Contract Number: BF-20551114
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GRADE CROSSING CONSTRUCTION AND MAINTENANCE AGREEMENT
BNSF File No.: BF-20551114
Mile Post 22.70
Line Segment 7602
U.S. DOT Number 026521R
San Bernardino Subdivision
This Agreement (“Agreement”), is executed to be effective as of ____________(“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware corporation (“BNSF”) and the City of Corona, a political subdivision of the State of California (“Agency”).
RECITALS
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Corona, State of California;
WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project to improve the existing Radio Rd at-grade crossing, located at BNSF Line Segment 7602 and Milepost 22.770, and designated by D.O.T. No. 026521R.
The Crossing Improvements (“Crossing Improvements”) consist of certain improvements to be completed by BNSF (“Improvements by Railroad Forces”) including installation of active warning devices, signal bungalows, conduit and precast concrete panels extension, as well as certain improvements to be completed by Agency (“Improvements by Agency’s Contractor) including roadway curbs, sidewalk, driveways and paving as well as signage, channelization, lighting, utility relocation and chain link fencing) across BNSF right-of-way. The Crossing Improvements are described and illustrated in Exhibit A, Contract Number: BF-20551114
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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 that are part of the Crossing Improvements (hereinafter collectively called, “Crossing Signal Equipment”); and
WHEREAS, as part of the Crossing Improvements, the Agency also desires BNSF to install an expanded crossing surface at Radio Rd with new concrete and rubber crossing surface extensions (“Expanded Crossing Surface”);
WHEREAS, the Agency is paying for the acquisition and installation of the Crossing Improvements at Radio Rd with State and Federal funds pursuant to 23 U.S.C. § 130.
WHEREAS, the BNSF agrees to purchase and install, at AGENCY’S sole expense, the Improvements by Railroad Forces 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 herein includes any and all work related to the construction of the Crossing Improvements.
ARTICLE II – RAILROAD OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows:
1) Upon Agency’s payment to BNSF of an administrative fee in the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500), together with the Temporary Construction License Fee in the sum of zero and No/100 Dollars ($0), BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, “Temporary Construction License”) to enter upon and use the portion of BNSF’s rightof-way as is necessary to construct the Project and thereafter maintain, the Crossing as described further on Exhibit A, excepting and reserving BNSF’s rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following:
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A. Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right-of-way;
B. Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate;
C. Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate.
The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of (i) substantial completion of the Project, or (ii) Twelve months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Agency in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for construction of the Project only and shall not be used by Agency for any other purpose.
Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Crossing (Defined as Radio Road AtGrade Crossing including approaches.) for any other purpose than construction. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein.
Upon Agency’s payment to BNSF of the additional sum of one hundred forty eight thousand, nine hundred eighty six and No/100 Dollars ($148,986.00), such payment to be made within thirty (30) days of issuing the Notice to Proceed pursuant to Article III, Section 8 of this Agreement, and provided further that Agency is in compliance with the term 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 Crossing, substantially in the form of Exhibit B attached to this Agreement. If Agency fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. 2) BNSF will furnish all labor, materials, tools, and equipment for the Improvements by Railroad Forces required for the construction of the Project, such railroad work and Contract Number: BF-20551114
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the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein.
Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of Agency, which approval will not be unreasonably withheld. Construction of the Project must include the following Improvements by Railroad Forces.
A. Procurement of materials, equipment and supplies necessary for the railroad work;
B. Preliminary engineering, design, and contract preparation; C. Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof;
D. Furnishing engineering and inspection as required in connection with the construction of the Project;
E. Installation of Expanded Crossing Surface for the three tracks complete with new rail, ties, ballast, fasteners, along with appropriate surfacing, to carry the improved roadway and sidewalks;
F. Installation of Crossing Signal Equipment and crossing signal control house as shown in Exhibit A ;
G. Make such changes in the alignment, location and elevation of its telephone, telegraph, signal and/or wire lines and appurtenances along, over or under the tracks, both temporary and permanent, as may become necessary by reason of the construction of the Project.
3) BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements.
4) Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or Agency’s contractor in connection with the Project which BNSF deems is Contract Number: BF-20551114
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reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse BNSF for all such emergency work.
5) BNSF may charge Agency for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any.
6) During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement.
Agency must reimburse BNSF for completed force-account work within thirty (30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month’s end. Finance charges will be noted on invoices sent to Agency under this section. For purposes of computing the time limits prescribed by Section 911.2 of the California Government Code for the presentment of a claim against the Agency the cause of action for failure to reimburse BNSF for the costs of the Railroad work performed by it pursuant to this Agreement shall be deemed to have accrued one hundred and eighty (180) days of the date of the final invoice.
ARTICLE III – AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows:
1) Agency must furnish to BNSF plans and specifications for the Project. Said plans (reduced size 11” x 17”), showing the plan and profile of the roadway work on BNSF right-of-way and marked as Exhibit A, attached hereto and made a part hereof, must Contract Number: BF-20551114
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be submitted to BNSF for the development of cost estimates for Improvements by Railroad Forces.
2) Agency must make any required application and obtain all required permits and approvals for the construction of the Project.
3) Agency must acquire all rights of way necessary for the construction of the Project. 4) Agency must make any and all arrangements, in compliance with BNSF’s Utility Accommodation Manual (http://www.bnsf.com/communities/faqs/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project. 5) Agency must construct the Project as shown on the attached Exhibit A and do all work “Improvements by Agency’s Contractor” provided for in the plans and specifications for the Project, except Improvements by Railroad Forces 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. Design and Construction of Radio Rd;
B. Installation of a pavement marking stop bars and pavement legends in accordance with the Manual on Uniform Traffic Control Devices (hereinafter called, “MUTCD”);
C. Installation of advance warning signs in accordance with the MUTCD D. Perform all necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF’s right-of-way; E. Provide suitable drainage, both temporary and permanent, maintaining drainage patterns to the Arlington Channel nearby;
F. Provide all barricades, lights, flagmen or traffic control devices necessary for preventing vehicular traffic from using a portion of the Crossing, during the installation of the concrete crossing surfaces, and also during the installation of the Crossing Signal Equipment.
G. Construct asphalt/concrete roadway surface on approaches to each track.
Roadway surface will match elevation of the Main (and Siding) Track crossing Contract Number: BF-20551114
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surface(s) and remain level to a point at least thirty (30) feet from nearest rail. Any concrete headers will be constructed no closer than 5’-6” (preferably 6’-0”) from centerline of each track to provide for a minimum of 11’-0” (preferably 12’-0”) opening for track and railroad crossing surface;
H. Provide and place gap section of asphalt between roadway concrete headers (and sidewalks) and the New Surface Crossing, including that portion of Radio Rd located between the main track and siding track.
I. 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;
6) The Agency will approve the location of the signals and signal bungalow prior to the installation by BNSF.
7) The Agency must have advanced railroad crossing 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. 8) The Agency must give BNSF’s Manager Public Projects written notice to proceed (“Notice to Proceed”) with the Improvements by Railroad Forces after Agency’s 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 the Agency.
9) The Agency’s Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities.
10) For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to comply with the provisions of the attached Exhibit C and execute the agreement attached hereto as Exhibit C-1. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF’s applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF’s Internet Website “www.bnsfcontractor.com”; notify BNSF when, pursuant to the requirements of Exhibit C, a flagger is required to be present; procure, and have approved by BNSF’s Risk Management Department, Railroad Protective Liability insurance.
