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GRADE CROSSING IMPROVEMENTS CONSTRUCTION AND MAINTENANCE
AGREEMENT
BNSF File No.: BF20227888
Mile Post 10.675
Line Segment 7602
U.S. DOT Number 026493P
San Bernardino Subdivision
This Agreement ("Agreement"), is executed to be effective as of this ________ _ ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and the CITY OF RIVERSIDE, a California charter city and municipal corporation, hereinafter referred to as the ("City"). City and BNSF are collectively referred to as "Parties." RECITALS:
WHEREAS , BNSF owns and operates a line of railroad in and through the City of Riverside in the State of California;
WHEREAS , the City owns and operates a public roadway known as Cridge Street, which intersects BNSF's railroad via an at-grade crossing at BNSF Line Segment 7602 and Milepost 10.675, and is designated by D.O.T. No. 026493P;
WHEREAS , the crossing designated as D.O.T. No. 026493P also contains lines of railroad owned and/or operated by railroads other than BNSF, over which BNSF has no authority or control; WHEREAS , in the interest of aiding vehicular travel and public safety, the City is undertaking a project to improve the existing Cridge Street at-grade crossing by extending the existing crossing surface to accommodate a new pedestrian sidewalk and installing crossing signal equipment including railroad crossing signals and activation equipment for the roadway and sidewalk as shown in Exhibit "A" attached hereto and incorporated herein by this references (the "Project"t WHEREAS, this Agreement shall govern the construction and maintenance of the improvements to be made only over that portion of the crossing designated as D.O.T. No. 026493P which are owned or controlled by BNSF (hereinafter , the "Crossing"), and the City shall enter into separate agreements for 1 of 56
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portions of the Project to be constructed on other railroad right(s) of way and the construction and maintenance of crossing signal equipment on such premises with the owners of such other right(s) of way; WHEREAS, BNSF will install crossing signal equipment for the roadway exit and entrance on the eastern side of the at grade crossing, and gates for pedestrian access within the existing and proposed roadway easements across the BNSF right-of-way as indicated on the Exhibit "B'', attached hereto and incorporated herein; and
WHEREAS, the City is currently seeking authorization and approval from the California Public Utilities Commission ("CPUC") to construct the Project's safety improvements at the Crossing,; and WHEREAS, as part of the Project, the City desires to establish a quiet zone as provided by the Federal Railroad Administration ("FRA") at 49 CFR Part 222 of the Code of Federal Regulations; and WHEREAS, the establishment of the quiet zone is subject to the regulations provided at 49 CFR Part 222; and
WHEREAS, BNSF and City agree to cooperate in the construction of the safety improvements; and WHEREAS, the safety improvements are intended to be permanent improvements at the Crossing unless the Crossing is grade separated or closed to vehicular traffic; and WHEREAS, the parties agree that the BNSF will receive no ascertainable benefit from the Project, including installation of advance warning signs, pavement marking stop bars or additional crossing signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); and WHEREAS, the City also desires to extend the existing concrete surface to accommodate new pedestrian access over BNSF tracks on the northerly side of Cridge Street; WHEREAS , the City is paying all costs of the Project; and WHEREAS, the BNSF agrees to purchase and install, at City's sole expense, the supplies and equipment as necessary for the scope of BNSF's 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:
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AGREEMENT
ARTICLE I - SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the installation of new concrete curb, gutter, and sidewalk, fencing, asphalt concrete paving, signing and striping of Cridge Street by City and installation of crossing signals/activation equipment/new crossing surfaces at the Crossing by BNSF, more particularly described on the Exhibit A, including, but not limited to, any and all changes to telephone, telegraph , signal 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.
2. The Project is to establish a quiet zone in accordance with 49 CFR Part 222 ("Quiet Zone").
City acknowledges that BNSF does not recommend the establishment of a Quiet Zone and believes that if not properly accounted for with appropriate safety enhancements , the elimination of the train horn can be detrimental to safety. The train horn is intended to alert the motoring and pedestrian public of train movement and City is responsible to use the requirements provided at 49 CFR Part 222 as a minimum guideline in any approach to creating a situation where the train horn is eliminated. The work to be performed by BNSF for the Project is not intended to be an endorsement or approval of the use of the Crossing or any facilities or equipment installed by BNSF hereunder for the purposes of establishing or maintaining a Quiet Zone.
The design, selection, or provision of the Crossing Signal Equipment and other Crossing appurtenances by BNSF under this Agreement , including the review or adequacy of any existing equipment or appurtenances , 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 recommendation, condition, direction, opinion, or approval that the plans and specifications or any work intended or completed on the Project is appropriate for any other purpose including City's use of the Crossing for highway purposes. City is solely responsible for determining the adequacy of the Crossing for use by the general public and obtaining regulatory approvals consistent with this Agreement.
City is solely responsible for establishing, and if approved , maintaining compliance of any Quiet Zone authorized by the FRA, at its sole expense . Any additional work or equipment required to be installed at the Crossing as the result of the establishment or maintenance of a Quiet Zone shall be at no cost to BNSF. City shall waive and release BNSF for any and all claims which result 3 of 56
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from the Work performed hereunder related to the subsequent establishment of any Quiet Zone at the Crossing by City.
