HomeMy WebLinkAbout20042033.tiff RESOLUTION
RE: APPROVE AT GRADE CROSSING AGREEMENT (WITH WARNING SIGNALS) AND
AUTHORIZE CHAIR TO SIGN - THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an At Grade Crossing Agreement (With
Warning Signals) between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Department of Public Works and The
Burlington Northern and Santa Fe Railway Company,with terms and conditions being as stated in
said agreement, and
WHEREAS,after review,the Board deems it advisable to approve said agreement, a copy
of which is attached hereto and incorporated herein by reference.
NOW,THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado,ex-officio Board of Social Services,that the At Grade Crossing Agreement(With
Warning Signals) between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Department of Public Works and The
Burlington Northern and Santa Fe Railway Company, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to
sign said agreement.
The above and foregoing Resolution was,on motion duly made and seconded, adopted by
the following vote on the 19th day of July, A.D., 2004.
BOARD OF COUNTY COMMISSIONERS
:r ]E D��� / /�/(/uG �( WE Q CO> T COLORADO
is6i Robert D. Masden, Chair
s ty f. -r f o the Board
� � L-1>A -,
Q 'S William H. erke, Pro-Tem
B'# :mil sly /�.�i��s�� - ✓�j
Deputy Clerk to the Board
M. J. eile
APPROV AS TO F
EXCUSED
David E. Long
my Attorne EXCUSED
Glenn Vaad
Date of signature: 'e--11-119
2004-2033
8-5-041 eC ' Gw () ) EG0050
MEMORANDUM
TO: Clerk to the Board DATE: July 15, 2004
I pC FROM: Frank B. Hempen, Jr., P.E.
Director of Public Works/County Engineer
•
COLORADO SUBJECT: Item for Agenda
WCR 51, Calpine Project -At Grade Crossing Agreement (With Warning Signals)
As part of the Weld County Road (WCR) 51 Road Construction Project, which extends
from State Highway 52 to 1-76 Frontage Road, Weld County has entered into three
separate agreements with the Rocky Mountain Energy Center LLC, do Calpine
Corporation. The agreements are as follows:
1) Agreement for Road Maintenance During Plant Construction
2) Agreement for Road Improvements Upon Opening of Plant
3) Agreement for Railroad Crossing
The maintenance has been completed and Weld County crews are currently working on
the road improvements, which include drainage, dirt work, and paving.
Along with the road improvements, the project will include the placement of railroad signals
with arms and a new at-grade crossing on the Burlington North and Santa Fe (BNSF)
Railroad where it intersects with WCR 51, just south of the 1-76 Frontage Road. Our
agreement with Calpine states that Calpine will pay up to $169,000 towards the railroad
improvements. BNSF's current cost estimate for the improvements is $145,971.
The BNSF Railroad is requesting that Weld County enter into the attached agreement
which identifies particulars of the railroad improvements and allows Weld County crews to
enter into the railroad right-of-way to make necessary road improvements. Our legal staff
has reviewed that attached agreements.
Weld County will request reimbursement from Calpine for all costs upon completion.
Enclosures — Original At Grade Crossing Agreements (With Warning Signals)
pc: WCR 51 Calpine Project file
WCR 51 file
Mona Weidenkeller, Public Works
M:\--Active Projects\WCR 51, Calpine\Design\Contracts\BNSF Memo.doc
2004-2033
AT GRADE CROSSING AGREEMENT
JWITH WARNING SIGNALSI
BNSF File No. 057212N
Weld County Road 51
U.S. D.O.T. No. 057212N
THIS AGREEMENT (hereinafte/,called "Agreement"), executed to be effective as of the
day of�fuL aF.( ' by and between THE BURLINGTON NORTHERN AND SANTA
FE RAILWAY COMPANY (hereinafter called "BNSF") , and The Weld County, a Political
Subdivision of the State of Colorado, herein represented and acting through its Board of County
Commissioners (hereinafter called "Agency").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the County of Weld, State
of Colorado;
WHEREAS, Agency desires to construct a new at-grade public crossing at County Road 51
Avenue across BNSF's right-of-way and property at LS 2, MP 509.079, DOT No. 057212N;
WHEREAS, in connection with the construction of the at-grade crossing referenced above,
Agency desires to install railroad crossing signals and activation equipment (hereinafter
collectively called, "Crossing Signal Equipment");
WHEREAS, the parties agree that BNSF will receive no ascertainable benefit from the installation
of the Crossing Signal Equipment,
WHEREAS, the Agency will be responsible for the acquisition and installation costs of the
Crossing Signal Equipment;
WHEREAS, the parties desire to express their agreements concerning the construction and
subsequent maintenance of the County Road 51 Avenue crossing in writing;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties
contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
ARTICLE I—SCOPE OF WORK
1. The term "Project" as used herein shall include any and all work related to the construction
of the County Road 51 grade crossing, more particularly described on the Exhibit A attached
hereto and incorporated herein, including, but not limited to, installation of the Crossing
Sianal Eauipment, any and all changes to telephone, telegraph, signal and electrical lines
and appurtenances, temporary and permanent track work, fencing, grading, placing of
concrete crossing panels, alterations to or new construction of drainage facilities, preliminary
and construction engineering and contract preparation. Temporary controls during
construction shall be in compliance with Section 8A-5, "Traffic Controls During Construction
and Maintenance" of the Manual on Uniform Traffic Control Devices (hereinafter called,
"MUTCD"), U.S. Department of Transportation.
