HomeMy WebLinkAbout11 CONCRETE CROSSING 04-05-04
AGENDA REPORT
Agenda Item 11
Reviewed:
City Manager /4/ ~
Finance Director~
MEETING DATE:
APRil 5, 2004
TO:
FROM:
WilLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
SUBJECT:
ACCEPTANCE OF EASEMENT DEED AND APPROVAL OF AN
AGREEMENT FOR THE INSTALLATION OF FUll DEPTH CONCRETE
CROSSING SURFACE WITH THE BURLINGTON NORTHERN AND
SANTA FE RAilWAY COMPANY (BNSF) FOR THE NEWPORT
AVENUE EXTENSION, STATE ROUTE 55 NORTHBOUND RAMP
RECONFIGURATION, VALENCIA AVENUE AND DEL AMO AVENUE
WIDENING PROJECT - PHASE 1 (APN 430-253-02 AND APN 430-261-
12, BNSF) (CIP NO. 7130)
SUMMARY
The proposed Easement Deed will allow the City of Tustin to construct the Newport Avenue
Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo
Avenue Widening Project - Phase 1 (CIP No. 7130) improvements within the existing
Burlington Northern and Santa Fe Railway Company (BNSF) right-of-way at Valencia Avenue.
At the request of BNSF, an Easement Deed in lieu of a fee purchase is being used to acquire
the needed right-of-way for construction of the project.
The proposed Agreement for the Installation of Full Depth Concrete Crossing Surface
between the City of Tustin and BNSF outlines the requirements of the City and BNSF within
the existing BNSF right-of-way at Valencia Avenue during construction of the Phase 1 Project.
RECOMMENDATION
It is recommended that the City Council take the following actions:
1. Adopt Resolution No. 04-16 finding that the acquisition of a portion of Assessor's
Parcel Nos. 430-253-02 and 430-261-12 was considered in the final environmental
determination for the Newport Avenue Extension, State Route 55 Northbound Ramp
Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project - Phase 1
(CIP No. 7130).
2. Authorize the City Clerk to accept the Easement Deed when executed by the
Burlington Northern and Santa Fe Railway Company.
Acceptance of Easement Deed and Approval of an Agreement for the Installation of Full
Depth Concrete Crossing Surface with the Burlington Northern and Santa Fe Railway
Company (BNSF) for the Newport Avenue Extension, State Route 55 Northbound Ramp
Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project - Phase 1
(CIP No. 7130)
April 5, 2004
Page 2
3. Approve the Agreement for the Installation of Full Depth Concrete Crossing Surface
with the Burlington Northern and Santa Fe Railway Company for the Valencia Avenue
crossing in conjunction with the Newport Avenue Extension, State Route 55
Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening
Project - Phase 1 (CIP No. 7130), and authorize the Mayor and City Clerk to execute
the document on behalf of the City.
FISCAL IMPACT
The City's Capital Improvement Program (CIP) Budget for FY 2003-2004 appropriates
$12,246,920 for design, acquisition, and construction of the Phase 1 Project. The right-of-way
acquisition budget for this project is comprised of Tustin Community Redevelopment Agency-
South Central Funds, Measure "M" Turnback Funds, and Community Development Block Grant
(CDBG) Funds.
The construction budget for this project is comprised of Measure "M" Competitive Funds, Tustin
Community Redevelopment Agency-South Central Funds, Water Capital Improvement Program
Funds, and Developer Bond and Fee Payment Funds.
Acceptance of the Easement Deed from BNSF will authorize an expenditure of $7,600 for the
right to construct the Valencia Avenue widening improvements as part of the Newport Avenue
Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo
Avenue Widening Project - Phase 1 (CIP No. 7130). Approval of the Agreement for the
Installation of Full Depth Concrete Crossing Surface will authorize an expenditure of $212,922 to
construct improvements to the railway and railway crossing at Valencia Avenue in conjunction
with the Phase 1 Project within BNSF right-of-way.
BACKGROUND
Phase 1 of the Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration,
Valencia Avenue and Del Amo Avenue Widening Project proposes the following improvements:
. Extension and widening of Newport Avenue south ~proximately 1,800 lineal feet from
Edinger Avenue to Valencia Avenue. The proposed Newport Avenue extension will be a
six (6) lane Major Arterial. The proposed features include three (3) lanes in each
direction, raised medians, sidewalks, and bike lanes. Extended double left turn lanes and
a separate right turn lane to the SR-55 on ramp will be provided.
