R98-25 03-09-98RESOLUTION NO. R98-25
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE AN AGREEMENT WITH THE BURLINGTON NORTHERN AND
SANTA FE RAILROAD FOR PURPOSES OF CONSTRUCTING THE
MYKAWA ROAD-MAIN STREET CONNECTOR OVERPASS.
BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1.. That certain agreement between the City of Pearland and
Burlington Northern and Santa Fe Railroad, a copy of which is attached hereto as
Exhibit "A" and incorporated herein 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 the original of the attached agreement, in
multiple counterparts for and on behalf of the City of Pearland, regarding construction
of the Mykawa Road-Main Street connector overpass.
PASSED, APPROVED, and ADOPTED this the 9th day of March ,
A.D., 1998.
ATTEST:
~ SECRETARY
TOM REID
MAYOR
APPROVED AS TO FORM:
AMY MOTES McCULLOU~ I-
CITY ATTORNEY
•
73IT
BNSF ORIGINAL
BNSF Secy. Cont. No:
05017578
Knapp Road
AGREEMENT, made this 260' day of Ay'4A , 1998, between THE BURLINGTON
NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, hereinafter referred to as "BNSF",
and the CITY OF PEARLAND, a political subdivision of the State of Texas, hereinafter referred to as"City".
RECITALS:
BNSF owns and operates a line of railroad in and through the City of Pearland, State of Texas. City desires to
replace the existing Knapp Road at-grade crossing by constructing a new crossing at separated grades to be known
as the Mykawa Road-Main Street Connector Overpass and designated as D.O.T. Crossing No. 023232E.
The existing Knapp Road at-grade crossing (D.O.T. Crossing No. 023206P), will be closed and removed upon
completion of construction and the placing in service of said overpass.
The term"Project" as used in this agreement shall include all work of every kind and character, within or adjacent to
BNSF right of way, required in connection with the construction of the proposed Mykawa Road - Main Street
Connector Overpass (hereinafter referred to as the"Structure") including, but not limited to, any and all changes to
telephone, telegraph, signal and electrical lines and appurtenances, all temporary and permanent track work,
grading, drainage facilities, or other work as necessary during construction of the overpass Structure as shown on
drawing marked Exhibit "A", attached hereto and made a part hereof, as well as preliminary and construction
engineering, and contract preparation.
The parties hereto desire to express in writing their understanding and agreement with respect to the Project ald
pursuant to which the Structure is to be constructed and maintained.
AGREEMENT:
ARTICLE I
IN CONSIDERATION of the covenants of the City hereinafter set forth, and the faithful performance thereof, BNSF
agrees as follows:
1. To grant, and upon full execution of this agreement, hereby does grant to City, its successors and
assigns, upon and subject to the terms and conditions hereinafter set forth, permission and license to enter upon
and use that portion of BNSF's right of way as is necessary to construct, and thereafter maintain, the Structure as
shown on said Exhibit"A", excepting and reserving the right to be exercised by BNSF, and by any others who have
obtained, or may obtain, permission or authority from BNSF so to do:
(a) To 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) From time to time to construct, operate, maintain, renew and/or relocate upon said right of way
additional facilities of the character described in Subsection (a)of this Section 1.
This right is given by BNSF without warranty of title of any kind, express or implied, and no covenan:of
warranty of title shall be implied from the use of any word or words herein contained. In case of the eviction of City
by anyone owning, or claiming title to or any interest in said right of way, BNSF shall not be liable to City for any
Page 1
(4116)
damage of any nature whatsoever. The granting of similar rights to others, subsequent to the date of th's
agreement, will not impair or interfere with the rights herein granted to City.
2. To contribute$225,000 toward the cost of the Project, payable upon completion of construction and the
subsequent closure of the Knapp Road crossing, including formal and permanent vacation of roadway right of way
across BNSF right of way.
3. To remove Knapp Road from BNSF right of way, including crossing surface, crossing warning devices,
and roadway approaches; all at BNSF expense.
4. At the expense of the City, to provide the Safety Orientation noted in Exhibit"C", to furnish all remaining
labor, materials, tools, and equipment, and to perform railroad work required due to the construction of the Project,
such railroad work and the estimated cost thereof being as shown in Exhibit"B" attached hereto and made a part
hereof. In the event that construction of the Project has not commenced within twelve (12) months from tile
effective date of this Agreement, BNSF may, in its sole and absolute discretion, revise the cost estimates as set
forth in said Exhibit "B". Any item of work incidental to those items listed in said Exhibit "B", but not specifically
mentioned therein, may be included as part of this agreement as an item of work upon written approval of City, if
practicable. Construction of the Project shall include the following work by BNSF:
(a) Preliminary engineering, design, and contract preparation;
(b) Furnishing of such watchmen and flagmen as may be necessary for the safety of BNSF's property
and the operation of its trains during construction of the Project;
(c) Furnishing of engineering and inspection as required in connection with the construction of the Project;
(d) Making such changes in the alignment, location and elevation of its telephone,telegraph, signal and/or
wire lines and appurtenances along, over or under its tracks, both temporary and permanent, as may become
necessary by reason of the construction of the Project;
5. To do all work provided in Article I, Section 4 above with its own employees working under Railroad
Labor Agreements or by contractor(s), if necessary, and on an actual cost basis.
6. BNSF is hereby authorized to include a charge, equal to the amount allowed by the Federal Highway
Administration at the time of billing, to cover the cost of BNSF's self-insurance expense covering Employer's
Liability, including liability under the Federal Employer's Liability Act, for protection of its employees in connection
with the construction of the Project covered by this agreement. Such charge shall be considered a portion 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.
7. To submit to City periodic statements covering the cost of the work performed by BNSF, and upon
completion of the Project, a detailed statement of final costs.
ARTICLE II
IN CONSIDERATION of the covenants of BNSF herein set forth and the faithful performance thereof, City agrees as
follows:
1. To furnish to BNSF plans and specifications for the Project. Four sets of said plans, together with two
copies of calculations, and two copies of specifications, shall be submitted to BNSF for approval prior to
commencement of construction. After having been approved by both City and BNSF, said plans and specifications
are hereby adopted and incorporated into this agreement by reference.
2. To do nothing and to permit nothing to be done which will reduce the horizontal or vertical clearances
provided to BNSF, as shown on the approved plans.
3. To acquire all rights of way necessary for the construction of the Project.
Page 2
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K
4. To make any and all arrangements to secure the location or relocation of wire lines, pipe lines and
other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other
than BNSF which may be found necessary to locate or relocate in any manner whatsoever due to the construction
of the Project.
5. All utility crossings within the limits of the licensed area will be covered by separate agreemen's
between BNSF and each of the utilities.
6. To construct the Project as shown on Exhibit "A" and do all work provided for in the plans and
specifications for the Project, except such work that BNSF herein agrees to do. Principal elements of work to be
performed by City in the construction of the Project are as follows:
(a) Construction of the Structure;
(b) Necessary grading and paving;
(c) Providing of suitable drainage, both temporary and permanent;
(d) Construction of adequate roadway barricades located outside of BNSF's right of way to permanently
block and preclude vehicles from entering BNSF's right of way from the severed portions of existing Knapp Road.
7. To furnish all labor, materials, tools, and equipment in performing the work it agrees to perform herein.
All work of construction with respect to said Project shall be undertaken by City, or City's contractor and shall be
performed at such times as shall not endanger or interfere with the safe and timely operations of BNSF's tracks and
other facilities.
8. To require its contractor(s)to notify BNSF's Roadmaster at least thirty(30) business days in advance of
commencing work on BNSF property or near BNSF's tracks, when requesting a BNSF flagman in accordance wth
the requirements of Exhibit"C"attached hereto, in order to protect BNSF from damage to its trains and property.
9. To require its contractor(s) to furnish BNSF's Manager of Public Projects, for approval, four copies of
plans and two sets of calculations of any shoring or cribbing proposed to be used over, under, or adjacent to
BNSF's tracks.
10. To incorporate in each prime contract for construction of the Project, or the specifications therefor, tie
provisions set forth in Exhibits"C"and"C-1", attached hereto and by reference made a part hereof.
11. That, except as hereinafter otherwise provided, all work to be performed hereunder by City in the
construction of the Project will be performed pursuant to a contract or contracts to be let by City, and all such
contracts shall provide:
(a) That all work performed thereunder, within the limits of BNSF's right of way shall be performed in a
good and workmanlike manner, and in accordance with plans and specifications approved by BNSF. Those
changes or modifications during construction that affect safety or BNSF's operations shall also be subject to
BNSF's approval;
(b) That no work, including the original construction and/or any subsequent maintenance, shall be
commenced within BNSF's right of way until each of the prime contractors employed in connection with said work
shall 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 insurance required by Exhibit"C-1";
(c) That if, in City's opinion, it shall be for its best interest, City may direct that the construction of-he
Project be done by day labor under the direction and control of City, or if at any time, in the opinion of City, the
contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, it mayJ in
the manner provided by law, terminate the contractor's control over said work and take possession of all or any part
thereof and proceed to complete the same by day labor or by employing another contractor(s), provided that all
such contractor(s) shall be required to comply with the obligations in favor of BNSF hereinabove set forth and,
provided further, that if such construction is performed by day labor, City will, at its expense, procure and maintain
on behalf of BNSF the insurance required by Exhibit"C-1".
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12. To advise BNSF's Manager of Public Projects, in writing, of the completion date of the Project within
thirty(30)days after such completion. ,
ARTICLE III
IN CONSIDERATION of the premises, it is mutually agreed as follows:
1. That all work contemplated in this agreement shall be performed in a good and workmanlike manner
and each portion shall be promptly commenced by the parties hereto obligated to do the same and thereafter
diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications
during construction that affect BNSF shall be subject to BNSF's approval prior to commencement of such changes
or modifications.
