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HomeMy WebLinkAbout5352U, ORDINANCE NO. 5 3 5 2 ,bi AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, APPROVING BURLINGTON NORTHERN SANTA FE RAILWAY FUNDS AS PROVIDED IN THE CONSTRUCTION AND MAINTENANCE AGREEMENT BETWEEN THE CITY AND THE BURLINGTON NORTHERN SANTA FE RAILWAY FOR PR 529, 3 R STREET SW GRADE SEPARATION. WHEREAS, the City Council of the City of Auburn must adopt and approve all appropriations by Ordinance pursuant to Chapter 35A.33 RCW; and THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Pursuant to Chapter 35A.33 RCW, the City Council hereby approves the expenditure and appropriation of Burlington Northern Santa Fe Railway Funds in the amount of $1,185,000 for construction of a grade separated crossing on 3rd Street SW. The Mayor and City Clerk are hereby authorized to execute the Construction and Maintenance Agreement between the City and the Burlington Northern Santa Fe Railway approving said Agreement, a copy of which is attached hereto as Exhibit "A" and is incorporated herein by reference. The Mayor and City Clerk are also authorized to approve and execute any future supplemental agreements thereto required for completion of phases of the project, including but not limited to design, right-of-way, and construction. Section 2. The Mayor is hereby authorized to implement such Ordinance No. 5352 February 23, 2000 Page 1 administrative procedures as may be necessary to carry out the directions of this legislation. Section 3. This ordinance shall take effect and be in force five (5) days from and after its passage, approval, and publication, as provided by law. INTRODUCED: March 6, 2000 PASSED: March 6, 2000 APPROVED: March 6, 2000 CHARLES A. BOOTH MAYOR ATTEST: I anie a E. Daskam, City Clerk APPROVED AS TO FORM: Michael J. Reynolds, City Attorney Published: Ordinance No. 5352 February 23, 2000 Page 2 CONSTRUCTION AND MAINTENANCE AGREEMENT 3'D STREET S.W. OVERHEAD HIGHWAY BRIDGE (MP 21.60) AUBURN, WASHINGTON RAILWAY Contract NO. _ File No AGREEMENT, made this C-6- day of { 2000, between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, hereinafter referred to as the "Railway", and CITY OF AUBURN, WASHINGTON, a municipal corporation, hereinafter referred to as the "Agency". RECITALS: WHEREAS: the Seattle Subdivision is currently owned and operated by the Railway; and WHEREAS: existing 3`d Street SW crosses the Railway at an existing "at -grade" crossing located at RR Sta. 472+01.86, RR MP 21.60 in Auburn, and WHEREAS: in the interest of aiding motor vehicle and railway traffic the Agency is proposing to replace the "at - grade" crossing by constructing a new roadway bridge overcrossing and alignment. WHEREAS: to facilitate this overcrossing, a 6 -foot wide sidewalk and fencing located on Railway right-of-way under State Route 18 is required. WHEREAS: the centerline of the new roadway bridge and roadway alignment will cross the Railway's right of way and tracks at RR Sta. 472+49.53, RR MP 21.61, 3' Sta. 19+72.36, as shown on the map marked as Exhibit "F" attached hereto and by reference, made a part hereof, and WHEREAS: the 6 foot sidewalk and fencing will be parallel to the Railway's tracks between RR Sta. 466+86.29 P.O.T. and RR Sta. 468+86.29 P.O.T. as shown on the map marked Exhibit "F" attached. WHEREAS: the Agency will require construction and maintenance easements from the Railway for the project which is located in the SE 1/4 of the SE1/4 of Section 13, Twp. 21 N., Rge 4 E., WM as shown on the map marked Exhibit "F", and WHEREAS: the Railway will be required to perform certain work on its facilities, and WHEREAS: the parties hereto desire that the work to be performed by the Agency in connection with said construction be performed in accordance with plans and specifications to be prepared by the Agency, and WHEREAS: the Agency is willing to undertake the construction of said project with Agency, state, federal and local funds and funds from the Railway consistent with 23 CFR 646.210(b)(3), and WHEREAS: the Railway is willing to consent to the execution of the said project upon the terms and conditions herein stated and not otherwise, and WHEREAS: the parties hereto desire to contract for work to be performed by each of them in connection with this project and the payment of costs and expenses therein involved, and ITcl:74�'IIIli 9 NOW THEREFORE, in consideration of the covenants of the Agency hereinafter contained, and faithful performance thereof, Railway agrees: ARTICLE I The Agency shall finance the project from available City, State, Port, Federal, Local and Railway funds. In accordance with 23 CFR 646 B, which by this reference is incorporated in this agreement, the RAILWAY will receive certain ascertainable benefits from said project and, therefore, will be required to contribute to the cost of said project. In consideration for the closure of the grade crossing, the Railway wil contribute 5% of the project costs consistent with 23 CFR 646.210(b)(3). Based on the Project Cost Estimate, the Railway's share is determined to be $ 1,185,000. The Agency shall prepare and submit progress project costs and the Railway shall tender payment within sixty days after the receipt of a billing from the Agency, according to the following schedule. a) Award of Contract by Agency $ 395,000 b) Project at 50% completion $ 395,000 c) Project completion $ 395,000 During construction, the Agency will make all direct payments to its prime contractor. 3. For and in consideration of $ 54,814.50, less the value of the quitclaim from the Agency, the Railway shall grant to the Agency by separate instrument the following. (a) A Crossing Easement of 11,118 square feet, more or less, for overhead bridge purposes over, through, and across the Railway's right-of-way outlined in red, including access rights and surface easement rights for maintenance and construction of the bridge structure as shown on Exhibit "F". (b) A Surface Easement of 1,667 square feet, more or less, for bridge piles, footings; embankment and roadway as shown on Exhibit "F" colored blue. (c) A Surface Easement of 2,481 square feet, more or less, for bridge maintenance and construction as shown on Exhibit "F" colored yellow. (d) A Surface Easement of 1,600 square feet more or less, for sidewalk and fencing as shown in Exhibit "F" colored in magneta. The Agency shall quitclaim to the Railway the existing easement area of 4,193 square feet, valued at $ 13,627.25 for the former "at -grade" roadway of P Street SW, as shown colored in orange on Exhibit "F" attached. The Agency shall convey the amount of $ 41,187.25 ($ 54,814.50 less $ 13,627.25) to the Railway at such time as the easements have been recorded in King County. Upon the execution of this Agreement the Agency is hereby granted a right -of -entry onto the Railway's property as shown on Exhibit "F", attached, outlined in green and is authorized to commence construction work for said project subject to requirements of this agreement. 