22-146 BNSF Grade Crossing Signal and Surface Installation Agreement

Form 0118 Rev. 09/21/06

GRADE CROSSING IMPROVEMENTS AGREEMENT

BNSF File No. BF10016546
Tulare Street
U.S. D.O.T. No. 028549N
Railroad Line Segment 7200
Railroad Milepost 998.1
Stockton Subdivision

This Agreement (“Agreement”), is executed to be effective as of this ______ day of _____________, 2021 (“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and the CITY OF FRESNO, 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 Fresno, State of California;

WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project to improve the existing Tulare Street at-grade crossing, located at BNSF Line Segment 7200 and Milepost 998.1, and designated by D.O.T. No. 028549N (the “Crossing”), by reconstructing portions of the public way including the installation of a new sidewalk crossing surface and installing new railroad crossing signals and activation equipment within the existing roadway across the BNSF right-of-way as indicated on the Exhibit A, attached hereto and incorporated herein; and

WHEREAS, as part of the new activation equipment t he Agency desires to preempt the highway traffic control signals with the grade crossing warning devices shown on Exhibit A; and WHEREAS, “BNSF” agrees to allow the Agency to pree mpt the highway traffic control signals with the grade crossing warning devices indicated on Exhibit A.

WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefit from the installation of advance warning signs, pavement marking stop bars or crossing signal equipment (hereinafter collectively called, “Crossing Signal Equipment”); and

WHEREAS, the Agency also desires BNSF to install an extended crossing surfac e for the new sidewalk with a new concrete and rubber crossing surface (“Crossing Surface”);

WHEREAS, the Agency is paying for the acquisition and installation of Crossing Signal Equipment and the new Crossing Surface at the Crossing

WHEREAS, the BNSF agrees to purchase and install, at AGENCY’S sole expense, the Crossing Signal Equipment and the new Crossing Surface described in the scope of work herein, and upon the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the mutual covenants and agr eements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I – SCOPE OF WORK

1. The term "Project" as used herein includes any and all work related to the reconstruction of the Crossing by Agency and installation of crossing signals, activation equipment, and a new crossing surfaces Form 0118 Rev. 09/21/06
- 2 -
as indicated at the Crossing by BNSF, more particularly described on the Exhibit A, including, but not limited to, any and all changes to telephone, telegraph, sign al and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation.

ARTICLE II – BNSF OBLIGATIONS

In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows:

1. In consideration of the faithful performance of the Agency’s covenants contained herein, BNSF hereby grants to Agency, its succ essors and assigns, upon and subject to the terms and conditions set forth in this Agreement, permission and license to enter upon and use the portion of BNSF’s right-of-way as is necessary to reconstruct, widen 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:

(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 reloca te upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate;

This right is given by BNSF without warranty of title of any kind, expressed or implied, and no covenant on warranty of title shall be implied from the use of any word or words herein contained. 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.

2. BNSF will furnish all labor, materials, t ools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhi bit 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 unreason ably withheld. Construction of the Project must include the following railroad work by BNSF:

(a) Procurement of materials, equipment an d supplies necessary for the railroad work;

(b) Preliminary engineering, design, and contract preparation;

(c) Furnishing of flagging services during construc tion 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 one eight-foot concrete crossing surface for the one track complete with new rail, ties, ballast, fasteners, along with appropri ate surfacing, to carr y the improved roadway and sidewalks;

Form 0118 Rev. 09/21/06
- 3 -
(f) Installation of Crossing Signal Equipment as shown on Exhibit A;

(g) Provide an interface box, with contact termi nals, mounted on side of Crossing Signal Control House;

(h) Make such changes in the alignment, location and elevation of its telephone, telegraph, signal and/or wire lines and appurtenances along, ov er 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 Arti cle 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 BN SF deems is 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 expense s, including self-insurance expenses, when such expenses cover the cost of Employ er's Liability (including, without lim itation, 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 th e 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 deta iled 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 term s. 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 delin quent sums and other charges as of the end of the month and will be reduced by amounts in dispute an d 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 th is Agreement shall be deemed to have accrued one hundred and eighty (180) days of the date of the final invoice.