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11) Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF’s Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 12) Agency must include the following provisions in any contract with its contractor(s) performing work on said Project:
A. The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the “Lines”) owned by various telecommunications companies may be buried on BNSF’s property or right-of-way. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The Contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist.
B. Failure to mark or identify these Lines will be sufficient cause for BNSF’s engineering representative to stop construction at no cost to the Agency or BNSF until these items are completed.
C. The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements.
D. In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney’s fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or its subcontractors, agents and/or employees, on BNSF’s property or within BNSF’s right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF’s property or within BNSF’s right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such Contract Number: BF-20551114
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telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE
DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM
WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
13)Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article III and IV; and (ii) the provisions set forth in Exhibit C and Exhibit C-1, attached hereto and by reference made a part hereof.
14)Except as otherwise provided below in this Section 14, all construction work performed hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following:
A. All work performed under such contract or contracts within the limits of BNSF's right-of-way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF;
B. Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval;
C. No work will be commenced within BNSF's right-of-way until each of the prime contractors employed in connection with said work have (i) executed and delivered to BNSF an agreement in the form of Exhibit C-l, and (ii) delivered to and secured BNSF's approval of the required insurance; and
D. If it is in Agency’s best interest, Agency may direct that the construction of the Project be done by day labor under the direction and control of Agency, or if at any time, in the opinion of Agency, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, Agency may terminate its contract with the contractor and take control over the work and proceed to complete the same by day labor or by employing another contractor(s) provided; however, that any contractor(s) replacing the original contractor(s) must comply with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, Agency will, at its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C-1.
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E. To facilitate scheduling for the Project, Agency shall have its contractor give BNSF’s Roadmaster 90 days advance notice of the proposed times and dates for work windows. BNSF and Agency’s contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the Contractor’s expenses for the Project. 15)Agency must advise the appropriate BNSF Manager Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date.
Additionally, Agency must notify BNSF's Manager Public Projects, in writing, of the date on which Agency and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project.
16)TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY
RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS
AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL
REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’ FEES) OF ANY NATURE, KIND
OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE
EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR
INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR
ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO
PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS,
EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF
AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY’S
BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT
GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)
ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE
TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) AGENCY’S OCCUPATION AND USE OF BNSF’S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION,
SUBSEQUENT MAINTENANCE OF THE CROSSING BY AGENCY, OR (VII) AN Contract Number: BF-20551114
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ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES,
EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY
EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE
AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION,
INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
ARTICLE IV – JOINT OBLIGATIONS
IN CONSIDERATION of the promises set forth herein, the parties hereto mutually agree to the following:
1) All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. 2) The work hereunder must be done in accordance with Exhibit A and the detailed plans and specifications approved by BNSF.
3) Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the Improvements by Railroad Forces in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the Improvements by Railroad Forces in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs Contract Number: BF-20551114
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resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4) BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing:
Savat Khamphou
Public Works Director
City of Corona
400 S. Vicentia Avenue
Corona CA 92882
5) Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will not proceed until Agency corrects the situation to BNSF’s reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Savat Khamphou for appropriate corrective action. 6) Pursuant to this section and Article II, Section 6 herein, Agency must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation Contract Number: BF-20551114
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taxes, and similar taxes), less BNSF’s Share, if any, as set forth in Article IV, Section 6 herein. BNSF’s Share must be paid upon completion of the Project.
In any action brought under this Agreement, the prevailing Party shall be entitled to recover its reasonable costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all reasonable attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding.
7) All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement.
8) The construction of the Project will not commence until Agency issues the Notice to Proceed pursuant to Article III, Section 8 herein. The commencement notice will reference BNSF's file number BF-20551114 and D.O.T. Crossing No. 026521R and must state the time that construction activities will begin. 9) In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
A. Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of the Radio Rd roadway, including the portion of roadway located between the tracks.
B. Agency will maintain the advanced railroad crossing warning signs and pavement markings and agrees to hold harmless and indemnify 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.
C. Agency will do nothing and permit nothing to be done in the maintenance of the Radio Rd roadway, which will interfere with or endanger facilities of BNSF.
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D. It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
E. BNSF will, at its sole cost and expense, operate and maintain the Crossing Signal Equipment, Crossing Signal Control House, and the new crossing surfaces, from end-of-tie to end-of-tie, in proper condition F. Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost 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.
G. If a railway or highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment, Crossing Signal Control House, 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.
H. 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:
i) In the event the BNSF’s sole negligence destroys or damages the Crossing Signal Equipment and/or the Crossing Signal Control House, BNSF must, at its sole cost and expense, replace or repair such Crossing Signal Equipment and/or Crossing Signal Control House.
ii) In the event the Crossing Signal Equipment and/or the Crossing Signal Control House is damaged or destroyed by any other cause, Agency must reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment and/or Crossing Signal Control House.
I. If the Crossing Signal Equipment and/or Crossing Signal Control House installed hereunder cannot, through age, be maintained, or by virtue of its obsolescence, requires replacement, the cost of installation of the Crossing Contract Number: BF-20551114
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Signal Equipment and/or Crossing Signal Control House 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.
10) Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11) Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of California and the Federal Highway Administration, for a period of three (3) years from the date of the final BNSF invoice under this Agreement.
12) The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party. 13) In the event construction of the Project does not commence within six (6) months of the Effective Date, this Agreement will become null and void. 14) Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15) To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
Contract Number: BF-20551114
16 of 58
16) This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17) Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses:
BNSF: BNSF's Manager Public Projects
740 East Carnegie Dr
San Bernardino, CA 92408
Agency: City of Corona
400 S. Vicentia Avenue
Corona CA 92882
SIGNATURE PAGE FOLLOWS
Contract Number: BF-20551114
17 of 58
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:
Printed Name:
Title:
City of Corona
By:
Printed Name:
Title: _____________________
Contract Number: BF-20551114
18 of 58
Exhibit A
www.jmdiaz.com
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(626) 820-1137 Tel
City of Industry, CA 91748
18645 East Gale Avenue, Suite 212 DWG#:
CONSTRUCTION NOTES:
SIGNING AND STRIPING CONSTRUCTION NOTES:
CITY OF CORONA
STREET PLANS FOR THE CONSTRUCTION OF
AT-GRADE RAILWAY CROSSING SAFETY
IMPROVEMENTS
SECTION 130
DOT CROSSING NO.026521R
PROJECT NO. STPLR-130L(295)
DESCRIPTION
SHEET
NO.
SHEET INDEX:
RADIO RD
WALKER LN
RADIO RD
QUARRY ST
SAMPSON AVE
N.T.S
VICINITY MAP
PROJECT
LOCATION
GENERAL NOTES
1. GENERAL NOTES APPLY TO ALL PLANS.
2. PRIME CONTRACTOR LICENSE REQUIRES CLASS A.
3. ALL PROPOSED WORK SHALL BE CONSTRUCTED PER CITY
STANDARDS, SPPWC STANDARD PLANS AND SPECIFICATIONS, UNLESS OTHERWISE SHOWN.
4. PRIOR TO ANY CONSTRUCTION WORK, THE CONTRACTOR
SHALL OBTAIN A CITY BUSINESS LICENSE AND A PUBLIC
WORKS CONSTRUCTION PERMIT.
