211' 26.86' 383 11.44'
10 32+06.68 60.8 RT TOP O'SOETAU( 25.78' 27.02 38.3 11.28' 2. TIME CO 116001CR SHALL NOT PEAFORY ANY WORK MAT COMPROMISES TEE ENV BADGE STRUCTURE A11.DBIENTS OF TIE STRUCTURE SHALL BE
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11 31+82.76 562'RT TOP CF SIDEWALK 26.07 27.16' 383' 11.14' FROM DAMAGE AT AU.IDES.
12 31+83.17 51.7 RT TOP CF SIDEWALK 21.91' 27.00' 383' 11.30' 3 RE CONTRACTOR SHALL COPLY OATH ALL BN5F PEOEEMENTS WEE 6O8OO WAIN THE BNS+RIGHT OF WAY.
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EASEMENT AGREEMENT
FOR ROADWAY EASEMENT ON RAINIER AVE,RENTON,WA
(C&M Agreement)
THIS EASEMENT AGREEMENT FOR ROADWAY PURPOSES ("Easement Agreement") is
made and entered into as of the day of 2011 ("Effective Date"), by and
between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and THE CITY OF RENTON,
a political 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 11.7, (BNSF Contract # BF 46643), 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 August 6, 2007 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;
(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
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(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 Premi es. Grantee acknowledges that Grantor
has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or
any personal property located thereon, or the nature or extent of Grantor's ownership interest in the
Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an
inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR
HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED,
AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE
PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY
OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY
SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO
GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE
DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE
CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL
RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT 1N THE PREMISES IN AN "AS IS,
WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON
GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will
inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical
condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee
acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or
Grantee's Contractors(as hereinafter defined)can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS
TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE
POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the
eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the
abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any
compensation paid hereunder.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper
to the lawful establishment, construction, operation,and maintenance of the Improvements, including such
actions as may be necessary to obtain any required permits, approvals or authorizations from applicable
governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the
construction, maintenance,or future alteration of the Improvements shall be made and maintained in such
manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises
of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-
existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain
such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall
also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the
premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present
flowage of drainage or other waters, and of materials and workmanship equally as good as those now
existing. In the event any construction, repair, maintenance,work or other use of the Premises by Grantee
will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other
Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments
necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements
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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 ail documentary
stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes
and any and all fees Incidental to recordation of the Memorandum of Easement. In the event of Grantee's
failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses
and judgments to or against Grantor,including all of Grantor's legal fees and expenses.
Section 7 Environmental.
7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal,
state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource
Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the
Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the
"Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal"
facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the
Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or
"hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be
defined by any Environmental Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises,
violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with
enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best
efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor
immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or
otherwise cure such release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise
of a release or violation of Environmental Laws which occurred or may occur during the term of this
Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely
measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the
Premises. If during the construction or subsequent maintenance of the Improvements, soils or other
materials considered to be environmentally contaminated are exposed, Grantee will remove and safely
dispose of said contaminated soils. Determination of soils contamination and applicable disposal
procedures thereof, will be made only by an agency having the capacity and authority to make such a
determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions
or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the
environment and shall take whatever action is necessary to prevent injury to persons or property arising
out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve
Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly
respond to Grantor's request for information regarding said conditions or activities.
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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
five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for
the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of
the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such
waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee
from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any
acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the
Premises are restored as required by Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to,
and not in limitation of, any other remedies that Grantor may have under the C&M Agreement,at law or in
equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this Easement
Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights
hereunder,Grantee shall,at its sole cost and expense, immediately perform the following:
(a) remove all or such portion of Grantee's Improvements and all
appurtenances thereto from the Premises, as Grantor directs at Grantor's
sole discretion;
(b) repair and restore any damage to the Premises arising from, growing out
of,or connected with Grantee's use of the Premises;
(c) remedy any unsafe conditions on the Premises created or aggravated by
Grantee; and
(d) leave the Premises in the condition which existed as of the Effective
Date.