ARTICLE II - RAILROAD OBLIGATIONS
In consideration of the covenants of City set forth herein and the faithful performance thereof, BNSF agrees as follows:
1. Upon City'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 Five Thousand Forty Four and 84/100 Dollars ($5,044.84), BNSF hereby grants to City, 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 right-of-way described in Exhibit B as is necessary to construct the Project as shown on Exhibit A and thereafter maintain the Crossing, 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 relocate upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate; and(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 crossing improvements , or (ii) 18 months following the Effective Date. The Temporary Construction License and related rights given by BNSF to City 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 crossing only and shall not be used by City for any other purpose. City acknowledges and agrees that City shall not have the right, under the Temporary Construction License, to use the Structure for any other purpose than construction. In the event City is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to City 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 City herein. 4 of56
Upon City's payment to BNSF of the additional sum of Twenty Eight Thousand Five Hundred and No/100 Dollars ($28,500.00), such payment to be made within thirty (30) days of issuing the Notice to Proceed pursuant to Article 111 , Section 8 of this Agreement , and provided further that City is in compliance with the terms and conditions of this Agreement, BNSF will grant to City, 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 City 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 railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit .Q 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 City, which approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF:
(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 one 8 foot concrete crossing surface for the one track complete with new rail, ties, ballast, fasteners, along with appropriate surfacing, to carry the improved roadway and sidewalks
(f) Removal of existing signals and lights as shown on Exhibit A; (g) Installation of Crossing Signal Equipment and Crossing Signal Control House as shown on Exhibit A;
(h) Installation of vehicle detection system;
(i) Provide an interface box, with contact terminals, mounted on side of Crossing Signal Control House for the interconnection of the Crossing Signal Equipment installed and maintained 5 of 56
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by BNSF to the crossing signal equipment on the western side of the crossing which shall be installed and maintained by other railroad(s);
U) 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. City agrees to reimburse BNSF for work of an emergency nature caused by City or City's contractor in connection with the Project which BNSF 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 City and City agrees to fully reimburse BNSF for all such emergency work.
5. BNSF may charge City 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 City progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. City must reimburse BNSF for completed force-account work within sixty (60) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send City 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, City 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 unpasted payments received by the month's end. Finance charges will be noted on invoices sent to City 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 City 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. 6 of 56
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ARTICLE Ill - City OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, City agrees as follows:
1. City 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 be submitted to BNSF for the development of railroad cost estimates.
2. City must make any required application and obtain all required permits and approvals for the construction of the Project.
3. City must acquire all rights of way necessary for the construction of the Project.
4. City 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. City must construct the Project as shown on the attached Exhibit A and do all work ("City's Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. City must furnish all labor, materials, tools and equipment for the performance of City's Work. The principal elements of City's Work are as follows:
(a) Design and Reconstruction/Construction of Cridge Street, including without limitation, curbs, gutters, sidewalks and fencing as shown on Exhibit A; 7 of56
(b) Installation of a pavement marking stop bar in accordance with the California 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; (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 surface(s) and the grade of all surfaces and approaches must be constructed in accordance with applicable regulations. 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, including that portion of Cridge Street located between the Main Tracks. 8 of 56
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(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 City will approve the location of the signals and signal bungalow prior to the installation by BNSF.
7. The City 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 City.
8. The City must give BNSF's Manager Public Projects written notice to proceed ("Notice to Proceed") with the railroad portion of the work. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written Notice to Proceed is received from City.
9. The City's Work must be performed by City or City'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 City, City 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, City shall: comply with all of BNSF's applicable safety rules and regulations; require any City 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.
11 . City 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, City 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.
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12. City 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 City 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 telecommunication company(ies).THE LIABILITY ASSUMED
BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A 10 of 56
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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 WILLFULL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
13. City 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 Ill 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 hereinafter otherwise provided below in this Section 14, all construction work performed hereunder by City for the Project will be pursuant to a contract or contracts to be let by City, 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 an 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 City's best interest, City may direct that the construction of the Project be done by day labor under the direction and control of City, or if at any time, in the opinion of City, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract , City may terminate its contract with the contractor and take control over the work and proceed to complete the same by 11 of 56
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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, City 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, City shall have its contractor give BNSF's Roadmaster 30 days advance notice of the proposed times and dates for work windows. BNSF and City'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. City 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, City must notify BNSF's Manager Public Projects, in writing, of the date on which City 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, CITY 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, PENAL TIES, 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 CITY, ITS CONTRACTORS, SUBCONTRACTORS,
EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II) THE
PERFORMANCE, OR FAILURE TO PERFORM BY THE CITY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION 12 of 56
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UNDER THIS AGREEMENT, (Ill) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF
CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR
ABOUT THE CONSTRUCTION SITE, (IV) CITY'S BREACH OF THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT GRANTED TO CITY PURSUANT TO ARTICLE II
OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO CITY PURSUANT
TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE
II OF THIS AGREEMENT, (VI) CITY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR
RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF
THE STRUCTURE BY CITY, OR (VII) AN ACT OR OMISSION OF CITY 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 CITY 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 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 the Exhibit A and the detailed plans and specifications approved by BNSF.
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3. City 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 railroad work 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 railroad work 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 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) City (or any of its contractors) performs the Project work within the BNSF right-of-way in a manner contrary to the plans and specifications approved by BNSF; (ii) City (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) City fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article 11, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by City 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 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:
Mr. Gilbert Hernandez, P.E.
Public Works Director
3900 Main Street
Riverside, CA 92522
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5. City must supervise and inspect the operations of all City 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 City 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 City 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 Mr. Gilbert Hernandez for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, 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 litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual 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 City 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 11, 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 City gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10013362 and O.O.T. Crossing No. 026493P and must state the time that construction activities will begin.
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9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the City agree to the following terms upon completion of construction of the Project:
(a) City will own and be fully responsible for repairs, maintenance, future construction or reconstruction of the Cridge Street roadway including the portion of roadway located between the tracks.
(b) City will maintain the elevation of the Cridge Street roadway approaches to match the elevation on the railroad track crossing surfaces in accordance with applicable regulations or as otherwise required for use of the Crossing by the public. BNSF recommends the grade to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a distance measured thirty (30) feet from the nearest rail.
(c) City 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 City's failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.