5. INSPECTION TO BE CALLED FOR THROUGH THE CITY OF
CORONA: PUBLIC WORKS (951) 279-3511, 48 HOURS PRIOR TO
STARTING WORK.
6. THE CONTRACTOR SHALL NOTIFY UNDERGROUND SERVICE
ALERT (DIAL 811) TWO FULL WORKING DAYS (48 HOURS
MINIMUM) IN ADVANCE OF ANY CONSTRUCTION ACTIVITIES,
AND OBTAIN AN IDENTIFICATION NUMBER PRIOR PERMIT
ISSUANCE, INCLUDING PAVEMENT REMOVAL, EXCAVATION,
AND A.C. OVERLAY, WHICH COULD AFFECT ANY
UNDERGROUND UTILITY.
7. THE CONTRACTOR SHALL OUTLINE THE EXCAVATION AND
NOTIFY ALL AFFECTED UTILITY COMPANIES AT LEAST TWO
FULL WORKING DAYS (48 HOURS MINIMUM) PRIOR TO
BEGINNING ANY CONSTRUCTION IN THE VICINITY OF THEIR
FACILITIES.
8. THE CONTRACTOR SHALL EXCAVATE INSPECTION HOLES
("POTHOLES") AND DETERMINE THE LOCATION AND DEPTH OF
ALL UNDERGROUND STRUCTURES AND UTILITIES THAT ARE IN
THE VICINITY OF AND/OR MAY BE AFFECTED BY THE
PROPOSED IMPROVEMENT WORK PRIOR TO ANY
CONSTRUCTION WORK WHICH COULD DAMAGE OR CONFLICT
WITH SAID STRUCTURES AND/OR UTILITIES.
9. ALL MATERIALS AND METHODS TO BE SUBJECT TO THE
APPROVAL OF THE PUBLIC WORKS DIRECTOR.
10. REPAIR OR REPLACE ANY EXISTING DAMAGED OR ALTERED
EXISTING IMPROVEMENTS WITHIN PUBLIC RIGHT-OF-WAY AS
DIRECTED BY THE PUBLIC WORKS DIRECTOR.
11. IF ANY EXISTING UTILITIES OR ANY OTHER FACILITIES
CONFLICT WITH THE PROPOSED IMPROVEMENTS, WORK
SHALL STOP AND THE ENGINEER SHALL BE NOTIFIED
IMMEDIATELY.
12. ALL IRRIGATION LINES TO BE REMOVED, RELOCATED, OR
RECONSTRUCTED AS SHOWN OR AS DIRECTED BY THE
PUBLIC WORKS DIRECTOR.
13. ALL SURVEY MONUMENTS SHALL BE PROTECTED AND
PERPETUATED IN PLACE. ANY DISTURBED OR COVERED
MONUMENTS SHALL BE RESET BY A REGISTERED CIVIL
ENGINEER OR A LICENSED LAND SURVEYOR.
14. CITY APPROVAL OF PLANS DOES NOT RELIEVE THE
DEVELOPER OF RESPONSIBILITY FOR THE CORRECTION OF
ERRORS AND OMISSIONS DISCOVERED DURING
CONSTRUCTION. UPON REQUEST, THE REQUIRED PLAN
REVISIONS SHALL BE PROMPTLY SUBMITTED TO THE PUBLIC
WORKS DIRECTOR FOR APPROVAL.
15. AS-BUILT ORIGINAL PLANS ARE TO BE FURNISHED TO THE
CITY AFTER COMPLETION OF CONSTRUCTION.
STREETS
1. ACTUAL THICKNESS OF BASE MATERIAL TO BE DETERMINED
BY SOILS TEST AND RECOMMENDED BY THE GEOTECHNICAL
ENGINEER UPON REVIEW OF THE SOILS TEST. R-VALUES,
SAND EQUIVALENTS AND STRUCTURAL SECTION OF STREETS
SHALL BE SUBMITTED TO THE CITY CORONA FOR APPROVAL
UPON COMPLETION OF ROUGH GRADING.
2. THE CONTRACTOR SHALL NOT ORDER OR PLACE ANY
PORTLAND CEMENT CONCRETE OR ASPHALT CONCRETE
PAVING UNTIL THE FORMS, AND SUBGRADE AND/OR
AGGREGATE BASE HAVE BEEN INSPECTION AND APPROVED
BY THE ENGINEER IN THE FIELD.
3. DRIVEWAY LOCATIONS SHALL BE DETERMINED IN THE FIELD
AT THE TIME OF BUILDING CONSTRUCTION, UNLESS
LOCATIONS ARE SHOWN ON THE APPROVED PLANS.
4. ALL NEW OR EXISTING MANHOLES SHALL BE ADJUSTED TO
GRADE IN ACCORDANCE WITH STANDARD PLAN NO. 152.
5. THE FINAL OR SURFACE LAYER OF ASPHALT CONCRETE
SHALL NOT BE PLACED UNTIL ALL ON-SITE IMPROVEMENTS
HAVE BEEN COMPLETED, INCLUDING ALL GRADING AND UNTIL
ALL UNACCEPTABLE CONCRETE WORK HAS BEEN REMOVED
AND REPLACED UNLESS APPROVED OTHERWISE BY THE
PUBLIC WORKS DIRECTOR. TRAFFIC
1. A TRAFFIC CONTROL PLAN SHALL BE SUBMITTED AND
APPROVED BY THE PUBLIC WORKS DEPARTMENT TRAFFIC
DIVISION FOR ALL PROPOSED TRAFFIC CONTROL PRIOR TO
ANY CONSTRUCTION WORK. THE TRAFFIC CONTROL PLAN
SHALL DESIGNED PER THE CALIFORNIA MANUAL OF
TEMPORARY TRAFFIC CONTROLS FOR CONSTRUCTION AND
MAINTENANCE WORK ZONES (CA MUTCD). ACCESS TO
ADJACENT PROPERTIES AND BUSINESSES IS TO BE
MAINTAINED AT ALL TIMES.
2. ALL PERMANENT TRAFFIC CONTROL SIGNS AND DEVICES
SHALL BE LOCATED IN THE FIELD BY THE TRAFFIC ENGINEER
PRIOR TO FINAL CONSTRUCTION OF THE IMPROVEMENTS.
3. THE CONTRACTOR SHALL REMOVE AND/OR INSTALL
PAVEMENT MARKINGS AND STRIPING AS REQUIRED BY THE
ENGINEER IN THE FIELD.
4. STREET NAME SIGNS AND STOP SIGNS TO BE FURNISHED BY
THE CONTRACTOR IN ACCORDANCE WITH CITY STANDARD
PLANS NOS. 512, 514, 515, 516, 517, 519, 520, AND 521.
5. INSTALL BLUE DOTS FIRE HYDRANT MARKERS PER
STANDARD NO. 531.
UTILITIES
1. PRIOR TO TAKING ANY WATER FROM A CITY FIRE HYDRANT,
THE CONTRACTOR SHALL MAKE ARRANGEMENTS WITH THE
PUBLIC WORKS DEPARTMENT TO OBTAIN A FIRE HYDRANT
WATER METER TO BE USED AT APPROVED LOCATIONS ONLY.
CONTRACTOR IS REQUIRED TO PROVIDE A CERTIFIED
BACKFLOW DEVICE AND PROVIDE CERTIFICATION TO THE
INSPECTOR.
