HomeMy WebLinkAbout3976 Resolution - BNSF Overpass Agreement for Lewis Street OverpassRESOLUTION NO. 3976
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.
Resolution — BNSF Overpass Agreement -1
PASSED BY the City Council of the City of Pasco, Washington this Yd day of August,
2020.
G
Saul Martinez
Mayor
ATTEST:
Debra Barham, CMC
City Clerk
Resolution — BNSF Overpass Agreement -2
APPROVED AS TO FORM:
Ke uson Law, PLLC
y Attorney
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.
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EXHIBIT A
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
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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;
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(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.
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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.
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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.
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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.
Page 81 of 156
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]
Page 82 of 156
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.
Page 83 of 156
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:
Page 84 of 156
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:
_______________________
_______________________
_______________________
_______________________
Page 85 of 156
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.
Page 87 of 156
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
Page 90 of 156
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
Page 91 of 156
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
Page 94 of 156
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
Page 95 of 156
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.
Page 96 of 156
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.
Page 97 of 156
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.
Page 98 of 156
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.
Page 99 of 156
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:
Page 100 of 156
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.
Page 101 of 156
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
Page 102 of 156
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).
Page 103 of 156
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