R2010-033 - 2010-03-08 RESOLUTION NO. R2010 -33
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING A GRADE CROSSING CONSTRUCTION AND
MAINTENANCE AGREEMENT "AGREEMENT') WITH THE BURLINGTON
NORTHERN SANTA FE RAILROAD COMPANY (BNSF
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain Agreement associated with the Walnut Street
Improvements, a copy of which is attached hereto as Exhibit "A" and made a part hereof
for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute
and the City Secretary to attest an Agreement with BNSF.
PASSED, APPROVED and ADOPTED this the 8 day of March, A.D., 2010.
TO ;)11v EID
MAYOR
ATTEST:
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FIN /R�►' o
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APPROVED AS TO FORM:
DA RIN M. COKER
CITY ATTORNEY
Exhibit "A"
Resolution No. R2010 -33
GRADE CROSSING CONSTRUCTION AND MAINTENANCE AGREEMENT
LAW DEPARTMENT APPROVED
BNSF File No. 023227H
Walnut Street
U.S. D.O.T. No. 023227H
Railroad Line Segment 7501
Railroad Milepost 9.73
This Agreement "Agreement is executed to be effective as of this 18 day of February, 2010
"Effective Date by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and
the CITY OF PEARLAND, 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 Pearland, State of
Texas;
WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project
to improve the existing Walnut Street at -grade crossing, located at BNSF Line Segment 7501 and
Milepost 9.73, and designated by D.O.T. No. 023227H, by reconstructing and widening the roadway and
installing railroad crossing signals and activation equipment within the existing roadway easement across
the BNSF right -of -way as indicated on the Exhibit A, attached hereto and incorporated herein; and
WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefit from the
installation of advance warning signs, pavement marking stop bars or crossing signal equipment
(hereinafter collectively called, "Crossing Signal Equipment and
WHEREAS, the Agency also desires BNSF to extend the crossing surface at Walnut Street with new
concrete and rubber crossing surface panels;
WHEREAS, the Agency is paying for the acquisition and installation of crossing signal equipment and the
new crossing surface extensions at Walnut Street;
WHEREAS, the BNSF agrees to purchase and install, at AGENCY'S sole expense, the crossing signal
equipment and the new crossing surface extensions 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 SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the reconstruction and
widening of the Walnut Street by Agency and installation of crossing signals, activation equipment, and
new crossing surface extensions at U.S. D.O.T No. 023227H, (hereinafter referred to as the "Crossing
by BNSF, more particularly described on the Exhibit A, including, but not limited to, any and all changes
to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track
work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and
construction engineering and contract preparation.
Orange Street GCCM Agreement (2/18/10) 1 Form 0105 Rev. 06 /01/05
ARTICLE II BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF
agrees as follows:
1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF
hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set
forth in this Agreement, permission and license to enter upon and use the portion of BNSF's right -of -way
as is necessary to reconstruct, widen and thereafter maintain, the Crossing as described further on
Exhibit A, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may
obtain, permission or authority from BNSF, to do the following:
(a) Operate, maintain, renew and /or relocate any and all existing railroad track or tracks, wires,
pipelines and other facilities of like character upon, over or under the surface of said right -of-
way;
(b) Construct, operate, maintain, renew and /or relocate upon said right -of -way, without limitation,
such facilities as the BNSF may from time to time deem appropriate;
(c) Otherwise use or operate the right -of -way as BNSF may from time to time deem appropriate.
This right is given by BNSF without warranty of title of any kind, expressed or implied, and no covenant
on warranty of title shall be implied from the use of any word or words herein contained. In the event
Agency is evicted by anyone owning, or claiming title to or any interest in said right -of -way, BNSF will not
be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of
similar rights to others, 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. Any revised cost estimates greater than 10% of the original
cost estimate will be submitted to the Agency for approval. Revised cost estimates that are approved by
the Agency will become a part of this Agreement. Revised cost estimates that are Tess than 10% of the
original cost estimate 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 necessary for the safety of BNSF's property and the
operation of its trains during construction of the Project as 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 two 8 -ft concrete crossing panels on the south end of the existing concrete
crossing surfaces for the two tracks complete with new rails, ties, ballast, fasteners, along
with appropriate surface to carry the improved roadway and sidewalks.
(f) Installation of Crossing Signal Equipment and Crossing Signal Control House as shown on
Exhibit A
Walnut Street GCCM Agreement (2/18/10) 2 Form 0105 Rev. 06/01/05
(g) Provide an interface box, with contact terminals, mounted on side of Crossing Signal Control
House. Agency has requested BNSF to provide a simultaneous preemption relay for the
existing traffic signal interface.
(h) 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
work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse
BNSF for all such emergency work.
5. BNSF may charge Agency for insurance expenses, including self- insurance expenses, when
such expenses cover the cost of Employer's Liability (including, without limitation, liability under the
Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be
considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for
injury, loss or death to BNSF's employees, if any.