2. CONTRACTOR SHALL NOT OPERATE ANY MAIN LINE WATER
VALVE OR HYDRANT VALVE. CONTRACTOR TO CONTRACT
DEPARTMENT OF WATER AND POWER AT 28 HOURS PRIOR
NOTICE.
3. ALL CONNECTIONS TO EXISTING WATER MAINS SHALL BE
DONE BY THE CONTRACTOR UNDER THE SUPERVISION OF
THE PUBLIC WORKS DIRECTOR. CONNECTIONS SHALL BE
MADE AFTER 9:00 A.M. OR AS DIRECTED BY THE DEPARTMENT
OF WATER AND POWER.
4. IF A NIGHTTIME SHUTDOWN IS REQUIRED FOR WATER AND/OR
SEWER TIE-INS, THE CONTRACTOR SHALL POST, IN ADVANCE,
SUFFICIENT DEPOSITS WITH THE PUBLIC WORKS
DEPARTMENT TO COVER OVERTIME INSPECTION. SHUTDOWN
REQUESTS MUST BE SUBMITTED TO AN APPROVED BY THE
DEPARTMENT OF WATER AND POWER.
5. WATER METER BOXES SHALL BE CONSIDERED TO BE PART OF
THE WATER SERVICE AND SHALL BE BROUGHT TO GRADE
AND LEVELED BEFORE THE CITY WILL INSTALL ANY WATER
METERS. IN ACCORDANCE WITH DWP STANDARD PLANS, THE
CONTRACTOR SHALL PROVIDE NO.5 METER BOXES FOR 1"
WATER SERVICE AND NO.6 FOR 2" WATER SERVICES.
6. WATER SERVICES TO BE MINIMUM OF 10' HORIZONTAL
DISTANCE FROM SEWER LATERALS.
7. A CONTINUOUS DETECTION WIRE (#12 COPPER INSULATED)
SHALL BE PLACED DIRECTLY OVER AND TIED TO ALL
NON-METALLIC PIPE AND CARRIED TO AND ATTACHED ON
INSIDE OF VALVE BOX 6" BELOW CAP.
8. THRUST BLOCKS FOR WATER FACILITIES ARE NOT PERMITTED
WITHOUT PRIOR WRITTEN APPROVAL BY THE DEPARTMENT
OF WATER AND POWER, USE FULLY RESTRAINED JOINTS.
9. A COPPER WATER SERVICES, SIZE NOTED ON THE PLANS. TO BE PROVIDED TO EACH LOT.
10. ALL WATER LINES 8 INCHES IN SIZE AND SMALLER SHALL BE INSTALLED WITH 36 INCHES OF MINIMUM COVER. FROM
FINISHED SURFACE. WATER LINES 12 INCHES IN SIZE AND
LARGER SHALL BE INSTALLED WITH 24 INCHES OF MINIMUM
COVER FROM FINISHED SURFACE.
11. ALL ON-SITE AND OFF-SITE WATER VALVES SHALL BE SET TO GRADE BY THE CONTRACTOR.
12. ALL FIRE HYDRANTS WHICH HAVE NOT BEEN ACCEPTED FOR
SERVICE SHALL BE COVERED WITH A SACK INDICATING THAT
THE HYDRANTS ARE NOT IN SERVICE. ALL FIRE HYDRANTS
SHALL BE SUPPLIED WITH 1
2 " OPERATING NUTS.
13. THE CONTRACTOR SHALL KEEP A STRICT RECORD OF THE
LOCATION OF THE WYES TEES AND SEWER LATERAL STUBS.
SUCH RECORDS SHALL BE THE PROPERTY OF THE CITY OF
CORONA UPON COMPLETION OF THE WORK.
14. SEWER LATERAL (RESIDENTIAL-GREEN P.V.C., SDR21 AND
NON-RESIDENTIAL-EXTRA-STRENGTH VITRIFIED CLAY PIPE
(VCP) WITH CERAMIC EPOXY LINING AND WRAPPED WITH
GREEN COLORED POLYETHYLENE ENCASEMENT). SIZE AS
NOTED ON THE PLANS, SHALL BE CONSTRUCTED TO EACH
LOT. CONTRACTOR SHALL MARK A CHISELED "S" ON CURB AL
LATERAL LOCATIONS PER CITY STANDARD NO. 301.
EXCAVATION
1. ALL TRENCH BEDDING AND BACKFILL SHALL BE PERFORMED
IN ACCORDANCE WITH STANDARD PLAN NOS. 149 AND 150,
AND SHALL BE CONTINUOUSLY INSPECTED. TESTED AND
CERTIFIED BY A GEOTECHNICAL ENGINEER.
2. ALL SEWER AND WATER TRENCH BEDDING AND BACKFILL
SHALL BE DONE IN ACCORDANCE WITH THE APPLICABLE
SECTIONS OF STANDARD PLAN NOS. 149 AND 150 EXCEPT
THAT EXCAVATED MATERIALS CONSIDERED AS SUITABLE
FOR BACKFILL BY THE GEOTECHNICAL ENGINEER AND
APPROVED BY THE PUBLIC WORKS DIRECTOR MAY BE USED
FOR BACKFILL. IN ADDITION, ALL TRENCH BEDDING AND
BACKFILL SHALL BE CONTINUOUSLY INSPECTED, TESTED,
AND CERTIFIED BY A GEOTECHNICAL ENGINEER.
CERTIFICATION SHALL BE ON CITY "SUPERVISED TRENCH
BEDDING AND BACKFILL INSPECTION CERTIFICATE." FIELD
DENSITY TESTS SHALL BE MADE AT A FREQUENCY
DETERMINED BY THE GEOTECHNICAL ENGINEER AND AS
APPROVED BY THE PUBLIC WORKS DIRECTOR. PRIOR TO
ACCEPTANCE OF THE TRENCH BEDDING AND BACKFILL BY
THE CITY, THE GEOTECHNICAL ENGINEER SHALL SUBMIT A
CERTIFIED REPORT TO THE PUBLIC WORKS DIRECTOR
SUMMARIZING ALL TESTS TAKEN, INCLUDING DATES AND
LOCATIONS.
3. TRENCHES SHALL HAVE SHAPED BEDDING.
4. DURING THE WORKING DAY, TRENCHES MAY BE LEFT OPEN
ACROSS ONLY ONE ACCESS STREET AT A TIME. NO TRENCH
MAY BE LEFT OPEN OVERNIGHT UNLESS AUTHORIZED IN
WRITING BY THE CITY.
5. CARE SHALL BE TAKEN TO PREVENT GRADED DITCHES AND
SWALES FROM UNDERMINING STREET IMPROVEMENTS. UPON
INSPECTION OF THE SITE, THE PUBLIC WORKS DIRECTOR
MAY REQUIRE TEMPORARY GUNITE SWALES, ENTERING OR
LEAVING IMPROVEMENTS.
