HomeMy WebLinkAboutRes.2882.04-06-2015 �
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BILL N0. 15-46 RESOLUTION N0.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AGREEMENT WITH BNSF RAILWAY COMPANY,
FOR THE FLOODWALL RAILROAD RELOCATION PROJECT, IN
THE CITY OF CAPE GIRARDEAU, MISSOURI
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS :
ARTICLE l . The City Manager, for and on behalf of the City
of Cape Girardeau, Missouri, is hereby authorized to execute an
Agreement with BNSF Railway Company for the floodwall railroad
relocation project . The Agreement shall be in substantially the
form attached hereto as Exhibit ��A", which document is hereby
approved by the City Council, and incorporated herein by
reference, with such changes therein as shall be approved by the
officers of the City executing the same .
PAS AND ADOPTED THIS �,� DAY OF �� , 2015 .
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Gayle\ L. Conrad, City Clerk
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GENERAL CONSTRUCTION AGREEMENT
FOR ENGINEERING DESIGN, CONSTURCTION MANAGEMENT SERVICES AND
CONSTRUCTION REIMBURSEMENT TO BNSF RAILWAY PER THE CITY OF
CAPE GIRARDEAU'S TOE DRAIN RECONSTRUCTION PROJECT
BNSF File No.: BF10007683
Mile Post 130.5— 131.5
Line Segment LS 1025
U.S. DOT Number N/A
River Subdivision
This General Construction Agreement ("Agreement") is entered into effective as of
03/21/2015, by and between City of Cape Girardeau ("City"), Wilson &Company, Inc.,
Engineers & Architects ("Consultant") and BNSF RAILWAY COMPANY ("Railway").
WHEREAS, Railway operates a freight transportation system by rail with operations
throughout the United States and Canada; and
WHEREAS, City desires Wilson & Company, Inc., Engineers & Architects to perform
certain engineering services adjacent to and upon Railway's right of way and/or property, and
Consultant is willing to perform such services.
NOW, THEREFORE, in consideration of Railway entering this Agreement with the City
and granting Consultant permission to enter upon the Premises (defined herein), the City agrees
with Railway as follows:
SECTION 1. SCOPE OF SERVICES
Under direction from the City the Consultant will perform the following services,
hereinafter described as "Work": The Consultant will provide complete 100% engineering
design, including, but not limited to, 100% civil construction design plan sets to be used by
USACE's contractor and approved by BNSF Railway that will be stamped by a licensed
professional civil engineer in the state of Missouri. Geotechnical work/analysis, complete right
of way and track alignment design and construction survey, environmental impact analysis and
permitting acquisition, full set of cross-sections, typical sections and plan and profile sheets,
subgrade and subballast layer design and analysis that meets or exceeds Railway standards,
utility location/relocation and/or protection per railroad loading. All engineering design and plan
sets must be approved by the Railway before the start of construction. Construction management
services must be performed during construction by consultant and be coordinated with USACE's
chosen contractor. All Railroad grading work, must be built per the plans, approved by the
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Railroad and City and all grade work must meet compaction requirements specified by the
Railroad. Engineered grade and all materials used must be approved by Railroad representative
before construction ceases. The City will provide all additional right of way needed to
accommodate the Railways new track grade at no cost to the railroad. All newly constructed
grade shall be under warranty for two (2) years beginning after construction completion.
Whereas if any grade failure, or issue occurs due to poor design or construction, the Railroad will
not be liable for redesign ar construction costs, but will be reimbursed by the City. Two (2) year
warranty for construction shall be limited to work not performed by BNSF Railway.
Performance of the Work will necessarily require Consultant to enter Railway's right of
way and property ("Premises"). City and Consultant agrees that no work will be commenced on
the Premises until (i) this Agreement is executed by both City and Railway; and (ii) City
provides the Railway with the insurance contemplated herein. Consultant and City further agees
that if this Agreement is not executed by the owner, general partner, president or vice-president
of Consultant, Consultant will furnish Railway with evidence certifying that the signatory is
empowered to execute this Agreement.
SECTION 2. PAYMENT OF FEES
The Railway will not be responsible for paying City or Consultant, sub-consultants, or
contractors for the Work performed under this Agreement including, but not limited to, the cost
of any additional right of way needed to accommodate the relocation of the Railway's tracks.
The City will reimburse the Railroad for new track grade and subgrade civil work including all
material, equipment, labor, flagging and overtime cost. The City will also reimburse the railroad
for all track removal and new track construction incurred from this project, including all
material, labor, overtime, flagging, and equipment costs. The City will also reimburse the
Railroad for all redirected train traffic during the construction window and any additional costs if
the time allotted is exceeded.
SECTION 3. RELEASE OF LIABILITY AND INDEMNITY
The obligations and liabilities of the City listed below are pursuant to and limited by
Section 537.610 of the Revised Statutes of Missouri.
Consultant hereby waives, releases, indemnifies, defends and holds harmless Railway for, from
and against all judgments, awards, claims, demands, and expenses (including attorney's fees), for
injury or death to all persons, including Railway's and the Consultant's officers and employees,
and for loss and damage to property belonging to any person, to the extent arising in any manner
from Consultant's ar Consultant's subcontractors' negligent or wrongful acts or omissions on any
work performed on or about Railway's property or right of way. THE LIABILITY ASSUMED
BY CONSULTANT WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT,
THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED
BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS,
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SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT
SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONSULTANT
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 BOILER
INSPECTION ACT, WHENEVER SO CLAIMED.
Consultant further agree, 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
Consultant under this Agreement for which Railway is liable or is alleged to be liable. Railway
will give notice to Consultant, in writing, of the receipt or pendency of such claims and
thereupon Consultant must proceed to adjust and handle to a conclusion such claims, and in the
event of a brought against Railway, Railway may forward summons and complaint or other
process in connection therewith to Consultant, and Consultant 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.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement will survive any termination of this Agreement.
SECTION 4. INSURANCE
Consultant 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 Consultant. 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
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This policy shall also contain the following endorsements, which shall be indicated
on the certificate of insurance:
♦ The definition of insured contract shall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
♦ Waver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
It is agreed that the workers' compensation and employers' liability related
exclusions in the Commercial General Liability insurance policy(s) required herein
are intended to apply to employees of the policy holder and shall not apply to
Railway employees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being performed
under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined single limit
of at least $1,000,000 per occurrence, and include coverage for, but not limited to the
following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
♦ 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:
♦ Consultant'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.
