HomeMy WebLinkAboutResolution - 2017-R0130 - BNSF Railway Company - 04/13/2017a
Resolution No. 2017-RO130
Item No. 6.15
April 13, 2017
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Grade Crossing
Construction and Maintenance Agreement relating to City of Lubbock Contract 12681,
Northwest Water Reclamation Plant Raw Sewage & Waste Activated Sludge Offsite
Pipeline (Resolution 2016-R0067), by and between the City of Lubbock and BNSF
Railway Company, a Delaware Corporation, and related documents. Said Agreement is
attached hereto and incorporated in this resolution as if fully set forth herein and shall be
included in the minutes of the City Council.
Passed by the City Council this 13th
ATTEST:
P'L-e"'
Re cca Garza, City ecre ary
VED AS TO
day of April -, 2017.
-U� -
DANIEL M. POPE, MAYOR
Wood Franklin, P.E., Director of Public Works
APPROVED AS TO FORM:
Ry B oke, Assistant City Attorney
vwxcdocs RES.Agreement GCCM & BNSF
03.08.2017
Resolution No. 2017-RO130
B/VSF
RA/L WAY
GRADE CROSSING CONSTRUCTION AND MAINTENANCE
AGREEMENT
FORM: PP 118
BNSF File No.: 014920T
North Slide Road
U.S. DOT No. 014920T
Railroad Line Segment 7107
Railroad Milepost 83.81
Slaton Subdivision
BNSF Contract No.
This Agreement ("Agreement"), is executed to be effective as of this 1st day of March,
2017 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware
corporation ("BNSF"), and the CITY OF LUBBOCK, TEXAS, a political subdivision of the
State of Texas ("Agency").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of
Lubbock, State of Texas;
WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is
undertaking a project to improve the existing North Slide Road at -grade crossing, located
at BNSF Line Segment 7107 and Milepost 83.81, and designated by D.O.T. No. 014920T,
by reconstructing and widening the roadway and installing railroad crossing signals and
activation equipment within the existing and new roadway easement across the BNSF
right-of-way as indicated on the Exhibit A, attached hereto and incorporated herein; and
WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefil
from the installation of advance warning signs, pavement marking stop bars or crossing
signal equipment (hereinafter collectively called, "Crossing Signal Equipment"); and
WHEREAS, the Agency also desires BNSF to install new crossing surfaces at North Slide
Road with a new concrete and rubber crossing surface;
WHEREAS, the Agency is paying for the acquisition and installation of crossing signal
equipment and the new crossing surface at North Slide Road;
WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the
crossing signal equipment and the new crossing surface described in the scope of work
herein, and upon the terms and conditions set forth below.
B/VSF
RA/L iYAY
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
reconstruction and widening of the North Slide Road by Agency and installation of
crossing signals/activation equipment and new crossing surfaces at U.S. D.O.T No.
014920T, (hereinafter referred to as the "Crossing") by BNSF, more particularly
described on the Exhibit A, including, but not limited to, any and all changes to telephone,
telegraph, signal and electrical lines and appurtenances, temporary and permanent track
work, fencing, grading, alterations to or new construction of drainage facilities, preliminary
and construction engineering and contract preparation.
ARTICLE II - BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance
thereof, BNSF agrees as follows:
1. In consideration of the faithful performance of the Agency's covenants contained
herein, BNSF hereby grants to Agency, its successors and assigns, upon and subject to
the terms and conditions set forth in this Agreement, permission and license to enter upon
and use the portion of BNSF's right-of-way as is necessary to reconstruct, widen and
thereafter maintain, the Crossing as described further on Exhibit A, excepting and
reserving BNSF's rights, and the rights of any others who have obtained, or may obtain,
permission or authority from BNSF, to do the following:
(a) Operate, maintain, renew and/or relocate any and all existing railroad track
or tracks, wires, pipelines and other facilities of like character upon, over or
under the surface of said right-of-way;
(b) Construct, operate, maintain, renew and/or relocate upon said right-of-way,
without limitation, such facilities as the BNSF may from time to time deem
appropriate;
(c) Otherwise use or operate the right-of-way as BNSF may from time to time
deem appropriate.
This right is given by BNSF without warranty of title of any kind, expressed or implied,
and no covenant on warranty of title shall be implied from the use of any word or words
herein contained. In the event Agency is evicted by anyone owning, or claiming title to or
any interest in said right-of-way, BNSF will not be liable to Agency for any damages,
losses or any expenses of any nature whatsoever. The granting of similar rights to others,
2
B~"A=
RAILWAY
subsequent to the date of this Agreement, will not impair or interfere with the rights
granted to Agency herein.
2. BNSF will furnish all labor, materials, 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;
(c) Furnishing of flagging services during construction of the Project as required
and set forth in further detail on Exhibit C, attached to this Agreement and
made a part hereof;
(d) Furnishing engineering and inspection as required in connection with the
construction of the Project;
(e) Provide and place asphalt beneath the track(s) to provide further sub -grade
stability prior to BNSF installing new concrete crossing surfaces;
(d) Installation of two 56-foot and one 64-foot concrete crossing surfaces for
the three tracks complete with new rail, ties, ballast, fasteners, along with
appropriate surfacing, to carry the improved roadway and sidewalk;
(e) Installation of Crossing Signal Equipment and Crossing Signal Control
House as shown on Exhibit A;
(f) Make such changes in the alignment, location and elevation of its
telephone, telegraph, signal and/or wire lines and appurtenances along,
over or under the tracks, both temporary and permanent, as may become
necessary by reason of the construction of the Project.