6. ALL UTILITIES SHALL BE INSTALLED, TESTED, AND APPROVED PRIOR TO STREET PAVING.
INDEMNIFICATION CLAUSE:
THE CONTRACTOR AGREES THAT THEY SHALL ASSUME SOLE
AND COMPLETE RESPONSIBILITY FOR JOB SITE CONDITIONS
DURING THE COURSE OF CONSTRUCTION OF THE PROJECT
INCLUDING SAFETY OF ALL PERSONS AND PROPERTY; THAT
THIS REQUIREMENT SHALL APPLY CONTINUOUSLY AND NOT
BE LIMITED TO NORMAL WORKING HOURS; AND THAT THE
CONTRACTOR SHALL DEFEND, INDEMNIFY, AND HOLD THE
CITY OF CORONA, THE OWNER, AND THE PRIVATE
ENGINEERS HARMLESS FOR ANY AND ALL LIABILITY; REAL OR
ALLEGED, IN CONNECTION WITH PERFORMANCE OF WORK ON
THIS PROJECT. EXCEPTING FOR LIABILITY ARISING FROM THE
SOLE NEGLIGENCE OF THE OWNER OR ENGINEER.
NOTICE TO CONTRACTOR
CONTRACTOR SHALL VERIFY ALL CONDITIONS AND
DIMENSIONS AND SHALL REPORT DISCREPANCIES TO THE
ENGINEER PRIOR TO THE COMMENCEMENT OF WORK.
STRUCTURES:
ALL UNDERGROUND UTILITIES OR STRUCTURE, REPORTED
OR FOUND ON PUBLIC RECORDS, ARE INDICATED WITH THEIR
APPROXIMATE LOCATION AND EXTENT. THE OWNER BY
ACCEPTING THESE PLANS OR PROCEEDING WITH THE
IMPROVEMENTS HEREON, AGREES TO ASSUME LIABILITY AND
HOLD THE ENGINEER HARMLESS FOR ANY DAMAGES
RESULTING FROM THE EXISTENCE OF UNDERGROUND
UTILITIES OR STRUCTURES NOT REPORTED OR INDICATED
ON PUBLIC RECORDS, OR THOSE CONSTRUCTED AT
VARIANCE WITH REPORTED OF RECORD LOCATIONS. THE
CONTRACTOR IS REQUIRED TO TAKE DUE PRECAUTIONARY
MEASURES TO SHALL BE THE CONTRACTOR'S
RESPONSIBILITY TO NOTIFY THE OWNERS OF ALL UTILITIES
STRUCTURES CONCERNED BEFORE STARTING WORK.
HOLD HARMLESS
OF RECORD
I HEREBY DECLARE THAT THE DESIGN OF THE
IMPROVEMENTS SHOWN ON THESE PLANS COMPLIES WITH
ALL PROFESSIONAL ENGINEERING STANDARDS AND
PRACTICES. AS THE ENGINEER OF RECORD FOR THE PLANS, I
ASSUME FULL RESPONSIBILITY FOR THE DESIGN OF THE
IMPROVEMENTS. WITH RESPECT TO THE PLAN CHECK
PERFORMED BY THE CITY OF CORONA, I UNDERSTAND AND
ACKNOWLEDGE THE FOLLOWING: (1) THE PLAN CHECK IA A
REVIEW FOR THE LIMITED PURPOSE OF ENSURING THE
PLANS COMPLY WITH THE CITY'S STANDARDS, PROCEDURES,
POLICIES, AND ORDINANCES, (2) THE PLAN CHECK IS NOT A
DETERMINATION OF THE TECHNICAL ADEQUACY OF THE
DESIGN OF THE IMPROVEMENTS, AND (3) THE PLAN CHECK
DOES NOT RELIEVE ME OF MY LEGAL AND PROFESSIONAL
RESPONSIBILITY FOR THE DESIGN OF THE IMPROVEMENTS.
AS THE ENGINEER OF RECORD, I AGREE TO DEFEND,
INDEMNIFY, AND HOLD HARMLESS THE CITY, ITS ELECTED
OFFICIALS, EMPLOYEES, AND AGENTS FROM ANY AND ALL
ACTUAL OR ALLEGED CLAIMS, DEMANDS, CAUSES OF ACTION,
LIABILITY, LOSS, DAMAGE, OR INJURY TO PROPERLY OR
PERSONS,INCLUDING WRONGFUL DEATH, WHETHER IMPOSED
BY A COURT OF LAW OR BY ADMINISTRATIVE ACTION OF ANY
FEDERAL, STATE, OR LOCAL GOVERNMENTAL AGENCY,
ARISING OUT OF OR INCIDENT TO ANY NEGLIGENT ACTS,
OMISSIONS, OR ERRORS BY THE ENGINEER OF RECORD, ITS
EMPLOYEES, CONSULTANTS, OR AGENTS.
EXISTING UNDERGROUND
DECLARATION OF ENGINEER
SIGNATURE OF ENGINEER OF RECORD DATE
PRINT NAME LICENSED NUMBER
CITY OF CORONA
TITLE SHEET
R
R
R
R 100+00 101+00
102+00
103+00 104+00 105+00 106+00
-3.27%
0.00%-2.27% JOIN/MATCH EX. STA = 104+43.68 ELEV = (627.90') -5.90% 0.25% 0.00% JOIN/MATCH EX. STA = 101+33.00 ELEV = (625.77') GRADE BREAK STA = 103+33.00 ELEV = 628.97' 100.00' VC
PVI STA:101+83.00
PVI ELEV:625.90
100.00' VC
PVI STA:102+83.00
PVI ELEV:628.82
RADIO ROAD
QUARRY STREET
www.jmdiaz.com
(626) 820-1136 Fax
(626) 820-1137 Tel
City of Industry, CA 91748
18645 East Gale Avenue, Suite 212 DWG#:
624
628
632
RADIO ROAD STA. 105+36.00
SAMPSON AVENUE STA. 10+00.00
RADIO ROAD STA. 102+18.93
QUARRY STREET STA. 10+00.00 STA 102+60.23 RAD. PT. 2.5'LT STA 103+62.71 1.5'LT STA 104+12.03 1.5'LT STA 103+40.28 DWY ℄ TYPE B X=4', W=20', Y=5.7' STA 104+33.16 DWY ℄ TYPE B X=4', W=13', Y=5.5' STA 104+98.22 DWY ℄ TYPE C W=19.5', Y=4.5' STA 104+96.94 DWY ℄ TYPE B X=4', W=15', Y=3'
PROFILE
PLAN
STA 104+41.73
RAD. PT. 1.5'LT
CONSTRUCTION NOTES:
SAMPSON AVENUE
CITY OF CORONA
STREET IMPROVEMENT PLAN
RADIO ROAD
(0.44%)
(-2.11%)
(-1.79%)
EXISTING SURFACE
@ ST. CENTERLINE
PROPOSED FS
@ ST. CENTERLINE
PROPOSED MEDIAN BNSF SIDING TRACK STA 103+73.20 ELEV. = (628.93') FS BNSF MAINLINE TRACK STA 103+87.51 ELEV. = (629.20') FS BNSF MAINLINE TRACK STA 104+01.53 ELEV. = (629.07') FS
EXISTING SURFACE
@ ST. CENTERLINE STA 102+60.23 RAD. PT. 2.5'LT 628.57 TC, 628.05 FS STA 103+62.71, 1.5'LT629.54 TC, 629.04 FS
PROPOSED FS
@ ST. CENTERLINE
PROPOSED MEDIAN GRADE BREAK STA = 104+11.53 ELEV = 628.95' (1.58%)
ARLINGTON
CHANNEL /GRADE BREAK
102+00 103+00 104+00 105+00 106+00 EVC/ BVC, STA 102+33.00 ELEV = 627.36' FS101+50 102+50 624
628
632
103+50 104+50 105+50 JOIN/MATCH EX. STA=101+33.00
(-0.35%) /BVC /EVC
DETAIL A
NOT TO SCALE
106+00
RADIO ROAD
SAMPSON AVENUE
www.jmdiaz.com
(626) 820-1136 Fax
(626) 820-1137 Tel
City of Industry, CA 91748
18645 East Gale Avenue, Suite 212 DWG#:
JOIN/MATCH EX.