(d) City will do nothing and permit nothing to be done in the maintenance of the Cridge Street roadway, which will interfere with or endanger facilities of BNSF. (e) It is expressly understood by City 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 operate and maintain the Crossing Signal Equipment, Crossing Signal House, and the new crossing surface in proper condition. BNSF shall invoice the City annually for the cost of inspection and maintenance of the additional Crossing Signal Equipment installed for the Project. Costs for inspection and maintenance of 16 of 56
.6!Jl.1114!f!j;lf,=' .
] •• T .•
RA Jl; WAY
the additional Crossing Signal Equipment shall be based upon the Association of American Railroads ("AAR") maintenance cost recovery index. The parties hereby stipulate that the additional Crossing Signal Equipment shall be assessed as [insert number of AAR units] AAR units. City shall pay to BNSF the City's share of the annual inspection and maintenance costs as invoiced by BNSF at the latest available applicable rate per AAR unit for each annual billing period, as may be changed from time to time as published by AAR. The number of AAR units shall be adjusted in the future as necessary based on any subsequent changes in the equipment or maintenance requirements for the equipment.
Any reimbursement received by BNSF pursuant to California Public Utilities Code Section 1202.2 for the cost of maintaining automatic grade-crossing protection for the crossings identified in Exhibit A shall first be applied towards BNSF's cost of maintaining the existing (non-Quiet Zone) crossing equipment. If such reimbursement exceeds the cost of maintaining the existing (non-Quiet Zone) crossing equipment, BNSF shall apply the remaining funds towards the cost of maintaining the Quiet Zone equipment and reflect such credit in the annual invoices to the City. City must reimburse BNSF for the costs of maintaining the Crossing Signal Equipment, Crossing Signal House, and the new crossing surface within thirty (30) days of the date of any invoice for such costs. In the event the City fails to reimburse BNSF pursuant to this provision, finance charges will be assessed on any unpaid amounts pursuant to Article 11 , Section 6 above. (g) Notwithstanding the preceding provision , if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the City or any other governmental or legislative authority increase the City'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 City'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.
17 of 56
NA/.f,WAY
(i) If any of the additional Crossing Signal Equipment installed for the Project is partially or wholly destroyed, then such repair and/or replacement costs must be distributed among the parties as follows:
U) 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.
(k) In the event the Crossing Signal Equipment is damaged or destroyed by any other cause, City must reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment and/or Crossing Signal House.
(I) 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 crossing 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.
10. City 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, City must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. City 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 18 of 56
J
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 2 years 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.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and City with respect to the subject matter herein, provided that, nothing in this Agreement shall affect any other agreements or obligations relating to the Crossing except as expressly modified herein.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when i) when delivered in person to the recipient(s) named below; ii) when delivered by Federal Express or other commercial express delivery service providing acknowledgements of receipt; or iii) when delivered by facsimile or other electronic transmission 19 of 56
I _, . 7 . •
RJAH, WAY
providing verification of delivery and receipt sent by certified mail, return receipt requested, to the parties at the following addresses:
BNSF:
City:
BNSF's Manager Public Projects
Dionisio Martinez
740 E. Carnegie Drive
San Bernardino, CA, 93408
City of Riverside
Mr. Gilbert Hernandez, P.E.
Public Works Director
3900 Main Street, 4th Floor
Riverside, CA 92522
18. In the event that the City fails to seek to establish a Quiet Zone, or terminates any Quiet Zone hereafter established, the City may, in its sole discretion, seek to remove some or all of the additional Crossing Signal Equipment installed as part of the Project. The City shall be solely responsible for obtaining regulatory approval for the removal of any equipment and the cost of such removal, following which, the City's obligation to pay future inspection and maintenance charges under Article IV Section 9(f) above shall be terminated. x. In the event that the City fails to pay the amounts due BNSF under Article IV Section 9(f), following written notice of default and at least thirty (30) days to cure the default, in addition to other remedies provided under this Agreement or at law or equity, City hereby agrees and stipulates that
City shall immediately file a notice with the Federal Railroad Administration pursuant to 49 CFR § 222.51 (d) voluntarily terminating the Quiet Zone effective thirty (30) days from the date of such notice.
20 of 56
I .. f ~
RA~J..WAY
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: __ _
21 of 56
,il/111.''St.,,,, ~··.
I J .. ,. -·
RA:JJ; WAY
City
ATTEST:
City Clerk Deputy City Attorney
By: ----------
Printed Name: _________ _
Title: ____________ _
CERTIFIED AS TO FUNDS AVAILABILITY:
BY: VA ~
ASSIS ANT CHIEF FINANCiAf OFFICER
22 of 56
Exhibit A
23 of 56
GENERAL NOTES:
1. lHC COtHRACTOR BIODtNC !HIS PROJE:CT SHALL HAV[ A Cl.ASS "A" OR "C-12" I.IC(NS£
2. THE CONTRACTOR SHAU Pf!0\'10( ANO MAINTAIN lRAfflC CONTROL AS INDICATED IN THE ASSOOA TEO PRO..(CT SPEOAl PROVISIONS.
J. CONSTRUCTION SH,1,LL BC IN A.CCOROANC[ WITH THE Ctl-Y or RIVERSIDE STANDARD DRAWINGS AND STANDARD SPEClf lCAllC NS FOR PUBLIC WORKS CONSlRUCnON. 2012 EOIIION.
RIVERSIDE D
RIVERSIDE CALIFORNIA
4 [XISTINC UTIU'TIES SHOWN ON THIS PLAN ARC PLOTTED FROM UTILIH' RECORDS. THC CONIR.1,ClOR IS R[QUIR(D 10 11'1<( cue PR[CAUHONAAY MEASURES TO LOCATE AND PROTECT "1.L UTILITIES WH[TH[R OR NOT SHO'NN ON THIS Pl.AN. 5 CONFLICTING UTILITIES SHOWU v.tTHIN CONSfRUCTIOO ARCA WILL BC RClOCAT(D PRIOR TO CONSTRUCTION.
