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Contracts & Agreements_19-1998_CCv0001.pdf
.. ' ". CITY ORIGINAL BNSF SECY. CONT. NO.: BNSF File No. 05002646 EUREKA 8TEETAT'GFADE CROSSING (Track Rehabilitation) AGREEMENT made this 7th day of April , 1998. between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation, hereinafter called "BNSF", and the CITY OF REOLANDS, a political subdivision of the State of California, hereinafter referred to as "City". RECITALS: BNSF operates a line of railroad over trackage (the "BNSF Tracks") owned by the San Bernardino Associated Governments (hereinafter referred to as "SANBAG") in and through the City of Redlands, County of San Bernardino, California. City desires to reconstruct and widen the existing Eureka Street at-grade crossing (Public Utilities Commission Crossing No. 2U'8.6). The term ^Pnoject^, as used in this oOneoment, shall include all work of every kind and character required in connection with the reconstruction and widening of the Eureka Street crossing (hereinafter referred to as the "Crossing") including, without |irnitedon, any and all changes to telephone, te|mgnaph, signal and electrical lines and eppurtenmnoes, all temporary and permanent track work, gneding, and drainage facilities as shown on the print dated August 15, 1997, attached hereto as Exhibit "A" and by this reference made a part henonf, as well as preliminary and construction nngineorinQ, and contract preparation. BNSF and City desire to express in writing their understanding and agreement with respect to the Project and pursuant to which the Crossing is to be constructed and maintained. AGREEMENT: ARTICLE I IN CONSIDERATION of the covenants of City hereinafter set forth, and the faithful performance thereof, BNSF agrees as follows: 1. To furnish all |ebor, nnaterie/s, too|s, and equipment, and to perform the railroad work required due to construction of the Prn/ect, such railroad work and the estimated cost thereof being as shown in Exhibit "B" attached hereto and by reference made a part hereof. Any item of work incidental to those items listed in said Exhibit "B", but not specifically mentioned therein, may be included as part of this agreement as an item of work upon written approval of City, if practicable. Construction of the Project will require work by BNSFas follows: (a) Preliminary angineering, track design, and contract preparation; (b) Removal and replacement of cross-ties; 1 � . (c) Increasing the weight of 261 track feet of existing rail from 90 lb. to 115 lb.jointed rail and to 136 lb. welded rail; (d) Installation of 80 track feet of concrete crossing panels: and (e) Spot surfacing of 800 track feet. 2. To do all work specified in Article I, Section 1 above with its own employees working under Railroad Labor Agreements or by contractor(s), if necessary, on a force account basis. It is expressly understood, however, that BNSF will not commence such work until City has obtained the approval and permission of SANBAG to construct the Project and to cross its right of way and tracks as hereinafter provided in Article II, Section 2. 3. The work to be performed by BNSF shall be performed as soon as practicable, considering availability of materials and manpower. In consideration thereof, City agrees to pay to BNSF the actual cost of such work, presently estimated to be SEVENTY FIVE THOUSAND EIGHT HUNDRED EIGHTY NINE DOLLARS ($75.089.00). as shown on Exhibit 13" 4. Upon execution and return of this agreement, City shall deliver to BNSFthe sum of SIXTY THOUSAND SEVEN HUNDRED AND ELEVEN DOLLARS ($60,711.00), representing eighty percent (80%) of the estimated cost of the work to be performed by BNSF, as shown on Exhibit "B~ The remaining balance of the Project's actual cost shall be paid by City to BNSF promptly upon request and completion of the Project. 5. BNSF is hereby authorized to include a charge, equal to the amount allowed by the Federal Highway Administration at the time of billing, to cover the cost of BNSF's self-insurance expense covering Employer's Liability, including liability under the Federal Employer's Liability Act, for protection of its employees in connection with the construction of the Project covered by this agreement. Such charge shall be considered a portion of the actual cost of the Project regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. ARTICLE II IN CONSIDERATION of the covenants of BNSF hereinafter set forth, and the faithful performance thereof, City agrees as follows: 1. To furnish to BNSF plans and specifications for the Project. Four sets of said plans, together with two copies of calculations, and two copies of specifications, shall be submitted to BNSF for its approval prior to commencement of construction. After having been approved by BNSF, said plans and specifications are hereby adopted and incorporated into this agreement by reference. 2 To acquire, at its sole cost and expense, all rights of way necessary for the construction of the Projmot, including but not limited to the right to cross SANBA<5's right of way and tracks. 3. To make any and all arrangements to secure the location or relocation of wire lines, pipe lines and other facilities owned by private persons, oompanien, corporotiono, political subdivisions or public utilities which may be found necessary to locate or relocate in any manner whatsoever due to the construction of the Prjoct. 4 To close and barricade Eureka Street during the track reconstruction until completed and to repave the track approaches as required. 2 ^ � 5. To construct the Project as shown on Exhibit "A^ , at its sole cost and nxpense, and do all work provided for in the plans and specifications for the Pnojoct, except such work that BNSF herein agrees to do. G, To furnish all |mbor, mmtoriu|s, too|s, and equipment in performing the work it agrees to perform herein. All work of construction with respect to said Project shall be undertaken by City, or City's contractor and shall be performed at such times as shall not endanger or interfere with the safe and timely operations of BNSF's trains. 7. To require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) business days in advance of commencing work on or near the BNSF Tracks when requesting a BNSF flagman in accordance with the requirements of Exhibit "C" attached hene1u, in order to protect BNSF from damage to its trains and property. G. To require its contractor(s) to furnish BNSF's Manager of Public Projecte, for approval, four copies of plans and two sets of calculations of any shoring or cribbing proposed to be used over, undmr, or adjacent to the BNSF Tracks. The use of such shoring or cribbing shall conform to the standard side clearance set forth in the requirements of the California Public Utilities Commission (hereinafter referred to as the "Commission') which govern such clearance. In case the use of such shoring will impair said o|emrmnce. City will ensure that application is made to the Commission for approval of such impairment during the period of construction of the Project. S. To incorporate in each prime contract for construction of the Prnject, or the specifications therefor, the provisions set forth in Exhibits "C" and ^C'1^, attached hereto and by reference made a part hereof. 10. That, except as hereinafter otherwise providod, all work to be performed hereunder by City in the construction of the Project will be performed pursuant to a contract or contracts to be let by City, and all such contracts shall provide: (a) That all work performed theneunder, on or near the BNSF Tracks shall be performed in a good and workmanlike monner, and in accordance with plans and specifications approved by BNSF. Those changes or modifications during construction that affect safety or BNSF's operations shall also be subject to BNSF's approval; (b) That no work shall be commenced on or near the BNSF Tracks until each of the prime contractors employed in connection with said work shall have (i) executed and delivered to BNSFa letter agreement in the form of Exhibit "C-I", and (ii) delivered to and secured BNSF's approval of the required insurance; (c) That if, in City's npinion, it shall be for its best in1aroot. City may direct that the construction of the Project be done by day labor under the direction and control of City, or if at any time, in the opinion of City, the contractor has failed to prosecute with diligence the work specified in and by the terms of said con1ract, it may, in the manner provided by law, terminate the contractor's control over said work and take possession of all or any part thereof and proceed to complete the same by day labor or by employing another contractor(s), provided that all such contractor(s) shall be required to comply with the obligations in favor of BNSF hereinabove set forth and, provided fuhher, that if such construction is performed by day |mbor. City will, at its enpense, procure and maintain on behalf of BNSF the insurance required by Exhibit "C-1". 11, To advise BNSF's Manager of Public Pjects, in writing, of the completion date of the Project within thirty (30) days after such completion and to notify BNSF's Manager of Public Projects, in 3 .^ ~ writing, of the date on which City and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project. ARTICLE U| IN CONSIDERATION of the premises, it is mutually agreed as follows: 1. That all work contemplated in this agreement shall be performed in a good and workmanlike manner and each portion shall be promptly commenced by the parties hereto obligated to do the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction that affect BNSF shall be subject to BNSF's approval prior to commencement of such changes or modifications. 