HomeMy WebLinkAbout05-14-2012_Council Workshop
SPECIAL ACCOMMODATIONS: The City of Arlington strives to provide accessible meetings for people with disabilities. Please contact the ADA
coordinator at (360) 403-3441 or 1-800-833-8388 (TDD only) prior to the meeting date if special accommodations are required.
CALL TO ORDER
I would like to call the meeting to order.
PLEDGE OF ALLEGIANCE
Would you please stand for the Pledge of Allegiance?
ROLL CALL
Jan, would you please call the roll?
APPROVAL OF THE AGENDA
Mayor Pro Tem Oertle: I move to approve the agenda as presented.
WORKSHOP ITEMS ~ NO FINAL ACTION WILL BE TAKEN
1. (5 min) Road Closures for Special Events
Staff Presentation: Sarah Lopez
Council Liaison: Debora Nelson
ATTACHMENT A
2. (5 min) Authorization to Proceed with a privately funded 9/11
Memorial at Firehouse 46
Staff Presentation: Bruce Stedman
Council Liaison: Steve Baker
ATTACHMENT B
3. (10 min) 67th Ave NE Phase III - BNSF Lebanon Crossing and
Construction Easements
Staff Presentation: Eric Scott
Council Liaison: Debora Nelson
ATTACHMENT C
4. (5 min) Authority to Bid the 2012 A/C Water Main Replacement
Project
Staff Presentation: Eric Scott
Council Liaison: Dick Butner
ATTACHMENT D
Arlington City Council Workshop
May 14, 2012 – 7 PM
City Council Chambers ~ 110 E. Third
SPECIAL ACCOMMODATIONS: The City of Arlington strives to provide accessible meetings for people with disabilities. Please contact the ADA
coordinator at (360) 403-3441 or 1-800-833-8388 (TDD only) prior to the meeting date if special accommodations are required.
5. (10 min) Shea Carr Jewel Contract Amendment #2 for the
Transportation Comprehensive Plan
Staff Presentation: Jim Kelly
Council Liaison: Debora Nelson
ATTACHMENT E
6. (5 min) Resolution to transfer Public Works equipment to other
departments
Staff Presentation: Jim Kelly
Council Liaison: Dick Butner / Randy Tendering
ATTACHMENT F
7. (15 min) National Public Works Week
Staff Presentation: Jim Kelly
Council Liaison: Debora Nelson / Dick Butner / Randy
Tendering
ATTACHMENT G
8. (15 min) Changes to State Environmental Laws, including SEPA
Categorical Exemptions
Staff Presentation: Todd Hall
Council Liaison: Marilyn Oertle
ATTACHMENT H
9. (5 min) Appointment of Ken Levesque to the Planning Commission
Staff Presentation: David Kuhl
Council Liaison: Marilyn Oertle
ATTACHMENT I
10. Miscellaneous Council Items
PUBLIC COMMENT
For members of the public to speak to the Council regarding matters on the Council Workshop agenda.
Please limit your remarks to three minutes.
ADJOURNMENT
To open all attachments, click here
City of Arlington
Council Agenda Bill
Item:
WS #1
Attachment
A
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Street Closures for Special Events
ATTACHMENTS:
none
DEPARTMENT OF ORIGIN
Recreation
EXPENDITURES REQUESTED: -0-
BUDGET CATEGORY: N/A
LEGAL REVIEW:
DESCRIPTION:
Street closures for the following:
May 28, 10-10:30am Memorial Day Parade, Olympic Avenue- Division to 2nd Street
June 9, 6am-5:30pm Show & Shine Car Show, Olympic Avenue- Division to 2nd Street
July 4, 2pm-7pm Kiddies Parade & Grand Parade, Olympic Avenue and line-up areas
July 13-15, 6am-7pm, Olympic Avenue- 5th Street to 2nd Street
HISTORY:
These events will go through the special event application and permit process. These
are annual events.
ALTERNATIVES
Deny some or all street closures.
RECOMMENDED MOTION:
No action at this time. At the May 21, 2012 Council meeting, the Council will be
requested to approve the street closures for the special events.
City of Arlington
Council Agenda Bill
Item:
WS #2
Attachment
B
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Authorization to Proceed with the privately funded 9/11 Memorial at Firehouse 46
ATTACHMENTS:
DEPARTMENT OF ORIGIN
Fire – Contact Chief Bruce Stedman, 360-403-3601
EXPENDITURES REQUESTED: -0-
BUDGET CATEGORY: N/A
LEGAL REVIEW:
DESCRIPTION:
Staff is requesting the Council’s authority to proceed with the privately funded 9/11 Memorial
at Firehouse 46.
HISTORY:
The City received a piece of the Twin Towers to incorporate into a memorial at Firehouse 46 in
2011. This piece was unveiled at the 9/11/11 memorial and Firehouse 46 grand reopening.
ALTERNATIVES
RECOMMENDED MOTION:
The Council is asked to authorize staff to proceed so that the community effort to raise funds
for the construction of the memorial can continue.
City of Arlington
Council Agenda Bill
Item:
WS #3
Attachment
C
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
BNSF Lebanon Crossing and Construction Easements
ATTACHMENTS:
BNSF Construction and Maintenance Agreement
BNSF Form 704 Easement
DEPARTMENT OF ORIGIN:
Public Works – Eric Scott
EXPENDITURES REQUESTED: $250,427
BUDGET CATEGORY: Transportation Imp. Fund , STP Grant, TIB
Grant
LEGAL REVIEW:
DESCRIPTION:
Enter into an easement agreement with BNSF along with a construction and maintenance
agreement for the construction of the crossing at Lebanon Street.
HISTORY:
As part of the 67th Ave Phase III project, staff has been coordinating with BNSF on the
construction and expansion of the crossing at Lebanon St. Construction will include
replacement of the existing timber spacers with concrete, and expand the crossing to
accommodate the completion of the Centennial Trail gap. Costs for the agreement are:
$ 13,161 Temporary Construction License
$ 21,816 Easement
$ 2,000 Administrative Fee
$213,450 Estimated construction cost for Lebanon Crossing
$250,427 TOTAL
ALTERNATIVES
• Remand to staff for additional information
• Table pending additional discussion
RECOMMENDED MOTION:
Workshop only, no action requested. At the May 21st meeting the recommendation will be :
“I move to approve the BNSF Lebanon Crossing and Construction Easements necessary for
construction of the 67th Ave project and authorize the mayor to sign, pending final approval by
the City Attorney”.
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GRADE CROSSING CONSTRUCTION AND MAINTENANCE
AGREEMENT
BNSF File No.: 092097B
Mile Post 6.75
Line Segment 406
U.S. DOT Number 092097B
Arlington Spur (Bellingham Sub)
This Agreement (“Agreement”), is executed to be effective as of this ______ day of
_____________, 20__ (“Effective Date”), by and between BNSF RAILWAY
COMPANY, a Delaware corporation ("BNSF"), and the City of Arlington, a political
subdivision of the State of WA ("Agency”).
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the City of
Arlington, State of WA;
WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is
undertaking a project to improve and widen the existing Lebanon Street at-grade
crossing, located at BNSF Line Segment 406 and Milepost 6.75, and designated by
D.O.T. No. 092097B, by widening the roadway with a sidewalk across the BNSF right-
of-way as indicated on the Exhibit A, attached
WHEREAS, the parties agree that BNSF will receive no ascertainable benefit from the
installation of advance warning signs, pavement marking stop bars or crossing signal
equipment (hereinafter collectively called, “Crossing Signal Equipment”); and
WHEREAS, BNSF agrees to purchase and install, at AGENCY’S sole expense, the new
crossing surface described in the scope of work herein, and upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I) SCOPE OF WORK
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1. The term "Project" as used herein includes any and all work related to the
reconstruction and widening of the Lebanon Street by Agency and installation of a new
crossing surfaces at U.S. D.O.T No. 092097B, (hereinafter referred to as the
"Crossing") by BNSF, more particularly described on the Exhibit A, including, but not
limited to, any and all changes to telephone, telegraph, signal and electrical lines and
appurtenances, temporary and permanent track work, fencing, grading, alterations to or
new construction of drainage facilities, preliminary and construction engineering and
contract.
ARTICLE II) RAILROAD OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful
performance thereof, BNSF agrees as follows:
1. In consideration of the faithful performance of the Agency’s covenants contained
herein, BNSF hereby grants to Agency, its successors and assigns, upon and subject to
the terms and conditions set forth in this Agreement, a temporary non-exclusive license
(hereinafter called, “Temporary Construction License”) to construct the Crossing across
or upon the portion of BNSF's right-of-way described further on Exhibit A-1, attached
hereto and incorporated herein, excepting and reserving BNSF’s rights, and the rights of
any others who have obtained, or may obtain, permission or authority from BNSF, to do
the following:
(a) Operate, maintain, renew and/or relocate any and all existing railroad track or
tracks, wires, pipelines and other facilities of like character upon, over or
under the surface of said right-of-way;
(b) Construct, operate, maintain, renew and/or relocate upon said right-of-way,
without limitation, such facilities as the BNSF may from time to time deem
appropriate;
(c) Otherwise use or operate the right-of-way as BNSF may from time to time
deem appropriate.
Prior to commencing any work on BNSF’s property or right-of-way, Agency must
pay BNSF the sum of thirteen thousand, one hundred sixty one and No/100 Dollars
($13,161.00) as compensation for the Temporary Construction License. The term of the
Temporary Construction License begins on the Effective Date and ends on the earlier of
(i) substantial completion of the Structure, or (ii) twelve (12) months following the
Effective Date. The Temporary Construction License and related rights given by BNSF
to Agency in this provision are without warranty of title of any kind, express or implied,
and no covenant of warranty of title will be implied from the use of any word or words
herein contained. The Temporary Construction License is for construction of the
Crossing only and shall not be used by Agency for any other purpose. Agency
acknowledges and agrees that Agency shall not have the right, under the Temporary
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Construction License, to use the Crossing. In the event Agency is evicted by anyone
owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to
Agency for any damages, losses or any expenses of any nature whatsoever. The
granting of similar rights to others, subsequent to the date of this Agreement, will not
impair or interfere with the rights granted to Agency herein.
