HomeMy WebLinkAbout2020.08.03 Council Remote Meeting PacketRemote Regular Meeting
AGENDA
PASCO CITY COUNCIL
7:00 p.m.
August 3, 2020
Page
1. REMOTE MEETING INSTRUCTIONS:
(a) Governor Inslee's Proclamation No. 20-28, made in response to the
COVID-19 emergency, prohibits members of the public from attending
City meetings in-person but requires agencies to provide options for the
public to participate in remotely. To best comply, the City asks all
members of the public that would like to comment regarding items on
the agenda to fill out a form via the City’s website (www.pasco-
wa.gov/publiccomment) to obtain access information to comment.
Requests to comment in meetings must be received by 4:00 p.m. on the
day of each meeting.
To listen to the meeting via phone, call (415) 655-0052 and use access
code 942-626-986.
City Council meetings are broadcast live on PSC-TV Channel 191 on
Charter/Spectrum Cable in Pasco and Richland and streamed at
www.pasco-wa.gov/psctvlive and on the City’s Facebook page at
www.facebook.com/cityofPasco.
2. CALL TO ORDER:
3. ROLL CALL:
(a) Pledge of Allegiance
4. CONSENT AGENDA: All items listed under the Consent Agenda are considered
to be routine by the City Council and will be enacted by roll call vote as one motion
(in the form listed below). There will be no separate discussion of these items. If
further discussion is desired by Council members or the public, the item may be
removed from the Consent Agenda to the Regular Agenda and considered
separately.
4 - 10 (a) Approval of Meeting Minutes
To approve the minutes of the Pasco City Council remote Meeting held on
July 20, 2020 and remote Workshop held on July 27, 2020.
11 - 12 (b) Bills and Communications
Page 1 of 156
Remote Regular Meeting August 3, 2020
To approve claims in the total amount of $7,526,969.84 ($3,284,046.98 in
Check Nos. 236624-236978; $425,298.85 in Electronic Transfer Nos.
828908-828962, 828966-829005, 829009-829075, 829087-829148, 829152-
829162, 829190-829194; $14,449.17 in Check Nos. 53375-53387;
$797,783.84 in Electronic Transfer Nos. 30150107-30150617;
$3,005,391.00 in Electronic Transfer Nos. 692).
13 - 17 (c) Reappointments to the Tri-City Regional Hotel/Motel Commission
I move to confirm the appointments of Monica Hammerberg (Hampton Inn
& Suites) to the Tri-Cities Regional Hotel/Motel Commission for a two-year
term commencing on 9/1/2019 and ending 8/31/2021 and Vijay Patel
(Holiday Inn Express & Suites) to a two-year term commencing on 9/1/2020
and ending 8/31/2022.
(RC) MOTION: I move to approve the Consent Agenda as read.
5. PROCLAMATIONS AND ACKNOWLEDGEMENTS:
6. REPORTS FROM COMMITTEES AND/OR OFFICERS:
(a) Verbal Reports from Councilmembers
18 - 34 (b) Presentation - DOL Enhanced Licenses
7. HEARINGS AND COUNCIL ACTION ON ORDINANCES AND
RESOLUTIONS RELATING THERETO:
35 - 47 (a) Street Vacation: Vacating a Portion of E Pueblo Street (MF# VAC2019-
006)
MOTION: I move to continue the hearing of the Pueblo Street Vacation
request to September 8, 2020.
8. ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS:
48 - 127 (a) Resolution - Overpass Agreement with BNSF for Lewis Street Overpass
MOTION: I move to approve Resolution No. 3976, authorizing execution
of the Overpass Agreement with Burlington Norther Santa Fee Railroad
Company (BNSF) for Lewis Street Overpass and further, authorize the City
Manager to make minor substantive adjustments and to execute all other
documents related to the BNSF right-of-way and this project.
9. UNFINISHED BUSINESS:
10. NEW BUSINESS:
Page 2 of 156
Remote Regular Meeting August 3, 2020
128 - 156 (a) PSA - Construction Management Services Peanuts Park Renovation
MOTION: To approve the Professional Services Agreement for
construction management services for the Peanuts Park Renovation Project
with MacKay Sposito in the amount of $322,460 and further, authorize the
City Manager to execute the Professional Services Agreement.
11. MISCELLANEOUS DISCUSSION:
12. EXECUTIVE SESSION:
13. ADJOURNMENT:
(a) (RC) Roll Call Vote Required
* Item not previously discussed
Q Quasi-Judicial Matter
MF# “Master File #....”
(b)
REMINDERS:
• Monday, August 3, 1:30 PM: Emergency Medical Services Board
Meeting – Fire Training Center, 1811 S. Ely, Kennewick (MAYOR
PRO TEM BLANCHE BARAJAS, Rep.; COUNCILMEMBER
DAVID MILNE, Alt.)
• Thursday, August 6, 5:30 PM: Parks & Recreation Advisory Board
– P&R Classroom, Pasco City Hall (COUNCILMEMBER DAVID
MILNE, Rep.; MAYOR SAUL MARTINEZ, Alt.)
This meeting is broadcast live on PSC-TV Channel 191 on
Charter/Spectrum Cable in Pasco and Richland and streamed at
www.pasco-wa.gov/psctvlive.
Audio equipment available for the hearing impaired; contact the Clerk for
assistance.
Servicio de intérprete puede estar disponible con aviso. Por favor
avisa la Secretaria Municipal dos días antes para garantizar la
disponibilidad. (Spanish language interpreter service may be
provided upon request. Please provide two business day's notice to
the City Clerk to ensure availability.)
Page 3 of 156
AGENDA REPORT
FOR: City Council July 29, 2020
TO: Dave Zabell, City Manager Remote Regular Meeting:
8/3/20
FROM: Debby Barham, City Clerk
Administrative & Community Services
SUBJECT: Approval of Meeting Minutes
I. REFERENCE(S):
07.20.2020 & 07.27.2020 Draft Council Minutes
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve the minutes of the Pasco City Council remote Meeting held on July 20,
2020 and remote Workshop held on July 27, 2020.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
Page 4 of 156
REMOTE REGULAR
MEETING
MINUTES
PASCO CITY COUNCIL JULY 20, 2020
REMOTE MEETING INSTRUCTIONS:
Governor Inslee's Proclamation No. 20-28.7, made in response to the COVID-
19 emergency, continued to prohibit members of the public from attending City
meetings in-person but required agencies to provide options for the public to
participate in remotely. To best comply, the City asked all members of the
public that would like to comment regarding items on the agenda to fill out a
form via the City’s website (www.pasco-wa.gov/publiccomment). As of 4:00
p.m. on Monday, July 20, 2020, zero (0) requests to speak were received.
CALL TO ORDER:
The meeting was called to order at 7:00 PM by Saul Martinez, Mayor.
ROLL CALL:
Councilmembers present: Blanche Barajas (virtual), Craig Maloney (virtual),
Saul Martinez (in-person), David Milne (virtual), Zahra Roach (virtual), and
Pete Serrano (virtual).
Staff present: Dave Zabell, City Manager(in-person); Colleen Chapin, Human
Resources Director (virtual); Eric Ferguson, City Attorney (virtual); Bob Gear,
Fire Chief (virtual); Zach Ratkai, Administrative & Community Services
Director (in-person); Ken Roske, Police Chief (virtual); Darcy Buckley,
Finance Manager (virtual); Rick White, Community & Economic Development
Director (virtual); Steve Worley, Public Works Director (virtual); and Debby
Barham, City Clerk (in-person).
The meeting was opened with the Pledge of Allegiance.
CONSENT AGENDA:
Approval of Meeting Minutes
To approve the minutes of the Pasco City Council remote Meeting held on July
6, 2020 and remote Special Meeting & Workshop held on July 13, 2020.
Bills and Communications
To approve claims in the total amount of $2,595,771.44 ($1,492,573.20 in
Check Nos. 236510-236623; $290,161.57 in Electronic Transfer Nos. 829077-
829079, 829085-829086; $8,279.64 in Check Nos. 53367-53374; $804,757.03
in Electronic Transfer Nos. 30149599-30150106.)
To approve bad debt write-off for Utility Billing, Ambulance, Cemetery,
General Accounts, Miscellaneous Accounts, and Municipal Court (non-
criminal, criminal, and parking) accounts receivable in the total amount of
$170,410.55. No bad debt is being turned over for collection.
Substitute House Bill 1406 and Enacting PMC Chapter 3.26 "Sales & Use
Tax for Affordable/Supportive Housing"
To adopt Ordinance No. 4495, enacting Chapter 3.26 “Sales and Use Tax for
Affordable and Supportive Housing;" and further, authorize publication by
summary only.
Resolution Approving the Local Road Safety Plan
Page 1 of 4 Page 5 of 156
REMOTE REGULAR
MEETING
MINUTES
PASCO CITY COUNCIL JULY 20, 2020
To approve Resolution No. 3974, adopting the Local Road Safety Plan.
Renewal of Prosecutorial Services Agreement
To approve the Prosecutorial Services Agreement with Bell, Brown & Rio and,
further, to authorize the City Manager to sign and execute the agreement.
(RC) MOTION: Mayor Pro Tem Barajas moved to approve the Consent
Agenda as read. Ms. Roach seconded. The motion carried unanimously by Roll
Call vote.
REPORTS FROM COMMITTEES AND/OR OFFICERS:
Verbal Reports from Councilmembers
Ms. Roach commented on the Hanford Community Governing Board meeting
that she recently attended.
Mayor Pro Tem Barajas commented on a Benton Franklin Council of
Governments meeting that she recently attended.
Mr. Maloney commented on the Franklin Council Emergency Management
Meeting that he recently attended.
Mayor Martinez commented on the weekly community area leadership
meetings that he attends related to COVID-19 mitigation.
General Fund Monthly Report - June 2020
Ms. Sigdel reported the revenue funding sources as of April 2020 and where the
City stands financially since the onset of the COVID-19 pandemic.
ORDINANCES AND RESOLUTIONS NOT RELATING TO HEARINGS:
*Resolution to Reject Bids for Road 36 Lift Station Upgrades Project
Mr. Worley explained the reason for rejecting all bids for the Lift Station
Upgrades project at Road 36.
MOTION: Mayor Pro Tem Barajas moved to approve Resolution No. 3975,
rejecting all bids for the Road 36 Lift Station Upgrades Project. Ms. Roach
seconded. Motion carried unanimously.
UNFINISHED BUSINESS:
Professional Services Agreement with WSP, Inc. for Construction
Management Services on Lewis Street Overpass Project
Mr. Worley provided a brief overview and updates to the Professional Services
Agreement for the Lewis Street Overpass project.
MOTION: Mayor Pro Tem Barajas moved to approve a Professional Services
Agreement for Construction Management Services on the Lewis Street
Overpass Project with WSP Inc. in the amount of $1,853,000, and further,
authorize the City Manager to execute the Professional Services Agreement.
Mr. Serrano seconded. The motion carried unanimously.
NEW BUSINESS:
Inclusion, Diversity & Equity Commission Appointments
Page 2 of 4 Page 6 of 156
REMOTE REGULAR
MEETING
MINUTES
PASCO CITY COUNCIL JULY 20, 2020
Mr. Zabell reiterated the purpose of the Inclusion, Diversity & Equity
Commission (IDEC) and stated that due to the COVID-19 crisis, the selection
process consisted of a Council subcommittee. The subcommittee reviewed the
applications and also conducted the candidate interviews.
Mayor Martinez thanked Mayor Pro Tem Barajas and Councilmember Roach
for participating in the review and interview process to fill the three vacant
positions on the IDEC. Mayor Martinez expressed appreciation to all the
candidates that applied.
Ms. Roach and Mayor Pro Tem Barajas thanked all of the individuals that
applied; the candidate pool was exceptional and both Mayor Pro Tem Barajas
and Ms. Roach encouraged those applicants, that were not chosen for the IDEC,
to apply for other boards and commissions.
MOTION: Mayor Pro Tem Barajas moved to confirm the Mayor's
appointments to the Inclusion, Diversity & Equity Commission to include
Naima Chambers Smith, Joel Nunn-Sparks and Elouise Sparks to Position Nos.
1, 3 and 4 respectively, with the terms ending on December 31, 2020 for all
positions. Ms. Roach seconded. The motion carried unanimously.
Pasco Public Facilities District Board Reappointment
Mr. Zabell provided a brief overview of the purpose and duties of the Pasco
Public Facilities District (PPFD Board and the PPFD Board's most recent
efforts have been evaluating the construction of an Aquatic Center, which had
been scheduled to go to a vote this summer. However, it has been delayed to
next year due to the onset of COVID-19 crisis. Mr. Zabell noted the tenure of
Mr. Morrissette on the PPFD Board and the needed continuity of Mr.
Morrissette's continuation of the PPFD Board.
Mr. Maloney also commented on Mr. Morrissette's commitment as a public
servant to Pasco and the PPFD Board.
MOTION: Mayor Pro Tem Barajas moved to confirm the Mayor's
reappointment of Mark Morrissette to the Pasco Public Facilities District Board
to Position No. 2 with a term expiring on July 14, 2024. Mr. Serrano seconded.
The motion carried unanimously
MISCELLANEOUS DISCUSSION:
Mr. Zabell discussed the letter drafted by Councilmember Serrano and slightly
adjusted by Gordon, Thomas, Honeywell, LLP. The letter is addressed to
Governor Inslee and explains the major issues forthcoming to the Council, the
need for Council to hear from the public before making final decisions and a
request to provide the City an opportunity to allow in-person meetings prior to
moving into Phase 3 of the Safe Start Washington Plan.
Mayor Martinez and Mr. Serrano commented on the purpose of the letter and
the need to engage the public and interact with Pasco residents in-person on key
issues forthcoming to Council.
After a brief Council discussion, it was determined that the letter will be signed
by Mayor Martinez on behalf of the whole Council.
Mr. Zabell introduced Mr. White who provided an update on the CARES Act
Grant funding.
Mr. Maloney commented that he, Councilmember Milne and Councilmember
Page 3 of 4 Page 7 of 156
REMOTE REGULAR
MEETING
MINUTES
PASCO CITY COUNCIL JULY 20, 2020
Alvarado visited the Pasco downtown businesses, as well as spoke with Mr.
Zabell, Mr. Zabell and DPDA Executive Director Gustavo Gutierrez Gomez
and it cleared up questions that he and other Councilmembers had about the
CARES Act grant funding process. Mr. Maloney also asked for confirmation
that Franklin County also received CARES Act funding and how they are
administrating the funds.
Mr. White confirmed that Franklin County has approximately $2.5 and was
processing grants to County businesses, similar the the City's efforts.
Mr. Milne reiterated Mr. Maloney's comments regarding the grants process for
Pasco's businesses.
Mr. Zabell provided a followup the the re-opening of business kits; 70 kits were
distributed last week and then additional kids were distributed
Mr. Zabell asked Council respond with their preference of the dates for the
upcoming Council Retreat within the week. Lastly, Mr. Zabell noted that the
first Arts and Culture Commission meeting was scheduled to meet on
Wednesday, July 22, 2020.
ADJOURNMENT:
There being no further business, the meeting adjourned at 7:58 PM.
APPROVED: ATTEST:
Saul Martinez, Mayor Debra Barham, City Clerk
Page 4 of 4 Page 8 of 156
REMOTE
WORKSHOP
MEETING
MINUTES
PASCO CITY COUNCIL JULY 27, 2020
REMOTE WORKSHOP INSTRUCTIONS:
The Pasco City Council Workshop was broadcast live on PSC-TV Channel 191
on Charter/Spectrum Cable in Pasco and Richland and streamed at www.pasco-
wa.gov/psctvlive and on the City’s Facebook page at
www.facebook.com/cityofPasco. Call-in information to GoToWebinar for
"listen-only" mode was also made available.
CALL TO ORDER:
The meeting was called to order at 7:00 PM by Saul Martinez, Mayor.
ROLL CALL:
Councilmembers present: Ruben Alvarado (virtual), Blanche Barajas (virtual),
Craig Maloney (virtual), Saul Martinez (in-person), David Milne (virtual),
Zahra Roach (virtual) and Pete Serrano (virtual).
Staff present: Eric Ferguson, City Attorney (virtual); Colleen Chapin, Human
Resources Director (virtual); Bob Gear, Fire Chief (in-person); Ken Roske,
Police Chief (virtual); Richa Sigdel, Finance Director (in-person); Rick White,
Community & Economic Development Director (virtual); Steve Worley, Public
Works Director (virtual); and Debby Barham, City Clerk (in-person).
The meeting was opened with the Pledge of Allegiance.
VERBAL REPORTS FROM COUNCILMEMBERS:
Mr. Alvarado shared that he participated in a video with the Greater Columbia
Accountable Community of Health Leadership Council & Board for a mask
wearing campaign.
Mayor Martinez also noted that he will be participating in the same mask
wearing campaign and will be video taped later in the week.
Mr. Serrano commented on a recent meeting with the Hanford Area Economic
Investment Fund Advisory Committee.
ITEMS FOR DISCUSSION:
Transportation System Master Plan Update Presentation
Mr. Ford introduced Carl Springer, Project Manager from DKS Associates who
provided an overview and status update of the Transportation System Master
Plan process.
Council, Mr. Springer and staff had a brief discussion regarding the
development of the City's Transportation System Master Plan related to the
City's Urban Growth Area and zoning, as well as working with the Washington
State Department of Transporation.
2020 Pavement Preservation Program
Mr. Worley provided a brief presentation regarding the City's Pavement
Preservation Program, which included the rating process, a discussion on the
long-term cost savings of early preventative maintenance, types of pavement
Page 1 of 2 Page 9 of 156
REMOTE
WORKSHOP
MEETING
MINUTES
PASCO CITY COUNCIL JULY 27, 2020
rehabilitation and the major project scheduled in 2020.
Council and staff conducted a question and answer period during presentation
and continued after the presentation concluded.
Presentation – Follow up to PMC 9.105 Unauthorized Camping Infractions
& U.S. Court of Appeals for Ninth Circuit Case
Mr. Ferguson provided an overview of the Pasco Municipal Code (PMC)
Chapter 9.105, "Unauthorized Camping Infractions" and a U.S. Court of
Appeals for the Ninth Circuit Case, "Martin v. City of Boise, 920 F.3d (2019)
and how that court decision relates to PMC Chapter 9.105.