2. That such work shall be done in accordance with detailed plans and specifications approved by BNSF.
3. City shall reasonably adhere to the Construction Schedule for all Project work. The parties agree that
BNSF's failure to complete Railroad work in accordance with the Construction Schedule will not constitute a breach
of this Agreement by BNSF and will not subject BNSF to any liability, when due to inclement weather or unforeseen
railroad emergencies. Regardless of the requirements of the Construction Schedule, BNSF reserves the right to
reallocate its labor forces, assigned to complete Railroad work, in the event of an emergency when BNSF belie es
such reallocation is necessary to provide for the immediate restoration of railroad operations of 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 of the Project resulting from any such reallocation of its labor forces. The parties
agree that this reallocation of labor forces by BNSF and any direct or indirect results of such reallocation will rot
constitute a breach of this Agreement by BNSF.
4. That City will, out of funds made available to it for the construction of the Project, reimburse BNSF in
full for the actual cost of all work performed by BNSF, at City expense, pursuant to this agreement. All expenses
incurred by BNSF for which City is obligated to reimburse BNSF hereunder, shall be in accordance with and subject
to the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of Transportation, and.
any revisions thereof or amendments thereto, which said manual is hereby incorporated in and made a part of this
agreement by reference, and in accordance with the provisions set forth in Article I, Section 5 hereof. City agrees to
include as part of the cost of the Project, all of BNSF's preliminary engineering, design, and contract preparation
costs as described in Subsection (a)of Article I, Section 2 hereof, notwithstanding the fact that such work may have
preceded the date of this agreement.
5. That the construction of the Project shall not be commenced by City's contractor until City shall have
given not less than thirty (30) days prior written notice to BNSF's Manager of Public Projects, making reference to
BNSF's file number 05017578, which notice shall state the time that operations for construction of the Project shall
commence.
6. That after completion of the construction of the Project as hereinabove described, the City shall own
and be fully responsible for repairs, maintenance, future construction or reconstruction of the roadway overhead
crossing Structure. The City agrees that it will do nothing and permit nothing to be done in the maintenance of said
Structure which will interfere with or endanger facilities of BNSF. BNSF may make changes in or additions to its
existing facilities within the limits of said Structure; provided, however, that the usefulness thereof, and the purpose
of said Structure shall not thereby be impaired.
7. Before entering upon BNSF's right of way for maintenance purposes, City shall notify BNSF's Manager
of Public Projects to obtain prior authorization. If work is contracted, City shall require its prime contractor(s) to
comply with the obligations in favor of BNSF, set forth in Exhibits "C", and "C-1", as may be revised from time to
time, and accepts responsibility for compliance by its prime contractor(s).
8. City shall, to the extent allowed by law, indemnify and save harmless BNSF, its agents and employees,
against all liability, claims, demands, damages, or costs for(a) death or bodily injury to persons including, withiout
limitation, the employees of the parties hereto, (b) injury to property including, without limitation, the property of the
parties hereto, (c) design defects, or(d) any other loss, damage or expense arising under either(a), (b) or(c), and
all fines or penalties imposed upon or assessed against BNSF, and all expenses of investigating and defending
Page 4
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against the same, arising in any manner out of (i) the use, occupancy or presence of City, its contractors,
subcontractors, employees or agents in, on, or about the construction and/or maintenance site, (ii) the
performance, or failure to perform by the City, its contractors, subcontractors, employees, or agents, its work or any
obligation under this agreement, or (iii) the sole or contributing acts or omissions of City, its contractors,
subcontractors, employees, or agents in, on, or about the construction and/or maintenance site. Nothing contained
in this provision is intended to, nor shall be deemed or construed to, indemnify BNSF from its sole negligence or
willful misconduct, or that of its agents, servants or independent contractors who are directly responsible to it.
9. That if BNSF shall deem it necessary or desirable, in the future, in the performance of its duty as a
common carrier, to raise or lower the grade or change the alignment of its tracks or to lay additional track or tracks
or to build other facilities in connection with the operation of its railroad, BNSF shall, at its expense, have full right
to make such changes or additions, provided such changes or additions do not change or alter the Structure herein
proposed to be constructed and provided further, however, that should it become necessary or desirable in the
future to change, alter, widen or reconstruct the Structure to accommodate railroad projects, the cost of such work,
including any cost incidental to alteration of railroad or highway facilities made necessary by the alteration of the
Structure, shall be divided between BNSF and City in such shares as may be determined by them.
10. That the books, papers, records and accounts of the parties hereto, insofar as they relate to the items
of expense for labor and material or are in any way connected with the work herein contemplated, shall at all
reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto
for a period of three(3)years from the date of final payment.
11. All the covenants and provisions of this agreement shall be binding upon and inure to the benefit of
the successors and assigns of the parties hereto, except that no party may assign any of its rights or obligations
hereunder without the prior written consent of the other party.
12. In the event that construction of the Project has not begun for a period of three(3) years from the date
of this agreement, this agreement shall become null and void.
13. Any notice provided for or concerning this agreement shall be in writing and be deemed sufficiently
given when sent by certified mail, return receipt requested, to the parties at the following addresses:
The Burlington Northern and BNSF's Manager of Public Projects
Santa Fe Railway Company: 5800 North Main Street
Fort Worth, Texas 76179
City of Pearland: City of Pearland
City Manager
3519 Liberty Drive
Pearland, TX 77581
14. This agreement may only be amended, modified, or supplemented by written agreement and signed
by both parties.
15. Nothing herein is intended to supercede or waive any City ordinance or regulation pertaining to the
project.
16. Whenever possible, each provision of this agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this agreement is prohibitive or invalid under
applicable law, such provision shall be ineffective to the extent of such provision or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this agreement.
17. This agreement shall be construed and enforced in accordance with and governed by the laws of tie
State of Texas.
18. This agreement and all obligations created hereunder shall be performable in Brazoria County, Texas.
19. To accomplish execution of this agreement, it may be executed in multiple counterparts.
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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.
THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY
By Vsrik.1
M.W. Franke
Its: Vice President and Chief Engineer
W TNESS:
amiat4Thc AP��R S 0 FOR/423 i9g
Burlington Northern Santa Fe Law Department
CITY OF PEARLAND
By
Paul Grohman
Its City Manager
WITNESS:
ung
C ty cretary
Knapp Rd-January 1998
Page 6
N
1st!
EXPANSION JOINT
MADE FLANGE BEAM
PROP RET WALL LT
(SEE SHT )
zot
R
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L =
1:4
07'30'53•
1000.00'
65.67'
131.16'
20'-0
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PROP DITCH
BENT NO
STA 7+54
BEGIN BRIDGE AT
FACE OF ABUT NO 1 BKWALL
STA 8+50
/- SEJ (4")
7+00
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G 04=110•
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OVERPASS AT RR SURVEY STATION 593t0B MP 142°3
GULF DIVISION, MYKAWA SUBDIVISION, LINE SEGMENT 7501
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OVERALL LENGTH OF BRIDGE 874'-0
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BEGIN BRIDGE
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04•-0• TYIV PRESTRESSED CONC`BEAM SPAN
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6.50%
T)P OF RAIL
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NAT GND 75 LT
HIGH POINT ELE" - 82.28
HIGH FOINT STA or 8+63.74
PV STA = 84•13.74
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NOTE
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FOR NO P _RMANENT OBSTRUCTI
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TYPICAL SECTION
N.T.S.
EXHIBIT "A"
3'-0 t/2•
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TONS/SHAM)
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WALSH ENGINEERING INC.
CONSULTING ENGINEERS
2010 E. BROADWAY PEARLAND, 1flAS
mac
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let
tim at
CITY OF' PEARLAND, TEXAS
ARVT.vx
-20
-20
PROPOSED THOROUGHFARE RAILROAD
OVERPASS
BRIDGE LAYOUT
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BEET
6+00
7+-00
8+00
9+00
10+00
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1 ,
THE B. N. S. F. RAILWAY COMPANY
FHPM ESTIMATE FOR
THE CITY OF PEARLAND
LOCATION - PEARLAND TO MYKAWA DETAILS OF ESTIMATE
PURPOSE, JUSTIFICATION AND DESCRIPTION
PEARLAND, TX. PLACE SIGNAL POLELINE IN TEMPORARY UNDERGROUND CABLE FOR NEW ROAD
CONSTRUCTION. THEN RE-ESTABLISH TO POLELINE FOLLOWING PROJECT COMPLETION.
GULF DIVISION, MYKAWA SUBDIVISION, L/S 7501, MP 11.20.
THE MATERIAL LIST BELOW REFLECTS TYPICAL, REPRESENATIVE PACKAGES USED FOR ESTIMATING
PURPOSES ONLY. THE CAN BE EXPECTED TO CHANGE AFTER THE ENGINEERING PROCESS. DETAILED AND
ACCURATE MATERIAL LISTS WILL BE FURNISHED WHEN ENGINEERING IS COMPLETED.
THIS ESTIMATE IS GOOD FOR 90 DAYS. THEREAFTER, ESTIMATE IS SUBJECT TO CHANGE IN COST FOR
LABOR, MATERIAL, AND OVERHEAD.
