Contract Number: BF- 20537997
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PRELIMINARY ENGINEERING SERVICES AGREEMENT
BNSF File No.: BF-20537997
Mile Post: 994.34
Line Segment: 7200
U.S. DOT Number
Bakersfield 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 FRESNO, a California municipal corporation (“Agency”).
RECITALS
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Fresno State of California; and
WHEREAS, Agency is constructing and installing a new pipeline and steel casing (the “Project”), located at or near BNSF’s railroad facilities; and
WHEREAS, Agency has stated its intention to proceed with reimbursing BNSF for all structures review of the new pipeline and casing being installed by the Agency (the “Work”); and
WHEREAS, BNSF has required Agency to subm it contractor submittals to BNSF for review and approval and to perform other Work (defined be low) during the construction phase of the Project with respect to BNSF’s railroad facilities located at or near the Project site to facilitate Agency’s evaluation of the feasibility of proceeding with the Project; and
WHEREAS, BNSF is agreeable to performing the Work, subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of th e mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
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1) Scope of Work
As used herein, the term “Work” includes all work performed by BNSF, its employees, contractors, consultants, or other agents (collectively, the “BNSF Parties”) pursuant to this Agreement, including, but not limited to: (a) performing preliminary engineering services; (b) preparing draft agreements incl uding legal review; (c) reviewing and/or providing comments on preliminary layouts or other designs, plans, and/or documents in connection with the Project; and (d) revi ewing all structure review related to the Work. Exhibit “A” details the plans and specifications of the Work.
2) Payment and Deposit for Work
Agency authorizes BNSF to proceed with the Work relating to the Project. Agency shall pay and reimburse BNSF for all actual costs and expenses that BNSF incurs in performing the Work, including without limitation: (a) labor and supplies; (b) direct and indirect labor and contractor charges including additives; (c ) BNSF’s additives and overhead, as such are in effect on the date BNSF prepares its final billing; and (d) all applicable taxes due, paid, or payable by BNSF on such products and services, including sales and use taxes, business and occupation taxes, and similar taxes (collectively, “Actual Costs”). BNSF’s estimated cost for Work on this Project is $53,106 (“Estimated Cost”). Any estimate provided by BNSF for the Work shall not be a limitation on the Work to be performed or the costs and expenses incurred, which Agency shall reimburse to BNSF in full.
During the Structures Review Process, BNSF will send AGENCY progressive invoices detailing the costs of the work performed by BNSF under this Agreement. AGENCY must reimburse BNSF for completed force-account work within thirty (30) days of the date of the invoice for such work. Upon comp letion of the Project, BNSF will send AGENCY a detailed invoice of final costs shown on Exhibit “B”. Pursuant to this section, AGENCY must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any un- posted payments received by the mon th’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
Contract Number: BF- 20537997
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this Agreement shall be deemed to have accrued one hundred and eighty (180) days of the date of the final invoice.
3) Scope and Limitations of Agreement
The parties acknowledge that entering into this Agreement does not of itself obligate either BNSF or Agency to participate in the construction of the Project. If Agency elects to proceed with the Project after the Work is performed, then BNSF and Agency agree to enter into negotiations for appropriate agreements regarding the construction of the Project and other related acti vities. Nothing in this Agreement — including BNSF’s performance of the Work — shall obligate BNSF to enter into any subsequent agreement or otherwise permit the Project except and subject to any terms and conditions that BNSF may subsequently approve in its sole discretion.
Notwithstanding anything to the contrary in this Agreement, BNSF’s review, approval, and/or other participation in the Project or any element thereof, including the Work performed by the BNSF Parties hereunder, are expressly limited to — and are intended and understood by the parties to be in furtherance of — BNSF’s railroad purposes, and are not in furtherance of Agency’s purposes in undertaking the Project.