Upon receiving the payment from Agency described in the subsequent sentence
and provided Agency is in compliance with the terms and conditions of this Agreement,
BNSF will grant to Agency, its successors and assigns, an easement (hereinafter called,
the “Easement”) to enter upon and use that portion of BNSF’s right-of-way as is
necessary to use and maintain the Crossing, substantially in the form of Exhibit B
attached to this Agreement. Agency must pay BNSF the sum of twenty one thousand,
eight hundred sixteen and No/100 Dollars ($21,816.00) as compensation for the
Easement within thirty (30) days of issuing a Notice to Proceed pursuant to Article III,
Section 8 of this Agreement. If Agency fails to pay BNSF within the thirty day time
period set forth in the preceding sentence, BNSF may stop construction of the Project
until full payment is received by BNSF.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work
required for the construction of the Project, such railroad work and the estimated cost
thereof being as shown on Exhibit D attached hereto and made a part hereof. In the
event construction on the Project has not commenced within six (6) months following
the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost
estimates set forth in said Exhibit D. In such event, the revised cost estimates will
become a part of this Agreement as though originally set forth herein. Any item of work
incidental to the items listed on Exhibit D not specifically mentioned therein may be
included as a part of this Agreement upon written approval of Agency, which approval
will not be unreasonably withheld. Construction of the Project must include the
following railroad work (“Railroad Work”) by BNSF:
(a) Procurement of materials, equipment and supplies necessary for the Railroad
Work;
(b) Preliminary engineering, design, and contract preparation;
(c) Furnishing of flagging services during construction of the Project as required and
set forth in further detail on Exhibit C, attached to this Agreement and made a
part hereof;
(d) Furnishing engineering and inspection as required in connection with the
construction of the Project;
(e) Removal and disposal of the existing crossing surfaces from the Crossing;
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(f) Installation of two 80-foot concrete crossing surfaces for the one track, complete
with new rail, ties, ballast, fasteners, along with appropriate surfacing, to carry
the improved roadway and sidewalks
(g) Make such changes in the alignment, location and elevation of its telephone,
telegraph, signal and/or wire lines and appurtenances along, over or under the
tracks, both temporary and permanent, as may become necessary by reason of
the construction of the Project.
3. BNSF will do all Railroad Work set forth in Article II, Section 2 above on an actual
cost basis at Agency’s expense, when BNSF, in its sole discretion, determines it is
required by its labor agreements to perform such work with its own employees working
under applicable collective bargaining agreements.
4. Agency agrees to reimburse BNSF for work of an emergency nature caused by
Agency or Agency’s contractor in connection with the Project which BNSF deems is
reasonably necessary for the immediate restoration of railroad operations, or for the
protection of persons or BNSF property. Such work may be performed by BNSF
without prior approval of Agency and Agency agrees to fully reimburse BNSF for all
such emergency work.
5. BNSF may charge Agency for insurance expenses, including self-insurance
expenses, when such expenses cover the cost of Employer's Liability (including, without
limitation, liability under the Federal Employer's Liability Act) in connection with the
construction of the Project. Such charges will be considered part of the actual cost of
the Project, regardless of the nature or amount of ultimate liability for injury, loss or
death to BNSF's employees, if any.
6. During the construction of the Project, BNSF will send Agency progressive
invoices detailing the costs of the Railroad Work performed by BNSF under this
Agreement. Agency must reimburse BNSF for completed work within thirty (30) days of
the date of the invoice for such work. Upon completion of the Project, BNSF will send
Agency a detailed invoice of final costs, segregated as to labor and materials for each
item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV,
Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of
the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum)
on any unpaid sums or other charges due under this Agreement which are past its
credit terms. The finance charge continues to accrue daily until the date payment is
received by BNSF, not the date payment is made or the date postmarked on the
payment. Finance charges will be assessed on delinquent sums and other charges as
of the end of the month and will be reduced by amounts in dispute and any unposted
payments received by the month’s end. Finance charges will be noted on invoices sent
to Agency under this section.
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ARTICLE III) AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance
thereof, Agency agrees as follows:
1. Agency must furnish to BNSF plans and specifications for the Project. Said
plans (reduced size 11” x 17”), showing the plan and profile of the roadway work on
BNSF right-of-way and marked as Exhibit A, attached hereto and made a part hereof,
must be submitted to BNSF for the development of railroad cost estimates.
2. Agency must make any required application and obtain all required permits and
approvals for the construction of the Project.
3. Agency must acquire all rights of way necessary for the construction of the
Project.
4. Agency must make any and all arrangements for the installation or relocation of
wire lines, pipe lines and other facilities owned by private persons, companies,
corporations, political subdivisions or public utilities other than BNSF which may be
necessary for the construction of the Project.
5. Agency must construct the Project as shown on the attached Exhibit A and do all
work (“Agency’s Work”) provided for in the plans and specifications for the Project,
except railroad work that will be performed by BNSF hereunder. Agency must furnish
all labor, materials, tools and equipment for the performance of Agency’s Work. The
principal elements of Agency’s Work are as follows:
(a) Design and Reconstruction/Construction of Lebanon Street;
(b) Installation of a pavement marking stop bar in accordance with the Manual
on Uniform Traffic Control Devices (hereinafter called, “MUTCD”);
(c) Installation of advance warning signs in accordance with the MUTCD;
(d) Perform all necessary grading and paving, including backfill of excavations
and restoration of disturbed vegetation on BNSF’s right-of-way;
(e) Provide suitable drainage, both temporary and permanent;
(f) Provide all barricades, lights, flagmen or traffic control devices necessary
for preventing vehicular traffic from using a portion of the Crossing, during
the installation of the concrete crossing surfaces, and also during the
installation of the Crossing Signal Equipment;
(g) Construct asphalt/concrete roadway surface on approaches to each track.
Roadway surface will match elevation of the Main (and Siding) Track
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crossing surface(s) and remain level to a point at least thirty (30) feet from
nearest rail. Any concrete headers will be constructed no closer than 5’-6”
(preferably 6’-0”) from centerline of each track to provide for a minimum of
11’-0” (preferably 12’-0”) opening for track and railroad crossing surface;
and
(h) Job site cleanup including removal of all construction materials, concrete
debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and
other waste materials to the satisfaction of BNSF.
6. The Agency will approve the location of the signals and signal bungalow prior to
the installation by BNSF.
7. The Agency must have advanced railroad crossing signs and standard pavement
markings in place at the crossing shown on Exhibit A (if the same are required by the
MUTCD) prior to the acceptance of this Project by the Agency.
8. The Agency must give BNSF’s Manager Public Projects written notice to proceed
(“Notice to Proceed”) with the railroad portion of the work after receipt of necessary
funds for the Project. Unless otherwise agreed, BNSF will not begin the Railroad Work
(including, without limitation, procurement of supplies, equipment or materials) until
written notice to proceed is received from Agency.
9. The Agency’s Work must be performed by Agency or Agency's contractor in a
manner that will not endanger or interfere with the safe and timely operations of BNSF
and its facilities.
10. For any future inspection or maintenance, either routine or otherwise, performed
by subcontractors on behalf of the Agency, Agency shall require the subcontractors to
execute the C and C-1 Exhibits attached hereto. Prior to performing any future
maintenance with its own personnel, Agency shall: comply with all of BNSF’s applicable
safety rules and regulations; require any Agency employee performing maintenance to
complete the safety training program at the BNSF’s Internet Website
“contractororientation.com”; notify BNSF when, pursuant to the requirements of Exhibit
C, a flagger is required to be present; procure, and have approved by BNSF’s Risk
Management Department, Railroad Protective Liability insurance.
11. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty
(30) calendar days prior to requesting a BNSF flagman in accordance with the
requirements of Exhibit C attached hereto. Additionally, Agency must require its
contractor(s) to notify BNSF’s Manager of Public Projects thirty (30) calendar days prior
to commencing work on BNSF property or near BNSF tracks.
12. Agency must include the following provisions in any contract with its contractor(s)
performing work on said Project:
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(a) The Contractor is placed on notice that fiber optic, communication and
other cable lines and systems (collectively, the “Lines”) owned by
various telecommunications companies may be buried on BNSF’s
property or right-of-way. The locations of these Lines have been
included on the plans based on information from the
telecommunications companies. The contractor will be responsible for
contacting BNSF’s Engineering Representative, Dave Johnson at
(206) 625-6189 and/or the telecommunications companies and
notifying them of any work that may damage these Lines or facilities
and/or interfere with their service. The contractor must also mark all
Lines shown on the plans or marked in the field in order to verify their
locations. The contractor must also use all reasonable methods when
working in the BNSF right-of-way or on BNSF property to determine if
any other Lines (fiber optic, cable, communication or otherwise) may
exist.
(b) Failure to mark or identify these Lines will be sufficient cause for
BNSF’s engineering representative Dave Johnson at (206) 625-6189
to stop construction at no cost to the Agency or BNSF until these items
are completed.
In addition to the liability terms contained elsewhere in this Agreement, the contractor
hereby indemnifies, defends and holds harmless BNSF for, from and against all cost,
liability, and expense whatsoever (including, without limitation, attorney’s fees and court
costs and expenses) arising out of or in any way contributed to by any act or omission
of Contractor, its subcontractors, agents and/or employees that cause or in any way or
degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or
its subcontractors, agents and/or employees, on BNSF’s property or within BNSF’s
right-of-way, (2) any injury to or death of any person employed by or on behalf of any
telecommunications company, and/or its contractor, agents and/or employees, on
BNSF’s property or within BNSF’s right-of-way, and/or (3) any claim or cause of action
for alleged loss of profits or revenue by, or loss of service by a customer or user of such
telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS
AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
(c) The Contractor will be responsible for the rearrangement of any
facilities or Lines determined to interfere with the construction. The
Contractor must cooperate fully with any telecommunications
company(ies) in performing such rearrangements.
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13. Agency must require compliance with the obligations set forth in this Agreement,
including Exhibit C and Exhibit C-1, and incorporate in each prime contract for
construction of the Project, or the specifications therefor (i) the provisions set forth in
Article III; (ii) the provisions set forth in Article IV; and (iii) the provisions set forth in
Exhibit C and Exhibit C-1, attached hereto and by reference made a part hereof.