Acceptance of Easement Deed and Approval of an Agreement for the Installation of Full
Depth Concrete Crossing Surface with the Burlington Northern and Santa Fe Railway
Company (BNSF) for the Newport Avenue Extension, State Route 55 Northbound Ramp
Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project - Phase 1
(CIP No. 7130)
April 5, 2004
Page 3
. Realignment of Del Amo Avenue to intersect with the SR-55 ramps and Newport Avenue.
Del Amo Avenue will also be widened to allow for four (4) lanes and provide an added
access route to SR-55. A portion of Del Amo Avenue no longer needed for street
purposes will be vacated after the project. The realignment of Del Amo Avenue will also
necessitate the relocation of a Southern California Edison 66KV Transmission line that is
currently located along Del Amo Avenue. The line is proposed to be undergrounded.
. Reconstruction of the SR-55 northbound ramps. The current loop ramps at SR-55 and
Edinger Avenue will be removed and replaced by hook ramps approximately 1,200 lineal
feet south of Edinger Avenue. This configuration offers many advantages including an
improved level of service and a reduced weaving pattern on the freeway.
. Widening of the north side of Valencia Avenue from the new intersection with Newport
Avenue easterly 350 feet to the existing BNSF railroad spur line tracks. The existing rails
will also be replaced with heavier 115 pound welded rails and a concrete surface crossing
material will be installed across the full ultimate width of Valencia Avenue.
. Construction of a new Edinger Avenue and Newport Avenue intersection and widening of
Edinger Avenue around the intersection. Edinger Avenue at Newport Avenue will be
lowered approximately three (3) feet to accommodate design requirements for the
Newport Avenue extension to the north (Phase II). As part of a separate project, Edinger
Avenue will be widened to three (3) lanes in each direction to major arterial status. The
widening of Edinger Avenue is a part of the Orange County Transportation Authority's
Measure M Smart Street Program.
. New signalized intersections will be provided along Newport Avenue at Edinger Avenue,
SR-55 ramps/Del Amo Avenue, and Valencia Avenue. The existing signalized
intersection at Del Amo Avenue/Edinger Avenue will be modified to accommodate the
widened roadways. Provision for a future signal at a mid-block commercial driveway on
Newport Avenue north and south of the SR-55/Del Amo Avenue intersection will be
made.
. Existing landscaping affected by the construction will be replaced inckind and new
landscaping will be provided adjacent to the reconstructed SR-55 ramps.
Acceptance of Easement Deed and Approval of an Agreement for the Installation of Full
Depth Concrete Crossing Surface with the Burlington Northern and Santa Fe Railway
Company (BNSF) for the Newport Avenue Extension, State Route 55 Northbound Ramp
Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project - Phase 1
(CIP No. 7130)
April 5, 2004
Page 4
In order to construct the improvements, right-of-way is required from four (4) property owners
including BNSF. Typically, right-of-way is acquired in fee with the approval of an Agreement to
Purchase Real Property executed by the City of Tustin and the property owner. However, BNSF
has a policy not to sell property in fee, but to instead grant an easement for street and highway
purposes for the right-of-way needed by any agency. The City will still compensate BNSF for the
Easement Deed based on the appraised value of the land needed to construct the Valencia
Avenue widening improvements as part of the Phase 1 Project.
In this case, BNSF has an existing railway spurline crossing of Valencia Avenue located just east
of Del Amo Avenue. Property on the north side of Valencia Avenue is required to construct the
project improvements. The appraised value of the combined subject parcels, APN 430-253-02
and APN 430-261-12 is $7,600. The appraised value is the compensation being paid to BNSF
for the Easement Deed.
BNSF is also requiring the City to upgrade the railway across Valencia Avenue by replacing the
existing rails with heavier 115 pound welded rails and installing concrete surface crossing
material for the full width of Valencia Avenue. All crossing work will be accomplished with BNSF
crews. The City of Tustin will be required to reimburse BNSF for the actual cost of such work
including material and labor, which is presently estimated to be $212,922.
The City Attorney has reviewed the Agreement for the Installation of Full Depth Concrete
Crossing Surface and has signed it "Approved as to Form". The City Attorney has also reviewed
and approved the format of the Easement Deed.
BNSF will not be paid the $212,922 outlined in the Agreement for the Installation of Full Depth
Concrete Crossing Surface until the Easement Deed is recorded. Payment of the sum of $7,600
for the Easement Deed will be paid to BNSF upon their delivery to the City of the executed and
notarized Easement Deed.
tiR~¡f'~
Director of Public Works/City Engineer
~/f! I~ ~
Dana R. Kasdan
Engineering Services Manager
TOS: ORK: ecg: Acceptance of easement deed BNSF & Reso 04-16.doc.