*****************************SIGNAL WORK ONLY*****************************
DESCRIPTION QUANTITY U/M COST TOTAL $
**********
LABOR
PLACE SIGNALS 168.00 MH 3,437
PAYROLL ASSOCIATED COSTS 2,020
EQUIPMENT EXPENSES 747
SUPERVISION EXPENSES 2,343
INSURANCE EXPENSES 516
TOTAL LABOR COST 9,063 9,063
**********
MATERIAL
**********
CABLE: 12 COND-NO. 14 U.G. 350.00 FT 844
CABLE: 3 COND-NO. 6 U..G. 350.00 FT 788
DEAD-END POLELINE: 1.00 EA 929
CREO POLE, 35': 2.00 EA 580
CONDUIT, 3" STEEL: 40.00 FT 214
CROSSARMS AND FITTINGS, TEN-PIN: 2.00 EA 77
BUSHING, 3" INSULATED 4.00 EA 46
STORE EXPENSES 85
OFFLINE TRANSPORTATION 45
TOTAL MATERIAL COST 3,608 3,608
**********
OTHER
**********
CONTRACT ENGINEERING-SIGNAL 1.00 LS 500
EQUIPMENT RENTAL 1.00 LS 850
TOTAL OTHER ITEMS COST 1,350 1,350
PROJECT SUBTOTAL 14,021
CONTINGENCIES 0
GROSS PROJECT COST 14,021
LESS COST PAID BY BNSF 0
TOTAL ESTIMATED COST ( SIGMA L PDL.E.LWE. U-JoR14 D4L.Y) 14,021
SUMMAR`(
DESCRIPTIPN DF v4D RK EST)MKTeD COST
5164AL PoLEL1h1E - R=LocPT . Ra•ESTA8LW4 ODD
ShFF-TY ORIE.NTPhTIPN AS )`1PTE-D 11.1 51HIIsm "C". MDT E.STIA/ %T£i1
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MM15F RA)t u)RY FoQT Wo2r►I,TX
F4eguA2ti( 4, 1496
T ,
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
• 1.01.01 The Contractor shall cooperate with THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, hereinafter referred to as "Railroad" where work is over or under on or
adjacent to Railroad property and/or right-of-way, hereafter referred to as Railroad property, during
the construction of the Mvkawa Road-Main Street Connector Overpass,which shall not interfere with
the movement of any trains on Railroad property.
• 1.01.02 The Contractor's right to enter Railroad's property is subject to the absolute right of Railroad
to cause the Contractor's work on Railroad's property to cease if, in the opinion of Railroad,
Contractor's activities create a hazard to Railroad's property,employees,and/or operations.
• 1.01.03 The Contractor shall notify the City of Pearland, 3519 Liberty Drive,Pearland, Texas, 77581
Telephone number (281)485-2411, Attention; John Hargrove, City Engineer and Railroad's Manager
Public Projects, 5800 North Main Street, Fort Worth, Texas, telephone number (817) 232-7822 at
least thirty(30)working days before commencing any work over or under, on or adjacent to Railroad
Property. Contractors notification to Railroad,shall refer to Railroad's file 05017578
• 1.01.04 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five(25)feet of the nearest track or intersecting a slope from the plane of the top of rail on 1
1/2 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 shall furnish the Railroad five sets
of working drawings showing details of construction affecting railroad tracks and property. The
working drawing shall 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. All calculations shall take into consideration railroad surcharge loading and shall
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. 411
drawings and calculations shall be stamped by a registered professional engineer licensed to practice
in the state the project is located. The Contractor shall not begin work until notified by the Railroad
that plans have been approved. The Contractor shall be required to use lifting devices such as,cranes
and/or winches to place or to remove any falsework over Railroad's tracks. In no case shall the
Contractor be relieved of responsibility for results obtained by the implementation of said approved
plans.
• 1.01.05 It is expected that Railroad will cooperate with the Contractor such that the work may be
handled and performed in an efficient manner. The Contractor shall have no claim whatsoever for any
type of damages or for extra or additional compensation in the event his work is delayed by the
Railroad Company.
1.02 Agreement
• 1.02.01 No employee of the Contractor, its Subcontractors, Agents or Invitees shall enter
Railroad property without first having attended a Safety Orientation. The Contractor shall
ensure that at a minimum its Project Supervisor's have attended a Safety Orientation conducted
by the Railroad,or it's Representative, and that each of its employees,subcontractors, agents or
invitees have received the same Safety Orientation before any work is performed on or adjacent
to Railroad property. The Contractor shall give Railroad a minimum of thirty (30) days'
advance notice for scheduling the Safety Orientation. •
Page 1
•
S
1.03 Railroad Requirements
♦
• 1.03.01 The Contractor shall comply with the rules and regulations of Railroad and the instructions of
the Railroad's representatives in relation to the proper manner of protecting the tracks and property of
Railroad and the traffic moving on such tracks, as well as the wires, signals and other property of
Railroad,its tenants or licensees,at and in the vicinity of the work area during construction.
• 1.03.02 The Contractor shall perform work in such manner and at such times as shall not endanger,
delay or interfere with the safe and timely operation of the tracks and property of Railroad and the
traffic moving on such tracks, as well as the wires, signals and other property of Railroad, its tenants
or licensees.
• 1.03.03 The Contractor shall take protective measures as are necessary to keep railroad facilities,
including track ballast, free of sand, debris, and other foreign objects and materials resulting from his
operations. Any damage to railroad facilities resulting from Contractor's operations will be repaired for
replaced by Railroad and the cost of such repairs or replacement shall be paid for by the Agency.
• 1.03.04 The Contractor shall notifify the Railroad's Division Superintendent at: 214 Brisbane Road,
Houston, Texas 77061; and provide blasting plans to the Railroad for review even (7) calendar days
prior to conducting any blasting operations adjacent to or on Railroad's property.
• 1.03.05 The Contractor shall abide by the following clearances during the course of construction:
• 25'-0" Horizontally from centerline of nearest track.
• 22'-6" Vertically above top of rail(Temporary Falsework Clearance may be reduced to 21'-6"
Subject to Railroad and Public Utilities Commission approval)
• 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
• 1.03.06 Any infringement on the above clearances due to the Contractor's operations shall be
submitted to the Railroad and to the City of Pearland and shall not be undertaken until approved in
writing by the Railroad, 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 Railroad approval, and/or the State Regulatory
Authority's approval..
• 1.03.07 In the case of impaired vertical clearance above top of rail,Railroad shall have the option of
installing tell-tales or other protective devices Railroad deems necessary for protection of Railroad
trainmen or rail traffic.The cost of tell-tales or protective devices shall be borne by the Contractor.
• 1.03.08 The details of construction affecting the Railroad's tracks and property not included in the
contract plans shall be submitted to the Railroad by the City of Pearland for approval before work is
undertaken and this work shall not be undertaken until approved by the Railroad.
• 1.03.09 At other than public road crossings, the Contractor shall not move any equipment or
materials across Railroad's tracks until permission has been obtained from the Railroad. The
Contractor shall obtain a temporary private crossing agreement from the Railroad prior to moving his
equipment or materials across the Railroads tracks. The temporary private crossing shall be gated and
locked at all times when not required for use by the Contractor. The temporary private crossing for use
of the Contractor shall be at the expense of the Contractor.
Page 2
• 1.03.10 The Contractor upon completion of the work covered by this contract,shall promptly remove
from the premises of Railroad all of Contractor's tools, implements and other materials, whether
brought upon said premises by said Contractor or any Subcontractor, employee or agent of Contractor
or of any Subcontractor, and shall cause said premises to be left in a condition acceptable to the
Railroad's representative.
1.04 Protection of Railroad Facilities and Railroad Flagger Services:
• 1.04.01 The Contractor shall give a minimum of 20 working days written notice to the Railroad's
Roadmaster at:214 Brisbane Road,Houston,Texas 77061; [Fax number(713)641-7180] ,in advance
of when flagging services will be required.
• 1.04.02 Railroad flagger and protective services and devices will be required and furnished but not
limited thereto for the following conditions:
• 1.04.02a When in the opinion of the Railroad's Representative it is necessary to safeguard Railroad's
employees,trains,engines,facilities and property.
• 1.04.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of
Railroad's representative,track or other Railroad facilities may be subject to movement or settlement
• 1.04.02c When work, in any way interferes with the safe operation of trains at timetable speeds.
• 1.04.02d When any hazard is presented to Railroad track,communications, signal,electrical, or other
facilities either due to persons,material,equipment or blasting in the vicinity.
• 1.04.02e Special clearance must be obtained from the Railroad before moving heavy or cumbersome
objects or equipment which might result in making the track impassable.
• 1.04.02f Notwithstanding the above requirements, in every instance when Contractors work activities
are located over or under of and within twenty-five (25)feet measured horizontally from centerline'of
the nearest track.
• 1.04.03 Flagging services will be performed by qualified railroad flaggers. The base cost per hour for
(1) Flagger is $17.00 per hour, plus 198 % for Vacation Allowance, Paid Holidays, Railroad and
Unemployment Insurance, Public Liability and Property Damage Insurance and Health and Welfare
Benefits, Transportation, meals, lodging and Supervision, for an eight (8)-hour basic day with time
and one-half or double time for overtime, rest days and Holidays. These rates are subject to any
increases which may result from Railroad Employees-Railroad Management negotiations or which
may be authorized by Federal authorities.Flagging cost will be borne by the Agency,as noted belo).
• 1.04.03a Flagging crew generally consists of one employee. However,additional personnel may
be required to protect Railroad operations and property, if deemed necessary by the Railroad's
Representative.
• 1.04.03b Each time a flagger is called, the minimum period for billing shall be the eight (8) hour
basic day.
• 1.04.03c The cost of flagger services provided by the Railroad,as deemed necessary by the Railroad's
representative,will be borne by the Agency.
Page 3
• • 1.04.03d The train traffic on this route is 40 freight trains per 24-hour period at a timetable speed of
55 MPH and no passenger trains.
1.05 Contractor General Safety Requirements
• 1.05.01 Safety is of the utmost importance in performing work on the Railroad's property. The
Railroad does not in any manner assume the control or responsibility of the Contractor to provide safe
working conditions for the Contractor's employees or Subcontractors in requiring the Contractor to
follow the Railroad's General Safety Requirements.
• 1.05.02 Work in the proximity of a railroad track is potentially dangerous. The Contractor and its
employees, Subcontractors and Invitees are governed by the following Safety Rules and General Safety
Requirements while on Railroad property. The Contractor is responsible for enforcement of these
Safety Rules and Requirements. The Railroad has the right to bar the Contractor, its employes,
Subcontractors and Invitees from working on Railroad property if the Railroad deems such persons are
acting in an unsafe manner.
• 1.05.03 The Contractor is responsible for compliance with all Federal, State and Local Governmental
laws and regulations.
• 1.05.04 Before beginning any task, a complete job safety briefing shall be conducted with all
individuals involved with the task, and again if the task changes. If the task is within 25 feet of
any track, the job briefing must include the Railroad's flagger 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 railroad tracks.