14. Except as otherwise provided below in this Section 14, all construction work
performed hereunder by Agency for the Project will be pursuant to a contract or
contracts to be let by Agency, and all such contracts must include the following:
(a) All work performed under such contract or contracts within the limits of
BNSF's right-of-way must be performed in a good and workmanlike
manner in accordance with plans and specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF
operations must be subject to BNSF's approval;
(c) No work will be commenced within BNSF's right-of-way until each of the
prime contractors employed in connection with said work must have (i)
executed and delivered to BNSF a letter agreement in the form of Exhibit
C-1, and (ii) delivered to and secured BNSF's approval of the required
insurance;
(d) If it is in Agency’s best interest, Agency may direct that the construction of
the Project be done by day labor under the direction and control of
Agency, or if at any time, in the opinion of Agency, the contractor has
failed to prosecute with diligence the work specified in and by the terms of
said contract, Agency may terminate its contract with the contractor and
take control over the work and proceed to complete the same by day labor
or by employing another contractor(s) provided; however, that any
contractor(s) replacing the original contractor(s) must comply with the
obligations in favor of BNSF set forth above and, provided further, that if
such construction is performed by day labor, Agency will, at its expense,
procure and maintain on behalf of BNSF the insurance required by Exhibit
C-1.
(e) To facilitate scheduling for the Project, Agency shall have its contractor
give BNSF’s Roadmaster 90 days advance notice of the proposed times
and dates for work windows. BNSF and Agency’s contractor will establish
mutually agreeable work windows for the Project. BNSF has the right at
any time to revise or change the work windows, due to train operations or
service obligations. BNSF will not be responsible for any additional costs
and expenses resulting from a change in work windows. Additional costs
and expenses resulting from a change in work windows shall be
accounted for in the contractor’s expenses for the Project.
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15. Agency must advise the appropriate BNSF Manager Public Projects, in writing, of
the completion date of the Project within thirty (30) days after such completion date.
Additionally, Agency must notify BNSF's Manager Public Projects, in writing, of the date
on which Agency and/or its Contractor will meet with BNSF for the purpose of making
final inspection of the Project.
16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY
RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS
AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL
REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, COURT COSTS AND ATTORNEYS’ FEES) OF ANY NATURE, KIND
OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE
EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY
ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART)
(I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY
THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR
AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE
SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR
ABOUT THE CONSTRUCTION SITE, (IV) AGENCY’S BREACH OF THE
TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY
PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR
INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS
AGREEMENT, (VI) AGENCY’S OCCUPATION AND USE OF BNSF’S PROPERTY
OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT
MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR
OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR
CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY
OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE
LIABILITY ASSUMED BY AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT
IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS
AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.
ARTICLE IV) JOINT OBLIGATIONS
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IN CONSIDERATION of the premises, the parties hereto mutually agree to the
following:
1. All work contemplated in this Agreement must be performed in a good and
workmanlike manner and each portion must be promptly commenced by the party
obligated hereunder to perform the same and thereafter diligently prosecuted to
conclusion in its logical order and sequence. Furthermore, any changes or
modifications during construction which affect BNSF will be subject to BNSF's approval
prior to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the
detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's
construction schedule for all Project work. The parties hereto mutually agree that
BNSF's failure to complete the Railroad Work in accordance with the construction
schedule due to inclement weather or unforeseen railroad emergencies will not
constitute a breach of this Agreement by BNSF and will not subject BNSF to any
liability. Regardless of the requirements of the construction schedule, BNSF reserves
the right to reallocate the labor forces assigned to complete the Railroad Work in the
event of an emergency to provide for the immediate restoration of railroad operations
(BNSF or its related railroads) or to protect persons or property on or near any BNSF
owned property. BNSF will not be liable for any additional costs or expenses resulting
from any such reallocation of its labor forces. The parties mutually agree that any
reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect
consequences or costs resulting from any such reallocation will not constitute a breach
of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the
following events take place: (i) Agency (or any of its contractors) performs the Project
work in a manner contrary to the plans and specifications approved by BNSF; (ii)
Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a
manner which is hazardous to BNSF property, facilities or the safe and expeditious
movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is
canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the
Temporary Construction License or the Easement pursuant to Article II, Section 1 of this
Agreement. The work stoppage will continue until all necessary actions are taken by
Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division
Engineer or until additional insurance has been delivered to and accepted by BNSF. In
the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or
(iii) the Easement, BNSF may immediately terminate the Temporary Construction
License or the Easement. Any such work stoppage under this provision will not give
rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to
any other rights BNSF may have including, but not limited to, actions or suits for
damages or lost profits. In the event that BNSF desires to stop construction work on the
Project, BNSF agrees to immediately notify the following individual in writing:
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Eric Scott
City of Arlington
238 North Olympic Ave.
Arlington, WA 98223
5. Agency must supervise and inspect the operations of all Agency contractors to
assure compliance with the plans and specifications approved by BNSF, the terms of
this Agreement and all safety requirements of the BNSF railroad. If BNSF determines
that proper supervision and inspection is not being performed by Agency personnel at
any time during construction of the Project, BNSF has the right to stop construction
(within or adjacent to its operating right-of-way). Construction of the Project will not
proceed until Agency corrects the situation to BNSF’s reasonable satisfaction. If BNSF
feels the situation is not being corrected in an expeditious manner, BNSF will
immediately notify Eric Scott for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, out of
funds made available to it for the construction of the Project, reimburse BNSF in full for
the actual costs of all work performed by BNSF under this Agreement.
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section
6 herein will comply with the terms and provisions of the Federal Aid Highway Program
Manual, U.S. Department of Transportation, as amended from time to time, which
manual is hereby incorporated into and made a part of this Agreement by reference.
The parties mutually agree that BNSF's preliminary engineering, design, and contract
preparation costs described in Article II, Section 2 herein are part of the costs of the
Project even though such work may have preceded the date of this Agreement.
8. The construction of the Project will not commence until Agency gives BNSF's
Manager Public Projects thirty (30) days prior written notice of such commencement.
The commencement notice will reference BNSF's file number and D.O.T. Crossing No.
092097B and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement,
BNSF and the Agency agree to the following terms upon completion of construction of
the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future
construction or reconstruction of the Lebanon Street roadway.
(b) Agency will maintain the elevation of the Lebanon Street roadway
approaches to match the elevation on the railroad track crossing surfaces
and to be no more than three (3) inches above or six (6) inches below top-
of-rail elevation at a distance measured thirty (30) feet from the nearest
rail.
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(c) Agency will maintain the advanced railroad crossing warning signs and
pavement markings and agrees to hold harmless and indemnify BNSF for
any claims, damages or losses, in whole or in part, caused by or due to
the Agency’s failure to maintain the advanced warning signs and markings
or other requirements of the MUTCD.
(d) Agency will do nothing and permit nothing to be done in the maintenance
of the Lebanon Street roadway, which will interfere with or endanger
facilities of BNSF.
(e) It is expressly understood by Agency and BNSF that any right to install
utilities will be governed by a separate permit or license agreement
between the parties hereto.
(f) BNSF will, at its sole cost and expense, operate and maintain the
Crossing Signal Equipment, Crossing Signal Control House, and the new
crossing surfaces, from end-of-tie to end-of-tie, in proper condition, and
the new crossing surfaces, from end-of-tie to end-of-tie.
(g) Notwithstanding the preceding provision, if any regulations, ordinances,
acts, rules or other laws subsequently passed or amended by the Agency
or any other governmental or legislative authority increase the Agency’s
portion of maintenance cost under this Agreement, BNSF will receive the
benefit of any such regulations, ordinances, acts, rules or other laws and
the Agency’s increased portion of maintenance costs will be incorporated
into and made a part of this Agreement.
(h) If a railway or highway improvement project necessitates rearrangement,
relocation, or alteration of the Crossing Signal Equipment, Crossing Signal
House, or the new crossing surface or the new crossing surface installed
hereunder, the costs for such rearrangement, relocation or alteration will
be the responsibility of the party requesting such changes.
(i) If any of the Crossing Signal Equipment is partially or wholly destroyed,
then such repair and/or replacement costs must be distributed among the
parties as follows:
a) In the event the BNSF’s sole negligence destroys or
damages the Crossing Signal Equipment and/or the
Crossing Signal House, BNSF must, at its sole cost and
expense, replace or repair such Crossing Signal Equipment
and/or Crossing Signal House.
b) In the event the Crossing Signal Equipment is damaged or
destroyed by any other cause, Agency must reimburse
BNSF for the costs to replace or repair such Crossing Signal
Equipment and/or Crossing Signal House.
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(j) If the Crossing Signal Equipment and/or Crossing Signal House installed
hereunder cannot, through age, be maintained, or by virtue of its
obsolescence, requires replacement, the cost of installation of the new
crossing signal equipment and/or new crossing signal house will be
negotiated by the parties hereto on the basis of the current Federal Aid
Railroad Signal Program participation and applicable Agency at the time of
such replacement is warranted.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public
Projects before entering BNSF's right-of-way for Inspection and Maintenance
purposes and the BNSF Manager of Public Projects will determine if flagging is
required. If the construction work hereunder is contracted, Agency must require its
prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1,
as the same may be revised from time to time. Agency will be responsible for its
contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the
work hereunder or the costs or expenses for labor and material connected with the
construction will at all reasonable times be open to inspection and audit by the agents
and authorized representatives of the parties hereto, as well as the State of WA and
the Federal Highway Administration, for a period of three (3) years from the date of final
BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to
the benefit of the successors and assigns of the parties hereto. Notwithstanding the
preceding sentence, neither party hereto may assign any of its rights or obligations
hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 2 years of the
Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from
any liability or obligation under this Agreement, whether of indemnity or otherwise,
resulting from any acts, omissions or events happening prior to the date of termination
or expiration.
15. To the maximum extent possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law. If any
provision of this Agreement is prohibited by, or held to be invalid under, applicable law,
such provision will be ineffective solely to the extent of such prohibition or invalidity and
the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc.
incorporated herein) is the full and complete agreement between BNSF and Agency
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with respect to the subject matter herein and supersedes any and all other prior
agreements between the parties hereto.