All Work performed hereunder is intended for use in evaluating the impact of the Project on BNSF’s railroad and the costs to Agency associated therewith. BNSF is providing the Work in consideration of BNSF’s subjective standards for its railroad purposes only. Consequently, the Work shall in no way be construed or deemed to be BNSF’s recommendation, condition, or direction to Agency, nor shall the Work be construed or deemed to be BNSF’s opinion or approval that the plans and specifications or any work intended or completed on the Project (a) is appropriate for any other purpose including highway purposes; (b) is structurally sound; or (c) meets 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 th e Project for highway and other public purposes. AGENCY SHALL WAIVE ANY CLAIMS AGAINST BNSF FOR — AND SHALL RELEASE BNSF FROM — ANY AND ALL CLAIMS WHICH MAY OR
COULD RESULT FROM THE WORK PERFORMED HEREUNDER, AND IF
APPLICABLE TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY SHALL
INDEMNIFY BNSF FOR AND HOLD IT HARMLESS FROM AND AGAINST ANY SUCH CLAIMS.
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4) No Right of Entry
Nothing in this Agreement shall be construed as providing Agency or its contractors, consultants, or other agents any right of entry upon property owned or occupied by BNSF.
Any preliminary engineering or other work required by Agency in connection with the Project necessitating entry upon BNSF’s railroad right-of-way shall only be conducted as authorized by a separate written permit obtained by Agency from BNSF for such entry (“Entry Permit”).
The Entry Permit will provide that any on-site visits, including diagnostic evaluations, by Agency and its parties required for the Proje ct shall be conducted only from adjoining properties, and Agency shall ensure that no attendees enter or remain on BNSF ’s right- of-way, except when using an authorized highway-rail crossing designated for such purpose.
Agency or its agents must contact BNSF’s Manager of Public Projects, Dionisio Martinez at 909-386-4474, or BNSF’s permitting agent Jones Lang LaSalle Brokerage, Inc. (“JLL”) at http://bnsf.railpermitting.com/ to obtain the required Entry Permit prior to any entry. 5) Disclaimer
BNSF GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY,
QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR
ANY OTHER MATTER, OF OR FOR THE WORK PERFORMED PURSUANT TO THIS
AGREEMENT OR ANY REPORT OR OTHER DELIVERABLE WHICH BNSF MAY FURNISH TO AGENCY PURSUANT TO THIS AGREEMENT. BNSF SHALL IN NO WAY BE RESPONSIBLE FOR AGENCY’S PROPER RELIANCE UPON,
INTERPRETATION OF, OR OTHER USE OF THE WORK. BNSF IS NOT A
CONTRACTOR, AGENT, PARTNER, OR JOINT VENTURER OF AGENCY BECAUSE OF THIS AGREEMENT OR BECAUSE OF BNSF’S PERFORMANCE OF THE WORK.
LIKEWISE, THE BNSF PARTIES WHO MAY ASSIST BNSF IN PERFORMING THE WORK ARE DOING SO FOR BNSF’S BENEFIT ONLY, AND ARE NOT — AND SHALL NOT BE DEEMED TO BE — CONTRACTORS, SUBCONTRACTORS, OR AGENTS OF AGENCY.
[SIGNATURES FOLLOW ON NEXT PAGE.]
Contract Number: BF- 20537997
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first written above.
CITY OF FRESNO,
A California municipal corporation
By:
Georgeanne A. White
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Jennifer M. Quintanilla Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Deputy Date
BNSF RAILWAY COMPANY,
A Delaware Corporation
By:
Name:
Title:____________________________
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
REVIEWED BY:
Addresses:
AGENCY
:
City of Fresno
Attention: Sarah Aguila
Project Manager
1626 E Street
Fresno, CA 93706
Phone: (559) 621-1615
E-mail: [email protected]
BNSF
:
BNSF Railway
Attention: Alexis Jones
Project Engineer
4006 East Vine Ave., Blding B
Fresno, CA 93725
Phone: 901-495-3778
E-mail: [email protected]
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Contract Number: BF- 20537997
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Exhibit “A”
Contract Number: BF- 20537997
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Exhibit “B”