5 l'.LL STREET PULL BOKES, AFF[CT£D BT CONSTRUCTION. SJ-1,\LL BC -.OJUSTED TO THE PROPOSED CR,\QE,
7, TH[ S[A M BET'nt[N PASSES or THE AC OVERLAY SHALL COINCIO(, AS CLOS[ AS POSSIBLE, TO TH( LAN( LIN(S.
13. COI.D MILLING SHAlL BE AS OCSCRIBEO ON THE PLANS AND SP[ClAi.L PROVISIONS DA AS DtRECTEO BT TM( ENGINEER.
9 ANY DISTRESSED [,OSTING PAIIEMENT SHALL BE REMOIIEO ANO REPLACED AS DIRECTED 8T THE ENGINEER Af"l[R COl.0-MILLING ANO PRIOR TO PLACEMENT or OCAC.
10. CONTRAi.CTOR SHAlL R[MOV( All IIEG[TATION WITHIN Al l SIO[ WALK P.tJIIELS WI THIN TH( PRO.JECl W~ITS.
11 . ALL EXISTING IMPROIIEMENTS SHOWN HEREON SHALL 8 ( PROTECTED IN PLACE UNLESS
OTHERWISE NOTED
11 All'I' TEMPORARY lRAfflC CONTROL STRIPtUC OBLITERATED AND/OR 8AOlT WORN DURING CONSTRUCTION SH.t,LL 8( R[STOR(O BY THE CONTRACTOR WITHIU ONE OAY Arl[R NOTIFICA 11()'11 rROM THE CITY INSPECTOR
IJ SURIIEY STAKING REQUESTS ANO CRAOE SHEETS ....,LL BE REQUIRED rOR THE CONSlRUCTION Of TH( lt.lPROll[ M[NTS . CONTRACTOR SHALL ALLOW 4 WORl<INC OATS Arl[R REOUESTINC SURIIEY TO SCHEDULE SURll[Y IINO PROCESS CRIIO( SHEETS.
CON TRAi.CTOR SHALL PROVIDE TRAFFIC CON TROL FOR All R[OU IR[O CONSTRUCTION SURll[Y WORK BY CITY PERSONNEL.
l ◄ . CONTACT 9NSf MANAC(R Of PUBLIC PRO..CCIS PRIOR 10 ANY WORI< \IIITHIN BNSf RIGHT-Of- WAY OR IINY WORK Af"FECTINC CRIIOE CROSSING OPERATIONS.
CONSTRUC TION NO TES:
0 Li;e',.
\!!I
1'lli @
rlUM8[R S ABOVE !00 IN A H[l(ACON ON THE PLAN REFER TO THE
RESPECTIVE STANDARD ORAWI NC IIND SHALL BE CONSTRUCTED ACCORDINGLY, UNLESS t.lOOlflCA TIONS Ai.RE NO TEO ON THE PLAII OR COV(R SHEET. /INT tfUMBER SHOV.W BELOW THE STANOAi.RO ORAi.l'IINC NUMBER IIJOICATES THC SPEOFIC ALTERN.,.TE TO BE CONSI RUCTEO.
PROTECT EXtSllNC IN PLIICE: (PP)•POVl(R POI.E; (CB) - ClllCH BIISIN:
(UTL)• BLOW orr. CAS METER. OR FIR( HYORANT: (OOL)-BOLLARO Ai.OJUSI EXISTING IMPROV(t,IEIH TO CRAi.0(: (MH)•lilllNHOL.E: ( l'IM)•WAIER MEIERV.,.ULT:(PB) :: PULLBO X
0 INSTALL CHAIN UNI< r[NCE. PER SCRRA (NC. STD. [55106 . r(NC[ HEIGHT SH/ILL BE .tJ" FOR lHE FIRST ,so·. THCRE Ai.nER, INSTAlL (2) e· WOE, 6" HICl-1 CATES. THE REt.llllNO(R F(NC( H[ICHT SHAU 8[ 6".
0 0
0 0
CRIIDE Al 10% MAll. B[HINO N(W 0RIV£WIIY IIPPRD,,\CH TO NEW ACC[SS CATES.
INSTALL CAST-IN Pl.AC[ lACllL.E PANCL INTO THE NEW PROPOSED SIO[WIIU( USC 2"U.5" "'T THE P[OESTRIIIN G.ll E IINCl"' 2•~•• PIINEL Ill THE EM[RC[NCl' CAi.lE.
IT SH,•,u BE THE RESPONSIBIUIY or THE RAILROIIO CREWS TO IUSlAlL SIOELICHIS Oti TH[ N[W 19 WARtllNC OCI/IC[ AT TH( NORTHW(Sl IINO tiORTHEAST 01.JAORANT"S ONLY. "LL NEW FENC:!NC SHAU TERhllNATE Al 12· NORMAL TO THE C[tlTERUN[ or I H( NEAREST IR,l,CI(. TYPICAL Al -'LL FOUR QUADRANTS.
© CONSTRUCT FULL DCPTH /IC (6 " MiN.) RC...av£ [ XISTlrlC BIISC W.TCRIAL AS NEEDED TO BRING AC 10 [XISTINC TRACI< PANEL CRAOC.
0 CONSTRUCT 2· {MIN.] Burr cR , 6" (t.llN.) FULL OCPTH AC. BCTW((N THC PROPOSED CONCRETE IMPROVEM[ IITS AIIO THC TRACK PIINELS. 0 I\CRll/,IPSSHAlLB[ruLLO[P THfOR I HEFIRST2.t " STARIIHCA 1 lH( CONCRETE TRIICI< P""l(LS AflO RA1,1P DOWN FOR TH[ FINAl 12" lOIAl J6" AROUND THE CONCRCTC PIINELS.