6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the
costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for
completed force account work within thirty (30) days of the date of the invoice for such work. Upon
completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor
and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article
IV, Section 7 herein, Agency must pay the final invoice in accordance with the Texas Prompt Payment
Act.
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 Reconstruction of Walnut Street;
Walnut Street GCCM Agreement (2/18/10) 3 Form 0105 Rev. 06/01/05
(b) Installation of a pavement marking stop bar in accordance with the Manual on Uniform
Traffic Control Devices (hereinafter called, "MUTCD
(c) Installation of advance warning signs in accordance with the MUTCD
(d) Perform all necessary grading and paving, including backfill of excavations and
restoration of disturbed vegetation on BNSF's right -of -way;
(e) Provide suitable drainage, both temporary and permanent;
(f) Provide all barricades, lights, flagmen or traffic control devices necessary for preventing
vehicular traffic from using a portion of the Crossing, during the installation of the
Concrete Crossing Surfaces, and also during the installation of the Crossing Signal
Equipment.
(g) Construct asphalt/concrete roadway surface on approaches to each track. Roadway
surface will match elevation of the Main and Siding Track crossing surfaces and remain
level to a point at least thirty (30) feet from nearest rail. Any concrete headers will be
constructed no closer than 6' -0" from centerline of each track to provide for a minimum of
12' -0" opening for track and railroad crossing surface;
(h) Construct raised center medians with 6 -inch minimum height non traversable curbs.
Raised medians to be installed 10' -0" from centerline of closest track and extend a
minimum distance of 60 -ft from the "gate- down" position of the Crossing Signal on both
roadway approaches to the Crossing.
(i) Provide and place twelve (12) inch wide section of asphalt between roadway concrete
headers and sidewalks and the new concrete crossing surfaces, including that portion of
Walnut Street located between the Main Track and Siding Track.
(j) Job site cleanup including removal of all construction materials, concrete debris, surplus
soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the
satisfaction of BNSF;
(k) Remove the existing cables from the contact terminals in the existing interface box on the
existing Railroad Crossing Signal House. Agency is requesting BNSF to re -use the
existing simultaneous preemption circuitry. No advanced preemption will be used on this
project.
(1) Connect the existing highway traffic control signals to the contact terminals in the new
interface box on the new Railroad Crossing Signal House including all necessary cable
and conduit.
6. The Agency will approve the location of the signals and signal bungalow prior to the installation
by BNSF.
7. The Agency must have advanced railroad crossing signs and standard pavement markings in
place at the crossing shown on Exhibit A (if the same are required by the MUTCD) prior to the
acceptance of this Project by the Agency.
8. The Agency must give BNSF's Manager Public Projects written notice to proceed "Notice to
Proceed with the railroad portion of the work after receipt of necessary funds 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.
Walnut Street GCCM Agreement (2/18/10) 4 Form 0105 Rev. 06/01/05
10. In order to prevent damage to BNSF trains and property, 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.
11. 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.
(c) In addition to the liability terms contained elsewhere in this Agreement, the contractor
hereby indemnifies, defends and holds harmless BNSF for, from and against all cost,
liability, and expense whatsoever (including, without limitation, attorney's fees and
court costs and expenses) arising out of or in any way contributed to by any act or
omission of Contractor, its subcontractors, agents and /or employees that cause or in
any way or degree contribute to (1) any damage to or destruction of any Lines by
Contractor, and /or its subcontractors, agents and /or employees, on BNSF's property
or within BNSF's right -of -way, (2) any injury to or death of any person employed by or
on behalf of any telecommunications company, and /or its contractor, agents and /or
employees, on BNSF's property or within BNSF's right -of -way, and /or (3) any claim
or cause of action for alleged loss of profits or revenue by, or Toss 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.
(d) 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.
12. Agency must incorporate in each prime contract for construction of the Project, or the
specifications therefor (i) the provisions set forth in Article III, Sections 9, 10, 11, and 13; (ii) the provisions
set forth in Article IV, Sections 3, 4, 8 and 9; and (iii) the provisions set forth in Exhibit C and Exhibit C -I,
attached hereto and by reference made a part hereof.
Walnut Street GCCM Agreement (2/18/10) 5 Form 0105 Rev. 06 /01/05
13. 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) No work will be commenced within BNSF's right -of -way until each Contractor for the
Agency has a background investigation performed on all of its employees, subcontractors
and agents who will be performing any services on railroad property under this
Agreement.
The background screening shall at a minimum meet the criteria defined by the e-
RAILSAFE program outlined at www.e railsafe.com in addition to any other applicable
regulatory requirements. The e- RAILSAFE program uses rail industry background
screening standards. Contractor shall obtain consent from all employees screened in
compliance with the e- RAILSAFE program criteria to release completed background
information to BNSF. Contractor shall be subject to periodic audit to ensure compliance.