4. To furnish all labor, materials, tools, and equipment, and do "Railroad Work" required due to the construction of the Project, such railroad work and the estimated cost thereof being as shown in Exhibit "B" attached hereto and made a part hereof. In the event that construction of the Project has not commenced within six (6) months from the effective date of this Agreement, Railway may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit "B". In such case, Railway shall provide to the Agency its revised cost estimates highlighting all changes that are made. Any item of work incidental to those items listed in Exhibit "B", but not specifically mentioned therein, may be included as part of this agreement as an item of work upon written approval of Agency, if practicable. The Agency shall reimburse the Railway for all cost and expense incurred by the Railway in connection with the work as indicated in this Agreement; PROVIDED, however, that the Agency is not obligated to reimburse the Railway for costs and expenses incurred by the Railway for work that must be performed or for materials that must be resupplied as a result of the Railway's failure to exercise due care. The Railway may submit progress bills to the Agency during the progress of the work for the actual cost of services and expenses. The Agency will then pay progress bills within 30 days after receipt of a property submitted bill. If the billing is disputed for any reason, the Agency will promptly notify the Railway and will pay any undisputed amount. The Railway and the Agency shall maintain records regarding the work performed and the costs and expenses incurred by the parties for the project in accordance with generally accepted accounting principles and practices. Said records shall be made available to the other party, or for Agency, or federal audit, upon request during normal business hours, for a period of three years after the final payment. Construction of the Project shall include the following work by Railway: (a) Preliminary engineering, design, and contract preparation; (b) Place 136TF of timber planking material for temporary protection of the tracks during construction. Place 80' temporary plank crossing. Furnish and place all associated fastgenings, hardware, etc. (Agency to provide plank material). (c) Furnishing of such watchmen and flagmen as may be necessary for the safety of its property and the operation of its trains during construction of said Project; and (d) Remove grade crossing signals, gates, and controller and transport them to a local storage location as directed by the Agency. (e) Furnishing of engineering and inspection as required for construction of said Project. 5. To do all work provided in Article I, Section 4 above with its own employees working under Railroad Labor Agreements or by contractor(s), if necessary, and on an actual cost basis. 6. Agency agrees to reimburse Railway for work of an emergency nature caused by Agency or Agency's contractor, in connection with the Project which Railway deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or Railway property. Such work may be performed by Railway without prior approval of Agency and Agency agrees to reimburse Railway for all such emergency work. 7. To submit to Agency for payment upon completion of the Project, a detailed statement covering the cost of the work performed by Railway, segregated as to labor and materials, and in accordance with and subject to the terms and provisions of Federal Highway Administration's FHPM 143, as amended. All applicable portions of the Federal Highway Administration's FHPM 662.1 as amended and FHPM 143 as amended are by reference incorporated herein and made a part hereof. ARTICLE II IN CONSIDERATION of the covenants of Railway herein set forth and the faithful performance thereof, Agency agrees as follows: 1. To furnish to Railway plans and specifications for the Project. Four sets of said plans, together with two copies of specifications, shall be submitted to Railway for approval prior to commencement of construction. After having been approved by both parties hereto, said plans and specifications are hereby adopted and incorporated into this agreement by reference. 2. To provide for and maintain minimum vertical clearances as shown on Exhibit "C". 3. To acquire, at no cost to Railway, all rights of way necessary for the construction of the Project. 4. To make any and all arrangements to secure the location or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be found necessary to locate or relocate in any manner whatsoever due to the construction of the project. 5. To construct the Project as shown on Exhibit "C" and do all work provided for in the plans and specifications for the Project, except such work that Railway herein agrees to do. Principal elements of work to be performed by Agency in the construction of the Project are as follows: (a) Construct the 3rd Street SW bridge and associated supports. (b) Construct the 6 foot sidewalk and fencing under State Route 18. (c) Provide adequate drainage of the overhead structure away from the Railway's tracks and protect track drainage to the satisfaction of the Railway. (d) Provide 136TF of 7 %2' thick planking for the temporary protection of the tracks during construction. Provide 80' temporary plank crossing. Railway to install planking and remove after construction is complete. (e) After consulting with and authorization from the Railway's Roadmaster, the Agency may construct security fencing between track and the work site. This fence may be installed to prevent project personnel or equipment from entering within 25' of the centerline of the Railway's tracks. (f) Except as otherwise provided herein, furnish all plans, engineering, supervision, labor, material, supplies, and equipment necessary for construction of the project. (g) Perform all other work not specifically mentioned as work to be performed by the Railway necessary to complete the project in accordance with the plans and specifications. 6. To furnish all labor, materials, tools, and equipment in performing the work it agrees to perform herein. All work of construction with respect to said Project shall be undertaken by Agency, or Agency's contractor and shall be performed at such times as shall not endanger or interfere with the safe and timely operations of Railway's track and other facilities. 7. To require its contractor(s) to notify Railway's Roadmaster at least 30 calendar days in advance of commencing work on Railway property or near Railway's tracks, when requesting a Railway flagman in accordance with the requirements of "The Right of Entry Agreement" attached hereto, in order to protect Railway from damage to its trains and property. 8. To require its contractor(s) to furnish Railway's Manager of Public Projects, for approval, four copies of plans and two sets of calculations of any shoring or cribbing proposed to be used over, under, or adjacent to Railway's tracks. 