ARTICLE II-BNSF OBLIGATIONS
1. In consideration of the sum to be mutually agreed to, and the faithful performance of the
Agency's covenants contained herein, BNSF shall grant to Agency, its successors and
assigns, an easement to enter upon and use that portion of BNSF's right-of-way (hereinafter
the "Easement Area") as is necessary to construct, and thereafter maintain, the grade
crossing as shown on Exhibit A. The parties hereto agree that Agency may not transfer,
assign, convey, let or sublet any part of the Easement Area for any purpose whatsoever
without the prior written consent of BNSF. Additionally, Agency understands and
acknowledges that the Easement Area shall be granted without any promise or covenant of
quiet enjoyment and without warranty of title. Agency understands and agrees that BNSF
maintains its right to use, relocate or maintain railroad track or tracks or other railroad
facilities now located upon the Easement Area, or to construct and thereafter maintain, use
and relocate any additional track or tracks or any other railroad facilities whatsoever as BNSF
may desire upon or across said Easement Area. The parties further agree that if Agency
ceases to use the Easement Area, or any part thereof, for the purposes set forth in this
Agreement, Agency will immediately (i) deliver possession of the entire Easement Area to
BNSF; (ii) release and vacate the Easement Area occupied by the public road; (iii)
permanently close the public road or otherwise restore the Easement Area to its condition
prior to the construction of the Project.
2. BNSF, at the sole cost and expense of Agency, shall 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 B attached hereto and made a part
hereof. In the event construction on the Project has not commenced within twelve (12)
months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the
cost estimates set forth in said Exhibit B. 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 B not specifically mentioned therein may be included
as a part of this Agreement upon written approval of Agency, which approval shall not be
unreasonably withheld. Construction of the Project shall include the following railroad work
by BNSF:
(a) Preliminary engineering, design, and contract preparation;
(b) Furnishing of such flagging services as may be necessary for the safety of BNSF's
property and the operation of its trains during construction of the Project;
(c) Installation of concrete crossing surface material including upgrades to the track to
accommodate new concrete crossing surface material, to adequately include all
vehicular driving lanes;
(d) Installation of the Crossing Signal Equipment in accordance with the MUTCD and
the cost estimates shown on Exhibit B.
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis,
when BNSF, in its sole discretion, determines it is required by its labor agreements to perform
such work with its own employees working under applicable collective bargaining
agreements.
4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or
Agency's contractor in connection with the Project which BNSF deems is reasonably
necessary for the immediate restoration of railroad operations, or for the protection of
persons or BNSF property. Such work may be performed by BNSF without prior approval of
Agency and Agency agrees to fully reimburse BNSF for all such emergency work.
At Grade Crossing Agreement with Signals 2
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5. During the construction of the Project, BNSF will send Agency progressive invoices detailing
the costs of the railroad work performed by BNSF under this Agreement. Agency must
reimburse BNSF for completed force-account work within thirty (30) days of the date of the
invoice for such work. Upon completion of the Project, BNSF will send Agency a detailed
invoice of final costs, segregated as to labor and materials for each item in the recapitulation
shown on Exhibit B. 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 our 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.BNSF will
finalize and complete billing of all incurred costs no later than one (1) year following
completion of the Project.
6. BNSF agrees that it will, at its own expense, maintain the crossing surfaces within the limits
of the ties; however, BNSF shall be entitled to receive any contribution toward the cost of
such maintenance as may be now or hereafter made available by reason of any law,
ordinance, regulation, order, grant or by other means or sources.
7. After completion of the Project, BNSF will, at Agency's expense, operate and maintain the
Crossing Signal Equipment in proper condition.
ARTICLE III—AGENCY OBLIGATIONS
IN CONSIDERATION of the covenants of BNSF herein set forth and the faithful performance
thereof, Agency agrees as follows:
1. Agency must prepare all detail plans and specifications, including special provisions, for the
Project and submit such plans and specifications to BNSF for its written approval prior to
commencement of construction. The plans and specifications must be approved in writing by
BNSF, the Agency before any contracts are awarded by the Agency and before any work is
performed by the BNSF. After mutual written approval of the plans and specifications by
Agency and BNSF, said plans and specifications will become part of this Agreement and are
hereby incorporated herein. All construction and work done by the parties under this
Agreement shall be in accordance with the approved plans and specifications.
2. Agency must make any required application and obtain all required permits and approvals for
the construction of the Project. Additionally, Agency must acquire all rights of way necessary
for the construction of the Project. Any permits obtained for the BNSF will be at Agency's sole
cost and expense.
3. 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.