Contractor shall permit any of its employees, subcontractors or agents to perform
services on property hereunder who are not approved under e- RAILSAFE program
standards. Railway shall have the right to deny entry onto its premises to any of the
Contractor's employees, subcontractors or agents who do not display the authorized
identification badge issued by a background screening service meeting the standards set
forth for the e- RAILSAFE program or who pose a threat, in the Railway's reasonable
opinion, to the safety or security of Railway's operations. Contractors shall ensure its
employees, subcontractors and agents are United States citizens or legally working in
this country under a work VISA.
(e) 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.
(f) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's
Roadmaster 90 days advance notice of the proposed times and dates for work windows.
BNSF and Agency's contractor will establish mutually agreeable work windows for the
Project. BNSF has the right at any time to revise or change the work windows, due to
train operations or service obligations. BNSF will not be responsible for any additional
costs and expenses resulting from a change in work windows. Additional costs and
expenses resulting from a change in work windows shall be accounted for in the
contractor's expenses for the Project.
14. 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
Walnut Street GCCM Agreement (2/18/10) 6 Form 0105 Rev. 06 /01/05
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.
15. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES,
INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
(INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE,
(II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE
OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)
ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI)
AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT -OF -WAY, INCLUDING,
WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII)
AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR
CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY
AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.
ARTICLE IV JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner
and each portion must be promptly commenced by the party obligated hereunder to perform the same
and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any
changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior
to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and
specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule
for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in
accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies
will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability.
Regardless of the 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
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.
Walnut Street GCCM Agreement (2/18/10) 7 Form 0105 Rev. 06 /01/05
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; or (iii) the insurance described in the attached Exhibit C -1 is
canceled during the course of the Project. 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. 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:
Jennifer Lee
Project Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
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 Jennifer Lee
(Project Manager) for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, "out of funds made
available to it for the construction of the Project reimburse BNSF the actual costs of signal work and
crossing surface work (Exhibit D) performed by BNSF under this Agreement. Railroad Flagging costs are
to be paid by Agency's contractor as specified in the attached Exhibits C and C -1 documents.
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 023227H and D.O.T. Crossing No. 023227H 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 Walnut Street roadway, including the portion of roadway located
between the tracks.
(b) Agency will maintain the elevation of the Walnut Street roadway approaches to match the
elevation on the railroad track crossing surfaces and to be no more than three (3) inches
above or six (6) inches below top-of -rail elevation at a distance measured thirty (30) feet
from the nearest rail.
Walnut Street GCCM Agreement (2/18/10) 8 Form 0105 Rev. 06 /01/05
(c) 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.
(d) Agency will do nothing and permit nothing to be done in the maintenance of the Walnut
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.
(g) BNSF will, at its sole cost and expense, operate and maintain the Crossing Signal
Equipment, Crossing Signal Control House, and the new crossing surfaces, from end -of-
tie to end -of -tie, in proper condition.
(h) 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.
(1) If a railway or highway improvement project necessitates rearrangement, relocation, or
alteration of the Crossing Signal Equipment, Crossing Signal House, or the new crossing
surface installed hereunder, the costs for such rearrangement, relocation or alteration will
be the responsibility of the party requesting such changes.
(j) If any of the Crossing Signal Equipment is partially or wholly destroyed, then such repair
and /or replacement costs must be distributed among the parties as follows:
a) In the event the BNSF's sole negligence destroys or damages the
Crossing Signal Equipment and /or the Crossing Signal House, BNSF
must, at its sole cost and expense, replace or repair such Crossing
Signal Equipment and /or Crossing Signal House.
b) In the event the Crossing Signal Equipment is damaged or destroyed by
any other cause, Agency must reimburse BNSF for the costs to replace
or repair such Crossing Signal Equipment and /or Crossing Signal House.
(k) If the Crossing Signal Equipment and /or Crossing Signal House installed hereunder
cannot, through age, be maintained, or by virtue of its obsolescence, requires
replacement, the cost of installation of the new crossing signal equipment and /or new
crossing signal house will be paid by the Agency.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before
entering BNSF's right -of -way for maintenance purposes. 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
Walnut Street GCCM Agreement (2/18/10) 9 Form 0105 Rev. 06 /01/05
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party.
13. In the event construction of the Project does not commence within one (1) year of the Effective
Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or
obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a
manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited
by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of
such prohibition or invalidity and the remainder of the provision will be enforceable.
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: BNSF's Manager Public Projects
5800 North Main Street
Saginaw, Texas 76179
Agency: CITY MANAGER
City of Pearland
City Hall
3519 Liberty Drive
Pearland, Texas 77581
Walnut Street GCCM Agreement (2/18/10) 10 Form 0105 Rev. 06 /01/05
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.