9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct
Nape Nome
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. Once Grantor and Grantee have approved the legal
description, Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto
as Exhibit "B" (the"Memorandum of Easement"). 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 10 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.
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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 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"
Premises
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•
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TAX LOT NUMBER
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ASEMENT 5157274 • -
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EASEMENT AREA
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FEBRUARY 7. 2011 - NO. 15 182305-9052 ESM T.
• PCS '• - EXHIBIT .1'
......... PARCEL 182305-9052
Laminar/AraAft/Mnra
CM`nom" PERMANENT EASEMENT
DesignUrbanDesign
Page 4 of 4 BNSF to City of Renton Permanent Easement
None V
EXHIBIT "B"
MEMORANDUM OF EASEMENT
Now'
WHEN RECORDED MAIL TO:
GRANTOR: BNSF RAILWAY COMPANY
GRANTEE: THE CITY OF RENTON, a political subdivision of the State of Washington
Abbreviated Legal Description:
Assessor Property Tax Parcel Account Numbers:
MEMORANDUM OF EASEMENT
THIS MEMORANDUM OF EASEMENT is hereby executed this day
of , 2011, 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 South Grady Way, Renton, Washington, 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
, 2011 (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.
Page 1 of 3
Nowe ',ere
The term of the Easement, unless sooner terminated under provisions of the Easement
Agreement,shall be perpetual.
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:
Title:
STATE OF TEXAS )
)ss.
COUNTY OF TARRANT)
On this day of , 2011, before me, the undersigned, a Notary
Public in and for the State of Texas, duly commissioned and sworn, personally appeared
to me known to be the
Management of BNSF Railway Company, the corporation that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said corporation,for the uses
and purposes therein mentioned, and on oath stated that he is authorized to execute the said instrument
Witness my hand and official seal hereto affixed the day and year first above written.
Notary Public in and for the State of Texas
Residing at Fort Worth,Texas
My appointment expires:
Page2of3 1
Nene ,40,10e
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 , 2011, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally appeared
to me known to be the
of ,the corporation that accepted the foregoing instrument,
for the uses and purposes therein mentioned, and on oath stated that he is authorized to accept the said
instrument
Witness my hand and official seal hereto affixed the day and year first above written.
Notary Public in and for the State of Washington
Residing at
My appointment expires:
Page 3 of 3
time woe
LAW DEPARTMENT APPROVED
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
• 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as
"Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter
referred to as "Railway Property", during the reconstruction of the Rainer, Hardie, and Shattuck Avenue
Bridges.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 3 of said Exhibit"C-1". Questions regarding procurement of the
Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh,USA,214-303-8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter 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, telephone
number(206)625 6146 at least thirty(30)calendar days before commencing any work on Railway Property.
Contractors notification to Railway,must refer to Railroad's file Renton Bridges_
• 1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 1/2
horizontal to 1 vertical slope beginning at eleven(11)feet from centerline of the nearest track, both measured
perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings
showing details of construction affecting Railway Property and tracks. The working drawing must include the
proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract
plans and two sets of structural calculations of any falsework, shoring or cribbing. 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 Railways trains,Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner.The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees,subcontractors,agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 NOT USED.
• 1.03.03 The Contractor must abide by the following temporary clearances during construction:
• 15' Horizontally from centerline of nearest track
• 21'-6" Vertically above top of rail
• 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
• 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
• 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
• 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
• 1.03.04 Upon completion of construction,the following clearances shall be maintained:
• 25' Horizontally from centerline of nearest track
• 23'-3 '/2" Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the City of Renton and must not be undertaken until approved in writing by the
Railway, and until the City of Renton has obtained any necessary authorization from the State Regulatory
Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is
delayed pending Railway approval,and/or the State Regulatory Authority's approval.
