HomeMy WebLinkAboutContract 41579 (2)GRADF GROSSING CONR UC u D N AND bid ��. DN u
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[CITY ORIGINAL COPY]
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BNSF File No. 020486J
Hemphill Street
U.S D O.T. No. 020486J
Railroad Line Segment 7500
Railroad Milepost 343.52
This Agreement ("Agreement"), is executed to be effective as of this 18th day of February, 2011
("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("I3NSF"), and
the CITY OF FORT WORTH, a political subdivision of the State of Texas ("Agency").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Fort Worth, State of
Texas;
WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project
to improve the existing Hemphill Street at -grade crossing, located at BNSF Line Segment 7500 and
Milepost 343.52, and designated by D 0 T. No. 020486J, by constructing raised center medians on the
roadway approaches within the existing roadway easement across the BNSF right-of-way as indicated on
the Exhibit Al attached hereto and incorporated herein; and
WHEREAS, the Agency also desires BNSF to make changes to the crossing signals and equipment at
Hemphill Street;
WHEREAS, the Agency is paying for the acquisition and installation of the crossing signal equipment at
Hemphill Street.
WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S expense, the new crossing signal
equipment described in the scope of work herein, and upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained
herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I o SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the construction of the
raised center medians on the roadway approaches of the Hemphill Street by Agency and installation of
new crossing signal equipment at U.S. D.O T No. 020486J, (hereinafter referred to as the "Crossing") by
BNSF, more particularly described on the Exhibit Al including, but not limited to, any and all changes to
telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track
work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and
construction engineering and contract preparation.
ARTICLE ICLE II o BNSF OBLIGATIONS
IONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF
agrees as follo s:
OFHCIAL RECORD
CITY SECRETARY
',511 !M " TX
Hemphill Street Agreement (02/18/11) Page 1
Form 0118 Rev. 09/21/06
1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF
hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set
forth in this Agreement, permission and license to enter upon and use the portion of BNSF's right-of-way
as is necessary to construct the raised center medians on the roadway approaches and thereafter
maintain, the Crossing as described further on Exhibit A, excepting and reserving BNSF's rights, and the
rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the
following:
(a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires,
pipelines and other facilities of like character upon, over or under the surface of said right-of-
way;
(b) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation,
such facilities as the BNSF may from time to time deem appropriate;
(c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate.
This right is given by BNSF without warranty of title of any kind, expressed or implied, and no covenant
on warranty of title shall be implied from the use of any word or words herein contained In the event
Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not
be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of
similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights
granted to Agency herein.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the
construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit
D attached hereto and made a part hereof. In the event construction on the Project has not commenced
within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise
the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part
of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on
Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written
approval of Agency which approval will not be unreasonably withheld. Construction of the Project must
include the following railroad work by BNSF:
(a) Procurement of materials, equipment and supplies necessary for the railroad work;
(b) Preliminary engineering, design, and contract preparation;
(c) Furnishing of flagging services during construction of the Project as required and set forth in
further detail on Exhibit C, attached to this Agreement and made a part hereof;
(d) Furnishing engineering and inspection as required in connection with the construction of the
Project;
(e) Installation of crossing signal equipment;
(f) Make such changes in the alignment, location and elevation of its telephone, telegraph,
signal and/or wire lines and appurtenances along, over or under the tracks both temporary
and permanent, as may become necessary by reason of the construction of the Project.
3 BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when
BNSF, in its sole discretion determines it is required by its labor agreements to perform such work with its
own employees working under applicable collective bargaining agreements.
4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or
Agency's contractor in connection with the Project which BNSF deems is reasonably necessary for the
immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 2
work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse
BNSF for all such emergency work.
5. BNSF may charge Agency for insurance expenses, including self-insurance expenses, when
such expenses cover the cost of Employer's Liability (including, without limitation, liability under the
Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be
considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for
injury, Toss or death to BNSF's employees, if any
6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the
costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for
completed force -account work within thirty (30) days of the date of the invoice for such work Upon
completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor
and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article
IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of the final
invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or
other charges due under this Agreement which are past its credit terms. The finance charge continues to
accrue daily until the date payment is received by BNSF, not the date payment is made or the date
postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges
as of the end of the month and will be reduced by amounts in dispute and any unposted payments
received by the month's end. Finance charges will be noted on invoices sent to Agency under this
section.