7. Notwithstanding anything to the contrary in th is Agreement, BNSF’s review, approval, and/or other participation in the Project or any element thereof, including the Project design, plan review, and all work performed by BNSF or its contractors hereunder, is expressly limited, and intended and understood by the parties to be in furtherance of BNSF’s railroad purposes, and not in furtherance of Agency’s purposes in undertaking the Project. BNSF’s work is provided in consideration of the subjective standards of BNSF for its railroad purposes only, and shall in no way be construed or deemed to be a condition or direction to Agency, or an opinion or approval that the plans and specifications or any work intended or completed on the Project is appropriate for any other purpose includi ng highway purposes, is structurally sound, or that such plans, specifications, or intended or complet ed work meet applicable standards, regulations, laws, statutes, local ordinances, and/or building codes. No benefits to Agency or any third party are provided, intended or implied herein. Agency shall at all times be solely responsible for the adequacy and compliance of all design elements of the Project for highway and other public purposes, including but not limited to the calculation and verification of operation of the pr eemption timing requested by Agency for the crossing signal interconnection, and shall waive and release BNSF for any and all claims which may or could result from any work performed by BNSF in connection with the Project.

Form 0118 Rev. 09/21/06
- 4 -

ARTICLE III – AGENCY OBLIGATIONS

In consideration of the covenants of BNSF set fort h herein and the faithful performance thereof, Agency agrees as follows:

1. Agency must furnish to BNSF plans and specif ications 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 be submitted to BNSF for the development of railroad cost estimates.

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 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 (“Agency’s Work”) provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency’s Work. The principal elements of Agency’s Work are as follows:

(a) Design and Reconstruction/Construction of Tulare Street;

(b) Installation of a pavement marking stop bar in accordance with the Manual on Uniform Traffic Control Devices (hereinafter called, “MUTCD”);

(d) Perform all necessary grading and paving, in cluding backfill of excavations and restoration of disturbed vegetation on BNSF’s right-of-way;

(e) Provide suitable drainage, both temporary and permanent;

(f) Provide all barricades, lights, flagmen or tr affic 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 Tra ck crossing surfac e(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 six (6) to twelve (12) inch wide section of asphalt between roadway concrete headers (and sidewalks) and the new concrete crossing surfaces;

(i) Job site cleanup including removal of all construction materials, concrete debris, surplus soil, refuse, contaminated soils, asphalt debr is, litter and other waste materials to the satisfaction of BNSF;

(j) Provide BNSF in writing with the total time required from start of preempt cycle of highway traffic control signals until arrival of the train at the highway-rail crossing;

Form 0118 Rev. 09/21/06
- 5 -
(k) Connect the highway traffic control signals to the contact terminals in the interface box including all necessary cable and conduit;

(l) Install the new highway traffic control signal s and confirm correct operation of the required preemption cycle.

6. The Agency will approve the locati on 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 P ublic Projects written notice to proceed (“ Notice to Proceed”) with the railroad portion of the work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from Agency.

9. The Agency’s Work must be performed by Agen cy 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 contractors on behalf of the Agency, Agency shall r equire contractors to execute the t hen-current version of the right of entry agreement provided at 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 “contractororientation.com”; notify BNSF when, pursuant to the requirements of Exhibit C, a flagger is required to be present; procure, and have approved by BNSF’s Risk Management Department, Railroad Protective Liability insurance.

11. Agency must require its contra ctor(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 co ntractor(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’s Engineering Representative (____________) and/or the telecommunications companies and notifying them of any work that may damag e these Lines or facilities and/or interfere with their service. The c ontractor must also mark all Lines shown on the plans or marked in the field in order to ve rify 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 cons truction at no cost to the Agency or BNSF until these items are completed.

(c) In addition to the liability terms contained elsewhere in this Agreement, 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 Form 0118 Rev. 09/21/06
- 6 -
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 subcont ractors, agents and/or employ ees, 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 compan y, and/or its contractor, agents and/or employees, on BNSF’s property or within BNSF’s right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies). 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.
(d) The Contractor will be res ponsible 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.

13. Agency must require compliance with the obligat ions 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 provisio ns set forth in Article III; (ii) the provisions set forth in Article IV; and (iii) the provisions set forth in Exhibit C and Exhi bit 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 w ill 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 must have (i) executed and delivered to BNSF a letter agreement in the form of Exhibit C-1, and (ii) delivered to and secured BNSF's approval of the required insurance; and

(d) If it is in Agency’s best interest, Agency ma y 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 prosec ute with diligence the work specified in and by the terms of said contract, Agency may term inate 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 obligatio ns 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.