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell-tales or other protective devices Railway deems necessary for protection of Railway operations.The cost of
tell-tales or protective devices will be borne by the Agency.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by the City of Renton for approval before work is undertaken and this
work must not be undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings,the Contractor must not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
2 Form 0102 Rev.01/20/05
"Temporary Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
the Railways tracks.The temporary crossing must be gated and locked at all times when not required for use by
the Contractor.The temporary crossing for use of the Contractor will be at the expense of the Contractor.
• 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
• 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor,its subcontractors,agents or invitees. This training is reinforced at the job site
through job safety briefings.Additionally,each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientation.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities.The Contractor must designate an on-site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets(MSDS),at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster a minimum of thirty (30) calendar days advance
notice when flagging services will be required so that the Roadmaster can make appropriate arrangements(i.e.,
bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary,the Contractor must
give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under
and/or within twenty-five(25)feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip
over or other catastrophic occurrence,but not limited thereto for the following conditions:
• 1.05.02a When in the opinion of the Railway's Representative it is necessary to safeguard Railway's Property,
employees,trains,engines and facilities.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's
representative,track or other Railway facilities may be subject to movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
• 1.05.02d When any hazard is presented to Railway track,communications,signal,electrical,or other facilities
either due to persons,material,equipment or blasting in the vicinity.
3 Form 0102 Rev.01/20/05
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However,additional personnel may be required to
protect Railway Property and operations,if deemed necessary by the Railways Representative.
• 1.05.03b Each time a flagger is called,the minimum period for billing will be the eight(8)hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the City of Renton. The estimated cost for one (1) flagger is $800.00 for an
eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The
estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment
insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals,
lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes
authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate
in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of
flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 4 freight trains per 24-hour period at a timetable speed of 10
MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s)is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction.All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track,the job briefing must include the Railway's flagger,as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority,(3)the method of communication to stop and resume work,and(4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed, must notify the flagger immediately,and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends,the Railroad's representative in charge of the project must be notified.A
minimum of two employees must be present at all times.
• 1.06.05 Any employees,agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol,or in the possession of same,will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come
4 Form 0102 Rev.01/20/05
Niue Nowt
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.fNOTE—Should there be a discrepancy between the information
contained on the web site and the information in this paragraph,the web site will govern.)
• 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT
WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS, WHERE STORAGE OF
THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING.PRIOR
TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH
CONCURRENCE OF THE RAILROAD'S REPRESENTATIVE.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade,pan or bucket,they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See 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 (Rulsty Olson — 206 625 6189). All
underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the
company having ownership of the line. It is the Contractor's responsibility to notify any other companies
that have underground utilities in the area and arrange for the location of all underground utilities
before excavating.
5 Form 0102 Rev.01/20/05
%se Name
• 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
Nine
OVERPASS/UNDERPASS EXHIBIT "C-1"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File:
Agency Project:
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the
"Contract") dated , 20_, with the City of Renton for the performance of
certain work in connection with the following project:
Performance of such work will necessarily require contractor to enter BNSF RAILWAY
COMPANY ("Railway") right of way and property ("Railway Property"). The Contract
provides that no work will be commenced within Railway Property until the Contractor
employed in connection with said work for the City of Renton (i) executes and delivers to
Railway an Agreement in the form hereof, and (ii)provides insurance of the coverage and limits
specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who
is not the Owner, General Partner, President or Vice President of Contractor, Contractor must
furnish evidence to Railway certifying that the signatory is empowered to execute this
Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date of the
Contract,has agreed and does hereby agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all
judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death
to all persons, including Railway's and Contractor's officers and employees, and for loss and
damage to property belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or about Railway's
property or right-of-way. This obligation shall not include such claims, costs, damages, or
expenses which may be caused by the sole negligence of Railway or its contractors, agents
or employees; Provided, that if the claims or damages are caused by or result from the
concurrent negligence or other acts or omissions of(a) Railway, its contractors, agents or
employees and (b) Contractor, its subcontractors, agents or employees, this provision shall
Form 106; Rev. 06/01/05
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be valid and enforceable only to the extent of the negligence of the Contractor, its
subcontractors,agents or employees.