2. That such work shall be done in accordance with detailed plans and specifications approved by BNSFand subject to the Commission's approval, with minimum clearances of not less than those specified by the Cunnnnissiun, or as otherwise authorized by the Commission for the BNSF Tracks at this location. 3. That City will bear the entire cost and expense incurred in connection with the construction of the Project. 4. That the construction of the Project, on or near the BNSF Tracks, shall not be commenced by City's contractor until City shall have given not less than thirty (30) days prior written notice to BNSF's Manager of Public Projents, making reference to BNSF's file number 05002646 (Eureka Stnmet), which notice shall state the time that operations for construction of the Project shall oonmnmmnce, and shall have provided BNSF with evidence that the requirements of Article II, Section II have been satisfied. 5. That after completion of the construction of the Project as hereinabove described: (a) BNSF will, at its expanoe, maintain that portion of the crossing lying between lines two feet outside of and parallel to the rails of the track. (b) City will, at its expense, maintain any street improvements within the crossing other than specified to be maintained by BNSFin Article |||. Section 5(a) above. (c) Before entering upon SANBAG's right of way for maintenance purpomms. City shall notify BNSF's Manager of Public Projects to obtain prior authorization. When work is contracted, City shall require its contractor(s) to execute contracts containing obligations in favor of BNSF, set forth in Exhibits "C" and "C-1", as may be revised from time to time, and agreed to by the parties hereto. City shall be responsible for contractor's compliance with its obligations as set forth in said Exhibits. After the commencement of commuter rail service by SANBAG over its right of way, such notification shall be given to SANBAG's Executive Director. G. All work covered by this agreement shall conform to the requirements of the Commission. 7. City shall require its contractor(s) to reasonably adhere to the City's construction schedule for all Project work. The parties agree that BNSF's failure to complete the railroad work in accordance with the construction schedule will not constitute a breach of this agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirement of the construction aohedu|e. BNSF reserves the right to reallocate its labor forces, assigned to complete the railroad work where BNSF believes such reallocation is necessary to provide for the immediate restoration of 4 ^ ' ~ ~ railroad operations of BNSF or its related railroads or to protecpersons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses of the Project resulting from any such reallocation of its labor forces. The parties agree that this reallocation of labor forces by BNSF and any direct or indirect results of such reallocation will not constitute a breach of this agreement by BNSF, 8. City shall be responsible to BNSF and its tenants for all damages for the delay to trains which may be sustained by BNGF, its omp|oyees, tenants or freight in its care in the event such delay is caused by any act or omission of City, its contractors, agents or employees, being more particularly described in Exhibit ''C'1^ attached hereto and made a part hereof. Q. City shall indemnify and save harmless BN3F, its agents and employees, against all |iabi|hy, u|minnm, demmnda, domages, or costs for (a) death or bodily injury to persons including, without |irnitmdion, the employees of the parties hereto, (b) injury to property including, without |imitnUnn, the property of the parties hereto, (c) design defects, or (d) any other loss, damage or expense arising under either (a), (b) or (c), and all fines or penalties imposed upon or assessed against BNSF, and all expenses of investigating and defending against the same, arising in any manner out of(i)the use, occupancy or presence of City, its contractors, subcontrxotorm, employees or agents in, on, or about the construction and/or maintenance site, (ii) the perfomnmncm, or failure to perform by City, its controntorn, oubcontnacturs, ennp|nyees, or agents, its work or any obligation under this agreement, or(iii) the sole or contributing acts or omissions of City, its contractors, subcontractors, employees, or agents in, on, or about the construction and/or maintenance site. Nothing contained in this provision is intended to, nor shall be deemed or construed to, indemnify BNSF from its sole negligence or willful misconduct, or that of its agents, servants or independent contractors who are directly responsible to it. 10. That the bmoks, papens, records and accounts of the parties heretu, insofar as they relate to the items of expense for labor and material or are in any way connected with the work herein contemplated, shall at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto for a period of three (3) years from the date the Project is completed. 11. All the covenants and provisions of this agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties heroto, except that no party may assign any of its rights or obligations hereunder without the prior written consent of the other party. 12. In the event that construction of the Project has not begun for a period of three (3) years from the date of this agreement, this agreement shall become null and void. 13. Any notice provided for or concerning this agreement shall be in writing and be deemed sufficiently given when sent by certified mail, return receipt roquested, to the parties at the following addresses: The Burlington Northern and BNSF's Manager of Public Projects Santa Fe Railway Company: 740 East Carnegie Drive San Bemendinn, CA 92408-3571 City of Redlands: City of Redlands Director of Public Works P.O. Box 3005 Redlands, CA 92373 5 IN WITNESS WHEREOF, City has caused this agreement to be executed and attested by its duly and authorized officials pursuant to authority regularly granted them by its City Council and BNSF has executed this agreement both as of the day and year first above written. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By si.d.%A. • ApPROVP Ap TO POW M. W. Franke t„( Lrn Its Vice-President&Chief Engineer intiFito*Naft ATTEST: CITY OF REDLANDS N • L By city cr: k or ie Poyzer i11im E. Cunnaiam Its Mayor 6 u s I.-- t U N 413 • 1 -? Yf .vDtSGR,P-Tto'4 ^" O do4 a1 r KT Sr�*++�%-S ws�Tx i _,a"?bks siaEtZ 2�1.�iMiTS�ltµrl+�1 W'4r1s�ClA SM N� 1 s�Rtc�+�v.�"- 24.16-rt-saR.+►e.»s�*zip �►rs-r�r�. c............-,..cctossr+sa vaca_x AS 5r4o...*► BNSF 1�} .. 0, i q 1., �-I \n 1 Q c '. III, Ire EXHIBIT "Ari r a -.\ _LLQ,4 1S - - t50• 1tt j11 # s —Y �- �� --1- .�--.- .�. r _ } 4- --- .. ...-• ..••ter' �\ 27; _ �-` 1 , I j 3 �� 1� SEE S'R;:.T r-MS ;p1/4t2r,JF S_s.Y?C_T t�'./,�:r! Wry" ....4 %,,*---.,- --.7.7- irt — ? 53 i •SES =C g }} -(1' - - - --1-- .0\ -......, 4. i•-dv�' ......- - }} - �'� :I _ .,._w-----'._.--__ -"te �36)4/' -�`1. t,-; -- -- �! --- `_`` + i 't,.. r t ' - .--- Eh .r- fl�(; r= ; l '-- L t l r— I F 1 ..••w¢x„t-P uo C.-r-.4 Pt...N-R-ov S.,.a$.11,70.4 Lt. a4+15F 2k THE B. N. S. F. RAILWAY COMPANY PAGE: 1 FORCE ACCOUNT ESTIMATE FOR CITY OF REDLANDS --------------------------------------------------------------------------------------------------------------------------- WIDEN AND IMPROVE EUREKA STREET CROSSING WITH 80 FT. CONCRETE CROSSING SURFACE. EXHIBIl �■■ /7 WIDEN AND IMPROVE EUREKA STREET, CPUC CROSSING NO. 2U-8.6 WITH 80 FT. 136 LB. CROSSING SURFACE AT M.P. 8.6 ON THE REDLANDS INDUSTRIAL SPUR, CAJON SUBDIVISION, SOUTHERN CALIFORNIA DIVISION. SUSPENSE AUTHORITY NO. 7-5041-97 ASSIGNED. DETAILS OF ESTIMATE LOCATION - REDLANDS SPUR TO DESCRIPTION - CONSTRUCT EUREKA STREET XING --------------------------------------------------------------------------------------------------------------------------- DESCRIPTION QUANTITY U/M COST $ TOTAL 5 lfMMififMKNX LABOR ***mill** PLACE PUBLIC CROSSING 3,281 REMOVE PUBLIC CROSSING 1,312 REPLACE CROSS TIES 1,968 REPLACE RAIL/OTM 1,969 SURFACE TRACK 892 UNLOAD BALLAST 445 WORK TRAIN - BALLAST 329 WORK TRAIN - CROSS TIES 141 WORK TRAIN - PUBLIC XING 328 WORK TRAIN - UNLOAD OTM 94 WORK TRAIN - UNLOAD RAIL 94 PAYROLL ASSOCIATED COST 6,683 SUPERVISION 7,726 INSURANCE 868 TOTAL LABOR COST 26,130 26,130 MMMMMMMMifMMM MATERIAL ANCHOR, RAIL,DRIVE TYPE,5 1/2IN BAS 44.0 EA 32 BALLAST, NEWBERRY 146.0 NT 1,193 FILTER FABRIC 135.0 SY 474 PIPE, 6 IN PVC PERF 222.0 LF 416 PLATE, TIE, 5.5 IN BASE, DS 22.0 EA 102 RAIL, 136 LB NEW WELDED 260.0 LF 3,538 TRACK SPIKES, NEW 88.0 EA 20 STEP JOINT, 115/90 LB LH 2.0 EA 240 STEP JOINT, 115/90 LB RH 2.0 EA 240 STEP JOINT, 136/115 LB LH 2.0 EA 271 STEP JOINT, 136/115 LB RH 2.0 EA 272 TIE, CROSS, TREATED, HARDWOOD 11.0 EA 271 TIE, 10',PREPLTED,PANDR,6",ROUNDHOL 71.0 EA 5,084 TRACK PANEL, 112/115 LB - 39 FT 2.0 EA 2,753 CONC 136 08-SEC WITH FILLER FOR WOOD 80.0 TF - 10,800 USE TAX 2,108 HANDLING CHARGES 636 TRANSPORTATION 2,057 TOTAL MATERIAL COST 30,507 30,507 --------------------------------------------------------------------------------------------------------------------------- ENGINEERING SERVICES - KANSAS CITY PRINTED: 12/17/97 SYSTEM FILE NUMBER: 05025067 Q197-SUA ESTIMATE REF. NUMBER: 96-105 -1-1-96-2 96-105-97 DETAILS OF ESTIMATE PAGE: 2 LOCATION - REDLANDS SPUR TO DESCRIPTION - CONSTRUCT EUREKA STREET XING ...