Attachments: Location Map
Resolution 04-16
Agreement for the Instailation of Fuil Depth Concrete Crossing Surface
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NEWPORT AVE. EXTENSION ISR-55
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PROJECT (CIP 7130)
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RESOLUTION NO. 04-16
WITH
EXHIBITS" A", "B" AND "C"
RESOLUTION NO. 04-16
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN,
CALIFORNIA, FINDING THAT THE ACQUISITION OF A PORTION OF
ASSESSOR'S PARCEL NOS. 430-253-02 AND 430-261-12 WAS
CONSIDERED IN THE FINAL ENVIRONMENTAL DETERMINATION
FOR THE NEWPORT AVENUE EXTENSION, STATE ROUTE 55
NORTHBOUND RAMP RECONFIGURATION, VALENCIA AVENUE AND
DEL AMO AVENUE WIDENING PROJECT - PHASE 1 (CIP NO. 7130)
AND AUTHORIZING THE CITY CLERK TO ACCEPT THE EASEMENT
DEED
The City Council of the City of Tustin hereby resolves as follows:
WHEREAS, the acquisition of a portion of Assessor's Parcel Nos.
430-253-02 and 430-261-12 is needed for public use, namely to be utilized for
the Newport Avenue Extension, State Route 55 Northbound Ramp
Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project -
Phase 1 (CIP No. 7130) within the City of Tustin; and
WHEREAS, on May 5, 2003, the Tustin City Council certified that Final
Environmental Impact Report 90-1 as revised by Final Supplement #1
adequately addressed the environmental effects of the Project (CIP No. 7130);
and
WHEREAS, the acquisition of property, including a portion of Assessor's
Parcel Nos. 430-253-02 and 430-261-12 was considered in Final Environmental
Impact Report 90-1 as revised by Final Supplement #1; and
WHEREAS, State law authorizes the City to acquire the property for the
above stated purpose; and
WHEREAS, the owner of Assessor's Parcel Nos. 430-253-02 and 430-
261-12 will execute an Easement Deed granting the City of Tustin an easement
and right-of-way to construct the Valencia Avenue Widening improvements as
part of the Project.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of
Tustin, as follows:
1.
ENVIRONMENTAL FINDING
The City Council of the City of Tustin finds that the effects of the
proposed acquisition were considered in Final Environmental Impact
Report 90-1 as revised by Final Supplement #1 and that no additional
environmental review is required.
Resolution No. 04-16
Page 2
2.
3.
4.
PUBLIC USE
The public use to which a portion of Assessor's Parcel Nos. 430-253-
02 and 430-261-12 is needed is for the widening of an existing
roadway, to wit, Valencia Avenue as part of the Newport Avenue
Extension, State Route 55 Northbound Ramp Reconfiguration,
Valencia Avenue and Del Amo Avenue Widening Project - Phase 1
(CIP No. 7130) within the City ofTustin.
DESCRIPTION OF PROPERTY AND EXTENT OF PROPERTY TO
BE ACQUIRED
The property to be acquired is described as a portion of Assessor's
Parcel Nos. 430-253-02 and 430-261-12 and each is more particularly
described in Exhibit A, Legal Description and Exhibit B, Sketch to
Accompany a Legal Description attached and incorporated herein by
reference. The form of Easement Deed is attached as Exhibit C.
STATUTORY FINDING
The City Council makes the following additional findings:
a.
The public interest and necessity require the widening of
Valencia Avenue as part of the Newport Avenue Extension, State
Route 55 Northbound Ramp Reconfiguration, Valencia Avenue
and Del Amo Avenue Widening Project - Phase 1 (CIP No.
7130) to accommodate additional traffic within the City of Tustin.
b.
The proposed project is planned and located in a manner that
will be most compatible with the public good and the least private
injury.
c.
The property described above is necessary for the proposed
road widening of Valencia Avenue as part of the Newport
Avenue Extension, State Route 55 Northbound Ramp
Reconfiguration, Valencia Avenue and Del Amo Avenue
Widening Project - Phase 1 (CIP No. 7130).
d.
An offer of purchase of the property has been made to the owner
of the property pursuant to Government Code Section 7267.
Resolution No. 04-16
Page 3
5.