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♦ 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. Professional Liability:
Professional Liability Insurance, as will protect the Railway from damage resulting from
negligent error, omission or acts of the Consultant, its agents, officers and employees in
the performance of the professional services rendered under this agreement and for which
he is legally liable. Such policy of insurance shall be in an amount not less than
$2,000,000 per claim.
If coverage is purchased on a"claims made"basis, Consultant hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation or
termination of this contract. Annually contractor agrees to provide evidence of such
coverage as required hereunder.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
Consultant 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. Consultant 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 Consultant's care, custody, or control.
Allocated Loss Expense shall be in addition to all policy limits for coverage's referenced
above.
Consultant is not allowed to self-insure without the prior written consent of Railway. If
granted by Railway, self-insured retention or other financial responsibility for claims shall be
covered directly by Consultant in lieu of insurance. Any and all Railway liabilities that would
otherwise, in accordance with the provisions of this Agreement, be covered by Consultant's
insurance will be covered as if Consultant elected not to include a deductible, self-insured
retention or other financial responsibility for claims.
Prior to commencing the Work, Consultant 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 addresses:
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BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
E111a11: B�SFracertfocus.com
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Consultant shall notify Railway in writing at least 30 days prior to any cancellation, non-
renewal, substitution, or material alteration.
Any insurance policy must 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 provide.
If coverage is purchased on a "claims made" basis, Consultant hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation or termination of
this contract. Annually, Consultant agrees to provide evidence of such coverage as required
hereunder.
Consultant represents that this Agreement has been thoroughly reviewed by Consultant's
insurance agent(s)/broker(s), who have been instructed by Consultant 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 Consultant, Consultant shall
require that the subcontractor shall provide and maintain the insurance coverage(s) 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 Consultant 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 Consultant's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Consultant shall not be deemed to release or diminish the liability of Consultant including,
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without limitation, liability under the indemnity provisions of this Agreenzent. 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,
Consultant 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 Consultant. Therefore, these provisions shall be enforceable and Consultant shall be
bound thereby regardless of whether or not indemnity provisions are determined to be
enforceable in the jurisdiction in which the wark covered hereunder is performed.
Far purposes of this section, Railway means `Burlington Northern Santa Fe LLC",
"BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.
SECTION 5. SALES AND OTHER TAXES
In the event applicable sales taxes of a state ar political subdivision of a state of the
United States are levied or assessed in connection with and directly related to any amounts
invoiced by Consultant to Railway("Sales Taxes"), Railway shall be responsible for paying only
the Sales Taxes that Consultant 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 Consultant bills Railway, (ii)
Consultant 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 Consultant and
its subcontractors use or consume in the performance of this Agreement, (iii) Consultant shall be
responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Consultant
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) Consultant shall be responsible for Sales Taxes (together with
any penalties, fines or interest thereon) if Consultant fails to issue separate invoices for each state
in which Consultant delivers goods, provides services or, if applicable, transfers intangible rights
to Railway.
Upon request, Consultant shall provide Railway satisfactory evidence that all taxes
(together with any penalties, fines or interest thereon) that Consultant is responsible to pay under
this Agreement have been paid. If a written claim is made against Consultant for Sales Taxes
with respect to which Railway may be liable for under this Agreement, Consultant shall
promptly notify Railway of such claim and provide Railway copies of all correspondence
received from the taxing authority. Railway shall have the right to contest, protest, or claim a
refund, in Railway's own name, any Sales Taxes paid by Railway to Consultant 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, Consultant shall,
if requested by Railway at Railway's sole cost and expense, contest in Consultant's own name
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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 Consultant 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), Consultant agrees to furnish to Railway a properly completed
exemption form prescribed by such jurisdiction. Consultant 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 Consultant.
SECTION 6. CONSULTANT REQUIREMENTS
The Consultant must observe and comply with all provisions, obligations, requirements
and limitations contained in the Contract, and the Consultant Requirements set forth on Exhibit
"C" attached to the Contract 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.
SECTION 7. INDEPENDENT CONSULTANT
Consultant is considered an independent contractor under this Agreement and neither
Consultant nor any of its employees, subcontractors, agents or servants are considered employees
of Railway in any respect. Consultant has the exclusive right and duty to control the work of its
employees. All persons employed by Consultant or any of its subcontractors under this
Agreement are the sole employees of Consultant or its subcontractors. Consultant will be given
general directions and instructions regarding the Work to be performed under this Agreement;
however, direct supervision of Consultant's employees will be Consultant's responsibility and
obligation.
SECTION 8. TRAIN DELAYS
City and/or Consultant 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. City and/or Consultant 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 the City, Consultant, or
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subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it
will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, City and/or Consultant 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. City and/or Consultant is responsible for any train performance and
incentive penalties ar other contractual economic losses actually incurred by Railway which are
attributable to a train delay caused by City, Consultant 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 CONSULTANT HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL
COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT.
Consultant and its subcontractors must give Railway's representative
( �,4�,2�,� ) � weeks advance notice of the times and dates for proposed work
windows. Railway and Consultant 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 Consultant's expenses
for the project.
Consultant and subcontractors must plan, schedule, coordinate and conduct all
Consultant's work so as to not cause any delays to any trains.
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SECTION 9. GENERAL PROVISIONS
Choice of Law; Forum Railway and/or Consultant. Except as otherwise stated herein, this
Agreement sha11 be governed by and interpreted under the laws of the State of Texas without
regard to the pri.nciples of conflicts of law of such state, and any actions, proceedings or
counterclaims brought by either the Railway or the Consultant against the other on any matters
whatsoever arising out of or in any way connected with this Agreement must be brought in a
federal or state court in the State of Texas. However, if any actions, proceedings or
counterclaims are brought or against the City of Cape Girardeau by any of the parties hereto, on
any matters whatsoever arising out of or in any way connected with this Agreement, then all of
such actions must be brought in a Federal or State court in the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the day and year first written above.