______________________---------------- ------- ------- --------- DESCRIPTION QUANTITY U/M COST $ TOTAL $ Immice**Itiw****m EXHIBIT OTHER ITEMS "B" mcomm*Kitioxx*wxn COMPANY OWNED EQUIPMENT 2,160 LOADER TO PLACE CROSSING 11,000 PLACE ASPHALT RAMP120 TOTAL OTHER ITEMS COST 13,280 13,280 SUBTOTAL 69,917 CONTINGENCIES 5,972 GROSS PROJECT COST 75,889 LESS COST PAID BY BNSF 0 TOTAL ESTIMATED COST $75,889 ENGINEERING SERVICES - KANSAS CITY PRINTED: 12/17/97 SYSTEM FILE NUMBER: 05025067 Q197-SUA ESTIMATE REF. NUMBER: 96-105 -1-1-96-2 96-105-97 ** TOTAL PAGE.03 ** EXHIBIT "C" CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor shall cooperate with THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, hereinafter referred to as "Railroad" where work is over or under on or adjacent to Railroad property and/or right-of- way, hereafter referred to as Railroad property, during the construction of E.UkrE.T Pvc C5) Iii©. 21.1• G , which shall not interfere with the movement of any trains on Railroad property. • 1.01.02 The Contractor's right to enter Railroad's property is subject to the absolute right of Railroad to cause the Contractor's work on Railroad's property to cease if, in the opinion of Railroad, Contractor's activities create a hazard to Railroad's property, employees, and/or operations. • 1.01.03 The Contractor shall notify the (Agency) -r rts_taL.Akt ts at SS and Railroad's r ,„ telephone number 0;9 3,f34,4<z)63,c) , Address p . 7 . •, •• • .0 at least thirty(30) working days before commencing any wor over or under on or adjacent to Railroad property. Contractors notification to Railroad shall refer to Railroad's file number 45ZE7c:72. 6:04-6.. • 1.01.04 For any falsework above any tracks or any excavations located, whichever is greater, within twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 '/ horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor shall furnish the Railroad five sets of working drawings showing details of construction affecting railroad tracks and property. The working drawing shall include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. All calculations shall take into consideration railroad surcharge loading and shall be designed to meet American Railway Engineering and Maintenance-of-way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations shall be stamped by a regist:,,C'l licensed to practice in the state the project is located. The Contractor shall not begin work until notified by the Railroad that plans have been approved. The Contractor shall be required to use lifting devices, such as cranes and/or winches, to place or to remove any falsework over Railroad's tracks. In no case shall the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.05 It is expected that Railroad will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor shall have no claim whatsoever for any type of damages or for extra or additional compensation in the event its work is delayed by the Railroad. 1.02 Agreement • 1.02.01 No employee of the Contractor, its Subcontractors, Agents or Invitees shall enter Railroad property without first having attended a Safety Orientation. The Contractor shall ensure that at a minimum its Project Supervisors have attended a Safety Orientation conducted by the Railroad, or it's Representative, and that each of its employees, subcontractors, agents or invitees have received the same Safety Orientation before any work is performed on the Project. The Contractor shall give Railroad a minimum of thirty (30) days' advance notice for scheduling the Safety Orientation. 1.03 Railroad Requirements • 1.03.01 The Contractor shall comply with the rules and regulations of Railroad and the instructions of the Railroad's representatives in relation to the proper manner of protecting the tracks and property of Railroad and the traffic moving on such tracks, as well as the wires, signals and other property of Railroad, its tenants or licensees, at and in the vicinity of the work area during construction. • 1.03.02 The Contractor shall perform work in such manner and at such times as shall not endanger, delay or interfere with the safe and timely operation of the tracks and property of Railroad and the traffic moving on such tracks, as well as the wires, signals and other property of Railroad, its tenants or licensees. • 1.03.03 The Contractor shall take protective measures as are necessary to keep railroad facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from its operations. Any damage to railroad facilities resulting from Contractor's operations will be repaired or replaced by Railroad and the cost of such repairs or replacement shall be paid for by the Agency. 2 • 1.03.04 The Contractor shall notify the Railroad's S(.4 PU21}...1--rGA.4 De j.rr at telephone number (;01) 32)1,=.41-c)c, , at (Address)14c) E,CA R.NILE_ 02_ and provide blasting plans to the Railroad for review at least seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railroad's property. • 1.03.05 The Contractor shall abide by the following clearances during the course of construction: • 25'-0" Horizontally from centerline of nearest track. • • • 22'-6" Vertically above top of rail (Temporary Falsework Clearance my be reduced to 21-6", subject to Railroad and Public Utilities Commission approval) 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.06 Any infringement on the above clearances due to the Contractor's operations shall be submitted to the Railroad and to the (Agency) C. t and shall not be undertaken until approved in writing by the Railroad, and until the (Agency) C i-t has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railroad approval, and/or the State Regulatory Authority's approval. • 1.03.07 In the case of impaired vertical clearance above top of rail, Railroad shall have the option of installing tell-tales or other protective devices Railroad deems necessary for protection of Railroad trainmen or rail traffic. The cost of tell-tales or protective devices shall be borne by the Contractor. • 1.03.08 The details of construction affecting the Railroad's tracks and property not included in the contract plans shall be submitted to the Railroad by(Agency) C rr for approval before work is undertaken and this work shall not be undertaken until approved by the Railroad. • 1.03.09 At other than public road crossings, the Contractor shall not move any equipment or materials across Railroad's tracks until permission has been obtained from the Railroad. The Contractor shall obtain a temporary private crossing agreement from the Railroad prior to moving his equipment or materials across the Railroad's tracks. The temporary private crossing shall be gated and locked at all times when not required for use by the Contractor. The temporary private crossing for use of the Contractor shall be at the expense of the Contractor. 3 MENUMW"eirgig • 1.03.10 The Contractor, upon completion of the work covered by this contract, shall promptly remove from the premises of Railroad all of Contractor's tools, implements and other materials, whether brought upon said premises by said Contractor or any Subcontractor, employee or agent of Contractor, and shall cause said premises to be left in a condition acceptable to the Railroad's representative. 1.04 Protection of Railroad Facilities and Railroad Flagger Services • 1.04.01 Upon advance notification of not less than thirty (30) working days by Contractor to the Railroad's Roadmaster at (t3 aG4O6„31 , inspectors, flagmen or watchmen will be provided by Railroad to protect its facilities, property and the movements of its trains or engines. In general, Railroad will furnish such personnel or other protective services: • 1.04.01a When, in the opinion of the Railroad's representative, it is necessary to safeguard Railroad's employees, trains, engines, facilities and property, or when work in any way interferes with the safe operation of trains at timetable speeds. • 1.04.01b When any part of any equipment is standing or being operated within twenty five (25) feet or operated so close to Railroad property that may affect the Railroad or Railroad's property, or when any erection or construction activities are in progress within such limits, regardless of elevation above or below track. Special clearance must be obtained from the Railroad before moving heavy or cumbersome objects or equipment onto Railroad property which might result in making the track impassable. • 1.04.O1c For any excavation below elevation of track subgrade if, in the opinion of Railroad's representative, track or other railroad facilities may be subject to settlement or movement. • 1.04.0Id For any clearing, grubbing, grading, or blasting in proximity to railroad facilities which, in the opinion of Railroad's representative, may endanger railroad facilities or operations. • 1.04.02 Railroad will furnish such personnel or other protective services when, in the opinion of Railroad's representative, railroad facilities, including, but not limited to, tracks, buildings, signals, wire lines, or pipelines may be endangered. • 1.04.03a The cost of flagging provided by Railroad during the period of construction of that portion of the project located on or near Railroad property, as deemed necessary for the protection of Railroad's facilities and trains, will be borne by the 4 (Agency) C.1-7-4 for a period of consecutive calendar days beginning on the date work commences on or near the Railroad's property. The Contractor shall pay to the (Agency) liquidated damages in the sum of $ per day for each day in excess of the above consecutive calendar days the Contractor works on or near Railroad property, and which requires flagging protection of Railroad's facilities and trains. • 1.04.03b The cost of all Railroad personnel (other than that required for inspection and flagging), equipment, and facilities deemed necessary by the Railroad and provided by the