4. Agency must construct the Project as shown on the attached Exhibit A and the plans and
specifications approved by Agency and BNSF. Agency must do all work ("Agency's Work")
provided for in the plans and specifications for the Project, except railroad work that shall be
performed by BNSF hereunder. Agency shall furnish all labor, materials, tools and
equipment for the performance of Agency's Work. The principal elements of Agency's Work
are as follows:
At Grade Crossing Agreement with Signals 3
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(a) All necessary grading and paving for the construction of the public road;
(b) Construction of suitable drainage facilities, both temporary and permanent, such as catch
basins, culverts, culvert extensions, etc;
(c) Installation of pavement marking stop bars in accordance with the MUTCD;
(d) Installation of advance warning signs in accordance with the MUTCD; and
(e) Provide traffic control during installation of concrete surface and crossing signal
equipment
5. Agency must, at Agency's sole expense, and subject to the prior written approval of BNSF's
Engineering Department, locate, construct and maintain the public road in such a manner
and of such material that it will not at any time be a source of undue danger to or interference
with the present or future tracks, roadbed and property of BNSF, or the safe operation of its
railroad. Additionally, Agency must construct and maintain the public roadway approaches
so that the elevation of the roadway at a distance of 35 feet from the track is within or is no
lower than 6 inches from the top of rail.
6. Agency must approve the location of the Crossing Signal Equipment and the signal bungalow
prior to installation by BNSF.
7. In the event of a breach (hereinafter called the "Agency Breach") of Agency's covenants
under this Article III, BNSF will send Agency written notice (hereinafter called the "Notice") of
the Agency Breach. Agency must cure the Agency Breach within thirty (30) days of the date
of the Notice. If Agency fails to cure the Agency Breach within the thirty-day time period,
BNSF may cure the Agency Breach, or cause a contractor to cure the Agency Breach, at
Agency's sole cost and expense. Agency must promptly reimburse BNSF for the actual costs
of curing the Agency Breach.
8. After completion of the Project, Agency must maintain pavement markings, advance warning
signs, and other traffic control signs in accordance with applicable portions of the MUTCD.
Additionally, Agency must provide appropriate traffic control during construction or
maintenance operations to accommodate work by BNSF or Agency. Agency hereby
indemnifies and holds harmless BNSF for, from and against any and all claims, damages,
losses, suits,judgements or other expenses, including attorneys'fees and court costs caused
by, in whole or in part, or resulting from Agency's failure to maintain the advanced warning
signs, pavement markings or other traffic control signs or Agency's failure to comply with the
MUTCD.
9. Agency is solely responsible for the cost of constructing and maintaining the public road upon
the Easement Area except for the portion of the road maintained by BNSF within the limits of
the ties, as expressly specified in Article I hereunder.
10. Agency must include the following provisions in any contract with its contractor(s) performing
work on said Project:
(a) The Contractor is placed on notice that fiber optic, communication and other cable lines
and systems (collectively, the "Lines") owned by various telecommunications companies
may be buried on BNSF's property or right-of-way. The locations of the Lines have been
included on the plans based on information from the telecommunications companies.
The contractor will be responsible for contacting BNSF 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.
At Grade Crossing Agreement with Signals 4
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(b) Failure to mark or identify the Lines will be sufficient cause for BNSF's engineering
representative to stop construction at no cost to the Agency or BNSF until these items
are completed.
(c) In addition to the liability terms contained elsewhere in this Agreement, the contractor
hereby indemnifies, defends and holds harmless BNSF for, from and against all cost,
liability, and expense whatsoever (including, without limitation, attorney's fees and court
costs and expenses) arising out of or in any way contributed to by any act or omission of
Contractor, its subcontractors, agents and/or employees that cause or in any way or
degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or
its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-
of-way, (2) any injury to or death of any person employed by or on behalf of any
telecommunications company, and/or its contractor, agents and/or employees, on
BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for
alleged loss of profits or revenue by, or loss of service by a customer or user of such
telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL
NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS
AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.
(d) The Contractor shall be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor shall cooperate fully with
any telecommunications company(ies) in performing such rearrangements.
(e) All work performed within the limits of BNSF's right-of-way shall be performed in a good
and workmanlike manner in accordance with plans and specifications approved by
BNSF.
(f) Changes or modifications during construction that affect safety or BNSF operations shall
be subject to BNSF's approval.
(g) No work shall be commenced within BNSF's right-of-way until contractors employed in
connection with said work shall have (i) executed and delivered to BNSF a letter
agreement in the form of Exhibit C-I, and (ii) delivered to and secured BNSF's approval of
the required insurance; and
(h) If it shall be 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) shall be required to comply with the obligations in favor of BNSF
hereinabove set forth and, provided further, that if such construction is performed by day
labor, Agency will, at its expense, procure and maintain on behalf of BNSF the insurance
required by Exhibit C-1.
11. Agency shall advise the appropriate BNSF Manager of Public Projects, in writing, of the
completion date of the Project within thirty(30) days after such completion date. Additionally,
Agency shall notify BNSF's Manager of 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.
At Grade Crossing Agreement with Signals 5
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12. In addition to the provisions set forth above, Agency must incorporate in each contract for
construction of the Project or the specifications therefor the (i) the provisions set forth in
Article IV, Sections 2 and 3; and (ii) the provisions set forth in Exhibit C and Exhibit C-1
attached hereto and incorporated herein.