0 ~~~ ~~~-1°~~"'\~ 1 ~c~ ... ~~~E~ .1511;: ;1~,.:ci~IAB~~o T~~,~~cR0~E @
0 0
@
TRACKPIINELELEVATIOUS.
EMERGENCY Pl:OESTRW. PUSH SWING CAi.lt. PER SCRRA ENC. STD. ES4002.
CONSTRUCT J.5" MIN. DEPTH AC PAO AROUIID THE tlEW CAT( All[R THE FOUNOIITIOU HAS BEEN COt.1PLETED.
METAl HIIIIO RAILIIIG. P(R SCRRA ENC. 510. ES.t005 . 10 BE INSTIil.LEO OUTSl0£ or COHCRETE AREA DICEPT WHEN ll[C[SSART
N(W POWER POLE, lt!CLUOltlC LUMltlAIRE, TO BE INSTAI.LEO BY RMRSID( PUBLIC Ullllll[S ELECTRIC DMSION FORCES.
r.:\ EXISTING POWER POLE. INCLUDING LUt.llNAIRE, TO BE REt.lOVED BY RM:RSIDE
1...::) PUBUCUTIU TIES(L[CTRICDM SIONFORCES.
@) RCMOIIE A/10 R(PLIICE THE EXISTIUC PEDESTRIAN RIIMP ANO CURB/CUTTER WITH N[W CONCRETE SIOCWAl.k ANO ruu HEIGHT CURB/ CUTIER TO W.TCH E-ISTINC.
@ ~~~rs;cR~IST~Cp p:g::~~IAN ST~ciARf~o~?':.S~~~TO
11 P~if"'p~~~rEROIATEO
AROUND THE CURD RCTtJRN TO LINE UP WITH TH( NORTHERLY RAMP @ INSTAlLS I ECLFENC lllCPERSCRRAENCS1D . ES5102 . ~
Unde, d
Se~~fcuen,!~
-ColJ:lOU.F'R&
1-800
227-2600 FENCEHE ICHl•J"- 6".
11,t,TS BD"tlltl:lOU Da
--
PUBLIC WORKS DEPARTMENT
STREET IMPROVEMENTS FOR
CRIDGE STREET
AT UPRR/BNSF RAILWAY CROSSINGS
PROJECT
LOCATION
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,."J t >~'..,,,, !'/, 00 % ' ,',,f;l MA~TIN LUfHER KIN\ 't c,~; -- '"ff <~a ' c'l,a,,, " V> - :;~ - -r~ 1i;""s\
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LOCATION MAP
EXISTING UNDERGROUND UTILITIES:
STORM DRAIN
SANITAAT SEWER
W"'TER LltlE
flB(R OPTIC
PETROlEUM
PIP(LUIE
UNDERGROUND
(LEClRIC
CONSTRUCTION LEGEND:
TOP or CURB
EOCEOf"PII\IE MENT
fLO 'M.INE
FINISHED SURFACE
CCNT(RUNE
ASPHALTIC CONCRETE
STRE(l CE~TERLINE
STRE[l R/W
C.P.
S111 STR(CTSTATION
Pl POIIHOf"I N IERS(CllON
Ai.PN ASSESSORS PIIRCEL tlUMBER
RCP REINFORCED CONCRETE PIPE
tfLYNORTH[R\.r
s·Lv SOUTHERLY
PCC PORTLIIUO CEMEIIT CONCRETE S/W SIOEWAi.ll<
C&C CURB ANO CUTTER OWY ORl\l[ WAY
R/ W RICHT OF WIIY er cuRBr.,.cc
EXISTING TOPOGRAPHY:
,li SANITARY SEM: R M.H.
!.'I STORM QRAIN t.l.H.
WATER GIil[ VAl\l[
.L E:LCCTRIC M.H.
Tl TELEPHONE M.H.
WATER MEI ER
SHEET INDEX:
SHEET tlO. DESCRIPTION
STREET PLAN NO. R-4337
TITLE SHEET
,,,- flR(HYORANI
Oil IRRICIITION METER
:- BLOW-OIT VAlVE
I TRAfTIC SIGN
POWER POlE
• CUY IINCHOR
• STREET UCH1 ON MAST "'RM
CRIDGE STREET - CROSSING IMPROVEMENTS
CRDIGE STREET - NORTHERLY OUAROANT DETAILS
TRAFf'IC PLAN NO. XL-853
1 CRIDGE STREET - SIGNING AND STRIPING IMPROVEMENTS
PUBLIC U TILITIES D EPARTMENT NOTE:
CONTRAi.CTOR TO GIVE CITY ELECTRIC "'NO WIITCR OIY1 Sl0NS (5) FIVC WORKING OAYS 't'IRITTW NOTI CE PRIOR 10 START or CONSTRUCTION ,t.,NO ALLOW OlY FORCES (15) FIFTEEN WORKIUC DAi.YS rOR CO M P\.EllOI ◄ or WORK.
[I]
ENGINEER IN
RESPONSIBLE CHAROE
CITY OF AfVERSIDE . CALIFORNIA
DEPARTMENT OF PUBLIC WORKS
TITLE SHEET
111,.-.ic,,-.,;a.;OMOlllM) _l llOlto:,
~ .-CDIIDDIIIO..:
,--- '°"'"'Hlll>III M•N•CEHI
r"'RSI IID Ai.. MOIIAMM~DI
~
4 c~ Na. ~130, £ .i>l~[S • 06 - J0- 2~
STREET IMPROVEMENTS
AT CRIDGE SlFIEET
UPRR/BNSF RAILWAY CROSSINGS
HOHll . SCALl : N/ A V[ttl. SCIIL( N/ A
R-4337
srccLl__cr_3 _
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LEGEND:
D MEWACPA'-DIENT
~ NEW FU.I.. DEPlM AC PA'o0!£HT
~ NEW PCC C0MCRETE
. ·c,·i DlS'IIHC RAA.ROAD EQUPMENT TO 8£
• :::. PROTECTED N PU.a: t.NLESS OlHE1NtSE NOTED
---==ff PROPOSED fQ ~ ~ (BT OTHERS)
--it PROPOSED PEDCSm!AN WARNNC DE'ACE AHO CA TE (BY OTHERS) ~ PROPOSED CAST-IH P\.ACE TAClll.E PANQ. (SEE KOTE J)
PROPOSED 0tMI L.NI( FOICE (SEE MOTE 1)
PR<POSEO WETAl HNC1 RA1U1C (SEE NOTE 12)
*'NOlE:
THE CURB SI-IALL 8£ FUU. HOGHT IJf' TO 15' FROM K CENTERt..NE OF NEAREST TRADC. TH[ OJR8 5HAU. TRANSITION F'R0M F'lJLL.