17. The requirements of 23 C.F.R. section 635.410 (“Buy America”) apply to this
project, except as provided in 23 C.F.R. section 140.908, Railroad shall not be required
to change its existing standards for materials used in permanent changes to Railroad’s
facilities.
18. Any notice provided for herein or concerning this Agreement must be in writing
and will be deemed sufficiently given when sent by certified mail, return receipt
requested, to the parties at the following addresses:
BNSF Railway Company:
BNSF's Manager Public Projects
2454 Occidental Ave S #2-D
Seattle, WA 98134
Agency:
City of Arlington
Eric Scott
238 North Olympic Ave
Arlington, WA 98223
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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.
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
WITNESS:
___________________________
City of Arlington
WITNESS:
___________________________
By:
Printed Name:
Title: _____________________
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Exhibit A-1
[Insert cross-hatched drawing of the Temporary Construction License and Structure]
[BARTLETT AND WEST TO PREPARE EXHIBIT A]
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EXHIBIT “B”
EASEMENT AGREEMENT
FOR _____________________________
(Overpass Agreement)
THIS EASEMENT AGREEMENT FOR _________________ ("Easement
Agreement") is made and entered into as of the ____ day of _________ 20___
("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware
corporation ("Grantor"), and __________________________, a ________________
("Grantee").
A. Grantor owns or controls certain real property situated at or near the
vicinity of _______________________, County of _____________, State of
_________, at Mile Post __________, [Project # ___________], as described or
depicted on Exhibit "A-1" attached hereto and made a part hereof (the "Premises").
B. Grantor and Grantee have entered into that certain Overpass Agreement
dated as of ______________________________________ concerning improvements
on or near the Premises (the “Overpass Agreement”).
C. Grantee has requested that Grantor grant to Grantee an easement over
the Premises for the Easement Purpose (as defined below).
D. Grantor has agreed to grant Grantee such easement, subject to the terms
and conditions set forth in this Easement Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are
incorporated herein, the mutual promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
Section 1 Granting of Easement.
1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set
forth in the OVERPASS Agreement. Any improvements to be constructed in
connection with the Easement Purpose are referred to herein as "Improvements"
and shall be constructed, located, configured and maintained by Grantee in strict
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accordance with the terms of this Easement Agreement and the OVERPASS
Agreement.
1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement
("Easement") over the Premises for the Easement Purpose and for no other
purpose. The Easement is granted subject to any and all restrictions, covenants,
easements, licenses, permits, leases and other encumbrances of whatsoever nature
whether or not of record, if any, relating to the Premises and subject to all with all
applicable federal, state and local laws, regulations, ordinances, restrictions,
covenants and court or administrative decisions and orders, including Environmental
Laws (defined below) and zoning laws (collectively, "Laws"). Grantor may not make
any alterations or improvements or perform any maintenance or repair activities
within the Premises except in accordance with the terms and conditions of the
OVERPASS Agreement.
1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be
exercised by Grantor and any other parties who may obtain written
permission or authority from Grantor:
(a) to install, construct, maintain, renew, repair, replace, use, operate,
change, modify and relocate any existing pipe, power,
communication, cable, or utility lines and appurtenances and other
facilities or structures of like character (collectively, "Lines") upon,
over, under or across the Premises;
(b) to install, construct, maintain, renew, repair, replace, use, operate,
change, modify and relocate any tracks or additional facilities or
structures upon, over, under or across the Premises; and
(c) to use the Premises in any manner as the Grantor in its sole
discretion deems appropriate, provided Grantor uses all
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commercially reasonable efforts to avoid material interference with
the use of the Premises by Grantee for the Easement Purpose.
Section 2 Term of Easement. The term of the Easement, unless sooner terminated
under provisions of this Easement Agreement, shall be perpetual. [If this is a
temporary easement replace the preceding sentence with the following: The term
of this Easement, unless sooner terminated under provisions of this Easement
Agreement, shall expire on the date that is ___________________________________
after the Effective Date.]
Section 3 No Warranty of Any Conditions of the Premises. Grantee
acknowledges that Grantor has made no representation whatsoever to Grantee
concerning the state or condition of the Premises, or any personal property located
thereon, or the nature or extent of Grantor's ownership interest in the Premises.
Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as
an inducement to entering into this Easement Agreement, other than as set forth herein.
GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY,
WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY
PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE
QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR
THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES.
GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S
CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION,
QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE
PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED
USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT
AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL
FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S
RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will
inspect the Premises, and enters upon Grantor's rail corridor and property with
knowledge of its physical condition and the danger inherent in Grantor's rail operations
on or near the Premises. Grantee acknowledges that this Easement Agreement does
not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter
defined) can successfully construct or operate the Improvements.
Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT
WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND
GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT
OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone
owning or claiming title to or any interest in the Premises, or by the abandonment by
Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any
compensation paid hereunder.
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Section 5 Improvements. Grantee shall take, in a timely manner, all actions
necessary and proper to the lawful establishment, construction, operation, and
maintenance of the Improvements, including such actions as may be necessary to
obtain any required permits, approvals or authorizations from applicable governmental
authorities. Any and all cuts and fills, excavations or embankments necessary in the
construction, maintenance, or future alteration of the Improvements shall be made and
maintained in such manner, form and extent as will provide adequate drainage of and
from the adjoining lands and premises of the Grantor; and wherever any such fill or
embankment shall or may obstruct the natural and pre-existing drainage from such
lands and premises of the Grantor, the Grantee shall construct and maintain such
culverts or drains as may be requisite to preserve such natural and pre-existing
drainage, and shall also wherever necessary, construct extensions of existing drains,
culverts or ditches through or along the premises of the Grantor, such extensions to be
of adequate sectional dimensions to preserve the present flowage of drainage or other
waters, and of materials and workmanship equally as good as those now existing. In the
event any construction, repair, maintenance, work or other use of the Premises by
Grantee will affect any Lines, fences, buildings, improvements or other facilities
(collectively, "Other Improvements"), Grantee will be responsible at Grantee’s sole risk
to locate and make any adjustments necessary to such Other Improvements. Grantee
must contact the owner(s) of the Other Improvements notifying them of any work that
may damage these Other Improvements and/or interfere with their service and obtain
the owner’s written approval prior to so affecting the Other Improvements. Grantee
must mark all Other Improvements on the Plans and Specifications and mark such
Other Improvements in the field in order to verify their locations. Grantee must also use
all reasonable methods when working on or near Grantor property to determine if any
Other Improvements (fiber optic, cable, communication or otherwise) may exist. The
Grantee agrees to keep the above-described premises free and clear from combustible
materials and to cut and remove or cause to be cut and removed at its sole expense all
weeds and vegetation on said premises, said work of cutting and removal to be done at
such times and with such frequency as to comply with Grantee and local laws and
regulations and abate any and all hazard of fire.
Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes,
assessments or other charges (collectively, "Taxes") levied or assessed upon the
Improvements by any governmental or quasi-governmental body or any Taxes levied or
assessed against Grantor or the Premises that are attributable to the Improvements.
Grantee agrees to purchase, affix and cancel any and all documentary stamps in the
amount prescribed by statute, and to pay any and all required transfer taxes, excise
taxes and any and all fees incidental to recordation of the Memorandum of Easement.
In the event of Grantee's failure to do so, if Grantor shall become obligated to do so,
Grantee shall be liable for all costs, expenses and judgments to or against Grantor,
including all of Grantor's legal fees and expenses.
Section 7 Environmental.
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7.1 Compliance with Environmental Laws. Grantee shall strictly comply with
all federal, state and local environmental Laws in its use of the Premises, including, but
not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the
Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the
Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
and the Toxic Substances Control Act (collectively referred to as the "Environmental
Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal"
facility, or "underground storage tank," as those terms are defined by Environmental
Laws, on the Premises. Grantee shall not handle, transport, release or suffer the
release of "hazardous waste" or "hazardous substances", as "hazardous waste" and
"hazardous substances" may now or in the future be defined by any Environmental
Laws.
7.2 Notice of Release. Grantee shall give Grantor immediate notice to
Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous
substances on or from the Premises, violation of Environmental Laws, or inspection or
inquiry by governmental authorities charged with enforcing Environmental Laws with
respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly
respond to any release on or from the Premises. Grantee also shall give Grantor
immediate notice of all measures undertaken on behalf of Grantee to investigate,
remediate, respond to or otherwise cure such release or violation.
7.3 Remediation of Release. In the event that Grantor has notice from
Grantee or otherwise of a release or violation of Environmental Laws which occurred or
may occur during the term of this Easement Agreement, Grantor may require Grantee,
at Grantee's sole risk and expense, to take timely measures to investigate, remediate,
respond to or otherwise cure such release or violation affecting the Premises. If during
the construction or subsequent maintenance of the Improvements, soils or other
materials considered to be environmentally contaminated are exposed, Grantee will
remove and safely dispose of said contaminated soils. Determination of soils
contamination and applicable disposal procedures thereof, will be made only by an
agency having the capacity and authority to make such a determination.
7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing
any conditions or activities upon the Premises known to Grantee which create a risk of
harm to persons, property or the environment and shall take whatever action is
necessary to prevent injury to persons or property arising out of such conditions or
activities; provided, however, that Grantee's reporting to Grantor shall not relieve
Grantee of any obligation whatsoever imposed on it by this Easement Agreement.
Grantee shall promptly respond to Grantor's request for information regarding said
conditions or activities.
7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor
with proof satisfactory to Grantor that Grantee is in compliance with this Section 7.
Should Grantee not comply fully with the above-stated obligations of this Section 7,
notwithstanding anything contained in any other provision hereof, Grantor may, at its
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option, terminate this Easement Agreement by serving five (5) days' notice of
termination upon Grantee. Upon termination, Grantee shall remove the Improvements
and restore the Premises as provided in Section 9.
Section 8 Default and Termination.
8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's
Contractors, fails to properly perform its obligations under this Easement Agreement,
Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed
obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work
as Grantor deems necessary for the safety of its rail operations, activities and property,
or to avoid or remove any interference with the activities or property of Grantor, or
anyone or anything present on the rail corridor or property with the authority or
permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work
performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's
failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the
liability allocation set forth in this Easement Agreement.