13. In order to prevent damage to BNSF trains and property, Agency must require its
contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to (i)
commencing work on BNSF property or near BNSF's tracks; or (ii) requesting a BNSF
flagman in accordance with the requirements of Exhibit C attached hereto. Agency or
Agency's contractor is responsible for the costs of flagmen during the construction or
maintenance of the public road contemplated in this Agreement.
14. Agency must reimburse BNSF for the costs of maintaining the Crossing Signal Equipment
within thirty (30) days of the date of any invoice for such costs. If Agency fails to reimburse
BNSF pursuant to this provision, finance charges will be assessed on any unpaid amounts
pursuant to Section 6, Article II herein. BNSF shall be entitled to receive any contribution
toward the cost of such maintenance as may be now or hereafter made available by reason
of any law, ordinance, regulation, order, grant or by other means or sources.
15. To the fullest extent permitted by law, Agency hereby releases, indemnifies, defends and
holds harmless BNSF, its affiliated companies, partners, successors, assigns, legal
representatives, officers, directors, shareholders, employees and agents for, from and
against any and all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments and expenses (including, without limitation, court costs
and attorneys' fees) of any nature, kind or description of any person (including, without
limitation, the employees of the parties hereto) or entity directly or indirectly arising out of,
resulting from or related to (in whole or in part) (i) the use, occupancy or presence of Agency,
its contractors, subcontractors, employees or agents in, on, or about the construction site, (ii)
the performance, or failure to perform by the Agency, its contractors, subcontractors,
employees, or agents, its work or any obligation under this Agreement, or (iii) the sole or
contributing acts or omissions of Agency, its contractors, subcontractors, employees, or
agents in, on, or about the construction site. 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.
16. Agency agrees that it shall, at its sole cost and expense, make changes to the public road or
crossing contemplated under this Agreement when such changes are necessary to
accommodate BNSF's use of its right-of-way or property. Additionally, Agency will be
responsible for the costs of any changes or alterations to BNSF facilities, including, without
limitation, rail corridor fences, signal lines, power or other communication poles or wire lines
located within the Easement Area when necessary to accommodate BNSF's use of its right-
of-way or property. Agency will promptly reimburse BNSF for all costs associated with any
such changes. Agency also agrees that any future traffic control systems at the crossing or
crossing illumination will be installed at no cost to BNSF.
ARTICLE IV-JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement shall be performed in a good and workmanlike
manner and each portion shall be promptly commenced by the party obligated hereunder to
At Grade Crossing Agreement with Signals 6
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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 shall be subject to BNSF's approval prior to the commencement of any such changes
or modifications.
2. Agency shall 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 shall 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 shall 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 shall
not constitute a breach of this Agreement by BNSF.
3. BNSF shall 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) shall perform the Project work in a
manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its
contractors) shall, in BNSF's opinion, prosecute the Project work in a manner which is
hazardous to BNSF property, facilities or the safe and expeditious movement of railroad
traffic; or (iii) the insurance described in the attached Exhibit C-1 is canceled during the
course of the Project. The work stoppage shall 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. Any
such work stoppage under this provision shall 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:
Wayne Howard, P.E.,Project Manager
P.O. Box 758,
Greeley, CO 80632
4. 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 BNSF.
5. 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.
6. The parties mutually agree that BNSF's preliminary engineering, design, and contract
preparation costs described in this Agreement are part of the costs of the Project even
though such work may have preceded the date of this Agreement.
7. If a railway or a highway improvement project necessitates rearrangement, relocation, or
alteration of the Crossing Signal Equipment installed hereunder, the costs for such
rearrangement, relocation or alteration will be the responsibility of the party requesting such
changes.
At Grade Crossing Agreement with Signals 7
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8. If the Crossing Signal Equipment installed hereunder is partially or wholly destroyed, then
costs of repairing or replacing the Crossing Signal Equipment will be distributed among the
parties as follows:
(a) In the event the RAILROAD's sole negligence destroys or damages
the Crossing Signal Equipment, RAILROAD shall reimburse
AGENCY for the costs to replace or repair such Crossing Signal
Equipment.
(b) In the event the AGENCY'S negligence destroys or damages the
Crossing Signal Equipment, AGENCY shall assume the costs to
replace or repair such Crossing Signal Equipment.
(c) In the event the Crossing Signal Equipment is damaged or destroyed
by a Third Party, to the extent the damage is not paid for by the Third
Party, AGENCY and RAILROAD shall bear costs equally to replace
or repair such Crossing Signal Equipment.
(d) In the event the Crossing Signal Equipment is damaged or destroyed
by an Act of God, AGENCY and RAILROAD shall share equally to
replace or repair such Crossing signal Equipment.
9. Prior to entering BNSF's right-of-way to perform future maintenance work on the County
Road 51 crossing, Agency must notify and obtain prior authorization from BNSF's Manager of
Public Projects. If any maintenance work will be performed by a contractor of Agency,
Agency must require its 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.
10. If the Crossing Signal Equipment installed hereunder cannot, through age, be maintained, or,
by virtue of its obsolescence, requires replacement, the cost of installation of new crossing
signal equipment will be negotiated by the parties hereto on the basis of the current Federal
Aid Railroad Signal Program participation and applicable Agency signal warrants at the time
of replacement.