ARTICLE III — AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency
agrees as follows:
1. Agency must furnish to BNSF plans and specifications for the Project. Said plans (reduced size
11" x 17"), showing the plan and profile of the roadway work on BNSF right-of-way and marked as Exhibit
A, attached hereto and made a part hereof, must be submitted to BNSF for the development of railroad
cost estimates.
2. Agency must make any required application and obtain all required permits and approvals for the
construction of the Project.
3. Agency must acquire all rights of way necessary for the construction of the Project.
4. Agency must make any and all arrangements for the installation or relocation of wire lines, pipe
lines and other facilities owned by private persons, companies corporations, political subdivisions or
public utilities other than BNSF which may be necessary for the construction of the Project.
5. Agency must construct the Project as shown on the attached Exhibit A and do all work ("Agency's
Work") provided for in the plans and specifications for the Project, except railroad work that will be
performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the
performance of Agency's Work. The principal elements of Agency's Work are as follows:
(a) Design and Construction of raised center medians on the roadway approaches to
Hemphill Street;
(b) Installation of a pavement marking stop bar in accordance with the Manual on Uniform
Traffic Control Devices (hereinafter called "MUTCD");
(c) Installation of advance warning signs in accordance with the MUTCD
(d) Perform all necessary grading and paving, including backfill of excavations and
restoration of disturbed vegetation on BNSF's right-of-way;
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 3
(e) Provide suitable drainage, both temporary and permanent;
(f)
Job site cleanup including removal of all construction materials, concrete debris, surplus
sod, refuse, contaminated soils, asphalt debris, litter and other waste materials to the
satisfaction of BNSF;
6. INTENTIONALLY LEFT BLANK.
7. The Agency must have advanced railroad crossing signs and standard pavement markings in
place at the crossing shown on Exhibit A (if the same are required by the MUTCD) prior to the
acceptance of this Project by the Agency.
8. The Agency must give BNSF's Manager Public Projects written notice to proceed ("Notice to
Proceed") with the railroad portion of the work after receipt of necessary funds for the Project. BNSF will
not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials)
until written notice to proceed is received from Agency.
9. The Agency's Work must be performed by Agency or Agency's contractor in a manner that will
not endanger or interfere with the safe and timely operations of BNSF and its facilities.
10. For any future inspection or maintenance, either routine or otherwise, performed by
subcontractors on behalf of the Agency, Agency shall require the subcontractors to execute the C
documents Prior to performing any future maintenance with its own personnel Agency shall: comply
with all of BNSF's applicable safety rules and regulations; require any Agency employee performing
maintenance to complete the safety training program at the BNSF's Internet Website
"contractororientation.com", notify BNSF when, pursuant to the requirements of exhibit C, a flagger is
required to be present; procure, and have approved by BNSF s Risk Management Department, Railroad
Protective Liability insurance.
11. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar
days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached
hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager of Public Projects
thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks
12. Agency must include the following provisions in any contract with its contractor(s) performing
work on said Project:
(a) The Contractor is placed on notice that fiber optic, communication and other cable
lines and systems (collectively, the 'Lines") owned by various telecommunications
companies may be buried on BNSF's property or right-of-way. The locations of these
Lines have been included on the plans based on information from the
telecommunications companies. The contractor will be responsible for contacting
BNSF's Communications Network Control Center at 800-533-2891 and/or the
telecommunications companies and notifying them of any work that may damage
these Lines or facilities and/or interfere with their service. The contractor must also
mark all Lines shown on the plans or marked in the field in order to verify their
locations The contractor must also use all reasonable methods when working in the
BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic,
cable, communication or otherwise) may exist.
(b) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering
representative to stop construction at no cost to the Agency or BNSF until these
items are completed.
In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies,
defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever
(including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 4
contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that
cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor
and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-of-way
(2) any injury to or death of any person employed by or on behalf of any telecommunications company
and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or
(3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer
or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL
NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY,
DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF BNSF
(c) The Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor must cooperate fully
with any telecommunications company(ies) in performing such rearrangements.
13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit
C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the
specifications therefor (i) the provisions set forth in Article III; (it) the provisions set forth in Article IV; and
(iii) the provisions set forth in Exhibit C and Exhibit C-I, attached hereto and by reference made a part
hereof.