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual
cost basis, when BNSF, in its sole discretion, determines it is required by its labor
agreements to perform such work with its own employees working under applicable
collective bargaining agreements.
siv",#=
0.4/L WA
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.
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. Said plans
(reduced size 11" x 17"), showing the plan and profile of the roadway work on BNSF right-
of-way and marked as Exhibit A, attached hereto and made a part hereof, must be
submitted to BNSF for the development of railroad cost estimates.
2. Agency must make any required application and obtain all required permits and
approvals for the construction of the Project.
3. Agency must acquire all rights of way necessary for the construction of the Project.
B/VSF
RAILWAY
4. Agency must make any and all arrangements, in compliance with BNSF's Utility
Accommodation Manual (http://www.bnsf.com/communities/fags/pdf/utilily.pdf), for the
installation or relocation of wire lines, pipe lines and other facilities owned by private
persons, companies, corporations, political subdivisions or public utilities other than
BNSF which may be necessary for the construction of the Project.
5. Agency must construct the Project as shown on the attached Exhibit A and do all
work ("Agency's Work") provided for in the plans and specifications for the Project, except
railroad work that will be performed by BNSF hereunder. Agency must furnish all labor,
materials, tools and equipment for the performance of Agency's Work. The principal
elements of Agency's Work are as follows:
(a) Design and Reconstruction of North Slide Road;
(b) Installation of a pavement marking stop bar in accordance with the Manual
on Uniform Traffic Control Devices (hereinafter called, "MUTCD");
(c) Installation of advance warning signs in accordance with the MUTCD
(d) Perform all necessary grading and paving, including backfill of excavations
and restoration of disturbed vegetation on BNSF's right-of-way;
(e) Provide suitable drainage, both temporary and permanent;
(f) Provide all barricades, lights, flagmen or traffic control devices necessary
for preventing vehicular traffic from using a portion of the Crossing, during
the installation of the concrete crossing surfaces, and also during the
installation of the Crossing Signal Equipment.
(g) Construct asphalt roadway surface on approaches to each track, including
the portion of North Slide Road located between the tracks. Roadway
surface will match elevation of the Three (3) Track crossing surfaces;
(h) Job site cleanup including removal of all construction materials, concrete
debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and
other waste materials to the satisfaction of BNSF;
6. The Agency will approve the location of the signals and signal bungalow prior to
the installation by BNSF.
7. The Agency must have advanced railroad crossing signs and standard pavement
markings in place at the crossing shown on Exhibit A (if the same are required by the
MUTCD) prior to the acceptance of this Project by the Agency.
8. The Agency must give BNSF's Manager Public Projects written notice to proceed
("Notice to Proceed") with the railroad portion of the work after receipt of necessary funds
5
"~"J=
RAIL WAY
for the Project. BNSF will not begin the railroad work (including, without limitation,
procurement of supplies, equipment or materials) until written Notice to Proceed is
received from Agency.
9. The Agency's Work must be performed by 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.
10. 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.
11. 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.
12. Agency must include the following provisions in any contract with its contractor(s)
performing work on said Project:
(a) The Contractor is placed on notice that fiber optic, communication and
other cable lines and systems (collectively, the "Lines") owned by
various telecommunications companies may be buried on BNSF's
property or right-of-way. The locations of these Lines have been
included on the plans based on information from the
telecommunications companies. The contractor will be responsible for
contacting BNSF's Roadmaster (Kory Kirk at office # 806-765-3955
mobile # 806-341-8905 or kory.kirkCaDbnsf.com) BNSF's Signal
Supervisor (Jarred Hale at office # 806-379-3187, mobile # 806-367-
3190 or jarred. haileCD-bnsf.com), and the telecommunications
companies and notifying them of any work that may damage these Lines
or facilities and/or interfere with their service. The contractor must also
mark all Lines shown on the plans or marked in the field in order to verify
their locations. The contractor must also use all reasonable methods
when working in the BNSF right-of-way or on BNSF property to
determine if any other Lines (fiber optic, cable, communication or
otherwise) may exist.
6
B/VSF
NA/L WAY
(b) Failure to mark or identify these Lines will be sufficient cause for BNSF's
engineering representative to stop construction at no cost to the Agency
or BNSF until these items are completed.
(c) The Contractor will be responsible for the rearrangement of any facilities
or Lines determined to interfere with the construction. The Contractor
must cooperate fully with any telecommunications company(ies) in
performing such rearrangements.
(d) In addition to the liability terms contained elsewhere in this Agreement,
the contractor hereby indemnifies, defends and holds harmless BNSF
for, from and against all cost, liability, and expense whatsoever
(including, without limitation, attorney's fees and court costs and
expenses) arising out of or in any way contributed to by any act or
omission of Contractor, its subcontractors, agents and/or employees
that cause or in any way or degree contribute to (1) any damage to or
destruction of any Lines by Contractor, and/or its subcontractors, agents
and/or employees, on BNSF's property or within BNSF's right-of-way,
(2) any injury to or death of any person employed by or on behalf of any
telecommunications company, and/or its contractor, agents and/or
employees, on BNSF's property or within BNSF's right-of-way, and/or
(3) any claim or cause of action for alleged loss of profits or revenue by,
or loss of service by a customer or user of such telecommunication
company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL
NOT BE AFFECTED BY THE FACT, IF IT IS A 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 GROSS NEGLIGENCE OF BNSF.