AUTHORIZATION
Upon submittal of the executed Easement Deed by Burlington
Northern and Santa Fe Railway Company, the City Clerk is hereby
authorized to accept, on behalf of the City, the executed Easement
Deed and the City Manager and City Attorney are authorized and
directed to perform all acts necessary on behalf of the City for the
acquisition of said property.
6.
EXPENDITURE OF FUNDS
The City Manager is hereby authorized to expend funds available to
the City for the acquisition of real property described herein.
7.
RECORDING
The City Clerk is hereby authorized and directed to record a certified
copy of this resolution at the Office of the County Recorder, County of
Orange.
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Tustin held on the 5th of April 2004.
Tony Kawashima, Mayor
ATTEST:
City Clerk
PSOMAS
2
3
4
EXHIBIT 'A'
LEGAL DESCRIPTION
PARCEL BNSF
6
7
THOSE PORTIONS OF LOTS 79 AND 80, BLOCK 10 OF IRVINE'S SUBDIVISION,
IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA,
FILED IN BOOK 1, PAGE 88 OF MISCELLANEOUS MAPS, RECORDS OF SAID
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
9
10
11
PARCEL A
12
A STRIP OF LAND 3.048 METERS WIDE, THE NORTHEASTERLY LINE OF
WHICH IS DESCRIBED AS FOLLOWS:
13
14
15
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF DEL AMO
AVENUE (21.336 METERS WIDE) WITH THE CENTERLINE OF VALENCIA
AVENUE (24.384 METERS WIDE); THENCE ALONG SAID CENTERLINE OF
VALENCIA AVENUE SOUTH 49°20'06" EAST 117.962 METERS; THENCE
LEAVING SAID CENTERLINE NORTH 40°38'38" EAST 12.192 METERS TO THE
INTERSECTION OF THE NORTHEASTERLY LINE OF SAID VALENCIA
AVENUE WITH THE NORTHWESTERLY LINE OF THE BURLINGTON
NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY (14.630 METERS WIDE);
THENCE ALONG SAID NORTHWESTERLY LINE NORTH 40°38'38" EAST
3,048 METERS TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 49°20'06" EAST 14.630 METERS TO THE SOUTHEASTERLY LINE OF
BURLINGTON NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY.
16
17
18
19
20
21
22
23
24
25
26
27
28
29
THE SIDELINES OF SAID STRIP SHALL BE PROLONGED OR SHORTENED SO
AS TO TERMINATE IN THE NORTHWESTERLY AND SOUTHEASTERLY LINES
OF SAID BURLINGTON NORTHERN SANTA FE RAlLROAD RIGHT-OF-WAY.
30
31
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June 25, 2002
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Sheet 1 of 3
PSOMA.S
CONTAINING 44.7 SQUARE METERS OR 0.005 HECTARES, MORE OR LESS.
2
3
TEMPORARY CONSTRUCTION EASEMENT A
4
6
A STRIP OF LAND 6.000 METERS WIDE, THE SOUTHWESTERLY LINE OF
WHICH IS DESCRIBED AS FOLLOWS:
7
9
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF DEL AMO
AVENUE (21.336 METERS WIDE) WITH THE CENTERLINE OF VALENCIA
AVENUE (24.384 METERS WIDE); THENCE ALONG SAID CENTERLINE OF
VALENCIA AVENUE SOUTH 49°20'06" EAST 117.962 METERS; THENCE
LEAVING SAID CENTERLINE NORTH 40°38'38" EAST 12.192 METERS TO THE
INTERSECTION OF THE NORTHEASTERLY LINE OF SAID VALENCIA
AVENUE WITH THE NORTHWESTERLY LINE OF THE BURLINGTON
10
11
12
13
14
15
16
NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY (14.630 METERS WIDE);
THENCE ALONG SAID NORTHWESTERLY LINE NORTH 40°38'38" EAST
3.048 METERS TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 49°20'06" EAST 14.630 METERS TO THE SOUTHEASTERLY LINE OF
17
18
19
20
BURLINGTON NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY.
21
22
THE SIDELINES OF SAID STRIP SHALL BE PROLONGED OR SHORTENED SO
AS TO TERMINATE IN THE NORTHWESTERLY AND SOUTHEASTERLY LINES
OF SAID BURLINGTON NORTHERN SANTA FE RAILROAD RIGHT -OF- WAY.
23
24
25
CONTAINING 87.8 SQUARE METERS OR 0.009 HECTARES, MORE OR LESS.
26
27
SEE EXHIBIT 'B' ATTACHED HERETO AND MADE APART HEREOF.