• 1.05.05 All Contractor's employees, subcontractors, agents and invitees shall receive Safety
Orientation from the Contractor's Safety Officer or a qualified Railroad representative prior to the start
of any project. The Contractor's Safety Officer shall review the safety guidelines contained below to
familiarize their employees with safety issues that exist when working in a railroad environment. This
should be reviewed at least weekly, and with any new employee working on Railroad property. I is
the responsibility of the Contractor's Supervisor and/or Safety Officer to instruct their employees the
Railroad's Safety guidelines and to require compliance with thes guidelines.
• 1.05.06 Safety rules cannot be all-inclusive. Workers must refrain from unsafe and improper
practices, including the violation and/or disregard of written rules and regulations, and rules of
common sense.
• 1.05.06a The use of alcoholic beverages, intoxicants, narcotics, marijuana and other controlled
substances by employees subject to duty or their possession or use while on duty or on Railroad's
property is prohibited. Workers must not report for duty under the influence of any alcoholic
beverage, intoxicant, narcotic, marijuana or other controlled substance, or medication,including those
prescribed by a doctor, that may in any way adversely affect their alertness, coordination, reaction,
response or safety.
• 1.05.06b Any damage to Railroad property, or if any hazard is noticed on passing trains, shall be
reported immediately to the Railroad's representative in charge of the project. Any vehicle or machine
which may come in contact with a track, signal equipment, or structure(bridge)could result in a train
derailment and shall be reported by the quickest means possible to the Railroad representative in
charge of the project and to the Railroad's Network Operations Center at 1(800) 832-5452. Local
emergency numbers are to be obtained from the Railroad representative in charge of the project prior
to the start of any work and shall be posted at the job site.
Page 4
4 1
• 1.05.06c All persons are prohibited from having firearms or other deadly weapons, including knives
with a blade in excess of three inches, in their possession while working on Railroad's property, except
those authorized to have them in the performance of their duties or those given special permission.
• 1.05.06d All Contractor employees working on the Railroad's property will be required to wear safety
glasses with side shields, hard hats with high visibility orange cover, and above-the-ankle, lace-up,
hardened toe safety boots with a defined heel, all approved by OSHA. High visibility retro-reflective
orange vests are required in certain locations as specified by the Railroad's representative in charge of
the project. Particular attention to footing and the use of proper footwear is essential when working in
snow or other slippery conditions. Hearing protection, fall protection and respirators will be worn as
required by State and Federal regulations.
• 1.05.06e Workers shall not work nearer than 25 feet to the centerline of any track without proper
flag/work protection provided by the Railroad,unless the track is protected by track bulletin and work
has been authorized by the Railroad. If flag/work protection is provided, every employee must know:
(1)who the Railroad flagger is, and how to contact the flagger, (2) limits of the flag/work protection,
(3) the method of communication to stop and resume work, and(4) entry into flag/work limits when
designated. Men or equipment entering flag/work limits that were not previously job briefed, must
notify the flagger immediately, and be given a job briefing if working at less than 25 feet from center
line of track.
• 1.05.06f The Contractor shall not pile or store any materials, or equipment closer than 25'-0" to the
center line of the nearest Railroad track.
• 1.05.06g 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 the right-of-way must be left
inoperable and secured against movement.
• 1.05.06h Machinery or equipment shall not be stored or left temporarily near a highway/rail at-grade
crossing in a manner to interfere with the sight distances of motorists approaching the crossing. Prior
to beginning work, the Contractor, will establish a storage area with concurrence of the Railrod's
representative.
• 1.05.06i No contaminates are to be discharged on Railroad property. Should any discharge occur, it
must be reported by the quickest means possible to the Railroad's representative in charge of the
project. (This includes oils,diesel fuel,gasoline,etc.).
• 1.05.06j Workers must not create and leave any conditions at the work site that would interfere with
water drainage. Any work performed over water shall meet all Federal, State and Local regulations.
• 1.05.06k Safeguards and safety signs must be kept in place and in good condition. It is the
responsibility of the Contractor to provide same.
• 1.05.061 Before excavating, it must be ascertained by the Contractor if there are any underground
pipe lines, electric wires, or cables, including fiber optic cable systems that either cross or run parallel
with the track which are located within the Projects work area. Excavating on right-of-way could
result in damage to buried cables resulting in delay to railroad traffic, including disruption of service
to users resulting in business interruptions involving loss of revenue and profits. Before any
excavation commences,the Contractor must contact the Railroad's Signal Supervisor and Roadmaster.
All underground and overhead wires must be considered HIGH VOLTAGE and dangerous until
verified with the company having ownership of the line. It is also the Contractor's responsibilit}i to
Page 5
notify any other companies that have underground utilities in the area and arrange for the location of
all underground utilities before excavating.
• 1.05.06m The Contractor must cease all work and the Railroad must be notified immediately before
continuing excavation in the area if obstructions are encountered that do not appear on drawings. If
the obstruction is a utility, and the owner of the utility can be identified,then the owner should also lie
notified immediately. If there is any doubt about the location of underground cables or lines of any
kind, no work will be performed until the exact location has been determined. There will be no
exceptions to these instructions.
• 1.05.06n All excavations, regardless of depth shall be shored where there is any danger to tracks,
structures or personnel.
• 1.05.06o Any excavations, holes or trenches on the Railroad'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 railroad employees
who might be working in the area are protected from all hazards. All excavations must be back filled
as soon as possible.
• 1.05.06p All power line wires must be considered dangerous and of high voltage unless informed to
the contrary by proper authority. For lines rated 50 KV or below, minimum clearance between the
lines and any part of the equipment or load shall be 10 feet. For lines rated over 50 KV, minimum
clearance between the line and any part of equipment or load shall be 10 feet plus 0.4 inches for each 1
KV over 50KV. If the capacity of the line is not known, minimum clearance of 20 feet must ix
maintained. A person shall 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.
• 1.05.06q When Contractor employees are required to work on the Railroad 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 shall be present at all times.
• 1.05.06r IN ALL CASES OF DOUBT OR UNCERTAINTY, THE SAFEST COURSE MUST
BE TAKEN.
1.06 Personal Injury Reporting
• 1.06.01 The Railroad is required to report certain injuries as a part of compliance with Federal
reporting requirements. Any personal injury sustained by an employee of the Contractor,
Subcontractor or Contractor's Invitees while on the Railroad's property must be reported immediately
(by phone mail if unable to contact in person) to the Railroad's representative in charge of the project.
The Injury Report Form contained herein is to be completed and sent by Fax to the Railroad at
(817)352-7595 no later than the close of shift on the date of the injury.
Page 6
t 1
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: _ _ 3.Time:
4.County: 5. Temperature: 6. Weather:
(if non-BNSF location)
7. Social Security#
8. Name(last,first,mi)
9. Address: Street: City: St.: Zip:
10. Date of Birth: and/or Age: Gender:
(if available)
11. (a) Injury: (b)Body Part:
(i.e.(a)Laceration(b)Hand)
12. Description of Accident(To include location,action,result,etc.):
13. Treatment:
❑ First Aid Only
❑ Required Medical Treatment
❑ Other Medical Treatment
14. Dr.Name: 15.Date:
16. Dr.Address:
Street: City: St: Zip:
17. Hospital Name:
18. Hospital Address:
Street: City: St: Zip:
19. Diagnosis:
Page 7
EXHIBIT "C-1"
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
Railway File:
Agency Project:
Gentlemen:
The undersigned, hereinafter referred to as Contractor, has entered into a Contract dated
, 19 , with the (Agency) for
the performance of certain work in connection with the project.
in the
performance of which work the Contractor will necessarily be required to conduct
operations within THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY ("Railway") , right
of way and property ("Railway Property") . The Contract provides that no work shall be
commenced within Railway Property until the Contractor employed in connection with said
work for (Agency) shall have executed and delivered to Railway
an Agreement, in the form hereof, and shall have provided insurance of the coverage and
limits specified in said Contract and Section 2 of this Agreement. If this Agreement is
executed by other than the Owner, General Partner, President or Vice President of
Contractor, evidence is furnished to you herewith certifying that the signatory is
empowered to execute this Agreement for the Contractor.
Accordingly, as one of the inducements to and as part of the consideration for Railway
granting permission to Contractor to enter upon Railway Property, Contractor, effective on
the date of said Contract, has agreed and does hereby agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor agrees to release Railway from any claims arising from the performance of
this Agreement which Contractor or any of its employees, subcontractors, agents or
invitees could otherwise assert against Railway, regardless of the negligence of Ra lway,
except to the extent that such claims are proximately caused by the intentional misconduct
or gross negligence of Railway.
Contractor shall indemnify and hold harmless Railway for all judgments, awards,
claims, demands, and expenses (including 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 failure to perform any obligation
hereunder. THE LIABILITY ASSUMED BY CONTRACTOR SHALL NOT BE AFFECTED BY THE FACT, IF IT IS
A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO
•
B'. THE NEGLIGENCE OF RAILWAY, jiig, AGENTS, SERVANTS, EMPLOYEES OFTHERWISE, EXCEPT TO THE
EXTENT THAT SUCH CLAIMS ARE PRI IMATELY CAUSED BY THE INTENTIONA.. MISCONDUCT OR GROSS
NEGLIGENCE OF RAILWAY. •
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR SHALL INCLUDE ANY CLAIMS, SUITS
OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY, ACT, INCLUDING
CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT,
WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that
it shall adjust and settle all claims made against Railway, and shall, at Railway's
discretion, appear and defend any suits or actions of law or in equity brought against
Railway on any claim or cause of action arising or growing out of or in any manner
connected with any liability assumed by Contractor under this Agreement for which Railway
is liable or is alleged to be liable. Railway shall give notice to Contractor, in writing,
of the receipt or dependency of such claims and thereupon Contractor shall proceed to
adjust and handle to a conclusion such claims, and in the event of a 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, shall defend, adjust, or
settle such suits and protect, indemnify, and save harmless Railway from and against all
damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or
resulting from or incident to any such claims or suits.