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 and Exhibit C-I, attached
hereto and by reference made a part hereof.
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;
7
B/VSF
RAILWAY
(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-I,
and (ii) delivered to and secured BNSF's approval of the required insurance;
and
(d) If it is in Agency's best interest, Agency may direct that the construction of
the Project be done by day labor under the direction and control of Agency,
or if at any time, in the opinion of Agency, the contractor has failed to
prosecute with diligence the work specified in and by the terms of said
contract, Agency may terminate its contract with the contractor and take
control over the work and proceed to complete the same by day labor or by
employing another contractor(s) provided; however, that any contractor(s)
replacing the original contractor(s) must comply with the obligations in favor
of BNSF set forth above and, provided further, that if such construction is
performed by day labor, Agency will, at its expense, procure and maintain
on behalf of BNSF the insurance required by Exhibit C-1.
(e) To facilitate scheduling for the Project, Agency shall have its contractor give
BNSF's Roadmaster 90 days advance notice of the proposed times and
dates for work windows. BNSF and Agency's contractor will establish
mutually agreeable work windows for the Project. BNSF has the right at
any time to revise or change the work windows, due to train operations or
service obligations. BNSF will not be responsible for any additional costs
and expenses resulting from a change in work windows. Additional costs
and expenses resulting from a change in work windows shall be accounted
for in the contractor's expenses for the Project.
15. Agency must advise the appropriate BNSF Manager Public Projects, in writing, of
the completion date of the Project within thirty (30) days after such completion date.
Additionally, Agency must notify BNSF's Manager 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.
16. TO THE FULLEST EXTENT PERMITTED BY LAW, 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
8
BIVSF
RAIL WAY
EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY
ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART)
(1) 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 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 GROSS NEGLIGENCE OF BNSF.
ARTICLE IV - JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and
workmanlike manner and each portion must be promptly commenced by the party
obligated hereunder to perform the same and thereafter diligently prosecuted to
conclusion in its logical order and sequence. Furthermore, any changes or modifications
during construction which affect BNSF will be subject to BNSF's approval prior to the
commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the
detailed plans and specifications approved by BNSF.
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
E
BA/SF
RAILWAY
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), 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:
John Turpin, P.E.
Chief Water Utilities Engineer
P.O. Box 2000
Lubbock, TX 79457
JTurpin(@-mylubbock.us
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
John Turpin for appropriate corrective action.
6. Pursuant to this section and Article Il, Section 6 herein, Agency must, out of funds
made available to it for the construction of the Project, reimburse BNSF in full for the
10
"~"10=
RAIL WAY
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).
7. 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.
8. The construction of the Project will not commence until Agency gives BNSF's
Manager Public Projects thirty (30) days prior written notice of such commencement. The
commencement notice will reference BNSF's contract number BF and D.O.T.
Crossing No. 014920T and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement,
BNSF and the Agency agree to the following terms upon completion of construction of
the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future
construction or reconstruction of the North Slide Road roadway and
sidewalk, including the portion of roadway located between the tracks.
(b) Agency will maintain the advanced railroad crossing warning signs and
pavement markings and agrees to hold harmless and indemnify BNSF for
any claims, damages or losses, in whole or in part, caused by or due to the
Agency's failure to maintain the advanced warning signs and markings or
other requirements of the MUTCD.
(c) Agency will do nothing and permit nothing to be done in the maintenance of
the North Slide Road roadway, which will interfere with or endanger facilities
of BNSF.
(e) It is expressly understood by Agency and BNSF that any right to install
utilities will be governed by a separate permit or license agreement between
the parties hereto.
(f) BNSF will, at its sole cost and expense, operate and maintain the Crossing
Signal Equipment, Crossing Signal Control House, and the new crossing
surfaces, from end -of -tie to end -of -tie, in proper condition.
(g) Notwithstanding the preceding provision, if any regulations, ordinances,
acts, rules or other laws subsequently passed or amended by the Agency
or any other governmental or legislative authority increase the Agency's
11
BASF
NAIL WAY
portion of maintenance cost under this Agreement, BNSF will receive the
benefit of any such regulations, ordinances, acts, rules or other laws and
the Agency's increased portion of maintenance costs will be incorporated
into and made a part of this Agreement.
(h) If a railway or highway improvement project necessitates rearrangement,
relocation, or alteration of the Crossing Signal Equipment, Crossing Signal
House, or the new crossing surface installed hereunder, the costs for such
rearrangement, relocation or alteration will be the responsibility of the party
requesting such changes.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public
Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes
and the BNSF Manager of Public Projects will determine if flagging is required. If 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.
11. Any books, papers, records and accounts of the parties hereto relating to the work
hereunder or the costs or expenses for labor and material connected with the construction
will at all reasonable times be open to inspection and audit by the agents and authorized
representatives of the parties hereto, as well as the State of Texas and the Federal
Highway Administration, for a period of one (1) year from the date of the final BNSF
invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the
benefit of the successors and assigns of the parties hereto. Notwithstanding the
preceding sentence, neither party hereto may assign any of its rights or obligations
hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within one (1) year of
the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from
any liability or obligation under this Agreement, whether of indemnity or otherwise,
resulting from any acts, omissions or events happening prior to the date of termination or
expiration.