28
29
THIS LEGAL DESCRIPTION IS NOT INTENDED FOR USE IN THE DIVISION
AND/OR CONVEYANCE OF LAND IN VIOLATION OF THE SUBDIVISION MAP
ACT OF THE STATE OF CALIFORNIA,
30
31
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PSOMAS
2
PREPARED UNDER THE DIRECTION OF
4 ¿' ßJL c &.
6 WALTER A. SHEEK., PLS 4838
7 LICENSE EXPIRES 9/30/04
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EXHIBIT
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Recordin9 requested by City of Tustin
When recorded return to:
Exhibit C
CityofTustin
City Clerk's Office
300 Centennial Way
Tustin, CA 92780-3715
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EASEMENT DEED
For valuable consideration, receipt of which is hereby acknowledged, The Burlington Northern and
Santa Fe Railway Company, a Delaware corporation, hereinafter referred to as "GRANTOR", does hereby
grant to the City of Tustin, a Municipal Corporation hereinafter referred to as "GRANTEE", an easement and
right-of-way for street and highway purposes and no other purposes, in, on and over the real property in the
City of Tustin, County of Orange, State of California, described as:
See EXHIBIT "A" and Exhibit "B"
attached hereto and by reference made a part.
GRANTOR shall have the right to continue to use the above described real property for any purpose
not inCDnsistent with the rights 9ranted GRANTEE, GRANTEE shall not place, or allow to be placed, within the
above described real property any gas, electric, telecommunications, cable TV or other utility pipeline, wire,
transmission line or other facility without first obtaining a permit or license from GRANTOR therefore.
GRANTOR shall not unreasonably withhold such permit or license provided, however, that it shall not be
deemed unreasonable for GRANTOR (1) to condition such permit or license upon terms consistent with terms
then required by GRANTOR for other similar permits or licenses, or (2) deny such permit or license if
GRANTOR determines in good faith that the proposed permit or license would pose a threat to safety with
respect to GRANTOR'S operations.
The terms and conditions of that certain Agreement For The Installation of Full Depth Concrete
Crossing Surface hereinafter referred to as "Agreement", between GRANTOR and GRANTEE dated
, 2004, are incorporated herein by reference and shall survive the delivery of this easement
deed. GRANTEE shall not perform any future repair, maintenance, replacement or other improvements within
the above described real property unless and until GRANTEE and GRANTOR have entered into either (1) a
similar Agreement or (2) such other permit or license, addressing such future work in form and substance
mutually agreeable to GRANTOR and GRANTEE.
This easement is granted without warranty of any kind and without any covenant of quiet enjoyment in and to
the easement.
Concurrently with the tender of an executed and notarized easement deed from GRANTOR, GRANTEE
agrees to pay GRANTOR the sum of seven thousand six hundred dollars and 00/100 ($7,600.00) for said
easement.
Page 1
<:V'.IP Pm;oct< - Act;"o\71,n - "'o",no" A"o "o~onfin\A~n,,;<;I;no\P"". .".omo"' nOO" "n~
IN WITNESS WHEREOF, the said THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY has caused this instrument to be signed by its authorized officer, and the
corporate seal affixed on day of , 2004.
THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY
By:
D.P. Schneider
General Director Real Estate
ATTEST:
By:
Patricia Zbichorski
Assistant Secretary
STATE OF TEXAS)
)55.
COUNTY OF TARRANT)
On this day of , 2004, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared D.P. Schneider and Patricia Zbichorski,
know to me to be General Director Real Estate and Assistant Secretary, respectively, of the
corporation that executed the within instrument on behalf of the Corporation therein named, and
acknowledged to me that such Corporation executed the same.