Council and staff discussed aspects of the court case and the PMC's section
related to unauthorized camping infractions.
MISCELLANEOUS COUNCIL DISCUSSION:
Mr. White reported on the current status of the CARES Act Grant funding.
Council and Mr. White discussed the following related to the grant funding
process:
• the number of applications submitted for the grant funding and how
many applications did not meet the qualifications;
• the need for funding local businesses far outweighs the funding
available at this time;
• an explanation of first come, first serve and first come, first eligible as
the grant applications are received; and
• the CARES Act grants funding are dispersed using City funds and the
federal government will reimburse the City after the documentation is
submitted to the federal government. That is why such great care is
taken in reviewing the applicant documentation. It must be completed
correctly in order for the City to receive reimbursement from the federal
government.
Ms. Roach commented about businesses along Road 68 and Burden Boulevard
that did not know that they could utilize parking spaces to accommodate
outdoor seating for their restaurants. Council and staff had a brief brainstorming
session to get the word out to local businesses via the Chamber of Commerce
organizations.
Ms. Roach commented on a Visit Tri-Cities meeting she recently attended.
ADJOURNMENT:
There being no further business, the workshop was adjourned at 8:52 PM.
APPROVED: ATTEST:
Saul Martinez, Mayor Debra Barham, City Clerk
Page 2 of 2 Page 10 of 156
AGENDA REPORT
FOR: City Council July 30, 2020
TO: Dave Zabell, City Manager
Richa Sigdel, Finance Director
Remote Regular Meeting:
8/3/20
FROM: Darcy Buckley, Financial Services Manager
Finance
SUBJECT: Bills and Communications
I. REFERENCE(S):
Accounts Payable 08.03.20
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
To approve claims in the total amount of $7,526,969.84 ($3,284,046.98 in Check Nos.
236624-236978; $425,298.85 in Electronic Transfer Nos. 828908-828962, 828966-
829005, 829009-829075, 829087-829148, 829152-829162, 829190-829194;
$14,449.17 in Check Nos. 53375-53387; $797,783.84 in Electronic Transfer Nos.
30150107-30150617; $3,005,391.00 in Electronic Transfer Nos. 692).
III. FISCAL IMPACT:
IV. HISTORY AND FACTS BRIEF:
V. DISCUSSION:
Page 11 of 156
REPORTING PERIOD:
August 3, 2020
Claims Bank Payroll Bank Gen'l Bank Electronic Bank Combined
Check Numbers 236624-236978 53375-53387
Total Check Amount $3,284,046.98 $14,449.17 Total Checks 3,298,496.15$
Electronic Transfer Numbers 828908-828962 30150107-30150617 692
828966-829005
829009-829075
829087-829148
829152-829162
829190-829194
Total EFT Amount $425,298.85 $797,783.84 $3,005,391.00 $0.00 Total EFTs 4,228,473.69$
Grand Total 7,526,969.84$
Councilmember
1,302,068.61
40,352.81
2,946.77
10,000.00
1,552.64
56,697.30
2,874.47
0.00
29,340.13
969.14
1,905.67
1,011.19
20,774.35
0.00
3,850.05
14,583.33
0.00
64,698.95
200.25
HOTEL/MOTEL EXCISE TAX 12,714.03
0.00
693,943.43
1,010,967.75
42,364.27
38,512.02
0.00
POOLED INVESTMENT 3,005,391.00
1,169,251.68
GRAND TOTAL ALL FUNDS:7,526,969.84$
The City Council
July 16 - July 29, 2020
C I T Y O F P A S C O
Council Meeting of:
Accounts Payable Approved
City of Pasco, Franklin County, Washington
We, the undersigned, do hereby certify under penalty of perjury the materials have been furnished, the services rendered or the labor performed as described
herein and the claim is a just, due and unpaid obligation against the city and we are authorized to authenticate and certify to such claim.
Dave Zabell, City Manager Richa Sigdel, Finance Director
We, the undersigned City Councilmembers of the City Council of the City of Pasco, Franklin County, Washington, do hereby certify on this
3rd day of August, 2020 that the merchandise or services hereinafter specified have been received and are approved for payment:
Councilmember
SUMMARY OF CLAIMS BY FUND:
GENERAL FUND
STREET
RIVERSHORE TRAIL & MARINA MAIN
C.D. BLOCK GRANT
HOME CONSORTIUM GRANT
MARTIN LUTHER KING COMMUNITY CENTER
AMBULANCE SERVICE
CEMETERY
ATHLETIC PROGRAMS
GOLF COURSE
SENIOR CENTER OPERATING
MULTI-MODAL FACILITY
EQUIPMENT REPLACEMENT GOVT
SPECIAL ASSESSMENT LODGING
LITTER ABATEMENT
REVOLVING ABATEMENT
TRAC DEVELOPMENT & OPERATING
PARKS
ECONOMIC DEVELOPMENT
STADIUM/CONVENTION CENTER
LID
GENERAL CAP PROJECT CONSTRUCTION
UTILITY, WATER/SEWER
EQUIPMENT RENTAL - OPERATING GOVERNMENTAL
MEDICAL/DENTAL INSURANCE
PAYROLL CLEARING
Page 12 of 156
AGENDA REPORT
FOR: City Council July 29, 2020
TO: Dave Zabll, City Manager
Zach Ratkai, Administrative & Community
Services Director
Remote Regular Meeting:
8/3/20
FROM: Debby Barham, City Clerk
Administrative & Community Services
SUBJECT: Reappointments to the Tri-City Regional Hotel/Motel Commission
I. REFERENCE(S):
Tri-Cities Hotel and Lodging Association recommendation letters dated June 2019 and
June 2020
Interlocal Agreement - Section 5, Appointment to Regional Hotel/Motel Commission
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
I move to confirm the appointments of Monica Hammerberg (Hampton Inn & Suites)
to the Tri-Cities Regional Hotel/Motel Commission for a two-year term commencing
on 9/1/2019 and ending 8/31/2021 and Vijay Patel (Holiday Inn Express & Suites) to a
two-year term commencing on 9/1/2020 and ending 8/31/2022.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
Pasco, along with the Cities of Kennewick and Richland, entered into an interlocal
agreement in June 2004 to create a regional "Tourism Promotion Area" (TPA). The
TPA is an organization formed as authorized by state law to levy special assessments
for the use of lodging facilities with the respective area. In the case of the Tri-Cities, all
hotels/motels within the boundaries of the three Cities are required to collect the fee of
$2.00 for each room night used by the patrons of their facilities. That fee is remitted by
each of the hotels/motels to the state; the state, in return, distributes the funding back to
the respective Cities within which the fee collected (much like the long -standing 2%
hotel/motel tax) and the Cities distribute it to the TPA for exp enditure in accordance
with the business plan and budget established by the Regional Hotel/Motel
Commission.
Page 13 of 156
The Regional Hotel/Motel Commission is established under Section 5 of the Interlocal
Agreement. The Commission consists of six (6) voting members; two appointed by
each of the three (3) Cities from nominees offered by the Tri-City Hotel Lodging
Association. Any vacancy is to be filled by the respective City from a list of nominees
offered by the Association.
During a recent audit of the Tri-Cities Hotel/Motel Commission appointments, it was
discovered that Ms. Hammerberg's reappointment was not confirmed by Council in
2019. Therefore, tonight's Council action will ratify her reappointment and confirm the
reappointment of Mr. Patel.
V. DISCUSSION:
Mayor Martinez recommends that City Council confirm the reappointments of Ms.
Hammerberg and Mr. Patel to the Tri-Cities Hotel/Motel Commission as endorsed by
the the Tri-Cities Hotel Lodging Association without an interview.
Page 14 of 156
Page 15 of 156
Page 16 of 156
Tourism Promotion Area
5. Creation of Tri-City Regional Hotel-Motel Commission.
A. It is understood and agreed that it is hereby created, pursuant to RCW 35.101.130
( 1 ), the Tri-City Regional Hotel and Motel Commission ("Commission") to advise the Cities on
the expenditure of Special Lodging Assessment revenues to fund tourism promotion within the
Tri-City region.
B. The Commission shall consist of six (6) voting Members and three (3) ex officio
Members. Two voting members shall be selected by the Kennewick City Council from a list of
nominees prepared by the Tri-City Hotel and Lodging Association from Operators of Lodging
Businesses within the city limits of the City of Kennewick. Two (2) voting members shall be
selected by the Pasco City Council from a list of nominees prepared by the Tri-City Hotel and
Lodging Association from Operators of Lodging Businesses within the city limits of the City of
Pasco. Two voting members shall be selected by the Richland City Council from a list of
nominees prepared by the Tri-City Hotel and Lodging Association from Operators of Lodging
Businesses within the city limits ofthe City of Richland. In no event shall tifty percent (SO%) or
more of the voting membership of the Commission be selected from the same Lodging
Ownership or Management Company within the Tri-City Regional Area. The City Manager or
his or her Designee from each of the three Cities shall serve as an ex officio member. All
Commission members, voting and ex officio may participate in all discussions regarding
proposed activities and programs by the Tri-City Regional Tourism Promotion Area for
promotion and marketing of tourism. Ex officio members shall not have voting rights , except in
the event of a tie vote among the voting members at which time, each ex officio member may
cast a vote to break the tie. Any vacancy on the Tri-City Regional Hotel and Motel Commission
shall be filled by the appointing City, from a list of nominees prepared by the Tri -City Hotel and
Lodging Association for voting memberships within thirty (30) days from the date the vacancy
occurs.
C. It is understood and agreed that the initial voting members of the Commission
shall serve staggered terms, with one member serving a one-year term and the second member
serving a two-year term. The length of the term for each individual voting member of the initial
Commission shall be chosen by lot at the first meeting of the Commission. Thereafter, all voting
members subsequently appointed to the Commission shall serve a term of two years. No voting
member shall serve more than two consecutive terms as a Member of the Commission unless
such subsequent term is separated by at least twelve (12) months from the last date of service as
a Member of the Commission. A Member may be removed from the Commission by three-
fourths (3 /4) affirmative vote of the Commission for actions deemed to be adverse to the interest
of the Commission. Such actions may include unexcused absences from three meetings of the
Commission within a twelve (12) month period; failure to perform assigned duties and
responsibilities; and conduct detrimental to the best interests of the Commission. Succeeding
and replacement voting members shall be selected by each City as provided above for the
selection of the initial voting members ofthe Commission.
Page 17 of 156
AGENDA REPORT
FOR: City Council July 15, 2020
TO: Dave Zabell, City Manager
Remote Regular Meeting:
8/3/20
FROM: Dave Zabell, City Manager
Executive
SUBJECT: Presentation - DOL Enhanced Licenses
I. REFERENCE(S):
REAL ID Updates and COVID-19 Impacts on DOL Services PowerPoint Presentation
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
Discussion only.
III. FISCAL IMPACT:
None
IV. HISTORY AND FACTS BRIEF:
The REAL ID Act is a federal law enacted in 2005. The act established minimum
security standards for state-issued driver licenses and ID cards. Within the past few
years Washington State has transitioned to a driver's license format that is compliant
with federal law, however in that licenses are valid for multiple years, not all
Washington license holders may have federally compliant licenses. Starting October 1,
2021, for anyone using their Washington State drivers license to travel by airplane or
visit certain federal facilities, the license must be REAL ID compliant.
V. DISCUSSION:
Sandra Najera, Communications and Outreach Manager with the Washington State
Department of Licensing (DOL) will provide a presentation on "REAL ID" the
enhanced Washington State licenses, including the impact the COVID-19 pandemic
has had on the program.
Page 18 of 156
REAL ID Overview
LIVE, WORK,
DRIVE & THRIVE
Helping every
Washington resident
and fly!Page 19 of 156
Meet the Outreach team…
DOL Outreach Team
Sandra Najera
WA Department of Licensing
Communications and Outreach Manager
snajera@dol.wa.gov
Anahi Macchiavelli
WA Department of Licensing
Community Outreach Specialist
amacchiave@dol.wa.gov
Page 20 of 156
Agenda
•New implementation date for Real ID
•How will the changes affect you?
What do you need to do?
•COVID-19 impacts on DOL services
•Renew online step-by-step
instructions
Page 21 of 156
Page 22 of 156
Access to Federal Agencies and Airports
Congress passed the REAL ID Act in 2005
Starting October 1, 2020, REAL ID compliant
documents are required for:
•Domestic air travel
•Access to certain federal facilities (e.g. military
bases)
•Access to nuclear power plants
Page 23 of 156
You may already have what you need!
There are many pieces of existing identification options that will work including:
Find a full list at:
www.tsa.gov/security-screening/identification
U.S. Passport/Passport card Foreign Passport
Permanent Resident Card Employment
Authorization Card EDL/EID
DHS Trusted
Traveler Card
Tribal ID
Military ID
B1/B2 Border
Crossing Card
TWIC
Card
Page 24 of 156
Marking on WA DOL Standard Documents
Standard driver licenses and ID cards issued
after July 1, 2018, are marked with the term
FEDERAL LIMITS APPLY.
The marking is the same regardless of your
citizenship or immigration status, and cannot
be used as evidence or as a basis to
determine an individual’s citizenship or
immigration status for any purpose.Page 25 of 156
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Our d i ver s e c o m muni ties are imp acted different l y b y REA L ID.
T heir a v a i l abl e o p t io n s v a r y.T heir imp a ct depend s o n their tra vel h abi t s.
Least Impacted;
Most Options
Somewhat
Impacted;
Some Options
Somewhat
Impacted;
Only One Option
Most Impacted;
May Have One
Option
Most Impacted;
Least or No
Option
Understand the Impact
U.S .cit i zen s
•Natu ral-b orn o r
Natu rali ze d
•H as U.S.
p ass p o rt o r E DL
U.S.p erman ent
residen ts
•H as Permanent
Resident card (green
card)
•H as fo reign p ass p o rt
N o n -imm igrant v i sa
h o lde r s
•i .e.i n ternatio n al
stu d e n ts,fore ign
wo r ke rs,and spo u s e s
•H as fo reign p ass p o rt
•H as vali d visa and
sup p ort in g d o c u ments
In-b etween sta t us
•i .e.vi c tims o f d o mestic
vio l en c e and h u m a n
traffic kin g
•i .e.appl i cants i n the
m idst o f vi sa ren e wal
•i .e.DACA rec i p ien ts
•May h ave fo reign
p ass p o rt and vali d
visa,m ay h ave EAC
Und o cumen ted
•i .e.DACA e l i g ible
c o m m u n i ty,trave l e rs
wh o ove rstay e d their
visa,vict ims o f
d o mestic vio l e n c e and
h u m a n traffic kin g
•May o r m ay n o t h ave
fo reig n passp o rt
Page 27 of 156
Know Your Resources
DOL ID2021 Campaign ID2020 To ols
•ID2021 Campaign webpage:
www.ID2021WA.com to access interactive quiz and resources.
Additional languages:
•Spanish:www.ID2021WA.com/es
•Chinese:www.ID2021WA.com/zh
•Vietnamese:www.ID2021WA.com/vi
•Korean:www.ID2021WA.com/ko
•DOL YouTube Videos:
www.youtube.com/user/WALicensing /playlist
•ID2021WA Resources:
https://www.dol.wa.gov/media/toolkit.html
•DOL website
www.dol.wa.gov/about/real-id-overview.html
•Complete list of REAL ID compliant documents
www.tsa.gov
•Dept. of Homeland Security
www.dhs.gov/real-id
•REAL ID ACT language
https://www.law.cornell.edu/cfr/text/6/part-37
Page 28 of 156
COVID-19 Impacts on
DOL Services
Page 29 of 156
DRIVER LICENSING OFFICES BEGAN
REOPENING BY APPOINTMENT ONLY
Page 30 of 156
Driver License Extensions
•Driver licenses with an expiration date
between March 1, 2020, and June 30, 2020,
already were extended for 90 days and will
be extended for an additional 90 days (for a
total of 180 days). This means these driver
licenses will expire six months after the date
shown on the license.
•Driver licenses with an expiration date
between July 1, 2020 and Sept. 30, 2020,
will be extended for 90 days. This means
these driver licenses will expire three months
after the date shown on the license.Page 31 of 156
Print and carry this
extension letter
The new expiration date will show up on a
driver’s record if it is pulled up by law
enforcement. New cards will not be
issued. DOL recommends printing and
carrying this notice and presenting it with
an expired license if requested by law
enforcement or others who need to verify
identity.Page 32 of 156
Customers are urged to go online if possible, to get what they need. Online services are
regularly expanded.Page 33 of 156
Questions?
Please email us at DOLCommOutreach@dol.wa.gov
Sandra Najera
WA Department of Licensing
Communications and Outreach Manager
snajera@dol.wa.gov
Anahi Macchiavelli
WA Department of Licensing Community
Outreach Specialist
amacchiave@dol.wa.gov
You can also contact us directly:Page 34 of 156
AGENDA REPORT
FOR: City Council July 28, 2020
TO: Dave Zabell, City Manager
Rick White, Director
Community & Economic Development
Remote Regular Meeting:
8/3/20
FROM: Darcy Bourcier, Planner I
Community & Economic Development
SUBJECT: Street Vacation: Vacating a Portion of E Pueblo Street (MF# VAC2019-006)
I. REFERENCE(S):
Overview Map
Updated Vacation Petition
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to continue the hearing of the Pueblo Street Vacation request to
September 8, 2020.
III. FISCAL IMPACT:
None.
IV. HISTORY AND FACTS BRIEF:
The owner of CO-Energy (a Connell Oil company), initially submitted a petition to
vacate a portion of the E. Pueblo Street right-of-way that extends from N. California
Avenue to the centerline of the vacated Montana Street. In the Agenda Report for the
May 18, 2020 Council meeting, staff recommended denial of the requested vacation by
the City Council for the following reasons:
• Approval of the vacation would result in the creation of a cul -de-sac at the
terminus of the remaining right-of-way exceeding the maximum allowable
length of 600 feet.
• Approval of the vacation may negatively impact the properties abutting the un-
vacated portion as additional right-of-way would be required to be dedicated for
an adequate IFC-approved turn-around.
• Proportional public benefit is not foreseen as a result of approval, as a vacation
Page 35 of 156
of the limited extent of right-of-way may burden surrounding properties with
the requirement to dedicate additional right-of-way for an IFC-approved turn-
around.
Council decided to continue the hearing to August 3, 2020 in order to provide the
applicant and staff time to discuss the proposal further with the remaining property
owners whose properties also abut E. Pueblo Street.