Railroad for the protection of railroad facilities and trains during the period of construction within Railroad's right of way, and the cost of installing protective devices in the case of impaired clearance, shall be borne by the Contractor. The Contractor shall be responsible for payment of all costs incurred for any damages to railroad roadbed, track and/or property resulting from use, occupancy, or presence of Contractors, employees or agents, or Subcontractors on or about the construction site. • 1.04.04 Railroad will submit its final bills to Contractor for cost incurred pursuant to paragraph 1.04.03b above. • 1.04.05 The train traffic on this route is Z. freight trains per 24-hour period at a timetable speed of c) MPH, -6;;P--- switch engines and - -- passenger trains at a timetable speed of --- MPH. 1.05 Contractor General Safety Requirements • 1.05.01 Safety is of the utmost importance in performing work on the Railroad's property. The Railroad does not in any manner assume the control or responsibility of the Contractor to provide safe working conditions for the Contractor's employees or Subcontractors in requiring the Contractor to follow the Railroad's General Safety Requirements. • 1.05.02 Work in the proximity of a railroad track is potentially dangerous. The Contractor and its employees, Subcontractors and Invitees are governed by the following Safety Rules and General Safety Requirements while on Railroad property. The Contractor is responsible for enforcement of these Safety Rules and Requirements. The Railroad has the right to bar the Contractor, its employees, Subcontractors and Invitees from working on Railroad property if the Railroad deems such persons are acting in an unsafe manner. • 1.05.03 The Contractor is responsible for compliance with all Federal, State and Local Governmental laws and regulations 5 is 1.05.04 Before beginning any task, a complete job safety briefing shall be conducted with all individuals involved with the task, and again i f the task changes. If the task is within 25 feet of any track, the job briefing roust include the Railroad's flogger and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any railroad tracks. • 1.05.05 All Contractor's employees, subcontractors, agents and invitees shall receive Safety Orientation from the Contractor's Safety Officer or a qualified Railroad representative prior to the start of any project. The Contractor's Safety Officer shall review the safety guidelines contained below to familiarize its employees with safety issues that exist when working in a railroad environment. This should be reviewed at least weekly, and with any new employee working on Railroad property. It is the responsibility of the Contractor's Supervisor and/or Safety Officer to instruct its employees the Railroad's Safety guidelines and to require co nplia ne with these gtaidelines.. • 1.05.06 Safety rules cannot be all-inclusive. Workers must refrain from unsafe and improper practices, including the violation and/or disregard of written rules and regulations, and rules of common sense. • 1.OS.Oda The use of alcoholic beverages, intoxicants, narcotics, marijuana and other controlled substances by employees subject to duty or their possession or use while on duty or on Railroad's property is prohibited. Workers must not report for duty under the influence of any alcoholic beverage, intoxicant, narcotic,marijuana or other controlled substance, or medication, including those prescribed by a doctor,that may in any way adversely affect their alertness, coordination, reaction,response or safety. • 1.05.06b Any damage to Railroad property, or if any hazard is noticed on passing tams, shall be reported immediately to the Railroad's representative in charge of the project Any vehicle or machine which may come in contact with a track, signal equipment, or structure(bridge) could result in a train derailment and shidl be reported by the quickest means possible to the Railroad representative in charge of the project and to the Railroad's Network Operations Center at I $00 832-X5452. Local emergency numbers are to be obtained from the Railroad representative in charge oft e project prior to the start of any work and shall be poster at the job site. • 1}05.06e All persons are prohibited from having firearms or other deadly weapons, including knives possessiones with a blade in excess of three inches, in their working on railroad's property, except those authorized to have while performance of their duties or those given special permission, 6 • 1.05.06d All Contractor employees working on the Railroad's property will be required to wear safety glasses with side shields, hard hats with high visibility orange cover, and above-the-ankle, lace-up, hardened toe safety boots with a defined heel, all approved by OSHA. High visibility, retro-reflective orange vests are required in certain locations as specified by the Railroad's representative in charge of the project. Particular attention to footing and the use of proper footwear is essential when working in snow or other slippery conditions. Hearing protection, fall protection and respirators will be worn as required by State and Federal regulations. • 1.05.06e Workers shall not work nearer than 25 feet to the centerline of any track without proper flag/work protection provided by the Railroad unless the track is protected by track bulletin and work has been authorized by the Railroad. If flag/work protection is provided, every employee must know: (1) who the Railroad flagger is, and how to contact the flagger, (2) limits of the flag/work protection, (3) the method of communication to stop and resume work, and (4) entry into flag/work limits when designated. Men or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing if working at less than 25 feet from center line of track. • 1.05.06f The Contractor shall not pile or store any materials, or equipment closer than 25'-0" to the center line of the nearest Railroad track. • 1.05.06g Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on the right-of-way must be left inoperable and secured against movement. • 1.05.06h Machinery or equipment shall not be stored or left temporarily, near a highway/rail at-grade crossing in a manner to interfere with the sight distances of motorists approaching the crossing. Prior to beginning work, the Contractor, will establish a storage area with concurrence of the Railroad's representative. • 1.05.06i No contaminates are to be discharged on Railroad property. Should any discharge occur, it must be reported by the quickest means possible to the Railroad's representative in charge of the project. (This includes oils, diesel fuel, gasoline, etc.). • 1.05.06j Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water shall meet all Federal, State and Local regulations. • 1.05.06k Safeguards and safety signs must be kept in place and in good condition. It is the responsibility of the Contractor to provide same. 7 • 1.05.061 Before excavating, it must be ascertained by the Contractor if there are any underground pipe lines, electric wires, or cables, including fiber optic cable systems that either cross or run parallel with the track which are located within the Project's work area. Excavating on right-of-way could result in damage to buried cables resulting in delay to railroad traffic, including disruption of service to users resulting in business interruptions involving loss of revenue and profits. Before any excavation commences, the Contractor must contact the Railroad's Signal Supervisor and Roadmaster. All underground and overhead wires must be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is also the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.05.06m The Contractor must cease all work and the Railroad must be notified immediately before continuing excavation in the area if obstructions are encountered that do not appear on drawings. If the obstruction is a utility, and the owner of the utility can be identified, then the owner should also be notified immediately. If there is any doubt about the location of underground cables or lines of any kind no work will be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.05.06n All excavations, regardless of depth shall be shored where there is any danger to tracks, structures or personnel. • 1.05.06o Any excavations, holes or trenches on the Railroad's property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that railroad employees who might be working in the area are protected from all hazards. All excavations must be back filled as soon as possible. • 1.05.06p All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For lines rated 50 KV or below, minimum clearance between the lines and any part of the equipment or load shall be 10 feet. For lines rated over 50 KV, minimum clearance between the line and any part of equipment or load shall be 10 feet plus 0.4 inches for each 1 KV over 50KV. If the capacity of the line is not known, minimum clearance of 20 feet must be maintained. A person shall be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. • 1.05.06q When Contractor employees are required to work on the Railroad property after normal ..voi ki:€ hours or -0,-. rhe Raih . presentative in ctLargc of the project must be notified. A minimum of two employee:, shah be present at all times. 8 • 1.05.06r IN ALL CASES OF DOUBT OR UNCERTAINTY, THE SAFEST COURSE MUST BE TAKEN. 