BNSF RAILWAY COMPANY
By:
Printed Name: Timothy J.Huya
Title: Manager Public Projetcs
/1/4)
AGENCY
0 J' CITY OF PEARLAND, TEXAS
A," By: 1241,
Printed Name:" Eisen
Title: City Manager
WITNESS:
Walnut Street GCCM Agreement (2/18/10) 11 Form 0105 Rev. 06/01/05
Exhibit A
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O
g'^ IOIL $TA. 31,51.23. 35.25' L PkOP. PVAI'T. -MA R,R. CROSSING L E %TEND 36' E %TEND RCP 20 L.FRCP 20 n 11 STA 31 +25.4 5.5' LT EXIST.
M'
ARM \(TA BE REMOVED
END PROP PIN' ATCH RR. CROSSING ANA k A
PROP. NORTH R.O.W. 5' SIDEWALK 6
1
S.
1 s. PERMANENT REFERENCE POINT
PROP. RAILROAD
PRro. 12 FORCE CROSSING ARM
PPO P. CON. PW'i. .e ,,,a
PROP. RAILROAD
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CR4•SING AR
F
75'
15' 6' NON- NWNTABIE CURB O..
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T.B M. ''D' 5 PROP. 16' *MERLIN( P... WIIC vw'i. A STA. 31 +42.68.
END PROP Ma RAILROAD A'M MATCH R.& CROSSING 5
(TO 8E REMOVED REPIA• EXIST. RAILROAD CROSSING
a ARM CONTROL 0%
(TO BE REM k REP C �D) r,_
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1
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1 PROP. RAILROAD 1 a
PROP 12 WATERLINE CROSSING ARM WALNUV\\ STREET CITY OF PEAllAND
PROP. EXTENDED WALNUT STREET IMPROVEMENT
CROSSING BOARDS W. NRIMSEMerm I eo E&eT
(8' ADDED) BNBB Ml1i0AD dgB8R10
PROP. RAILROAD C' 4SSING MODIFICATIONS
V ARM CONTROL Sax r
EXTEND 30' II SCL
RCP 40 LE 1366=12,66
Exhibit A
sr u41a 7716' LT. 1 1
MINCLIE 1.0.1E0 IN 010110 WPM OF MEWL,
A 51.23 8 LI p MA MST' FAeSA 32+7191. 8197 LL R 7
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B"ST
Exhibit A I
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l� lit, at WALNUT STREET 1\
SWOP 1. CONSIRUCTIN A
MAP POSSIEGS. PUMA
WNW. AM POINAP0 PPAEL
MAY1TU
1 MOOG 02011146 51440 S1WG 100060001 P� rw
(0142 -101 ONLY ■ESIROUXO)
MAY I PETYMENT 5031* TM
°WMQ MMM R R
NOV MARE RP NSW 11100,1,7,7
I SOT I 0FYPOVRY A PMAIT PH64 157FP 2 PHASE I SYFP 1 PHASE I SIFP 1 0 MO RR MO
IN PROEC1 MOTS IMO ADVANCE MOM. MSTAIL ML REM. 1 00 -ar O CRS. •mar 1. CONSTRUCT CONCRETE PAO0ESOWN R OM SOWN SO L APT. WORMY S OS AT STATE I@Y. 5 AIM
I. T OILY AI4161 TURN COW 406 M0 SIIEEM FROM 51A 11.16 m SI, IMMO MEET. (SEE @N51G OWL ORA4wf0)
1 0001RUCT RNPORMIY OEIOK 44MM4 POUM PA \OpMT YARRINOS (4£ TWIG OOMIROL PUN. A.m
S
ON RC 51+0 1.7 40 Cr NMNUT SMUT FROM STA AY I, SIEE6 I N0 1 0 2 f
13.13 m 1 5 TRAFFIC NU Y PROEM m ME 41 1FIFOMmY
S1A 45 MM FROM S1A SS m 640OOU WE 3M 0 RMNUI TEEr N@ DE USE 1 CIMS@UCF 3W0fAY PCRTOM Cr 0 ASM LT RMUWO CAOSSWG SIGNAL XI ODRR MEOAY m N.EN TENN. FOR
SIP 42.0. 0 COWS 4140/10 DRUMS (SEE •012701@ 7477.T. FROM fA %.m TO6 PROM
STA. 1 410 m SIA. 11.M /00 eroOMC.
9EE AMr6w OY -Mr N516W10 1500 m siA At K3. 3 RE-INSTALL ALL YOSNED OE -MAY SANS 3 YAM7Aw no @MTIC kW RMNUT MOT. Y M TOM S M N NORMS I O SONS.
TEENS P I. CN x 71 N A
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STATE IM' 31 m SSTA 35.+50 .KR MOW rP01 s1A n.M WALNUT 8TREET
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CONS AR O. A P OA0EN6 ON 5W@ 5+0551+1)4
S TRAFFIC f,01111pL PLAN
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00 1. RANROA OVERVIEW
MOM 121.007 RAILROAD PRA8 W
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Exhibit A
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WALNUT STREET
4, rr
RMMM'MAWAAMNAr
LEEK WOW/ MO 969601M 592.4
akumumk
PHASE I1 0RAAEL1AY UOLIE1NO
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(GE -WAY Gar wE51Baw)
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1 OW TO .S119.10109
PHASE 11 STEP 1 PHASE 11. 5I1P Z Plug" 11 STEP I
o Ks 200 AO
1. RAILROAD R IEU01E NORINEAST MMNM11 1. Cw51M1Cr CONCRETE PAWNER, w NORM SAC 1 M5w1 P1RE641EMT 1RAR11 SIGNALS AT RMNUI
RAILROAD 0VSAN4 STORK OF NAM STREET LRCM STA 11.16 TO STA MEET MO STATE HIM. 55. (SEE TROOTIC SIGNAL E. N Ter
a.M. MAIM).