During the ensuing weeks, the applicant has been working with two of the nearby
property owners to file tax parcel consolidations that would prevent any parcels from
becoming landlocked in the event of a vacation and is now seeking the vacation of the
entire extent of E. Pueblo Street from N. California Avenue to N. Utah Avenue. It is
anticipated that the tax parcel consolidations will be filed before the September 8, 2020
Council meeting.
The applicant intends to utilize the vacated right-of-way to facilitate development.
While staff has not yet received a site plan of the proposed development, the applicant
has stated that Connell Oil aims to develop the site with a building of approximately
10,000 square feet in size and a fuel tank farm.
V. DISCUSSION:
Staff is currently discussing any implications involved with the vacation of the full
extent of right-of-way and will present any anticipated issues for Council's
consideration at the continued hearing during the September 8, 2020 Council meeting.
Page 36 of 156
City of Pasco, IS Division
/
0 360 720180Feet
Street Vacation: A Portion of East Pueblo Street
Applicant: CO-Energy
File #: VAC2019-006
Overview
Map
N California AveE Salt La
k
e
S
t
SITE
E Super
i
o
r
S
t
N Utah AvePage 37 of 156
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AGENDA REPORT
FOR: City Council July 28, 2020
TO: Dave Zabell, City Manager Remote Regular Meeting:
8/3/20
FROM: Steve Worley, Director
Public Works
SUBJECT: Resolution - Overpass Agreement with BNSF for Lewis Street Overpass
I. REFERENCE(S):
Resolution
Overpass Agreement
ROW Map
PowerPoint Presentation
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: I move to approve Resolution No. 3976, authorizing execution of the
Overpass Agreement with Burlington Norther Santa Fee Railroad Company (BNSF)
for Lewis Street Overpass and further, authorize the City Manager to make minor
substantive adjustments and to execute all other documents related to the BNSF right-
of-way and this project.
III. FISCAL IMPACT:
Administrative Fee $ 2,000
Permanent Easements Compensation $ 154,809
Temporary Easements Compensation $ 207,204
BNSF Inspection Fees - Not to Exceed $ 381,907
BNSF Flagging Fees - Not to Exceed $ 457,746
BNSF Crossing Surface & Removal $ 50,000 (Estimated Cost)
TOTAL $1,253,666 (Estimated at this
time)
The estimated costs above have been included in the overall project budget and will be
paid for through a combination of state grants and local funds currently allocated to the
project.
Page 48 of 156
IV. HISTORY AND FACTS BRIEF:
To construct, operate and maintain the proposed Lewis Street Overpass across the
BNSF right-of-way, BNSF requires the execution of an Overpass Agreement. This
agreement covers several issues including:
1. Establishing responsibilities of each party;
2. Compensation to BNSF for necessary temporary and permanent easements; and
3. Costs associated with work by BNSF within BNSF right-of-way for the
construction of the Overpass project
V. DISCUSSION:
City and Legal staff have been coordinating and negotiating with BNSF in the review
and negotiation of the proposed Overpass Agreement and the proposed construction
drawings. After many months of coordination and iterative revisions, final terms on the
agreement appear to have been reached. Given the complexities and the overall number
of details involved, staff is requesting that Council authorize the City Manager to make
any Council to return to having changes to substantive minor potential avoid
unnecessarily.
BNSF has accepted the majority of the City’s recommended edits and most fields
within the agreement have been filled in. There are still a few names of BNSF staff
missing in this document. These names will be for those who will have responsibility
for coordinating with our particular project. However, BNSF confirmed they would
add those names later, once they determine who the appropriate staff will be.
This is the last right-of-way document needed to complete the right-of-way phase of
the Lewis Street Overpass project. Once executed, Washington State Department of
Transportation (WSDOT) staff can certify the right-of-way phase and paperwork can
be submitted for the obligation of construction funds ($13.5 million in Connecting
Washington funds and $4.4 million in Motor Vehicle Account funds).
Execution of this agreement and the obligation of construction funds are essential to
securing the funding that will allow the project to move into construction.
Staff recommends execution of this agreement.
Page 49 of 156
Resolution – BNSF Overpass Agreement -1
RESOLUTION NO. _______
A RESOLUTION AUTHORIZING EXECUTION OF THE OVERPASS
AGREEMENT WITH BNSF FOR THE LEWIS STREET OVERPASS AND
FURTHER AUTHORIZING THE CITY MANAGER TO MAKE MINOR
SUBSTANTIVE ADJUSTMENTS AND TO EXECUTE ALL OTHER
DOCUMENTS RELATED TO THE BNSF RIGHT OF WAY AND THIS
PROJECT.
WHEREAS, RCW 35A.11.020 states that the legislative body of each code city shall have
all powers possible for a city or town to have under the Constitution of Washington state including
acquisition of public ways; and
WHEREAS, to construct, operate and maintain the proposed Lewis Street Overpass across
the BNSF Railway Company (BNSF) Right-of-Way, BNSF requires the execution of an Overpass
Agreement that establishes the responsibilities of each party, provides consideration to BNSF for
necessary temporary and permanent easements, and details the costs associated with BNSF work
done by BNSF within the BNSF Right-of-Way for the construction of the Overpass project; and
WHEREAS, the City of Pasco, as part of the Overpass Project, conducted an appraisal and
an appraisal review to determine the estimated fair market value to acquire the easements from the
BNSF as a necessary condition of the project through Resolution No. 3916 which also ratified the
City Manager’s concurrence and authorization for just compensation based on this appraisal
review; and
WHEREAS, this Overpass Agreement establishes a necessary Right-of-Way easement
allowing the City to cross BNSF property for the purpose of construction of the Lewis Street
Overpass and the essential terms of said agreement being previously negotiated by the City of
Pasco with BNSF.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PASCO, WASHINGTON:
That pursuant to RCW 35A.11.020, the City of Pasco will acquire the necessary Right-of-
Way easement allowing it to cross BNSF property for the purposes outlined in the Overpass
Agreement attached as Exhibit A, and incorporated by reference herein; and
Be It Further Resolved that the City Council of the City of Pasco hereby authorizes the
City Manager for the City of Pasco to execute the Overpass Agreement ; and to make minor
substantive adjustments and to take all necessary steps required to complete this transaction; and
Be It Further Resolved that this Resolution shall be in full force and effect upon adoption.
PASSED BY the City Council of the City of Pasco, Washington this 3rd day of August,
2020.
Page 50 of 156
Resolution – BNSF Overpass Agreement -2
________________________________
Saul Martinez
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, CMC Kerr Ferguson Law, PLLC
City Clerk City Attorney
Page 51 of 156
OVERPASS AGREEMENT
BNSF File No. BF10016090
Lewis St Overpass
U.S. D.O.T. No. 089709S
LS 0046
MP145.69
Lakeside Subdivision
This Agreement (“Agreement”), is executed to be effective as of ______________
(“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware
corporation ("BNSF"), and the City of Pasco, a political subdivision of the State of
Washington ("Agency”).
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Pasco,
State of Washington; and
WHEREAS, Agency desires to construct a new crossing at separated grades to be known
as the Lewis St Overpass, D.O.T. No. 089709S.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I) SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the construction
of the proposed Lewis Street Overpass (hereinafter referred to as the "Structure"), more
particularly described on the Exhibit A attached hereto and incorporated herein, 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. Additionally, temporary controls during construction must be in compliance with
Section 8A-08, "Temporary Traffic Control Zones" of the Manual of Uniform Traffic Control
Devices (“MUTCD”), U.S. Department of Transportation.
Page 52 of 156
ARTICLE II) BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof,
BNSF agrees as follows:
1. Upon Agency’s payment to BNSF of an administrative fee in the sum of Two Thousand
and No/100 Dollars ($2,000), together with the Temporary Construction License Fee in the sum
of Two Hundred Seven Thousand Two Hundred Four and No/100 Dollars ($207,204), BNSF
hereby grants to Agency, its successors and assigns, upon and subject to the terms and
conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called,
“Temporary Construction License”) to construct the Structure across or upon the portion of
BNSF's right-of-way described further on Exhibit A-1, 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,
provided such facilities do not materially interfere with the Agency’s use of the
Structure;
c) Otherwise use or operate the right-of-way as BNSF may from time to time deem
appropriate, provided such use or operations does not materially interfere with the
Agency’s use of the Structure; and
d) Require the Agency or its contractor to execute a Temporary Construction
Crossing Agreement, for any temporary crossing requested to aid in the
construction of this Project.
The term of the Temporary Construction License begins on the Effective Date and ends
on the earlier of (i) substantial completion of the Structure, or (ii) 36 months following the Effective
Page 53 of 156
Date. The Temporary Construction License and related rights given by BNSF to Agency in this
provision are without warranty of title of any kind, express or implied, and no covenant of warranty
of title will be implied from the use of any word or words herein contained. The Temporary
Construction License is for construction of the Structure only and shall not be used by Agency for
any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under
the Temporary Construction License, to use the Structure for any other purpose than construction.
In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-
of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature
whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement,
will not impair or interfere with the rights granted to Agency herein.
Upon Agency’s payment to BNSF of the additional sum of One Hundred Fifty Four
Thousand Eight Hundred Nine and No/100 Dollars ($154,809), such payment to be made within
thirty (30) days of issuing the Notice to Proceed pursuant to Article III, Section 16 of this
Agreement, and provided further that Agency is in compliance with the term and conditions of this
Agreement, BNSF will grant to Agency, its successors and assigns, an easement (hereinafter
called, the “Easement”) to enter upon and use that portion of BNSF’s right-of-way as is necessary
to use and maintain the Structure, substantially in the form of Exhibit B attached to this Agreement.
If Agency fails to pay BNSF within the thirty day time period set forth in the preceding sentence,
BNSF may stop construction of the Project until full payment is received by BNSF.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for
the construction of the Project, such railroad work and the estimated cost thereof being as shown
on Exhibit D attached hereto and made a part hereof. In the event construction on the Project
has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and
absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised
cost estimates will become a part of this Agreement as though originally set forth herein. Any
item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be
included as a part of this Agreement upon written approval of Agency, which approval will not be
unreasonably withheld. Construction of the Project must include the following railroad work by
BNSF:
(a) Procurement of materials, equipment and supplies necessary for the railroad work;
(b) Preliminary engineering, design, and contract preparation;
Page 54 of 156
(c) Furnishing of flagging services during construction of the Project as required and
set forth in further detail on Exhibit C;
(d) Furnishing engineering and inspection as required in connection with the
construction of the Project;
(e) Providing a contract project coordinator, at Agency’s expense, to serve as a project
manager for the Project;
(f) If required, removal of the existing Lewis St at-grade crossing, including removal
of the automatic warning devices, and obliteration of the crossing between the rails
and two feet outside thereof; and
(g) If required, construction of a temporary pedestrian at-grade crossing and
installation of automatic warning devices, at Agency’s expense.
(h) If required, temporary relocation of materials currently located in a storage area,
at Agency’s expense.
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis,
when BNSF, in its sole discretion, determines it is required by its labor agreements to perform
such work with its own employees working under applicable collective bargaining agreements.
4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency
or Agency’s contractor in connection with the Project which BNSF deems is reasonably necessary
for the immediate restoration of railroad operations, or for the protection of persons or BNSF
property. Such work may be performed by BNSF without prior approval of Agency and Agency
agrees to fully reimburse BNSF for all such emergency work.
5. BNSF may charge Agency for insurance expenses, including self-insurance expenses,
when such expenses cover the cost of Employer's Liability (including, without limitation, liability
under the Federal Employer's Liability Act) in connection with the construction of the Project.
Such charges will be considered part of the actual cost of the Project, regardless of the nature or
amount of ultimate liability for injury, loss or death to BNSF's employees, if any.
Page 55 of 156
6. During the construction of the Project, BNSF will send Agency progressive invoices
detailing the costs of the railroad work performed by BNSF under this Agreement. Agency must
reimburse BNSF for completed force-account work within thirty (30) days of the date of the invoice
for such work. Upon completion of the Project, BNSF will send Agency a detailed invoice of final
costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit
D. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice
within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033%
per day (12% per annum) on any unpaid sums or other charges due under this Agreement which
are past its credit terms. The finance charge continues to accrue daily until the date payment is
received by BNSF, not the date payment is made or the date postmarked on the payment.
Finance charges will be assessed on delinquent sums and other charges as of the end of the
month and will be reduced by amounts in dispute and any unposted payments received by the
month’s end. Finance charges will be noted on invoices sent to Agency under this section.
ARTICLE III) AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof,
Agency agrees as follows:
1. Agency must furnish to BNSF plans and specifications for the Project. Four sets of said
plans (reduced size 11” x 17”), together with two copies of calculations, and two copies of
specifications in English Units, must be submitted to BNSF for approval prior to commencement
of any construction. BNSF will give Agency final written approval of the plans and specifications
substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon
BNSF’s final written approval of the plans and specifications, said plans and specifications will
become part of this Agreement and are hereby incorporated herein. Any approval of the plans
and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the
finished product design and/or construction. Any approval by BNSF shall mean only that the
plans and specifications meet the subjective standards of BNSF, and such approval by BNSF
shall not be deemed to mean that the plans and specifications or construction is structurally sound
and appropriate or that such plans and specifications meet applicable regulations, laws, statutes
or local ordinances and/or building codes.
2. Agency must make any required application and obtain all required permits and approvals
for the construction of the Project.
Page 56 of 156
3. Agency must provide for and maintain minimum vertical and horizontal clearances, as
required in Exhibit C and as approved by BNSF as part of the plans and specifications for the
Project.
4. Agency must acquire all rights-of-way necessary for the construction of the Project.
5. Agency must make any and all arrangements, in compliance with BNSF’s Utility
Accommodation Manual (http://www.bnsf.com/communities/faqs/pdf/utility.pdf), for the
installation or relocation of wire lines, pipe lines and other facilities owned by private persons,
companies, corporations, political subdivisions or public utilities other than BNSF which may be
necessary for the construction of the Project..
6. Agency must construct the Project as shown on the attached Exhibit A and do all work
(“Agency’s Work”) provided for in the plans and specifications for the Project, except railroad work
that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and
equipment for the performance of Agency’s Work. The principal elements of Agency’s Work are
as follows:
(a) Construction of the Structure;
(b) All necessary grading and paving, including backfill of excavations and restoration
of disturbed vegetation on BNSF’s right-of-way;
(c) Provide suitable drainage, both temporary and permanent;
(d) Installation of a gate in the fence along the boundary of BNSF's right of way in
order to provide BNSF with permanent access for maintenance purposes;
(e) Provide appropriate pedestrian control during construction;
(f) Installation and maintenance of an 8-ft. high fence and/or concrete combination
(throw fence) on the outside barrier of the Structure;
(g) 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;
7. Agency must apply and maintain said D.O.T. Crossing number 089709S in a
conspicuous location on the Structure.
Page 57 of 156
8. Agency’s Work must be performed by Agency or Agency's contractor in a manner that
will not endanger or interfere with the safe and timely operations of BNSF and its facilities.
9. For any future inspection or maintenance, either routine or otherwise, performed by
subcontractors on behalf of the Agency, Agency shall require the subcontractors to comply with
the provisions of the attached Exhibit C and execute the agreement attached hereto as Exhibit C-
1. Prior to performing any future maintenance with its own personnel, Agency shall: comply
with all of BNSF’s applicable safety rules and regulations; require any Agency employee
performing maintenance to complete the safety training program at the BNSF’s Internet Website
“www.BNSFContractor.com”; notify BNSF when, pursuant to the requirements of Exhibit C, a
flagger is required to be present; procure, and have approved by BNSF’s Risk Management
Department, Railroad Protective Liability insurance.
10. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30)
calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit
C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF’s Manager
of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near
BNSF tracks.
11. Agency or its contractor(s) must submit four (4) copies of any plans (including two sets of
calculations in English Units) for proposed shoring, falsework or cribbing to be used over, under,
or adjacent to BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring,
falsework or cribbing used by Agency’s contractor shall comply with the BNSF Requirements for
construction of Grade Separation Projects set forth on Exhibit F and all applicable requirements
promulgated by state and federal agencies, departments, commissions and other legislative
bodies. If necessary, Agency must submit for approval two (2) copies of a professionally
engineered demolition plan, as set forth in Exhibit F, with applicable calculations to BNSF’s
Manager of Public Projects. The existing Lewis St Underpass will not be removed until BNSF
approves Agency’s demolition plan in writing.
12. Agency must include the following provisions in any contract with its contractor(s)
performing work on said Project:
(a) The Provider 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 Provider will be responsible for contacting
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BNSF’s Engineering Representative – To Be Determined, BNSF’s Signal
Representative – <%BNSFSignalContact%> and the telecommunications companies
and notifying them of any work that may damage these Lines or facilities and/or
interfere with their service. The Provider must also mark all Lines shown on the plans
or marked in the field in order to verify their locations. The Provider 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) The Provider will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Provider must cooperate fully with
any telecommunications company(ies) in performing such rearrangements.
(c) Failure to mark or identify these Lines will be sufficient cause for BNSF’s engineering
representative (To Be Determined) to stop construction at no cost to the Agency or
BNSF until these items are completed.
(d) In addition to the liability terms contained elsewhere in this Agreement, the Provider
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 Provider, 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 Provider,
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 PROVIDER
WILL APPLY ONLY TO THE EXTENT OF THE NEGLIGENCE OF PROVIDER, ITS
AGENTS OR EMPLOYEES, AND WILL NOT BE AFFECTED BY THE FACT, IF IT
IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF
ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
It is mutually negotiated between the parties that the indemnification obligation shall
include all claims brought by Provider’s employees against BNSF, its agents,
servants, employees or otherwise, and Provider expressly waives its immunity
under the industrial insurance act (RCW Title 51) and assumes potential liability
for all actions brought by its employees.
13. Agency must require compliance with the obligations set forth in this agreement, including
Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project,
or the specifications therefor (i) the provisions set forth in Article III and IV; and (ii) the provisions
set forth in Exhibit C, Exhibit C-1, and Exhibit F attached hereto and by reference made a part
hereof.