Hoo-if lO ZERO t£1GHT WllHIH 1HE NEXT 5" ANO SHALL HA-.£ i
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PEDESTRIAN RAMP DETAIL:
SCALE: ,. - 10' CROSSING ID:
ZERO HECHT AT 10' FROW COflIRUNE Of HEAREST TRAO<.
SIGNAL LOCATION DETAIL:
MILEPOST # 10.70
USDOT # 026943P
CPUC # D02B-10.70/
~ i
SCALE: r -20·
~
Uodo,
Cn;,und Service Alert
---""" rou. f1IEE
HOO
227-2600
lWO----..o.
I!]
ENGIIEERN
RESPON9IBLE CHARQE
E
r AflSHIO A. MDHAMWAOI
11. C.C. Ila. 5U04 OP1R£S; 06- l0-24
""
5CM.£: ,. - 20'
._ .. ~-.. ~ .......... ___!_,.,,.
CITY OF RIVEASDE. CALFOFINJA
DEPARTMENT OF Pl,Q.JC WORKS
CROSSINQ IMPROVEMENTS
STFIEET IMPROVEMENTS
ATCRClOESlREET
UPRR/BNSF RAILWAY CROSSNClS
D03.56.60
R-4337
Sl-££LL or_3_
\
.
~ 10
SOL£: ,·,,2 0·
-·-,,,, __ _
/ - --/
PROPOSED
CURB /GUffi R
DRIVEWAY PROPOSEDl
l
PROPOSED GA TE
FOUNOA TlON LOCATION
(4.5° SQUARE)
3' CLEAR FROM
BACK OF
COUNTERwtlGHT TO
BACK Of SIDEWALK
WITH GATE IN DOWN
POSITION
LEGEND:
NORTHWEST QU ADRANT DETAIL: D
Ill
NEW ,Ii( PAVEMENT. J,5• t.llN, DEPTH
I
I
SC"lE : 1· • 5·
PROPOSED GA TE
F"OUNOATION
LOCATION
(◄ .5' SOUARE)
NORTHEAST QUADRAN T DETAIL:
i
~
u"'" Groun d Serv,ce Alert .. -..~
Col~ TOI.I. FREI
1-800
227- 2600
TWO-....CQIIITSm:n:l"t'rOU~
SC ... LE: 1" •5'
[W
ENOJNEEA IN
RESPONS1 BI..E CHARGE
r1,RSlllD,.. MOtl" t.1M.o.OI
£ "-U Ho. ~l,lG,I E.IPIRES•06 ~ J0 - H
""
PROPOSED GA TE
FOUNDATION
LOCATION
(4.5' SQUARE)
SEE NOTE 13
PROPOS£0 CAST-IN PLACE TACTILE P.\N[l {SEE NOTE J)
PROPOSED CHAIN lltlK FENCE (SH NOTE 1)
PROPOSED M(TAL HANO RAILING (SEE NOTE 12)
I'--. ( M(RC(tlCY P(DESTRIAN PUSH SWING CATE ( SEE NOT[ 10) - ~ - - - ~ 1--,L---
CURB FACE \ . 6 - - -
~SEE NOTE 1' \_:.:,OS;
CURB/GUTTER
CROSSING ID:
MILEPOST # 10. 70
USD0T II 026943P
CPUC # 002B-10 .70/
003 .56.60
C ITY OF RIVERSID E, CALIFORNIA I NOATHERL Y QUADRANT DET All...5 DI.SO, IIIO<I< O<XJI Ml · 1901~ CO,S111. IO!<OIIOCII MO..
I I I I I DEPARTMENT OF PUBLIC WORKS I
-u ., I • I ~• I _,m" STREET IMPROVEMENTS
( IICll,1.l llr.lG M~IAGl.11 _ _ _____ , AT CAtDGE STREET ~- - ~ --- UPAA / BNSF RALWAY CAOSSlNGS
I 1-1-
R-4337
SICC~ cr_3 _
• R,,4JJ, WAY
Exhibit A-1
24 of 56
COORDINATE SYSTEM : _Q/\__Q
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.!!!ID
r=1;
SCALE : 1 IN = 50 FT
TO: CITY OF RIVERSIDE
AT: RIVERSIDE
RIVERSIDE COUNTY,
CA
LEGEND:
tn PERMANENTEASEMENT
&:2l TEMPORARY EASEMENT
= RIGHT OF WAY LINE
- - PARCEL LINES
- TRACK
MEASUREMENTS BASED ON PROVIDED SURVEYS
($)M EASUREMENTS TAKEN OFF SURVEY
(M) MEASUREMENT
EXHIBIT "A"
JLL Tl ~ -
BW Proj. No.: 12196.003
MAP REFERENCE:
STA. = -
R/W = 141203
CALIFORNIA DIVISION
SAN BERNARDINO SUBDIVISION - LS . 7602-1
VAL.SEC . 48060
AT&SF RY CA-11, MAP 3
SEC. 26, T2S, R5W SBM
DATE: 7/7/2023
MP 10.64
DRAWN BY:ANA DRAW ING NO . 88255
RA/J,WAY
EXHIBIT "B"
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 City of Riverside, a California charter city and municipal corporation ("Grantee").