8.2 Abandonment. Grantor may, at its option, terminate this Easement
Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should
abandon or cease to use the Premises for the Easement Purpose. Any waiver by
Grantor of any default or defaults shall not constitute a waiver of the right to terminate
this Easement Agreement for any subsequent default or defaults, nor shall any such
waiver in any way affect Grantor's ability to enforce any section of this Easement
Agreement.
8.3 Effect of Termination or Expiration. Neither termination nor expiration will
release Grantee from any liability or obligation under this Easement, whether of
indemnity or otherwise, resulting from any acts, omissions or events happening prior to
the date of termination or expiration, or, if later, the date the Premises are restored as
required by Section 9.
8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be
in addition to, and not in limitation of, any other remedies that Grantor may have under
the OVERPASS Agreement, at law or in equity.
Section 9 Surrender of Premises.
9.1 Removal of Improvements and Restoration. Upon termination of this
Easement Agreement, whether by abandonment of the Easement or by the exercise of
Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense,
immediately perform the following:
(a) remove all or such portion of Grantee's Improvements and
all appurtenances thereto from the Premises, as Grantor
directs at Grantor's sole discretion;
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(b) repair and restore any damage to the Premises arising from,
growing out of, or connected with Grantee's use of the
Premises;
(c) remedy any unsafe conditions on the Premises created or
aggravated by Grantee; and
(d) leave the Premises in the condition which existed as of the
Effective Date.
9.2 Limited License for Entry. If this Easement Agreement is terminated,
Grantor may direct Grantee to undertake one or more of the actions set forth above, at
Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the
Premises to the extent necessary to undertake the actions directed by Grantor. The
terms of this limited license include all of Grantee's obligations under this Easement
Agreement. Termination will not release Grantee from any liability or obligation under
this Easement Agreement, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination, or, if later, the date when
Grantee's Improvements are removed and the Premises are restored to the condition
that existed as of the Effective Date. If Grantee fails to surrender the Premises to
Grantor upon any termination of the Easement, all liabilities and obligations of Grantee
hereunder shall continue in effect until the Premises are surrendered.
Section 10 Liens. Grantee shall promptly pay and discharge any and all liens
arising out of any construction, alterations or repairs done, suffered or permitted to be
done by Grantee on the Premises or attributable to Taxes that are the responsibility of
Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or
take any other action upon or with respect to the Premises that is or may be permitted
by Law to prevent the attachment of any such liens to any portion of the Premises;
provided, however, that failure of Grantor to take any such action shall not relieve
Grantee of any obligation or liability under this Section 10 or any other section of this
Easement Agreement.
Section 11 Tax Exchange. Grantor may assign its rights (but not its
obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an
exchange intermediary, in order for Grantor to effect an exchange under Section 1031
of the Internal Revenue Code. In such event, Grantor shall provide Grantee with a
Notice of Assignment, attached as Exhibit C, and Grantee shall execute an
acknowledgement of receipt of such notice.
Section 12 Notices. Any notice required or permitted to be given hereunder by one
party to the other shall be delivered in the manner set forth in the OVERPASS
Agreement. Notices to Grantor under this Easement shall be delivered to the following
address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft.
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Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time
direct by notice to Grantee.
Section 13 Recordation. It is understood and agreed that this Easement
Agreement shall not be in recordable form and shall not be placed on public record and
any such recording shall be a breach of this Easement Agreement. Grantor and
Grantee shall execute a Memorandum of Easement in the form attached hereto as
Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any,
to conform such form to local recording requirements. [IF LEGAL DESCRIPTION IS
NOT AVAILABLE USE THE FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As
of the Effective Date, a legal description of the Premises is not available. Grantee and
Grantor shall work together in good faith to establish the legal description for the
Premises. Once Grantor and Grantee have approved the legal description, Grantor and
Grantee shall execute a Memorandum of Easement in the form attached hereto as
Exhibit "B-1" (the "Memorandum of Easement").] The Memorandum of Easement
shall be recorded in the real estate records in the county where the Premises are
located. If a Memorandum of Easement is not executed by the parties and recorded as
described above within ____ days of the Effective Date, Grantor shall have the right to
terminate this Easement Agreement upon notice to Grantee.
Section 14 Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of
this Easement Agreement shall be decided according to the substantive Laws of the
State of [Texas] without regard to conflicts of law provisions.
14.2 In the event that Grantee consists of two or more parties, all the covenants
and agreements of Grantee herein contained shall be the joint and several covenants
and agreements of such parties. This instrument and all of the terms, covenants and
provisions hereof shall inure to the benefit of and be binding upon each of the parties
hereto and their respective legal representatives, successors and assigns and shall run
with and be binding upon the Premises.
14.3 If any action at law or in equity is necessary to enforce or interpret the
terms of this Easement Agreement, the prevailing party or parties shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party or parties may be entitled.
14.4 If any provision of this Easement Agreement is held to be illegal, invalid or
unenforceable under present or future Laws, such provision will be fully severable and
this Easement Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision is not a part hereof, and the remaining provisions hereof will
remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision
herein, there will be added automatically as a part of this Easement Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may
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be possible and be legal, valid and enforceable.
14.5 This Easement Agreement is the full and complete agreement between
Grantor and Grantee with respect to all matters relating to Grantee's use of the
Premises, and supersedes any and all other agreements between the parties hereto
relating to Grantee's use of the Premises as described herein. However, nothing herein
is intended to terminate any surviving obligation of Grantee or Grantee's obligation to
defend and hold Grantor harmless in any prior written agreement between the parties.
14.6 Time is of the essence for the performance of this Easement Agreement.
14.7 The terms of the OVERPASS Agreement are incorporated herein as if
fully set forth in this instrument which terms shall be in full force and effect for purposes
of this Easement even if the OVERPASS Agreement is, for whatever reason, no longer
in effect.
ADMINISTRATIVE FEE
15. Grantee acknowledges that a material consideration for this agreement,
without which it would not be made, is the agreement between Grantee and Grantor,
that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's
Broker a processing fee in the amount of $2,000.00 over and above the agreed upon
Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a
separate check.
[Signature page follows]
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Witness the execution of this Easement Agreement as of the date first set forth above.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware
corporation
By:
Name:
Title:
GRANTEE:
_____________________________________
__,
a
_____________________________________
_
By:
Name:
Title:
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EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
• 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter
referred to as "Railway" where work is over or under on or adjacent to Railway property
and/or right-of-way, hereafter referred to as "Railway Property", during the construction of
the Lebanon Street crossing.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the
Exhibit “C-1” Agreement, in the form attached hereto, obligating the Contractor to provide
and maintain in full force and effect the insurance called for under Section 3 of said Exhibit
“C-1”. Questions regarding procurement of the Railroad Protective Liability Insurance
should be directed to Rosa Martinez at Marsh, USA, 214-303-8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to
interfere with the movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of
Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of
Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or
operations. Railway will have the right to stop construction work on the Project if any of the
following events take place: (i) Contractor (or any of its subcontractors) performs the Project
work in a manner contrary to the plans and specifications approved by Railway; (ii)
Contractor (or any of its subcontractors), in Railway’s opinion, prosecutes the Project work
in a manner which is hazardous to Railway property, facilities or the safe and expeditious
movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is
canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the
Temporary Construction License or the Easement. The work stoppage will continue until all
necessary actions are taken by Contractor or its subcontractor to rectify the situation to the
satisfaction of Railway’s Division Engineer or until additional insurance has been delivered
to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the
Temporary Construction License, or (iii) the Easement, Railway may immediately terminate
the Temporary Construction License or the Easement. Any such work stoppage under this
provision will not give rise to any liability on the part of Railway. Railway’s right to stop the
work is in addition to any other rights Railway may have including, but not limited to,
actions or suits for damages or lost profits. In the event that Railway desires to stop
construction work on the Project, Railway agrees to immediately notify the following
individual in writing:
Eric Scott, City of Arlington
238 N Olympic Ave
Arlington, WA 98223
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360-403-3421
escott@arlingtonwa.gov
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State
and Local Governmental laws and regulations, including, but not limited to environmental
laws and regulations (including but not limited to the Resource Conservation and Recovery
Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor
hereby indemnifies, defends and holds harmless Railway for, from and against all fines or
penalties imposed or assessed by Federal, State and Local Governmental Agencies against
the Railway which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify the City of Arlington at 360-403-3421 and Railway's
Manager Public Projects, telephone number 206-625-6413 at least thirty (30) calendar days
before commencing any work on Railway Property. Contractors notification to Railway,
must refer to Railroad's file # 092097B.
• 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations
located with any part of the excavations located within, whichever is greater, twenty-five
(25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2
horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest
track, both measured perpendicular to center line of track, the Contractor must furnish the
Railway five sets of working drawings showing details of construction affecting Railway
Property and tracks. The working drawing must include the proposed method of installation
and removal of falsework, shoring or cribbing, not included in the contract plans and two sets
of structural calculations of any falsework, shoring or cribbing. For all excavation and
shoring submittal plans, the current “BNSF-UPRR Guidelines for Temporary Shoring” must
be used for determining the design loading conditions to be used in shoring design, and all
calculations and submittals must be in accordance with the current “BNSF-UPRR Guidelines
for Temporary Shoring”. All submittal drawings and calculations must be stamped by a
registered professional engineer licensed to practice in the state the project is located. All
calculations must take into consideration railway surcharge loading and must be designed to
meet American Railway Engineering and Maintenance-of-Way Association (previously
known as American Railway Engineering Association) Coopers E-80 live loading standard.
All drawings and calculations must be stamped by a registered professional engineer licensed
to practice in the state the project is located. The Contractor must not begin work until
notified by the Railway that plans have been approved. The Contractor will be required to
use lifting devices such as, cranes and/or winches to place or to remove any falsework over
Railway's tracks. In no case will the Contractor be relieved of responsibility for results
obtained by the implementation of said approved plans.
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the
Contractor such that the work may be handled and performed in an efficient manner. The
Contractor will have no claim whatsoever for any type of damages or for extra or additional
compensation in the event his work is delayed by the Railway.