(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 Form 0118 Rev. 09/21/06
- 7 -
resulting from a change in work windows s hall 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 su ch completion date. Additionally, Agency must notify BNSF's Manager Public Projects, in writing, of t he 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 HARM LESS BNSF, ITS AFFILIATED COMPANIES,

PARTNERS, SUCCESSORS, ASSIGNS, LEGAL R EPRESENTATIVES, 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 (INCLUDI NG, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’ FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING,

WITHOUT LIMITATION, THE EMPLOYEES OF THE PA RTIES 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 OBLI GATION 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 GRANTED TO AGENCY

PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO AGENCY FOR THE CROSSING, (VI) AGENCY’S OCCUPATION AND USE OF BNSF’S PROPERTY OR

RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE

STRUCTURE BY AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS,

AGENTS, INVITEES, EMPLOYEES OR CONTRACTOR S 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 premises, the parties hereto mutually agree to the following:

1. All work contemplated in this Agreemen t 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 constructi on 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 accordan ce with the Exhibit A and the detailed plans and specifications approved by BNSF.

3. Agency must require its co ntractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to in clement 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 constructi on schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such Form 0118 Rev. 09/21/06
- 8 -
reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.

4. 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 which is hazardous to BNSF property, facilit ies or the safe and expeditious movement of railroad traffic; or (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the si tuation to the satisfaction of BNSF’s Division Engineer or until additional insurance has been delivered to and accepted by BNSF. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing:

[DRAFTER’S NOTE: Insert contact information for the Agency’s Project Representative] __Bill Herr________________
__Assistant Director_____________
__1721 Van Ness Ave___________
__Fresno CA 93721_____________
__559-621-5614________________

5. Agency must supervise and in spect the operations of all Agency contractors to assure compliance with the plans and specifications approved by BNSF , the terms of this Agreement and all safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will not proceed until Agency corrects the situation to BNSF’s reasonabl e satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Bill Herr for appropriate corrective action.

6. Pursuant to this section and Article II, Secti on 6 herein, Agency must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys’ fees pursuant to California Civil Code Section 1717, as well as other liti gation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all ac tual attorneys’ fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding.

7. Reserved.

8. The construction of the Project will not co mmence until Agency gives BNSF's Manager Public Projects thirty (30) days prio r written notice of such commencement. The commencement notice will reference BNSF's file number BF10016546 and D.O.T. Crossing No. 028549N 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 fo r repairs, maintenance, future construction or reconstruction of the roadway including sidewalks.

(b) Agency will maintain the elevation of the roadway approaches to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a di stance measured thirty (30) feet from the nearest rail.

Form 0118 Rev. 09/21/06
- 9 -

(c) 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.

(d) Agency will do nothing and permit nothing to be done in the maintenance of the the roadway, which will interfere with or endanger facilities of BNSF.

(e) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.

(f) BNSF will, at its sole cost and expens e, operate and maintain the Crossing Signal Equipment, Crossing Signal Control House, and the new Crossing Surface, from end-of- tie to end-of-tie, in proper condition.

(g) 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.

(h) If a railway or highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment, Crossing Signal 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.

(i) If any of the Crossing Signal Equipment is par tially or wholly destroyed, then such repair and/or replacement costs must be distributed among the parties as follows:

a) In the event the BNSF’s sole negligence destroys or damages the Crossing Signal Equipment and/or the Crossing Signal House, BNSF must, at its sole cost and expense, replace or repair such Crossing Signal Equipment and/or Crossing Signal House.
b) In the event the Crossing Signal E quipment 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 House.

(j) If the Crossing Signal Equipment and/or Crossing Signal House installed hereunder cannot, through age, be maintained, or by virtue of its obsolescence, requires replacement, the cost of installation of the new crossi ng signal equipment and/or new crossing signal house will be negotiated by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and app licable Agency at the time of such replacement is warranted.

(k) BNSF will operate and mainta in, at its expense, the necessary relays and other materials required to preempt the highway traffic contro l signals with the grade crossing warning devices, up to the contact terminals in the interface box.

(l) Agency will own, operate and maintain, at it s expense, the highway traffic control signals up to and including connection to the contact te rminals in the interface box including all necessary cable and conduit.

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 t he construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as Form 0118 Rev. 09/21/06
- 10 -
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 par ties 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 Feder al Highway Administration, for a period of one (1) year 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. Reserved.

14. Neither termination nor expiration of this Agreement will releas e 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 possibl e, each provision of this Agreem ent will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.