9. The Agency agrees to include the following provisions in its contract with a contractor performing work on said Project. (a) Fiber optic cable systems owned by various telecommunication companies may cross or run parallel in Railway's rail corridor. The Contractor shall be responsible to contact Railway and/or the telecommunications companies to determine whether there are any fiber optic cable systems located within the Project boundaries that could be damaged or their service disrupted due to the construction of the Project. The contractor shall also pothole all lines either shown on the plans or marked in the field in order to verify their locations. The contractor shall also use all reasonable methods when working in the Railway rail corridor to determine of any other fiber optic lines may exist. (b) Failure to notify, pothole or identify these lines shall be sufficient cause for the Agency Engineer to stop construction at no cost to the Agency or Railway until these items are completed. Costs for repairs and loss of revenues and profits due to damage to these facilities through negligent acts by the contractor shall be the sole responsibility of the contractor. The contractor shall indemnify and hold the Agency and the Railway harmless against and from all cost, liability and expense arising out of or in any way contributed to these negligent acts of the contractor. (c) The telecommunication companies shall be responsible for the rearrangement of any facilities determined to interfere with the construction. The contractor shall cooperate fully with any company performing these rearrangements. 10. To also incorporate in each contract for construction of the Project, or the specifications therefor, the provisions set forth in Article II, Sections 6, 7, 8, 9, 11, (a) and 12 (b), and in Article III, Sections 3, 4, 10, and 11, and the provisions set forth in the "Right -of -Entry Agreement" attached hereto and by reference made a part hereof. 11. That, except as hereinafter otherwise provided, all work to be performed hereunder by Agency in the construction of the Project will be performed pursuant to a contract or contracts to be let by Agency, and all such contracts shall provide. (a) That all work performed thereunder, within the limits of Railway's right of way shall be performed in a good and workmanlike manner, and in accordance with plans and specifications approved by Railway. Those changes or modifications during construction that affect safety or Railway's operations shall also be subject to Railway's approval; (b) That no work shall be commenced within Railway's right of way until each of the contractors employed in connection with said work shall have (i) executed and delivered to Railway an Agreement in the form of "The Right -of -Entry Agreement" delivered to and secured Railway's approval of the insurance required by said "Right -of -Entry Agreement". 12. (a) Railway shall have the right to request that any Agency employee, any Agency contractor, or any employee of a Agency contractor who performs any work within Railway's right of way and which affects Railways operations or facilities, be removed from the Project for incompetence, neglect of duty, unsafe conduct or misconduct. In the event Agency or its contractor elects not to honor such request, Railway may stop work within its right of way until the matter has been fully resolved to Railway's satisfaction. The party whose employee has been asked to leave the Project will indemnify the requesting party against any claims arising from such removal. (b) Agency's employees, agents, contractors, representatives and invitees shall wear the current BNSF Personnel Protective Equipment ("PPE") when on the Railway's rail corridor. Railway PPE shall meet applicable OSHA and ANSI specifications. Existing Railway PPE requirements are: (1) safety glasses; permanently affixed side shields; no yellow lenses; (ii) hard hats with high visibility orange cover; (iii) safety shoes with hardened toe, above the ankle lace up and a defined heel; and (iv) high visibility reflective orange vests. Hearing protection, fall protection and respirators will be worn as required by state and federal regulations. 13. To advise Railway's Manager Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion and to notify Railway's Manager Public Projects, in writing, of the date on which Agency and/or its Contractor will meet with Railway for the purpose of making final inspection of the Project. ARTICLE III IN CONSIDERATION of the premises, it is mutually agreed as follows: 1. That all work contemplated in this agreement shall be performed in a good and workmanlike manner, in accordance with plans and specifications approved by BNSF, and each portion shall be promptly commenced by the parties hereto obligated to do the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction that affect Railway shall be subject to approval by Railway prior to commencement of such changes or modifications. 2. That such work shall be done in accordance with detailed plans and specifications approved by both parties. 3. Agency and Railway shall to the extent reasonably practicable adhere to the construction schedule for all Project work. The parties agree that Railway's failure to complete Railroad work in accordance with the construction schedule by reason of inclement weather, unforeseen railroad emergencies, or other conditions beyond its reasonable control, will not constitute a breach of this Agreement by Railway nor subject Railway to any liability or responsibility for added expense to the Agency. 4. In the event of an unforeseen railroad emergency and regardless of the requirements of the construction schedule, Railway reserves the right to reallocate all or a portion of its labor forces assigned to perform the Railroad Work when Railway believes such reallocation is necessary to provide for the immediate restoration of railroad operations of Railway or its affiliates or to protect persons or property on or near any Railway owned property or any related railroad. Railway will reassign such labor forces to again perform the Railroad Work when, in its sole but good faith opinion, such emergency condition no longer exists. Railway will not be liable for any additional costs or expenses of the Project resulting from any such reallocation of its labor forces. The parties further agree that such reallocation of labor forces by Railway and any direct or indirect results of such reallocation will not constitute a breach of this Agreement by Railway. 