Notary's Signature
My Commission Expires:
Page 2
S:\CIP Projects - Active\7130 - Newport Ave ReconfiglAcquisitionlBNSF South Easement Deed.doc
PSDM4S
2
3
4
EXIDBIT 'A'
LEGAL DESCRIPTION
PARCEL BNSF
6
7
THOSE PORTIONS OF LOTS 79 AND 80, BLOCK 10 OF IRVlNE'S SUBDIVISION,
IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA,
FILED IN BOOK 1, PAGE 88 OF MISCELLANEOUS MAPS, RECORDS OF SAID
COUNTY, MORE P ARTICULARL Y DESCRIBED AS FOLLOWS:
9
10
PARCEL A
11
12
A STRIP OF LAND 3.048 METERS WIDE, THE NORTHEASTERLY LINE OF
WHICH IS DESCRIBED AS FOLLOWS:
13
14
15
BEGINNING AT THE INTERSECTION OF THE CENTERLINE OF DEL AMO
AVENUE (21.336 METERS WIDE) WITH THE CENTERLINE OF VALENCIA
AVENUE (24.384 METERS WIDE); THENCE ALONG SAID CENTERLINE OF
VALENCIA AVENUE SOUTH 49°20'06" EAST 117.962 METERS; THENCE
LEAVING SAID CENTERLINE NORTH 40°38'38" EAST 12.192 METERS TO THE
INTERSECTION OF THE NOR THEASTERL Y LINE OF SAID VALENCIA
AVENUE WITH THE NORTHWESTERLY LINE OF THE BURLINGTON
NORTHERN SANTA FE RAILROAD RIGHT -OF- WAY (14.630 METERS WIDE);
THENCE ALONG SAID NORTHWESTERLY LINE NORTH 40°38'38" EAST
3.048 METERS TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 49°20'06" EAST 14.630 METERS TO THE SOUTHEASTERLY LINE OF
BURLINGTON NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY.
16
17
18
19
20
21
22
23
24
25
26
27
28
29
THE SIDELINES OF SAID STRIP SHALL BE PROLONGED OR SHORTENED SO
AS TO TERMINATE IN THE NORTHWESTERLY AND SOUTHEASTERLY LINES
OF SAID BURLINGTON NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY,
30
31
S :\2dokO 1 03 \repDrtsllegal\bnsf Jev .dDe
June 25, 2002
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Sheet 1 of 3
PSOMA.S
CONTAINING 44.7 SQUARE METERS OR 0,005 HECTARES, MORE OR LESS.
2
3
4
TEMPORARY CONSTRUCTION EASEMENT A
6
7
A STRIP OF LAND 6.000 METERS WIDE, THE SOUTHWESTERLY LINE OF
WHICH IS DESCRlBED AS FOLLOWS:
9
JO
BEGINNING AT TIIE INTERSECTION OF THE CENTERLINE OF DEL AMO
AVENUE (21.336 METERS WIDE) WITH THE CENTERLINE OF VALENCIA
AVENUE (24.384 METERS WIDE); THENCE ALONG SAID CENTERLINE OF
VALENCIA AVENUE SOUTH 49020'06" EAST 117.962 METERS; THENCE
LEAVING SAID CENTERLINE NORTII 40038'38" EAST 12.192 METERS TO THE
INTERSECTION OF THE NORTHEASTERLY LINE OF SAID VALENCIA
AVENUE WITII THE NORTHWESTERLY LINE OF THE BURLINGTON
NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY (14.630 METERS WIDE);
THENCE ALONG SAID NORTHWESTERLY LINE NORTH 40°38'38" EAST
3.048 METERS TO THE TRUE POINT OF BEGINNING; THENCE
SOUTH 49°20'06" EAST 14.630 METERS TO THE SOUTIIEASTERL Y LINE OF
BURLINGTON NORTHERN SANTA FE RAILROAD RIGHT-OF-WAY.
11
12
13
14
15
16
17
18
19
20
21
THE SIDELINES OF SAID STRIP SHALL BE PROLONGED OR SHORTENED SO
AS TO TERMINATE IN THE NORTHWESTERLY AND SOUTHEASTERLY LINES
OF SAID BURLINGTON NORTIIERN SANTA FE RAILROAD RIGHT -OF- WAY.
22
23
24
25
CONTAINING 87.8 SQUARE METERS OR 0.009 HECTARES, MORE OR LESS.
26
27
SEE EXHIBIT 'B' ATTACHED HERETO AND MADE APART HEREOF.
28
29
THIS LEGAL DESCRIPTION IS NOT INTENDED FOR USE IN THE DIVISION
AND/OR CONVEYANCE OF LAND IN VIOLATION OF THE SUBDIVISION MAP
ACT OF THE STATE OF CALIFORNIA.
30
31
S:\2dDkOl0JIrepDrts~egal\bnsf reV.dDC
Jun025, 2002 -
LMH:lrnh
Sheet 2 of 3
PSOMAS
2
PREPARED UNDER THE DIRECTION OF
4 c:: AßL. c ~
6 WALTER A. SHEEK, PLS 4838
7 LICENSE EXPIRES 9/30/04
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PSO~S
AGREEMENT FOR THE INSTALLATION OF
FULL DEPTH CONCRETE CROSSING SURFACE
BNSF File No. 02670BL
Valencia Road, Tustin, CA
U.S. D.O.T. No. 02670BL
THIS AGREEMENT (hereinafter called "Agreement"), executed to be made effective as of the
- day of , _(hereinafter called "Effective Date") by and between THE
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation
(hereinafter called "BNSF") , and the CITY OF TUSTIN, a municipal corporation (hereinafter
called "Agency").