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City of Cape �►irardeau BNSF Railway Company
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Pri.nted Name: S�.'ott M e�er Name: ���,��j �,e� ,��,�r„�,�,�
� � M�nager Pub�ie P�o3eczs /`+"✓�- E�v� , �t r�u�c c s
Title: City M anaQer
Accepted and effective this_day of 20_.
Contact Persor.: _ Casey Brunke} P_R_
Address: 401 Indenpendence Street
City: Cape Girardeau
State: M 0 Zip: 63703
Fa.x: (573) 339-6327
Phone: (573) 339-6303
E-mail: cbrunke @ cityofcape.org
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Consultant
By:
Printed Name: �/�tJi� �!?'Lc�f�'�
Title: �5���7E ��� � ,>fp�.�
Contact Person: �}lJ/p �T�cl�7�,Q
Address: 1(�T.,S /�2c��.�i¢y, S c,J i� Z�
City: �C/l((/�/�
State: CO Zip: ��Z�
Fax: ,3p3- Z97-Z6`�3
Phone: -�f4�— � ` ��I S�DZ`Z�l-'b -Z33�
E-mail: �ccvE. ��-tZc�?4�f'�'. t�-�i!�h c�.ca/�7
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Exhibit "C"
EXHIBIT "C"
CONSULTANT REQUIREMENTS
1.01 General:
1.01.01 The Consultant must cooperate with BNSF RAILWAY COMPANY,
hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and/or right-of-way, hereafter referred to as "Railway Property",
during the construction of City of Cape Girardeau Toe Drain Reconstruction Project.
• 1.01.02 The Consultant must execute and deliver to the Railway duplicate copies
of the Exhibit "C-1" Agreement, in the form attached hereto, obligating the
Consultant 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 Consultant 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 Consultant's right to enter Railway's Property is subject to the
absolute right of Railway to cause the Consultant's work on Railway's Property to
cease if, in the opinion of Railway, Consultant'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)
Consultant (or any of its subcontractors) performs the Project work in a manner
contrary to the plans and specifications approved by Railway; (ii) Consultant (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) Consultant fails to pay Railway
for the Temporary Construction License or the Easement. The work stoppage will
continue until all necessary actions are taken by Consultant 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
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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:
David Fitzwater
Associate Vice President
1675 Broadway, Suite 200
Denver, Colorado 80202
• 1.01.05 The Consultant 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 Consultant 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 Consultant's work under this Agreement.
• 1.01.06 The Consultant must notify City of Cape Girardeau A enc
and Railway's Manager Public Projects, telephone number (yi� ��:;-z�,�t least thirty
(30) calendar days before commencing any work on Railway Property. Consultants
notification to Railway must refer to Railway's file BF10007683.
• 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 Consultant 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
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calculations must be stamped by a registered professional engineer licensed to
practice in the state the project is located. The Consultant must not begin work until
notified by the Railway that plans have been approved. The Consultant 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 Consultant be relieved of
responsibility for results obtained by the implementation of said approved plans.
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with
the Consultant such that the work may be handled and perFormed in an efficient
manner. The Consultant 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 Consultant, 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.contractororientation.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 Consultant 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
Consultant 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 Consultant 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 Consultant'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 Consultant must notify the Railway's Division Engineer
/.�c:�t��,�>_ ,� � r�t�,�r at ( ��Ji ) y�5.3 � �� 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.
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• 1.03.03 The Consultant must abide by the following temporary clearances during
construction:
■ 15'-0" Horizontally from centerline of nearest track
■ 21'-6" Vertically above top of rail
■ 27'-0" Vertically above top of rail for electric wires carrying less than 750
volts
• 28'-0" Vertically above top of rail for electric wires carrying 750 volts to
15,000 volts
■ 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to
20,000 volts
■ 34'-0" Vertically above top of rail for electric wires carrying more than
20,000 volts
• 1.03.04 Upon completion of construction, the following clearances shall be
maintained:
■ 25' Horizontally from centerline of nearest track
■ 23' 6" Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Consultant's
operations must be submitted to the Railway and to the City of Cape Girardeau
A enc and must not be undertaken until approved in writing by the Railway, and
until the City of Cape Girardeau A enc has obtained any necessary authorization
from the State Regulatory Authority for the infringement. No extra compensation will
be allowed in the event the Consultant'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 Cape
Girardeau A enc 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 Consultant must not move any
equipment or materials across Railway's tracks until permission has been obtained
from the Railway. The Consultant 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 Consultant. The temporary crossing for use of the
Consultant will be constructed and, at the completion of the project, removed at the
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expense of the Consultant.
• 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 Consultant 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. Consultant 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 Consultant upon completion of the work covered by this contract,
must promptly remove from the Railway's Property all of Consultant's tools,
equipment, implements and other materials, whether brought upon said property by
said Consultant or any Subcontractor, employee or agent of Consultant 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 Consultant that will perform work within 25 feet of the
centerline of a track must develop and implement a Roadway Worker
Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the
guidelines listed in the on track safety portion of the Safety Orientation. This
Program must provide Roadway Worker protection/on track training for all
employees of the Consultant, its subcontractors, agents or invitees. This training
is reinforced at the job site through job safety briefings. Additionally, each
Consultant must develop and implement the Safety Action Plan, as provided for
on the web site www.contractororientation.com, which will be made available
to Railway prior to commencement of any work on Railway Property.
• 1.04.02 Consultant 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.
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The required background screening shall at a minimum meet the rail industry
background screening criteria defined by the e-RAILSAFE Program as outlined at
http://www.e-railsafe.com, in addition to any other applicable regulatory
requirements.
Consultant 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. Consultant shall be subject to periodic audit to ensure
compliance.
Consultant 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
Consultant'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.
Consultants shall be responsible for ensuring that its employees, subcontractors and
agents are United States citizens or legally working in the United States under a
lawful and appropriate work VISA or other work authorization.
1.05 Railway Flagger Services:
��.��� �3i��Ms�Ga,z ��: • �. �;' ��`�i
• 1.05.01 The Consultant must give Railway's Roadmaster (telephone )
a minimum of thirty (30) calendar days advance notice when flagging services will be
required so that the Roadmaster can make appropriate arrangements (i.e., bulletin
the flagger's position). If flagging services are scheduled in advance by the
Consultant and it is subsequently determined by the parties hereto that such
services are no longer necessary, the Consultant must give the Roadmaster five (5)
working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative,
Railway flagger will be required and furnished when Consultant'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:
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• 1.05.02a When, upon inspection by Railway's Representative, other conditions
warrant.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if,
in the opinion of Railway's representative, track or other Railway
facilities may be subject to movement or settlement.