11. In the event construction of the Project does not commence within eighteen (18) months of
the Effective Date, this Agreement shall become null and void.
12. Neither termination nor expiration of this Agreement shall 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.
13. To the maximum extent possible, each provision of this Agreement shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this Agreement.
14. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein)
is the full and complete agreement between BNSF and Agency with respect to the subject
matter herein and supersedes any and all other prior agreements between the parties hereto.
15. 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 Colorado and the Federal
Highway Administration, for a period of one (1) year from the date of the final BNSF invoice
under this Agreement.
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16. 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.
17. Any notice provided for herein or concerning this Agreement shall be in writing and be
deemed sufficiently given when sent by certified mail, return receipt requested, to the parties
at the following addresses:
The Burlington Northern and BNSF's General Manager
Santa Fe Railway Company: 3700 Globeville Road
Denver, CO 80216
The Burlington Northern and BNSF's Manager of Public Projects
Santa Fe Railway Company: (State of Colorado)
4515 Kansas Avenue
Kansas City, KS 66106-1199
Agency: Weld County Public Works
Project Manager
P.O. Box 758, Greeley, CO 80632
At Grade Crossing Agreement with Signals 9
Form 010_; Rev. 10/03
IN TESTIMONY WHEREOF,the parties have executed this agreement, in duplicate, on
the day and year first above written.
THE BURLINGTO NORTHERN AND SANTA FE RAILWAY COMPANY
By: a
Its: ' 1Ot iblai"?K
, `` ! /%
THE BOARD OF WELD COUNTY COMP� ,r',
a ` 7,, �IATTEST: J� !,_��� u-al
•
By: 'i �`i �, WELD COUNTY CLERK T HE BOAR()
Printed Name: Robert Masden JUL 1 9II,""�' BY: 1
E UTY C E TO THE BOARD
Its: Chair
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Ae IEVISION er WTE CALL UTILITY NOTIFICATION CENTER 1
COMPUTER FILE INFORMATION G:LE H 50' E COLORADO
-�
1-800-922-1987 PICKETT I-lb FRONTAGE ROAD TO NWT'52 s-B. 1
PLOT DATE.' Thu Mar 16. 2004 OUIE Nar 18 2004 CALL aW REv OATS IN MOWER P E EN6INEERIN6 MOM NO.
as.er aN/NSP AEiaE TW EI6 .YES EA E[C.T.,E INCORPORATED ROADWAY PLAN&PROFILE
iM TIE W.IA LE OOERNUM ..OB W. SWEET M.
PLOT TINE: 10: 12:52AM "�R1�1°'' GONS62 FAL EN6.6496
ax.er 95P WELD CpMIY PUBLIC WORKS DEPT. 02-062 20
FILE °•E"� INEERS
BON 9TH SITEET. GEELEY.. rnonADO 80611
A`PATK P. \02-062\CAD0\02-062 FINAL SUBMITTAL 03-11-04. MOST , . PHONE: Ero.356.Ea E2 FAx: Ero.eee.e+ee 1111 NSLTIE#EYETCP.O.BOG3�P 758
TO McCOOK The Burlington Northern & Santa Fe Railway Company TO DENVER
kEASTWARD APPR.4055' x MINIMUM 120' i•c WESTWARD APPR.4055'
79 MPH 79 MPH
c— 50 MIN I t— 50 MIN—,
IK 30'
s
4119
M 411
] Q NDTE�IRLT„IWIEM LDCATED
r •
J1 O FRDN 128 . el
7 DE
_cc:4r
INSTALL: GATES & FLS
CONTROL DEVICES: CONSTANT WARNING co RD.51
BOLO- IN DOT• 057 212 N 1qq1¢¢EETT ��pp
`I HS?? T ET
• OUT UD iT
SALVAGE: NONE
Q INSTRUMENT HOUSE BNSF RAILWAY CO.
Ill
HUDSON,CO.
® BELL X.
4 METER Warning device placement CO.ROAD 51 7—
Clearance to C.L. Track = Min.12'.Max.2W LS 0002 BRUSH SUBDIVISION '-
• CROSSING CONTROL CONNECTIONS Edge of Road to C.L.Foundation: cr:
N UNIDIRECTIONAL CROSSING CONTROL Mm.4'1'with curb, MP 509.07 POWDER RIVER DIVISION
Min.8'1'without curb, 4"
O BIDIRECTIONAL CROSSING CONTROL Max. 12' DOT* 057 212 N
House Clearance: 25'Min. to C.L.of Track r+�
re, COUPLER OR TERMINATION 30'Min. to d e of Road KANSAS CITY v`i
Front Lights: ED
GUARD RAIL Back and Side Lights: �Ep NO SCALE DATE:11/21/03
Cantilever Jury Mast as LEO FILE:0002509_07.DGN MCR/TLP
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
THE B. N. S. F. RAILWAY COMPANY
FHPM ESTIMATE FOR
STATE OF COLORADO
LOCATION:- HUDSON DETAILS OF ESTIMATE PLAN ITEM: PSI057212N VERSION: 1
PURPOSE. JUSTIFICATION AND DESCRIPTION
SIGNAL COST TO RELOCATE ALL CROSSING EQUIPMENT AND UPGRADE TO CONSTANT WARNING AT CO RD 51
DOT 057212N IN HUDSON. CO L/S 0002 MP 509.07 ON THE POWDER RIVER DIV BUSH SUBDIV.