A. Grantor owns or controls certain real property situated at or near the vicinity of ___________ , County of Riverside, State of California, at Mile Post ____ _ [Project # ----~ • as described or depicted on Exhibit "A-1" attached hereto and made a part hereof (the "Premises").
B. Grantor and Grantee have entered into that certain C&M Agreement dated as of concerning improvements on or near the
Premises (the "C&MAgreement") .
C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement.
NOW, THEREFORE , for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration , the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1 Granting of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement.
1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all 25 of 56
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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").
Granter 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 Granter. Granter excepts and reserves the right, to be exercised by Granter and any other parties who may obtain written permission or authority from Granter:
(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 Granter in its sole discretion deems appropriate, provided Granter 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. [/f this is a temporary easement replace the preceding sentence with the following : The term of this Easement, unless sooner terminated under provisions of this Easement Agreement, shall expire on the date that is ________________ after the Effective Date.]
Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Granter 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 Granter, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR
WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF
ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE
MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO
GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO
THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY 26 of 56
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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 FAUL TS" 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 Granter of the affected rail corridor, Granter 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 Granter; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Granter, 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 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 27 of 56
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with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Granter 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 Granter shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Granter, 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 Granter 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 Granter 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 Granter 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, Granter may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an City having the capacity and authority to make such a determination. 28 of 56
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7.4 Preventative Measures. Grantee shall promptly report to Granter 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 Granter 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 Granter with proof satisfactory to Granter that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above-stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Granter 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, Granter, 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 Granter 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 Granter, or anyone or anything present on the rail corridor or property with the authority or permission of Granter. Grantee shall promptly reimburse Granter 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. Granter 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 Granter of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Granter may have under the C&M Agreement, at law or in equity.
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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:
(f) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Granter directs at Grantor's sole discretion;
(g) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (h) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and
(i) 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, Granter 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 Granter. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Granter 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.
Granter 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 Granter 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. Granter may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Granter to effect an exchange under Section 1031 of the Internal Revenue Code. In such 30 of 56
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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 Granter 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 Granter 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. Granter and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. [lf_
LEGAL DESCRIPTION IS NOT AVAILABLE USE THE FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As of the Effective Date, a legal description of the Premises is not available.
Grantee and Grantor shall work together in good faith to establish the legal description for the Premises. Once Grantor and Grantee have approved the legal description, Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement'').] The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within __ days of the Effective Date, Granter 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 [Texas] 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 31 of 56
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Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
14.5 This Easement Agreement is the full and complete agreement between Granter 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 Granter harmless in any prior written agreement between the parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
Section 15 Administrative Fee.
15.1 Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Granter, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $2,500.00 over and above the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check.
C&M
[Signature page follows]
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Witness the execution of this Easement Agreement as of the date first set forth above.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware corporation
By:
Name: ------------Ti tie:
GRANTEE:
a _________________ _
By:
Name: ------------Tit I e:
CERTIFIED AS TO FUNDS AVAILABILITY:
BY: \~
ASSISTANT CHIEF FINANC'IAL OFFICER
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APPROVED AS TO FORM:
BY:_ hCh-t..-~
ASSISTANT CITY ATTORNEY
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EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.05 General:
• 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway " where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1" Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "C-1".
Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519 .
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations.
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 desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing:
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• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify (City) 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 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.
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 35 of 56
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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 sessi9ns before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the City.
• 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
construction:
■ 15'-0"
■ 21'-6"
■ 27'-0"
■ 28'-0"
■ 30'-0"
■ 34'-0"
• 1.03.04
■ 25'
■ 23' 6"
The Contractor must abide by the following temporary clearances during Horizontally from centerline of nearest track
Vertically above top of rail
Vertically above top of rail for electric wires carrying less than 750 volts Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts Vertically above top of rail for electric wires carrying more than 20,000 volts Upon completion of construction, the following clearances shall be maintained:
Horizontally from centerline of nearest track
Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the City and must not be undertaken until approved in writing by the Railway, and until the City has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in 36 of 56
the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval.
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell-tales or protective devices will be borne by the City. • 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by City for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "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.
• 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1 (800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan:
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.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 37 of 56
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job site.
• 1.04.02 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, orb) 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 minimum 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 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.
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 RAI LSAFE 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 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 Project Engineer Fa minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Project Engineer can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary , the Contractor must give the Project Engineer five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger 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 38 of 56
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, material, equipment or blasting in the vicinity.
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative.
• 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by City. •
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 RA TE 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.
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1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the 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 subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come 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 40 of 56
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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.) • 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 must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means.
1.07 Excavation:
• 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation , the Contractor must contact the Project Engineer. 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 41 of 56
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the location of all underground utilities before excavating. • 1.07 .02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings.
If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined.
There will be no exceptions to these instructions.
• 1.07 .03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible.
1.08 Hazardous Waste, Substances and Material Reporting:
• 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways , while performing any work under this Agreement , Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1 (800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release.