16. This Agreement (including exhibits and other do cuments, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein. Nothing in this Agreement is intended to or shall release any liability or obligation under 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 Railway Company: BNSF's Manager Public Projects
Dionisio Martinez
740 East Carnegie Dr
San Bernardino, VA 92408
Email: [email protected]

Agency: __________________________
__________________________
__________________________

[Signature page follows]

Form 0118 Rev. 09/21/06
- 11 -

IN WITNESS WHEREOF, the parti es 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:

P r i n t e d N a m e :

T i t l e :

WITNESS:

AGENCY

C I T Y O F F R E S N O

B y :

P r i n t e d N a m e :

Title: Public Works Director

B y :

P r i n t e d N a m e :

Title: City Attorney

B y :

P r i n t e d N a m e :

Title: City Clerk

WITNESS:

Form 0118 Rev. 09/21/06
Exhibit A

Form 0118 Rev. 09/21/06
- 13 -

Form 0118 Rev. 09/21/06
- 14 -

Form 0118 Rev. 09/21/06
- 15 -

Form 0118 Rev. 09/21/06
- 16 -

1 Exhibit A-1

[Insert cross-hatched drawing of the Temporary Construction License and Structure]

[BARTLETT AND WEST TO PREPARE EXHIBIT A-1]

Form 0118 Rev. 09/21/06
Exhibit C

CONTRACTOR REQUIREMENTS

1.01 General:

 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as " Railway" where work is over or under on or adjace nt to Railway property and/or right-of-way, hereafter referred to as "Railway Pr operty", during the construction of ________________________________________________________________________________ __________________________________________________________________.

 1.01.02 The Contractor must execute and deliver to t he Railway duplicate copies of the Exhibit “C- 1” Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit “C-1”. Questions regarding procurement of the Railroad Protective Liability In surance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519.

 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property.

 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. 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 or lost profits. In the event that Railway desi res to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing:

_______________________
_______________________
_______________________
_______________________

 1.01.05 The Contractor is responsible for determi ning and complying with all Federal, State and Local Governmental laws and regulations, includi ng, but not limited to environmental laws and regulations (including but not limited to the Reso urce 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

Form 0118 Rev. 09/21/06
and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement.

 1.01.06 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 ___________.

 1.01.07 For any bridge demolition and/or falsework ab ove 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 fi ve 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 calculat ions 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. A ll 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 Americ an Railway Engineering Association) Coopers E-80 live loading standard. All drawings an d calculations must be stamped by a registered professional engineer licensed to practice in the stat e 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 relie ved of responsibility for results obtained by the implementation of said approved plans.

 1.01.08 Subject to the movement of Railway's trains, Railw ay will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.

1.02 Contractor Safety Orientation

 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway’s Engineering Contractor Safety Orientation, found on the web site www.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.

1.03 Railway Requirements

 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and othe r foreign objects and materials resulting from his operations. Any damage to railway facilities resultin g 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.

Form 0118 Rev. 09/21/06
 1.03.02 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.

 1.03.03 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 elec tric wires carrying 15,000 volts to 20,000 volts  34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts

 1.03.04 Upon completion of construction, the following clearances shall be maintained: [Note to Drafter: The vertical clearance should mirror the final negotiated design clearance]  25’ Horizontally from centerline of nearest track
 23’ 6” Vertically above top of rail

 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the (Agency) and must not be undertaken until approved in writing by the Railway, and until the (Agency) has obtained any necessary aut horization from the State Regulatory Authority for the infringement. No ex tra compensation will be allowed in the event the Contractor's work is delayed pending Railway ap proval, and/or the State Regulatory Authority's approval.

 1.03.06 In the case of impaired vertical clearance abov e top of rail, Railway will have the option of installing tell-tales or other prot ective devices Railway deems neces sary for protecti on of Railway operations. The cost of tell-tales or protective devices will be borne by the Agency.

 1.03.07 The details of construction affecting the Rail way'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.

 1.03.08 At other than public road crossings, the Co ntractor 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 Ag reement" 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 Co ntractor. The temporary crossing for use of the Contractor will be constructed and, at the completi on of the project, removed at the expense of the Contractor.

 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452 , of any discharge, release or spills in excess of a repor table quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue.

 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Cont ractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative.