2 COMEX MORN SUERS NO READS MOSS TO
NORM SEE OR WAatALT STREET. 1. CM INOT NORTHERLY PORTION OF A.4NALT 2 INSTALL ML PER A., SMPMG NO STREET
AN1411115 PION STA TA. r0 STA 11•16. MO 4w0
NUTS w 1AMM SEE OR PROM STA 354.90 TO RA .1.6] n
A WALNUT STREET. S 1 iN91 MADE SM NA MmRGIGaw RNUT eromua rwc
1 CONSTRUCT AEL OR0ERAR ON NORM SITE OF SHEET RM.T -6 -TEAL NE OMER DISTRIBUTED CHARLES W. WERE
A CD SIRUUCOEII SKULK S E a WALNUT STREET. 5111 ANTOMa r 0A�9OICTON. 11 G �AME SAS o,r[ +wlu• m
ROTATOR. ARO MAID BL10. A. RARA000 TO MSTNL KR M5I010 CROSSING
S COMETE ALL FORCE RAM C01S1MUCOw ON 901. M LORI AS1 MADIM16. SWMNES1
M 5EE Of MAUL STREET NE 10 -010 A. CONSIRAT NORM I OR REMAN WOOS AMT 0.1AORMIT, MO CENTER NEMAN w NEST 40E
U11 STATION. 1E5MOw0 LEER RIM WE AT STATE CONY. 16. 10 INSTALL PERNNEMI SIGNAL IN
CNTER MEDIAN w EAST 54E N IELESSARY. 414
OXFAM ALL ales FOR EAST MO N61B01NO IS 10 4T IU FOUNDATIONS FOATS IN MT CITY /5! PEARL AND
M
LNES WI1FN IMAM w OE EAST 40E THE PINK OF
P 5DAM0 SET AT 15 FORA 110 00401 C Or WALNUT STREET
R. WAIL 100OMAL12 RAPS 6.r STREET TRAM ME THE TEMPORARY EOGEAIw SO AT
INEI4000n NO STATE Nn. .n (4t TRAFFIC TE PRUY CwM1E w 1E MO. AS ROADWAY DAAlIMOE C WARY 1R
VIM PENS FOR LAMA, AT STATE MINT 55} rcIBMRE0 Br ERSE SOX TEAM. AUSTIN STREET TO ORM PILEVND
ON NORM SEE O RN1RIr 6. RUCK ALL MOWRY SIGNING 6.b DETOUR PLAN
1. STREET FROM 5M1 SMUT R STATE CONY. STRING PFIAU1O OVERVIEW
PIUBE E
WI WAIMH MEET TO 1N0 -WAY ROWS w
I RE -MADE NGIM SEEM ROW -O" -NAY R RELAY OwSIRULIED PAN1ENT (ML ANTS).
CRAM TO PROPOSED CMS NOAH DlipES AS /A
APRORR1 ATE .INrw a Mmm.r. Ne
MX Clit 9 RA 092.91.691
4,w4 1 Ram Ar11 «uma.
Exhibit A
a=l-:V e
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(allPlf DM,
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ROAD
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F
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m__ APm i-- -_?^a` .1 �aoo o„R.R�
g sjfilli ki, -w ,/__',,,:://,-,ix 1 IXIM I CITY OF PE
WALNUT STREET
90+0 Y WALNUT s XdL• SLIM r m ET m 'RAND Mo
9qm,
Y.Y MEAD R u 3 wool MET
a PALMY SLR 1RIIFFIO CONTROL PLAN
9 MUSE I
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11/11. 11.7-w 311044 -L:4.
Exhibit A
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PROP C. vw'r. MP) 4 m ss iil a WALNUT STREET L(� OW) SOU
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WALNUT STREET
WALNUT STREET ROADW8Y 4 DRMI BE aFROYPlBIR1
AUSTIN arRE r To MVO awavwo
74-.! 9 a rm I WW1 SIAM y 2.10. d {•,EIYI SARI TRAFFIC C PUN
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a/1416 atant pF
00,10-104=013 042-007-14.211:4044-14..