5. That if any Agency Contractor shall prosecute the Project work contrary to the Plans and Specifications or if any Agency Contractor shall prosecute the Project work in a manner Railway deems to be hazardous to its property, facilities or the safe and expeditious movement of its traffic, or the insurance described in "The Right -of -Entry Agreement" here of shall be canceled during the course of the Project, the Railway shall have the right to stop the work until the acts or omissions of such Agency Contractor have been fully rectified to the satisfaction of Railway's Division Engineer, or additional insurance has been delivered to and accepted by Railway. Such work stoppage shall not give rise to or impose upon Railway any liability to Agency, or to any Agency Contractor. The right of Railway to stop the work is in addition to any other rights Railway may have which include, but are not limited to, actions for damages or lost profits. In the event that Railway shall desire to stop work, Railway agrees to give immediate notice thereof in writing to those individuals set forth in Section 22 of this Article Ill. 6. The Agency shall supervise and inspect the operations of all Agency contractors to assure compliance with the plans and specifications, the terms of this agreement and all safety requirements of Agency. If at any time during construction Agency determines that proper supervision and inspection is not being performed by Agency personnel, Agency shall have the right to stop construction (within or adjacent to its operating right of way) and to request that the Agency correct the situation before construction is allowed to proceed. If Railway believes the situation is not being corrected in an expeditious manner, Railway shall immediately notify the Agency so that the Agency can take appropriate corrective action. 7. The Project shall not be commenced by Railway until Agency has issued Railway a "Notice to Proceed". Agency's Contractor shall not commence construction of the Project until the Agency shall have given not less than thirty (30) days prior written notice to Agency's Manager of Public Projects which notice shall state the time that Agency's Contractor plans to begin construction of the Project. Each notice shall make reference to Railway's file name: Auburn, WA. - 3rd Street SW OHS construction . 8. The construction of said Project shall be performed and effected in such a manner as not to interfere with the safe and timely operation of locomotives, trains, cars and on track maintenance equipment, over Railway's tracks. 9. After completion of the construction of the Project as hereinabove described: (a) Railway will, at its sole cost and expense, own and maintain its roadbed, tracks, railroad drainage, and all other railroad facilities. (b) Agency will own and, at its sole cost and expense, maintain the Structure, the highway approaches, and appurtenances thereto, lighting and drainage. The Agency may enter an agreement with the Washington State Department of Transportation for the purpose of having WSDOT do some or all work associated with maintenance of the overhead structure. 10. Before entering upon Railway's right of way for maintenance purposes, Agency shall notify Railway's Manager Public Projects to obtain prior authorization, and, If work is contracted, Agency will require its contractor(s) to comply with the obligations in favor of Railway, set forth in the "Right —of -Entry Agreement" as may be revised from time to time, and accepts responsibility for compliance by its contractor(s). 11. Agency shall indemnify and save harmless Railway, its agents and employees, against all liability, claims, demands, damages, or costs for (a) death or bodily injury to persons including, without limitation, the employees of the parties hereto, (b) injury to property including, without limitation, the property of the parties hereto, (c) design defects, or (d) any other loss, damage or expense arising under either (a), (b) or (c), and all fines or penalties imposed upon or assessed against Railway, and all expenses of investigating and defending against same, arising in any manner out of (1) activities, use, or presence, r or negligence of Agency, or Agency's employees, or Agency's contractors, subcontractors, agents, invitees or any of their employees, in, on, or near Railway's right of way, or, (2) The performance, or failure to perform, by the Agency, its contractors, subcontractors, or agents, its work or any obligation under this agreement.. 12 The Railway reserves the right to make modifications or additions to its facilities within the limits of its right of way subject to applicable laws, rules or regulations, provided that the usefulness of the overcrossing for the purpose of separating highway and railroad traffic shall not thereby be impaired and reasonable notice of significant changes affecting the roadway is given to the Agency. 13 The following activities or improvements are potentially harmful to the bridge when completed. The conditions and prohibitions listed below shall be included in the Crossing Easement noted in Section 2 of this Agreement. CONDITIONS OF ACTIVITIES THAT ARE CONSIDERED TO BE POTENTIALLY HAZARDOUS OR DETRIMENTAL TO THE BRIDGE STRUCTURE (a) No attachments, drilling or welding to any portion of the bridge shall be permitted without approval by the Agency. (b) No structure, excavation or embankment closer than eight feet (8') to the perimeter of any pilings and footings shall be permitted without the written approval of the Agency. (c) Manufacture of flammable, explosive or hazardous materials under the bridge, or any occupation, which is a hazard to the highway or non -highway users, shall be prohibited. (d) Permanent storage of flammable liquids or explosives under the bridge shall not be permitted. 14 The Agency will not do, or permit anything within the easement area which will interfere with or endanger the facilities or operations of the Railway. The Agency further agrees that the minimum vertical clearance from the bottom of the bridge to the to of the rail will not be reduced to less than 23 feet 6 inches. The minimum horizontal and vertical clearances for construction shall be as shown on the approved plans. The Railway shall not intentionally do, nor permit, anything that will interfere with or endanger roadway facilities or vehicular traffic using the overcrossing. 15 If the highway overcrossing shall at any time cease to be used by the public as a highway overpass, or shall by operation of law or otherwise become vacated or abandoned, the rights and benefits to the Agency under this Agreement shall immediately cease and the Railway shall be entitled to repossess the land to which it has executed easements to the Agency and to use the land thereafter as if this Agreement had never been executed, without the necessity of any further legal proceedings. 16 Either party hereto may assign any receivables due them under this Agreement provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this Agreement. No modification or amendment to this Agreement shall be valid until the same is reduced to writing and executed with the same formalities as were attendant to this Agreement. 17 This Agreement shall be interpreted in accordance with the laws of the State of Washington. 18 If the Railway enters into a contract or agreement with a contractor to perform any of the work, which the Railway is required to perform under the terms of this Agreement, the Railway, for itself, its assigns and successors in interest, agrees that it will not discriminate in its choice of contractors and will include all the nondiscrimination provisions set forth in Exhibit "E" attached hereto and by this reference made a part of this Agreement, in any such contract or agreement. 