1.06 Personal Injury Reporting • 1.06.01 The Railroad is required to report certain injuries as a part of compliance with Federal reporting requirements. Any personal injury sustained by an employee of the Contractor, Subcontractor or Contractor's Invitees while on the Railroad's property must be reported immediately (by phone mail if unable to contact in person) to the Railroad's representative in charge of the project. The Injury Report Form contained herein is to be completed and sent by Fax to the Railroad at , no later than the close of shift on the date of the injury. 9 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-BNSF 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)IAveration(b)Hand) I 0. Description of Accident(To include location,action,result,etc.): 11. Treatment: El First Aid Only El Required Medical Treatment El Other Medical Treatment 12. Dr.Name 13. Date: 14. Dr.Address: Street: City: St Zip: 15. Hospital Name: 16. Hospital Address: Street City: St Zip: 17. 10 � | All Agencies (Rev. 01/07/98 ) Railroad File: -2_(.4 C.m Agency Project: lei LL]Ef41 gl_ )^AP F2+PAUf.NAE.N171. eig EU R,...E.%4A �� EXHIBIT "C-1" Agreement Between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY AND THE CONTRACTOR THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY 5L A.Cat.i.Exat DR, Iwlez, eP)7-4C) `A S-11 Attentiorr4. Manager Public Projects Gentlemen: The undersigned has entered into a contract dated . 19 with the (Agency) for the performance of certain work in connection with the project: in the performance of which work the undersigned will necessarily be required to conduct operations within THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, hereinafter referred to as"Railroad", right of way and property. The Contract provides that no work shall be commenced within your right of way or property until the Contractor employed in connection with said work for (Agency) C.L shall have executed and delivered to you a Letter Agreement, in the form hereof, and shall have provided insurance of the coverage and limits specified in said Contract. If this Letter Agreement is executed by other than the Owner, General Partner, President or Vice President of undersigned firm, evidence is furnished to you herewith certifying that the signatory is empowered to execute this Agreement for the firm. Accordingly, as one of the inducements to and as part of the consideration for your granting permission to the undersigned to enter upon your right of way or property for the performance of so much of the work as is necessary to be performed within your right of way or property, the undersigned, effective on the date of said Contract, has agreed and does hereby agree with you as follows: Section 1.The undersigned shall fully indemnify and hold harmless Railroad, its agents and employees against any and all liability, claims, demands, damages, or costs of whatever kind or nature including, but not limited to, liability claims, demands, damages or costs for(a) death or bodily injury to persons, including without limitation the employees of the parties hereto, (b) injury to property, including without limitation, the property of the parties hereto, (c)design defects, or(d)any other loss, damege, or expense arising under either(a), (b), or(c), and all fines or penalties imposed upon or assessed against Railroad, and all expenses of investigating and defending against same(including but not limited to costs and attorneys'fees), regardless of the negligence or alleged negligence of Railroad, its agents or employees, arising in any manner out of(1)the use, occupancy or presence of the undersigned writs yubcnntoactory, emp|vyeey, or agents in, on, or about the construction site, (2)the perfo,monce, or failure to perfonn, by the un6emigned, its subcontractors, *nnp|oyees, or agents, its work or any obligation under this Agreement, or(3) any and all acts or omissions of the undersigned, its subcontractors, employees, or agents in, on, or about the construction site. Nothing contained in this provision is intended to, nor shall be deemed or construed to. indemnify Railroad from its sole negligence or willful m|sconduct, or that of its agents, servants or independent contractors who .z»flono|h|pto it. 1 ^ . ' . Section 2, That the undersigned will procure, and will maintain in force and effect, insurance meeting all of the requirements outlined herein in Section 3, and as further defined in the Special Provisions for and in said Con(nact, and there is provided to you herewith the following documents meeting such requirements: (a) Original Policy in Railroad Protective Liability Form, including the Notice of Change Endorsement, the Pollution Exclusion Amendment, and the Limited Gpopage, Pollution and Contamination Coverage Endorsement in favor of THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY,—)4c::, ' ~ ~ . r '~ �`�� rw~ `"°� '' '. ttendon: Manager Public Projects, and (b) Certificate reflecting the existence of Contractors Public Liability and Property Damage Liability Insurance and Contractors Protective Public Liability and Property Damage Liability |nsuranca It is further distinctly understood and agreed by the undersigned that its liability to the Railroad Company herein under Section 1, will not in any way be limited to or affected by the amount of insurance obtained and carried by the undersianed in connection with said Contract, It is also distinctly understood that the Railroad file reference number and location information, as shown at the top of this Agreement, must appear on any original insurance policies or certificates of insurance sent to Railroad by the undersigned. Section 3. INSURANCE RAILROAD PROTECTIVE INSURANCE. The term 'Railroad shall be understood to mean THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY. In addition to any other form of insurance or bonds required under the terms of the contract and specifications, the Contractor will be required to carry insurance of the kinds and in the amounts hereinafter specified. Such insurance shall be approved by the Railroad before any work is performed on Railroad's property and shall be carried until all work required to be performed on or adjacent to the Railroads property under the terms of the contract is satisfactorily completed as determined by (Agency) a t-t . and thereafter until all tools, equipment and moteria|s, not belonging to the Rai|rpad, have been removed from Railroad's property and such property is left in a clean and presentable condition. The insurance herein required shall be obtained by the successful bidder and he shall furnish the (Agency) c. F 1211:3L..e. cAS with three completed cprtificates, in the form attached ha,oto, signed by the insurance nompany, or its authorized agent or ep,000ntahve, reflecting the existence of each of the policies required by 1 and 2 below including coverage for X, C and U and completed operations hazards, the original policy of insurance and one certified copy thereof required by 3 below, (Agency) -n~{ will convey one(1)of the certificates of policy certifying 1 and 2 and the original policy of insurance required by 3 to Railroad and (if any) upon receipt from successful bidder. (Agency) c c~.( will notify successful bidder whether Railroad approves the insurance policies. Certificate of insurance shall guarantee that the policy under 1 and 2 will not be amended, altered. modified or cancelled insofar as the coverage contemplated hereunder is concorned, without at least thirty(30)days notice mailed by registered mail to the (Agency)C.v1'`6and tuRailroad. Full compensation for all premiums which the Contractor is required to pay on all the insurance described hereinafter shall be considered as included in the prices paid for the various items of work to be performed under the contract, and no additional allowance will be made therefor or for additional premiums which may be required by extensions of the policies of insurance, 1, Contractors Public Liability and Property Damage Liability Insurance ^ . The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's pmperty, carry regular Contractors Public Liability and Property Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnished for and on behalf of Railroad as hereinafter provided, The approximate daily train traffic i�$7-passengertrains t-~TriaxMPH). 2,8eighutrains (JbmmxKxPH). and_Ro _switch engines (--mmxMPH), If any part of the work within or adjacent to Railroads property is subcontracted, the Contractor in addition to carrying the above insurance, shall provide the above insurance on behalf of the subcontractors to cover their operations. 2Contractors Protective Public Liability and Property Damage Liability Insurance The Contractor shall, with respect to the operations performed for him by subcontractors who do work within or adjacent to Railroad's pmpert/, carry in his own behalf regular Contractors Protective Public Liability and Property Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnished for and on behalf of Railroad as hereinafter provided. 