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14. Except as otherwise provided below in this Section 13, all construction work performed
hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency,
and all such contracts must include the following:
(a) All work performed under such contract or contracts within the limits of BNSF's right-
of-way must be performed in a good and workmanlike manner in accordance with
plans and specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF operations
must be subject to BNSF's approval;
(c) No work will be commenced within BNSF's right-of-way until each of the prime
contractors employed in connection with said work 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) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF’s
representative four (4) weeks advance notice of the proposed times and dates for
work windows. BNSF and Agency’s contractor will establish mutually agreeable work
windows for the Project. BNSF has the right at any time to revise or change the work
windows, due to train operations or service obligations. BNSF will not be responsible
for any additional costs and expenses resulting from a change in work windows.
Additional costs and expenses resulting from a change in work windows shall be
accounted for in the contractor’s expenses for the Project.
(e) The plans and specifications for the Project must be in compliance with the BNSF
Requirements for construction of Grade Separation Projects set forth on Exhibit F,
attached to this Agreement and incorporated herein.
15. Agency must advise the appropriate BNSF Manager of Public Projects, in writing, of the
completion date of the Project within thirty (30) days after such completion date. Additionally,
Agency must notify BNSF's Manager of Public Projects, in writing, of the date on which Agency
and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project.
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16. TO THE FULLEST EXTENT PERMITTED BY THE LAWS OF THE STATE OF
WASHINGTON, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS
HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS,
LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES,
PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS,
DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS AND ATTORNEYS’ FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY
PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES
HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM
OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF
AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON,
OR ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO
PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR
CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION
SITE, (IV) AGENCY’S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR
EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)
ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
AGREEMENT, (VI) AGENCY’S OCCUPATION AND USE OF BNSF’S PROPERTY OR RIGHT-
OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE
STRUCTURE BY AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS,
AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR
INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE
CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL APPLY ONLY TO THE
EXTENT OF THE NEGLIGENCE OF AGENCY, ITS AGENTS OR EMPLOYEES, AND THIS
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
INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
It is mutually negotiated between the parties that the indemnification obligation shall
include all claims brought by Agency’s employees against BNSF, its agents, servants,
employees or otherwise, and Agency expressly waives its immunity under the industrial
insurance act (RCW Title 51) and assumes potential liability for all actions brought by its
employees.
17. Agency must give BNSF’s Manager of Public Projects written notice to proceed
(“Notice to Proceed”) with the railroad work after receipt of necessary funds for the
Project. BNSF will not begin the railroad work (including, without limitation, procurement
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of supplies, equipment or materials) until written notice to proceed is received from
Agency.
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 written approval prior to the commencement of any such changes or
modifications from the To Be Determined.
2. The work hereunder must be done in accordance with the BNSF Requirements for
construction of Grade Separation Projects set forth on Exhibit F and the detailed plans and
specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction
schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete
the 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) Agency (or any of its contractors) performs the Project work in a manner
contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors),
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in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF property,
facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in
the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay
BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1
of this Agreement. The work stoppage will continue until all necessary actions are taken by
Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or
until proof of additional insurance has been delivered to and accepted by BNSF. In the event of
a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement,
BNSF may immediately terminate the Temporary Construction License or the Easement. Any
such work stoppage under this provision will not give rise to any liability on the part of BNSF.
BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not
limited to, actions or suits for damages 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:
5. Agency must supervise and inspect the operations of all Agency contractors to ensure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and
all safety requirements of BNSF . If BNSF determines that proper supervision and inspection are
not being performed by Agency personnel at any time during construction of the Project, BNSF
has the right to stop construction (within or adjacent to its operating right-of-way). Construction
of the Project will not proceed until Agency corrects the situation to BNSF’s reasonable
satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF
will immediately notify for appropriate corrective action.
6. Intentionally left blank.
7. Pursuant to this section and Article II, Section 6 herein, Agency must reimburse BNSF in
full for the actual costs of all work performed by BNSF under this Agreement (including taxes,
such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
8. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein
will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal
Regulations, and the Federal-Aid Policy Guide, U.S. Department of Transportation, as amended
from time to time, which manual is hereby incorporated into and made a part of this Agreement
by reference. The parties mutually agree that BNSF's preliminary engineering, design, and
contract preparation costs described in Article II, Section 2 herein are part of the costs of the
Project even though such work may have preceded the date of this Agreement.
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9. The parties mutually agree that neither construction activities for the Project, nor future
maintenance of the Structure once completed, will be permitted during the fourth quarter of each
calendar year, unless authorized in writing by BNSF. Emergency work will be permitted only upon
prior notification to BNSF's Network Operations Center (telephone number: 800 832-5452). The
parties hereto mutually understand and agree that trains cannot be subjected to delay during this
time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the
Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days
prior written notice of such commencement. The commencement notice will reference D.O.T.
Crossing No. 089709S and must state the time that construction activities will begin.
11. In addition to the terms and conditions set forth elsewhere in this Agreement, including,
but not limited to, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the
following terms upon completion of construction of the Project:
(a) Agency will own and maintain, at its sole cost and expense, the Structure, the
highway approaches, and appurtenances thereto, lighting, drainage and any
access roadways to BNSF gates installed pursuant to this Agreement. BNSF may,
at its option, perform maintenance on the Structure in order to avoid conflicts with
train operations. BNSF will notify Agency prior to performing any such
maintenance on the Structure. In the event such maintenance involves emergency
repairs, BNSF will notify Agency at its earliest opportunity. Agency must fully
reimburse BNSF for the costs of maintenance performed by BNSF pursuant to this
subsection (b) Agency and BNSF shall perform the necessary work to obtain the
permanent closure of Lewis St Underpass. Such closure shall be completed by
the 400th working day of the construction contract.
(b) Agency must, at Agency’s sole cost and expense, keep the Structure painted and
free from graffiti.
(c) Agency must provide BNSF with any and all necessary permits and maintain
roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow
BNSF to inspect the Structure or to make emergency repairs thereto.
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(d) It is expressly understood by Agency and BNSF that any right to install utilities will
be governed by a separate permit or license agreement between the parties
hereto.
(e) Agency must keep the Structure and surrounding areas clean and free from birds,
pigeons, scavengers, vermin, creatures and other animals.
(f) If Agency (including its contractors and agents) or BNSF, on behalf of Agency,
performs (i) alterations or modifications to the Structure, or (ii) any maintenance or
other work on the Structure with heavy tools, equipment or machinery at ground
surface level horizontally within 25’-0” of the centerline of the nearest track, or (iii)
any maintenance or other work outside the limits of the deck of the Structure
vertically above the top of the rail, then Agency or its contractors and/or agents
must procure and maintain the following insurance coverage, which may be
changed from time to time:
Railroad Protective Liability insurance naming only BNSF as the Insured with
coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate.
The policy shall 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.
Endorsed to include Evacuation Expense Coverage Endorsement.
No other endorsements restricting coverage may be added.
The original policy must be provided to BNSF 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.
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As used in this paragraph, “BNSF” means “Burlington Northern Santa Fe,
LLC”, “BNSF RAILWAY COMPANY” and the subsidiaries, successors, assigns
and affiliates of each.
In lieu of providing a Railroad Protective Liability Policy, Agency may
participate in BNSF’s Blanket Railroad Protective Liability Insurance Policy if
available to Agency or its contractors. The limits of coverage are the same as
above.
12. Agency hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of
access from Agency property to BNSF tracks for maintenance purposes.
13. Agency must provide one set of as built plans (prepared in English Units) to BNSF, as
well as one set of computer diskettes containing as built CAD drawings of the Structure and
identifying the software used for the CAD drawings. The "as built plans" must comply with the
BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit F and
depict all information in BNSF engineering stationing and mile post pluses. The "as built plans"
must also include plan and profile, structural bridge drawings and specifications, and drainage
plans. All improvements and facilities must be shown.
14. Subject to the restrictions imposed by Article IV, Section 9 above and in accordance with
the requirements of Article II, Section 9 above, Agency must notify and obtain prior authorization
from BNSF's Manager of Public Projects before entering BNSF's right-of-way for INSPECTION
OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if
flagging is required. If the construction work hereunder is contracted, Agency must require its
prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the
same may be revised from time to time. Agency will be responsible for its contractor(s)
compliance with such obligations.
15. In the event that BNSF shall deem it necessary or desirable in the future, in the
performance of its duty as a common carrier, to raise or lower the grade or change the alignment
of its tracks or to lay additional track or tracks or to build other facilities in connection with the
operation of its railroad, BNSF shall, at its expense, have full right to make such changes or
additions, provided such changes or additions do not change or alter the Structure herein
proposed to be constructed and provided further, however, that should it become necessary or
desirable in the future to change, alter, widen or reconstruct the Structure to accommodate
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railroad projects, the cost of such work, including any cost incidental to alteration of railroad or
highway facilities made necessary by the alteration of the Structure shall be the will be
responsibility of the BNSF or its funding partners.
16. Agency may, at Agency’s sole expense, alter or reconstruct the highway components of
the Structure if necessary or desirable, due to traffic conditions or pedestrian or other recreational
traffic, provided, however, that any such alteration or reconstruction must receive BNSF’s prior
written approval as evidenced by either a supplement to this Agreement, or execution of a new
agreement that provides for the termination of this Agreement. Furthermore, any alteration or
reconstruction of the highway components of the Structure will be covered by a Commission
Order.
17. Any books, papers, records and accounts of the parties hereto relating to the work
hereunder or the costs or expenses for labor and material connected with the construction will at
all reasonable times be open to inspection and audit by the agents and authorized representatives
of the parties hereto, as well as the State of Washington and the Federal Highway Administration,
for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
18. 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.
19. In the event construction of the Project does not commence within 24 months [years] of
the Effective Date, this Agreement will become null and void.
20. 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.
21. 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.
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22. This Agreement (including exhibits and other documents, manuals, etc. incorporated
herein) is the full and complete agreement between BNSF and Agency with respect to the subject
matter herein and supersedes any and all other prior agreements between the parties hereto.
23. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at
the following addresses:
BNSF Railway Company: BNSF's Manager of Public Projects
2454 Occidental Ave S, Suite 1A
Seattle, WA 98134
Agency: City of Pasco Public Works Director
525 N. 3rd Avenue
Pasco, WA 99301
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and attested by its duly qualified and authorized officials as of the day and year first above written.
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
WITNESS:
AGENCY
CITY [COUNTY] OF _______________
By:
Printed Name:
Title: _____________________
WITNESS:
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Exhibit A
[Insert drawing of the Project and/or Structure]
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EASEMENT AGREEMENT
FOR _____________________________
(Overpass Agreement)
THIS EASEMENT AGREEMENT FOR _________________ ("Easement
Agreement") is made and entered into as of the ____ day of _________ 20___
("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Grantor"), and __________________________, a ________________ ("Grantee").
A. Grantor owns or controls certain real property situated at or near the vicinity
of _______________________, County of _____________, State of _________, at Mile
Post __________, [Project # ___________], as described or depicted on Exhibit "A-1"
attached hereto and made a part hereof (the "Premises").
B. Grantor and Grantee have entered into that certain Overpass Agreement
dated as of ______________________________________ concerning improvements
on or near the Premises (the “Overpass Agreement”).
C. Grantee has requested that Grantor grant to Grantee an easement over the
Premises for the Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms
and conditions set forth in this Easement Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are
incorporated herein, the mutual promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
Section 1 Granting of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes
set forth in the OVERPASS 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 OVERPASS 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
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of whatsoever nature whether or not of record, if any, relating to the
Premises and subject to all with all applicable federal, state and local laws,
regulations, ordinances, restrictions, covenants and court or administrative
decisions and orders, including Environmental Laws (defined below) and
zoning laws (collectively, "Laws"). Grantor may not make any alterations
or improvements or perform any maintenance or repair activities within the
Premises except in accordance with the terms and conditions of the
OVERPASS Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be
exercised by Grantor and any other parties who may obtain written
permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate,
change, modify and relocate any existing pipe, power,
communication, cable, or utility lines and appurtenances and other
facilities or structures of like character (collectively, "Lines") upon,
over, under or across the Premises;
(b) to install, construct, maintain, renew, repair, replace, use, operate,
change, modify and relocate any tracks or additional facilities or
structures upon, over, under or across the Premises; and
(c) to use the Premises in any manner as the Grantor in its sole
discretion deems appropriate, provided Grantor uses all
commercially reasonable efforts to avoid material interference with
the use of the Premises by Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated
under provisions of this Easement Agreement, shall be perpetual. [If 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 Grantor has made no representation whatsoever to Grantee concerning the state or
condition of the Premises, or any personal property located thereon, or the nature or
extent of Grantor's ownership interest in the Premises. Grantee has not relied on any
statement or declaration of Grantor, oral or in writing, as an inducement to entering into
this Easement Agreement, other than as set forth herein. GRANTOR HEREBY
DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR
IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON
OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR
WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH
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PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE
TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES
RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY
OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON
OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH
PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED
UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS"
AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON
GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has
inspected or will inspect the Premises, and enters upon Grantor's rail corridor and
property with knowledge of its physical condition and the danger inherent in Grantor's rail
operations on or near the Premises. Grantee acknowledges that this Easement
Agreement does not contain any implied warranties that Grantee or Grantee's Contractors
(as hereinafter defined) can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT
WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE
IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming
title to or any interest in the Premises, or by the abandonment by Grantor of the affected
rail corridor, Grantor shall not be liable to refund Grantee any compensation paid
hereunder.
Section 5 Improvements. Grantee shall take, in a timely manner, all actions
necessary and proper to the lawful establishment, construction, operation, and
maintenance of the Improvements, including such actions as may be necessary to obtain
any required permits, approvals or authorizations from applicable governmental
authorities. Any and all cuts and fills, excavations or embankments necessary in the
construction, maintenance, or future alteration of the Improvements shall be made and
maintained in such manner, form and extent as will provide adequate drainage of and
from the adjoining lands and premises of the Grantor; and wherever any such fill or
embankment shall or may obstruct the natural and pre-existing drainage from such lands
and premises of the Grantor, the Grantee shall construct and maintain such culverts or
drains as may be requisite to preserve such natural and pre-existing drainage, and shall
also wherever necessary, construct extensions of existing drains, culverts or ditches
through or along the premises of the Grantor, such extensions to be of adequate sectional
dimensions to preserve the present flowage of drainage or other waters, and of materials
and workmanship equally as good as those now existing. In the event any construction,
repair, maintenance, work or other use of the Premises by Grantee will affect any Lines,
fences, buildings, improvements or other facilities (collectively, "Other Improvements"),
Grantee will be responsible at Grantee’s sole risk to locate and make any adjustments
necessary to such Other Improvements. Grantee must contact the owner(s) of the Other
Improvements notifying them of any work that may damage these Other Improvements
and/or interfere with their service and obtain the owner’s written approval prior to so
affecting the Other Improvements. Grantee must mark all Other Improvements on the
Plans and Specifications and mark such Other Improvements in the field in order to verify
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their locations. Grantee must also use all reasonable methods when working on or near
Grantor property to determine if any Other Improvements (fiber optic, cable,
communication or otherwise) may exist. The Grantee agrees to keep the above-described
premises free and clear from combustible materials and to cut and remove or cause to
be cut and removed at its sole expense all weeds and vegetation on said premises, said
work of cutting and removal to be done at such times and with such frequency as to
comply with Grantee and local laws and regulations and abate any and all hazard of fire.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes,
assessments or other charges (collectively, "Taxes") levied or assessed upon the
Improvements by any governmental or quasi-governmental body or any Taxes levied or
assessed against Grantor or the Premises that are attributable to the Improvements.
Grantee agrees to purchase, affix and cancel any and all documentary stamps in the
amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes
and any and all fees incidental to recordation of the Memorandum of Easement. In the
event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee
shall be liable for all costs, expenses and judgments to or against Grantor, including all
of Grantor's legal fees and expenses.
Section 7 Environmental.
7.1 Compliance with Environmental Laws. Grantee shall strictly comply with
all federal, state and local environmental Laws in its use of the Premises, including, but
not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the
Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
and the Toxic Substances Control Act (collectively referred to as the "Environmental
Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal"
facility, or "underground storage tank," as those terms are defined by Environmental
Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release
of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous
substances" may now or in the future be defined by any Environmental Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's
Resource Operations Center at (800) 832-5452 of any release of hazardous substances
on or from the Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with respect to
Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to
any release on or from the Premises. Grantee also shall give Grantor immediate notice
of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or
otherwise cure such release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from Grantee
or otherwise of a release or violation of Environmental Laws which occurred or may occur
during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's
sole risk and expense, to take timely measures to investigate, remediate, respond to or
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otherwise cure such release or violation affecting the Premises. If during the construction
or subsequent maintenance of the Improvements, soils or other materials considered to
be environmentally contaminated are exposed, Grantee will remove and safely dispose
of said contaminated soils. Determination of soils contamination and applicable disposal
procedures thereof, will be made only by an agency having the capacity and authority to
make such a determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing
any conditions or activities upon the Premises known to Grantee which create a risk of
harm to persons, property or the environment and shall take whatever action is necessary
to prevent injury to persons or property arising out of such conditions or activities;
provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any
obligation whatsoever imposed on it by this Easement Agreement. Grantee shall
promptly respond to Grantor's request for information regarding said conditions or
activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor
with proof satisfactory to Grantor that Grantee is in compliance with this Section 7.
Should Grantee not comply fully with the above-stated obligations of this Section 7,
notwithstanding anything contained in any other provision hereof, Grantor may, at its
option, terminate this Easement Agreement by serving five (5) days' notice of termination
upon Grantee. Upon termination, Grantee shall remove the Improvements and restore
the Premises as provided in Section 9.
Section 8 Default and Termination.
8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's
Contractors, fails to properly perform its obligations under this Easement Agreement,
Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed
obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work
as Grantor deems necessary for the safety of its rail operations, activities and property,
or to avoid or remove any interference with the activities or property of Grantor, or anyone
or anything present on the rail corridor or property with the authority or permission of
Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on
Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform
any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation
set forth in this Easement Agreement.