• 1.05.02c When work in any way interFeres with the safe operation of trains at
timetable speeds.
• 1.05.02d When any hazard is presented to Railway track, communications,
signal, electrical, or other facilities either due to persons, material,
equipment or blasting in the vicinity.
• 1.05.02e Special permission must be obtained from the Railway before moving
heavy or cumbersome objects or equipment which might result in
making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However,
additional personnel may be required to protect Railway Property and
operations, if deemed necessary by the Railways Representative.
• 1.05.03b Each time a flagger is called, the minimum period for billing will be the
eight (8) hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by
City of Cape Girardeau A enc . The estimated cost for one (1)
flagger is approximately between $100.00-$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 CONSULTANT HEREUNDER WILL BE
USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING
PURSUANT TO THIS PARAGRAPH.
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• 1.05.03d The average train traffic on this route is Z� freight trains per
24-hour period at a timetable speed T MPH and G
passenger trains at a timetable speed of i���ra�-1- MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where
movement of trains and equipment can occur at any time and in any direction. All
work performed by consultants 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 Consultant will use to protect its employees, subcontractors, agents
or invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without
an on track safety strategy approved by the Railway's Project Representative.
When authority is provided, every consultant 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 Consultant 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 Consultant 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 Consultant 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
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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.contractororientation.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 CONSULTANT 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
CONSULTANT 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.
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• 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 Consultant 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 Consultant 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 Consultant must contact
BNSF's Field Engineering Representative (��c>r c°�„f���� ). 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 Consultant'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 Consultant 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 Consultant must also notify the owner immediately. If there is
any doubt about the location of underground cables or lines of any kind, no work
must be performed until the exact location has been determined. There will be no
exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA
regulations and, regardless of depth, must be shored where there is any danger to
tracks, structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be
covered, guarded and/or protected when not being worked on. When leaving work
site areas at night and over weekends, the areas must be secured and left in a
condition that will ensure that Railway employees and other personnel who may be
working or passing through the area are protected from all hazards. All excavations
must be back filled as soon as possible.
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1.08 Hazardous Waste, Substances and Material Reporting:
• 1.08.01 If Consultant 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, Consultant 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 Consultant, subcontractor or Consultant's
invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the
project. The Non-Employee Personal Injury Data Collection Form contained herein
is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the
Railway's Project Representative no later than the close of shift on the date of the
injury.
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����
RA/L I�YAY NUN-EMPLDYEE PERSONAL INJURY DATA COLLECTIDN
(If injuries are in �onnection with rail equipment a�cident/in�ident, highway rail grade crossing accident nr autamobile
accident, ensure that appropriate infarmatian is obtained, forms completed and that data entry persannel are aware that
injuries relate to that specific event.)
Injured Persan Type:
� Passenger on train (C) � Non-employee (N)
(i:e.,emp ofanother�ailroad,o�non-BNSf emp invo/ved in vehic%accident,including
company vehic%s)
� Cantractor/safety sensitive (F) � Contractor/nnn-safety sensitive (G)
� Volunteer/safety sensitive (H) � Valunteer/ather non-safety sensitive (I)
� Non-trespasser (D) - to include highway users invalved in highway rail grade �rassing accidents wha did not
go around or thraugh gates
� Trespasser (E) - to include highway users involved in highway rail grade crossing ac�idents who went
around orthraugh gates
� Nan-trespasser(J) - Off railraad property
If train involved,Train ID:
Transmit attached informatian ta A��ident/Incident Reparting Center by:
faz 1-817-352-7595 or by Phone I-800-697-6736 or email ta: Accident-Repnrting.CenterL�BNSF.com
Offi�er Praviding Information:
(Name) (Employee No.) (Phane#)
REPORT PREPARED TO CUMPLY WITH FEDERAL ACCIDENT REPURTING REQl11REMENT3 AND PROTECTED FRUM
D13CLOSl1RE PUR3UANT T� 491J.5.C.20903 AND 83 U.S.C.490
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EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONSULTANT
Railway File: BF10007683
Agency Project: Cape Girardeau Toe Drain Reconstruction Project
Wilson & Company, Inc., Engineers & Architects (hereinafter called "Consultant"),
has entered into an agreement (hereinafter called "Agreement") dated April 24, 2015,
the perFormance of certain work in connection with the following project: Cape
Girardeau Toe Drain Reconstruction project. Performance of such work will necessarily
require Consultant 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 Consultant
employed in connection with said work for City of Cape Girardeau and BNSF Railway
(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 Consultant, Consultant must furnish evidence to Railway
certifying that the signatory is empowered to execute this Agreement on behalf of
Consultant.
Accordingly, in consideration of Railway granting permission to Consultant to enter upon
Railway Property and as an inducement for such entry, Consultant, effective on the date
of the Agreement, has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
Consultant 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
Consultant's officers and employees, and for loss and damage to property
belonging to any person, to the extent arising in any manner from Consultant's or
any of Consultant's sub consultants' negligent or wrongful acts or omissions on
any work performed on or about Railway's property or right-of-way. THE
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LIABILITY ASSUMED BY CONSULTANT WILL NOT BE AFFECTED BY THE
FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR
INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR
NEGLIGENCE OF RAILWAY.
This obligation shall not include such claims, costs, damages, or expenses
which may be caused by the sole negligence of Railway or its consutants,
agents or employees; Provided, that if the claims or damages are caused
by or result from the concurrent negligence or other acts or omissions of
(a) Railway, its consultants, agents or employees and (b) Consultant, its
subconsultants, agents or employees, this provision shall be valid and
enforceable only to the extent of the negligence of the Consultant, its
subconsultants, agents or employees.
It is mutually negotiated between the parties that the indemnification
obligation shall include all claims brought by Consultant's employees
against Railway, its agents, servants, employees or otherwise, and
Consultant expressly waives its immunity under the industrial insurance
act (RCW Title 51) and assumes potential liability for all actions brought by
its employees.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONSULTANT
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.