14. Except as otherwise provided below in this Section 13, all construction work performed hereunder
by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such
contracts must include the following:
(a) All work performed under such contract or contracts within the limits of BNSF's right-of-
way must be performed in a good and workmanlike manner in accordance with plans and
specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF operations must
be subject to BNSF's approval;
(c) No work will be commenced within BNSF's right-of-way until each of the prime
contractors employed in connection with said work must have (i) executed and delivered
to BNSF a letter agreement in the form of Exhibit C-I, and (ii) delivered to and secured
BNSF's approval of the required insurance and
(d) If it is in Agency's best interest, Agency may direct that the construction of the Project be
done by day labor under the direction and control of Agency or if at any time, in the
opinion of Agency, the contractor has failed to prosecute with diligence the work specified
in and by the terms of said contract Agency may terminate its contract with the
contractor and take control over the work and proceed to complete the same by day labor
or by employing another contractor(s) provided; however, that any contractor(s) replacing
the original contractor(s) must comply with the obligations in favor of BNSF set forth
above and, provided further, that if such construction is performed by day labor Agency
will, at its expense, procure and maintain on behalf of BNSF the insurance required by
Exhibit C-1.
(e) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's
Roadmaster 60 days advance notice of the proposed times and dates for work windows.
BNSF and Agency's contractor will establish mutually agreeable work windows for the
Project. BNSF has the right at any time to revise or change the work windows, due to
train operations or service obligations. BNSF will not be responsible for any additional
costs and expenses resulting from a change in work windows. Additional costs and
expenses resulting from a change in work windows shall be accounted for in the
contractor's expenses for the Project.
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 5
15. Agency must advise the appropriate BNSF Manager Public Projects, in writing, of the completion
date of the Project within thirty (30) days after such completion date. Additionally, Agency must notify
BNSF s Manager Public Projects, in writing, of the date on which Agency and/or its Contractor will meet
with BNSF for the purpose of making final inspection of the Project.
16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES,
INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
S HAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, FINES PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
S UITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS AND ATTORNEYS FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
(INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
O R IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
S UBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE,
(II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY ITS CONTRACTORS,
S UBCONTRACTORS EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE
OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)
ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI)
AGENCY S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-WAY, INCLUDING,
WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII)
AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS INVITEES, EMPLOYEES OR
CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY
AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
N EGLIGENCE OF BNSF ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.
ARTICLE IV — JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner
and each portion must be promptly commenced by the party obligated hereunder to perform the same
and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any
changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior
to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and
specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Projects construction schedule
for all Project work. The parties hereto mutually agree that BNSF s failure to complete the railroad work in
accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies
will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability.
Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the
labor forces assigned to complete the railroad work in the event of an emergency to provide for the
Immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or
property on or near any BNSF owned property. BNSF will not be liable for any additional costs or
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 6
expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any
reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or
costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events
take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the
plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion
prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the safe and
expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is
canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary
Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work
stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the
situation to the satisfaction of BNSF's Division Engineer or until additional insurance has been delivered
to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction
License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or
the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of
BNSF BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not
limited to, actions or suits for damages or lost profits In the event that BNSF desires to stop construction
work on the Project, BNSF agrees to immediately notify the following individual in writing:
Homero Belton
Project Manager
City of Fort Worth
5001 James Avenue
Fort Worth, Texas 76115
5. Agency must supervise and inspect the operations of all Agency contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all
safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is
not being performed by Agency personnel at any time during construction of the Project, BNSF has the
right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will
not proceed until Agency corrects the situation to BNSF s reasonable satisfaction. If BNSF feels the
situation is not being corrected in an expeditious manner, BNSF will immediately notify Homero Belton
for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must reimburse BNSF in full for
the actual costs of all work performed by BNSF under this Agreement, less BNSF's Share as set forth in
the Exhibit D.
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will
comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of
Transportation, as amended from time to time, which manual is hereby incorporated into and made a part
of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design
and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project
even though such work may have preceded the date of this Agreement.
8. The construction of the Project will not commence until Agency gives BNSF's Manager Public
Projects thirty (30) days prior written notice of such commencement. The commencement notice will
reference BNSF s file number 020486J and D.O.T. Crossing No. 020486J and must state the time that
construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the
Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future construction or
reconstruction of the Hemphill Street roadway.