1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan:

Form 0118 Rev. 09/21/06

 1.04.01 Each Contractor that will per form 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 Orientat ion. This Program must provide Roadway Worker protection/on track training for all employees of t he 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.

[Note to Drafter: when appropriate insert e-RailSafe language as follows:
 1.04.02 Contractor shall have a background investi gation 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.

The required background screening shall at a mi nimum meet the rail industry background screening criteria defined by the e-RAILSAFE Program as outlined at www.eVerifile.com, in addition to any other applicable regulatory requirements.

Contractor shall obtain written consent from all it s 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.

Contractor subject to the e-RAILSAFE Program he reunder 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 empl oyees, subcontractors or agents who do not display the authorized identification badge issued by a ba ckground screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railroad's operations, assets or personnel.

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.

1.05 Railway Flagger Services:

 1.05.01 The Contractor must give Railway’s Roadmaster (telephone ________) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger’s position). If flagging services are scheduled in advance by the Contractor and it is su bsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements.

Form 0118 Rev. 09/21/06

 1.05.02 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:

 1.05.02a When, upon inspection by Railway’s Representative, other conditions warrant.

 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement.

 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.

 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, materi al, equipment or blasting in the vicinity.

 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable.

 1.05.03 Flagging services will be performed by qualified Railway flaggers.

 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Ra ilway Property and operations, if deemed necessary by the Railways Representative.

 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.

 1.05.03c The cost of flagger services provided by the Railway will be borne by (Agency). The estimated cost for one (1) flagger is approximately between $800.00- $1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT

THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE

USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH.

 1.05.03d The average train traffic on this route is ______ freight trains per 24-hour period at a timetable speed ______ MPH and ______ passenger trains at a timetable speed of ______ MPH.

1.06 Contractor General Safety Requirements

 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25

Form 0118 Rev. 09/21/06
feet of any track must be in compliance with FRA Roadway Worker Protection Regulations.

 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes.

If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s).

 1.06.03 Workers must not work within 25 feet of t he 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 communica tion to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track.

 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified.

A minimum of two employees must be present at all times.

 1.06.05 Any employees, agents or invitees of Contractor or its subc ontractors 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 t he custody of a represen tative of Contractor management. Future access to the Railway's Property by that employee will be denied.

 1.06.06 Any damage to Railway Property, or any haz ard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1( 800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site.

 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property.

 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.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 de fined 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.)

 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK.

MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET

OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS 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.

 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they

Form 0118 Rev. 09/21/06
must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movem ent. (See internet Engineering Contractor Safety Orientation program for more detailed specifications)

 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations.

 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be mainta ined. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means.

1.07 Excavation:

 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whet her 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.

 1.07.02 The Contractor must cease all work and not ify the Railway immediately before continuing excavation in the area if obstructions are encoun tered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions.

 1.07.03 All excavations must be conducted in complia nce with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel.

 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition t hat will ensure that Railw ay employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible.

1.08 Hazardous Waste, Substances and Material Reporting:

 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surf ace water, swamp, wetlands or waterways, while performing any work under this Agreement, Contract or 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.

Form 0118 Rev. 09/21/06

1.09 Personal Injury Reporting

 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contac t 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.

Form 0118 Rev. 09/21/06

NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION

(If injuries are in connection with rail equi pment accident/incident, high way rail grade crossing accident or automobile accide nt, 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 sensitive (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: [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

Form 0118 Rev. 09/21/06

NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION

INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.

1. Accident City/St: 2. Date: Time:

County: 3. Temperature: 4. Weather:
(if non BNSF location)

Mile Post / Line Segment:

5. Driver’s License No (and state) or other ID: SSN (required):

6. Name (last, first, mi):

7. Address: City: St: Zip:

8. Date of Birth: and/or Age: Gender:
(if available)

Phone Number: Employer:

9. Injury: 10. Body Part:
(i.e., Laceration, etc.) (i.e., Hand, etc.)

11. Description of Accident (To includ e location, action, result, etc.):

12. Treatment:

First Aid Only
Required Medical Treatment
Other Medical Treatment

13. Dr. Name: Date:

14. Dr. Address:

Street: City: St: Zip:

15. Hospital Name:

16. Hospital Address:

Street: City: St: Zip:

17. Diagnosis:

Form 0118 Rev. 09/21/06

EXHIBIT D

Form 0118 Rev. 09/21/06

Fresno City CouncilJanuary 27, 2022

Fresno City Council
January 27, 2022