RECITALS:
WHEREAS, Agency proposes to upgrade and renew the crossing surface at Valencia Avenue,
increasing the curbed width from 64 feet to 112 feet. This crossing is designated as PUC
Crossing No. 2-17B.1 O-C, D.O.T. No. 026-70B-L, BNSF Mile Post 0.54, Irvine Industrial Lead
Track, San Diego Subdivision;
WHEREAS, the parties hereto are in accord and desire to express in writing their understandings
and agreement pursuant to which Project is to be constructed, and the crossing thereafter
maintained.
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 upgrade,
renewal, and construction of the Valencia Avenue grade crossing, more particularly described
on the Exhibit A attached hereto and incorporated herein, including, but not limited to,
rehabilitation of track, 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 compiy with Section BA-5, "Traffic Controls
During Construction and Maintenance" of the Uniform Traffic Control Devices Manual, U.S.
Department of Transportation.
ARTICLE 11- BNSF OBLIGATIONS
1. In consideration of 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 easement
referenced in the preceding sentence shall be governed by a separate agreement between
the parties hereto which shall be executed simultaneously with the execution of this
Agreement.
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 to reflect chances in BNSF's actual cost of furnishine
such labor, materials. tools and eauioment. 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) Installation of concrete crossing surface material including upgrades to the track to
accommodate new concrete crossing surface material, encompassing all vehicular
driving lanes.
3. BNSF may charge Ag¡mcy for its self-insurance expenses when such expenses cover the
cost of Employer's Liability (including, without limitation, liability under the Federal Employer's
Liability Act) in connection with the construction of the Project. Such charges shall comply
with the Federal Highway Administration's allowable costs in effect at the time of billing and
shall be considered part of the actual cost of the Project, regardless of the nature or amount
of ultimate liability for injury, loss or death to BNSF's employees, if any.
4. BNSF shall send Agency progressive statements detailing the costs of the railroad work
performed by BNSF. Agency shall thereafter promptly reimburse BNSF for completed force-
account work. Upon completion of the Project, BNSF shall send Agency a detailed statement
of final costs, segregated as to labor and materiais for each item in the recapitulation shown
on Exhibit B.
5. 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 now or hereafter is made available specifically for the purpose of such
maintenance by reason of any law, ordinance, regulation, order, grant or by other means or
sources.
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 will not let or sublet the whole or any part of the Easement Area for any purpose
whatsoever without the written consent of BNSF in each instance.
2. The Easement shall be granted without any promise or covenant of quiet enjoyment. BNSF
will not warrant title to the Easement Area nor will it undertake to defend Agency in the
peaceable possession or use thereof, in case of eviction of Agency by anyone owning or
claiming title to or any interest of the whole or any part of the Easement Area, BNSF shall not
be liable to Agency for any damages of any nature whatsoever Agency sustains in
connection therewith.
3. If the Easement Area, or any part thereof, shall cease to be used for the purpose for which
the Easement shall be granted, Agency will deliver to BNSF the possession of the whole, or
such part of the Easement Area so ceased to be used.
?
4
Agency shall prepare all detail plans and specifications, including special provisions, for any
improvements affecting the property of the BNSF, which plans and specifications shall be
submitted to the BNSF for its prior written approval. Such approval shall not be unreasonably
withheld. Such plans and specifications shall be approved in writing by BNSF and by the
Agency before any contracts are awarded by the Agency and before any work is performed
by the BNSF. All construction and work done by the parties shall be in accordance with the
approved plans and specifications.
5.
Agency shall construct the Project as shown on the attached Exhibit A and do all work
("Agency's Work") provided for in the plans and specifications for the Project, except railroad
work listed on Exhibit B 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:
(a) Widen the north side of Valencia Avenue between Newport Avenue and the BNSF right
of way;
(b) Pave all of Valencia between Newport Avenue and the BNSF right of way;
(c) Install a new storm drain line in Valencia between Newport Avenue and Red Hill Avenue
that will go under BNSF's tracks;
(d) Install a new sewer iine in Valencia between Newport Avenue and Red Hill Avenue that
will go under BNSF's tracks;
(e) Transition the existing north side curb on Valencia Avenue east of the BNSF right-of-way
to meet the new north side curb line between Newport Avenue and the BNSF right-of-
way (#(a) above);
(f) Re-stripe all of Valencia Avenue between Newport Avenue and Red Hill Avenue:
(g) Install a new traffic signal at the intersection of Newport Avenue and Valencia Avenue.