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 7
(b) Agency will maintain the elevation of the Hemphill Street roadway approaches to match
the elevation on the railroad track crossing surfaces.
(c) To the extent allowed by law, Agency will maintain the advanced railroad crossing
warning signs and pavement markings and agrees to hold harmless and indemnify BNSF
for any claims, damages or losses, in whole or in part, caused by or due to the Agency's
failure to maintain the advanced warning signs and markings or other requirements of the
MUTCD. NOTHING IN THIS AGREEMENT SHALL EVER BE CONSTRUED SO AS TO
REQUIRE AGENCY TO CREATE A SINKING FUND OR TO ASSESS, LEVY AND
COLLECT ANY TAX TO FUND ITS OBLIGATIONS UNDER PARAGRAPH 9 (c) OF
THIS AGREEMENT.
(d) Agency will do nothing and permit nothing to be done in the maintenance of the Hemphill
Street roadway, which will interfere with or endanger facilities of BNSF.
(e) It is expressly understood by Agency and BNSF that any right to install utilities will be
governed by a separate permit or license agreement between the parties hereto.
(f)
(g)
BNSF will, at its sole cost and expense, maintain the crossing surfaces, from end of -tie to
end of -tie, in proper condition
Notwithstanding the preceding provision, if any regulations, ordinances acts, rules or
other laws subsequently passed or amended by the Agency or any other governmental or
legislative authority increase the Agency's portion of maintenance cost under this
Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules
or other laws and the Agency's increased portion of maintenance costs will be
incorporated into and made a part of this Agreement.
(h) If a railway or highway improvement project necessitates rearrangement, relocation, or
alteration of the Crossing Signal Equipment, Crossing Signal House, or the crossing
surfaces in the track, the costs for such rearrangement, relocation or alteration will be the
responsibility of the party requesting such changes.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before
entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of
Public Projects will determine if flagging is required. If the construction work hereunder is contracted,
Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and
Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its
contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or
the costs or expenses for labor and material connected with the construction will at all reasonable times
be open to inspection and audit by the agents and authorized representatives of the parties hereto, as
well as the State of Texas and the Federal Highway Administration, for a period of one (1) year from the
date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party
13. In the event construction of the Project does not commence within 6 months of the Effective Date,
this Agreement will become null and void.
14. To the extent allowed by law neither termination nor expiration of this Agreement will release
either party from any liability or obligation under this Agreement whether of indemnity or otherwise,
resulting from any acts, omissions or events happening prior to the date of termination or expiration.
NOTHING IN THIS AGREEMENT SHALL EVER BE CONSTRUED SO AS TO REQUIRE AGENCY TO
Form 0118 Rev. 09/21/06
Hemphill Street Agreement (02/18/11) Page 8
CREATE A SINKING FUND OR TO ASSESS, LEVY AND COLLECT ANY TAX TO FUND ITS
OBLIGATIONS UNDER PARAGRAPH 14) OF THIS AGREEMENT.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a
manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited
by, or held to be invalid under applicable law, such provision will be ineffective solely to the extent of
such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is
the full and complete agreement between BNSF and Agency with respect to the subject matter herein
and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the
following addresses:
BNSF Railway Company:
Agency:
Hemphill Street Agreement (02/18/11) Page 9
BNSF's Manager Public Projects
5800 NORTH MAIN STREET
SAGINAW, TEXAS 76179
Project Manager
City of Fort Worth
Department of Engineering
1000 Throckmorton Street
Fort Worth, Texas 76102
Form 0118 Rev. 09/21/06
ATTEST:
Lfr
Marty Hendrix
City Secretary
'D,L\1
Contract Authorization
Date: 31 1\ N
AP
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
AGENCY
I3NSF RAILVVAY COMPANY
By:
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PrintedA ame: TIMOTH'(J. HUYA
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CITY FORT r� ��4C�oO Qb� �N
stkalaNgslicr
CIIYOF WORT Ste'
TS;FORM AND LEGALITY:
Doug Black
Assistant City Attorney
E �•
Date: ' [fir'
OFFICIAL RECORD
CITY 5 ►fETARY
Ft WORTH; TX
Hemphill Street Agreement (02/18/11)
Page 10
APPROVED:
ase»+4
Fernando Costa
Assistant City Manager
Date: 329////
APPROl1/j' L RECOMMENDED:
Greg Si
Interim D
Date: :177-7 Mad/
4
Transportation & Public Works
All invoices for the project will be sent to:
Homero Belton
Project Manager
City of Fort Worth
5001 James Avenue
Fort Worth, Texas 76115
Phone: 817-392-8061
Form 0118 Rev. 09/21/06
The BNSF Railway Company
TO
TO
1 y EASTWARPHPPR. I. =1 120' MIN. 1 1 WESTWARD MPHPR. ' I_I
INSTALL: LED'S
CONTROL DEVICES: CONSTANT WARNING
BOLO - IE
- OUT
SALVAGE: NONE
INSTRUMENT HOUSE
BELL
METER
• CROSSING CONTROLL CONNECTIONS
BIDIRECTIONAL CROSSING CONTROL
UNIDIRECTIONAL CROSSING CONTROL
A COUPLER OR TERMINATION
GUARD RAIL
E— ? ? ' —
E50'
E50' M1N.-›
HEMPHILL STREET
00T■ 020 486 J
Worning device placement:
Clearance to C.L. Track = Min. 12'
Edge of Road to C.L. Foundation:
Min. 4'3" with curb.