Consultant 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 Consultant under this
Agreement for which Railway is liable or is alleged to be liable. Railway will give
notice to Consultant, in writing, of the receipt or dependency of such claims and
thereupon Consultant must proceed to adjust and handle to a conclusion such
claims, and in the event of a suit being brought against Railway, Railway may
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forward summons and complaint or other process in connection therewith to
Consultant, and, 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 Consultant to indemnify Railway to the fullest extent
permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES
EXPRESSLY INTEND FOR CONSULTANT 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.
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
Consultant 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 Consultant. The
limit may be provided with the combination of primary and excess liability
policies. 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
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♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be
indicated on the certificate of insurance:
♦ The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
♦ Waver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
It is agreed that the workers' compensation and employers' liability related
exclusions in the Commercial General Liability insurance policy(s) required
herein are intended to apply to employees of the policy holder and shall not
apply to Railway employees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being
performed under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1 ,000,000 per occurrence, and include coverage for,
but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which
shall be indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
♦ 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.
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C. Workers Compensation and Employers Liability insurance including coverage
for, but not limited to:
♦ Consultant'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.
♦ 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
consultant named on the Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate
(if available) in Railway's Blanket Railroad Protective Liability Insurance Policy.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall
contain no exclusion for punitive damages.
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Consultant 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. Consultant 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 ConsultanYs care, custody or control.
Allocated Loss Expense shall be in addition to all policy limits for coverages
referenced above.
Consultant 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 Consultant in lieu of
insurance. Any and all Railway liabilities that would otherwise, in accordance
with the provisions of this Agreement, be covered by Consultant's insurance will
be covered as if Consultant elected not to include a deductible, self-insured
retention or other financial responsibility for claims.
Prior to commencing services, Consultant shall furnish to Railway an acceptable
certificate(s) of insurance from an authorized representative evidencing the
required coverage(s), endorsements, and amendments The certificate should be
directed to the following address:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: BNSF(c�certfocus.com
www.certfocus.com
Consultant 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.
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If coverage is purchased on a "claims made" basis, Consultant hereby agrees to
maintain coverage in force for a minimum of three years after expiration,
cancellation or termination of this Agreement. Annually Consultant agrees to
provide evidence of such coverage as required hereunder.
Consultant represents that this Agreement has been thoroughly reviewed by
Consultant's insurance agent(s)/broker(s), who have been instructed by
Consultant 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 Consultant, Consultant
shall require that the subconsultant shall provide and maintain insurance
coverage(s) as set forth herein, naming Railway as an additional insured, and
shall require that the subconsultant shall release, defend and indemnify Railway
to the same extent and under the same terms and conditions as Consultant 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
Consultant's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained
by Consultant shall not be deemed to release or diminish the liability of
Consultant including, without limitation, liability under the indemnity provisions of
this Agreement. Damages recoverable by Railway shall not be limited by the
amount of the required insurance coverage.
In the event of a claim or lawsuit involving Railway arising out of this agreement,
Consultant 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 Consultant. Therefore, these provisions shall be enforceable
and Consultant shall be bound thereby regardless of whether or not indemnity
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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 Consultant to Railway ("Sales Taxes"), Railway shall
be responsible for paying only the Sales Taxes that Consultant 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 Consultant bills Railway, (ii) Consultant
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 Consultant and its subconsultant's use or consume in the
performance of this Agreement, (iii) Consultant shall be responsible for Sales
Taxes (together with any penalties, fines or interest thereon) that Consultant 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) Consultant shall be
responsible for Sales Taxes (together with any penalties, fines or interest
thereon) if Consultant fails to issue separate invoices for each state in which
Consultant delivers goods, provides services or, if applicable, transfers intangible
rights to Railway.
Upon request, Consultant shall provide Railway satisfactory evidence that all
taxes (together with any penalties, fines or interest thereon) that Consultant is
responsible to pay under this Agreement have been paid. If a written claim is
made against Consultant for Sales Taxes with respect to which Railway may be
liable for under this Agreement, Consultant shall promptly notify Railway of such
claim and provide Railway copies of all correspondence received from the taxing
authority. Railway shall have the right to contest, protest, or claim a refund, in
Railway's own name, any Sales Taxes paid by Railway to Consultant 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, Consultant shall, if requested by Railway at Railway's sole cost
and expense, contest in Consultant's own name the validity, applicability or
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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 Consultant
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), Consultant
agrees to furnish to Railway a properly completed exemption form prescribed by
such jurisdiction. Consultant 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 Consultant.
5) EXHIBIT "C" CONSULTANT REQUIREMENTS
The Consultant must observe and comply with all provisions, obligations,
requirements and limitations contained in the Agreement, and the Consultant
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
subconsultant's on or about the construction site. Consultant shall execute a
Temporary Construction Crossing Agreement or Private Crossing Agreement
(http://www.bnsf.com/communities/faqs/permits-real-estate/), for any temporary
crossing requested to aid in the construction of this Project, if approved by BNSF.
6) TRAIN DELAY
Consultant 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. Consultant 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 Consultant, or subconsultants, or by the Railway
performing work under this Agreement. Railway agrees that it will not perform
any act to unnecessarily cause train delay.
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For loss of use of equipment, Consultants 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.
Consultant 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 Consultant or its subconsultants.
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 Consultant hereunder will be used to calculate the actual
costs of train delay pursuant to this agreement.
Consultant and its subconsultants must give Railway's representative (Dustin
Blackshear and Nicholas Konen) (_3_) weeks advance notice of the times
and dates for proposed work windows. Railway and Consultant 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 Consultant's expenses
for the project.
Consultant and subconsultant's must plan, schedule, coordinate and conduct all
Consultant's work so as to not cause any delays to any trains.
7) GENERAL PROVISIONS
Choice of Law; Forum Railway and/or Consultant. Except as otherwise stated
herein, this Agreement shall be governed by and interpreted under the laws of
the State of Texas without regard to the principles of conflicts of law of such
state, and any actions, proceedings or counterclaims brought by either the
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Railway or the Consultant against the other on any matters whatsoever arising
out of or in any way connected with this Agreement must be brought in a federal
or state court in the State of Texas.
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.
