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HomeMy WebLinkAboutRes.2897.06-15-201515-102 RESOLUTION NO a8� A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH NIP KELLEY EQUIPMENT COMPANY, INC AND BNSF RAILWAY COMPANY, FOR THE RIVERWALK TRAIL PHASE 4 PROJECT, IN THE CITY OF CAPE GIRARDEAU, MISSOURI BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS ARTICLE 1 The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to execute an Agreement with NIP Kelley Equipment Company, Inc , and BNSF Railway Company, for general construction of the Riverwalk Trail Phase 4 Project, in the City of Cape Girardeau, Missouri 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 PASSED AND ADOPTED THIS DAY OF 2015 647�r�� Ha ry E ltedigE7r, Mayor ATTEST �..✓. I� . � IfZ`n A Clerk hi(15`fll Ammmww=�NW:r GENERAL CONSTRUCTION AGREEMENT (FOR CONSTRUCTION PROJECTS PERFORMED BY AN AGENCY'S CONTRACTOR ON OR ADJACENT TO BNSF'S PROPERTY) BNSF File No. BF10008003 Mile Post 130-132 Line Segment 1025 River Subdivision This General Construction Agreement ("Agreement") is entered into effective as of 05/26/2015, by and between City of Cape Girardeau, ("City"), Nip Kelley Equipment Company, Inc. ("Contractor"), 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 of Cape Girardeau ("Agency") desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property, and Contractor is willing to perform such services. NOW THEREFORE, in consideration of Railway entering this Agreement with the City and granting Contractor 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 Contractor will perform the following services, hereinafter described as "Work" Extension of City of Cape Girardeau Riverwalk Trail Phase 4. Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway and (ii) Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice- president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES B/VSF' AW4wwr Railway will not be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. RELEASE OF LIABILITY AND INDEMNITY Any obligations and liabilities of the City listed below are limited by Section 537.610 of the Revised Statues of Missouri. Contractor 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 Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right of way THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or pendency of such claims and thereupon Contractor 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 Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. 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. ,B/Vi/F' AMMO WAS SECTION 4. INSURANCE Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by the Contractor Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limit to the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property ♦ Waver of subrogation in favor of and acceptable to Railway ♦ Additional insured endorsement in favor of and acceptable to Railway ♦ Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railway It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees. 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 BNSF' The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railway ♦ Additional insured endorsement in favor of and acceptable to Railway ♦ Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railway C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railway D. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railway prior to performing any work or services under this Agreement ♦ Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) in Railway's Blanket Railroad Protective Liability Insurance Policy Other Requirements: B/VSF" a.�nr Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages. Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railway for all claims and suits. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under Contractor's care, custody, or control. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Contractor is not allowed to self -insure without the prior written consent of Railway. If granted by Railway, self-insured retention or other financial responsibility for claims shall be covered directly by Contractor in lieu of insurance. Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor's insurance will be covered as if Contractor elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to commencing the Work, Contractor shall furnish to Railway an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. The certificate should be directed to the following 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: U �uertfgc�c>m uu ys_rtlbcus com Contractor 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, Contractor 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 B/VSF' •••••*.IZf4 WAY hereunder Contractor represents that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)lbroker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. Not more frequently than once every five years, Railway may reasonably modify the required insurance coverage to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance industry If any portion of the operation is to be subcontracted by Contractor, Contractor shall require that the subcontractor shall provide and maintain 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 Contractor is required to release, defend, and indemnify Railway herein. Failure to provide evidence as required by this section shall entitle, but not require, Railway to terminate this Agreement immediately Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Contractor's obligations hereunder The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage. In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will make available any required policy covering such claim or lawsuit. These insurance provisions are intended to be a separate and distinct obligation on the part of the Contractor Therefore, these provisions shall be enforceable and Contractor shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work covered hereunder is performed. For purposes of this section, Railway 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 Contractor to Railway ("Sales Taxes"), Railway shall be responsible for paying only the Sales Taxes that Contractor separately states on the invoice or other billing documents provided to Railway provided, however that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor shall be responsible for all sales, use, excise, consumption, services and other taxes which may accrue on all services, materials, equipment, supplies or fixtures that Contractor and its subcontractors use or consume in the performance of this Agreement, (iii) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails to separately state on the invoice or other billing documents provided to Railway or fails to collect at the time of payment by Railway of invoiced amounts (except where Railway claims a Sales Tax exemption), and (iv) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) if Contractor fails to issue separate invoices for each state in which Contractor delivers goods, provides services or, if applicable, transfers intangible rights to Railway Upon request, Contractor shall provide Railway satisfactory evidence that all taxes (together with any penalties, fines or interest thereon) that Contractor is responsible to pay under this Agreement have been paid. If a written claim is made against Contractor for Sales Taxes with respect to which Railway may be liable for under this Agreement, Contractor shall promptly notify Railway of such claim and provide Railway copies of all correspondence received from the taxing authority Railway shall have the right to contest, protest, or claim a refund, in Railway's own name, any Sales Taxes paid by Railway to Contractor or for which Railway might otherwise be responsible for under this Agreement; provided, however, that if Railway is not permitted by law to contest any such Sales Tax in its own name, Contractor shall, if requested by Railway at Railway's sole cost and expense, contest in Contractor's own name the validity, applicability or amount of such Sales Tax and allow Railway to control and conduct such contest. Railway retains the right to withhold from payments made under this Agreement amounts required to be withheld under tax laws of any jurisdiction. If Contractor is claiming a withholding exemption or a reduction in the withholding rate of any jurisdiction on any payments under this Agreement, before any payments are made (and in each succeeding period or year as required by law), Contractor agrees to furnish to Railway a properly completed exemption form prescribed by such jurisdiction. Contractor shall be responsible for any taxes, interest or penalties assessed against Railway with respect to withholding taxes that Railway does not withhold from payments to Contractor SECTION 6. CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract, and the Contractor 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. Contractor shall execute a Temporary Construction Crossing Agreement or Private Crossing Agreement (htto•//Awwbnsfcom/communities/fags/permits-real-estates, for any temporary crossing requested to aid in the construction of this Project, if approved by BNSF "~JWJW ' ANN �Wwg WA r SECTION 7 INDEPENDENT CONTRACTOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. SECTION 8. TRAIN DELAYS Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT Contractor and its subcontractors must give Railway's representative (_Dustin Blackshear ) _3_ weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. ANN S/V ,WAp 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 BNSF Railway Company By Printed Name: Title: Contact Person: Address: City.