15. To the maximum extent possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law. If any
provision of this Agreement is prohibited by, or held to be invalid under, applicable law,
such provision will be ineffective solely to the extent of such prohibition or invalidity and
the remainder of the provision will be enforceable.
12
B/VSF
I4A/L WAY
16. 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.
17. Any notice provided for herein or concerning this Agreement must be in writing and
will be deemed sufficiently given when sent by certified mail, return receipt requested, to
the parties at the following addresses:
BNSF: Manager Public Projects
5800 North Main Street
Saginaw, Texas 76179
Agency: Chief Water Utilities Engineer
P.O. Box 2000
Lubbock, Texas 79457
[Signature page follows]
13
&A /I tVA Y
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.
CITY OF LUBBOCK
DANIEL M.POPE,MAYOR
ATTEST:
Ud^Jl^e,
ebfecca Garza,City Secretary
JOVED AS TO CONTENT
BNSF RAILWAY COMPANY AGENCY
*-^\
Printed Name:"T~l MqtHV CT M/\
Title:YA/XHfiTiFC £0&UC Pfo^TS
Director of Public Works
APPROVED AS TO FORM:
Ry^rfBr^oke,As^slifant City Attorney
14
R
EXISTING EDGE
— — - t 4 OF ASPHALT
PROPOSED CITY ROW
NORTH SLIDE ROAD WILL BE IN. JLIUC KVAU
CLOSED TO THROUGH
TRAFFIC WHILE TRACK WORK
AND PAVEMENT WIDENING IS -
UNDER WAY.
TYPICAL PROPOSED SECTION
BURLINGTON NORTHERN SANTA FE RAILWAY
/'pll
/ 40'
/ EXISTING SIGNAL
/ BUILDING TO REMAIN
/
/ lr n^, nocTEXIS�^ING 40'
i
_ACP
-PAV.SURF
ADJACENT PAVEMENT
-SECTION
-12' SUBGRADE
20.95 ACRES
BNSF RAILWAY COMPANY
VOL 1047, PAGE 373
VOL 39, PAGE 548
W zz
i �°`
� �
maw
z
O a
in
O
of
H a
L)
I '"�O
O v°
Zo
/ f
pa
Q
a 1.
/ 4�
f /
x
x
cD —
c9
aQ
O �Im
z
U Ix- a
=
z Q
o
UNDETHIS R DOCUMENT
AUTHORITY OF it
SEAM P. CUDNOSKI, P.E.
(
OR REVIEW PURPOSES ONLY
IT IS NOT INTENDED FOR
CONSTRUCTION.
A
a
LEGEND
�£
z
- EXISITING PROPERTY LINES
6
BAR IS ONE INCH ON
- EXISTING BNSF ROW
ORIGINAL DRAWING.
PROPOSEDROW
•ec
120'
ALL ROW AND PROPERY LINES SHOWN
ON THIS DRAWING HAVE BEEN
DESIGNED SPC _
DRAWN JES/JBS
SURVEYEDIVERIFIED ON THE GROUND
CHECKED SPC
BY HUGO REED 8 ASSOCIATES, INC.
EXHIBIT A
REVIEWED Sc
BNSF LS 7107, MP 83.81
SR_ 01 °' 01 -
DOT No. 014920T
EXHIBIT A W No.
C425 013-01
TO LITTLEFIELD
The Burlington Northern & Santa Fe Railway Company
EASTWARD APPR. 2985' 120' MIN.
55MPH Ir
2b' MIk,� XX'�20' MIN.
u
j I
INSTALL: GATE, FLASHERS. AND CANTII E`ER
BOLD - IN
INSTRUMENT HOUSE
® BELL
-W METER
CROSSING CONTROLL CONNECTIONS
Q BIDIRECTIONAL CROSSING CONTROL
D UNIDIRECTIONAL CROSSING CONTROL
rol COUPLER OR TERMINATION
I
GUARD RAIL
l
TURN
I
TO LUBBOCK
1
WESTWARD APPR.2685'
55MPH
f
s
SLIDE ROAD
bu 1 014 920 T
MP. 83.81
PROJECT # 56549
EXHIBIT A
RR Signal Sketch
BNSF RAIL WAY CO.
Warn'ng device placement:
LUBBOCK, TX
Clearance to C.L. Track =
Min. 12'
STREETLOCATION:
R AD
SLIDE ROAD
Edge of Road to C.L. Foundat"on:
Min.
4'3" w'th
curb.
LS:710:N
Min.
8'3" w'thout
curb.
M.P.83.81
M.P.837
DOT 1 014 920 T
Max.
12'
House C earance: 25
Min. to
Near
Ro'i
DIVISION:KANSAS
SUBDIVISION:SLATON
30
Min. to
Edge
of Road
KANSAS CITY
AL
LIGHTS
TD BE
LED
NO SCALE
DATE: 02/23/2017
FILE:56549-STATESKETCH-.dgn
AMW
sivsF
RAILWAY
EXHIBIT "C"
FORM: PP 102 (Revised 09/03/2013)
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 re -construction and
widening of the roadway approaches for North Slide Road (DOT No. 014920T) crossing
located at railroad milepost 83.81 on Railway's Slaton Subdivision, Line Segment 7107 in
Lubbock. Texas in Lubbock County.