Wilson 8� Company, Inc.,
Engineers & Architects
BNSF Railway Company
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By: gy; � .�/ ��
Printed Name: ��i/J �/izw�9TE2 Name: , / �, l�ll=, �',���,,
Manager Public Projects
Title: �.s scx�A i� (/i« ��✓o�� ��-��
Accepted and effective this/�_day of-Apr�1,
2015.
Contact Person: ,��ip �-i�zw�4T�
Address: /�75 ��l2o,qr�r,c��}y, 5v�� z�
,
city: �J��vvE,Q
State: C� Zip: �jOZo2
Fax: 30 3� z��— Z��3
Phone: 9�9- �'o -�csr/ �6Z-ZS� - 2336 cEc�
E-mail: �Q�, ��fzl�rcA c.��^���o. c�7
11
B/VSF
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GENERAL CONSTRUCTION AGREEMENT
FOR ENGINEERING DESIGN, CONSTURCTION MANAGEMENT SERVICES AND
CONSTRUCTION REIMBURSEMENT TO BNSF RAILWAY PER THE CITY OF
CAPE GIRARDEAU'S TOE DRAIN RECONSTRUCTION PROJECT
BNSF File No.: BF10007683
Mile Post 130.5 — 131.5
Line Segment LS 1025
U.S. DOT Number N/A
River Subdivision
This General Construction Agreement ("Agreement") is entered into effective as of
03/21/2015, by and between City of Cape Girardeau ("City''), Wilson and Company
("Consultant") and BNSF RAILWAY COMPANY ("Railway").
WHEREAS, Railway operates a freight transportation system by rail with operations
throughout the United States and Canada; and
WHEREAS, City desires Wilson and Company to perform certain construction services
adjacent to and upon Railway's right of way and/or property, and Consultant is willing to
perform such services.
NOW, THEREFORE, in consideration of Railway entering this Agreement with the City
and granting Consultant permission to enter upon the Premises (defined herein), the City agrees
with Railway as follows:
SECTION 1. SCOPE OF SERVICES
Under direction from the City the Consultant will perform the following services,
hereinafter described as "Work": The Consultant will provide complete 100% engineering
design, including, but not limited to, 100% civil construction design plan sets to be used by
USACE's contractor and approved by BNSF Railway that will be stamped by a licensed
professional civil engineer in the state of Missouri. Geotechnical work/analysis, complete right
of way and track alignment design and construction survey, environmental impact analysis and
permitting acquisition, full set of cross-sections, typical sections and plan and profile sheets,
subgrade and subballast layer design and analysis that meets or exceeds Railway standards,
utility location/relocation and/or protection per railroad loading. All engineering design and plan
sets must be approved by the Railway before the start of construction. Construction management
services must be performed during construction by consultant and be coordinated with USACE's
chosen contractor. All Railroad grading work, must be built per the plans, approved by the
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Railroad and City and all grade work must meet compaction requirements specified by the
Railroad. Engineered grade and all materials used must be approved by Railroad representative
before construction ceases. The City will provide all additional right of way needed to
accommodate the Railways new track grade at no cost to the railroad. All newly constructed
grade shall be under warranty for two (2) years beginning after construction completion.
Whereas if any grade failure, or issue occurs due to poor design or construction the Railroad will
not be liable for redesign or construction costs; but will be reimbursed by the City.
Performance of the Work will necessarily require Consultant to enter Railway's right of
way and property ("Premises"). City and Consultant agrees that no work will be commenced on
the Premises until (i) this Agreement is executed by both City and Railway; and (ii) City
provides the Railway with the insurance contemplated herein. Consultant and City further agrees
that if this Agreement is not executed by the owner, general partner, president or vice-president
of Consultant, Consultant will furnish Railway with evidence certifying that the signatory is
empowered to execute this Agreement.
SECTION 2. PAYMENT OF FEES
The Railway will not be responsible for paying City or Consultant, sub -consultants, or
contractors for the Work performed under this Agreement including, but not limited to, the cost
of any additional right of way needed to accommodate the relocation of the Railway's tracks.
The City will reimburse the Railroad for all track removal and new track construction incurred
from this project, including all material, labor, overtime, flagging, and equipment costs. The City
will also reimburse the Railroad for all redirected train traffic during the construction window
and any additional costs if the time allotted is exceeded.
SECTION 3. RELEASE OF LIABILITY AND INDEMNITY
City and Consultant hereby waives, releases, indemnifies, defends and holds harmless
Railway for, from and against all judgments, awards, claims, demands, and expenses (including
attorney's fees), for injury or death to all persons, including Railway's and the City's or
Consultant's officers and employees, and for loss and damage to property belonging to any
person, arising in any manner from City or Consultant's or any of City's or Consultant's
subcontractors' negligent or wrongful acts or omissions. Any obligation of the City under this
paragraph is limited by the liability limits for political subdivisions set out in Section 537.610 of
the Revised Statutes of Missouri.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONSULTANT
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 BOILER
INSPECTION ACT, WHENEVER SO CLAIMED.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement will survive any termination of this Agreement.
SECTION 4. INSURANCE
Consultant shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $5,000,000 each
occurrence and an aggregate limit of at least $10,000,000 but in no event less than the
amount otherwise carried by the Consultant. 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
Railwav employees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being performed
under this agreement.
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B. Business Automobile Insurance. This insurance shall contain a combined single limit
of at least $1,000,000 per occurrence, and include coverage for, but not limited to the
following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
C. Workers Compensation and Employers Liability insurance including coverage for,
but not limited to:
♦ Consultant'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.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
Consultant 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. Consultant 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 Consultant's care, custody, or control.
Allocated Loss Expense shall be in addition to all policy limits for coverage's referenced
above.
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Consultant is not allowed to self -insure without the prior written consent of Railway. If
granted by Railway, self-insured retention or other financial responsibility for claims shall be
covered directly by Consultant in lieu of insurance. Any and all Railway liabilities that would
otherwise, in accordance with the provisions of this Agreement, be covered by Consultant's
insurance will be covered as if Consultant elected not to include a deductible, self-insured
retention or other financial responsibility for claims.
Prior to commencing the Work, Consultant 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 addresses:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: BNSFnaartfoctucoin
www cert(oaz com
Consultant shall notify Railway in writing at least 30 days prior to any cancellation, non-
renewal; substitution, or material alteration.