- State: ityState: Fax: Phone: E-mail: Contractor By Printed Name: Title: Contact Person: Address: Name: Manager Public Projects Accepted and effective this _day of 20_ RWIWAr Exhibit "C" EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General: 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property" during the construction of City of Cape Girardeau Riverwalk Trail Phase 4. 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1 Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "C-1 Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303- 8519. 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License B/VSF' AM= 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: Nicholas Konen Manager of Public Projects 417-829-2134 Nicholas.Konen@bnsf com 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. 1.01.06 The Contractor must notify (Agency) at 573 339-6327 and Railway's Manager Public Projects, telephone number ( 417 ) 8^ 29 2134 at least thirty (30) calendar days before commencing any work on Railway Property Contractor's notification to Railway must refer to Railway's file _610008003. 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current 'BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current 'BNSF- UPRR Guidelines for Temporary Shoring' All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway B/V WJWF mow,:, surcharge loading and must be designed to meet American Railway Engineering and Maintenance -of -Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway 1.02 Contractor Safety Orientation 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientatign.com. The Contractor must ensure that each of Its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through Internet sessions before any work Is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency 1.03.02 The Contractor must notify the Railway's Division Engineer _Howard Stuart at (901) 433-7400 and provide blasting plans to the Railway for review seven B/VSF' AMEM WA (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property 1.03.03 The Contractor must abide by the following temporary clearances during construction: ■ 15'-0' Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail ■ 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts ■ 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts ■ 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts ■ 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts 1.03.04 Upon completion of construction, the following clearances shall be maintained: ■ 25' Horizontally from centerline of nearest track ■ 23' 6' Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the (Agency) and must not be undertaken until approved in writing by the Railway, and until the 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 Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell -tales or protective devices will be borne by the Agency 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by (Agency) for approval before work is undertaken and this work must not be undertaken until approved by the Railway • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway The Contractor must obtain a "Temporary Construction Crossing BN.SF' wawwr Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan: 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made available to Railway prior to commencement of any work on Railway Property During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. 1.04.02 Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services for Railroad under this Agreement which are determined by Railroad in its sole discretion a) to be on Railroad's property or b) that require access to Railroad 04 �.c�wwr 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. Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railroad's designee. Contractor shall be subject to periodic audit to ensure compliance. Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e-RAILSAFE Program standards. Railroad shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railroad's operations, assets or personnel. Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization. 1.05 Railway Flagger Services: 1.05.01 The Contractor must give Railway's Roadmaster Dustin Blackshear (telephone 870 273 5949) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e. bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are B/VSF' 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 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 A enc . The estimated cost for one (1) flagger is approximately between $1000.00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. 1.05.03d The average train traffic on this route is _15_ freight trains per 24-hour period at a timetable speed _25_ MPH and _0! passenger trains at a timetable speed of TNA_ MPH. 1.06 Contractor General Safety Requirements 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger (2) limits of the authority (3) the method of communication to stop and resume work, and (4) location of the designated places of safety Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of two employees must be present at all times. e 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. 1.06.06 Any damage to Railway Property or any hazard noticed on passing trains B~4WJW * AM= �OAtAWAy 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 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE. 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) 1.06.11 Workers must not create and leave any conditions at the work site that OWAWAY�' would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. 1.07 Excavation: 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Field Engineering Representative (_Lane Spence_). All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel. 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 BNSF� condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting: 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non -containerized commodity or material, on or adjacent to Railway's Property in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery- (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non -Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury AW~ F' AWMWOOOTJ�.w.,r ,sivsF AA/L WAY NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION (If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: Passenger on train (C) Non-employee (N) ria, empafanotherreihned ar mn-9NSf&Winvalredin vehckecciknG includkg company vehkks) Contractor/safety sensitive (F) F—] Contractor/non-safety sensitive (G) Volunteer/safety sensitive (H) F Volunteer/other non -safety sensitive (U 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 FNon -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 1-860-697-6736 or email to: Accident-Reoortine.Center@BNSF.com Officer Providing Information: (Name) (Employee No.) (Phone #) REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REGUIREO 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: SSN (required): B. Name (last. first, mi): 7. Address: City: St: Zip: S. Date of Birth: and/or Age: Gender - (if availahle) phone Number - 9. Injury: (i.e. Laceration, etc.) 11. Description of Accident (To include location, action, result, etc.): 12. Treatment: QFirst Aid Only Required Medical Treatment Other Medical Treatment 13.Dr Name: 14.Or Address Street: 15. Hospital Name: 16. Hospital Address: Street: 17. Diagnosis: Employer City: City: 10. Body Part: (i.e. Hand, etc.) Date: St: Zip: St: Zip: REPORT PREPARED TO COMPL\' WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490