THE MATERIAL LIST BELOW REFLECTS TYPICAL REPRESENTIVE PACKAGES USED FOR ESTIMATING PURPOSE
ONLY.
THEY CAN BE EXPECTED TO CHANGE AFTER THE ENGINEERING PROCESS. DETAILED AND ACCURATE
MATERIAL LISTS WILL BE FURNISHED WHEN ENGINEERING IS COMPLETED.
CONTINUING CONTRACTS HAVE BEEN ESTABLISHED FOR PORTIONS OF SIGNAL WORK ON THE BNSF
RAILROAD.
THIS ESTIMATE IS GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST
FOR LABOR, MATERIAL, AND OVERHEAD.
******************************* SIGNAL WORK ONLY *******************************
THE STATE OF COLORADO IS FUNDING THIS PROJECT. 100% OF BNSF'S COST IS AT THE STATES
EXPENSE.
NOTE: ALL CROSSING EOUIPMENT BEING RELOCATED IS FROM 120TH AVE. DETOUR L/S 0002 MP
527.33.
DESCRIPTION QUANTITY U/M COST TOTAL $
**********
LABOR
**********
ELECTRICAL LABOR F/POWER TRANS SYS 96.00 MH 2.149
SIGNAL FIELD LABOR - CAP 672.00 MH 14,306
PAYROLL ASSOCIATED COSTS 13,273
EQUIPMENT EXPENSES 4,120
DA LABOR OVERHEADS 14.815
INSURANCE EXPENSES 2,594
TOTAL LABOR COST 51,257 51,257
**********
MATERIAL**********
CABLE 1.00 LS 1,388
FOUNDATION 2.00 EA 870
HXP3R SYSTEM 1.00 EA 13,080
LAMP RESISTOR PANEL 1.00 EA 735
LED LIGHT ADJUSTMENT 12.00 EA 3.036
LED LIGHT GATE KIT 2.00 EA 730
LIGHT OUT DETECTOR 1.00 LS 659
MATERIAL FOR ELECTRICAL 1.00 EA 1,500
MDSA-1 1.00 EA 244
MISC FIELD MATERIAL 1.00 LS 2.000
MISC WIRING MATERIAL 1.00 LS 1,500
ONE WAY SIDELIGHT ASSY 1.00 LS 890
RTU-6, CELLULAR MONITOR 1.00 EA 2,060
MATERIAL HANDLING 75
USE TAX 1,138
OFFLINE TRANSPORTATION 355
* **
TOTAL MATERIAL COST 30,260 30,260
OTHER
**********
AC POWER SERVICE 1.00 EA 15,000
CONTRACT ENGR. 1.00 EA N 6,000
FILL DIRT 100.00 CY N 2.500
SURFACE ROCK 5.00 CY N 125
TOTAL OTHER ITEMS COST 23,625 23,625
PROJECT SUBTOTAL 105.142
f/A,.‘,f 13
CONTINGENCIES 10.514
BILL PREPARATION FEE 579
GROSS PROJECT COST 116,235
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 116.235
f>cxab'f $
1
MAINTAIN PROPRIETARY CONFIDENTIALITY
THE B. N. S. F. RAILWAY COMPANY
FHPM ESTIMATE FOR
WELD COUNTY
LOCATION:- EAST HUDSON DETAILS OF ESTIMATE PLAN ITEM: PTR057212N VERSION: 1
PURPOSE, JUSTIFICATION AND DESCRIPTION
HUDSON, CO - REPLACE PUBLIC CROSSING SURFACE AT CO. RD. 52, DOT# 057212N, MP 509.08, LINE
SEGMENT 2 BRUSH SUBDIVISION - BILLABLE 100% TO WELD COUNTY, COLORADO
DESCRIPTION OF PROJECT AS PROVIDED BY FIELD ENGINEERING DTD 6/20/03:
BNSF PUBLIC PROJECTS IS ENTERING INTO AN AGREEMENT WITH THE COUNTY OF WELD TO HAVE 1 - 24'
RUBBER CROSSING REPLACED WITH A 32' CONCRETE CROSSING SURFACE AT CO RD 52.
ROAD WORK IS TO BE PREFORMED ON EACH SIDE OF THE CROSSING TO ELIMINATE LOW TRAILERS FROM
HANGING UP.
LIGHTS AND GATES ARE TO BE PLACED BY THE SIGNAL DEPARTMENT.