It is mutually negotiated between the parties that the indemnification obligation
shall include all claims brought by Contractor's employees against Railway, its agents,
servants, employees or otherwise, and Contractor expressly waives its immunity under the
industrial insurance act (RCW Title 51) and assumes potential liability for all actions
brought by its employees.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR
INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY
UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR
STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE
LOCOMOTIVE INSPECTION ACT,WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it
will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear
and defend any suits or actions of law or in equity brought against Railway on any claim or cause
of action arising or growing out of or in any manner connected with any liability assumed by
Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway
will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the
event of a suit being brought against Railway, Railway may forward summons and complaint or
other process in connection therewith to Contractor, and Contractor, at Railway's discretion,
must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from
and against all damages,judgments, decrees, attorney's fees, costs, and expenses growing out of
or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion
of this Article shall be deemed to be inapplicable for any reason, including without limitation as
a result of a decision of an applicable court, legislative enactment or regulatory order, the parties
agree that this Article shall be interpreted as requiring Contractor to indemnify Railroad to the
fullest extent permitted by applicable law.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the
project set forth herein, and (ii) full and complete payment to Railway of any and all sums or
other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this
Agreement the
Form 106; Rev. 06/01/05
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following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of$5,000,000 each
occurrence and an aggregate limit of at least $10,000,000 but in no event less than the
amount otherwise carried by the contractor. Coverage must be purchased on a post
1998 ISO occurrence form or equivalent and include coverage for, but not limit to the
following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy must also contain the following endorsements, which must be indicated on
the certificate of insurance:
• 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.
• Waver of subrogation in favor of and acceptable to Railroad.
• Additional insured endorsement in favor of and acceptable to Railroad.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
It is agreed that 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.
No other endorsements limiting coverage as respects obligations under this_Agreement may be
included on the policy with regard to the work being performed under this agreement.
B. Business Automobile Insurance. 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
The policy shall also contain the following endorsements or language,which shall be
indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railroad.
• Additional insured endorsement in favor or and acceptable to Railroad.
• Separation of insureds.
Form 106; Rev. 06/01/05
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• The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
C. Workers Compensation and Employers Liability insurance including coverage for,
but not limited to:
• Contractor's statutory liability under the worker's compensation laws of the
state(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
• ksjdf
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railroad.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with
coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate.
The policy Must be issued on a standard ISO form CG 00 35 10 93 and include the
following:
• Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
10 93)
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to remove any exclusion for punitive damages.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to the Railroad prior to performing any
work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's
Blanket Railroad Protective Liability Insurance Policy available to contractor.
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive
damages and certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits
against Railroad. In addition, its insurers,through the terms of the policy or policy endorsement,
waive their right of subrogation against Railroad for all claims and suits. The certificate of
insurance must reflect the waiver of subrogation endorsement. Contractor further waives its
right of recovery, and its insurers also waive their right of subrogation against Railroad for loss
of its owned or leased property or property under contractor's care, custody or control.
Form 106; Rev. 06/01/05
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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:
Ebix BPO
PO Box 12010-BN
Hemet, CA 92546-8010
Fax number: 951-652-2882
Email: bnsf@ebix.com
ebix.com
Any insurance policy must be written by a reputable insurance company acceptable to
Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to
do business in the state(s) in which the service is to be provide.
Contractor represents that this Agreement has been thoroughly reviewed by contractor's
insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance
coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy
limits for coverages referenced above. Not more frequently than once every five years,Railroad
may reasonably modify the required insurance coverage to reflect then-current risk management
practices in the railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by contractor, contractor must
require that the subcontractor provide and maintain the insurance coverages set forth herein,
naming Railroad as an additional insured, and requiring that the subcontractor release, defend
and indemnify Railroad to the same extent and under the same terms and conditions as
contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require,
Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not
comply with this section will not operate as a waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
contractor will not be deemed to release or diminish the liability of contractor including, without
Form 106; Rev. 06/01/05
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limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by
Railroad will not be limited by the amount of the required insurance coverage.