8.2 Abandonment. Grantor may, at its option, terminate this Easement
Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should
abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor
of any default or defaults shall not constitute a waiver of the right to terminate this
Easement Agreement for any subsequent default or defaults, nor shall any such waiver
in any way affect Grantor's ability to enforce any section of this Easement Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will
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release Grantee from any liability or obligation under this Easement, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date the Premises are restored as required by
Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be
in addition to, and not in limitation of, any other remedies that Grantor may have under
the OVERPASS Agreement, at law or in equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this
Easement Agreement, whether by abandonment of the Easement or by the exercise of
Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense,
immediately perform the following:
(c) remove all or such portion of Grantee's Improvements and all
appurtenances thereto from the Premises, as Grantor directs
at Grantor's sole discretion;
(d) repair and restore any damage to the Premises arising from,
growing out of, or connected with Grantee's use of the
Premises;
(e) remedy any unsafe conditions on the Premises created or
aggravated by Grantee; and
(f) leave the Premises in the condition which existed as of the
Effective Date.
9.2 Limited License for Entry. If this Easement Agreement is terminated,
Grantor may direct Grantee to undertake one or more of the actions set forth above, at
Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the
Premises to the extent necessary to undertake the actions directed by Grantor. The terms
of this limited license include all of Grantee's obligations under this Easement Agreement.
Termination will not release Grantee from any liability or obligation under this Easement
Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination, or, if later, the date when Grantee's
Improvements are removed and the Premises are restored to the condition that existed
as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any
termination of the Easement, all liabilities and obligations of Grantee hereunder shall
continue in effect until the Premises are surrendered.
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising
out of any construction, alterations or repairs done, suffered or permitted to be done by
Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee
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pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other
action upon or with respect to the Premises that is or may be permitted by Law to prevent
the attachment of any such liens to any portion of the Premises; provided, however, that
failure of Grantor to take any such action shall not relieve Grantee of any obligation or
liability under this Section 10 or any other section of this Easement Agreement.
Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under
this Easement Agreement to Goldfinch Exchange Company LLC, an exchange
intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal
Revenue Code. In such event, Grantor shall provide Grantee with a Notice of
Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of
receipt of such notice.
Section 12 Notices. Any notice required or permitted to be given hereunder by one
party to the other shall be delivered in the manner set forth in the OVERPASS
Agreement. Notices to Grantor under this Easement shall be delivered to the following
address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft.
Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time
direct by notice to Grantee.
Section 13 Recordation. It is understood and agreed that this Easement Agreement
shall not be in recordable form and shall not be placed on public record and any such
recording shall be a breach of this Easement Agreement. Grantor and Grantee shall
execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the
"Memorandum of Easement") subject to changes required, if any, to conform such form
to local recording requirements. [IF 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, Grantor shall have the right to terminate this Easement
Agreement upon notice to Grantee.
Section 14 Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of
this Easement Agreement shall be decided according to the substantive Laws of the State
of [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
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provisions hereof shall inure to the benefit of and be binding upon each of the parties
hereto and their respective legal representatives, successors and assigns and shall run
with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms
of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other relief to which
such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or
unenforceable under present or future Laws, such provision will be fully severable and
this Easement Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision is not a part hereof, and the remaining provisions hereof will
remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision
herein, there will be added automatically as a part of this Easement Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
14.5 This Easement Agreement is the full and complete agreement between
Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises,
and supersedes any and all other agreements between the parties hereto relating to
Grantee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Grantee or Grantee's obligation to defend and
hold Grantor harmless in any prior written agreement between the parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
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 Grantor, that
the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's
Broker a processing fee in the amount of $2,000.00 over and above the agreed upon
Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a
separate check.
[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:
Title:
GRANTEE:
_____________________________________
__,
a
_____________________________________
_
By:
Name:
Title:
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EXHIBIT "A-1"
Premises
Page 80 of 156
EXHIBIT "B-1"
Memorandum of Easement
THIS MEMORANDUM OF EASEMENT is hereby executed this day of
, 20___, by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth,
Texas 76131, and _______________________, a _______________("Grantee"), whose
address for purposes of this instrument is _________________________________, which terms
"Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural,
and the heirs, legal representatives, successors and assigns of the respective parties:
WITNESSETH:
WHEREAS, Grantor owns or controls certain real property situated in ________ County,
_________ as described on Exhibit "A-1" attached hereto and incorporated herein by reference
(the "Premises');
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated
(the "Easement Agreement") which set forth, among other things, the terms of an
easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and
WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the
Easement Agreement of record.
For valuable consideration the receipt and sufficiency of which are hereby acknowledged,
Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement
over and across the Premises.
The term of the Easement, unless sooner terminated under provisions of the Easement
Agreement, shall be perpetual. Provisions regulating the use and purposes to which the
Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and
Grantee agree to abide by the terms of the Easement Agreement.
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All the terms, conditions, provisions and covenants of the Easement Agreement are
incorporated herein by this reference for all purposes as though written out at length herein, and
both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute
a single instrument or document. This Memorandum of Easement is not intended to amend,
modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the
extent there may be any conflict or inconsistency between the Easement Agreement or this
Memorandum of Easement, the Easement Agreement shall control.
[Signature page follows]
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of
Easement to as of the date and year first above written.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware
corporation
By:
Name:
Title:
GRANTEE:
_____________________________,
_____________________________
By:
Name:
Title:
STATE OF _______________ §
§
COUNTY OF _____________ §
This instrument was acknowledged before me on the ___ day of _________________, 20__, by
(name) as
(title) of BNSF RAILWAY COMPANY, a
Delaware corporation.
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Notary Public
(Seal)
My appointment expires:
STATE OF _______________ §
§
COUNTY OF _____________ §
This instrument was acknowledged before me on the ___ day of _________________, 20__, by
(name) as (title) of
____________________________, a ______________________.
Notary Public
(Seal)
My appointment expires:
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EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General:
1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter
referred to as "Railway" where work is over or under on or adjacent to Railway property
and/or right-of-way, hereafter referred to as "Railway Property", during the construction of
Lewis Street Overpass.
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 (Agency) at and Railway's Manager
Public Projects, telephone number ( ) at least thirty (30) calendar days before
commencing any work on Railway Property. Contractor’s notification to Railway must refer to
Railway's file ___________.
1.01.07 For any bridge demolition and/or falsework 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.
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
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Railway’s Engineering Contractor Safety Orientation through internet sessions before
any work is performed on the Project. Additionally, the Contractor must ensure that
each and every one of its employees, subcontractors, agents or invitees possesses a
card certifying completion of the Railway Contractor Safety Orientation before entering
Railway Property. The Contractor is responsible for the cost of the Railway Contractor
Safety Orientation. The Contractor must renew the Railway Contractor Safety
Orientation annually. Further clarification can be found on the web site or from the
Railway’s Representative.
1.03 Railway Requirements
1.03.01 The Contractor must take protective measures as are necessary to keep railway
facilities, including track ballast, free of sand, debris, and other foreign objects and materials
resulting from his operations. Any damage to railway facilities resulting from Contractor's
operations will be repaired or replaced by Railway and the cost of such repairs or replacement
must be paid for by the Agency.
1.03.02 The Contractor must notify the Railway's Division Engineer
________________________ at (_____)_________________ and provide blasting plans to
the Railway for review seven (7) calendar days prior to conducting any blasting operations
adjacent to or on Railway's Property.
1.03.03 The Contractor must abide by the following temporary clearances during
construction:
15’-0” Horizontally from centerline of nearest track
21’-6” Vertically above top of rail
27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000
volts
30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000
volts
34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Upon completion of construction, the following clearances shall be maintained:
25’ Horizontally from centerline of nearest track
23’ 6” Vertically above top of rail
1.03.05 Any infringement within State statutory clearances due to the Contractor's
operations must be submitted to the Railway and to the (Agency) and must not be undertaken
until approved in writing by the Railway, and until the (Agency) has obtained any necessary
authorization from the State Regulatory Authority for the infringement. No extra compensation
will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or
the State Regulatory Authority's approval.
1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the
option of installing tell-tales or other protective devices Railway deems necessary for
protection of Railway operations. The cost of tell-tales or protective devices will be borne by
the Agency.
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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 (Agency) for approval before work
is undertaken and this work must not be undertaken until approved by the Railway.
1.03.08 At other than public road crossings, the 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 Safe ty 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 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, or b) that require access to Railroad Critical Infrastructure, Railroad Critical
Information Systems, Railroad’s Employees, Hazardous Materials on Railroad’s property or
is being transported by or otherwise in the custody of Railroad, or Freight in Transit involving
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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-RAILSAFE Program standards. Railroad shall have the right to deny entry
onto its premises or access as described in this section above to any of Contractor's
employees, subcontractors or agents who do not display the authorized identification badge
issued by a background screening service meeting the standards set forth in the e-RAILSAFE
Program, or who in Railroad's opinion, which may not be unreasonable, may pose a threat to
the safety or security of Railroad's operations, assets or personnel.
Contractors shall be responsible for ensuring that its employees, subcontractors and agents
are United States citizens or legally working in the United States under a lawful and
appropriate work VISA or other work authorization.
1.05 Railway Flagger Services:
1.05.01 The Contractor must give Railway’s Roadmaster (telephone ________) a
minimum of thirty (30) calendar days advance notice when flagging services will be required
so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger’s
position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that
appropriate arrangements can be made to abolish the position pursuant to union
requirements.
1.05.02 Unless determined otherwise by Railway’s Project Representative, Railway flagger
will be required and furnished when Contractor’s work activities are located over, under and/or
within twenty-five (25) feet measured horizontally from centerline of the nearest track and
when cranes or similar equipment positioned beyond 25-feet from the track centerline could
foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto
for the following conditions:
1.05.02a When, upon inspection by Railway’s Representative, other
conditions warrant.
1.05.02b When any excavation is performed below the bottom of tie
elevation, if, in the opinion of Railway's representative, track or other Railway
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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 (Agency). The estimated cost for one (1) flagger is approximately between
$800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or
double time for overtime, rest days and holidays. The estimated cost for each
flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance,
health and welfare benefits, vehicle, transportation, meals, lodging, radio,
equipment, supervision and other costs incidental to performing flagging
services. Negotiations for Railway labor or collective bargaining agreements
and rate changes authorized by appropriate Federal authorities may increase
actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT
THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER
WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING
PURSUANT TO THIS PARAGRAPH.
1.05.03d The average train traffic on this route is ______ freight trains per
24-hour period at a timetable speed ______ MPH and ______ passenger
trains at a timetable speed of ______ MPH.
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement
of trains and equipment can occur at any time and in any direction. All work performed by
contractors within 25 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
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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 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
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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 BNSF’s Field Engineering Representative (______________). All
underground and overhead wires will be considered HIGH VOLTAGE and dangerous until
verified with the company having ownership of the line. It is the Contractor's responsibility
to notify any other companies that have underground utilities in the area and arrange
for the location of all underground utilities before excavating.
1.07.02 The Contractor must cease all work and 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.
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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.
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile
accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that
injuries relate to that specific event.)
Injured Person Type:
Passenger on train (C) Non-employee (N)
(i.e., emp of another railroad, or, non-BNSF emp involved in vehicle accident, including
company vehicles)
Contractor/safety sensitive (F) Contractor/non-safety sensitive (G)
Volunteer/safety sensitive (H) Volunteer/other non-safety sensitive (I)
Non-trespasser (D) - to include highway users involved in highway rail grade crossing accidents who did not
go around or through gates
Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around
or through gates
Non-trespasser (J) - Off railroad property
If train involved, Train ID:
________________________________
Transmit attached information to Accident/Incident Reporting Center by:
Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident-Reporting.Center@BNSF.com
Officer Providing Information:
(Name) (Employee No.) (Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM
DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT
INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St: 2. Date: Time:
County: 3. Temperature: 4. Weather:
(if non BNSF location)
Mile Post / Line Segment:
5. Driver’s License No (and state) or other ID: SSN (required):
6. Name (last, first, mi):
7. Address: City: St: Zip:
8. Date of Birth: and/or Age: Gender:
(if available)
Phone Number: Employer:
9. Injury: 10. Body Part:
(i.e., Laceration, etc.) (i.e., Hand, etc.)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
First Aid Only
Required Medical Treatment
Other Medical Treatment
13. Dr. Name: Date:
14. Dr. Address:
Street: City: St: Zip:
15. Hospital Name:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS
AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
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EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File: _______________________________
Agency Project: _______________________________
<%Contractor.LegalName%> [Insert contractor’s legal name here](hereinafter called “Contractor”), has
entered into an agreement (hereinafter called “Agreement”) dated ______________, 202_, [insert the date of
the contract between the Agency and the Contractor here] with City of Pasco for the performance of certain
work in connection with the following project:Lewis Street Overpass. 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 City of Pasco (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.
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This obligation shall not include such claims, costs, damages, or expenses which may be caused
by the sole negligence of Railway or its contractors, agents or employees; Provided, that if the
claims or damages are caused by or result from the concurrent negligence or other acts or
omissions of (a) Railway, its contractors, agents or employees and (b) Contractor, its
subcontractors, agents or employees, this provision shall be valid and enforceable only to the
extent of the negligence of the Contractor, its subcontractors, agents or employees.
It is mutually negotiated between the parties that the indemnification obligation shall include all
claims brought by Contractor’s employees against Railway, its agents, servants, employees or
otherwise, and Contractor expressly waives its immunity under the industrial insurance act (RCW
Title 51) and assumes potential liability for all actions brought by its employees.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS,
SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S
LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE
ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and
settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or
actions of law or in equity brought against Railway on any claim or cause of action arising or growing out
of or in any manner connected with any liability assumed by Contractor under this Agreement for which
Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt
or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a
conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward
summons and complaint or other process in connection therewith to Contractor, and Contractor, at
Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless
Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing
out of or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall
be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an
applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be
interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
2) 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.
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3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability
with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of
at least $10,000,000 but in no event less than the amount otherwise carried by the Contractor.
Coverage must be purchased on a post 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.
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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.
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 $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a
standard ISO form CG 00 35 12 04 and include the following:
Endorsed to include the Pollution Exclusion Amendment
Endorsed to include the Limited Seepage and Pollution Endorsement.
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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.
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:
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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 VII 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.
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.
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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 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
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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.
1) 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 Agreement
(http://www.bnsf.com/communities/faqs/permits-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).
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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 (___________________) four (4)
weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will
establish mutually agreeable work windows for the project. Railway has the right at any time to revise or
change the work windows due to train operations or service obligations. Railway will not be responsible
for any additional costs or expenses resulting from a change in work windows. Additional costs or
expenses resulting from a change in work windows shall be accounted for in Contractor’s expenses for
the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as
to not cause any delays to any trains.
Page 104 of 156
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.
<%Contractor.LegalName%> BNSF Railway Company
By: ________________________________ By: ________________________________
Printed Name: _______________________ Name: _____________________________
Manager Public Projects
Title: _______________________________
Accepted and effective this ______day of 20__.
Contact Person: ______________________
Address: ___________________________
City: _______________________________
State: _________ Zip: ________________
Fax: _______________________________
Phone: _____________________________
E-mail: _____________________________
Page 105 of 156
EXHIBIT D
Page 106 of 156
AUTHORITY FOR EXPENDITURE
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LOCATION :PASCO AMTRAK S LINE SEGMENT :46 AFE NUMBER :
PLANITEM NUMBER :236401000 MILEPOST :145.699 RFA NUMBER :5950020
PROPERTY OF :BNSF RAILWAY COMPANY DIVISION :NW CPAR NUMBER :CB960020
OPERATED BY :BNSF RAILWAY COMPANY SUBDIVISION :LAKESIDE BUDGET YEAR :2020
JOINT FACILITY :CITY OF PASCO TRACK TYPE :3 BUDGET CLASS :6
% BILLABLE (+/-) :100.0 TAX STATE :WA REPORTING OFFICE :716
SPONSOR :VP ENGINEERING CENTER/ROLLUP :S3511
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PURPOSE, JUSTIFICATION AND DESCRIPTION
FLG - NWE DIV LAKESIDE SUB LS 46 MP 145.699 - DOT# 977800L - 100% BILLABLE TO CITY OF PASCO - FLAGGING ESTIMATE FOR LEWIS
ST OP PROJECT IN PASCO, WA
PRIMARY FUNDING SOURCE IS STATE
PLAN ITEM LINE SEG BEG MP END MP TRK NBR BEGIN STATION END STATION PROJECT TYPE BUD YEAR
236401000 46 145.699 145.699 3 PASCO AMTRAK PASCO AMTRAK S FLAGGING 2020
CASH CAPITAL NONCASH CAPITAL OPERATING EXP REMOVAL COSTS BILLABLE TOTALS
LABOR COSTS 0 0 0 0 382,012 382,012
MATERIAL COSTS 0 0 0 0 0 0
OTHER COSTS 0 0 0 0 75,734 75,734
TOTALS 0 0 0 0 457,746 457,746
SYSTEM MAINTENANCE AND PLANNING PRINTED ON:07/23/2020
ESTIMATE REF. NUMBER:5950020 ESTIMATED BY:SAVARD
COSTING DATE:07/23/2020 PRINTED BY:SAVARD
Page 1 of 2 Page 107 of 156
-
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
CITY OF PASCO
LOCATION PASCO AMTRAK S DETAILS OF ESTIMATE PLAN ITEM :236401000 VERSION :1
PURPOSE, JUSTIFICATION AND DESCRIPTION
FLG - NWE DIV LAKESIDE SUB LS 46 MP 145.699 - DOT# 977800L - 100% BILLABLE TO CITY OF PASCO
FLAGGING ESTIMATE FOR LEWIS ST OP PROJECT IN PASCO, WA
REQUESTED BY STEPHEN SEMENICK 7/16/2020
PRIMARY FUNDING SOURCE IS STATE
DESCRIPTION QUANTITY U/M COST TOTAL $
**********
LABOR
**********
FLAGGING - PUBLIC CROSSING - CAP 3600.0 MH 121,800
PAYROLL ASSOCIATED COSTS 79,620
DA OVERHEADS 132,189
EQUIPMENT EXPENSES 27,088
INSURANCE EXPENSES 21,315
TOTAL LABOR COST 382,012 382,012
*************
MATERIAL
*************
TOTAL MATERIAL COST 0 0
**********
OTHER
**********
RENTAL VEHICLE 300.0 DAY 30,000
TOTAL OTHER ITEMS COST 30,000 30,000
PROJECT SUBTOTAL 412,012
CONTINGENCIES 41,201
BILL PREPARATION FEE 4,533
GROSS PROJECT COST 457,746
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 457,746
Page 2 of 2 Page 108 of 156
AUTHORITY FOR EXPENDITURE
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LOCATION :PASCO AMTRAK S LINE SEGMENT :46 AFE NUMBER :
PLANITEM NUMBER :235120000 MILEPOST :145.699 RFA NUMBER :5950120
PROPERTY OF :BNSF RAILWAY COMPANY DIVISION :NW CPAR NUMBER :CB960020
OPERATED BY :BNSF RAILWAY COMPANY SUBDIVISION :LAKESIDE BUDGET YEAR :2020
JOINT FACILITY :CITY OF PASCO TRACK TYPE :3 BUDGET CLASS :6
% BILLABLE (+/-) :100.0 TAX STATE :WA REPORTING OFFICE :716
SPONSOR :VP ENGINEERING CENTER/ROLLUP :S3511
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PURPOSE, JUSTIFICATION AND DESCRIPTION
INSP - NWE DIV LAKESIDE SUB LS 46 MP 145.699 - DOT# 977800L - 100% BILLABLE TO CITY OF PASCO - INSPECTION ESTIMATE FOR THE
LEWIS ST OP IN PASCO, WA
PRIMARY FUNDING SOURCE IS STATE
PLAN ITEM LINE SEG BEG MP END MP TRK NBR BEGIN STATION END STATION PROJECT TYPE BUD YEAR
235120000 46 145.699 145.699 3 PASCO AMTRAK PASCO AMTRAK S INSPECTOR / COORDINATOR 2020
CASH CAPITAL NONCASH CAPITAL OPERATING EXP REMOVAL COSTS BILLABLE TOTALS
LABOR COSTS 0 0 0 0 0 0
MATERIAL COSTS 0 0 0 0 0 0
OTHER COSTS 0 0 0 0 381,907 381,907
TOTALS 0 0 0 0 381,907 381,907
SYSTEM MAINTENANCE AND PLANNING PRINTED ON:07/23/2020
ESTIMATE REF. NUMBER:5950120 ESTIMATED BY:SAVARD
COSTING DATE:07/23/2020 PRINTED BY:SAVARD
Page 1 of 2 Page 109 of 156
-
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
CITY OF PASCO
LOCATION PASCO AMTRAK S DETAILS OF ESTIMATE PLAN ITEM :235120000 VERSION :1
PURPOSE, JUSTIFICATION AND DESCRIPTION
INSP - NWE DIV LAKESIDE SUB LS 46 MP 145.699 - DOT# 977800L - 100% BILLABLE TO CITY OF PASCO
INSPECTION ESTIMATE FOR THE LEWIS ST OP IN PASCO, WA
REQUESTED BY STEPHEN SEMENICK 7/16/2020
PRIMARY FUNDING SOURCE IS STATE
DESCRIPTION QUANTITY U/M COST TOTAL $
**********
LABOR
**********
TOTAL LABOR COST 0 0
*************
MATERIAL
*************
TOTAL MATERIAL COST 0 0
**********
OTHER
**********
INSPECTOR COORDINATOR 1.0 DAY 343,750
TOTAL OTHER ITEMS COST 343,750 343,750
PROJECT SUBTOTAL 343,750
CONTINGENCIES 34,375
BILL PREPARATION FEE 3,782
GROSS PROJECT COST 381,907
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 381,907
Page 2 of 2 Page 110 of 156
Exhibit E
[Public Projects Manager’s letterhead]
Date: ______________________
Mr./Ms. ______________________
_____________________________[Name of Agency Here]
_____________________________[Address for Agency]
_____________________________
Re: Final Approval of Plans and Specifications dated _________, 20__, drafted by J-U-B Engineers,
Inc.] (hereinafter called, the “Plans and Specifications”)
Dear _______________:
This letter serves as BNSF RAILWAY COMPANY’s (“BNSF”) final written approval of the Plans and
Specifications covering the construction of Lewis Street Overpass. This final written approval is given to the City
of Pasco (“Agency”) pursuant to Article III, Section 1 of that certain Underpass Agreement between BNSF and
Agency, dated __________, 20__, which this Exhibit E is attached to and made a part thereof.