It is mutually understood and agreed that the assumption of liabilities and
indemnification provided for in this Agreement shall survive any termination of this
Agreement.
Section 2. -INSURANCE.
(a) Before commencing any work under this Agreement, Contractor must provide and maintain
in effect throughout the term of this Agreement insurance, at Contractor's expense,
covering all of the work and services to be performed hereunder by Contractor and each or
its subcontractors, as described below:
(1) Workers' Compensation coverage as is required by State law. THE CERTIFICATE MUST
CONTAIN A SPECIFIC WAIVER OF THE INSURANCE COMPANY'S SUBROGATION RIGHTS AGAINST THE
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY.
(2) Commercial General Liability insurance covering liability, including but not
limited to Public Liability, Personal Injury, Property Damage and Contractual Liability
covering the obligations assumed by Contractor in Section 1, with coverage of at least
$2,000,000 per occurrence and $6, 000,000 in the aggregate. Where explosion, collapsle, or
underground hazards are involved, the X, C, and U exclusions must be removed from tJhe
policy.
(3) Automobile Liability insurance, including bodily injury and property damage, with
coverage of at least $1, 000,000 combined single limit or the equivalent covering any and
all vehicles owned or hired by the contractor and used in performing any of the services
under this agreement.
(4) Railroad Protective. Liability insurance stating The Burlington Northern And Santa
Fe Railway Company is the Named Insured covering all of the liability assumed by the
Contractor under the provisions of this Agreement with coverage of at least $2,000000 per
occurrence and $6, 000,000 in the aggregate. Coverage shall be issued on a standard ISO
form CG 00 35 01 96 and endorsed to include ISO form CG 28 31 10 93 and the Limited
Seepage and Pollution Endorsement (see attached copy) .
The average train traffic per 24-hour period on this route is freight
trains at, a timetable speed of MPH and passenger trains at a timetable speed
of MPH and switch engine movements.
All insurance shall be placed with insurance companies licensed to do business in the
Sates yin which the work is totoAIRperformed, and with a current(7st's Insurance Guide
Rating of A- and Class VII, orl,, %tter.
In all cases except Workers' Compensation and Railroad Protective Liability coverage
the certificate must specifically state that THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY IS AN ADDITIONAL INSURED.
Any coverage afforded Railway , the Certificate Holder, as an Additional Insured shall
apply as primary and not excess to any coverage issued in the name of Railway.
(b) Such insurance shall be approved by the Railway before any work is performed on
Railway's Property and shall be carried until all work required to be performed on or
adjacent to the Railway's Property under the terms of the contract is satisfactorily
completed as determined by (Agency)
, and thereafter until all tools, equipment and materials, not
belonging to the Railway, have been removed from Railway's Property and Railway Property
is left in a clean and presentable condition. The insurance herein required shall be
obtained by the Contractor and Contractor shall furnish Railway with an original
certificates of insurance , signed by the insurance company, or its authorized
representative evidencing the issuance of insurance coverage as prescribed in (a) 1, 2 and
3 above, plus the original Railroad Protective Liability insurance policy to:
Attention: Laurie Bishop
The Burlington Northern and Santa Fe Railway Company
Maintenance Field 'Support
4501 Kansas Avenue
Kansas City, Kansas 66106
The certificate of insurance shall guarantee that the policies will not be amended,
altered, modified or canceled insofar as the coverage contemplated hereunder is concerned,
without at least thirty (30) days notice mailed by registered mail to Railway.
Full compensation for all premiums which the Contractor is required to pay on all the
insurance described hereinafter shall be considered as included in the prices paid for the
various items of work to be performed under the contract, and no additional allowance will
be made therefor or for additional premiums which may be required by extensions of the
policies of insurance.
It is further distinctly understood and agreed by the Contractor that its liability to the
Railway Company herein under Section 1, will not in any way be limited to or affected by
the amount of insurance obtained and carried by the Contractor in connection with said
Contract.
The Railway file reference number and location information shown at the top of this
Agreement, must appear on any original insurance policies or certificates of insurance
sent to Railway by the Contractor.
Section 3. The Contractor will observe and comply with all the provisions, obligations
and limitations to be observed by Contractor which are contained in the subdivision of the
specifications of said Contract, entitled EXHIBIT "C", CONTRACTOR REQUIREMENTS, and shall
include, 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 4. Contractor shall be responsible to Railway, including its affiliated railway
companies, and its tenants for all damages for any unscheduled delay to a freight for
passenger train that 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 and train service
employees, 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 Railway Woriisok, Railway agrees that it will n1' perform any act to
unnecessarily cause train dela 1 1
For loss of use, Contractor will be billed per freight train hour at an average rate
of ($385.33 in 1997) with annual adjustments) per hour per train as determined from - --
Railway's record. Any disruption to train traffic may cause delays to multiple trains at
the same time for the same period.
In addition to the above" damages, passenger, U.S. mail trains and certain other grain,
intermodal, coal and freight trains operate under incentive/penalty contracts between
Railway and its customer. Under these arrangements, if Railway does not meet its contract
service commitment, Railway may suffer loss of performance or incentive pay or be subject
to a penalty payment. Contractor shall be 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 subcontractors.
As example, a train arrives 30 minutes after its contract service commitments and
Railway is assessed damages per terms of the contract. Either Contractor, and/or
subcontractors, caused a 29 minute delay to the train and therefore are not responsible
for any train performance and incentive penalties or other contractual economic loses
actually incurred by Railway.
As example, a train arrive 30 minutes after its contract service commitments and
Railway is assessed damages per terms of the contract. Either Contractor, and/or
subcontractors, caused a 31 minute delay to the train and therefore are 100% responsible
for any train performance and incentive penalties or other contractual economic losIses
actually incurred by Railway.
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 maximum extent consistent with Railway
confidentiality obligations. Damages for train delay for certain trains could be as high
as $50,000.00 per incident.
Contractor, and subcontractors shall 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 undersigned,
two original copies of this letter, which upon execution by Railway shall constitute an
Agreement between us.
Yours truly,
(Contractor) The Burlington Northern and Santa Fe
Railway Company
By By
Vice President and Chief Engineer
(Title) Accepted this day of
19
Address
City, State, Zip
LIMITED SEEPAGE, POLLUTION AND CONTAMINATION COVERAGE ENDORSEMENT WORDING
X° .
In consideration of the premium charged it is understood and agreed that Exclusion f. of
Coverage A. of this Policy shall not apply to the liability of the Insured resulting from
seepage and/or pollution and/or contamination caused solely by:
a) unintended fire, lightning or explosion: or
b) a collision or overturning of a road vehicle: or
c) a collision or overturning or derailment of a train.
Notwithstanding the foregoing it is agreed that the coverage provided by this Endorsement
shall not apply to:
1. loss of, damage to or loss of use of property directly or indirectly resulting
from sub-surface operations of the Insured, and/or removal of, loss of or
damage to sub-surface oil, gas or any other substance;
2. any site or location used in whole or in part for the handling, processing,
treatment, storage, disposal or dumping of any waste materials or substances;
3. the cost of evaluating and/or monitoring and/or controlling seeping and/or
polluting and/or contaminating substances;
4. the cost of removing and/or nullifying.:and/or cleaning up seeping and/or polluting
and /or contaminating substances on property at any time owned and/or leased
and/or rented by the insured and/or under the control of the Insured.
Notwithstanding the foregoing, Item 1 does not apply to tunnels.
. All Agencies
(Rev. 2/20/98 )
Railroad File: 05017578
Agency Project: Mvkawa Road-Main Street
Connector Overpass
EXHIBIT"C-1"
Agreement Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
AND THE CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
5800 NORTH MAIN STREET
FORT WORTH, TEXAS 76179
Attention: Manager Public Projects
Gentlemen:
The undersigned has entered into a contract dated , 19_,with the (Agency)
for the performance of certain work in connection with the project:
lin
the performance of which work the undersigned will necessarily be required to conduct operations within THE
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, hereinafter referred to as "Railroad", right of
way and property. The Contract provides that no work shall be commenced within your right of way or property
until the Contractor employed in connection with said work for (Agency) shall have executed and
delivered to you a Letter Agreement, in the form hereof, and shall have provided insurance of the coverage and
limits specified in said Contract. If this Letter Agreement is executed by other than the Owner, General Partner,
President or Vice President of undersigned firm, evidence is furnished to you herewith certifying that the signatory is
empowered to execute this Agreement for the firm.
Accordingly, as one of the inducements to and as part of the consideration for your granting permission to
the undersigned to enter upon your right of way or property for the performance of so much of the work as is
necessary to be performed within your right of way or property, the undersigned, effective on the date of said
Contract, has agreed and does hereby agree with you as follows:
Section 1. The undersigned shall fully indemnify and hold harmless Railroad, its agents and employees against
any and all liability, claims, demands, damages, or costs of whatever kind or nature including, but not limited Ito,
liability claims, demands, damages or costs for(a) death or bodily injury to persons, including without limitation the
employees of the parties hereto, (b) injury to property, including without limitation, the property of the parties hereto,
(c) design defects, or (d) any other loss, damage, or expense arising under either (a), (b), or (c), and all fines or
penalties imposed upon or assessed against Railroad, and all expenses of investigating and defending agar st
same(including but not limited to costs and attorneys' fees), regardless of the negligence or alleged negligence of
Railroad, its agents or employees, arising in any manner out of (1) the use, occupancy or presence of he
undersigned or its subcontractors, employees, or agents in, on, or about the construction site, (2)the performance,
or failure to perform, by the undersigned, its subcontractors, employees, or agents, its work or any obligation under
this Agreement, or(3) any and all acts or omissions of the undersigned, its subcontractors, employees, or agents
in, on, or about the construction site. Nothing contained in this provision is intended to, nor shall be deemed or
construed to, indemnify Railroad from its sole negligence or willful misconduct, or that of its agents, servants or
independent contractors who are directly responsible to it.