Any insurance policy must 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 provide.
If coverage is purchased on a "claims made" basis, Consultant hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation or termination of
this contract. Annually, Consultant agrees to provide evidence of such coverage as required
hereunder.
Consultant represents that this Agreement has been thoroughly reviewed by Consultant's
insurance agent(s)/broker(s), who have been instructed by Consultant 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 Consultant, Consultant shall
require that the subcontractor shall provide and maintain the insurance coverage(s) set forth
BASF
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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 Consultant 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 Consultant's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Consultant shall not be deemed to release or diminish the liability of Consultant including,
without limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Railway shall not be limited by the amount of the required insurance coverage.
In the event of a claim or lawsuit involving Railway arising out of this agreement,
Consultant 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 Consultant. Therefore, these provisions shall be enforceable and Consultant 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 means "Burlington Northern Santa Fe LLC",
" BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.
SECTION 5. 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 Consultant to Railway ("Sales Taxes"), Railway shall be responsible for paying only
the Sales Taxes that Consultant 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 Consultant bills Railway, (ii)
Consultant 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 Consultant and
its subcontractors use or consume in the performance of this Agreement, (iii) Consultant shall be
responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Consultant
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) Consultant shall be responsible for Sales Taxes (together with
any penalties, fines or interest thereon) if Consultant fails to issue separate invoices for each state
in which Consultant delivers goods, provides services or, if applicable, transfers intangible rights
to Railway.
,ASr
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Upon request, Consultant shall provide Railway satisfactory evidence that all taxes
(together with any penalties, fines or interest thereon) that Consultant is responsible to pay under
this Agreement have been paid. If a written claim is made against Consultant for Sales Taxes
with respect to which Railway may be liable for under this Agreement, Consultant shall
promptly notify Railway of such claim and provide Railway copies of all correspondence
received from the taxing authority. Railway shall have the right to contest, protest, or claim a
refund; in Railway's own name; any Sales Taxes paid by Railway to Consultant 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, Consultant shall,
if requested by Railway at Railway's sole cost and expense, contest in Consultant'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 Consultant 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), Consultant agrees to furnish to Railway a properly completed
exemption form prescribed by such jurisdiction. Consultant 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 Consultant.
SECTION 6. CONSULTANT REQUIREMENTS
The Consultant must observe and comply with all provisions, obligations, requirements
and limitations contained in the Contract, and the Consultant Requirements set forth on Exhibit
"C" attached to the Contract 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.
SECTION 7. INDEPENDENT CONSULTANT
Consultant is considered an independent contractor under this Agreement and neither
Consultant nor any of its employees, subcontractors, agents or servants are considered employees
of Railway in any respect. Consultant has the exclusive right and duty to control the work of its
employees. All persons employed by Consultant or any of its subcontractors under this
Agreement are the sole employees of Consultant or its subcontractors. Consultant will be given
general directions and instructions regarding the Work to be performed under this Agreement;
however, direct supervision of Consultant's employees will be Consultant's responsibility and
obligation.
BASF
- AACWer
SECTION 8. TRAIN DELAYS
Consultant 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. Consultant
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 Consultant, or subcontractors, or by the Railway performing
work under this Agreement. Railway agrees that it will not perform any act to unnecessarily
cause train delay.
For loss of use of equipment, Consultant 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. Consultant 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 Consultant 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. Damages for train delay are currently $382.20 per hour per incident. THE RATE
THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONSULTANT
HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN
DELAY PURSUANT TO THIS AGREEMENT.
Consultant and its subcontractors must give Railway's representative
( ) weeks advance notice of the times and dates for proposed work
windows. Railway and Consultant 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 Consultant's expenses
for the project.
Consultant and subcontractors must plan, schedule, coordinate and conduct all
Consultant's work so as to not cause any delays to any trains.
BASF
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the day and year first written above.
City of Cape Girardeau
By:
Printed Name:
Title:
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E-mail:
Consultant
By:
Printed Name:
Title:
Contact Person:
Address:
BNSF Railway Company
By:
Name:
Manager Public Projects
Accepted and effective this _day of 20
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City:
State: Zip:
Fax:
Phone:
E-mail:
Exhibit "C"
EXHIBIT "C"
CONSULTANT REQUIREMENTS
1.01 General:
1.01.01 The Consultant must cooperate with BNSF RAILWAY COMPANY,
hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and/or right-of-way, hereafter referred to as "Railway Property",
during the construction of
1.01.02 The Consultant must execute and deliver to the Railway duplicate copies
of the Exhibit "C-1" Agreement, in the form attached hereto, obligating the
Consultant 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 Consultant 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 Consultant's right to enter Railway's Property is subject to the
absolute right of Railway to cause the Consultant's work on Railway's Property to
cease if, in the opinion of Railway, Consultant'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)
Consultant (or any of its subcontractors) performs the Project work in a manner
contrary to the plans and specifications approved by Railway; (ii) Consultant (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) Consultant fails to pay Railway
for the Temporary Construction License or the Easement. The work stoppage will
continue until all necessary actions are taken by Consultant 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
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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:
1.01.05 The Consultant 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 Consultant 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 Consultant's work under this Agreement.
1.01.06 The Consultant must notify (Agency) at and Railway's
Manager Public Projects, telephone number ( ) at least thirty (30) calendar
days before commencing any work on Railway Property. Consultants notification to
Railway must refer to Railway's file
1.01.07 For any bridge demolition and/or falsework above any tracks or any
excavations located with any part of the excavations located within, whichever is
greater, twenty-five (25) feet of the nearest track or intersecting a slope from the
plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11)
feet from centerline of the nearest track, both measured perpendicular to center line
of track, the Consultant 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
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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 Consultant must not begin work until
notified by the Railway that plans have been approved. The Consultant 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 Consultant be relieved of
responsibility for results obtained by the implementation of said approved plans.
1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with
the Consultant such that the work may be handled and performed in an efficient
manner. The Consultant 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 Consultant, 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.contractororientation.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 Consultant 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
Consultant 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 Consultant 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 Consultant's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
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• 1.03.02 The Consultant must notify the Railway's Division Engineer
at ( and provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any
blasting operations adjacent to or on Railway's Property.