3, Railroad's Protective Public Liability and Property Damage Liability |nsunancowhtten on ISO Form No, CG00351093 and including The Limited Seepage and Pollution Liability Endorsement. The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property or that of any of his subcontractors who do work within or adjacent to Railroads property, have issued and furnished separago|y, policy or policies of insurance in the Railroad Protective Liability Form as hereinafter specified, Each such policy shall provide limits of liability as specified in said Railroad Protective Liability Form. The first policy shall name as insured: THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY 740 East Carnegie Drive San Bernardino, California 92408'3571 Attn: Manager Public Projects The second policy shall name as insured: RAILROAD PROTECTIVE LIABILITY FORM (Name of Insurance Company) DECLARATIONS Item 1. Named Insured: Item 2. Policy Period: From to 12:01 a,m, Standard Time, at the designated job site as stated herein. Item 3. The insurance afforded is only with respect to such of the following coverages as are indicated in Item 6 by specific premium charge or charges. The limit of the Company's liability against such coverage or coverages shall be as stated herein, subject to all the terms of this policy having reference thereto, Limits of Liability COVERAGES EACH OCCURRENCE AGGREGATE A Bodily Injury Liability $2,000,000 combined $6,000,000 for single limit coverages A, B. and C B Property Damage Liability � Physical Damage to Property Item 4. Name and Address of Contractor: Item 5. Name and Address of Governmental Authority for whom the work by the Contractor is being performed: (Agency) Item 6. Designation of the Job Site and Description of Work: FOR CONSTRUCTION ON Premium Rates per$100 of Cost Advance Premiums Bases Coverage Coverages B&C Coverage Coverages B&C Contract Cost Rental Cost Countersigned 19 By Title POLICY NUMBER: (Name of Insurance Company) 4 � ^ A insurance company, herein called the Company, agrees with the insured named in the Declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the Declarations made by the named insured and subject to all of the terms of this policy RAILROAD PROTECTIVE LIABILITY COVERAGE FORM (CG 00 35 06 90) Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered. Throughout this policy the words "you" and "yours' refer to the Named Insured shown in the Declarations, The words "we", "us", and^our", refer to the Company providing this Insurance. The word "Insured" means any person or organization qualifying as such under WHO IS AN INSURED (SECTION II). Other words and phrases that appear in quotation marks have special meaning. Refer to DEFINITIONS (SECTION V). SECTION I -COVERAGES COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY 1. Insuring Agreement. a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or"property damage"to which this insurance applies. We will have the right and duty to defend any"suit' seeking those damages. We may at our discretion investigate any occurrence and settle any claim or"suit'that may result. But: (1) The amount we will pay for damages is limited as described in LIMITS OF INSURANCE (Section III); and (2) Our right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS -COVERAGE A. b. This insurance applies to "bodily injury"and"property damage"only if: (1) The"bodily injury"or"property damage" occurs during the policy period; and (2) The"bodily injury" or"property damage" arises out of acts or omissions at the"job location" which are related to or are in connection with the"work"described in the Declarations. c. Damages because of"bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the"bodily injury". 2. Exclusions. This Insurance does not apply to: a. "Bodily injury"or"property damage"expected or intended from the standpoint of the insured. This exclusion does not apply to "bodily injury" resulting from the use of reasonable force to protect persons or,moparty. ^ ^ b. "Bodily injury" or property damage" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages assumed in a contract or agreement that is a ^covered contract". c. "Bodily injury" or"property damage" occurring after the'work is completed. The 'work will be deemed completed at the earliest of the following times: (1) When all the"work"called for in the"Contractor's" contract has been completed. (2) When all the"work"to be done at the"job location" has been completed. (3) When that part of tho'Wn,K'Uonnattho']pU |ocation^ hasbaenput to its intended use by you, the governmental authority or other contracting party. This exclusion does not apply to "bodily injury" or"property damage" resulting from the existence of or removal of tools, uninstalled equipment, or abandoned or unused materials. d. "Bodily injury" or"property damage", the sole proximate cause of which is an act or omission of any insured other than acts or omissions of any of"your designated employees". This exclusion does not apply to injury or damage sustained at the"job location" by any of"your designated employees" or employee of the Contractor", or by any employee of the governmental authority or any other contracting party(other than you) specified in the Declarations. e. Any obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law. This exclusion does not apply to any obligation of the insured under the Federal Employers Liability Ac . as amended. f. "Bodily injury" or"property damage"arising out of the actual, alleged, or threatened discharge, dispecsa|, seepage, migration, release or escape of pollutants at or from the"job location": (1) Due to the past or present use of the"job location" by you or for you or others for the handling, storoga, disposa|, processing or treatment of waste; or (2) Due to the dumping or disposal of waste on the"job location" by the"Contractor"with the knowledge of you or any of"your designated employees"; or (3) On which you or"Contractors"working directly or indirectly on any insured's behalf are performing operations: (a) |fthepnUmantsarebmughtnnortothe"job |ocadon'' incnnnectionwithsuchnperadons by such insured, contractor or subcontractor; or (b) If the operations are to test for, monitor, clean up, remove, contain, treat, detoxify or neutna|ize, or in any way respond to, or access the effects of pollutants. Subparagraph (3)(a) does not apply to "bodily injury' or"property damage" arising out of heat, smoke or fumes from a hostile fire. As used in this axc|usizn, a hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be. Pollutants means any solid, |iquid, gaseous, or thermal irritant or contaminant, including mmokm, vopor, soot, fumee, mcids, m|kaUs, chemicals and waste. Waste includes materials to be reoyc|ed, reconditioned or reclaimed. g. "Property damage"to property owned by you or leased or entrusted to you under a lease or trust agreement. COVERAGE B PHYSICAL DAMAGE TO PROPERTY 1. Insuring Agreement. We will pay for"physical damage to property to which this insurance applies. The physical damage to property"must occur during the policy period. The"physical damage to property'must arise out of acts or omissions at the"job location"which are related to or in connection with the"work" described in the Declarations. The property must be owned by or leased or entrusted to you under a lease or trust agreement. 2. Exclusions. This insurance does not apply to"physical damage to property". a. Occurring after the"work" is completed. The"work"will be deemed completed at the earliest of the following times: (1) When all the"work"called for in the"Contractor's" contract has been completed. (2) When all the"work"to be done at the"job location" has been completed. (3) When that part of the"work" done at the"job location" has been put to its intended use by you, the governmental authority or other contracting party. This exclusion does not apply to"physical damage to property" resulting from the existence of tools, uninstalled equipment and abandoned or unused materials. b. The sole proximate cause of which is an act or omission of any insured other than acts or omissions of any of"your designated employees": c. Due to nuclear reaction, nuclear radiation, or radioactive contamination, or to any related act or condition. d. Due to the discharge, dispe,se|, oeepago, migration, release or escape of pollutants excluded under exclusion f., Coverage A. . SUPPLEMENTARY PAYMENTS -COVERAGE A We will pay, with respect to any claim or 'suit'we defend: 1. All expenses we incur. 2. All costs taxed against the insured in the"suit . 3. All interest on the full amount of any judgment that accrues after entry of the judgment and before we have paid, offered to pay or deposited in court the part of the judgment that is within the applicable limit of insurance. 4. The cost of bonds to release attachments, but only for bond amounts within the applicable limit of insurance. We do not have to furnish these bonds. 5. Expenses incurred by the insured for first aid to others at the time of an accident, for"bodily injury" to which this insurance applies. 6. All reasonable expenses, incurred by the insured at our request to assist us in the invesigadun or defense of the claim or"suit", including actual loss of earnings up to $100 a day because of time off from work. 7. Prejudgment interest awarded against the insured on that part of the judgment we pay. If we make an offer to pay the applicable limit of insurance, we will not pay any prejudgment interest based on that period of time after the offer. These payments will not reduce the limits of insurance. SECTION II -WHO IS AN INSURED 1. You are an insured. 2. Your executive officers and directors are insureds, but only with respect to their duties as your officers and directors. 3. Your stockholders are insureds but only with respect to their liability as stockholders. 4. Any railroad operating over your tracks is an insured. SECTION III -LIMITS OF INSURANCE 1. The limits of insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: (a) Insureds; (b) Claims made or"suits" brought; or (c) Persons or organizations making claims or bringing "suits". 2. The Aggregate Limit is the most we will pay for the sum of all damages because of all"bodily injury', all "property damage" and all"physical damage to property". 3. Subject to 2. above, the Each Occurrence Limit is the most we will pay for the sum of all damages because of all"bodily injury", all "property damage" and all "physical damage to property"arising out of any one occurrence. 