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements . Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. 42 of 56
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RA/LWAY N □ N-EMPL □ VEE PERS □ NAL INJURY DATA C □ LLECTl □ N (If injuriBs arB in c □ nnBcti □ n with rail BquipmBnt accidE?nt/incidBnt. highway rail gradE? crossing accidE?nt □ r aut □ m □ bilB accidBnt. BnsurB that appr □ priatE? inf □ rmati □ n is □ btainBd . farms c □ mplBtE?d and that data Bntry pBrs □ nnBI arB awarn that injuriBs rBlatE? t □ that spE?cific E!VE?nt.)
lnjurE?d PBrs □ n T ypB:
D PassE?ngBr □ n train (C)
D C □ ntract □ r/safoty sE?nsitivB (F)
D V □ luntBE?r/safoty sE?nsitivB (H)
D N □ n - Bmpl □ yBB (N)
(i.e .. emp of another rBl1road or, non-9NSf emp involved in vehicle accident including company vehicles)
D C □ ntract □ r/ n □ n-safaty sE?nsitivB (G)
D V □ luntBE?r/ □ thBr n □ n-safoty sE?nsitivB (I)
D N □ n-trnspassE?r (0) - t □ includE? highway usE?rs inv □ lvBd in highway rail gradE? crossing accidE?nts wh □ did n □ t g □ around □ r through gatE?s
D T rE?spasm (E) -to includE? highway usE?rs inv □ lvBd in highway rail gradE? crossing accidE?nts wh □ wBnt around □ r through gatE?s
D N □ n-trE?spassE?r (J) - Off railroad pr □ pE?rty
If train inv □ lvBd . Train 10:
Transmit attachE?d inf □ rmati □ n t □ AccidE?nt/lncidE?nt RBp □ rting CE?ntBr by:
Fax 1-817-352-7585 □ r by Ph □ nB 1-800-687-6736 or email to: [email protected] OfficBr Providing lnf □ rmati □ n :
(NamB) (Empl □ yBB Na.) (Ph □ nB #)
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REPDRT PREPARED Ta CDMPLY WITH FEDERAL ACCIDENT REPDRTING REDUIREMENTS AN □ PRDTECTE □ FRDM □ ISCLDSURE PURSUANT Ta 48 U.S.C. 2asa3 AN □ 83 U.S.C. 4!:ID
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• NAiiWAY
N □ N-EMPLDYEE PERS □ NAL INJURY DATA C □ LLECTl □ N
INFORMATION REllUIRED 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.
I. Accident City/St: 2. Date: Time:
C □ unty : 3. Temperature: 4. Weather:
(if nan BNSF location)
Mile Past/ Line Segment:
5. Driver's License Na (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)
P h □ ne Number ___________ Employer: _______ _
8. Injury: _________________ 10. Bady Part: ______ _
(i.e .. Laceration. etc.) (i.e .. Hand. etc.)
II. Description of Accident (Ta include location. action. result. etc.):
12. T reatmenl:
□ First Aid Only
□ Required Medical Treatment
------------------------------□ Other Medical Treatment
13. Dr. Name: Date:
14. Dr. Address
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
City: --------
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City:
St: Zip: -----
St: Zip:
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EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File:
City Project: _______________ _
XX.XX [Insert contractor's legal name here](hereinafter called "Contractor''), has entered into an agreement (hereinafter called "Agreement") dated ______ , 201_, with the City of Riverside for the performance of certain work in connection with the following project:
BF10013362 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 the city of Riverside (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
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way. 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 WILLFULL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY.
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2)
3)
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE
FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT
LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion , must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT
THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAIL WA Y'S ACTS OF NEGLIGENCE.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement.
TERM
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.
INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage:
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A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000 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 include coverage for, but not limit to the following:
• Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements , which shall be indicated on the certificate of insurance:
• The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Waver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by Railway.
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.
No other endorsements limiting coverage as respects obligations under this_Agreement may be included on the policy with regard to the work being performed under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1 ,000,000 per occurrence, and include coverage for, but not limited to the following:
• Bodily injury and property damage
• Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railway. 48 of 56
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• Additional insured endorsement in favor of and acceptable to Railway. • Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by Railway.
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
• Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railway.
A. 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:
• Endorsed to include the Pollution Exclusion Amendment • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railway prior to performing any work or services under this Agreement
♦ 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.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages.
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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 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.
Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.
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.
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: BNSF@certfocus .com
www.certfocus .com
Contractor shall notify Railway in writing at least 30 days prior to any cancellation , non renewal, substitution or material alteration.
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 VI I or better, and authorized to do business in the state(s) in which the service is to be provided.
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.
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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.
Not more frequently than once every five years, Railway may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Contractor, Contractor 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.
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.
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.
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.
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.
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
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 51 of 56
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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.
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 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.
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.
EXHIBIT "C" CONTRACTOR REQUIREMENTS
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 52 of 56
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Agreement (http://www.bnsf.com/communities/faqs/permi ts-real-estate/), for any temporary crossing requested to aid in the construction of this Project, if approved by BNSF.
2) TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.
Additionally , the parties acknowledge that passenger, U.S. mail trains and certain other grain , intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements , if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. 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.
Contractor and its subcontractors must give Railway's representative 2 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. 53 of 56
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Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. 54 of 56
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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 .
XXXXContractor Name
By:
Printed Name: ---------
Title: -------------
Contact Person: --------
Address:
City:
State: --- Zip: ------
Fax: -------------
Phone: ------------
E-mail:
CERTIFIED AS TO FUNDS AVAILABILITY:
BY 'µ.idJ
ASS STANT CHIEF FINAN1;tAL OFFICER
APPROVED AS TO FORM:
BNSF Railway Company
By:------------
Name: ------------Man ager Public Projects
Accepted and effective this __ day of 20_.
BY:. ~~
ASSISTANT CITY ATTORNEY
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Exhibit D
BNSF COST ESTIMATE
City of Riverside
Cridge Street Project
LS 7602 MP 10.647
San Bernardino Sub
DOT# 026493P
Flagging - 50 Days @$2,000 per
day
Inspection/Coordination
Track Work
Signal Work
Sub Total
Administration @ 10%
Contingency @ 10%
TOTAL
Note: This is an estimate only. BNSF will bill on an actual cost basis. 56 of 56
$100,000
$112,000
$ 105,000
$ 3,600,000
$ 3,917,000
$ 391,700
$ 391,700
$4,700,400