If the Plans and Specifications are revised by Agency subsequent to the date set forth above, this letter shall no
longer serve as final written approval of the Plans and Specifications and Agency must resubmit said Plans and
Specifications to BNSF for final written approval.
It is understood that the approvals contained in this letter do not cover, the approvals of plans and specifications
for any falsework, shoring, and demolition that may be subsequently submitted to BNSF by CITY or its contractor
for approval.
BNSF has not reviewed the design details or calculations for structural integrity or engineering accuracy. BNSF
accepts no responsibility for errors or omissions in the design of the project.
Page 111 of 156
Regards,
___________________________
[Public Projects Manager’s Name]
Page 112 of 156
EXHIBIT F
Grade Separations
(FOR USE IN ANY C&M AGREEMENT FOR CONSTRUCTION OF AN OVERPASS OR AN UNDERPSS
INITIATED BY A PUBLIC AGENCY)
BNSF PROCESS REQUIREMENTS FOR DESIGN & CONSTRUCTION OF GRADE SEPARATION
PROJECTS BY A PUBLIC AGENCY ON BNSF RIGHT OF WAY, WHICH IMPACT BNSF PROPERTY OR
OPERATIONS
1.01 General:
1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as
"Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter
referred to as "Railway Property", during the construction of Lewis Street Overpass.
1.01.02 Definitions:
Operationally Critical, (OC): defined as Work that requires a submittal and acceptance by BNSF,
which impacts, or could impact BNSF operations, on BNSF right-of-way or adjacent to it.
Acceptance: BNSF’s response to plan submittals indicating a notice to proceed with work in the
field; Disclaimer for Acceptance: *BNSF has reviewed these submittals and no exceptions are
taken with regard to BNSF's ability to use or accommodate the project as intended. BNSF has
not reviewed the design details or calculations for structural integrity or engineering accuracy.
BNSF accepts no responsibility for errors or omissions in the design or execution of the
project.
Inspector/Coordinator, (I/C): A third party consultant which BNSF hires to assist in the coordination
of the project on BNSF’s behalf. When referenced, “I/C” refers to the I/C team consisting of I/C-I, I/C-
II, and the Resident Engineer (RE). The I/C team’s role is to ensure the project is constructed per
accepted* plans and specifications for that portion of the project on BNSF right of way, as it affects
BNSF. The I/C will monitor construction activities to ensure that improvements used by BNSF meet
all requirements of BNSF, and accommodate railroad operations.
1.01.03 The following submittals and actions are required by BNSF prior to Operationally Critical, (OC)
Work being performed on BNSF property or above tracks being operated by BNSF Railway:
2.01 Submittals and Actions Required During the Project Design Phase:
2.01.01 The Agency shall be the main contact for BNSF throughout the project.
Agency shall be included on all correspondence relating to BNSF.
2.01.02 Required Design Submittals: (Allow for 4 weeks for BNSF to review design submittals)
Page 113 of 156
Agency shall refer to the requirements of the UP/BNSF Guidelines on Grade Separation Projects when
designing a grade separation which will impact BNSF Railway. Agency will be required to submit plans for
BNSF review and comment. Plans shall not be labeled “final” until all comments have been addressed and
BNSF has accepted* the plans.
Examples of required design submittals may be, but are not limited to:
Concept, vertical profile of Top of Rail, 30% plans and final plans
The following submittals will require a Professional Engineer, (PE) stamp:
Overpass design
Underpass design
Hydraulic study
Any non-standard design of a structure which will carry train loading
Work covered by a submittal shall not be performed in field without receiving Acceptance from BNSF.
Work windows will not exceed 6 hours, so project should be designed accordingly.
The following Disclaimer applies to BNSF acceptance of Agency design plans:
*BNSF has reviewed these submittals and no exceptions are taken with regard to BNSF's ability to use or
accommodate the project as intended. BNSF has not reviewed the design details or calculations for
structural integrity or engineering accuracy. BNSF accepts no responsibility for errors or omissions in the
design or execution of the project.
3.01 Submittals and Actions Required During the Construction Phase:
3.01.01 The Agency shall be the main contact for BNSF throughout the project.
Agency shall be included on all correspondence relating to BNSF. BNSF will NOT
accept submittals directly from the Agency’s Contractor.
3.01.02 BNSF will hire a consultant team to perform the duties of an
Inspector/Coordinator, (I/C) on behalf of BNSF for the duration of the field construction of
the project. The cost of the I/C will be reimbursable to BNSF by the Agency or their
Contractor.
BNSF requires the I/C team be involved in the project throughout the construction phase to represent BNSF.
Page 114 of 156
The I/C has authority to remove a contractor’s employee from BNSF property if that employee fails
to comply with the BNSF safety policy, does not have proper PPE or otherwise ignores instructions
regarding work on BNSF right-of-way. The I/C has authority to shut down work on BNSF right-of-way
if the contractor works in a manner that is in violation of BNSF’s safety policy or FRA regulations.
Anytime instructions to the contractor by BNSF or the I/C are not complied with, the project may be
shut down. All equipment and personnel will be removed from BNSF property until issues causing
the shutdown are resolved to BNSF’s satisfaction.
3.01.03 Agency must hold a pre-construction meeting with contractor and BNSF
prior to work beginning on BNSF property.
The Pre-Construction meeting shall not be held until 30 days after I/C has been selected – this allows time
for the I/C to become familiar with the project.
Recommend scheduling two weeks prior to construction commencing to allow for adjustment to work plans,
if needed.
3.01.04 Required Construction Submittals: : (Allow for 4 weeks for BNSF to review
submittals)
All submittals should flow from the Contractor to the Agency, to the I/C Consultant, to the BNSF Project
Engineer, (PE), and to BNSF Structures with responses back through the same communication chain. BNSF
will not accept submittals directly from the Contractor.
Any changes to the work governed by a submittal requires that the submittal be re-accepted* by BNSF before
the work commences.
Examples of construction submittals required include but are not limited to:
Contractors Safety Action Plan, Fire Prevention Plan, Proposed Project Schedule, Demolition, Shoring,
Falsework and Lifting of Materials.
The following submittals will require a Professional Engineer, (PE) stamp:
Critical Pick Plan (75% of capacity of crane, or multi-crane pick)
Lifted Material Plan (Placement or Removal) – When lift is within temporary construction clearances and
when list is within 25’ of the centerline of the nearest track
Demolition Plan
Page 115 of 156
Temporary Shoring Plan
Bracing Design Plan (non-standard only per DOT)
For overpasses, Agency shall submit as-built plans of the structure, including final clearance dimensions to
the I/C. Vertical clearance must be measured from the Top of Rail, horizontal clearance must be measured
from the nearest track centerline.
OPERATIONALLY CRITICAL WORK AND SUBMITTALS: (4 to 6 weeks review timeline) All OC work
requires a submittal and acceptance* by BNSF.
Operationally Critical (OC) submittals are those that have the potential to affect the safe
operation of trains and will need to be reviewed carefully. Work must be monitored to
ensure it conforms to the submitted/accepted* plan.
In-person safety review meetings will be required with BNSF representative, I/C,
Contractor and Agency representative for all OC work and must be documented. The
purpose of the meeting is to ensure all parties understand BNSF requirements and are
following the applicable submittals. When a track work window is required the meeting
shall occur at least 48 hours in advance of work starting.
Submittals must meet the requirements of the UP Railroad - BNSF Railway
Guidelines for Railroad Grade Separation Projects. Submittals must also follow
the requirements outlined in BNSF Review Comment Sheets, Use of Cranes &
Lifting of Materials Submittal Schedule, BNSF Guidelines for Preparation of Bridge
Demolition & Removal Plan and the BNSF-UPRR Guidelines for Temporary
Shoring. Some submittals are required to be sealed by a licensed professional
engineer.
a. See Table 3-1 for Overhead Structures in UP Railroad - BNSF Railway Guidelines for Railroad
Grade Separation Projects
b. See Table 3-2 for Underpass Structures UP Railroad - BNSF Railway Guidelines for Railroad
Grade Separation Projects
c. Examples of OC submittals included in the above are:
i. Shoring (Follow BNSF-UPRR Guidelines for Temporary Shoring)
ii. Falsework
iii. Demolition (Need plans for substructure and superstructure. Follow BNSF Guidelines
for Preparation of Bridge Demolition & Removal Plan)
iv. Erection (overhead and underpass structures)
v. Construction Phasing Plans
d. Additional OC submittals required, but not included in the Guidelines are:
i. All work plans that remove tracks from service (track outage windows require a detailed
Gantt chart when greater than 2 hours)
ii. Contingency plans
iii. Additional OC submittals may be required on a project by project basis.
For underpasses and other railroad bridges, as required in Sections 4.11 and 4.12 of the UP Railroad - BNSF
Railway Guidelines for Railroad Grade Separation Projects, a RE will be on site full-time during construction, at
Page 116 of 156
the cost of the project. At the discretion of the RE, as accepted by BNSF, an I/C-I or I/C-II maybe assigned for
field duties where the work is not critical to ensuring the bridge is built to accepted project plans and
specification.
BNSF requires temporary and new track and railroad bridges be inspected by an FRA
qualified BNSF employee prior to being placed into service. Two week advanced notice
to BNSF structures department is required. For underpasses, all pile driving records are
to be provided within 3-days of driving to the BNSF PE.
Agency shall submit an as-built survey of shoo-fly final alignments. Alignments must
conform to BNSF Shoo-fly procedures.
3.01.05 Prior to any work commencing on BNSF right of way:
Contractors C/C-1 or Right of Entry must be fully executed and their insurance must be
approved before they can perform work on BNSF property.
Proof of Contractors insurance approval must be produced to the BNSF PE and the I/C.
3.01.06 Contractor must adhere to all other BNSF policies and procedures not
specifically mentioned in this agreement.
Page 117 of 156
Exhibit G
Lewis Street Overpass Grade Separation Project
Estimated Total Project Cost
Page 118 of 156
Page 119 of 156
Page 120 of 156
Page 121 of 156
Page 122 of 156
18 20 22
18 20 22 241614
2018N70°07'17"E
CLARK ST
N70°09'11"E
LEWIS ST
TACOMA AVENUE S19°55'09"ER/W R/W
R/WR/WR/W R/W R/WR/WTRAVISA. M ARD
E
NPROFES
SI
ONAL ENGINE ER39882NSCALE IN FEET
0 50 100
FRANKLIN COUNTY
SEC. 29 T.9N. R.30E. W.M.Kennewick, Washington 993362810 W. Clearwater AvenueFax: 509.736.0790Phone: 509.783.2144Suite 201DESIGN BY: BEH
DRAWN BY: MMW
CHECKED BY: RHD BYAPR.DATESHEET NUMBER:DESCRIPTIONJ-U-B ENGINEERS, Inc.WRITTEN AUTHORIZATION OF WHOLE OR PART, FOR ANY OTHER PROJECT WITHOUT THE EXPRESS AND IS NOT TO BE USED, IN J-U-B ENGINEERS, Inc.PROPERTY OF HEREIN, AS AN INSTRUMENT OF PROFESSIONAL SERVICE, IS THE THIS DOCUMENT, AND THE IDEAS AND DESIGNS INCORPORATED REUSE OF DRAWINGS NO.BYREVISIONAPR.DATEJ-U-B ENGINEERS, INC.www.jub.comBYAPR.DATEJUB PROJ. # : 30-18-020
INCH, SCALE ACCORDINGLY
AT FULL SIZE, IF NOT ONE
ONE INCHJ-U-B ENGINEERS, INC.FILE :
Engineers Surveyors Planners
LAST UPDATED:
30-18-020_RW-3.sht
\\Kwkfiles\public\Project\JUB\30-18-020 - COP Lewis Street Overpass\CAD\Right-of-Way\30-18-020_RW-3.shtmwilkinson4/16/20203:18:15 PM05/30/2019
STPUS-HLP-3530(006)FED AID #:CITY OF PASCO, WASHINGTONLEWIS ST. OVERPASSRIGHT-OF-WAY PLANSRW-3LEWIS ST 17+00.00MATCH LINE SEE SHEET RW-2LEWIS ST 25+00.00MATCH LINE SEE SHEET RW-4G
A
B
F
L
PARCEL
100
EASEMENTS TO BE ACQUIRED FROM BNSF RAILWAY
OWNER
BNSF RAILWAY
TOTAL AREA
UNKNOWN
R/W
0
PIER EASEMENT
4,680 SF
TEMPORARY CONSTRUCTION EASEMENT (BRIDGE MAINTENANCE AND INSPECTION)
PERMANENT 15' ACCESS EASEMENT
AND MAINTENANCE EASEMENT
AERIAL, BRIDGE INSPECTION
38,260.49 SF
EASEMENT AND PERMIT AREA
TEMPORARY TRACK CROSSING
100
59.40'
S70°21'22"W
N19°55'09"W 204.76'N19°55'09"W 252.74'L 19+63.83, 37.99' LT
L 19+78.83, 37.99' LT S19°50'49"E 205.01'S19°50'49"E 251.98'L 24+54.40, 37.99' LT
L 24+39.40, 37.99' LT
L 24+39.40, 259.01' LT
L 24+39.40, 243.01' LT
L 24+43.84, 358.82' LT
N19°55'30"W 68.85'
L 24+39.40, 289.97' LT
L 24+54.40, 289.97' LT
L 24+39.40, 289.97' LT
S70°09'11"W 25.00'
L-7
L-6
L-5
L 23+64.27, 258.96' LT
S08°30'01"E 102.06'
L 23+84.35, 359.03' LT
S19°50'49"E 16.00'
S70°09'11"W 15.00'S19°50'49"E 379.97'S19°50'49"E 10.00'
S19°50'49"E 78.00'
T PC 24+76.33
S19°50'49"E 40.00'
L 24+54.40, 80.00' RT
S19°50'49"E 40.00'
S70°09'11"W 116.96'L-4N70°09'11"E 147.00'L-3L-2L-1
S70°09'11"W 15.00'
N70°09'11"E 52.52'
N70°09'11"E 20.00'
N70°09'11"E 99.00'
S70°09'11"W 20.00'
N70°09'11"E 147.00'
S70°09'11"W 20.00'
L 19+63.51, 290.73' LT
S70°04'51"W 15.00'
L 19+78.51, 290.75' LT
S19°55'09"E 32.00'
L 19+78.55, 258.75' LT
L 19+78.57, 242.75' LT
S19°55'09"E 16.00'
L 19+63.98, 80.00' RT
L 24+54.40, 39.99' RTL 19+63.93, 39.99' RT
N19°55'09"W 40.00'
N70°09'11"E 490.41'
N70°09'11"E 490.41'N19°55'09"W 224.79'S19°55'09"E 224.79'L 19+79.37, 394.77' RT
L 19+64.37, 394.79' RT
S70°04'51"W 15.00'
L 19+64.09, 170.00' RT
L 19+79.09, 169.98' RT
N70°09'11"E 15.00'
T 17+60.18
N70°09'11"E 515.36'
N19°55'09"W 40.00'
S19°55'09"E 40.00'
N19°55'09"W 10.00'
N70°09'11"E 466.49'
N70°09'11"E 25.00'
S19°50'49"E 78.00'S19°50'49"E 78.00'
S19°50'49"E 78.00'
78.00'
S19°50'49"E
78.00'
S19°50'49"E
78.00'
S19°50'49"E
N70°07'17"E 460.85'
N70°07'17"E 460.83'
TO BE RETAINED
15' UTILITY CORRIDOR EASEMENT FRONT AVELEWIS ST
N70°09'11"E 99.00'
N70°09'11"E 101.96'
78.00'
N19°55'09"W
N70°09'11"E 10.57'
10'
40'
40'
40'
25'
25'
BNSF RAILWAY
40'40'40'40'25'25'
25'25'
NOTE:
IN COLOR.