8 4. Subject to 3.above,;the payment for"physical damage to property"shall not exceed the lesser o: a. The actual cash value of that property at the time of loss;or b, The cost to repair or replace the property with other property of like kind or quality. The limits of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months,starting with the beginning of the policy period shown in the Declarations,unless the policy period is extended after issuance for an additional period of less than 12 months. In that case,the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance, SECTION IV-CONDITIONS A. The following Conditions apply to Coverages A and B: 1, Assionme Assignment of interest under this Coverage Part shall not bind us unless we issue an endorsement consenting to the assignment. 2. Bankruptcy., Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligation under this policy. 3. Cancellation. a. You may cancel this policy by mailing or delivering to us advance written notice of cancellation. b. We may cancel this policy by mailing or delivering to you,the"Contractor"and any involved governmental authority or other contracting party designated in the Declarations,at the respective mailing addresses last known to us,written notice of cancellation at least 60 days before the effective date of cancellation. c. Notice of cancellation will state the effective date of cancellation, The policy will end on that date. d. If-this policy is canceled, any unearned premium will be refunded. if we cancel,the refund will be pro rata. If you cancel,the refund may be less than pro rata. The cancellation will be effective even if we have not made or offered a refund, e. ifnotice is mailed, proof of mailing will be sufficient proof of notice. 4. Ch This policy contains all the agreements between you and us concerning the insurance afforded. You are authorized to make changes in the terms of this policy with our consent This policy's terms can be amended or waived only by endorsement issued by us and made a part of this policy. 5. Inspections and Surveys. We have the right but are not obligated to: a. Make inspections and surveys at any time; b, you reports on the conditions we find, and c. Recommend changes. 9 , . . survoys, reports or recommendations relate insurabi|hyand the pn�niumstp be'charged. VVm do not make safety inspections, We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. And we do not warrant that conditions: a' Are safe or healthful; or b. Comply with laws, regu|ationo, codes, or standards. This condition applies not only to us, but also to any rabng, mdvisory, rate service or similar organization which makes insurance inspectionx, sumeyo, reports or recommendations. 6, Other Insurance. The insurance afforded by this policy is: a. Primary insurance and we will not seek contribution from any other insurance available to you except if the other insurance is provided by a contractor other than the designated Contractor for the same operation and "job location"; and b. If the other insurance is available, we will share with that other insurance by the method described below. If all of the other insurance permits contribution by equal shsres, we will follow this method also. Under this mpproaoh, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first If any of the other insurance does not permit contribution by equal mhenas, we will contribute by limits: Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 7. Premium and Premium Audit. a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Contract costs, the premium base shown in the Declarations, means the total cost of the operations described in the Declarations. c. The premium shown in the Declarations as advance premium is a deposit premium only. At the close of each audit periog, we will compute the earned premium for that period. Audit premiums are due and payable on notice to the Contractor designated in the Declarations, If the sum of the advance and audit premiums paid for the policy term is greater than the earned pnomium, we will return the excess to the Contractor designated in the Declarations. In no event shall the payment of premium be your obligation. 0, Transfer Of Rights Of Recovery Against Others To Us. If the insured has rights to recover all or part of any payment we have made under this policy, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring"suit" or transfer those rights to us and help us enforce them. 9, When We Do Not Renew. If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of this nonrenewal not less than 30 days before the expiration date. If notice is mai|ed, proof of mailing will be sufficient proof of notice. 10 , . . . . B, The following Conditions apply to Coverage A only: 1, Legal Action Against Us. No person or organization has a right under this policy: a. To join us as a party or otherwise bring us into a"suit" asking for damages from an insured; or b. To sue us on this policy unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured obtained after an actual trial; but we will not be liable for damages that are not payable under the terms of this policy or that are in excess of the applicable limit of insurance, An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimants legal representative 2. Duties In The Event Of Occurrence, Claim Or Suit. a. You must see to it that we are notified as soon as practicable of an occurrence which may result in a claim. To the extent pnssib|e, notice should include: (1) How, when and where the occurrence took place: and (2) The names and addresses of any injured persons and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence. b. If a claim is made or"suit" is brought against any insurad, you must: (1) Immediately record the specifics of the claim or"suit" and the date received; and (2) Notify us as soon as practicable. You must see to it that we receive written notice of the claim or"suit"as soon as practicable. c. You and any other involved insured must: (1) Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or"suit"; (2) Authorize us to obtain records and other information; (3) Cooperate with us in the investigation, settlement or defense of the claim or"suit"; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization which may be liable to the insured because of injury or damage to which this insurance may also apply. d. No insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. 3. SeparatIon of Insureds. Except with respect to the Limits of Insurance this insurance applies: a. As if each Named Insured were the only Named Insured; and Separately to each insured against whom claim is made or"suit"is brought. 11 ^ | ' . C. The folIowng Conditions apply to Coverage B only: 1. Appraisal. If you fail to agree with us on the value of the property, or the amount of loss, either you or we may make written demand for an appraisal of the loss within sixty(60) days after proof of loss is filed. In this event, each party will select a competent appraiser. The two appraisers will select a competent and impartial umpire. The appraisers will state separately the value of the property and the amount of loss, It they fail to agree they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will: a. Pay its chosen appraiser; and b. Bear the other expenses of the appraisal and umpire equally. If we submit to an appraisal, we still retain our right to deny the claim, 2. No Benefit to Bailee. No person or organization, other than you, having custody of the property will benefit from this insurance. 3. Insured's Duties In The Event of A Loss. You must: a. Protect the property, whether or not the loss is covered by this policy. Any further loss due to your failure to protect the property shall not be recoverable under this policy Reasonable expenses incurred in affording such protection shall be deemed to be incurred at our request: b. Submit to us, as soon after the loss as possible, your sworn proof of loss containing the information we requested to settle the loss and, at our request, make available the damaged property for examination, 4. Legal Action Against Us. No person or organization has a right under this policy to sue us on this policy unless all of its terms have been fully complied with and until 30 days after proof of loss is filed and the amount of loss is determined as provided in this policy. 5. Payment of Loss. We may pay for the loss in money but there can be no abandonment of any property to us. SECTION V-DEFINITIONS 1. "Bodily injury"means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. 2. "Contractor" means the contractor designated in the Declarations and includes all subcontractors working directly or indirectly for that"Contractor" but does not include you. 3, "Covered contract" means any contract or agreement to carry a person or property for a charge or any interchange contract or agreement respecting motive pmvor, or rolling stock equipment. 4, "Job location"means the job location designated in the Declarations including any area directly related to the"work"designated in the Declarations, "Job location"includes the ways next to it. 12 ^ . 5. "Physical damage to property" means direct and accidental loss of or damage to rolling stock and their ooNents, mechanical construction equipment or motive power equipment, railroad tracks, madbodn, cahanahon, signals, bridges or buildings. 