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:
B~"J=
RAIL WAY
Name: John Turpin
Title: Chief Water Utilities Engineer
Agency: City of Lubbock
Address: P.O. Box 2000
Address: Lubbock, Texas 79457
Fax: 806-775-3074
E-mail: JTurpin(aD_(cD_mylubbock.us
1.01.05 The Contractor is responsible for determining and complying with all Federal, State and
Local Governmental laws and regulations, including, but not limited to environmental laws and
regulations (including but not limited to the Resource Conservation and Recovery Act, as
amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies,
defends and holds harmless Railway for, from and against all fines or penalties imposed or
assessed by Federal, State and Local Governmental Agencies against the Railway which arise
out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify City of Lubbock (John Turpin) at Office # 806-775-2342
and Railway's Manager Public Projects, Office # 817-352-2902 at least thirty (30) calendar days
before commencing any work on Railway Property. Contractor's notification to Railway must refer
to Railway's file: 014920T.
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.
K
B/VSF
RA/L WAY
• 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 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 Ronnie Anderson at Office
# 817-352-2907 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:
3
B~jM10=
NA/L WAY
■ 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 City of Lubbock, Texas and must not be undertaken
until approved in writing by the Railway, and until the City of Lubbock, Texas 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.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not included in
the contract plans must be submitted to the Railway by City of Lubbock, Texas for approval
before work is undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings, the Contractor must not move any equipment or
materials across Railway's tracks until permission has been obtained from the Railway. The
Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to
moving his equipment or materials across the Railways tracks. The temporary crossing must be
gated and locked at all times when not required for use by the Contractor. The temporary crossing
for use of the Contractor will be constructed and, at the completion of the project, removed at the
expense of the Contractor.
1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil,
petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and
Contractor must immediately notify the Railway's Resource Operations Center at 1-800-
832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must
not allow Railway Property to become a treatment, storage or transfer facility as those terms are
defined in the Resource Conservation and Recovery Act or any state analogue.
1.03.10 The Contractor upon completion of the work covered by this contract, must promptly
remove from the Railway's Property all of Contractor's tools, equipment, implements and other
materials, whether brought upon said property by said Contractor or any Subcontractor, employee
or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a
condition acceptable to the Railway's representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan:
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must
develop and implement a Roadway Worker Protection/On Track Safety Program and work with
El
B/VSF
AA/L WAY
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 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.e-ralisafe.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.
B/VSIF
RAILWAY
1.05 Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster Korn Kirk at Office # 806-765-3955
or Mobile # 806-341-8905 and e-mail: Kory.Kirk(&-BNSF.com 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.
• FOR THIS PROJECT, RAILROAD FLAGGING SERVICES WILL BE PROVIDED BY
RAILPROS (NOT A BNSF EMPLOYEE). The Contractor must contact Railpros directly at
Office # 877-315-0513 or e-mail: BNSFinfoArailprosfs.com to enter into a
reimbursement agreement for flagging services and to request and schedule a railroad
flagger. The Railpros flagger(s), the Contractor, and the BNSF Roadmaster must
participate in a job safety briefing PRIOR TO the start of any work on/over/under
Railway's right of way. The Railway reserves the right to utilize its employees to provide
railroad flagging services when those resources become available. In this event, the
Railpros flagger and the Contractor will be notified by the Railway.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will
be required and furnished when Contractor's work activities are located over, under and/or within
twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in
the event of tip over or other catastrophic occurrence, but not limited thereto for the following
conditions:
• 1.05.02a When, upon inspection by Railway's Representative, other conditions
warrant.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in
the opinion of Railway's representative, track or other Railway facilities may be
subject to movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at
timetable speeds.
• 1.05.02d When any hazard is presented to Railway track, communications, signal,
electrical, or other facilities either due to persons, 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.
C0l
B/VSF
AA/L WAY
• 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
CONTRACTOR. 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 14 freight trains per 24-hour
period at a timetable speed 55 MPH and no passenger trains.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of
trains and equipment can occur at any time and in any direction. All work performed by
contractors within 25 feet of any track must be in compliance with FRA Roadway Worker
Protection Regulations.
1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task
changes. If the task is within 25 feet of any track, the job briefing must include the Railway's
flagger, as applicable, and include the procedures the Contractor will use to protect its employees,
subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway
track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track
safety strategy approved by the Railway's Project Representative. When authority is provided,
7
B/VSF
AA/L WAY
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 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
B~"J=
RA/L WAY
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
Roadmaster (Korn Kirk) at Office # 806-765-3955 and BNSF's Signal Supervisor (Jarred
Haile) at Office # 806-379-3187. 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
9
B/VSF
RAIL WAY
and, regardless of depth, must be shored where there is any danger to tracks, structures or
personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded
and/or protected when not being worked on. When leaving work site areas at night and over
weekends, the areas must be secured and left in a condition that will ensure that Railway
employees and other personnel who may be working or passing through the area are protected
from all hazards. All excavations must be back filled as soon as possible.