Section 2. That the undersigned will procure, and will maintain in force and effect, insurance meeting all of the
requirements outlined herein in Section 3, and as further defined in the Special Provisions for and in said Contract,
and there is provided to you herewith the following documents meeting such requirements:
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(a)Original Policy in Railroad Protective Liability Form, including the Notice of Change Endorsement, the Pollution
Exclusion Amendment, and the Limited Seepage, Pollution and Contamination Coverage Endorsement in favor of
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY.
(b)Certificate reflecting the existence of Contractor's Public Liability and Property Damage Liability Insurance and
Contractor's Protective Public Liability and Property Damage Liability Insurance.
It is further distinctly understood and agreed by the undersigned that its liability to the Railroad Company herein
under Section 1, will not in any way be limited to or affected by the amount of insurance obtained and carried by the
undersigned in connection with said Contract.
It is also distinctly understood that the Railroad file reference number and location information, as shown
at the top of this Agreement, must appear on any original insurance policies or certificates of insurance
sent to Railroad by the undersigned.
Section 3. INSURANCE
RAILROAD PROTECTIVE INSURANCE. The term "Railroad" shall be understood to mean THE BURLINGTON
NORTHERN AND SANTA FE RAILWAY COMPANY.
In addition to any other form of insurance or bonds required under the terms of the contract and specifications,
the Contractor will be required to carry insurance of the kinds and in the amounts hereinafter specified.
Such insurance shall be approved by the Railroad before any work is performed on Railroad's'property and shall
be carried until all work required to be performed on or adjacent to the Railroad's property under the terms of the
contract is satisfactorily completed as determined by (Agency) , and
thereafter until all tools, equipment and materials, not belonging to the Railroad, have been removed from
Railroad's property and such property is left in a clean and presentable condition. The insurance herein required
shall be obtained by the successful bidder and he shall furnish the (Agency)
with three completed certificates, in the form attached hereto, signed by the insurance
company, or its authorized agent or representative, reflecting the existence of each of the policies required by 1 and
2 below including coverage for X, C and U and completed operations hazards, the original policy of insurance and
one certified copy thereof required by 3 below. (Agency) will convey one (1) of the certificates of
policy certifying 1 and 2 and the original policy of insurance required by 3 to Railroad and (if any)
upon receipt from successful bidder. (Agency) will notify successful bidder whether
Railroad approves the insurance policies.
Certificate of insurance shall guarantee that the policy under 1 and 2 will not be amended, altered, modified or
cancelled insofar as the coverage contemplated hereunder is concerned, without at least thirty (30) days notice
mailed by registered mail to the (Agency) and to Railroad.
Full compensation for all premiums which the Contractor is required to pay on all the insurance described
hereinafter shall be considered as included in the prices paid for the various items of work to be performed under
the contract, and no additional allowance will be made therefor or for additional premiums which may be required
by extensions of the policies of insurance.
1. Contractor's Public Liability and Property
Damage Liability Insurance
The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property, carry
regular Contractor's Public Liability and Property Damage Liability Insurance providing for the same limits as
specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnished for and
on behalf of Railroad as hereinafter provided.
The approximate daily train traffic is 0 passenger trains ( - max MPH), 40 freight trains ( 55 max MPH),
and 0 switch engines( - max MPH).
If any part of the work within or adjacent to Railroad's property is subcontracted, the Contractor in addition to
carrying the above insurance, shall provide the above insurance on behalf of the subcontractors to cover their
operations.
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2. Contractor's Protective Public Liability and Property Damage Liability Insurance
The Contractor shall, with respect to the operations performed for him by subcontractors who do work within or
adjacent to Railroad's property, carry in his own behalf regular Contractor's Protective Public Liability and Property
Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and
Property Damage Liability Insurance to be furnished for and on behalf of Railroad as hereinafter provided.
3.Railroad's Protective Public Liability and Property Damage Liability Insurance written on ISO Form No.
CG00351093 and including The Limited Seepage and Pollution Liability
Endorsement.
The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property or that
of any of his subcontractors who do work within or adjacent to Railroad's property, have issued and furnished
separately, policy or policies of insurance in the Railroad Protective Liability Form as hereinafter specified. Each
such policy shall provide limits of liability as specified in said Railroad Protective Liability Form.
The first policy shall name as insured:
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
4501 Kansas Avenue
Kansas City, Kansas 66106
Attn.: Maintenance Field Support
The second policy shall name as insured:
RAILROAD PROTECTIVE LIABILITY FORM
(Name of Insurance Company)
DECLARATIONS
Item 1. Named Insured:
Item 2.Policy Period: From to 12:01 a.m., Standard Time, at the designated job site as
stated herein.
Item 3.The insurance afforded is only with respect to such of the following coverages as are indicated in Item 6 by
specific premium charge or charges. The limit of the Company's liability against such coverage or coverages shall
be as stated herein, subject to all the terms of this policy having reference thereto.
Limits of Liability
COVERAGES EACH OCCURRENCE AGGREGATE
A Bodily Injury Liability $2,000,000 combined $6,000,000 for
single limit coverages A, B, and C
B Property Damage Liability
C Physical Damage to Property
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Item 4. Name and Address of Contractor:
Item 5.Name and Address of Governmental Authority for whom the
work by the Contractor is being performed: (Agency)
Item 6.Designation of the Job Site and Description of Work:
FOR CONSTRUCTION ON
Premium Rates per$100 of Cost Advance Premiums
Bases Coverage A Coverages B&C Coverage A Coverages B&C
Contract
Cost $ $ $ $
Rental
Cost $ $ $ $
Countersigned 19_ By
Title
POLICY NUMBER:
(Name of Insurance Company)
A insurance company, herein called the Company, agrees with the insured named in the
Declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the
statements in the Declarations made by the named insured and subject to all of the terms of this policy.
RAILROAD PROTECTIVE LIABILITY COVERAGE FORM (CG 00 35 06 90)
Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and
what is and is not covered.
Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The
words"we", "us", and"our", refer to the Company providing this Insurance.
The word "Insured" means any person or organization qualifying as such under WHO IS AN INSURED (SECTION
II).
Other words and phrases that appear in quotation marks have special meaning. Refer to DEFINITIONS(SECTION
V).
SECTION I-COVERAGES
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COVERAGE A
BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement.
a.We will pay those sums that the insured becomes legally obligated to pay as damages because of"bodily
injury" or"property damage"to which this insurance applies. We will have the right and duty to defend any "suit"
seeking those damages. We may at our discretion investigate any occurrence and settle any claim or"suit" that
may result. But:
(1)The amount we will pay for damages is limited as described in LIMITS OF INSURANCE (Section
III); and
(2)Our right and duty to defend ends when we have used up the applicable limit of insurance in the
payment of judgments or settlements.
No other obligation or liability to pay sums or perform acts or services is covered unless explicitly
provided for under SUPPLEMENTARY PAYMENTS-COVERAGE A.
b.This insurance applies to"bodily injury"and"property damage"only if:
(1)The"bodily injury"or"property damage"occurs during the policy period; and
(2)The "bodily injury" or"property damage" arises out of acts or omissions at the "job location" which
are related to or are in connection with the"work"described in the Declarations.
c.Damages because of"bodily injury" include damages claimed by any person or organization for care, loss
of services or death resulting at any time from the"bodily injury".
2. Exclusions.
This Insurance does not apply to:
a."Bodily injury" or "property damage" expected or intended from the standpoint of the insured' This
exclusion does not apply to"bodily injury" resulting from the use of reasonable force to protect persons or property.
b."Bodily injury" or "property damage" for which the insured is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages assumed
in a contract or agreement that is a"covered contract".
c."Bodily injury" or "property damage" occurring after the "work" is completed. The "work" will be deemed
completed at the earliest of the following times:
(1)When all the"work"called for in the"Contractor's"contract has been completed.
(2)When all the"work"to be done at the"job location"has been completed.
(3)When that part of the"work" done at the"job location" has been put to its intended use by you, the
governmental authority or other contracting party.
This exclusion does not apply to "bodily injury"or"property damage" resulting from the existence of or
removal of tools, uninstalled equipment, or abandoned or unused materials.
d."Bodily injury"or"property damage",the sole proximate cause of which is an act or omission of any insured
other than acts or omissions of any of"your designated employees". This exclusion does not apply to injury or
damage sustained at the"job location" by any of"your designated employees" or employee of the"Contractor", or
by any employee of the governmental authority or any other contracting party (other than you) specified in the
Declarations.
e.Any obligation of the insured under a workers compensation, disability benefits or unemployment
compensation law or any similar law. This exclusion does not apply to any obligation of the insured under the
Federal Employers Liability Act, as amended.
f."Bodily injury" or "property damage" arising out of the actual, alleged, or threatened discharge, dispersal,
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seepage, migration, release or escape of pollutants at or from the"job location":
(1)Due to the past or present use of the "job location" by you or for you or others for the handling,
storage, disposal, processing or treatment of waste; or
(2)Due to the dumping or disposal of waste on the"job location" by the"Contractor"with the knowledge
of you or any of"your designated employees"; or
(3)On which you or"Contractors" working directly or indirectly on any insured's behalf are performing
operations: _
(a)If the pollutants are brought on or to the"job location" in connection with such operations by
such insured, contractor or subcontractor; or
(b)If the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or
neutralize, or in any way respond to, or access the effects of pollutants.
Subparagraph (3)(a) does not apply to"bodily injury" or"property damage" arising out of heat, smoke or
fumes from a hostile fire.
As used in this exclusion, a hostile fire means one which becomes uncontrollable or breaks out from
where it was intended to be.
Pollutants means any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor,
soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned
or reclaimed.
g."Property damage" to property owned by you or leased or entrusted to you under a lease or trust
agreement.
COVERAGE B
PHYSICAL DAMAGE TO PROPERTY
1.Insuring Agreement.
We will pay for"physical damage to property"to which this insurance applies. The "physical damage to
property" must occur during the policy period. The"physical damage to property"must arise out of acts or
omissions at the "job location" which are related to or in connection with the "work' described in the
Declarations. The property must be owned by or leased or entrusted to you under a lease or trust
agreement.