19. The covenants and provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto, except that no party may assign any of its rights or obligations hereunder without the prior written consent of the other party. 20. In the event that construction of the Project has not begun for a period of three years from the date of this agreement, this agreement shall become null and void. 21. This Agreement cancels and supersedes any preceding agreements pertaining to said crossing. 22. Any notice provided for or concerning this agreement shall be in writing and be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: The Burlington Northern and Railway's Manager of Public Projects Santa Fe Railway Company: John M. (Mike) Cowles 2454 Occidental Avenue So., Suite 1-A Seattle, WA. 98134-1451 Telephone No. (206) 625-6146 Telecopy No.: (206) 625-6115 With a copy to: Division Engineer 2454 Occidental Ave. So. — Ste 1-A Seattle, WA. 98134 Telephone No. (206) 625-6363 Telecopy No. (206) 625-6265 Roadmaster 605 Puyallup Avenue Tacoma, WA. 98421 Telephone No. (253) 591-2563 Telecopy No. (253) 591-2627 AUBURN, WASHINGTON Ingrid Gaub, P.E. Project Engineer 25 West Main Street Auburn, WA. 98001-4998 Telephone No. (253) 804-3113 Telecopy No. (253) 931-3053 This Agreement shall inure to the benefit of and be binding on the parties hereto, their successors and assigns. IN WITNESS WHEREOF, County has caused this Agreement to be executed and witnessed by its duly qualified and authorized officials, and BNSF has executed this Agreement, both as of the day and year first above written. A PROVES A TO FORM 6 671 I� gurwlQton wo Spa Fa law 01191101 i APPROVED AS TO FORM )i1LB Title: City Attomey THE BURLINGTON NORTHERN AND SANTtj-A f E RAILWAY By Vice Presi r) t Engineering AUBURN, WASHINGTON By 0JWtQJA P - �aA Title - Mayor EXHIBIT "A" STATEMENT OF CONDITIONS WHEN FLAGGERS, PROTECTIVE SERVICES AND DEVICES WILL BE FURNISHED BY THE RAILWAY RAILWAY flaggers, protective services, and devices will be furnished but not limited thereto for the following conditions: (1) When in the opinion of the RAILWAY protection is necessary to safeguard the RAILWAY's trains, engines, facilities, and property. (2) When any work is performed over or under within 25' of any tracks or any RAILWAY facilities not protected by approved security fencing. (3) When work in any way interferes with the operation of trains at usual speeds or threatens, damages or endangers tracks or RAILWAY facilities. . (4) When any hazard is presented to RAILWAY communications, signal, electrical, or other facilities either due to person, material, equipment, or blasting in the vicinity. (5) Where or when material is being hauled across tracks. Special clearance must be obtained from the RAILWAY before moving heavy or cumbersome objects and equipment which might result in making the track impassable. COST OF FLAGGING AND OTHER PROTECTIVE SERVICES AND DEVICES (a) (b) (c) (d) NUMBER CLASSIFICATION BASE PAY HEADQUARTERS 3 Sectionmen $17.00/HOUR/ Tacoma, WA. 8 -hour day plus additives. NOTES: (a) A full flagging crew generally consists of up to three men. Under certain conditions more than three men may be required or a lesser number maybe sufficient. However, additional personnel, such as communications linemen and/ or signalmen may be used to protect communications and signal facilities, if deemed necessary by the RAILWAY. (b) The classification is shown solely for the prospective bidder's information, and there is no guarantee that the above classes of labor will actually be used or that the rates of pay shown in Column (c) will be those in effect at the time the work is undertaken. (c) Shows base pay rate per man per hour for normal eight-hour shift in effect March, 1999. (d) In addition, protective devices, such as crossing signals, indicators, telltales, lights, telephone, etc., may be required. In this connection telltales may be installed by the RAILWAY, at its option, as a condition of its approval of any proposed restrictions of vertical clearance during construction to less than 22-1/2 feet. (e) It shall be the duty and responsibility of the STATE and its Contractors to notify the RAILWAY at least seventy- two (72) hours in advance of when flaggers or other protective services and devices are required. RAILWAY Contact Mr. Wayne Lonnegren, Roadmaster Tacoma, WA Phone (253) 591-2563 Cellular (253) 484-4558 (f) To all direct labor costs there shall be additional charges for Vacation Allowance, Health and Welfare, Railroad Retirement and Unemployment Taxes; Public Liability, Property Damage and Workmen's Compensation Insurance; and accounting and billing. For estimating purposes only, these additives collectively may be considered as approximating 151 % of direct labor costs. EXHIBIT "B" Estimated "RAILWAY WORK" Install Timber Planking at LS 51 MP:21.66 DESCRIPTION QUANTITY U/M COST TOTAL LABOR Place Private Crossing 320.00 MH 5,028 Remove Temp. Crossing 128.00 MH 2,012 Payroll Associated Costs 3,902 Equipement Expenses 1,260 Supervision Expenses 4,410 Insurance Expenses 1,055 TOTAL LABOR COST 17,667 17,667 MATERIAL TOTAL MATERIAL COSTS - - OTHER TOTAL OTHER ITEMS COSTS - PROJECT SUBTOTAL 17,667 CONTINGENCIES 1,261 BILL PREPARATION FEE 95 GROSS PROJECT COST 19,023 LESS COST PAID BY BNSF - TOTAL BILLABLE COST 19,023 Remove Highway crossing cantilevers and gates due to grade separation, Burlington will remain in place to house aux. circuitry for adjacent crossings. This estimate reflects typical, representative packages used for estimating purposes only. Detailed and accurate material lists will be furnished when engineering is completed. Continuing contracts have been established for portions of signal work on BNSF Railway. DESCRIPTION QUANTITY U/M COST TOTAL LABOR Electrical Labor 57.00 MH 1,086 Signal Field Labor 200.00 MH 3,708 Payroll Associated Costs 2,657 Equipement Expenses 857 Supervision Expenses 3,003 Insurance Expenses 718 TOTAL LABOR COST 12,029 12,029 MATERIAL TOTAL MATERIAL COSTS 0 0 OTHER Contract Engineering 1.00 EA 1,500 Equipement Rental 1.00 EA 2,375 Fill 20.00 CY 500 TOTAL OTHER ITEMS COSTS 4,375 4,375 PROJECT SUBTOTAL 16,404 CONTINGENCIES 1,640 BILL PREPARATION FEE 91 GROSS PROJECT COST 18,135 LESS COST PAID BY BNSF 0 TOTAL BILLABLE COST 18,135 TOTAL ESTIMATED COSTS $ 37,158 EXHIBIT "C" Bridge Plan and Profile EXHIBIT "D" CITY Project Estimate Phase 1 Item Description Total Cost Mobilization $ 326,450 Temporary Water Pollution/Erosion control $ 60,000 Traffic Control $ 140,450 Demolition $ 263,565 Preload including Haul and Removal $ 27,800 Geo Synthitic Walls $ 1,439,570 Soil Nail Wall $ 520,500 Stone Columns $ 68,940 Roadway Construction $ 1,730,918 Utility Relocations and Storm $ 707,288 Barriers and Curbs $ 378,267 Sidewalk and Driveways $ 11,646 Traffic Signals $ 280,000 Pavement Markings (Temporary) $ 9,049 Illumination/Signing $ 105,000 Sales Tax $ 521,972 Subtotal $ 6,591,414 Phase 2 Item Description Total Cost Mobilization $ 400,000 Temporary Water Pollution/Erosion control $ 17,000 Traffic Control $ 106,000 Demolition $ 3,000 Preload including Haul and Removal $ 18,000 Bridges $ 5,230,000 Landscaping $ 890,000 Geo Synthitic Walls $ 905,000 Soil Nail Wall $ 110,000 Stone Columns $ 350,000 Roadway Construction $ 970,000 Utility Relocations and Storm $ 249,000 Barriers and Curbs $ 160,000 Sidewalk and Driveways $ 36,000 Traffic Signal $ 249,000 Pavement Markings (Final) $ 50,000 Illumination/Signing $ 37,000 Sales Tax Subtotal Pre -Design Design Right -of -Way Construction Engineering Contingencies Subtotal 841,080 10,621,080 $ 223,671 $ 3,650,595 $ 5,537,114 $ 2,218,000 $ 1,337,500 $ 12,966,880 RAILWAY participation is based on 5% of FAST Corridor Project 1997 Total Project Cost of $23,700,000. Project costs have increased as design progresses. 