The Burlington Northern Santa Fe Railway Company
TO NEW SOUTH YARD
Exhibit i b i t A TO ALV[N
EASTWARD AMPH. 5728' 4G WESTWARS Ate„. 5728' I
-0 To Ti 0 2A2,_, Q o- TJ Q 1 0. y� 16 TJ ~O co___, D T
PI R• R fhR O E[ EC v O 1 O FLl�IR B EC F.L EG O
sal
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R EC r1 O 1� 1 1�1 O }al O ECf C
0---I j 1 j 1 I 4 I ir I 1---o MAGNOLIA ST.
.l J� MP 8.70
ORANGE ST. BROADWAY ST. WALNUT ST.
MP 10.38 MP 9.72 MP 9.73
120' MIN. 1
I IG 70'
50' MIN. -,1 -50' MIN.
INSTALL: CANTILEVER GATE COMBO, GATES FLASHERS 1
O. i
CONTROL DEVICES: CONSTANT WARNING J i O It
I 1 1
BOLD IN I 1 1 `Z N
I 1
MO our I 1 1
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SALVAGE: N O N E_ 1 I
I I I
m I ---AAAO°°���QQQ 1
I ^I i Y 0 EXHIBIT A RR Signal Sketch)
INSTRUMENT HOUSE u I I sa l I�
BELL BNSF RAILWAY CO.
WALNUT STREET PEARLANO. TX.
t}W METER DOT 023 227 N WALNUT STREET
CROSSING CONTROLL CONNECTIONS LS: 7501
Worning device placement:
O BIDIRECTIONAL CROSSING CONTROL Clearance to C.L. Track Min. 12' M.P. 9.73
r> UNIDIRECTIONAL CROSSING CONTROL Edge of Road to C.L. Foundotion: DOT 023 227 H
Min. 5'3" with curb. DIVISION GULF
Min. 9'3" without curb. SUBDIVISION:MYKAWA
pi COUPLER OR TERMINATION KANSAS CITY
Max. 12'
House Clearance: 25' Min. to Near Rail NO SCALE
GUARD RAIL 30' Min. to Edge of Rood DATE: 02/02/09
L ALL LIGHTS TO BE LED FILE: 7501009 73.dgn
CMB
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as
"Railway" where work is over or under on or adjacent to Railway property and/or right -of -way, hereafter
referred to as "Railway Property", during the reconstruction of Walnut Street (DOT No. 02322710 at
railroad milepost 9.73 in Pearland, Texas.
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:
Jennifer Lee
Project Manager
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including
but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and
regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all
fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
Walnut Street Exhibit C (11/12/09) 1
1.01.06 The Contractor must notify the City of Pealand at (281) 652 -1760 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 023227H.
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 281- 350 -7781 and provide
blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations
adjacent to or on Railway's Property.
1.03.03 The Contractor must abide by the following temporary clearances during construction:
15' Horizontally from centerline of nearest track
Walnut Street Exhibit C (11/12/09) 2
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 'h" 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 Pearland and must not be undertaken until approved in writing by
the Railway, and until the City of Pearland 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 Pearland 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
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
Walnut Street Exhibit C (11/12/09) 3
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.
Contractor shall have a background investigation performed on all of its employees, subcontractors and agents
who will be performing any services on railroad property under this Agreement.
The background screening shall at a minimum meet the criteria defined by the e- RAILSAFE program outlined
at http: /www.e- railsafe.com in addition to any other applicable regulatory requirements. The e- RAILSAFE
program uses rail industry background screening standards.
Contractor shall obtain consent from all employees screened in compliance with the e- RAILSAFE program
criteria to release completed background information to BNSF. Contractor shall be subject to periodic audit to
ensure compliance.
Contractor shall not permit any of its employees, subcontractors or agents to perform services on property
hereunder who are not approved under e- RAILSAFE program standards. Railroad shall have the right to deny
entry onto its premises to any of Contractor's employees, subcontractors or agents who do not display the
authorized identification badge issued by a background screening service meeting the standards set forth for the
e- RAILSAFE program or who pose a threat, in Railroad's reasonable opinion, to the safety or security of
Railroad's operations.
Contractors shall ensure its employees, subcontractors and agents are United States citizens or legally working
in this country under a work VISA.
1.05 Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster Patrick McAleese at 713 -847 -3176 (office or
817 785 -0607 (cell or e-mail: uatrick.mcaleesec bnsf.com a minimum of thirty (30) calendar days advance
notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e.,
bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must
give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to
abolish the position pursuant to union requirements.
1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required
and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet
measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned
beyond 25 -feet from the track centerline could foul the track in the event of tip over or other catastrophic
occurrence, but not limited thereto for the following conditions:
1.05.02a When, upon inspection by Railway's Representative, other conditions warrant.
1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's
representative, track or other Railway facilities may be subject to movement or settlement.
1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities
either due to persons, material, equipment or blasting in the vicinity.
1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
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.
Walnut Street Exhibit C (11/12/09) 4
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 basic day with time and one
half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation
allowance, paid holidays, Railway and unemployment insurance, public liability and property damage
insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision
and other costs incidental to performing flagging services. Negotiations for Railway labor or collective
bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or
estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY
THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF
FLAGGING PURSUANT TO THIS PARAGRAPH.