For purposes of this section, Railroad means "Burlington Northern Santa Fe
Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and
affiliates of each.
Section 4. EXHIBIT"C"CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements
and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit
"C" attached to the Contract and this Agreement, , including, but not be limited to, payment of
all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto,
resulting from use, occupancy, or presence of its employees, representatives, or agents or
subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and against all damages
arising from any unscheduled delay to a freight or passenger train which affects Railway's ability
to fully utilize its equipment and to meet customer service and contract obligations. Contractor
will be billed, as further provided below, for the economic losses arising from loss of use of
equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from
train delays, whether caused by Contractor, or subcontractors, or by the Railway performing
work under this Agreement. Railway agrees that it will not perform any act to unnecessarily
cause train delay.
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 are currently$382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF
PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE
ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT.
Form 106; Rev. 06/01/05
6
Contractor and its subcontractors must give Railway's representative four weeks
advance notice of the times and dates for proposed work windows. Railway and
Contractor will establish mutually agreeable work windows for the project. Railway has
the right at any time to revise or change the work windows due to train operations or
service obligations. Railway will not be responsible for any additional costs or expenses
resulting from a change in work windows. Additional costs or expenses resulting from a
change in work windows shall be accounted for in Contractor's expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original
copies of this letter, which, upon execution by Railway, will constitute an Agreement between
us.
Contractor BNSF Railway Company
By: By:
Printed Name: Name:
Manager Public Projects
Title:
Accepted and effective this day of 2011.
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E-mail:
Form 106; Rev. 06/01/05
7
40101e `4110101
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
CITY OF RENTON
LOCATION WEST RENTON DETAILS OF ESTIMATE PLAN ITEM: PTR091686M-1 VERSION: 1
PURPOSE,JUSTIFICATION AND DESCRIPTION
FLAGGING-NWN DIV-SEATTLE SPUR SUB-LS 410-MP 11.7-RDM FARLEY-DOT 091686M
DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER DTD
FLAGGING FOR UNDERPASS ROADWAY WIDENING. •
BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO:
100%BILLABLE TO CITY OF RENTON-PROJECT ENGR RUSTY OLSON
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.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$
**********
LABOR
**********
FLAGGING-BRIDGE-CAP 120.0 MH 2,989
PAYROLL ASSOCIATED COSTS 1,808
EQUIPMENT EXPENSES 988
DA LABOR OVERHEADS 2,879
INSURANCE EXPENSES 470
TOTAL LABOR COST 9,134 9,134
******r******
MATERIAL
*************
TOTAL MATERIAL COST 0 0
*****r**art
OTHER
**********
TOTAL OTHER ITEMS COST 0 0
PROJECT SUBTOTAL 9,134
CONTINGENCIES 913
BILL PREPARATION FEE 107
GROSS PROJECT COST 10,154
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 10,154
Page 1 of 2
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
CITY OF RENTON
LOCATION WEST RENTON DETAILS OF ESTIMATE PLAN ITEM: PTR091686M VERSION: 1
PURPOSE,JUSTIFICATION AND DESCRIPTION
INSPECTION-NWN DIV-SEATTLE SPUR SUB-LS 410-MP 11.7-RDM FARLEY-DOT 091686M
DESCRIPTION OF PROJECT AS PROVIDED BY PROJECT ENGINEER DTD
INSPECTION FOR UNDERPASS ROADWAY WIDENING.
BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO:
100%BILLABLE TO CITY OF RENTON-PROJECT ENGR RUSTY OLSON
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.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$
**********
LABOR
**********
TOTAL LABOR COST 0 0
*************
MATERIAL
*************
TOTAL MATERIAL COST 0 0
**********
OTHER
**********
INSPECTION SERVICES 1.0 LS 12,500
TOTAL OTHER ITEMS COST 12,500 12,500
PROJECT SUBTOTAL 12,500
CONTINGENCIES 0
BILL PREPARATION FEE 125
GROSS PROJECT COST 12,625
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 12,625
Page 2 of 2