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1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter
Railway Property without first having completed Railway’s Engineering Contractor
Safety Orientation, found on the web site www.contractororientation.com. The
Contractor must ensure that each of its employees, subcontractors, agents or invitees
completes Railway’s Engineering Contractor Safety Orientation through internet
sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or
invitees possesses a card certifying completion of the Railway Contractor Safety
Orientation before entering Railway Property. The Contractor is responsible for the
cost of the Railway Contractor Safety Orientation. The Contractor must renew the
Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway’s Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway
facilities, including track ballast, free of sand, debris, and other foreign objects and materials
resulting from his operations. Any damage to railway facilities resulting from Contractor's
operations will be repaired or replaced by Railway and the cost of such repairs or
replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railway's Division Engineer and provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any blasting
operations adjacent to or on Railway's Property.
• 1.03.03 The Contractor must abide by the following temporary clearances during
construction:
15’ Horizontally from centerline of nearest track
21’-6” Vertically above top of rail
27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
• 1.03.04 Upon completion of construction, the following clearances shall be maintained:
25’ Horizontally from centerline of nearest track
23’-3 ½” Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's
operations must be submitted to the Railway and to the City of Arlington and must not be
undertaken until approved in writing by the Railway, and until the City of Arlington has
obtained any necessary authorization from the State Regulatory Authority for the
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infringement. No extra compensation will be allowed in the event the Contractor's work is
delayed pending Railway approval, and/or the State Regulatory Authority's approval.
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the
option of installing tell-tales or other protective devices Railway deems necessary for
protection of Railway operations. The cost of tell-tales or protective devices will be borne by
the Agency.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by the City of Arlington for approval before work is undertaken and this
work must not be undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
"Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials
across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for
use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the
completion of the project, removed at the expense of the Contractor.
• 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
• 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track
safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track
training for all employees of the Contractor, its subcontractors, agents or invitees. This training is
reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and
implement the Safety Action Plan, as provided for on the web site www.contractororientation.com,
which will be made available to Railway prior to commencement of any work on Railway Property. During
the performance of work, the Contractor must audit its work activities. The Contractor must designate an
on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a
copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site.
• Contractor shall have a background investigation performed on all of its employees,
subcontractors and agents who will be performing any services on railroad property under
this Agreement.
The background screening shall at a minimum meet the criteria defined by the e-
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RAILSAFE program outlined at http://www.e-railsafe.com in addition to any other
applicable regulatory requirements. The e-RAILSAFE program uses rail industry background
screening standards.
Contractor shall obtain consent from all employees screened in compliance with the e-
RAILSAFE program criteria to release completed background information to BNSF.
Contractor shall be subject to periodic audit to ensure compliance.
Contractor shall not permit any of its employees, subcontractors or agents to perform services
on property hereunder who are not approved under e-RAILSAFE program standards.
Railroad shall have the right to deny entry onto its premises to any of Contractor's
employees, subcontractors or agents who do not display the authorized identification badge
issued by a background screening service meeting the standards set forth for the e-
RAILSAFE program or who pose a threat, in Railroad's reasonable opinion, to the safety or
security of Railroad's operations.
Contractors shall ensure its employees, subcontractors and agents are United States citizens
or legally working in this country under a work VISA.
1.05 Railway Flagger Services:
• 1.05.01 The Contractor must give Railway’s Roadmaster (telephone 509-531-6305) a minimum of thirty (30)
calendar days advance notice when flagging services will be required so that the Roadmaster can make
appropriate arrangements (i.e., bulletin the flagger’s position). If flagging services are scheduled in advance by
the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements
can be made to abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway’s Project Representative, Railway flagger will be required
and furnished when Contractor’s work activities are located over, under and/or within twenty-five (25) feet
measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned
beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic
occurrence, but not limited thereto for the following conditions:
• 1.05.02a When, upon inspection by Railway’s Representative, other conditions warrant.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's
representative, track or other Railway facilities may be subject to movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
• 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities
either due to persons, material, equipment or blasting in the vicinity.
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to
protect Railway Property and operations, if deemed necessary by the Railways Representative.
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• 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by the (Agency)
. The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) hour basic
day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each
flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and
property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio,
equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway
labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may
increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF
PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE
ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH.
• 1.05.03d The average train traffic on this route is 2 freight trains per 24-hour period at a timetable speed 25
MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway’s Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come
in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be
reported immediately to the Railway representative in charge of the project and to the Railway's Resource
Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at the job site.
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• 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly
weapons in their possession while working on Railway's Property.
• 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad’s
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE – Should there be a discrepancy between the information
contained on the web site and the information in this paragraph, the web site will govern.)
• 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR
EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT
WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY
CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW
OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE
CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE
RAILROAD'S REPRESENTATIVE.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500
to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
• 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway’s Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact BNSF’s Field Engineering Representative (David Johnson 206-625-6189). All
underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the
company having ownership of the line. It is the Contractor's responsibility to notify any other companies
that have underground utilities in the area and arrange for the location of all underground utilities
before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and
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the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there
is any doubt about the location of underground cables or lines of any kind, no work must be performed until the
exact location has been determined. There will be no exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of
depth, must be shored where there is any danger to tracks, structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or
protected when not being worked on. When leaving work site areas at night and over weekends, the areas must
be secured and left in a condition that will ensure that Railway employees and other personnel who may be
working or passing through the area are protected from all hazards. All excavations must be back filled as soon
as possible.
1.08 Hazardous Waste, Substances and Material Reporting
• 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious
material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's
Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at
1(817) 352-7595 and to the Railway’s Project Representative no later than the close of shift on the date of the
injury.
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St 2. Date: Time:
County: 3. Temperature: 4. Weather
(if non-Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street: City: St. Zip:
8. Date of Birth: and/or Age Gender:
(if available)
9. (a) Injury: (b) Body Part:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name 30. Date:
14. Dr. Address:
Street: City: St: Zip:
15. Hospital Name:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
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EXHIBIT "C-1"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: 092097B
Agency Project: _______________________________
Gentlemen:
The undersigned (hereinafter called, the “Contractor”), has entered into a contract (the
“Contract”) dated ______________, 20__, with for the performance of certain work in
connection with the following project: City of Arlington Lebanon Street crossing. Performance
of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY
("Railway") right of way and property ("Railway Property"). The Contract provides that no
work will be commenced within Railway Property until the Contractor employed in connection
with said work for the City of Arlington (i) executes and delivers to Railway an Agreement in
the form hereof, and (ii) provides insurance of the coverage and limits specified in such
Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner,
General Partner, President or Vice President of Contractor, Contractor must furnish evidence to
Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date of the
Contract, has agreed and does hereby agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all
judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death
to all persons, including Railway's and Contractor's officers and employees, and for loss and
damage to property belonging to any person, arising in any manner from Contractor's or any of
Contractor's subcontractors' acts or omissions or any work performed on or about Railway’s
property or right-of-way. This obligation shall not include such claims, costs, damages, or
expenses which may be caused by the sole negligence of Railway or its contractors, agents
or employees; Provided, that if the claims or damages are caused by or result from the
concurrent negligence or other acts or omissions of (a) Railway, its contractors, agents or
employees and (b) Contractor, its subcontractors, agents or employees, this provision shall
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be valid and enforceable only to the extent of the negligence of the Contractor, its
subcontractors, agents or employees.
It is mutually negotiated between the parties that the indemnification obligation
shall include all claims brought by Contractor’s employees against Railway, its agents,
servants, employees or otherwise, and Contractor expressly waives its immunity under the
industrial insurance act (RCW Title 51) and assumes potential liability for all actions
brought by its employees.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR
INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY
UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR
STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE
LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it
will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear
and defend any suits or actions of law or in equity brought against Railway on any claim or cause
of action arising or growing out of or in any manner connected with any liability assumed by
Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway
will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the
event of a suit being brought against Railway, Railway may forward summons and complaint or
other process in connection therewith to Contractor, and Contractor, at Railway's discretion,
must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from
and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of
or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion
of this Article shall be deemed to be inapplicable for any reason, including without limitation as
a result of a decision of an applicable court, legislative enactment or regulatory order, the parties
agree that this Article shall be interpreted as requiring Contractor to indemnify Railroad to the
fullest extent permitted by applicable law.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the
project set forth herein, and (ii) full and complete payment to Railway of any and all sums or
other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this
Agreement the
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following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $2,000,000 each
occurrence and an aggregate limit of at least $4,000,000 but in no event less than the
amount otherwise carried by the contractor. Coverage must be purchased on a post
1998 ISO occurrence form or equivalent and include coverage for, but not limit to the
following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on
the certificate of insurance:
♦ The definition of insured contract must be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
♦ Waver of subrogation in favor of and acceptable to Railroad.
♦ Additional insured endorsement in favor of and acceptable to Railroad.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
It is agreed that any workers’ compensation exclusion does not apply to Railroad
payments related to the Federal Employers Liability Act or a Railroad Wage
Continuation Program or similar programs and any payments made are deemed not to be
either payments made or obligations assumed under any Workers Compensation,
disability benefits, or unemployment compensation law or similar law.
No other endorsements limiting coverage as respects obligations under this Agreement may be
included on the policy with regard to the work being performed under this agreement.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railroad.
♦ Additional insured endorsement in favor or and acceptable to Railroad.
♦ Separation of insureds.
39 of 42
♦ The policy shall be primary and non-contributing with respect to any
insurance carried by Railroad.
C. Workers Compensation and Employers Liability insurance including coverage for,
but not limited to:
♦ Contractor’s statutory liability under the worker’s compensation laws of the
state(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
♦ Employers’ Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railroad.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The
policy Must be issued on a standard ISO form CG 00 35 10 93 and include the
following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any
work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor’s
Blanket Railroad Protective Liability Insurance Policy available to contractor.
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive
damages and certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits
against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement,
waive their right of subrogation against Railroad for all claims and suits. The certificate of
insurance must reflect the waiver of subrogation endorsement. Contractor further waives its
right of recovery, and its insurers also waive their right of subrogation against Railroad for loss
of its owned or leased property or property under contractor’s care, custody or control.