Min. 8'3" without curb.
Max. 12'
House Clearance: 25' Min. to Near Roil
30' Min. to Edge of Road
ALL LIGHTS TO BE LED
EXHIBIT A
RR SIGNAL SKETCH
.-J
1T
BNSF RAIL WAY CO.
LOCATION: FT. WORTH, TX
STREET: HEMPHILL STREET
L S: 7500
M.P. 343.52
DOT • 020 486 J
DIVISION: TEXAS
SUBDIVISION: FT. WORTH
KANSAS CITY
NO SCALE
DATE: 11/17/2009
FILE:7500343 52.dgn
DDF/DDF
7500343_52.dgn 11/23/2009 8:50:43 AM
1.01 General
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
• 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 Hemphill West Ouiet Zone Proiect — construction of center
medians, curbing, roadway paving. and modifications to roadway approaches to Lipscomb Street (DOT
020484V), Capps Street (DOT 020485C), Hemphill Street (DOT 020486J), Page Avenue (DOT 020487R),
and Jennings Avenue (DOT 020488X) located between railroad mileposts 343.23 and 343.72 on railroad's
Fort Worth Subdivision, Line Segment 7500 in Fort Worth, TX.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 3 of said Exhibit "C-1 '. Questions regarding procurement of the
Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519.
•
1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause
the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create
a hazard to Railway s Property, employees, and/or operations. Railway will have the right to stop construction
work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors)
performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii)
Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which
is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the
insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Contractor
fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue
until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction
of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway In
the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement,
Railway may immediately terminate the Temporary Construction License or the Easement. Any such work
stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop
the work is in addition to any other rights Railway may have including, but not limited to actions or suits for
damages or lost profits In the event that Railway desires to stop construction work on the Project, Railway
agrees to immediately notify the following individual in writing:
Homero Beltran
Project Manager
City of Fort Worth
5001 James Street
Fort Worth, Texas 76115
Homero.beltran@fortworth.org
• 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
Hemphill West QZ Project — Exhibit C 1
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 the City of Fort Worth (Homero Beltran) at 817-392-8061 and
Railway's Manager Public Projects, telephone number 817-352-2902 at least thirty (30) calendar days before
commencing any work on Railway Property. Contractors notification to Railway, must refer to Railroad's file
020484.
• 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part
of the excavations located within, whichever is greater twenty-five (25) feet of the nearest track or intersecting
a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from
centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish
the Railway five sets of working drawings showing details of construction affecting Railway Property and
tracks The working drawing must include the proposed method of installation and removal of falsework,
shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework
shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for
Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design,
and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for
Temporary Shoring" All submittal drawings and calculations must be stamped by a registered professional
engineer licensed to practice in the state the project is located. All calculations must take into consideration
railway surcharge loading and must be designed to meet American Railway Engineering and
Maintenance -of -Way Association (previously known as American Railway Engineering Association) Coopers
E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer
licensed to practice in the state the project is located. The Contractor must not begin work until notified by the
Railway that plans have been approved. The Contractor will be required to use lifting devices such as cranes
and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be
relieved of responsibility for results obtained by the implementation of said approved plans.