1.05.03d The average train traffic on this route is 34 freight trains per 24 -hour period at a timetable speed 55
MPH and no passenger trains.
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, 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 in charge of the project. Any vehicle or machine which may come
in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be
reported immediately to the Railway representative in charge of the project and to the Railway's Resource
Operations Center at 1(800) 832 -5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at the job site.
1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly
weapons in their possession while working on Railway's Property.
Walnut Street Exhibit C (11/12/09) 5
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 paraeraph. the web site will eovern.)
1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25' -0" TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT
WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY
CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW
OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE
CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE
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 internet Engineering Contractor Safety Orientation program for more detailed
specifications)
1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below 15 feet; 200 to 350 KV 20 feet; 350 to 500 KV 25 feet; 500
to 750 KV 35 feet; and 750 to 1000 KV 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact BNSF's Roadmaster Patrick McAleese at 713- 847 -3176 and BNSF's Sienal-
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
Walnut Street Exhibit C (11/12/09) 6
depth, must be shored where there is any danger to tracks, structures or personnel.
1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or
protected when not being worked on. When leaving work site areas at night and over weekends, the areas must
be secured and left in a condition that will ensure that Railway employees and other personnel who may be
working or passing through the area are protected from all hazards. All excavations must be back filled as soon
as possible.
1.08 Hazardous Waste, Substances and Material Reporting
1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious
material, including but not limited to any non containerized commodity or material, on or adjacent to Railway's
Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832 -5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the project. The Non Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at
1(817) 352 -7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
Walnut Street Exhibit C (11/12/09) 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: City: St. Zip:
8. Date of Birth: and/or Age 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: City: St: Zip:
15. Hospital Name:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352 -7595
AND COPY TO
RAILWAY ROADMASTER FAX 281 331 -2070
RAILWAY MANAGER PUBLIC PROJECTS FAX (817) 352 -2912
Walnut Street Exhibit C (11/12/09) 8
LAW DEPARTMENT APPROVED
EXHIBIT "C 1"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: 023227H
Agency Project: Walnut Street (DOT No. 0232271I) reconstruct roadway annroaches and construct new
center medians
Gentlemen:
The undersigned (hereinafter called, the "Contractor has entered into a contract (the "Contract dated
20� with the City of Pearland for the performance of certain work in connection with the
following project: Walnut Street reconstruct roadway =mooches and construct new center medians.
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 Pearland (i) executes
and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits
specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner,
General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying
that the signatory is empowered to execute this Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the 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, 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.
Walnut Street C -1 (11/12/09) 1 (Revised 06 -2008, Exhibit C -1)
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle
all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or
in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner
connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to
be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being
brought against Railway, Railway may forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify,
and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses
growing out of or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall
be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable
court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring
Contractor to indemnify 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
following insurance coverage:
A. Commercial General Liability insurance. This insurance must 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. 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:
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.
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.
Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
Walnut Street C -1 (11/12/09) 2 (Revised 06 -2008, Exhibit C -1)
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
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.
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
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.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
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
Walnut Street C -1 (11/12/09) 3 (Revised 06 -2008, Exhibit C -1)
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- 766 -2299
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 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 against all damages arising from any unscheduled delay to a
freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
Walnut Street C -1 (11/12/09) 4 (Revised 06 -2008, Exhibit C -1)
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as
determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same
time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentive /penalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour
per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE
CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN
DELAY PURSUANT TO THIS AGREEMENT.
Contractor and its subcontractors must give Railway's Roadmaster (Patrick McAleese) 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.
(Contractor) BNSF Railway Company
By: By:
Printed Name: Name:
Manager Public Projects
Title:
Contact Person: Accepted and effective this day of 20
Address:
City: State: Zip:
Fax:
Phone:
E -mail:
Walnut Street C -1 (11/12/09) 5 (Revised 06 -2008, Exhibit C -1)
MAINTAIN PROPRIETARY CONFIDENTIALITY
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
EXHIBIT RR D I FHPM ESTIMATE FOR
Cross Cost Estimate CITY OF PEARLAND
LOCATION SOUTH PEARLAND DETAILS OF ESTIMATE PLAN ITEM PTR023227H -2 VERSION 1
Purpose, Justification Description: City of Pearland road widening project. BNSF to extend existing MAIN and SIDING Track
crossing surfaces 8-ft on the south end of each crossing at Walnut Street (DOT No. 023227H), Gulf Division, LS 7501, MP 9.73.
City of Pearland is billable for 100% of project cost.