STA 99+42.89
(625.49) TC, (624.60) FL
(625.00) LIP
JOIN/MATCH EX.
STA 106+01.35
(624.54) TC, (623.93) FL
(624.06) LIP
STA 99+63.44
627.34 TC, 626.66 FS
STA 104+84.34
626.70 TC, 626.20 FS
STA 99+52.82
625.14 TC, 624.51 FL
624.68 LIP
STA 99+60.50
624.50 FL
STA 99+63.83
624.42 FL
STA 99+69.53
624.91 TC, 624.24 FL
624.41 LIP
STA 99+73.68
626.99 TC, 626.49 FS
(625.19)
(625.35)
(624.99)
(625.12)
626.58 FS
627.06
627.14
626.82
(624.60) BW
(625.65) BW
627.22
CONSTRUCTION NOTES:
625.31
624.68
624.60
(627.26)
JOIN/MATCH EX.
STA 98+91.54
(627.01) TC, (626.48) FL
627.14
CITY OF CORONA
STREET IMPROVEMENT PLAN
RADIO ROAD
(627.21) ECR
STA 105+87.04
624.57 TC, 623.90 FL
624.11 LIP
BCR
STA 99+49.44
625.25 TC, 624.55 FL
624.94 LIP
R
R
R
R
R
R
98+00
99+00
100+00
101+00
101+00
102+00
103+00
104+00
105+00
106+00
R
R
RADIO ROAD
(POSTED SPEED: 35 MPH)
SAMPSON AVENUE
QUARRY STREET
SIGN LEGEND:
3 TRACKS
ARLINGTON CHANNEL
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(626) 820-1137 Tel
City of Industry, CA 91748
18645 East Gale Avenue, Suite 212 DWG#: CITY OF CORONA
SIGNING AND STRIPING PLAN
RADIO ROAD
DETAIL C
DETAIL B NOTES:
DETAIL B
MEDIAN NOSE
NOT TO SCALE
R
100+00
R
101+00
103+00
104+00
105+00
106+00
RADIO ROAD
SAMPSON AVENUE
ARLINGTON CHANNEL
www.jmdiaz.com
(626) 820-1136 Fax
(626) 820-1137 Tel
City of Industry, CA 91748
18645 East Gale Avenue, Suite 212 DWG#:
SIGN LEGEND:
CITY OF CORONA
GRADE CROSSING PLAN
RADIO ROAD
3 TRACKS
LEGEND
COMPACTED DECOMPOSED
GRANITE
CONCRETE
ASPHALT PAVEMENT
YOSEMITE COBBLE
MEDIAN ISLAND
Contract Number: BF-20551114
19 of 58
Exhibit A-1
Contract Number: BF-20551114
20 of 58
EASEMENT AGREEMENT
FOR _____________________________
(C&M Agreement)
THIS EASEMENT AGREEMENT FOR _________________ ("Easement Agreement") is made and entered into as of the _______ day of _____________________ 20__ ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and __________________________, a _______________________ ("Grantee").
A. Grantor owns or controls certain real property situated at or near the vicinity of _______________________, County of _____________, State of _________, at Mile Post __________, [Project # ___________], 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 and in the C&M Agreement 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.
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 Easement Agreement Form 704CM; Rev. 03/23/2019
Contract Number: BF-20551114
21 of 58
any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"). Grantee may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (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
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THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
GRANTEE ACCEPTS ALL RIGHTS GRANTED
UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT
ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee’s sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner’s written approval prior to so affecting the Other Improvements. Grantee must mark 22 Easement Agreement Form 704CM; Rev. 03/23/2019
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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 quasigovernmental 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 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 4 Easement Agreement Form 704CM; Rev. 03/23/2019
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investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the abovestated 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.
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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 (b) appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion;
(c) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (d) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and
(e) 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, 6 Easement Agreement Form 704CM; Rev. 03/23/2019
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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 may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with a Notice of Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such notice.
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
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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 ____ 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 California without regard to conflicts of law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining 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 and the C&M Agreement, which is incorporated herein, 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. 8 Easement Agreement Form 704CM; Rev. 03/23/2019
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Section 15. Administrative Fee. Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Easement Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $___________ over and above the agreed upon acquisition price. Said fee shall be made payable to BNSF Railway Company by a separate check.
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:
_____________________________________,
a _____________________________________
By:
Name:
Title:
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EXHIBIT "A"
Premises
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EXHIBIT “B”
MEMORANDUM OF EASEMENT
THIS MEMORANDUM OF EASEMENT is hereby executed this ________ day of_________________, 201_, 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 __________________________________________, a ____________________("Grantee"), whose address for purposes of this instrument is _________________________________, 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 ________ County, _________ as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises');
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated _____________________________, 201_ (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.
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, Easement - Exhibit B Form 704CM; Rev. 03/23/2019
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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.
END OF PAGE – SIGNATURE PAGE FOLLOWS
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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 §
§
COUNTY OF TARRANT §
This instrument was acknowledged before me on the ______ day of _________________, 20__, by ______________________________ (name) as
___________________________________(title) of BNSF RAILWAY COMPANY, a Delaware corporation.
Notary Public
My appointment expires:
(Seal)
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GRANTEE:
_____________________________,
_____________________________
By:
Name:
Title:
STATE OF _______________ §
§
COUNTY OF _____________ §
This instrument was acknowledged before me on the ______ day of _______________________, 20__, by ___________________________________ (name) as ______________________________(title) of ___________________________________, a ________________________________________.
Notary Public
My appointment expires:
(Seal)
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EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1) General
A. The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of _______________________________________________________________________ _______________________________________________________________________ ______________________________________________________________________.
B. The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit “C1” 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 “C1”. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519.
C. The Contractor must plan, schedule, and conduct all work activities so as not to interfere with the movement of any trains on Railway Property.
D. The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway’s opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway’s Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway’s right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing:
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_______________________
_______________________
_______________________
_______________________
E. The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws 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.
F. The Contractor must notify (Agency) at (_____)_________________ and Railway's Manager Public Projects, telephone number (_____)_________________ at least thirty (30) calendar days before commencing any work on Railway Property. Contractor’s notification to Railway must refer to Railway's file ___________.
G. For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current “BNSF-UPRR Guidelines for Temporary Shoring” must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current “BNSF-UPRR Guidelines for Temporary Shoring”. All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans.
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H. Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 2) Contractor Safety Orientation
A. No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway’s Engineering Contractor Safety Orientation, found on the web site www.BNSFContractor.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway’s Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway’s Representative.
3) Railway Requirements
A. The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency.
B. The Contractor must notify the Railway's Division Engineer ________________________ at (_____)_________________ and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property.
C. The Contractor must abide by the following temporary clearances during construction:
15’-0” Horizontally from centerline of nearest track
21’-6” Vertically above top of rail
27'-0" Vertically above top of rail for electric wires carrying less than 750 volts 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
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D. Upon completion of construction, the following clearances shall be maintained:
25’ Horizontally from centerline of nearest track
23’ 6” Vertically above top of rail
E. Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the (Agency) and must not be undertaken until approved in writing by the Railway, and until the (Agency) has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval.