2 EXHIBIT "E" Nondiscrimination Provisions of Title VI of the Civil Rights Act of 1964 During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "Contractor"), agrees as follows: 1 Compliance with Regulations: The Contractor will comply with the regulations of the Department of Transportation relative to nondiscrimination in federally -assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this contract. 2 Nondiscrimination: The Contractor, with regard to the work preformed by it after award and prior to completion of the contract work, will not discriminate on the ground of race, color or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate either directly of indirectly in the discrimination prohibited by section 21.5 of the regulations, including employment practices when the contract covers a program set forth in Appendixes "A", "B", and "C". 3 Solicitation for Subcontracts, Including Procurements of Materials and Equipment. In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the ground of race, color or national origin. 4 Information and Reports. The Contractor will provide all information and reports required by the Regulations or orders and instructions issued pursuant thereto, and will permit access to its goods, records, accounts, other sources of information, and its facilities as may be determined by the State Highway Department or the Federal Highway Administration as appropriate and shall set forth what efforts it has made to obtain the information. 5 Sanctions for Noncompliance. In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the State Highway Department shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to; a) Withholding of payments to the Contractor under the contract until the Contractor complies, and for b) Cancellation, termination, or suspension of the contract, in whole or in part. 6 Incorporation of Provisions. The Contractor will include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, order or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State Highway Department or the Federal Highway Administration my direct as a means of enforcing such provisions including sanctions for noncompliance; Provided, however, that, in the event a Contractor becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interests of the State, and , in addition, the Contractor may request the United States to enter into such litigations to protect the interests of the United States. *PROHIBITION OF DISCRIMINATION ON THE BASIS OF SEX. SEC. 162, (a) Chapter 3 of Title 23, United States Code, is amended by adding at the end thereof the following new section: "5324, Prohibition of discrimination on the basis of sex. No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance under this title or carried on under this title. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under Title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee." 3 EXHIBIT "F" Map Exhibit "G" Sample Right -of -Entry Agreement CONTRACTOR'S RIGHT OF ENTRY AGREEMENT FOR CONSTRUCTION PROJECTS ON OR ADJACENT TO PROPERTY OF THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Gentlemen: The undersigned, hereinafter referred to as Contractor, has entered into a Contract dated _, 2000, with Auburn, Washington ("City") for the performance of certain work in connection with the project. The construction of the 3`d Street SW overpass in the performance of which work the Contractor will necessarily be required to conduct operations within THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY ("Railway"), right of way and property ("Railway Property"). The Contract provides that no work shall be commenced within Railway Property until the Contractor employed in connection with said work for State executes and delivers to Railway an Agreement, in the form hereof, and shall have provided insurance of the coverage and limits specified in said Contract and Section 2 of this Agreement. If this Agreement is executed by other than the Owner, General Partner, President or Vice President of Contractor, evidence is furnished to you herewith certifying that the signatory is empowered to execute this Agreement for the Contractor. Accordingly, as one of the inducements to and as part of the consideration for Railway granting permission to Contractor to enter upon Railway Property, Contractor, effective on the date of said Contract, has agreed and does hereby agree with Railway as follows: SECTION .1. RELEASE OF LIABILITY AND INDEMNITY Contractor agrees to release Railway from any claims arising from the performance of this Agreement which Contractor or any of its employees, subcontractors, agents or invitees could otherwise assert against Railway, regardless of the negligence of Railway, except to the extent that such claims are proximately caused by the intentional misconduct or gross negligence of Railway. Contractor shall indemnify and hold harmless Railway for 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 failure to perform any obligation hereunder. THE LIABILITY ASSUMED BY CONTRACTOR SHALL 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 SHALL INCLUDE 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. Nothing in this agreement is intended to be construed as a requirement for the indemnification against the sole negligence of the Railway, its officers, employees or agents for any work relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, performed in the State of Washington. Indemnification against liability for damages arising out of bodily injury to persons or damage to property for any work relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, performed in the State of Washington and caused by or resulting from the concurrent negligence of the Railway and the Agency and its agents or employees will be enforceable only to the extent of the negligence of the Agency and its agents and employees. The indemnification obligation shall include all claims brought by Contractor's employees against the Railway, its RIGHT OF ENTRY STATE OF WASHINGTON SEPTEMBER 3, 1999 agents, servants, employees or otherwise, and Contractor expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes potential liability for all actions brought by its employees. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it shall adjust and settle all claims made against Railway, and shall, 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 shall give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor shall 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, shall 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 shall survive any termination of this Agreement. SECTION 2. INSURANCE. (a). Before commencing any work under this Agreement, Contractor must provide and maintain in effect throughout the term of this Agreement insurance, at Contractor's expense, covering all of the work and services to be performed hereunder by Contractor and each of its subcontractors, as described below: (1). Workers' Compensation coverage as is required by State law. THE CERTIFICATE MUST CONTAIN A SPECIFIC WAIVER OF THE INSURANCE COMPANY'S SUBROGATION RIGHTS AGAINST THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY. (2). Commercial General Liability insurance covering liability, including but not limited to Public Liability, Personal Injury, Property Damage and Contractual Liability covering the obligations assumed by Contractor in Section 1, with coverage of at least $2,000,000 per occurrence and $4,000,000 in the aggregate. Where explosion, collapse, or underground hazards are involved, the X, C, and U exclusions must be removed from the policy. (3). Automobile Liability insurance, including bodily injury and property damage, with coverage of at least $1,000,000 combined single limit or the equivalent covering any and all vehicles owned or hired by the Contractor and used in performing any of the services under this agreement. (4). Railroad Protective Liability insurance stating The Burlington Northern and Santa Fe Railway Company is the Named Insured covering all of the liability assumed by the Contractor under the provisions of this Agreement with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. Coverage shall be issued on a standard ISO form CG 00 35 0196 and endorsed to include ISO form CG 28 31 10 93 and the Limited Seepage and Pollution Endorsement (see attached copy). (b). The average train traffic per 24-hour period on this route is 32 through freight trains at a timetable speed of 50 MPH and 8 passenger trains at a timetable speed of 79 MPH and 12 switch engine movements. (c). All insurance shall be placed with insurance companies licensed to do business in the States in which the work is to be performed, and with a current Best's Insurance Guide Rating of A- and Class VII, or better. (d). In all cases except Workers' Compensation and Railroad Protective Liability coverage the certificate must specifically state that THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY IS AN ADDITIONAL INSURED. (e) Any coverage afforded Railway, the Certificate Holder, as an Additional Insured shall apply as primary and not excess to any coverage issued in the name of Railway. (f). Such insurance shall be approved by the Railway before any work is performed on Railway's Property and shall be carried until all work required to be performed on or adjacent to Railway's Property under the terms of the contract is satisfactorily completed as determined by the city of Auburn, Washington, and thereafter until all tools, equipment and materials not belonging to the Railway, have been removed from Railway's Property and Railway Property is left in a clean and presentable condition. The insurance herein required shall be obtained by the Contractor and Contractor shall furnish Railway with an original certificate of insurance, signed by the insurance company, or its authorized representative, evidencing the issuance of insurance coverage as prescribed in (a) 1, 2 and 3 above, plus the original Railroad Protective Liability insurance policy to: Attention: Maintenance Field Support The Burlington Northern and Santa Fe Railway Company Maintenance Field Support 4501 Kansas Avenue Kansas City, Kansas 66106 (g). The certificate of insurance shall guarantee that the policies will not be amended, altered, modified or canceled insofar as the coverage contemplated hereunder is concerned, without at least thirty (30) days notice mailed by registered mail to Railway. (h). Full compensation for all premiums which the Contractor is required to pay on all the insurance described hereinafter shall be considered as included in the prices paid for the various items of work to be performed under the Contract, and no additional allowance will be made therefor or for additional premiums which may be required by extensions of the policies of insurance. It is further distinctly understood and agreed by the Contractor that its liability to the Railway herein under SECTION l will not in any way be limited to or affected by the amount of insurance obtained and carried by the Contractor in connection with said Contract. SECTION 3. CONTRACTOR REQUIREMENTS (a). While on or about Railway Property, Contractor shall fully comply with Railway's "Contractor Requirements", including (but not limited to) clearance requirements and personal protective equipment requirements. Contractor shall be responsible for fully informing itself as to Railway "Contractor Requirements". (b). Prior to entering Railway Property, each person providing labor, material, supervision, or services connected with the work to be performed on or about Railway Property shall attend a Safety Orientation session conducted or approved by Railway. Contractor shall contact Manger Public Projects, J. M. (Mike) Cowles, telephone (206) 625-6146 fax (206) 625-6115, at least thirty (30) calendar days in advance to arrange the necessary safety orientation session(s). (c). Prior to entering Railway property, the Contractor shall prepare and implement a safety action plan acceptable to Railway. Contractor shall audit its compliance with that plan during the course of it's work. A copy of said plan and audit results shall be kept at the work site and shall be available for inspection by Railway at all reasonable times SECTION 4. PROTECTION OF RAILWAY FACILITIES AND RAILWAY FLAGGER SERVICES (a). The Contractor shall give a minimum of at least thirty (30) working days notice to Wayne Lonneren the Railways Roadmaster at telephone (253) 591-2563, in advance of when flagging services will be required to bulletin the flaggers position and shall provide five (5) working days notice to the Roadmaster to abolish the position per union requirements. (b). Railway flagger and protective services and devices will be required and furnished when Contractor's work activities are located over or under of and within twenty-five (25) feet measured horizontally from center line of the nearest track and when cranes or similar equipment positioned outside of 25 -foot horizontally from track center line that could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: (1). When in the opinion of the Railway's representative, it is necessary to safeguard Railway's Property, employees, trains, engines and facilities. (2). 