DESCRIPTION QUANTITY U/M COST TOTAL
LABOR
PLACE PUBLIC CROSSING CAP 192.0 MH 3,990
PAYROLL ASSOCIATED COSTS 3,231
EQUIPMENT EXPENSES 2,114
DA LABOR OVERHEADS 3,990
INSURANCE EXPENSES 638
TOTAL LABOR COST 13,963 13,963
MATERIAL
TIE, TRK,10',PRE- PLATED,PANDROL,5 1/2 ",ROUND HOLE 20.0 EA 1,866
CONC 136 08 -SEC WITH FILLER FOR WOOD 16.0 FT 2 ,629
MATERIAL HANDLING 224
ONLINE TRANSPORTATION 40
OFFLINE TRANSPORTATION 33
TOTAL MATERIAL COST 4,792 4,792
OTHER
LEASED EQUIPMENT 1.0 LS 4,000
TOTAL OTHER ITEMS COST 4,000 4,000
PROJECT SUBTOTAL 22,755
CONTINGENCIES 2,275
BILL PREPARATION FEE 126
GROSS PROJECT COST 25,156
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 25,156
EXHIBIT D RR Signal Cost Estimate
MAINTAIN PROPRIETARY CONFIDENTIALITY
Revised 9/17/09 BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
to re -use existing simultaneous preemption CITY OF PEARLAND
LOCATION SOUTH PEARLAND TO SOUTH MYKAWA DETAILS OF ESTIMATE PLAN ITEM 000155711 VERSION 1
PURPOSE, JUSTIFICATION AND DESCRIPTION
PROJECT TO RE -USE THE EXISTING SIMULTANEOUS PREEMPTION WITH THE TRAFFIC SIGNALS AT SH 35,
AT THE REQUEST OF THE CITY. ADVANCED PREEMPTION WILL NOT BE INSTALLED WITH THIS PROJECT.
2009 PX INSTALL CONSTANT WARNING AND (1) CANTILEVER/GATE COMBO WITH (3) GATES AND FLASHERS WITH AT WALNUT STREET
IN PEARLAND, TX. GULF DIV., MYKAWA SUBDIV., L/S 7501, M.P. 9.73, DOT 023227H
MONTHLY POWER UTILITY COST CENTER
THE 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
FURNISHED WHEN ENGINEERING IS COMPLETED.
CONTINUING CONTRACTS HAVE BEEN ESTABLISHED FOR PORTIONS OF SIGNAL WORK ON THE BNSF RAILROAD.
THIS ESTIMATE GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR MATERIAL, LABOR, AND
OVERHEADS.
SIGNAL WORK ONLY
THE CITY OF PEARLAND IS FUNDING THIS PROJECT 80
BNSF IS FUNDING 20
MAINTAIN PROPRIETARY CONFIDENTIALITY
DESCRIPTION QUANTITY U/M COST TOTAL
LABOR
SIGNAL FIELD LABOR CAP 1232.0 MH 32,106
SIGNAL SHOP LABOR CAP 40.0 MH 1,052
PAYROLL ASSOCIATED COSTS 22,835
EQUIPMENT EXPENSES 10,328
DA LABOR OVERHEADS 35,631
INSURANCE EXPENSES 5,218
TOTAL LABOR COST 107,170 107,170
MATERIAL
BATTERY 1.0 EA N 9,597
BROADWAY CROSSING 1.0 LS N 4,050
CABLE 1.0 EA N 2,233
CANTILEVER/GATE COMBO 1.0 EA N 29,025
CHARGER 1.0 EA N 1,326
CONDUIT, STEEL 3 SCH 80 30.0 FT N 366
CONSTANT WARNING 1.0 EA N 24,367
DUMMY LOADS 4.0 LS N 1,684
FIELD MATERIAL 1.0 LS N 8,120
FOUNDATION, STEEL 4.0 EA N 2,200
GATE KEEPER 4.0 EA N 7,100
GATE MECH 4.0 EA N 28,972
LAMP RESISTOR 1.0 EA N 761
LED LIGHT ADJUSTMENT 12.0 EA N 2,688
LED LIGHT GATE KIT 2.0 EA N 732
LIGHT OUT DETECTOR 1.0 EA N 706
RECORDER 1.0 EA N 3,520
SHUNT, NBS 8.0 EA N 6,784
TELLULAR DEVICE 1.0 EA N 2 ,500
TJC 4.0 LS N 4,304
OFFLINE TRANSPORTATION 1,402
TOTAL MATERIAL COST 142,437 142,437
OTHER
CONCRETE/FOUNDATION CANT. 1.0 LS N 2,000
CONTRACT BORING/POLY PIPE 1.0 EA N 10,000
CONTRACT ENGR. 1.0 EA N 8,000
CONTRACT FLAGGING /SIGNS 1.0 EA N 3,000
FILL DIRT 10.0 CY N 1,500
Page 1 of 2
SURFACE ROCK 22.0 CY N 550
TOTAL OTHER ITEMS COST 25,050 25,050
PROJECT SUBTOTAL 274,657
CONTINGENCIES 0
BILL PREPARATION FEE 2,747
GROSS PROJECT COST 277,404
LESS COST PAID BY BNSF 55,480
TOTAL BILLABLE COST
221,924
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