• 1.01.08 Subject to the movement of Railway s trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally the 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 General Manager at 817-224-7001 and provide
blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations
adjacent to or on Railway's Property.
Hemphill West QZ Project — Exhibit C 2
•
1.03.03 The Contractor must abide by the following temporary clearances during construction:
•
•
•
•
•
•
15' 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'-3 %" Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the City of Fort Worth and must not be undertaken until approved in writing by
the Railway, and until the City of Fort Worth has obtained any necessary authorization from the State
Regulatory Authority for the infringement No extra compensation will be allowed in the event the Contractor's
work is delayed pending Railway approval, and/or the State Regulatory Authority's approval.
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by City of Fort Worth for approval before work is undertaken and this
work must not be undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials
across the Railways tracks The temporary crossing must be gated and locked at all times when not required for
use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the
completion of the project, removed at the expense of the Contractor.
• 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railway's Resource Operations Center at 1(800) 832-5452 of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue
•
1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with 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
Hemphill West QZ Project — Exhibit C 3
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.
1.05 Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster Jack Blackwell at Office: 940-482-8433 or Cell:
918-704-4258 and email. iack.blackwellnabnsf.com a minimum of twenty-one (21) calendar days advance
notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e.,
bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must
give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required
and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet
measured horizontally from centerline of the neat est 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 the CONTRACTOR. The
estimated cost for one (1) flagger is approximately $800 00 for an eight (8) hour bask 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 TAF 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.
Hemphill West QZ Project — Exhibit C 4
• 1.05.03d The average train traffic on this route is 29 freight trains per 24-hour period at a timetable speed 55
MPH and 2 passenger trains at a timetable speed of 79 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 Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railway's representative m 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 Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear Hearing protection fall protection gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information
contained on the web site and the information in this uaragranh. the web site will govern.)
• 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25'-0 ' TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT
WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY
Hemphill West QZ Project — Exhibit C 5
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
RAILROAD'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 interne Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet 350 to 500 KV - 25 feet 500
to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
• 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact BNSF's Roadmaster (Jack Blackwell) at 940-482-8433 and BNSF's Signal -
Construction Supervisor (Dwayne Tiffin) at 817-740-7384. 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 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)
Hemphill West QZ Project — Exhibit C 6
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
Hemphill West QZ Project — Exhibit C 7
NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St 2. Date: Time:
County: 3. Temperature: 4. Weather
(if non -Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street:
8. Date of Birth:
and/or Age
City:
Gender:
(if available)
9. (a) Injury. (b) Body Part:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name 30. Date:
14. Dr. Address:
Street:
15. Hospital Name:
City:
St. Zip:
St: Zip:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX (817) 352-7169
RAILWAY MANAGER PUBLIC PROJECTS FAX (817) 352-2912
Hemphill West QZ Project —Exhibit C 8
Form Approved by VP -Law
EXHIBIT "C-l"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: 020484V, 020485C, 020486J, 020487R, 020488X — City of Fort Worth QZ projects
Agency Project: Hemphill West Quiet Zone Project
Gentlemen:
The undersigned (hereinafter called, the `Contractor"), has entered into a contract (the
"Contract") dated , 2011, with the City of Fort Worth for the performance of
certain work in connection with the following project: Hemphill West Ouiet Zone construction of center medians. curbing. roadway paving and modifications to roadway
approaches to Lipscomb Street (DOT 020484V) Capps Street (DOT 020485C). Hemphill
Street (DOT 020486J). Page Avenue (DOT 020487R). and Jennings Avenue (DOT
020488X) located between railroad mileposts 343.23 and 343 72 on railroad's Fort Worth
Subdivision, Line Segment 7500.. Performance of such work will necessarily require contractor
to enter BNSF RAILWAY COMPANY ("Railway') right of way and property ("Railway
Property"). The Contract provides that no work will be commenced within Railway Property
until the Contractor employed in connection with said work for the City of Fort Worth (i)
executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of
the coverage and limits specified in such Agreement and Section 3 herein If this Agreement is
executed by a party who is not the Owner, General Pal tner, President or Vice President of
Contractor, Contractor must furnish evidence to Railway certifying that the signatory is
empowered to execute this Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date of the
Contract, has agreed and does hereby agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all
judgments, awards claims, demands, and expenses (including attorneys' fees), for injury or death
to all persons, including Railway's and Contractor's officers and employees, and for loss and
damage to property belonging to any person, arising in any manner from Contractor s or any of
Contractor's subcontractors' acts or omissions or any work performed on or about Railway's
property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT
BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION,
Hemphill West QZ Project — Exhibit C-1
1