2. Exclusions.
This insurance does not apply to"physical damage to property".
a.Occurring after the "work' is completed. The "work' will be deemed completed at the earliest of the
following times:
(1)When all the"work'called for in the"Contractor's"contract has been completed.
(2)When all the"work'to be done at the"job location"has been completed.
(3)When that part of the"work" done at the"job location" has been put to its intended use by you, the
governmental authority or other contracting party.
This exclusion does not apply to "physical damage to property" resulting from the existence of tools,
uninstalled equipment and abandoned or unused materials.
b.The sole proximate cause of which is an act or omission of any insured other than acts or omissions of any
of"your designated employees";
c.Due to nuclear reaction, nuclear radiation, or radioactive contamination, or to any related act or condition.
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d.Due to the discharge, dispersal, seepage, migration, release or escape of pollutants excluded under
exclusion f., Coverage A.
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• SUPPLEMENTARY PAYMENTS-COVERAGE A
We will pay,with respect to any claim or"suit"we defend:
1.All expenses we incur.
2.All costs taxed against the insured in the"suit".
3.All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid,
offered to pay or deposited in court the part of the judgment that is within the applicable limit of insurance.
4.The cost of bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We
do not have to furnish these bonds.
5.Expenses incurred by the insured for first aid to others at the time of an accident, for"bodily injury"to which this
insurance applies.
6.AII reasonable expenses, incurred by the insured at our request to assist us in the investigation or defense of the
claim or"suit', including actual loss of earnings up to$100 a day because of time off from work.
7.Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay
the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the
offer.
These payments will not reduce the limits of insurance.
SECTION II-WHO IS AN INSURED
1.You are an insured.
2.Your executive officers and directors are insureds, but only with respect to their duties as your officers and
directors.
3.Your stockholders are insureds but only with respect to their liability as stockholders.
4.Any railroad operating over your tracks is an insured.
SECTION III-LIMITS OF INSURANCE
1.The limits of insurance shown in the Declarations and the rules below fix the most we will pay regardless of the
number of:
(a)Insureds;
(b)Claims made or"suits" brought; or
(c)Persons or organizations making claims or bringing"suits".
2.The Aggregate Limit is the most we will pay for the sum of all damages because of all"bodily injury", all"property
damage"and all"physical damage to property".
3.Subject to 2. above, the Each Occurrence Limit is the most we will pay for the sum of all damages because of all
"bodily injury", all"property damage"and all"physical damage to property"arising out of any one occurrence.
4.Subject to 3. above,the payment for"physical damage to property"shall not exceed the lesser of:
a.The actual cash value of that property at the time of loss; or
b.The cost to repair or replace the property with other property of like kind or quality.
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I S
The limits of this Coverage Part apply separately to each consecutive annual period and to any remaining period of
less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy
period is extended after issuance for an additional period of less than 12 months. In that case, the additional period
will be deemed part of the last preceding period for purposes of determining the Limits of Insurance.
SECTION IV-CONDITIONS •
A.The following Conditions apply to Coverages A and B:
1.Assionment.
Assignment of interest under this Coverage Part shall not bind us unless we issue an
endorsement consenting to the assignment.
2.Bankruptcv.
Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our
obligation under this policy.
3.Cancellation.
_ a.You may cancel this policy by mailing or delivering to us advance written notice of cancellation.
b.We may cancel this policy by mailing or delivering to you, the "Contractor" and any involved
governmental authority or other contracting party designated in the Declarations, at the respective mailing
addresses last known to us, written notice of cancellation at least 60 days before the effective date of cancellation.
c.Notice of cancellation will state the effective date of cancellation. The policy will end on that
date.
d.lf this policy is canceled, any unearned premium will be refunded. If we cancel, the refund will
be pro rata. If you cancel, the refund may be less than pro rata. The cancellation will be effective even if we have
not made or offered a refund.
e.lf notice is mailed, proof of mailing will be sufficient proof of notice.
4.Changes.
This policy contains all the agreements between you and us concerning the insurance afforded.
You are authorized to make changes in the terms of this policy with our consent. This policy's terms can
be amended or waived only by endorsement issued by us and made a part of this policy.
5.Inspections and Surveys.
We have the right but are not obligated to:
a.Make inspections and surveys at any time;
b.Give you reports on the conditions we find; and
c.Recommend changes.
Any inspections, surveys, reports or recommendations relate only to insurability and the
premiums to be charged. We do not make safety inspections. We do not undertake to perform the duty of
any person or organization to provide for the health or safety of workers or the public. And we do not
warrant that conditions:
a.Are safe or healthful; or
b.Comply with laws, regulations, codes, or standards.
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This condition applies not only to us, but also to any rating, advisory, rate service or similar
organization which makes insurance inspections, surveys, reports or recommendations.
6.Other Insurance.
The insurance afforded by this policy is:
a.Primary insurance and we will not seek contribution from any other insurance available to you
except if the other insurance is provided by a contractor other than the designated Contractor for the same
operation and"job location"; and
b.lf the other insurance is available, we will share with that other insurance by the method
described below.
If all of the other insurance permits contribution by equal shares, we will follow this
method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable
limit of insurance or none of the loss remains, whichever comes first.
If any of the other insurance does not permit contribution by equal shares, we will
contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of
insurance to the total applicable limits of insurance of all insurers.
7.Premium and Premium Audit.
a.We will compute all premiums for this Coverage Part in accordance with our'rules and rates.
b.Contract costs, the premium base shown in the Declarations, means the total cost of the
operations described in the Declarations.
c.The premium shown in the Declarations as advance premium is a deposit premium only. At the
close of each audit period, we will compute the earned premium for that period. Audit premiums are due and
payable on notice to the Contractor designated in the Declarations. If the sum of the advance and audit premiums
paid for the policy term is greater than the earned premium, we will return the excess to the Contractor designated
in the Declarations.
In no event shall the payment of premium be your obligation.
8.Transfer Of Rights Of Recovery Against Others To Us.
If the insured has rights to recover all or part of any payment we have made under this policy,
those rights are transferred to us. The insured must do nothing after loss to impair them. At our request,
the insured will bring"suit'or transfer those rights to us and help us enforce them.
9.When We Do Not Renew.
If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured
shown in the Declarations written notice of this nonrenewal not less than 30 days before the expiration
date.
If notice is mailed, proof of mailing will be sufficient proof of notice.
B.The following Conditions apply to Coverage A only:
1.Legal Action Against Us.
No person or organization has a right under this policy:
a.To join us as a party or otherwise bring us into a"suit'asking for damages from an insured; or
b.To sue us on this policy unless all of its terms have been fully complied with.
A person or organization may sue us to recover on an agreed settlement or on a final judgment
against an insured obtained after an actual trial; but we will not be liable for damages that are not payable
under the terms of this policy or that are in excess of the applicable limit of insurance. An agreed
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settlement means a settlement and release of liability signed by us, the insured and the claimant or the
claimant's legal representative.
2.Duties In The Event Of Occurrence, Claim Or Suit.
a.You must see to it that we are notified as soon as practicable of an occurrence which may result
in a claim. To the extent possible, notice should include:
(1)How,when and where the occurrence took place; and
(2)The names and addresses of any injured persons and witnesses; and
(3)The nature and location of any injury or damage arising out of the occurrence.
b.lf a claim is made or"suit" is brought against any insured, you must:
(1)Immediately record the specifics of the claim or"suit"and the date received; and
(2)Notify us as soon as practicable.
You must see to it that we receive written notice of the claim or "suit' as soon as
practicable.
c.You and any other involved insured must:
(1)Immediately send us copies of any demands, notices, summonses or legal papers
received in connection with the claim or"suit";
(2)Authorize us to obtain records and other information;
(3)Cooperate with us in the investigation, settlement or defense of the claim or"suit"; and
(4)Assist us, upon our request, in the enforcement of any right against any person or
organization which may be liable to the insured because of injury or damage to which this insurance may also
apply.
d.No insureds will, except at their own cost, voluntarily make a payment, assume any obligation,
or incur any expense, other than for first aid, without our consent.
3.Separation of Insureds.
Except with respect to the Limits of Insurance this insurance applies:
a.As if each Named Insured were the only Named Insured; and
b.Separately to each insured against whom claim is made or"suit"is brought.
C.The following Conditions apply to Coverage B only:
1.Appraisal.
If you fail to agree with us on the value of the property, or the amount of loss, either you or we
may make written demand for an appraisal of the loss within sixty(60) days after proof of loss is filed. In
this event, each party will select a competent appraiser. The two appraisers will select a competent and
impartial umpire. The appraisers will state separately the value of the property and the amount of loss. If
they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be
binding. Each party will:
a.Pay its chosen appraiser, and
b.Bear the other expenses of the appraisal and umpire equally.
If we submit to an appraisal,we still retain our right to deny the claim.
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2.No Benefit to Bailee.
No person or organization, other than you, having custody of the property will benefit from this
insurance.
3.Insured's Duties In The Event of A Loss.
You must:
a.Protect the property, whether or not the loss is covered by this policy. Any further loss due to
your failure to protect the property shall not be recoverable under this policy. Reasonable expenses incurred in
affording such protection shall be deemed to be incurred at our request;
b.Submit to us, as soon after the loss as possible, your sworn proof of loss containing the
information we requested to settle the loss and, at our request, make available the damaged property for
examination.
4.Legal Action Against Us.
No person or organization has a right under this policy to sue us on this policy unless all of its
terms have been fully complied with and until 30 days after proof of loss is filed and the amount of loss is
determined as provided in this policy.
5.Payment of Loss.
We may pay for the loss in money but there can be no abandonment of any property to us.
SECTION V-DEFINITIONS
1."Bodily injury" means bodily injury, sickness or disease sustained by a person, including death resulting from
any of these at any time.
2."Contractor" means the contractor designated in the Declarations and includes all subcontractors working
directly or indirectly for that"Contractor" but does not include you.
3."Covered contract" means any contract or agreement to carry a person or property fora charge or any
interchange contract or agreement respecting motive power, or rolling stock equipment.