F. In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell-tales or protective devices will be borne by the Agency.
G. The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by (Agency) for approval before work is undertaken and this work must not be undertaken until approved by the Railway.
H. At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway.
The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor.
I. Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity.
Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue.
J. The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative.
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4) Contractor Roadway Worker on Track Safety Program and Safety Action Plan A. Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.BNSFContractor.com, which will be made available to Railway prior to commencement of any work on Railway Property.
During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site.
B. Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services for Railroad under this Agreement which are determined by Railroad in its sole discretion a) to be on Railroad’s property, or b) that require access to Railroad Critical Infrastructure, Railroad Critical Information Systems, Railroad’s Employees, Hazardous Materials on Railroad’s property or is being transported by or otherwise in the custody of Railroad, or Freight in Transit involving Railroad.
i) The required background screening shall at a minimum meet the rail industry background screening criteria defined by the e-RAILSAFE Program as outlined at www.eRailsafe.com, in addition to any other applicable regulatory requirements. ii) Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railroad’s designee. Contractor shall be subject to periodic audit to ensure compliance.
iii) Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e-RAILSAFE Program standards. Railroad shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may not be Contract Number: BF-20551114
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unreasonable, may pose a threat to the safety or security of Railroad's operations, assets or personnel.
iv) Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization.
5) Railway Flagger Services
A. The Contractor must give BNSF’s Scheduling Agent ([email protected]) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Scheduling Agent can make appropriate arrangements (i.e., obtain availability and cost estimate for three (3) approved vendors for selection). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Scheduling Agent ten (10) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements.
B. Unless determined otherwise by Railway’s Project Representative, Railway flagger will be required and furnished when Contractor’s work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions:
i) When, upon inspection by Railway’s Representative, other conditions warrant. ii) When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement.
iii) When work in any way interferes with the safe operation of trains at timetable speeds. iv) When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. v) Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable.
C. Flagging services will be performed by qualified Railway flaggers.
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i) Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative.
ii) Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.
iii) The cost of flagger services provided by the Railway will be borne by (Agency). The estimated cost for one (1) flagger is approximately between $1,600.00-$1,800.00 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, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF
PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO
CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH.
iv) The average train traffic on this route is ______ freight trains per 24-hour period at a timetable speed ______ MPH and ______ passenger trains at a timetable speed of ______ MPH.
6) Contractor General Safety Requirements
A. Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations.
B. Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s).
C. Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway’s Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop Contract Number: BF-20551114
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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.
D. When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of two employees must be present at all times.
E. Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied.
F. Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site.
G. For safety reasons, all persons are prohibited from having pocketknives, firearms or other deadly weapons in their possession while working on Railway's Property.
H. All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.BNSFContractor.com, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats; c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railway’s representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE – Should there be a discrepancy between the information contained on the web site and the information in this paragraph, the web site will govern.) I. THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE Contract Number: BF-20551114
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CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, 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 RAILWAY'S REPRESENTATIVE.
J. Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications)
K. Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations.
L. All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means.
7) Excavation
A. Before excavating, the Contractor must determine whether any underground pipelines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway’s Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF’s Field Engineering Representative. All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating.
B. The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of Contract Number: BF-20551114
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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.
C. All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel.
D. Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 8) Hazardous Waste, Substances and Material Reporting:
A. 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. 9) Personal Injury Reporting
A. The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway’s Project Representative no later than the close of shift on the date of the injury.
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type:
Passenger on train (C) Non-employee (N)
(i.e., emp of another railroad, or, non-BNSF emp
involved in vehicle accident, including company
vehicles) Contractor/safety
iti (F)
Contractor/non-safety sensitive (G)
Volunteer/safety sensitive
(H)
Volunteer/other non-safety sensitive (I)
Non-trespasser (D) - to include highway users involved in highway rail grade crossing accidents who did not go around or through gates
Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates
Non-trespasser (J) - Off railroad property
If train involved, Train ID:
________________________________
Transmit attached information to Accident/Incident Reporting Center by:
Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident[email protected] Officer Providing Information:
(Name) (Employee No.) (Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
Contract Number: BF-20551114
NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
Please complete this form and provide to the BNSF supervisor, who will input this information into the EHS Star system. For questions, call (817) 352-1267 or email [email protected].
Accident City/State: Date: Time:
County: Temperature: Weather:
(if non-BNSF location)
Name (Last/First/MI):
Age: Gender (if available):
Company:
eRailsafe Badge Number: Expiration Date:
BNSF Contractor Badge Number: Expiration Date:
Injury: _ Body Part:
(e.g., laceration) (e.g., hand)
Description of accident (including how accident occurred, potential cause, etc.):
Work activity in progress at time of accident:
Tools, machinery, or hazardous materials involved in accident:
Treatment:
First Aid Only
Required Medical Treatment
Other Medical Treatment:
Dr. Name: Date:
Dr. Street Address: City: State: Zip:
Hospital Name:
Hospital Street Address: City: State: Zip:
Diagnosis:
THIS REPORT IS PART OF BNSF’S ACCIDENT REPORT PURSUANT TO THE ACCIDENT REPORTS STATUTE AND, AS SUCH SHALL NOT “BE
ADMITTED AS EVIDENCE OR USED FOR ANY PURPOSE IN ANY SUIT OR ACTION FOR DAMAGES GROWING OUT OF ANY MATTER MENTIONED IN SAID REPORT….” 49 U.S.C. § 20903. See 49 C.F.R. § 225.7(b).
Contract Number: BF-20551114
EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File: ______________________________________
Agency Project: ______________________________________
Account Name, a/an State or Country of Formation Type of Organization (hereinafter called “Contractor”), has entered into an agreement (hereinafter called “Agreement”) dated _______________, Contractor with Agency for the performance of certain work in connection with the following project:___________________. Performance of such work will necessarily require Contractor to enter BNSF RAILWAY COMPANY (hereinafter called "Railway") right of way and property (hereinafter called "Railway Property"). The Agreement provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for Agency (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein.
If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Agreement, has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
A. Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property Contract Number: BF-20551114
belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway’s property or right-of-way. THE LIABILITY ASSUMED BY
CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT,
THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE,
EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY
CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF
RAILWAY.
B. 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.
C. 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.
D. 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.
Contract Number: BF-20551114
E. 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 Railway to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES
EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY’S ACTS OF NEGLIGENCE.
F. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement.
2) TERM
A. This Agreement is effective from the date of the Agreement until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. 3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage:
1. Commercial General Liability “CGL” Insurance
1. The policy will provide a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by the contractor. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and Contract Number: BF-20551114
include coverage for, but not limited to, the following:
1. Bodily Injury and Property Damage
2. Personal Injury and Advertising Injury
3. Fire legal liability
4. Products and completed operations
2. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
1. definition of “Insured Contract” will be amended to remove any exclusion or other limitation for any work being done within 50 feet of RAILWAY’s property.
2. Waiver of subrogation in favor of and acceptable to
RAILWAY; and
3. Additional insured endorsement in favor of and acceptable to RAILWAY and include coverage for ongoing operations and completed operations; and
4. Separation of insureds; and
5. The policy will be primary and non-contributing with respect to any insurance carried by RAILWAY.
3. It is agreed that the workers’ compensation and employers’ liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees.