Form Approved by VP -Law
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
LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it
will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear
and defend any suits or actions of law or in equity brought against Railway on any claim or cause
of action arising or growing out of or in any manner connected with any liability assumed by
Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway
will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the
event of a suit being brought against Railway, Railway may forward summons and complaint or
other process in connection therewith to Contractor, and Contractor, at Railway's discretion,
must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from
and against all damages, judgments, decrees attorney's fees, costs, and expenses growing out of
or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion
of this Article shall be deemed to be inapplicable for any reason including without limitation as
a result of a decision of an applicable court, legislative enactment or regulatory order the parties
agree that this Article shall be mterpreted as requiring Contractor to indemnify Railroad to the
fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES
EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILROAD FOR
RAILROAD'S ACTS OF NEGLIGENCE.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the
project set forth herein, and (ii) full and complete payment to Railway of any and all sums or
other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this
Agreement the
Hemphill West QZ Project — Exhibit C-1
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Form Approved by VP -Law
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
1998 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 must also contain the following endorsements, which must be indicated on
the certificate of insurance:
• The definition of insured contract must 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 Railroad.
• Additional insured endorsement in favor of and acceptable to Railroad.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
It is agreed that any workers' compensation exclusion does not apply to Railroad
payments related to the Federal Employers Liability Act or a Railroad Wage
Continuation Program or similar programs and any payments made are deemed not to be
either payments made or obligations assumed under any Workers Compensation,
disability benefits, or unemployment compensation law or similar law.
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 must contain a combined single limit
of at least $1,000,000 per occurrence, and include coverage for, but not limited to the
following:
• Bodily injury and property damage
• Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railroad.
Hemphill West QZ Project — Exhibit C-1
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Form Approved by VP -Law
• Additional insured endorsement in favor or and acceptable to Railroad.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
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 Railroad.
D. Railroad Protective Liability insurance naming only the Railroad 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 10 93 and include the
following
• Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
10 93)
• 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 Railroad prior to performing any
work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's
Blanket Railroad Protective Liability Insurance Policy available to contractor.
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for
punitive damages and certificates of insurance must reflect that no exclusion exists
Contractor agrees to waive its right of recovery against Railroad for all claims and suits
against Railroad In addition its insurers, through the terms of the policy or policy endorsement,
waive their right of subrogation against Railroad for all claims and suits. The certificate of
insurance must reflect the waiver of subrogation endorsement. Contractor further waives its
right of recovery, and its insurers also waive their right of subrogation against Railroad for loss
of its owned or leased property or property under contractor's care, custody or control.
Hemphill West QZ Project — Exhibit C-1
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Form Approved by VP -Law
Contractor is not allowed to self -insure without the prior written consent of Railroad. If
granted by Railroad, any deductible, self -insured retention or other fmancial responsibility for
claims must be covered directly by contractor in lieu of insurance. Any and all Railroad
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 must furnish to Railroad an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments and referencing the contract
audit/folder number if available. The policy(ies) must contain a provision that obligates the
insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days
prior to any cancellation, non -renewal, substitution or material alteration This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a
certified duplicate original of any required policy must be furnished. Contractor should send the
certificate(s) to the following address:
Ebix BPO
PO Box 12010-BN
Hemet CA 92546 8010
Fax number: 951-652-2882
Email: bnsf a,ebix com
Any insurance policy must be written by a reputable insurance company acceptable to
Railroad 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.
Contractor represents that this Agreement has been thoroughly reviewed by contractor's
insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance
coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy
limits for coverages referenced above. Not more frequently than once every five years, Railroad
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 must
require that the subcontractor provide and maintain the insurance coverages set forth herein,
naming Railroad as an additional insured, and requiring that the subcontractor release, defend
and indemnify Railroad to the same extent and under the same terms and conditions as
contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require
Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not
comply with this section will not operate as a waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
contractor will not be deemed to release or diminish the liability of contractor including, without
Hemphill West QZ Project — Exhibit C-1
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Form Approved by VP -Law
limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by
Railroad will not be limited by the amount of the required insurance coverage.
For purposes of this section, Railroad means "Burlington Northern Santa Fe
Corporation" "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and
affiliates of each.