4."Job location" means the job location designated in the Declarations including any area directly related to the
"work"designated in the Declarations. "Job location"includes the ways next to it.
5."Physical damage to property" means direct and accidental loss of or damage to rolling stock and their
contents, mechanical construction equipment or motive power equipment, railroad tracks, roadbeds, catenaries,
signals, bridges or buildings.
6."Property damage"means:
a.Physical injury to tangible property, including all resulting loss of use of that property. All such loss'of
use shall be deemed to occur at the time of the physical injury that caused it; or
b.Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to
occur at the time of the occurrence that caused it.
7."Suit" means a civil proceeding in which damages because of"bodily injury" or"property damage"to which this
insurance applies are alleged. "Suit"includes:
a.An arbitration proceeding in which such damages are claimed and to which you must submit or do
submit with our consent; or
b.Any other alternative dispute resolution proceeding in which such damages are claimed and to which you
submit with our consent.
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8."Work" means work or operations performed by the "Contractor" including materials, parts or equipment
furnished in connection with the work or operations.
9."Your designated employee" means:
a.Any supervisory employee of yours at the"job location";
b.Any employee of yours while operating, attached to or engaged on work trains or other railroad
equipment at the"job location"which are assigned exclusively to the"Contractor"; or
c.Any employee of yours not described in a. or b. above who is specifically loaned or assigned to the work
of the"Contractor"for the prevention of accidents or protection of property.
IN WITNESS WHEREOF,the Indemnity Company has caused this policy to be
signed by its president and a secretary at and countersigned on the
Declarations page by a duly authorized agent of the Company.
(FACSIMILE OF SIGNATURE) (FACSIMILE OF SIGNATURE)
Secretary President
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THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY.
NOTICE OF CHANGE ENDORSEMENT
This endorsement modifies insurance provided under the following:
RAILROAD PROTECTIVE LIABILITY COVERAGE PART
A. The Change Condition is replaced by the following:
4.Changes
This policy contains all the agreements between you and us concerning the insurance afforded.
You are authorized to make changes in the terms of this policy with our consent. This policy's terms can
be amended or waived only by endorsement issued by us and made a part of this policy, and by mailing or
delivering to you, the "Contractor" and any involved governmental authority or other contracting party
designated in the Declarations, at the respective mailing addresses last known to us, written notice of
change at least 60 days before the effective date of change. _
OTHER TERMS
All other terms of your policy remain the same.
Name of Insured: Policy Number: Effective Date:
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Processing Date: Expiration Date:
Counter Signature:
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1.
THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY.
POLLUTION EXCLUSION AMENDMENT
This endorsement modifies insurance provided under the following:
RAILROAD PROTECTIVE LIABILITY COVERAGE PART
Paragraph 3.(a)of Exclusion f. of COVERAGE A(Section I) is replaced by the following:
(a)If the pollutants, other than fuels or lubricants for equipment used at the "job location" are brought on or to the
'job location"in connection with such operations; or
OTHER TERMS
All other terms of your policy remain the same.
Name of Insured: Policy Number: Effective Date:
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Processing Date: Expiration Date:
Counter Signature:
Page 15
L 6 (4116)
J.
THIS ENDORSEMENT CHANGES THE POLICY.
PLEASE READ IT CAREFULLY.
LIMITED SEEPAGE, POLLUTION AND
CONTAMINATION COVERAGE ENDORSEMENT
In consideration of the premium charged it is understood and agreed that Exclusion f. of this Policy shall not apply
to the liability of the insured, resulting from seepage and or pollution and or contamination caused solely by:
a) a unintended fire, lightning or explosion; or
b)a collision or overturning of a road vehicle; or
c)a collision or overturning or derailment of a train.
Notwithstanding the foregoing it is agreed that the coverage provided by this Endorsement shall not apply to:
1.loss of, damage to or loss of use of property directly or indirectly resulting from sub-surface operations of the
insured, and or removal of loss of or damage to sub-surface oil, gas or any other substance;
2.any site or location used in whole or in part for the handling, processing,treatment, storage, disposal, or dumping
of any waste materials or substance;
3.the cost of evaluating and/or monitoring and/or controlling seeping and/or polluting and/or contaminating
substances;
4.the cost of removing and/or nullifying and/or cleaning up seeping and/or polluting and/or contaminating
substances on property at any time owned and/or leased and/or rented by the insured and/or under the control:of
the insured.
OTHER TERMS
All other terms of your policy remain the same.
Name of Insured: Policy Number: Effective Date:
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Processing Date: Expiration Date:
Counter Signature:
Page 16
4
4 i f
Railroad File: 05017578
CERTIFICATE OF INSURANCE
This is to certify to:
•
(1) THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Maintenance Field Support
4501 Kansas Avenue
Kansas City, Kansas 66106
Attn.: Laurie Bishop [Telephone(913)551-2574, Fax(913)551-2792]
(2) and to the following Railroad Company(s)
that such insurance as is afforded by the policy or policies described below for bodily injury liability and property
damage liability is in full force and effect as of the date of this certificate and covers the following contractor as a
named insured with respect to liability for damages arising out of operations performed by or for the named insured
in connection with the contract or work described below.
1. Named Insured and Address:
This is to certify that policies of insurance listed below have been issued to the insured named above and are in
force at this time. Notwithstanding any requirement, term or condition of any contract or other document with
respect to which this certificate may be issued or may pertain, the insurance afforded by the policies described
herein is subject to all the terms, exclusions and conditions of such policies.
2. Description of Work
•
Contract No. '
3.
Policy Limits of Liability
Coverages Expiration Date Each Occurrence Aggregate
Contractor's
• Bodily Injury Liability
and Property Damage
Liability •
Umbrella or Excess
Liability
All of the coverages include coverage for the completed operations hazard and X, C and U exposures.
Page 17
' o t" r
Name of Insurance Company by Coverage
Coverages Company Policy Number
Bodily Iniury Liability
Property Damage Liability
Umbrella or Excess Liability
4.The policy or policies described above will not be amended, altered, modified or cancelled until thirty (30) days
after written notice thereof has been given by registered mail to the(1)Agency
_, and(2)the Railroad(s)named as certificate holder in this certificate.
Certificate Date:
For
Insurance Company
By
Authorized Agent or Representative
•
•
•
•
Page 18
np-v F
Section 4. That the undersigned will observe and comply with all the provisions, obligations and limitations to be
observed by Contractor which are contained in the subdivision of the specifications of said contract, entitled
"CONTRACTOR REQUIREMENTS" (EXHIBIT "C"), and shall include, but not be limited to, payment of all costs
incurred for any damages to Railroad 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. Contractor shall be responsible to Railroad, including its affiliated railroad companies, and its tenants
for all damages for any unscheduled delay to a freight or passenger train that affects Railroad'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 and train service employees, contractual loss
of incentive pay and bonuses, and contractual penalties resulting from train delays, whether caused by Contractor,
or subcontractors, or by the Railroad performing Railroad Work. Railroad agrees that it will not perform any act to
unnecessarily cause train delay.
For loss of use, Contractor will be billed per freight train hour at an average rate of$385.33 per hour per train as
determined from Railroad's records. Any disruption to train traffic may cause delays to multiple trains at the same
time for the same period.
In addition to the above damages, passenger, U.S. mail trains and certain"other grain, intermodal, coal and
freight trains operate under incentive/penalty contracts between Railroad and its customer. Under these
arrangements, if Railroad does not meet its contract service commitment, Railroad may suffer loss of performance
or incentive pay or be subject to a penalty payment Contractor shall be responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railroad which are attributable to a
train delay caused by Contractor, or subcontractors.
As example, a train arrives 30 minutes after its contract service commitments and Railroad is assessed
damages per terms of the contract. Either Contractor, and/or subcontractors, caused a 29 minute delay to the train
and therefore are not responsible for any train performance and incentive penalties or other contractual economic
losses actually incurred by Railroad.
As example, a train arrives 30 minutes after its contract service commitments and Railroad is assessed
damages per terms of the contract. Either Contractor, and/or subcontractors, caused a 31 minute delay to the train
and therefore are 100% responsible for any train performance and incentive penalties or other contractual economic
losses actually incurred by Railroad.
The contractual relationship between BNSF and its customers is proprietary and confidential. In the event of a
train delay covered by this Agreement, BNSF will share information relevant to any train delay to the maximum
extent consistent with Railroad confidentiality obligations. Damages for train delays for certain trains could be as
high as $50,000.00 per incident. Contractor, and subcontractors shall plan, schedule, coordinate and conduct all
Contractor Work so as to not cause any delays to any trains.
Page 19
•
Kindly acknowledge receipt of this letter and of the insurance herein provided to be furnished to you, by signing
and returning to the undersigned, a copy of this letter,which shall thereupon constitute an agreement between us.
Yours truly,
(Contractor)
By
•
•— (Title)
Receipt of the foregoing letter and of the policies
and certificates of insurance therein provided to be Address
furnished is hereby acknowledged this
_day of , 19 City, State,
Zip
THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY
By
M.W. Franke
Its Vice President and Chief Engineer
Page 20
®
�f,
0 0 1998
Coi.sae.15 /7:1e
pEe
March 12, 19'8 T E
_A, i,a) Vo 55 i
Charles Lun; ren
Manager ' •lic Projects
BNSF s "
5800 ►�. ain Street
�
Fo P Wo h, Texas 76179 /
•E: city of Pearland Proposed Thoroug] 4
Mr. L ndgren:
Encl•sed are two original agreements executed by the City. After execution by BNSF,
plea•e return one original to me for the City's files.
Th: bid opening date for the project is set for April 3, 1998. Construction could start in
M,y 1998. Exact notification in accordance with the terms of the agreement will be '
pr•vided after the contract is awarded.
lease contact me if you have any questions. Thank you.
incerely,
0)..a,a -
Alan R. Mueller
Projects Coordinator
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3519 LIBERTY DRIVE • PEARLAND,TEXAS 77581 • (281)485-2411 • www.ci.pear and.tx.us 'L//
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