Contractor is not allowed to self-insure without the prior written consent of Railroad. If
granted by Railroad, any deductible, self-insured retention or other financial responsibility for
40 of 42
claims must be covered directly by contractor in lieu of insurance. Any and all Railroad
liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered
by contractor’s insurance will be covered as if contractor elected not to include a deductible, self-
insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments and referencing the contract
audit/folder number if available. The policy(ies) must contain a provision that obligates the
insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days
prior to any cancellation, non-renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a
certified duplicate original of any required policy must be furnished. Contractor should send the
certificate(s) to the following address:
Megan McIntyre
BNSF Railway Company, Manager Public Projects
Megan.mcintyre@bnsf.com
Any insurance policy must be written by a reputable insurance company acceptable to
Railroad or with a current Best’s Guide Rating of A- and Class VII or better, and authorized to
do business in the state(s) in which the service is to be provide.
Contractor represents that this Agreement has been thoroughly reviewed by contractor’s
insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance
coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy
limits for coverages referenced above. Not more frequently than once every five years, Railroad
may reasonably modify the required insurance coverage to reflect then-current risk management
practices in the railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by contractor, contractor must
require that the subcontractor provide and maintain the insurance coverages set forth herein,
naming Railroad as an additional insured, and requiring that the subcontractor release, defend
and indemnify Railroad to the same extent and under the same terms and conditions as
contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require,
Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not
comply with this section will not operate as a waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
contractor will not be deemed to release or diminish the liability of contractor including, without
limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by
Railroad will not be limited by the amount of the required insurance coverage.
41 of 42
For purposes of this section, Railroad means “Burlington Northern Santa Fe
Corporation”, “BNSF RAILWAY COMPANY” and the subsidiaries, successors, assigns and
affiliates of each.
Section 4. EXHIBIT “C” CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements
and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit
“C” attached to the Contract and this Agreement, , including, but not be limited to, payment of
all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto,
resulting from use, occupancy, or presence of its employees, representatives, or agents or
subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and against all damages
arising from any unscheduled delay to a freight or passenger train which affects Railway's ability
to fully utilize its equipment and to meet customer service and contract obligations. Contractor
will be billed, as further provided below, for the economic losses arising from loss of use of
equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from
train delays, whether caused by Contractor, or subcontractors, or by the Railway performing
work under this Agreement. Railway agrees that it will not perform any act to unnecessarily
cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate
per train as determined from Railway's records. Any disruption to train traffic may cause delays
to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other
grain, intermodal, coal and freight trains operate under incentive/penalty contracts between
Railway and its customer(s). Under these arrangements, if Railway does not meet its contract
service commitments, Railway may suffer loss of performance or incentive pay and/or be subject
to penalty payments. Contractor is responsible for any train performance and incentive penalties
or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and
confidential. In the event of a train delay covered by this Agreement, Railway will share information
relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for
train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF
PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE
ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT.
Contractor and its subcontractors must give Railway’s representative six weeks
advance notice of the times and dates for proposed work windows. Railway and
Contractor will establish mutually agreeable work windows for the project. Railway has
the right at any time to revise or change the work windows due to train operations or
42 of 42
service obligations. Railway will not be responsible for any additional costs or expenses
resulting from a change in work windows. Additional costs or expenses resulting from a
change in work windows shall be accounted for in Contractor’s expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original
copies of this letter, which, upon execution by Railway, will constitute an Agreement between
us.
____________________________________
Contractor BNSF Railway Company
By: _________________________________ By: _________________________________
Printed Name: ________________________ Name: ______________________________
Manager Public Projects
Title: _______________________________
Accepted and effective this ___ day of 20__.
Contact Person: _______________________
Address: ____________________________
City:________________________________
State: __________ Zip: _________________
Fax: ________________________________
Phone: ______________________________
E-mail:______________________________
City of Arlington
Council Agenda Bill
Item:
WS #4
Attachment
D
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
2012 AC Watermain Replacement Authority to Bid
ATTACHMENTS:
Watermain Replacement Exhibits
DEPARTMENT OF ORIGIN
Public Works – Eric Scott
EXPENDITURES REQUESTED: None
BUDGET CATEGORY: Water
LEGAL REVIEW:
DESCRIPTION:
Staff is requesting Council grant authority to bid the project.
HISTORY:
The City has many areas of aging watermain that are in need of replacement. The
highest priority areas for replacement are pipes constructed with asbestos concrete
material, due to the high failure rate of this material. Staff evaluated the current water
infrastructure and determined watermains on the West side of the airport and
Broadway Avenue are the highest priority for 2012. Estimated construction cost is
$495,000.
ALTERNATIVES
• Remand to staff for additional information
• Table pending additional discussion
RECOMMENDED MOTION:
Workshop only, no action requested. At the May 21st meeting the recommendation
will be :
“I move to grant City staff the authority to bid the 2012 Watermain Replacement
Project, subject to review by the City Attorney.”
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City of Arlington
Council Agenda Bill
Item:
WS #5
Attachment
E
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Transportation Comprehensive Plan Update – Shea Carr Jewell Amendment No. 2
ATTACHMENTS:
Transportation Comp Plan Amendment #2
DEPARTMENT OF ORIGIN
Public Works – James Kelly
EXPENDITURES REQUESTED: $8,000.00
BUDGET CATEGORY: Transportation Imp Fund (310)
LEGAL REVIEW:
DESCRIPTION:
Amendment to the Shea-Carr-Jewell contract due to out of scope work and additional work
required for Traffic Impact Fee Analysis.
HISTORY:
As part of the General Comprehensive Plan, the City must also produce a Transportation
Comprehensive Plan (Transportation Element) consistent with the Land Use Element of the
Comprehensive Plan and consistent with Puget Sound Regional Council (PSRC) requirements.
The City contracted with Shea Carr Jewell in April 2011 to update the City’s Transportation Comp
Plan. While the majority of the work effort is complete, to provide an updated plan, additional
efforts have been identified necessary to incorporate on-going strategic planning by City staff and
to examine funding requirements for long range transportation projects. Amendment #2 is needed
for the effort associated with the extra out-of-scope work.
Initial Agreement / Phase 1 – Project Definition $ 8,300
Amendment #1 - Transportation Comp Plan Update $ 91,419
Amendment #2 – TIF Update and Public Meetings $ 8,000
Total $ 107,719
ALTERNATIVES
No Action at this time
RECOMMENDED MOTION:
No action at this time – Council will be asked to approve Amendment #2 to the contract with Shea
Carr Jewell for the Transportation Comprehensive Plan at the May 21, 2012 Council meeting.
_________________________________________________________________________
April 20, 2012
Page 1
Amendment No. 2
Scope of Work for Engineering & Planning Services
City of Arlington
Traffic Impact Fee Update and
Transportation Plan Additional Services
Prepared for: Jim Kelly, PE, Director of Public Works
City of Arlington
Prepared By: Eric Johnston, PE, Associate Principal
Shea Carr Jewell, Inc.
Date prepared: April 20, 2012
Overview
Shea Carr Jewell (SCJ) has been contracted by the City of Arlington to provide an update to the City’s
Transportation Plan. While the majority of the work effort is complete to provide an updated plan,
additional efforts have been identified necessary to incorporate on-going strategic planning by City
staff and elected officials to meet immediate and long-term transportation infrastructure needs in
the City.
At the request of the City, this Amendment No. 2 will allow SCJ to incorporate recent additions to
funding strategies and additional meeting time.
Initial Agreement / Phase 1 – Project Definition
Complete.
Amendment #1 / Phase 2 – Transportation Plan Update
Data collection complete.
Modeling complete.
Operations analysis complete.
2035 improvement projects identification complete.
_________________________________________________________________________
April 20, 2012
Page 2
Financing plan in draft stage.
Graphics/figures complete.
Document in draft stage.
Public process to be determined.
Amendment #2 / Phase 3 – TIF Update and Public Meetings
Additional meetings and coordination with the City.
Add collision data to Transportation Plan document.
Advise City staff on TIF methodology.
Provide traffic volume data in support of new TIF.
Incorporate updated financial strategies in the 2035 Transportation Plan document, including
revised Traffic Impact Fee text. Provide stand-alone memorandum regarding TIF update
methodology developed by City staff.
Amendment #2 Lump Sum Fee: $8,000
Fee
Initial Agreement / Phase 1 – Project Definition $8,300
Amendment #1 / Phase 2 – Transportation Plan Update 91,419
Amendment #2 / Phase 3 – TIF Update and Public Meetings 8,000
TOTAL FEE AMENDMENT #2 / PHASE 3 $8,000
Acceptance of Fee Proposal
If this scope of work and fee estimate is acceptable, please sign below as your formal acceptance of
the terms outlined in this proposal and return a copy to us. We appreciate this opportunity to
provide professional services to the City of Arlington and look forward to initiating this contract
amendment.
______________________________________ ______________________________
Authorization Date
End of Proposal
City of Arlington
Council Agenda Bill
Item:
WS #6
Attachment
F
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Public Works – Request for Interdepartmental Transfer of Vehicles/Equipment
ATTACHMENTS:
Resolution Declaring Property as Surplus
DEPARTMENT OF ORIGIN
Public Works – Jim Kelly
EXPENDITURES REQUESTED: N/A, $13,500 - Interfund transfers
BUDGET CATEGORY: Water/Swr Depreciation Fund, Airport Fund
LEGAL REVIEW:
DESCRIPTION:
Council is being asked to declare two vehicles and a generator listed in the attached resolution
as surplus, and authorize the sale of these vehicles and equipment to other City departments.
HISTORY:
In 2011 the Water Department lost the use of two of their existing vehicles due to age and
unexpected damage. The Parks and Sewer departments both had vehicles that were not being
used due to reduced staffing, and agreed to let Water use those vehicles temporarily. Both the
Parks and Sewer Departments have determined that, due to reduced staffing levels, there is no
foreseeable immediate need for the loaned vehicles and they can be sold to the Water
Department.
The Airport is requesting to purchase the generator that was removed from the Haller Well
House after installing a permanent back-up power source. The Water Department is in
agreement and wants to declare this generator as surplus so it can be sold to the Airport.
ALTERNATIVES
No Action at this time
RECOMMENDED MOTION:
No action at this time – moved to Consent Agenda at May 21st Council Meeting.