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. (3). When work in any way interferes with the safe operation of trains at timetable speeds. (4). 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. (5). Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. (c). Flagging services will be performed by qualified Railway flaggers. The base cost per hour for (1) flagger is $50.00 which includes vacation allowance, paid holidays, Railway and Unemployment: Insurance, Public Liability and Property Damage Insurance, health and welfare benefits, transportation, meals, lodging and supervision, for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. These rates are subject to any increases which may result from Railway Employees -Railway Management negotiations or which may be authorized by Federal authorities. State/Contractor will be billed on actual costs in effect at time work is performed. (1). A flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railway's representative. (2). Each time a flagger is called, the minimum period for billing shall be the eight (8) hour basic day. (3). The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the State/Contractor. (4). The average train traffic per 24-hour period on this route is 32 freight trains at a timetable speed of 50 MPH and 8 passenger trains at a timetable speed of 79 MPH and 12 switch engine movements. SECTION S. TRAIN DELAYS No work performed by Contractor shall cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Railway, it's lessees, licensees or othersi unless specifically permitted under this agreement, or specifically authorized in advance by the Railway Representative. Nothing shall be done or suffered to be done by the Contractor at any time that would in any manner impair the safety thereof. When not in use, Contractor's machinery and materials shall be kept at least 50 feet from the centerline of Railway's nearest track, and there shall be no vehicular crossings of Railway's track except at existing open public crossings. Contractor shall be responsible to Railway, including its affiliated railway companies, and its tenants for damages for any unscheduled delay to freight or passenger trains that are caused by the Contractor as follows: (a). Train Delay Damages, Passenger Trains (1). Contractor will be billed and Contractor shall pay Railway within 30 days, as provided below, for the actual economic losses arising from loss of contractual incentive pay and bonuses, and contractual penalties resulting from passenger train delays, whether caused by Contractor, or subcontractors, or by the Railway performing Railway Work associated with this project. Railway agrees that it will not perform any act to unnecessarily cause passenger train delay. (2). Passenger trains operate under incentive/penalty contract with the Railway. Under these arrangements, if Railway does not meet its contract service commitment, Railway may suffer loss of performance or incentive pay or be 4 I subject to a penalty payment. Contractor shall be responsible for any passenger train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a passenger train delay caused by Contractor, or subcontractors. (3). As example, a passenger train arrives 30 minutes after its contract service commitments with the Railway and Railway is assessed damages per terms of the contract. Contractor, and/or it's subcontractors, caused a 29 minute delay to the passenger train and therefore the Contractor is not responsible for passenger train performance incentives, penalties or other contractual economic losses actually incurred by Railway. (4). As example, a passenger train arrives 30 minutes after its contract sbrvice commitment and Railway is assessed damages per terms of the contract. Contractor, and/or it's subcontractors, caused a 31 minute delay to the passenger train and therefore the Contractor is 100% responsible for any passenger train performance incentive, penalties or other contractual economic losses actually incurred by Railway. (5). The contractual relationship between Railway and its passenger customers is proprietary and confidential. In the event of a passenger train delay covered by this Agreement, Railway will share information relevant to any passenger train delay to the maximum extent consistent with Railway confidentiality obligations. Damage for passenger train delays for certain passenger trains could be as high as $50,000.00 per passenger train. (b). Train Delays Damages, Freight Trains (1). Contractor will be billed and Contractor shall pay Railway within 30 days, as provided herein, for the damages for freight train delays, whether caused by the State, its contractors or subcontractors, or by the Railway working for the State. The Contractor will be billed at a rate of $304.28 (for 1998) per freight train hour for each freight train delayed as determined from Railway's records. Each delay may cause delays to more than one freight train at the same time. These rates will be updated annually and Contractor will be billed at rate per hour in effect at the time the delay occurred. Kindly acknowledge receipt of this letter by signing and returning to the undersigned two original copies of this letter, which, upon execution by Railway, shall constitute an Agreement between us. Yours truly, (Contractor) The Burlington Northern and Santa Fe Railway Company By By Manager Public Projects (Title) Accepted this day of 2000 Address City, State. Zip LIMITED SEEPAGE, POLLUTION AND CONTAMINATION COVERAGE ENDORSEMENT WORDING In consideration of the premium charged it is understood and agreed that Exclusion f. of Coverage A. of this Policy shall not apply to the liability of the Insured resulting from seepage and/or pollution and/or contamination caused solely by: a) unintended fire, lightning or explosion: or b) a collision or overturning of a road vehicle: or c) a collision or overturning or derailment of a train. Notwithstanding the foregoing it is agreed that the coverage provided by this Endorsement shall not apply to: I. loss of, damage to or loss of use of property directly or indirectly resulting from sub -surface operations of the Insured, and/or removal of, loss of or damage to sub -surface oil, gas or any other substance; 2. any site or location used in whole or in part for the handling, processing, treatment, storage, disposal or dumping of any waste materials or substances; 3. the cost of evaluating and/or monitoring and/or controlling seeping and/or polluting and/or contaminating substances; 4. the cost of removing and/or nullifying and/or cleaning up seeping and/or polluting and /or contaminating substances on property at any time owned and/or leased and/or rented by the insured and/or under the control of the Insured. Notwithstanding the foregoing, Item 1 does not apply to tunnels.