4. 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.
2. Business Automobile Insurance
1. The insurance will provide minimum coverage with a combined Contract Number: BF-20551114
single limit of at least $1,000,000 per accident, and include coverage for, but not limited to the following:
1. Bodily injury and property damage
2. Any and all vehicles owned, used or hired
2. The policy will include the following endorsements or language, which will be indicated on or attached to the certificate of insurance:
1. Waiver of subrogation in favor of and acceptable to
RAILWAY;
2. Additional insured endorsement in favor of and acceptable to RAILWAY;
3. Separation of insureds;
4. The policy shall be primary and non-contributing with respect to any insurance carried by RAILWAY.
3. Workers Compensation and Employers Liability Insurance
1. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
1. Contractor’s statutory liability under the worker’s
compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway.
2. Employers’ Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee.
2. This policy shall also contain the following endorsements or Contract Number: BF-20551114
language, which shall be indicated on the certificate of insurance:
1. Waiver of subrogation in favor of and acceptable to Railway.
4. Railroad Protective Liability insurance
1. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the following:
1. Endorsed to include the Pollution Exclusion Amendment
2. Endorsed to include the Limited Seepage and Pollution Endorsement.
3. Endorsed to remove any exclusion for punitive damages.
4. No other endorsements restricting coverage may be added.
5. The original policy must be provided to the Railway prior to performing any work or services under this Agreement.
6. Definition of “Physical Damage to Property” shall be endorsed to read: “means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured’ care, custody, and control arising out of the acts or omissions of the contractor named on the
Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) in Railway’s Blanket Railroad Protective Liability Insurance Policy.
1. Other Requirements:
1. Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages.
2. Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of Contract Number: BF-20551114
subrogation against Railway for all claims and suits. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under Contractor’s care, custody or control.
3. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.
4. Contractor is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, any self-insured retention or other financial responsibility for claims shall be covered directly by Contractor in lieu of insurance. Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor’s insurance will be covered as if Contractor elected not to include a deductible, self-insured retention or other financial responsibility for claims.
5. Prior to commencing services, Contractor shall furnish to Railway an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. The certificate should be directed to the following address:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: [email protected]
www.certfocus.com
6. Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration.
7. Any insurance policy shall be written by a reputable insurance company acceptable to Railway or with a current Best’s Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided.
Contract Number: BF-20551114
8. If coverage is purchased on a “claims made” basis, Contractor hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation or termination of this Agreement.
Annually Contractor agrees to provide evidence of such coverage as required hereunder.
9. 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.
10. Not more frequently than once every five years, Railway may reasonably modify the required insurance coverage to reflect thencurrent risk management practices in the railroad industry and underwriting practices in the insurance industry.
11. If any portion of the operation is to be subcontracted by Contractor, Contractor shall require that the subcontractor shall provide and maintain insurance coverage(s) as set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Railway to the same extent and under the same terms and conditions as Contractor is required to release, defend and indemnify Railway herein.
12. Failure to provide evidence as required by this section shall entitle, but not require, Railway to terminate this Agreement immediately.
Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Contractor's obligations hereunder.
13. The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage.
14. In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will make available any required policy covering such claim or lawsuit.
Contract Number: BF-20551114
15. These insurance provisions are intended to be a separate and distinct obligation on the part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work covered hereunder is performed.
16. For purposes of this section, Railway shall mean “Burlington Northern Santa Fe LLC”, “BNSF Railway Company” and the
subsidiaries, successors, assigns and affiliates of each. 4) SALES AND OTHER TAXES
A. In the event applicable sales taxes of a state or political subdivision of a state of the United States are levied or assessed in connection with and directly related to any amounts invoiced by Contractor to Railway (“Sales Taxes”), Railway shall be responsible for paying only the Sales Taxes that Contractor separately states on the invoice or other billing documents provided to Railway; provided, however, that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor shall be responsible for all sales, use, excise, consumption, services and other taxes which may accrue on all services, materials, equipment, supplies or fixtures that Contractor and its subcontractors use or consume in the performance of this Agreement, (iii) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails to separately state on the invoice or other billing documents provided to Railway or fails to collect at the time of payment by Railway of invoiced amounts (except where Railway claims a Sales Tax exemption), and (iv) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) if Contractor fails to issue separate invoices for each state in which Contractor delivers goods, provides services or, if applicable, transfers intangible rights to Railway.
B. Upon request, Contractor shall provide Railway satisfactory evidence that all taxes (together with any penalties, fines or interest thereon) that Contractor is responsible to pay under this Agreement have been paid. If a written claim is made against Contractor for Sales Taxes with respect to which Railway may be liable for under this Agreement, Contractor shall promptly notify Railway of such claim and provide Railway copies of all correspondence received from the taxing Contract Number: BF-20551114
authority. Railway shall have the right to contest, protest, or claim a refund, in Railway’s own name, any Sales Taxes paid by Railway to Contractor or for which Railway might otherwise be responsible for under this Agreement; provided, however, that if Railway is not permitted by law to contest any such Sales Tax in its own name, Contractor shall, if requested by Railway at Railway’s sole cost and expense, contest in Contractor’s own name the validity, applicability or amount of such Sales Tax and allow Railway to control and conduct such contest.
C. Railway retains the right to withhold from payments made under this Agreement amounts required to be withheld under tax laws of any jurisdiction. If Contractor is claiming a withholding exemption or a reduction in the withholding rate of any jurisdiction on any payments under this Agreement, before any payments are made (and in each succeeding period or year as required by law), Contractor agrees to furnish to Railway a properly completed exemption form prescribed by such jurisdiction. Contractor shall be responsible for any taxes, interest or penalties assessed against Railway with respect to withholding taxes that Railway does not withhold from payments to Contractor.
5) EXHIBIT “C” CONTRACTOR REQUIREMENTS
A. The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Agreement, and the Contractor Requirements set forth on Exhibit “C” attached to the Agreement and this Agreement, including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Contractor shall execute a Temporary Construction Crossing Agreement or Private Crossing Agreement (https://www.bnsf.com/in-the-community/public-projects/public-projects.page), for any temporary crossing requested to aid in the construction of this Project, if approved by BNSF.
6) TRAIN DELAY
A. Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual Contract Number: BF-20551114
loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay.
B. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.
C. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments.
Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors.
D. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. The rate then in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of train delay pursuant to this agreement.
E. Contractor and its subcontractors must give Railway’s representative 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.
F. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains.
SIGNATURE PAGE FOLLOWS
Contract Number: BF-20551114
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized officer the day and year first above written.
BNSF RAILWAY COMPANY Contractor
Signature: Signature:
Printed Name: Printed Name:
Title: _________________ Title:
Date: Date:
Accepted and effective this _____________________.
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E-mail:
Contract Number: BF-20551114
EXHIBIT D
BNSF COST ESTIMATE
CITY OF CORONA
Radio Road
LS 7602 - MP 32.770
San Bernardino Subdivision
DOT # 026521R
Administration $ 50,000
Inspection/Coordination $ 100,000
Track Work $ 85,000
Signal $ 1,000,000
Total $ 1,235,000
Contingency @ 20% $ 247,000
TOTAL $ 1,482,000
Note: This is an estimate only. BNSF will bill on an actual cost basis.