DESCRIPTION QUANTITY U/M COST TOTAL $
LABOR
PLACE FIELD WELDS - CAP 48.00 MH 960
REPLACE PUBLIC CROSSING - TOTAL REHAB 64.00 MH 1,174
SIGNAL FIELD LABOR - CAP 11.00 MH 243
SURFACE TRACK - REPLACEMENT - CAP 24.00 MH 477
UNLOAD BALLAST - REPLACEMENT - CAP 6.00 MH 110
UNLOAD CROSSING MATERIAL - PUBLIC - CAP 16.00 MH 294
PAYROLL ASSOCIATED COSTS 2,626
EQUIPMENT EXPENSES 1,720
DA LABOR OVERHEADS 2,931
PERDIEM EXPENSES 150
INSURANCE EXPENSES 512
TOTAL LABOR COST 11,197 11,197
MATERIAL
BALLAST, FROM GRANITE CANYON, WY. (PART OF PR, 100.00 NT 757
TRACK PANEL,136# 39 FT PNDRL,LOFT TIES 2.00 EA 7,055
WELDKIT, GENERIC FOR ALL RAIL WEIGHTS 6.00 KT 318
CONC 136 08-SEC WITH FILLER FOR WOOD 32.00 FT 4,895
CONCRETE XING RAMP AND PANEL RESTRAINT, COMPL 1.00 ST 192
SIGNAL MATERIAL 1.30 DAY 195
MATERIAL HANDLING 666
ONLINE TRANSPORTATION 924
USE TAX 532
OFFLINE TRANSPORTATION 157
TOTAL MATERIAL COST 15,691 15,691
OTHER
SIGNAL LEASED VEHICLE 1.30 DAY 65
TOTAL OTHER ITEMS COST 65 65
PROJECT SUBTOTAL 26,953
CONTINGENCIES 2,635
BILL PREPARATION FEE 148
GROSS PROJECT COST 29,736
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 29,736
FORM APPROVED
BY VP-LAW
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
• 1.01.01 The Contractor must cooperate with THE BURLINGTON NORTHERN AND SANTA FE
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
Weld County Road 51,DOT#057212N,L/S 2,MP 509.079.
• 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 2 of said Exhibit"C-1".
• 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.
• 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 Weld County Commissioners and Railway's Manager Public Projects,
telephone number (913) 551-4964, or fax (913)551-4794 at least thirty (30) working days before commencing
any work on Railway Property. Contractors notification to Railway, must refer to Railroad's file
• 1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 �A
horizontal to I 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. 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 Form 0102 Rev.02/04
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor,its subcontractors,agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees,subcontractors,agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railway's Division Superintendent in Denver,CO at(303)480-6227 or
303-480-6393 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 clearances during construction:
• 25'-0" Horizontally from centerline of nearest track
• 23'-3 1" Vertically above top of rail(Temporary Falsework Clearance may be reduced to 21'-6"
subject to Railway and Public Utilities Commission approval)
• 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
• 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
• 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
• 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
• 1.03.04 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the Weld County Commissioners and must not be undertaken until approved in
writing by the Railway, and until the Weld County Commissioners has obtained any necessary authorization
from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event
the Contractor's work is delayed pending Railway approval,and/or the State Regulatory Authority's approval.
• 1.03.05 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.
• 1.03.06 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 Weld County Commissioners for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.07 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 Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
2 Form 0102 Rev.02/04
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 at the expense of the Contractor.
• 1.03.08 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.
• 1.03.09 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.
1.05 Protection of Railway Facilities and Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster(telephone 303-480-6413) a minimum of thirty (30)
working 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 and protective
services and devices 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 in the opinion of the Railways Representative it is necessary to safeguard Railway's Property,
employees,trains,engines and facilities.
• 1.05.026 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.
3 Form 0102 Rev.02/04
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However,additional personnel may be required to
protect Railway Property and operations,if deemed necessary by the Railways Representative.
• 1.05.03b Each time a flagger is called,the minimum period for billing will be the eight(8)hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the Weld County Commissioners. The estimated cost for one (1) flagger is
$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,
transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated
flagging rates.The flagging rate in effect at the time of performance by the Contractor hereunder will be used to
calculate the actual costs of flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 34 freight trains per 24-hour period at a timetable speed 60
MPH and 3 passenger trains at a timetable speed of 79 MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s)is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction.All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track,the job briefing must include the Railway's flagger,as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority,(3)the method of communication to stop and resume work,and(4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed,must notify the flagger immediately,and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends,the Railroad's representative in charge of the project must be notified.A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol,or in the possession of same,will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
immediately to the Railway's representative 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
4 Form 0102 Rev.02/04
reported immediately to the Railway representative in charge of the project and to the Railway's Resource
Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at the job site.
• 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly
weapons in their possession while working on Railway's Property.
• 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves,and respirators must be worn as
required by State and Federal regulations. (NOTE—Should there be a discrepancy between the information
contained on the web site and the information in this 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, where storage of the same will interfere with the sight
distances of motorists 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 the Railway's Telecommunications Department (303-480-6404), Signal Supervisor
(303-480-6339) and Roadmaster (303-480-6413). All underground and overhead wires will be considered
HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the
Contractor's responsibility to notify any other companies that have underground utilities in the area and
arrange for the location of all underground utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and
the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there
5 Form 0102 Rev.02/04
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
I(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
6 Form 0102 Rev.02/04
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 303-480-7483
7 Form 0102 Rev.02/04
FORM APPROVED
BY VP-LAW
EXHIBIT "C-1-
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: DOT 0057212N,L/S 2,MP 509.079,Weld County Road 51,Brush Subdivision
Agency Project: Weld County Road 51
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated
, 200_,with Weld County Commissioners for the performance of certain work in connection with
the following project: Construction of roadway improvements including relocating of Weld County Road 51, DOT
#057212N, L/S 2, MP 509.079, across the trackage of The Burlington Northern and Santa Fe Railway Company at
Line Segment 2,Mile Post 509.079, in Weld County,Colorado on the Brush Subdivision.
Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND
SANTA FE 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 Weld County (i) executes and delivers to Railway an Agreement in the form hereof, and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement
is executed by a party who is not the Owner,General Partner,President or Vice President of Contractor, Contractor
must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including
Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF RAILWAY.h
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 BOILER INSPECTION ACT,WHENEVER SO CLAIMED.
Form 0103 Rev.02/04
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.
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 all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must,at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability
with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
include coverage for,but not limit to the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
• It is agreed that any workers' compensation exclusion does not apply to Railroad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
• The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
• Any exclusions related to the explosion,collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence,and include coverage for,but not limited to the following:
• Bodily injury and property damage
• Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including coverage for,but not limited to:
2
Form 0103 Rev.02/04
• 's statutory liability under the worker's compensation laws of the state(s) in
which the work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit,$500,000 by disease each employee.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at
least$2,000,000 per occurrence and$6,000,000 in the aggregate. The policy Must be issued on a standard
ISO form CG 00 35 10 93 and include the following:
• Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93)
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to remove any exclusion for punitive damages.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to the Railroad prior to performing any work or services
under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care,custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible,self-insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be furnished.
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.
3
Form 0103 Rev.02/04
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years,Railroad may reasonably modify the required insurance coverage
to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release,defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section,Railroad means"Burlington Northern Santa Fe Corporation", "The Burlington
Northern and Santa Fe Railway Company"and the subsidiaries,successors,assigns and affiliates of each.
Section 4. EXHIBIT"C"CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the specifications of the Contract, entitled EXHIBIT "C", CONTRACTOR
REQUIREMENTS, 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 per freight train hour at an average rate of$500
(with annual adjustments) per hour per train as determined from Railway's record. Any disruption to train traffic
may cause delays to multiple trains at the same time for the same period.
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
4
Form 0103 Rev.02/04
extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as$50,000.00 per incident.
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) The Burlington Northern and Santa Fe
Railway Company
By: By:
Name: Name:
Manager Public Projects
(Title)
Accepted and effective this day of 20_.
Address
City: State: Zip:_
5
Form 0103 Rev.02/04
FORM APPROVED
BY VP-LAW
EXHIBIT "C-1"
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: DOT#057212N,L/S 2,MP 509.079,Weld County Road 51,Brush Subdivision
Agency Project: Weld County Road 51
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated
, 200,with Weld County Commissioners for the performance of certain work in connection with
the following project: Construction of roadway improvements including relocating of Weld County Road 51, DOT
#057212N, US 2, MP 509.079, across the trackage of The Burlington Northern and Santa Fe Railway Company at
Line Segment 2,Mile Post 509.079,in Weld County,Colorado on the Brush Subdivision.
Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND
SANTA FE 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 Weld County (i) executes and delivers to Railway an Agreement in the form hereof, and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement
is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor
must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including
Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT,IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF RAILWAY.h
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 BOILER INSPECTION ACT,WHENEVER SO CLAIMED.
1
Form 0103 Rev.02/04
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.
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 all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must,at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability
with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
include coverage for,but not limit to the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
• It is agreed that any workers' compensation exclusion does not apply to Railroad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
• The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
• Any exclusions related to the explosion,collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence,and include coverage for,but not limited to the following:
• Bodily injury and property damage
• Any and all vehicles owned,used or hired
C. Workers Compensation and Employers Liability insurance including coverage for,but not limited to:
2
Form 0103 Rev.02/04
• 's statutory liability under the worker's compensation laws of the state(s) in
which the work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit,$500,000 by disease each employee.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at
least$2,000,000 per occurrence and$6,000,000 in the aggregate. The policy Must be issued on a standard
ISO form CG 00 35 10 93 and include the following:
• Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93)
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to remove any exclusion for punitive damages.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to the Railroad prior to performing any work or services
under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care,custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible,self-insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be furnished.
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.
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Form 0103 Rev.02/04
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage
to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release,defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section,Railroad means"Burlington Northern Santa Fe Corporation","The Burlington
Northern and Santa Fe Railway Company"and the subsidiaries, successors,assigns and affiliates of each.
Section 4. EXHIBIT"C"CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the specifications of the Contract, entitled EXHIBIT "C", CONTRACTOR
REQUIREMENTS, 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 per freight train hour at an average rate of$500
(with annual adjustments) per hour per train as determined from Railway's record. Any disruption to train traffic
may cause delays to multiple trains at the same time for the same period.
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
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extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as$50,000.00 per incident.
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) The Burlington Northern and Santa Fe
Railway Company
By: By:
Name: Name:
Manager Public Projects
(Title)
Accepted and effective this day of 20_.
Address
City: State: Zip:
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Form 0103 Rev.02/04
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