1.08 Hazardous Waste, Substances and Material Reporting:
1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other
deleterious material, including but not limited to any non -containerized commodity or material, on
or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways,
while performing any work under this Agreement, Contractor must immediately: (a) notify the
Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards
necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise
due care with respect to the release, including the taking of any appropriate measure to minimize
the impact of such release.
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal
Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an
employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property
must be reported immediately (by phone mail if unable to contact in person) to the Railway's
representative in charge of the project. The Non -Employee Personal Injury Data Collection Form
contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the
Railway's Project Representative no later than the close of shift on the date of the injury.
IT11
B~"A=
RAILWAY
B/VSF
RAILWAY 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)
(:e., emp ofanather railroad, ar, nan-BNSfemp invalved in vehic%accident, including company
vehicles)
❑ Contractor/safety sensitive (F) ❑ Contractor/non-safety sensitive (G)
Volunteer/safety sensitive (H) ❑ Volunteer/other non -safety sensitive (1)
❑ 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
❑ Nan -trespasser W - 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 I-800-G97-8736 or email to: Accident-Reuorting.Center[NBNSF.com
AND COPY TO: ROADMASTER FAX 806.765.3930 & RAILWAY MANAGER PUBLIC PROJECTS FAX 817.352.2912
Officer Providing Information:
(Name)
(Employee No.)
(Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REOUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT
TO 49 U.S.C. 20903 AND 83 U.S.C. 490
11
B/VSF
RA/L WAY
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.
I. 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:
G. Name (last, first, mi):
7. Address:
B. Date of Birth:
'hone Number:
9. Injury:
(i.e., Laceration, etc.)
II. Description of Accident Jo include location, action, result, etc.):
12. Treatment:
First Aid Only
❑ Required Medical Treatment
Other Medical Treatment
13. Dr. Name:
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
City:
City:
SSN (required):
City: St: Zip:
and/or Age: Gender:
(if available)
Employer:
IO. Body Part:
Date:
(i.e., Hand, etc.)
St: Zip:
St: Zip:
12
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
"~"A=
RAILWAY
EXHIBIT "C-1"
FORM: PP 103 (Revised 09103/2013)
Right of Entry Agreement
Between
BNSF RAILWAY COMPANY and the CONTRACTOR
Railway File: 014920T
Agency Project: re -construction of North Slide Road crossing at BNSF Railway
Utility Contractors of America, Inc. (hereinafter called "Contractor"), has entered into
an agreement (hereinafter called "Agreement") dated , with the City of
Lubbock, Texas for the performance of certain work in connection with the following
project: re -construction and widening of the roadway approaches for North Slide
Road (DOT No. 014920T) crossing located at railroad milepost 83.81 on Railwav's
Slaton Subdivision, Line Segment 7107 in Lubbock, Texas in Lubbock County.
Performance of such work will necessarily require Contractor to enter BNSF RAILWAY
COMPANY (hereinafter called "Railway") right of way and property (hereinafter called
"Railway Property"). The Agreement provides that no work will be commenced within
Railway Property until the Contractor employed in connection with said work for the City
of Lubbock, Texas (i) executes and delivers to Railway an Agreement in the form
hereof, and (ii) provides insurance of the coverage and limits specified in such
Agreement and Section 3 herein. If this Agreement is executed by a party who is not
the Owner, General Partner, President or Vice President of Contractor, Contractor must
furnish evidence to Railway certifying that the signatory is empowered to execute this
Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date
of the Agreement, has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless
Railway for all judgments, awards, claims, demands, and expenses (including
attorneys' fees), for injury or death to all persons, including Railway's and
Contractor's officers and employees, and for loss and damage to property
belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or
about Railway's property or right-of-way. THE LIABILITY ASSUMED BY
CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT,
THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS
BNSF
RAZZ WAY
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE,
EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY
CAUSED BY THE INTENSIONAL MISCONDUCT OR GROSS NEGLIGENCE
OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR
INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST
RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT,
INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY
APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO
CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway,
that it will adjust and settle all claims made against Railway, and will, at Railway's
discretion, appear and defend any suits or actions of law or in equity brought
against Railway on any claim or cause of action arising or growing out of or in
any manner connected with any liability assumed by Contractor under this
Agreement for which Railway is liable or is alleged to be liable. Railway will give
notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such
claims, and in the event of a suit being brought against Railway, Railway may
forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle
such suits and protect, indemnify, and save harmless Railway from and against
all damages, judgments, decrees, attorney's fees, costs, and expenses growing
out of or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any
portion of this Article shall be deemed to be inapplicable for any reason, including
without limitation as a result of a decision of an applicable court, legislative
enactment or regulatory order, the parties agree that this Article shall be
interpreted as requiring Contractor to indemnify Railway to the fullest extent
permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES
EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR
RAILWAY'S ACTS OF NEGLIGENCE.
It is mutually understood and agreed that the assumption of liabilities and
indemnification provided for in this Agreement survive any termination of this
Agreement.
B/VSF
RA/L WA
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.
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
$2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but
in no event less than the amount otherwise carried by the Contractor.
Coverage must be purchased on a post 2004 ISO occurrence form or
equivalent and include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be
indicated on the certificate of insurance:
♦ The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
♦ Waver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
It is agreed that the workers' compensation and employers' liability related
exclusions in the Commercial General Liability insurance policy(s) required herein
are intended to apply to employees of the policy holder and shall not apply to
Railway employees.