THIS SHEET MUST BE PRINTED
1 1MMWTAM08/08/191
1124,187.79 SF 7,373.50 SF 7,570.86 SF EASEMENT AREAS2MMWTAM08/26/19PIER EASEMENT2 3MMWTAM10/02/19UTILITY EASEMENT LOCATION12'
3'
3
TO BE VACATED
EXISTING ROAD RIGHT-OF-WAY EASEMENT
C
CITY OF PASCO
CITY OF PASCO
PARCEL OWNER
A
B
C
F
G
112-036-065
112-036-163
112-036-172
112-036-207
112-036-074
CITY OF PASCO / APOSTOLIC ASSEMBLY INC
CITY OF PASCO / APOSTOLIC ASSEMBLY INC
CITY OF PASCO / WA STATE RAILROADS HISTORIC SOCIETY
CITY OF PASCO / GALVES, ENCARNACION AND LICON, IRMA
CITY OF PASCO / CARDENAS, MARCO ANTONIO
3250
9750
3315
9750
7000
L 112-036-154 CITY OF PASCO / WRIGHT, DON 7000
TOTAL AREAPARCEL ID R/W LT REMAINDER RT EASEMENT
PARCELS ACQUIRED PER LEWIS STREET PROPERTY MAP DATED 04/06/2010 PREPARED BY CITY OF PASCO
3250
9750
3315
9750
7000
7000L-7
L-6
L-5
L-4
L-3
L-2
L-1
LINE TABLE
LINE #DIRECTION
N70°09'11"E
S19°50'49"E
N70°07'17"E
N70°09'11"E
N70°09'11"E
N70°09'11"E
S70°09'11"W
LENGTH
4.43'
30.96'
75.13'
20.00'
20.00'
20.00'
67.52'TAM4
4
4
4OWNERSHIP UPDATEBRK03/18/20Page 123 of 156
Pasco City Council Meeting
August 3, 2020
Page 124 of 156
Lewis Street Overpass
Reference
Project limits
Area subject to this Agreement
Page 125 of 156
BNSF Right-of-way Acquisition
Reference
Aerial Bridge Inspection And Maintenance Easement
Pier Easement
Temporary Construction Easement
Temporary Track Crossing Easement And Permit Area
Permanent 15’ Access Easement (Bridge
Maintenance And Inspection)Page 126 of 156
Pasco City Council Meeting
August 3, 2020
Page 127 of 156
AGENDA REPORT
FOR: City Council July 26, 2020
TO: Dave Zabell, City Manager Remote Regular Meeting:
8/3/20
FROM: Zach Ratkai, Director
Administrative & Community Services
SUBJECT: PSA - Construction Management Services Peanuts Park Renovation
I. REFERENCE(S):
Professional Services Agreement
PowerPoint Presentation
II. ACTION REQUESTED OF COUNCIL / STAFF RECOMMENDATIONS:
MOTION: construction for Agreement Services To the approve Professional
management services for the Peanuts Park Renovation Project with MacKay Sposito in
the amount of $322,460 and further, authorize the City Manager to execute the
Professional Services Agreement.
III. FISCAL IMPACT:
Construction Estimate:
Engineer's Estimate $5,198,304.87
Const. Mgmt (proposed) $ 322,460.00
TOTAL $5,520,764.87
Construction Management represents 5.8% of the total estimated construction cost.
IV. HISTORY AND FACTS BRIEF:
The renovation of Peanuts Park and the Pasco Farmers Market Pavilion is a major goal
of the City Council. The is funded project from various sources, the bulk of the funding
is through a HUD-CDBG Section 8 loan, however two legislative direct appropriations
from the State of Washington have also been secured, and supplemental funding from
the City's General Fund. Because of the complexities in funding and accounting, as
well as the visibility and unique nature of the project, coordination and communication
with downtown businesses and users, City staff project management capacity, and
general import of the project, construction management services were deemed essential
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for the project.
In early 2020, the design of the proposed improvements were completed. On May 20,
2020, a single bid for construction was opened and later rejected due to conflicts
between the bid construction cost and the engineer's estimate. In the coming weeks, re-
advertisement for a new bid will occur. As a side note, staff is currently working with
MacKay Sposito in reviewing the bid documents to provide better packaging and
marketability with the intent of receiving a higher number of bids in the subsequent
round of advertising.
V. DISCUSSION:
A Request for Proposals for Construction Management was issued in April 2020 and
closed May 13, 2020, receiving three (3) proposals. After a committee review, and a
thorough interview of all three (3) proposals, scoring of the reviews warranted
selection of MacKay Sposito for the construction management services.
The proposed Professional Services Agreement (PSA) with MacKay Sposito will
provide construction management services for the construction phase of the project and
support the efforts of City staff. Project construction management services are expected
to commence after execution of the PSA and is estimated to be completed upon overall
project completion scheduled in May 2021.
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PROFESSIONAL SERVICES AGREEMENT
Peanuts Park Renovation Project
Construction Management
THIS AGREEMENT is made and entered into between the City of Pasco, a Washington
Municipal Corporation, hereinafter referred to as “City”, and MacKay Sposito, a Washington
Corporation, hereinafter referred to as “Consultant,” on this ____ day of _______________, 2020.
RECITALS
WHEREAS, the City desires to have certain services and/or tasks performed as set forth
below requiring specialized skills, training, equipment, and other supportive capabilities; and
WHEREAS, the Consultant represents that it is qualified and possesses sufficient skills,
experience, equipment, and necessary capabilities, including: technical and professional expertise,
when required, to perform the services and/or tasks as set forth in this Agreement upon which the
City is relying.
NOW, THEREFORE, in consideration of the mutual covenants, and performances
contained herein, the parties agree as follows:
1. Scope of Services. The Consultant shall perform such services and accomplish such tasks,
including the furnishing of all labor, materials, facilities and equipment necessary for full
performance thereof, as identified and designated as Consultant’s Responsibilities
throughout this Agreement, and as more particularly described in Scope of Work detailed
in Exhibit ‘A’ attached hereto and incorporated herein (the “Project”).
2. Term. This Project shall begin on the execution date listed above and be completed upon
overall project completion in May 2021.
3. Compensation and Payment.
3.1 Payment for services provided hereunder shall be made following the performance
of such services. Such payment shall be full compensation for work performed or
services rendered, and for all labor, materials, supplies, equipment, and incidentals
necessary to complete the Project.
3.2 No payment shall be made for any services rendered by the Consultant except for
services identified and set forth in this Agreement except as may be authorized by
a written supplemental agreement approved by the City.
3.3 The City shall pay the Consultant for work performed under this Agreement upon
timely submitted invoices detailing work performed and expenses for which
reimbursement is sought. The City shall approve all invoices before payment is
issued. Payment shall occur within thirty (30) days of receipt and approval of an
invoice. DraftPage 130 of 156
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3.4 The City shall pay the Consultant for all work performed and expenses incurred
under this Agreement, as follows.
☒ Fixed Sum: A total of $ 322,460.00
4. Reports and Inspections.
4.1 The Consultant at such times and in such forms as the City may require, shall
furnish to the City such statements, records, studies, surveys, reports, data, and
information as the City may request pertaining to matters covered by this
Agreement.
4.2 The Consultant shall, at any time during normal business hours and as often as the
City or the Washington State Auditor may reasonably deem necessary, make
available for examination all of its records and data with respect to all matters
covered, directly or indirectly, by this Agreement and shall permit the City, or its
designated authorized representative to audit and inspect other data relating to all
matters covered by this Agreement. The City shall receive a copy of all audit
reports made by the agency or firm as to the Consultant’s activities. The City may,
at its discretion, conduct an audit at its expense, using its own or outside auditors,
of the Consultant’s activities which relate, directly or indirectly, to this Agreement.
Consultant shall be provided a copy of such reports.
4.3 The Consultant, during the term of this Agreement, shall obtain all permits and
registration documents necessary for the performance of its work and for the
execution of services at its own expense, and shall maintain its validity. Upon
request, the Consultant shall deliver to the City copies of these licenses, registration
documents, and permits or proof of their issuance or renewal.
4.4 Consultant shall maintain books, records and documents, which sufficiently and
properly reflect all direct and indirect costs related to the performance of this
Agreement, and shall maintain such accounting procedures and practices as may be
necessary to assure proper accounting of all funds paid pursuant to this Agreement.
These records shall be subject, at all reasonable times, to inspection, review, or
audit as provided above.
4.5 The Consultant shall retain all books, records, documents or other material relevant
to this Agreement for three (3) years after its expiration. Consultant agrees that the
City, or its designee, shall have full access and right to examine any of said
materials at all reasonable times during this period.
5. Ownership and Use of Documents.
5.1 All research, tests, surveys, preliminary data, information, drawings and documents
made, collected, or prepared by the Consultant for performing the services subject
to this Agreement, as well as any final product, collectively referred to as “work DraftPage 131 of 156
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product,” shall be deemed as the exclusive property of the City, including copyright
as secured thereon. Consultant may not use them except in connection with the
performance of the services under this Agreement or with the prior written consent
of the City. Any prior copyrighted materials owned by the Consultant and utilized
in the performance of the services under this Agreement, or embedded in with the
materials, products and services provided thereunder, shall remain the property of
the Consultant subject to a license granted to the City for their continued use of the
products and services provided under this Agreement. Any work product used by
the Consultant in the performance of these services which it deems as
“confidential,” “proprietary,” or a “trade secret” shall be conspicuously designated
as such.
5.2 In the event of Consultant’s default, or in the event that this Agreement is
terminated prior to its completion, the work product of the Consultant, along with
a summary of the services performed to date of default or termination, shall become
the property of the City, and tender of the work product and summary shall be a
prerequisite to final payment under this Agreement. The summary of services
provided shall be prepared at no additional cost, if the Agreement is terminated
through default by the Consultant. If the Agreement is terminated through
convenience by the City, the City agrees to pay Consultant for the preparation of
the summary of services provided.
6. Public Records.
6.1 Consultant acknowledges that the City is an agency subject to Chapter 42.56 RCW
“Public Records Act.” All preliminary drafts or notes prepared or gathered by the
Consultant, and recommendations of the Consultant are exempt prior to the
acceptance by the City or public citation by the City in connection with City action.
6.2 If the Consultant becomes a custodian of public records of the City and request for
such records is received by the City, the Consultant shall respond to the request by
the City for such records within five (5) business days by either providing the
records, or by identifying in writing the additional time necessary to provide the
records with a description of the reasons why additional time is needed. Such
additional time shall not exceed twenty (20) business days unless extraordinary
good cause is shown.
6.3 In the event the City receives a public records request for protected work product
of the Consultant within its possession, the City shall, prior to the release of any
protected work product or as a result of a public records request or subpoena,
provide Consultant at least ten (10) business days prior written notice of the pending
release and to reasonably cooperate with any legal action which may be initiated
by the Consultant to enjoin or otherwise prevent such release.
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7. Independent Contractor Relationship.
7.1 The parties intend that an independent contractor relationship is created by this
Agreement. The City is interested primarily in the results to be achieved; subject
to the scope of services and the specific requirements of this Agreement, the
implementation of services will lie solely with the discretion of the Consultant. No
agent, employee, officer or representative of the Consultant shall be deemed to be
an employee, agent, officer, or representative of the City for any purpose, and the
employees of the Consultant are not entitled to any of the benefits or privileges the
City provides for its employees. The Consultant will be solely and entirely
responsible for its acts and for the acts of its agents, employees, officers,
subcontractors or representatives during the performance of this Agreement.
7.2 In the performance of the services provided in this Agreement, Consultant is an
independent contractor with full authority to control and direct the performance of
the details of the work, however, the results of the work contemplated herein must
meet the approval of the City and shall be subject to the City’s general rights of
inspection and review to secure the satisfactory completion thereof.
7.3 The Consultant shall comply with all State and Federal laws including, but not
limited to:
7.3.1 The definition requirements of RCW 50.04.140 (Employment Security).
7.3.2 RCW 51.08.195 (Industrial Insurance).
7.3.3 Obtain a City of Pasco business license.
7.4 The City may, at its sole discretion, require the Consultant to remove any employee,
agent or servant from employment on this Project who, in the City’s sole discretion,
may be detrimental to the City’s interest.
8. Indemnification.
8.1 The Consultant shall defend, indemnify, and hold harmless the City, its officers,
officials, employees, and volunteers harmless from any and all claims, injuries,
damages, losses or suits including attorney fees, arising out of or resulting from the
acts, errors or omissions of the Consultant in performance of this Agreement,
except for injuries and damages caused by the sole negligence of the City.
8.2 However, should a court of competent jurisdiction determine that this Agreement
is subject to RCW 4.24.115, then, in the event of liability for damages arising out
of bodily injury to persons or damages to property caused by or resulting from the
concurrent negligence of the Consultant, and the City, its officers, officials,
employees, and volunteers, the Consultant’s liability, including the duty and cost
to defend, hereunder shall be only to the extent of the Consultant’s negligence. It is DraftPage 133 of 156
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further specifically and expressly understood that the indemnification provided
herein constitutes the Consultant’s waiver of immunity under Industrial Insurance,
Title 51 RCW, solely for purposes of this indemnification. This waiver has been
mutually negotiated by the parties. The provisions of this section shall survive the
expiration or termination of this Agreement.
8.3 No liability shall attach to the City by reason of entering into this Agreement except
as expressly provided herein.
8.4 This indemnification shall include damages, penalties and attorney fees sustained
as a result of Consultant’s delayed or failed performance of Section 6 above.
9. Insurance. The Consultant shall procure and maintain for the duration of the Agreement,
insurance against claims for injuries to persons or damage to property which may arise
from or in connection with the performance of the work hereunder by the Consultant, its
agents, representatives, employees, or subcontractors. The Consultant’s maintenance of
insurance as required by the Agreement shall not be construed to limit the liability of the
Consultant to the coverage provided by such insurance, or otherwise limit the City’s
recourse to any remedy available at law or in equity.
9.1 Minimum Scope of Insurance. Consultant shall obtain insurance of the types and
coverage described below:
9.1.1 Automobile Liability insurance covering all owned, non-owned, hired and
leased vehicles. Coverage shall be at least as broad as Insurance Services
Office (ISO) form CA 00 01.
9.1.2 Commercial General Liability insurance shall be at least as broad as ISO
occurrence form CG 00 01 and shall cover liability arising from premises,
operations, stop-gap independent contractors and personal injury and
advertising injury. The City shall be named as an additional insured under
the Consultant’s Commercial General Liability insurance policy with
respect to the work performed for the City using an additional insured
endorsement at least as broad as ISO endorsement form CG 20 26.
9.1.3 Workers’ Compensation coverage as required by the Industrial Insurance
laws of the State of Washington.
9.1.4 Professional Liability insurance appropriate to the Consultant’s profession.
9.2 Minimum Amounts of Insurance. Consultant shall maintain the following
insurance limits:
9.2.1 Automobile Liability insurance with a minimum combined single limit for
bodily injury and property damage of $1,000,000 per accident.
DraftPage 134 of 156
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9.2.2 Commercial General Liability insurance shall be written with limits no less
than:
☒ $2,000,000 each occurrence; and
☒ $2,000,000 general aggregate;
9.2.3 Professional Liability insurance shall be written with limits no less than:
☒ $2,000,000 per claim; and
☒ $2,000,000 policy aggregate limit;
9.3 Other Insurance Provision. The Consultant’s Automobile Liability, Professional
Liability, and Commercial General Liability insurance policies are to contain, or be
endorsed to contain that they shall be primary insurance as respect the City. Any
insurance, self-insurance, or self-insured pool coverage maintained by the City
shall be excess of the Consultant’s insurance and shall not contribute with it.
9.3.1 The Consultant’s insurance shall be endorsed to state that coverage shall not
be cancelled by either party, except after thirty (30) days prior written notice
by certified mail, return receipt requested, has been given to the City.
9.4 Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best rating of not less than A: VII.
9.5 Verification of Coverage. Consultant shall furnish the City with original
certificates and a copy of the amendatory endorsements, including, but not
necessarily limited to, the additional insured endorsement, evidencing the insurance
requirements of the Agreement before commencement of the work.
9.6 Notice of Cancellation. The Consultant shall provide the City with written notice
of any policy cancellation within two (2) business days of their receipt of such
notice.
9.7 City Full Availability of Consultant Limits. If the Consultant maintains higher
insurance limits than the minimums shown above, the City shall be insured for the
full available limits of Commercial General and Excess or Umbrella liability
maintained by the Consultant, irrespective of whether such limits maintained by the
Consultant are greater than those required by this Agreement or whether any
certificate of insurance furnished to the City evidences limits of liability lower than
those maintained by the Consultant.