6, "Property damage" means: a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the occurrence that caused it, 7, "Suit" means a civil proceeding in which damages because of"bodily injury" or"property damage"to which this insurance applies are alleged. "Suit" includes: a. An arbitration proceeding in which such damages are claimed and to which you must submit or do submit with our consent; or b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which you submit with our consent. G. "Work" means work or operations performed by the"Contractor" including mateho|o, parts or equipment furnished in connection with the work or operations. 9. "Your designated employee" means: a. Any supervisory employee of yours at the"job location"; b. Any employee of yours while operahng, attached to or engaged on work trains or other railroad equipment at the"job location"which are assigned exclusively to the"Contractor"; or c. Any employee ofyours not described ina. orb. above who isupeoifinaUyloaned orassigned tothe work of the"Contractor" for the prevention of accidents or protection of property. IN WITNESS WHEREOF,the Indemnity Company has caused this policy to be signed by its president and a secretary at and countersigned on the Declarations page by a duly authorized agent of the Company. (FACSIMILE OF SIGNATURE) (FACSIMILE OF SIGNATURE) Secretary President 13 ^ ^ , ^ ~ THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CHANGE ENDORSEMENT This endorsement modifies insurance provided under the following: RAILROAD PROTECTIVE LIABILITY COVERAGE PART A, The Change Condition is replaced by the following: 4, Changes This policy contains all the agreements between you and us concerning the insurance afforded. You are authorized to make changes in the terms of this policy with our consent. This policys terms can be amended or waived only by endorsement issued by us and made a part of this policy, and by mailing or delivering to you, the"Contractor and any involved governmental authority or other contracting party designated in the Oec|oradons, at the respective mailing addresses last known to us, written notice of change at least 60 days before the effective date of change. OTHER TERMS All other terms of your policy remain the same. Name of Insured: Policy Number: Effective Date: THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Processing Date: Expiration Date: Counter Signature: 14 ~ . . , THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. POLLUTION UTYON EXCU USION AMENDMENT This endorsement modifies insurance provided under the following: RAILROAD PROTECTIVE LIABILITY COVERAGE PART Paragraph 3.(a)of Exclusion f. of COVERAGE A (Section I) is replaced by the following: (a) the pollutants,oUutantsotherthanfue|sor|ubrican(sforequipment used at the"job location'' are brought on or to the"job location in connection with such operations: or OTHER TERMS All other terms of your policy remain the same. Name of Insured: Policy Number: Effective Date: THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Processing Date: Expiration Date: Counter Signature: 15 ^ ° THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. LIMITED SEEPAGE, POLLUTION AND CONTAMINATION COVERAGE ENDORSEMENT In consideration of the premium charged it is understood and agreed that Exclusion f. of this Policy shall not apply to the liability of the insured, resulting from seepage and or pollution and or contamination caused solely by: a) a unintended fire, lightning or explosion; or b) a collision or overturning of a road vehicle; or c> a collision or overturning or derailment of a train. Notwithstanding the foregoing it is agreed that the coverage provided by this Endorsement shall not apply to: 1. loss of, damage to or loss of use of property directly or indirectly resulting from sub-surface operations of the insured, and or removal of loss of or damage to sub-surface oil, gas or any other substance; 2. any site or location used in whole or in part for the hand|ing, pmoessing, treatment, storage, dispnoa|, or dumping of any waste materials or substance; 3. the cost of evaluating and/or monitoring and/or controlling seeping and/or polluting and/or contaminating substances; 4. the cosof removing and/or nullifying and/or cleaning up seeping and/or polluting and/or contaminating substances on property at any time owned and/or leased and/or rented by the insured and/or under the control of the insured. OTHER TERMS All other terms of your policy remain the same. Name of Insured: Policy Number: Effective Date: THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Processing Date: Expiration Date: Counter Signature: 16 ' * Section 4. That the undersigned will observe and comply with all the pmvisinn,, obligations and limitations to be observed by Contractor which are contained in the subdivision of the specifications of said contract, entitled "CONTRACTOR REQUIREMENTS"(EXHIBIT"C"), and shall indudo, but not be limited to, payment of all costs incurred for any damages to Railroad madbeo, tracxs, and/or appurtenances thereto, resulting from use, ocoupancy, or presence of its omp|oyees, nepnson%adves, or agents or subcontractors on or about the construction site. Section 5. Contractor shall be responsible to Rai|road, including its affiliated railroad compmnieu, and its tenants for all damages for any unscheduled delay to a freight or passenger train that affects Railroad's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided be|ow, for the economic losses arising from loss of use of equipment and train service employees, contractual loss of incentive pay and bonus*s, and contractual penalties resulting from train da|ays, whether caused by Contractor, or subcontractors, or by the Railroad performing Railroad Work, Railroad agrees that it will not perform any act to unnecessarily cause train delay. For loss of use, Contractor will be billed per freight train hour at an average rate of$385,33 per hour per train as determined from Railroad's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. In addition to the above damages, passenger. U.S. mail trains and certain other grain, intermoda|, coal and freight trains operate under incentive/penalty contracts between Railroad and its customer. Under these arrangements, if Railroad does not meet its contract service commitment, Railroad may suffer loss of performance or incentive pay or be subject to a penalty payment. Contractor shall be responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railroad which are attributable to a train delay caused by Contractor, or subcontractors. As examp|a, a train arrives 30 minutes after its contract service commitments and Railroad is assessed damages per terms of the contract, Either Contractor, and/or subcontractors, caused a 29 minute delay to the train and therefore are not responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railroad. As examp|e, a train arrives 30 minutes after its contract service commitments and Railroad is assessed damages per terms of the contract, Either Contractor, and/or subcontractors, caused a 31 minute delay to the train and therefore are 100% responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railroad. The contractual relationship between BNI8F and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, BNSF will share information relevant to any train delay to the maximum extent consistent with Railroad confidentiality obligations. Damages for train delays for certain trains could be as high as $50.000,00 per incident. Cnntrmctor, and subcontractors shall plan, sohedu|e, coordinate and conduct all Contractor Work so as to not cause any delays to any trains, Kindly acknowledge receipt of this letter and of the insurance herein provided to be furnished to you, by signing and returning to the undersigned, a copy of this letter, which shall thereupon constitute an agreement between us. Yours truly, (Contractor) By (Title) Receipt of the foregoing letter and of the policies and certifictec of inc' rance therein provided to be Address /u'^.���^ acknowi+^,~6 �,�� —day of , 19-- — City, State, Zip THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY l� ' . m � By MAN. Franke Its Vice President and Chief Engineer Railroad File: CERTIFICATE OF INSURANCE This is to certify to: (1) Manager Public Projects THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY 740 East Carnegie Drive San Bernardino, CA 92408'3571 (2) and to the following Railroad Company(s) that such insurance as is afforded by the policy or policies described below for bodily injury liability and property damage liability is in full force and effect as of the date of this certificate and covers the following contractor as a named insured with respect to liabildamages arising out of operations performed by or for the named insured in connection with the contract or work described below. 1. Named Insured and Address: This is to certify that policies of insurance listed below have been issued to the insured named above and arin force at this time. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain, the insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. 2. Description of Work Contract No. 3. Policy Limits of Liability Coverages Expiration Date Each Occurrence Aggregate . Contractor's Bodily Injury Liability and Property Damage Liability_ 18 ^ Umbrella or Excess Liability All of the coverages include coverage for the completed operations hazard and X. C and U exposures. Name of Insurance Company by Coverage Coverages Company Policy Number Bodily Injury Liability Property Damage Liability Umbrella or Excess Liability 4. The policy or policies described above will not be amended, a|tered, modified or cancelled until thirty(30) days after written notice thereof has been given by registered mail to the(1)Agency . and (2)the Railroad(s) named as certificate holder in this certificate, Certificate Date: For Insurance Company By Authorized Agent or Representative esh_cl"pd 19 