B/VSF
HAIL WAY
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being performed
under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for,
but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which
shall be indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
♦ 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.
D. Railroad Protective Liability insurance naming only the Railway as the
Insured with coverage of at least $2,000,000 per occurrence and $6,000,000
in the aggregate. The policy Must be issued on a standard ISO form CG 00
35 12 04 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
4
B/VSF
RAILWAY
♦ 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:
BNSF Railway Company
c/o. CertFocus
B/VSF
RAILWAY
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: BNSFCaD-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.
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
0
8/VHF
R.41Z WAY
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
7
B~"10=
RAILWAY
authority. Railway shall have the right to contest, protest, or claim a refund, in
Railway's own name, any Sales Taxes paid by Railway to Contractor or for which
Railway might otherwise be responsible for under this Agreement; provided,
however, that if Railway is not permitted by law to contest any such Sales Tax in
its own name, Contractor shall, if requested by Railway at Railway's sole cost
and expense, contest in Contractor's own name the validity, applicability or
amount of such Sales Tax and allow Railway to control and conduct such
contest.
Railway retains the right to withhold from payments made under this Agreement
amounts required to be withheld under tax laws of any jurisdiction. If Contractor
is claiming a withholding exemption or a reduction in the withholding rate of any
jurisdiction on any payments under this Agreement, before any payments are
made (and in each succeeding period or year as required by law), Contractor
agrees to furnish to Railway a properly completed exemption form prescribed by
such jurisdiction. Contractor shall be responsible for any taxes, interest or
penalties assessed against Railway with respect to withholding taxes that
Railway does not withhold from payments to Contractor.
5) 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
(www.bnsf.com/communities/faas/permits-real-estate/), for any temporary
crossing requested to aid in the construction of this Project, if approved by BNSF.
6) 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.
RA/LWAY
For loss of use of equipment, Contractor will be billed the current freight train
hour rate per train as determined from Railway's records. Any disruption to train
traffic may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain
other grain, intermodal, coal and freight trains operate under incentive/penalty
contracts between Railway and its customer(s). Under these arrangements, if
Railway does not meet its contract service commitments, Railway may suffer loss
of performance or incentive pay and/or be subject to penalty payments.
Contractor is responsible for any train performance and incentive penalties or
other contractual economic losses actually incurred by Railway which are
attributable to a train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary
and confidential. In the event of a train delay covered by this Agreement,
Railway will share information relevant to any train delay to the extent consistent
with Railway confidentiality obligations. The rate then in effect at the time of
performance by the Contractor hereunder will be used to calculate the actual
costs of train delay pursuant to this agreement.
Contractor and its subcontractors must give Railway's Roadmaster Kory Kirk at
Office # 806-765-3955 or Mobile # 806-341-8905 and e-mail:
Kory.Kirk(&-BNSF.com 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.
9
B/VSF
RA/L WAY
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.
Utility Contractors of America, Inc.
Contractor
Printed Name:
Title:
Address: 5805 CR 7700
City: Lubbock
State: TX Zip: 79424
Fax: 806-863-4132
Office: 806-863-2642
Contact Person: Jonathan Ziegner
Mobile: 806-470-7404
E-mail: JonathanCaD-UCAtexas.com
[D]
BNSF Railway Company
Name: Timothy J. Huya
Manager Public Projects
Accepted and effective this day
of .2017.
MAINTAIN PROPRIETARY CONFIDENTIALITY "•'"'
Exhibit D - RR Signal Estimate BNSF RAILWAY COMPANY
North Slide Road - DOT No. 014920T FHPN1 ESTIMATE FOR
CITY OF LUBBOCK
Revised on 2/23/2017
LOCATION BROADVIEW DETAILS OF ESTIMATE PLAN ITEM: 000254829 VERSION: 5
PURPOSE, JUSTIFICATION AND DESCRIPTION
N SLIDE ROAD LUBBOCK TX; RELOCATE NW CROSSING SIGNAL; KANSAS DIV; SLATON SUBDIV; LS 7107; MP 0083.81; DOT# 014920T. SEQ.
#56549.
MONTHLY POWER UTILITY COST CENTER: 61836.
THE MATERIAL LIST BELOW REFLECTS TYPICAL REPRESENTATIVE PACKAGES USED FOR ESTIMATING PURPOSES ONLY.
THIS ESTIMATE IS GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR, MATERIAL, AND
OVERHEAD.
CONTRACTS HAVE BEEN ESTABLISHED FOR PORTIONS OF SIGNAL WORK ON THE BNSF RAILROAD.
irattttwrrtitwiwitr##t#stttit#• SIGNAL WORK ONLti'#titititt#wrrttt#ttttt•itrwr#rt
THE CITY OF LUBBOCK IS FUNDING 80% OF THIS PROJECT, BNSF IS FUNDING 20%.
MAINTAIN PROPRIETARY CONFIDENTIALITY.