9.8 Failure to Maintain Insurance. Failure on the part of the Consultant to maintain the
insurance as required shall constitute a material breach of contract, upon which the
City may, after giving five (5) business days notice to the Consultant to correct the
breach, immediately terminate the Agreement or, at its discretion, procure or renew
such insurance and pay any and all premiums in connection therewith, with any
sums so expended to be repaid to the City on demand, or at the sole discretion of
the City, offset against funds due the Consultant from the City. DraftPage 135 of 156
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10. Nondiscrimination. In the performance of this Agreement, the Consultant will not
discriminate against any employee or applicant for employment on the grounds of race,
creed, color, national origin, sex, marital status, age or the presence of any sensory, mental
or physical handicap; provided that the prohibition against discrimination in employment
because of handicap shall not apply if the particular disability prevents the proper
performance of the particular worker involved. The Consultant shall ensure that applicants
are employed, and that employees are treated during employment in the performance of
this Agreement without discrimination because of their race, creed, color, national origin,
sex, marital status, age or the presence of any sensory, mental or physical handicap.
Consultant shall take such action with respect to this Agreement as may be required to
ensure full compliance with local, State and Federal laws prohibiting discrimination in
employment.
11. Covenant Against Contingent Fees. The Consultant warrants that it has not employed
nor retained any company, firm, or person, other than a bona fide employee working
exclusively for the Consultant, to solicit or secure this Agreement; and that it has not paid
or agreed to pay any company, person or firm, other than a bona fide employee working
exclusively for the Consultant, any fee, commission, percentage, brokerage fee, gift, or
other consideration contingent upon or resulting from the award or making of this
Agreement. For breach or violation of this warranty, the City shall have the right to
terminate this Agreement.
12. Assignment and Subcontracting.
12.1 The City has awarded this Agreement to the Consultant due to its unique
qualifications to perform these services. The Consultant shall not assign (or
subcontract other than as specifically identified in Exhibit A) its performance under
this Agreement or any portions of this Agreement without the prior written consent
of the City, which consent must be sought at least thirty (30) days prior to the date
of any proposed assignment.
12.2 Any work or services assigned or subcontracted hereunder shall be subject to each
provision of this Agreement including Section 6, Public Records; Section 10,
Nondiscrimination; proper bidding procedures where applicable; and all local, State
and Federal statutes, ordinances and guidelines.
12.3 Any technical or professional service subcontract not listed in this Agreement, must
have prior written approval by the City.
13. Termination.
13.1 Termination for Convenience. Either party may terminate this Agreement for any
reason upon giving the other party no less than ten (10) business days written notice
in advance of the effective date of such termination. DraftPage 136 of 156
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13.2 Termination for Cause. If the Consultant fails to perform in the manner called for
in this Agreement, or if the Consultant fails to comply with any other provisions of
this Agreement and fails to correct such noncompliance within five (5) business
days of written notice thereof, the City may terminate this Agreement for cause.
Termination shall be effected by serving a notice of termination on the Consultant
setting forth the manner in which the Consultant is in default. The Consultant will
only be paid for services and expenses complying with the terms of this Agreement,
incurred prior to termination.
14. General Provisions.
14.1 For the purpose of this Agreement, time is of the essence.
14.2 Notice. Notice provided for in this Agreement shall be sent by:
14.2.1 Personal service upon the Project Administrators; or
14.2.2 Certified mail to the physical address of the parties, or by electronic
transmission to the e-mail addresses designated for the parties below.
14.3 The Project Administrator for the purpose of this Agreement shall be:
14.3.1 For the City: N. Zach Ratkai, or his/her designee
Administrative & Community Services Director
525 North 3rd Ave
Pasco WA 99301
ratkaiz@pasco-wa.gov
14.3.2 For the Consultant: Jason Irving PC, or his/her designee
Senior Engineer & Principal
1325 SE Tech Center Dr. Suite 140
Vancouver WA 98683
jirving@mackaysposito.com
15. Dispute Resolution.
15.1 This Agreement has been and shall be construed as having been made and entered
into and delivered within the State of Washington and it is agreed by each party
hereto that this Agreement shall be governed by the laws of the State of
Washington.
15.2 In the event of a dispute regarding the enforcement, breach, default, or
interpretation of this Agreement, the Project Administrators, or their designees,
shall first meet in a good faith effort to resolve such dispute. In the event the dispute DraftPage 137 of 156
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cannot be resolved by agreement of the parties, said dispute shall be resolved by
arbitration pursuant to RCW 7.04A, as amended, with both parties waiving the right
of a jury trial upon trial de novo, with venue placed in Pasco, Franklin County,
Washington. The substantially prevailing party shall be entitled to its reasonable
attorney fees and costs as additional award and judgment against the other.
16. Nonwaiver. Waiver by the City of any provision of this Agreement or any time limitation
provided for in this Agreement shall not constitute a waiver of any other similar event or
other provision of this Agreement.
17. Integration. This Agreement between the parties consists in its entirety of this document
and any exhibits, schedules or attachments. Any modification of this Agreement or change
order affecting this Agreement shall be in writing and signed by both parties.
18. Authorization. By signature below, each party warrants that they are authorized and
empowered to execute this Agreement binding the City and the Consultant respectively.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date first written above.
CITY OF PASCO, WASHINGTON MACKAY SPOSITO
Dave Zabell, City Manager Derrick Smith, President/CEO
ATTEST:
Debra C. Barham, City Clerk
APPROVED AS TO FORM:
Kerr Ferguson Law, PLLC, City Attorney DraftPage 138 of 156
Scope of Work
City of Pasco
Peanuts Park Restoration Project
Construction Management Services
July 17, 2020
Peanuts Park in downtown Pasco, WA is the central point of the redevelopment area of downtown Pasco. The
project will complete partial demolition of the current facility and provide significant improvements to the
park’s function and quality with a goal of stimulating further redevelopment downtown. MacKay Sposito was
selected by the City of Pasco (City) in July 2020 to provide construction management services for the project.
The following scope outlines tasks, deliverables, assumptions, and exclusions.
Assumptions:
1. WSDOT forms will be utilized when possible. When not available, City or MacKay Sposito forms will be
utilized with City approval.
2. The design team will be responsible for reviewing and responding to all technical submittals,
substitution requests, and requests for information. MacKay Sposito will review and respond to
contract related items (e.g. construction schedule submittals)
3. See hours and other assumptions in the attached fee proposal.
4. All documentation will be housed on the MacKay Sposito server and will generally not be mirrored in a
cloud based file sharing system.
Services provided by the City of Pasco:
1. Construction inspection and completion of daily inspection reports and photographs
2. Lead public outreach (with support from MacKay Sposito)
3. FTP site for transfer of large files (MacKay Sposito can provide Sharefile site as needed)
4. All coordination for scheduling of materials testing and special inspections and associated budget
tracking
5. Completion of wage rate interview requirements/documentation
6. Maintaining redlined record drawings (City inspector) and reviewing the contractor’s redlines for
completeness and accuracy
7. Final approval or denial of all change orders
Item provided by the City of Pasco:
1. Design team contact list
2. Information regarding design team construction phase scope of work
3. Construction inspection
4. Bid proposal and contract for selected construction contractorDraft
Page 139 of 156
5. Addenda issued during original and re-bidding
6. All project information and documents
Exclusions
1. Construction inspection services (available upon request)
2. Offsite materials or fabrication inspections
3. Construction project management software (e.g. Procore)
4. Development and management of project website or public outreach materials
5. Bidding phase services (bid tabulation, bid review, etc.)
6. Preparation of as-built or record drawings (assumed to be responsibility of design team)
7. Documentation of preconstruction conditions
8. Materials testing and special inspections. MacKay Sposito will record and compile such records provided
by others.
9. All items listed above as to be provided by City
1.0 PROJECT MANAGEMENT
1.1 PROJECT MANAGEMENT
1.1.1 Manage the MacKay Sposito project team
1.1.2 Manage the MacKay Sposito budget and invoicing
1.1.3 Prepare and submit weekly progress reports to the City for approval. Reports to generally
address:
1.1.3.1 Work complete during the previous week
1.1.3.2 Identification of and recommendations for mitigation of potential budget or schedule
risks
1.1.3.3 Updates on issues identified in the previous week’s report
1.1.3.4 Construction budget summary update to include base contract, change orders approved
to date and potential future change orders
1.1.3.5 Public interactions or comments received
1.1.4 Lead all Housing and Urban Development/Community Block Grant (HUD/CDBG) and WSDOT
related coordination and documentation including but not limited to UDBE, EEO and Training
Goals.
2.0 PRE-CONSTRUCTION
2.1 PROJECT UNDERSTANDING
2.1.1 Review construction documents including the general conditions, drawings, specifications,
reports (geotechnical, etc.) and permitsDraft
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2.1.2 Perform a site visit with City and design team
2.1.3 Coordinate with City staff to discuss questions project specific concerns
2.2 PROJECT SETUP
2.2.1 Setup project documentation structure to match WSDOT requirements
2.2.2 Prepare project key personnel contact list and communication diagram and distribute to the
project team
2.2.3 Review preconstruction submittals (site specific safety plan (SSSP), erosion control plan, etc.)
2.3 PRE-CONSTRUCTION MEETING
2.3.1 Prepare and distribute draft agenda to City for review/comment
2.3.2 Schedule pre-construction meeting and distribute agenda to attendees
2.3.3 Attend and lead the meeting
2.3.4 Prepare and distribute meeting minutes
3.0 CONSTRUCTION
3.1 CONSTRUCTION MANAGEMENT
3.1.1 Submittals
3.1.1.1 Receive and log applicable information (submission date/time, number, description,
responsible reviewer(s), etc.)
3.1.1.2 Review for format and completeness prior to routing to the responsible reviewer. If
format is incorrect or submittal incomplete route back to submitter for correction.
3.1.1.3 Track review status and schedule and pursue submittal responses to minimize schedule
impacts.
3.1.1.4 Look ahead to upcoming construction activities and proactively communicate with the
project team to identify potential missing submittals required prior to performing the
work. This includes tracking and actively pursuing long lead items/material submittals.
3.1.1.5 Review submittal responses for clarity and completeness prior to routing them back to
the original submitter.
3.1.1.6 Develop and maintain the Record of Materials
3.1.2 Requests for Information (RFIs)
3.1.2.1 Receive and log applicable information (submission date/time, number, description,
responsible reviewer(s), etc.)
3.1.2.2 Review for clarity and pursue any needed clarifications prior to routing to the
responsible reviewer.DraftPage 141 of 156
3.1.2.3 For highly time sensitive or technical RFIs immediately work with City to determine the
appropriate review/response team and schedule review/coordination meeting(s) if
appropriate.
3.1.2.4 Review and provide recommendations as appropriate.
3.1.2.5 Track review status and schedule and pursue RFI responses to minimize schedule
impacts.
3.1.2.6 Look ahead to upcoming construction activities and attempt to identify potential
ambiguities in the drawings and specifications, proactively pursue any needed
clarifications with the project team.
3.1.2.7 Review RFI responses prior to routing back to the original submitter. This includes
reviewing for response clarity and strategic approach as it relates to minimizing change
orders.
3.1.3 Change Orders
3.1.3.1 Prepare work order directives in conjunction with the City and design team
3.1.3.2 Receive and log applicable information (submission date/time, number, description,
responsible reviewer(s), etc.)
3.1.3.3 Review for format and completeness. Change orders that are not formatted in
accordance with the contract will be returned to the submitter for revision.
3.1.3.4 Review for validity, schedule impacts and cost. Perform independent cost estimate.
Provide recommendation of approval or denial and proposed adjustments to City.
3.1.3.5 Assist City with negotiations and work with the City inspector to compile available
supporting documentation (daily inspection reports, photographs, contract provisions,
etc.)
3.1.3.6 Resolve all contract disputes and/or assist in claims analysis, mitigation and resolution
3.1.3.7 Work with City inspector to track contractor force account labor, equipment, and
materials if needed (City inspector will perform daily tracking and review with MacKay
Sposito construction manager)
3.1.4 Quality Control
3.1.4.1 Review construction inspector reports and photographs weekly for accuracy and
completeness.
3.1.4.2 Issue and track resolution of all Non-Conformance Reports
3.1.5 Pay Request Review
3.1.5.1 Review Contractor Pay Request submittals
3.1.5.2 Review certified payroll and verify prevailing wage intents and affidavits
3.1.5.3 Resolve discrepancies; reconcile Pay Requests to actual work percentage complete or
quantities in accordance with construction contract Payment Schedule
3.1.5.4 Submit Pay Request to City for approvalDraft
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3.1.5.5 Confirm all work is complete and all required contractor documentation has been
submitted and reviewed prior to recommending final payment
3.1.5.6 Prepare Final Estimate and Comparison of Preliminary and Final Quantities
documentation
3.1.6 Schedule Compliance
3.1.6.1 Review contractor’s three week look ahead and progress schedule updates
3.1.6.2 Review overall project schedule for milestone impacts
3.1.6.3 Document any schedule deviations and resolve impacts with contractor and City
3.1.6.4 Request make-up schedules from contractor as needed and pursue submittal
3.1.6.5 Perform delay analysis, if required
3.1.7 Misc. Contract Administration
3.1.7.1 Process and approve all required subcontractor documentation
3.1.7.2 Draft letters as needed to resolve contractor compliance issues
3.1.7.3 Assist and support the contractor and City in coordinating utility relocations and
adjustments
3.1.7.4 Provide oversight to City staff during audits that may be performed
3.1.7.5 Coordinate with WSDOT local programs in an effort to complete a 90% completion pre-
audit
3.1.7.6 Attend meetings with City staff as necessary to resolve contractor compliance issues
3.2 CONSTRUCTION PROGRESS MEETINGS
3.2.1 Prepare agenda including:
3.2.1.1 Contractor provided 3-week look ahead schedule
3.2.1.2 Safety
3.2.1.3 Current issues status and resolution
3.2.1.4 Change order, RFI and submittal status
3.2.2 Act as the “Engineer” per the specifications, with the exception of tasks that are the
responsibility of the engineer or record
3.2.3 Attend and lead construction meetings with onsite attendance as appropriate
3.2.4 Prepare and distribute meeting minutes documenting discussions, issues and agreements
4.0 POST-CONSTRUCTION DraftPage 143 of 156
4.1 PUNCH LIST/CLOSEOUT
4.1.1 Prepare and distribute a project punch list identifying deficiencies and remaining work items to
be completed. Answer construction contractor questions and provide clarification regarding
remaining work items.
4.1.2 Assist with project close out including obtaining warranties and guarantees and close out of
project permits
4.1.3 Schedule and lead a final project walk through
4.1.4 Provide recommendation of project acceptance
4.1.5 Compile project documentation, including archive CD or online transfer of the all project files
4.2 LESSONS LEARNED
4.2.1 Schedule and prepare and distribute meeting agenda
4.2.2 Lead meeting to discuss lessons learned and how they may be incorporated into future projects
DraftPage 144 of 156
Agency:City of Pasco
Contract No.:TBD
Project:Peanuts Park Restoration - Construction Management Services
Date:7/17/2020
Task Description
(Duration)Labor Classifications
Estimated Labor
Hours (Straight
Time)
Hourly Billing Rate
(Straight Time)
Pre-Construction
(4 weeks)Construction Manager 120 $155.00
Administrative Assistant 40 $80.00
Senior Construction Manager 20 $185.00
0 Subtotal
Construction Start-Up 0
(8 weeks)Construction Manager 320 $155.00
Administrative Assistant 160 $80.00
Senior Construction Manager 40 $185.00
0 Subtotal
Construction
(33 weeks)Construction Manager 990 $155.00
Administrative Assistant 330 $80.00
Senior Construction Manager 66 $185.00
Landscape Manager 40 $160.00
0 Subtotal
Project Close-Out
(4 weeks)Construction Manager 120 $155.00
Administrative Assistant 80 $80.00
Senior Construction Manager 20 $185.00
Subtotal
$322,460.00
1 Assumes a 5-day work week
2 See hours calculation for assumed hourly effort for each labor classification and phase
Fee Estimate Assumptions & Notes:
$18,600.00
$198,460.00
$153,450.00
$26,400.00
$12,210.00
$6,400.00
GRAND TOTAL
$3,700.00
$28,700.00
$69,800.00
Total Estimated Price
$18,600.00
$25,500.00
$49,600.00
$12,800.00
$3,700.00
$7,400.00
$3,200.00
$6,400.00
C:\Users\jirving\Desktop\2020.07.17_Fee Estimate_Construction Management_Peanuts ParkDraftPage 145 of 156
Agency:City of Pasco
Contract No.:TBD
Project:Peanuts Park Restoration - Construction Management Services
Date:7/17/20
Hours Estimate
Phase Labor Classification Weeks Hr/week Total Hr
Pre-Construction Construction Manager 4 30 120
Administrative Assistant 4 10 40
Senior Construction Manager 4 5 20
Construction Start-Up Construction Manager 8 40 320
Administrative Assistant 8 20 160
Senior Construction Manager 8 5 40
Construction Construction Manager 33 30 990
Administrative Assistant 33 10 330
Senior Construction Manager 33 2 66
Landscape Manager 40
Project Close-Out Construction Manager 4 30 120
Administrative Assistant 4 20 80
Senior Construction Manager 4 5 20Draft
Page 146 of 156
Peanuts Park Construction
Management
City Council –August 3, 2020Page 147 of 156
Peanuts Park Page 148 of 156
Qualifications
•Local personnel and office
•Clear understanding of roles
•Background with Federal and State Funding
•Stakeholders Cooperation
•Profound Project Management Experience
•Diversity in Lineage
Page 149 of 156
Process
•RFP Issued in April, deadline May 13
•3 Responses Received
•Diverse internal review
•ACS, PW, CED staff
•Interviews
•Scoring Resulted in Section of MacKay Sposito
Page 150 of 156
Overall Costs
Expenditures
Project Engineers’ Estimate $5,198,304.87
Construction Management $322,460.00
TOTAL $5,520,794.87
CM cost represents 5.8% of the total estimated cost
Page 151 of 156
Schedule and Tasks
Project services are anticipated to run 49 weeks
Includes pre-construction and close out
Tasks
Manage Pre-Construction
Start up, establish schedules, understanding, work with GC
Construction Management
Day -to-day on site management
Communication with Staff (regular progess meetings)
Communication and regular outreach to stakeholders
Maintain records, coordinate payments and accounting
Manage schedule.
Closeout
Punch List, warrantees, acceptancePage 152 of 156
Roles and Responsibilities
Page 153 of 156
Contract Costs
Task Classification
Pre-Construction $25,500
Construction Start (Mobilization) $69,800
Main Construction Project $198,460
Close Out $28,700
Total $322,460Page 154 of 156
Questions? Page 155 of 156
Peanuts Park Construction
Management
City Council –August 3, 2020Page 156 of 156