RESOLUTION NO. _________
A RESOLUTION OF THE CITY OF ARLINGTON DECLARING CERTAIN
PROPERTY AS SURPLUS AND AUTHORIZING ITS SALE
WHEREAS, the City has purchased the equipment listed on the attached Exhibit
“A”; and
WHEREAS, the equipment identified on Exhibit “A” is surplus to the needs of
the City department originally acquiring them, and the City wishes to transfer the same to
another department by interfund transfer;
NOW, THEREFORE, the City of Arlington, acting by and through its City
Council, does hereby resolve as follows:
1. The equipment/property described on the attached Exhibit “A” is declared
surplus to the needs of the City.
2. Staff is authorized to dispose of the property via an intergovernmental transfer
pursuant to RCW 39.33.010, including a transfer to other departments by
interfund transfers.
Passed by the City Council of the City of Arlington at a regular meeting on the
____ day of _______, 2012.
________________________________
Mayor Barbara Tolbert
ATTEST:
___________________________
Kristin Banfield, City Clerk
APPROVED AS TO FORM:
______________________
Steven J. Peiffle, City Attorney
Exhibit A
1. 1994 Ford F150 Super Cab
City ID# = WW-83
VIN # = 1FTEX14H1RKB44956
Kelly Blue Book Value : $2,500.00
2. 1997 Chevrolet S10 Extended Cab
City ID# = P-28
VIN # = 1GCCS19X5V8179562
Kelly Blue Book Value : $3,500.00
3. Generator – 135 kw Kohler
Model: 135ROZJ
Estimated Current Value: $7,500.00
City of Arlington
Council Agenda Bill
Item:
WS #7
Attachment
G
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Public Works Week Proclamation and Video Presentation
ATTACHMENTS:
- Governor Gregoire 2012 Public Works Week Proclamation
- DRAFT Arlington 2012 Public Works Week Proclamation
- Video presentation
DEPARTMENT OF ORIGIN
Public Works – Jim Kelly
EXPENDITURES REQUESTED: None
BUDGET CATEGORY: N/A
LEGAL REVIEW:
DESCRIPTION:
National Public Works Week is the week of May 20-26, 2012. Council will be presented with a
proclamation at the May 21, 2012 council meeting.
HISTORY:
For more than 50 years, our nation has celebrated National Public Works Week, this year it is
from May 20th through May 26th. America documented its first public work project in 1791
with the Cape Henry Lighthouse at Chesapeake Bay, Virginia; it was built at the specific
direction of the first Congress of the United States. The lighthouse stands today as a historical
monument not only to our nation's heritage, but also to the timelessness of Public Works.
Today, Public Works is all of the things that go into making your life safe, convenient, and
comfortable. Public Works is all around you - when you turn on the water, flush a toilet, drive
on a roadway, visit a park, walk on the sidewalk, or take out the trash. The City of Arlington
would like to call upon the citizens, civic organizations, and the Arlington community to
acquaint themselves with the issues involved in providing our public works and to recognize
the contributions which public works officials make every day to our health, safety, comfort,
and quality of life.
ALTERNATIVES
No Action at this time
RECOMMENDED MOTION:
No action at this time – Proclamation to be read at the May 21, 2012 council meeting.
Proclamation of Public Works Week
May 20-26, 2012
Whereas, public works services provided in our community are an integral part of our citizens’
everyday lives; and
Whereas, the support of an understanding and informed citizenry is vital to the efficient
operation of public works systems and programs such as engineering, GIS, water, sewers,
storm water, streets and highways, parks and public buildings; and
Whereas, the health, safety and comfort of this community greatly depends on these facilities
and services; and
Whereas, the quality and effectiveness of these facilities, as well as their planning, design, and
construction, is vitally dependent upon the efforts and skill of public work officials; and
Whereas, the efficiency of the qualified and dedicated personnel who staff public works
departments is materially influenced by the people’s attitude and understanding of the
importance of the work they perform,
Now, therefore, I Barbara Tolbert, Mayor of the City of Arlington, along with my fellow
Councilmembers do hereby proclaim the week of May 20– 26, 2012 as
“National Public Works Week”
In the City of Arlington, and I call upon the citizens and civic organizations to acquaint
themselves with the issues involved in providing our public works and to recognize the
contributions which public works officials make every day to our health, safety, comfort, and
quality of life.
Given under my hand and Seal of the City of Arlington this 21st day of May 2012.
___________________________________________
Mayor Barbara Tolbert
City of Arlington
Council Agenda Bill
Item:
WS #8
Attachment
H
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Changes to State Environmental Laws
ATTACHMENTS:
1. Amendments to Natural Resources and Environmental Laws
2. Power Point Presentation Slides
DEPARTMENT OF ORIGIN
Community Development – David Kuhl, 360-403-3445; Todd Hall, 360-403-3436
EXPENDITURES REQUESTED: -0-
BUDGET CATEGORY: N/A
LEGAL REVIEW:
DESCRIPTION:
The State Legislature passed, and the Governor signed (May 2, 2012), into law new
regulations pertaining to environmental regulations. Specifically, these pertain to SEPA
categorical exemptions, planned actions, infill developments, Hydraulic Project
Approvals (HPAs) and Forest Practice Approvals (FPAs).
HISTORY:
Planning Commission was briefed on the topic at their May 1, 2012 meeting.
ALTERNATIVES
1. No action.
2. Remand to staff to clarify any issue that Council deems appropriate.
RECOMMENDED MOTION:
None at this time. No action necessary, advisory only.
LEGISLATIVE REVIEW
UPDATES TO STATE ENVIRONMENTAL LAWS –
INCLUDING SEPA
May 14, 2012 Council Workshop
Bill #6406
Revision of several of the state’s most important
natural resources and environmental laws
Changes include:
State Environmental Policy Act (SEPA) and
Development Regulations
Hydraulic Project Approvals (HPAs)
HPA and Forest Practice Integration
Phase II Municipal Stormwater General Permits
Per AWC:
“laws and regulations must be regularly reviewed and revised to ensure
that they continue to support these goals in the most efficient and
effective manner possible.”
“In the last 20+ years, state and local jurisdictions have adopted a
broad array of legislation that has substantially strengthened
protections for the natural and built environment. (i.e. GMA and SMA,
stormwater permits, CAO’s, impact fees, air quality regulations, etc).
Because of these advancements, an opportunity exists to review the
State Environmental Policy Act (SEPA), a law adopted 40 years ago.”
“[AWC] is not interested in reducing environmental protection in any
way; our goal is to remove duplication and unnecessary time and
expense from local governments and business.”
“Reform to SEPA can save public and private costs, foster new
development in appropriate areas, and help generate job creation.”
(i.e. economic development).
SEPA Amendments
SEPA Amendments
Two-part rulemaking process by Department of
Ecology (DOE) to update SEPA categorical
exemptions
Categorical exemptions – threshold levels for minor
new construction (WAC 197-11-800) .
By December 2012, the DOE must conclude rulemaking
to increase the categorical exemptions for single family,
multifamily, commercial, and agricultural developments,
as well as standards for excavation, grading, and
electrical facilities.
SEPA Amendments
Until the mandates are completed by DOE, cities
shall apply the maximum level of categorical
exemptions (existing levels in parentheses below)
Residential units: Up to 20 du’s (from 9)
Agricultural bldgs.: Up to 30,000 sf (from 10,000)
Office/school/commercial: Up to 12,000 sf/40 spaces (from 4K/20)
Parking lots: Up to 40 spaces (from 20 spaces)
Fills/excavations: Up to 500 cubic yards (from 250 cy)
If City wants to maintain existing levels, we will
need to legislatively reduce the exemption levels
below whatever is passed by DOE in December
SEPA Amendments
Checklist will be “updated”. No additional subjects
will be added, including “climate change” or
“greenhouse gases”.
By December 2013, the Department must update,
but not decrease, all other categorical exemptions,
including new non-project categorical exemptions
for minor code amendments that do not create
environmental problems.
SEPA Amendments
The following non-project actions are categorically
exempted from SEPA review:
Amendments to development regulations required to
ensure consistency with adopted comprehensive plans
or shoreline master programs.
Certain amendments that provide increased
environmental protections, such as increased buffers or
vegetation retention ordinances.
Amendments to technical codes to comply with building,
energy, and electrical codes.
Other SEPA Amendments
Infill exemption of up to 65,000 sf of non-retail
commercial development
Use of infill tools in those areas where EIS has been
completed (i.e. sub-area plan).
City currently doesn’t have an infill exemption level,
but one could be adopted as part of the Comp
Plan update
Recover reasonable expenses for nonproject EIS
(planned actions/infills) – grants/private funding
HPA/Forest Practice Permits
Hydraulic Project Approval (HPA) – required by WDFW. “Any
person, organization, or government agency wishing to conduct
any construction activity that will use, divert, obstruct, or
change the natural flow or bed of state waters must do so
under the terms of a HPA. State waters include all marine
waters and fresh waters of the state, except those
watercourses that are entirely artificial, such as irrigation
ditches, canals and storm water run-off devices.
WDFW may now implement new $150 fee (expires June
2017)
Integration of HPA and Forest Practice Regulation
Streamlines permits for forest projects around water
Phase II Municipal Stormwater General Permits
$1 million in funding for cost-free training for local
governments and officials for implementing low-
impact development (LID)
Phase II Municipal Stormwater permit deadlines
pushed to December 2016
City of Arlington
Council Agenda Bill
Item:
WS #9
Attachment
I
COUNCIL MEETING DATE:
May 14, 2012
SUBJECT:
Appointment of Ken Levesque to the Planning Commission
ATTACHMENTS:
Application from Ken Levesque
DEPARTMENT OF ORIGIN
Community Development – Contact David Kuhl, 360-403-3445
EXPENDITURES REQUESTED: -0-
BUDGET CATEGORY: N/A
LEGAL REVIEW:
DESCRIPTION:
With the resignation of Jim Cummins, the Planning Commission has one vacancy.
Council is requested to appoint Ken Levesque to this vacancy.
HISTORY:
A panel comprised of Councilmember Oertle, Planning Commission Chair Bruce
Angell, Community development Director David Kuhl and Assistant to the City
Administrator Paul Ellis interviewed two candidates for the vacancy on April 25, 2012.
The panel recommended the appointment of Mr. Levesque.
ALTERNATIVES
Do not appoint.
RECOMMENDED MOTION:
No action at this time. Council will be requested to approve the appointment at the
May 21, 2012 Council meeting.