PRIMARY FUNDING SOURCE IS FHWA
rt BUY AMERICA(N) APPLIES wt
DESCRIPTION
QUANTITY U/M
COST TOTALS
wrrr#rtt##
LABOR
tititwirrt
INSTALL INSULATED JOINT
16.0 MH
454
PLACE FIELD WELDS - CAP
64.0 MH
1,924
REMOVE RETIRED INSULATED JOINT
19.04 MH
583
SIGNAL FIELD - REPLACE
272.0 MH
8,386
PAYROLL ASSOCIATED COSTS
6,831
DA OVERHEADS
10,382
EQUIPMENT EXPENSES
2,710
INSURANCE EXPENSES
1,904
TOTAL LABOR COST
33,174 33,174
t#ttt#Rwtttit
MATERIAL
rirrtrtrtttrtt
INSUL IT W/PLATES-GENERIC40 FT -BONDED FOR
2.0 EA
4,500
PLUG RAIL40 FT -GENERIC -FOR SIGNAL PROJECTS
2.0 EA
1,674
WELDKIT, GENERIC FOR ALL RAIL WEIGHTS
8.0 KT
543
CABLE, 2C/6 TW
500.0 FT N
620
CABLE, 5C/10
70.0 FT N
136
CABLE, 5C/6
500.0 FT N
2,095
CABLE, 7C/14
500.0 FT N
895
CANTILEVER
1.0 EA N
17,404
CONDUIT, PVC 4", SCH 80
300.0 FT N
1,011
FIELD MATERIAL
1.0 LS N
3,693
FILL DIRT
20.0 CY N
500
FOUNDATION, CANT
1.0 EA N
4,062
FOUNDATION, STEEL
1.0 EA N
729
GATE ARM
1.0 EA N
719
GATE KEEPER
2.0 EA N
3,726
GATE MECHANISM, M95
1.0 EA N
10,295
LED LIGHT
12.0 EA N
2,412
SHUNT, NBS (WITH ENCLOSURE)
2.0 EA N
2,232
SIGN, 3 TRACK
1.0 EA N
31
SURFACE ROCK
10.0 CY N
500
MATERIAL HANDLING
335
USE TAX
4,326
OFFLINE TRANSPORTATION
663
TOTAL MATERIAL COST
63,101 63,101
t#ttt##twt
OTHER
CONTRACT ENGINEERING 1.0 LS N 4,000
Page 1 of 2
DIRECTIONAL BORING
300.0 FT N 15,000
TOTAL OTHER ITEMS COST
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
GROSS PROJECT COST
LESS COST PAID BY BNSF
TOTAL BILLABLE COST
19,000 19,000
115,275
10,863
1,262
127,400
25,481
101,919
Page 2 of 2
MAINTAIN PROPRIETARY CONFIDENTIALITY
EXHIBIT D - Concrete Crossing Estimate BNSF RAILWAY COMPANY
North Slide Road - DOT No. 014920T FHPM ESTIMATE FOR
Revised on 2/22/2017 TXDOT
LOCATION BROADVIEW DETAILS OF ESTIMATE PLAN ITEM : 211522000 VERSION: 2
PURPOSE, JUSTIFICATION AND DESCRIPTION
PIP KSW DIV SLATON SUB LS 7107 MP 83.814 - DOT # 014920T - PARTIALLY BILLABLE TO TXDOT
BNSF TO REMOVE EXISTING TIMBER CROSSING PLANKS AND INSTALL NEW CONCRETE CROSSING PANELS.
CITY OF LUBBOCK, TX IS FUNDING 80% OF PROJECT COST AND BNSF IS FUNDING 20%.
PRIMARY FUNDING SOURCE IS FHWA
"• BUY AMERICA(N) APPLIES ••
DESCRIPTION
ss•••s•••r
LABOR
aawrr+arr•
PLACE FIELD WELDS - CAP
REPLACE PUBLIC CROSSING - TOTAL REHAB
UNLOAD CROSSING MATERIAL - PUBLIC - CAP
PAYROLL ASSOCIATED COSTS
DA OVERHEADS
EQUIPMENT EXPENSES
INSURANCE EXPENSES
TOTAL LABOR COST
MATERIAL
araaarawaasrr
TRACK PANEL, 136 STANDARD RAIL, 40 FT- 10 FT TIES -
TRACK PANEL, 136 STANDARD RAIL, 80 FT- 10 FT TIES -
SPIKE, TBR SCREW 3/4"X13", F/ROAD XING
WELDKIT, GENERIC FOR ALL RAIL WEIGHTS
CONC 136 08-SEC WITH FILLER FOR 10' WOOD TIES •'
CONCRETE XING RAMP AND PANEL RESTRAINT,
MATERIAL HANDLING
USE TAX
OFFLINE TRANSPORTATION
TOTAL MATERIAL COST
OTHER
rrrrssrsss
Asphalt Approaches
Asphalt Under Crossing
Fabric
Perf. PVC Drain Pipe
TOTAL OTHER ITEMS COST
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
GROSS PROJECT COST
LESS COST PAID BY BNSF
TOTAL BILLABLE COST
QUANTITY U M COST TOTALS
88.0 MH 2,646
176.0 MH 4,988
88.0 MH 2,494
6,097
9,268
5,455
1,699
32,647 32,647
2.0 EA **
11,434
4.0 EA '*
43,700
396.0 EA *•
872
11.0 KT **
746
1760 FT "*
28,512
3.0 ST •'
930
4,307
7,165
1,083
98,749 98,749
13.0
NT
975
348.0
NT
26,100
174.0
LF
3,480
196.0
LF
3,920
34,475 34,475
16,154