Section 4. EXHIBIT "C" 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.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and agamst 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 perfon Wane 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 tram 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.
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Form Approved by VP -Law
Contractor and its subcontractors must give Railway's Roadmaster Jack Blackwell
at Office: 940-482-8433 or Cell: 918-704-4258 and email: iack.blackwellnnbnsf.com 4 weeks
advance notice of the times and dates for proposed work windows. Railway and
Contractor will establish mutually agreeable work windows for the project. Railway has
the right at any time to revise or change the work windows due to train operations or
service obligations. Railway will not be responsible for any additional costs or expenses
resulting from a change in work windows. Additional costs or expenses resulting from a
change in work windows shall be accounted for in Contractor's expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor s work so as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original
copies of this letter, which, upon execution by Railway, will constitute an Agreement between
us
BNSF Railway
Contractor
By: By:
Printed Name. Name Timothy J. Huva
Manager Public Projects
Title:
Contact Person: Accepted and effective this day of
2011.
Address:
City:
State:
Fax:
Phone:
Email:
Zip:
Hemphill West QZ Project — Exhibit C-1
7
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
LOCATION BIRDS TO NORTII BIRDS
PURPOSE, JUSTIFICATION AND DESCRIPTION
REVISED TO NEW PRICING LIST 09/04/03
BNSF RAILWAY COMPANY
FIIPM ESTIMATE FOR
CITY OF FT WORTH TX
DETAILS OF ESTIMATE
EXHIBIT D
Railroad Signal Cost Estimate
PLAN ITEM : PSI020486J VERSION : 1
INSTALL CROSSING EQUII'MENT FOR QUIET ZONE AT HEMPFIILL STREE F IN FORT WORTII, TX. TEXAS DIV., FT WORT!' SUI3DIV., US 7500,
M.P. 343.52, DOT it 020486J
MONTHLY POWER UTILITY COST C ENTER: 61698
TIIE MATERIAL LIST BELOW REFLECTS TYPICAL REPRESENTIVE PACKAGES USED FOR ESTIMATING PURPOSE ONLY.
THEY CAN BE EXPECTED TO CHANGE AFTER THE ENGINEERING PROCESS, DETAILED AND ACCURATE MATERIAL LISTS WILL BE
FURNISIIED WHEN ENGINEERING IS COMPLETED.
CONTINUING CONTRACTS IIAVE BEEN ESTABLISHED FOR PORTIONS OF SIGNAL WORK ON TILE BNSF RAILROAD.
TILTS ESTIMATE GOOD FOR 90 DAYS. THEREAFTER TILE ESTIMATE IS SUBJECT TO CIIANGE IN COST FOR MATERIAL, LABOR, AND
OVERI IEADS
****************#************** SIGNAL WORK ONLY *****************
FILE CITY OF FORT WORTH, TX IS FUNDING TIIIS PROJECT APPROXIMATELY 80% AND TILE BNSF APPROXIMATELY 20%.
MAINTAIN PROPRIETARY CONFIDENTIALITY
DESCRIPTION
#*********
LABOR
*#*#***#*#
SIGNAL FIELD LABOR- CAP
PAYROLL ASSOCIATED COSTS
EQUIPMENT EXPENSES
DA LABOR OVERT -LEADS
INSURANCE EXPENSES
TOTAL LABOR COST
MATERIAL
*#*#*f######f
DOUBLE SIDED CROSSBUCKS
LED GATE LIGHTS
LED LIGIIT ADJUSTMENT
MISC MATERIAL
MISC WIRING
PREEMPT PACKAGE
RECORDER
OFFLINE TRANSPORTATION
OTHER
TOTAL MATERIAL COST
CONTRACT ENGR.
TOTAL OTHER ITEMS COST
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
GROSS PROJECT COST
LESS COST PAID BY BNSF
TOTAL BILLABLE COST
QUANTITY UIM
280.0 MFI
2.0 EA N
2.0 EA
16.0 EA N
1.0 LS N
1.0 LS N
1.0 EA N
1.0 EA N
LO EA N
COST TOTALS
7,297
5,025
2,273
7,841
1,148
23,584 23,584
1,150
794
3,8.56
7,848
2,500
4,500
5,203
322
26,173 26,173
8,000
8,000
8,000
57,757
0
578
58,335
11.668
46,667