• 1.03.03 The Consultant must abide by the following temporary clearances during
construction:
■ 15'-0" Horizontally from centerline of nearest track
■ 21'-6" Vertically above top of rail
■ 27'-0" Vertically above top of rail for electric wires carrying less than 750
volts
■ 28'-0" Vertically above top of rail for electric wires carrying 750 volts to
15,000 volts
■ 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to
20,000 volts
■ 34'-0" Vertically above top of rail for electric wires carrying more than
20,000 volts
• 1.03.04 Upon completion of construction, the following clearances shall be
maintained
■ 25' Horizontally from centerline of nearest track
■ 23' 6" Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Consultant's
operations must be submitted to the Railway and to the A enc and must not be
undertaken until approved in writing by the Railway, and until the (Agency) has
obtained any necessary authorization from the State Regulatory Authority for the
infringement. No extra compensation will be allowed in the event the Consultant'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 (Agency) for
approval before work is undertaken and this work must not be undertaken until
approved by the Railway.
• 1.03.08 At other than public road crossings, the Consultant must not move any
equipment or materials across Railway's tracks until permission has been obtained
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from the Railway. The Consultant 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 Consultant. The temporary crossing for use of the
Consultant will be constructed and, at the completion of the project, removed at the
expense of the Consultant.
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 Consultant 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. Consultant 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 Consultant upon completion of the work covered by this contract,
must promptly remove from the Railway's Property all of Consultant's tools,
equipment, implements and other materials, whether brought upon said property by
said Consultant or any Subcontractor, employee or agent of Consultant 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 Consultant that will perform work within 25 feet of the
centerline of a track must develop and implement a Roadway Worker
Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the
guidelines listed in the on track safety portion of the Safety Orientation. This
Program must provide Roadway Worker protection/on track training for all
employees of the Consultant, its subcontractors, agents or invitees. This training
is reinforced at the job site through job safety briefings. Additionally, each
Consultant must develop and implement the Safety Action Plan, as provided for
on the web site www.contractororientation.com, which will be made available
to Railway prior to commencement of any work on Railway Property.
1.04.02 Consultant 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
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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
http //www.e-railsafe.com, in addition to any other applicable regulatory
requirements.
Consultant 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. Consultant shall be subject to periodic audit to ensure
compliance.
Consultant 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
Consultant'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.
Consultants shall be responsible for ensuring that its employees, subcontractors and
agents are United States citizens or legally working in the United States under a
lawful and appropriate work VISA or other work authorization.
1.05 Railway Flagger Services: -
1.05.01 The Consultant must give Railway's Roadmaster (telephone )
a minimum of thirty (30) calendar days advance notice when flagging services will be
required so that the Roadmaster can make appropriate arrangements (i.e., bulletin
the flagger's position). If flagging services are scheduled in advance by the
Consultant and it is subsequently determined by the parties hereto that such
services are no longer necessary, the Consultant must give the Roadmaster five (5)
working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
1.05.02 Unless determined otherwise by Railway's Project Representative,
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Railway flagger will be required and furnished when Consultant'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.
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 penod for billing will be the
eight (8) hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by
(Agency). The estimated cost for one (1) flagger is approximately
between $100.00-$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
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estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE
TIME OF PERFORMANCE BY THE CONSULTANT HEREUNDER
WILL BE USED TO CALCULATE THE ACTUAL COSTS OF
FLAGGING PURSUANT TO THIS PARAGRAPH.
• 1.05.03d The average train traffic on this route is freight trains per
24-hour period at a timetable speed MPH and
passenger trains at a timetable speed of MPH.
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where
movement of trains and equipment can occur at any time and in any direction. All
work performed by consultants 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 fob 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 Consultant will use to protect its employees, subcontractors, agents
or invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without
an on track safety strategy approved by the Railway's Project Representative.
When authority is provided, every consultant 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 Consultant 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 Consultant 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 Consultant management. Future
access to the Railway's Property by that employee will be denied.
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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.contractororientation.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 CONSULTANT 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
CONSULTANT 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)
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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 Consultant 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 Consultant 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 Consultant must contact
BNSF's Field Engineering Representative ( ). All underground
and overhead wires will be considered HIGH VOLTAGE and dangerous until verified
with the company having ownership of the line. It is the Consultant'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 Consultant 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 Consultant must also notify the owner immediately. If there is
any doubt about the location of underground cables or lines of any kind, no work
must be performed until the exact location has been determined. There will be no
exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA
regulations and, regardless of depth, must be shored where there is any danger to
tracks, structures or personnel.
1.07.04 Any excavations, holes or trenches on the Railway's Property must be
covered, guarded and/or protected when not being worked on. When leaving work
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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 Consultant 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, Consultant 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 Consultant, subcontractor or Consultant's
invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the
project. The Non -Employee Personal Injury Data Collection Form contained herein
is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the
Railway's Project Representative no later than the close of shift on the date of the
injury.
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RA AZ WAY NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rad equipment accident/incident, highway rad 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.)
Inured Person Type
Passenger on train (C) Non-employee (N)
fi P_ emp ofanother railroad or non -BW emp mvalvedIn vehic%accident, Including
company vArles)
❑ Contractor/safety sensitive (F) ❑ Contractor/non-safety sensitive (G)
F] 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
F] Non -trespasser (J) - Off railroad property
If train involved, Train ID
Transmit attached information to Accident/Incident Reporting Center by
Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident-Reporting.CenterL@6NSF.com
Officer Providing Information
(Name)
(Employee No.) (Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM
DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
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
6 Name (last, first, mi)
7 Address
8 Date of Birth
?hone Number
9 Injury
SSN (required)
City St Zip
and/or Age Gender
(if available)
Employer
10 Body Part
6 e . Laceration, etc )
II Description of Accident (To include location, action, result, etc )
12 Treatment
First Aid Only
❑ Required Medical Treatment
F] Other Medical Treatment
13 Or Name
14 Or Address
Street
15 Hospital Name
16. Hospital Address
Street
17 Diagnosis
Date
City
City
6 P. Hand, etc )
St Zip
St Zip
REPORT PREPARED TO COMPLI WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS
AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 4ND 83 U.S.C. 490