6. That it will, at no expense to BNSF, and subject to the prior written approval of BNSF's
Engineering Department, locate, construct and maintain the public road using commercially
acceptable practices and materials intended not to 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. Agency shall construct the public road, any drainage facilities
including catch basins, culverts, culvert extensions and utility changes including
encasements. In the event of a breach (hereinafter called the "Agency Breach") of Agency's
covenants under this Article 111, BNSF will send Agency written notice (hereinafter called the
"Notice") of the Agency Breach. Agency must cure the Agency Breach within sixty (60) days
of the date of the Notice. If Agency fails to cure the Agency Breach within the sixty (60) 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
BNSF's actual costs of curing the Agency Breach.
7. Agency will furnish, install, and thereafter maintain pavement markings, advance warning
signs, and traffic control signs in accordance with applicable portions of the Manual of
Uniform Traffic Control Devices (MUTCD) and will provide traffic control during construction
or maintenance operationS"to accommodate work by BNSF.
8. Agency will bear and pay the entire cost of constructing and maintaining the public road,
upon the Easement Area except that portion to be maintained by BNSF as specified in Article
I.
9. The parties agree that all work covered by this Agreement shall conform to the requirements
of the Public Utilities Commission of the State of California (hereinafter referred to as the
"Commission") and the Agency will obtain the Commission's authorization to construct the
Project and shall furnish to the Commission plans for the construction of the Project,
approved by BNSF, together with a copy of this Agreement.
10. Agency shall 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 (coliectively, 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 shall 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 shall also mark all Lines shown on the
plans or marked in the field in order to verify their locations. The contractor shall also use
all reasonable methods when working in the BNSF right-of-way or on BNSF property to
determine if any other Lines (fiber optic, cable, communication or otherwise) may exist.
(b) Failure to mark or identify the Lines shall 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
shall indemnify and hold BNSF harmless against and from 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 SHALL 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 WILLFUL MISCONDUCT OR SOLE
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.
11. Before work is commenced on BNSF's property to build or thereafter maintain the street
approaches to the crossing, the Agency will require its Contractor to execute and comply with
the agreements for The Burlington Northern and Santa Fe Railway Company marked Exhibit
"C" and "C-1", attached hereto and made a part hereof, and instructions of BNSF's
representatives in relation to the proper manner of protecting BNSF's tracks and traffic
moving thereon, pole lines, signals, and other property of BNSF, or its tenants or licensees,
at or in the vicinity of the work during the period of construction and shall perform the work at
4
such times as shall not endanger or interfere with safe and timely operation of BNSF's tracks
and other facilities.
12. Except as otherwise provided below in this Section 12, all construction work to be performed
hereunder by Agency for the Project shall be pursuant to a contract or contracts to be let by
Agency, and all such contracts shall provide:
(a) All work performed under such contract or contracts 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;
(b) Changes or modifications during construction that affect safety or BNSF operations shall
be subject to BNSF's approval;
(c) No work shall be commenced within BNSF's right-of-way until each of the prime
contractors employed in connection with said work shall have (i) executed and delivered
to BNSF a letter agreement in the form of Exhibit C-I, and (ii) delivered to and secured
BNSF's approval of the required insurance; and
(d) 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.
13. 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 Pubiic 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.
14. Agency shall make any and all arrangements that may be necessary to secure the location or
relocation of wire lines, pipe lines and other facilities owned by private persons, companies,
corporations, political subdivisions or public utilities other than BNSF which it may be found
necessary to locate or relocate in any manner whatsoever due to the construction of said
public road.
15. Agency shall appoint and keep competent inspectors, engineers or other authorized parties
on the work to be done by Agency during the progress of such work, and give BNSF
reasonable advance notice of the performance by Agency, or any contractor employed by
Agency. of the construction of said public road, of any work upon, along, over or across the
rail corridor and tracks of BNSF which might render unsafe the operation of trains on the
tracks of BNSF.
16. If it is determined necessary by BNSF during the construction or maintenance of said public
road to provide fiagmen and inspectors to ensure the safety of railroad operations, the cost of
providing such flagmen and inspectors will be borne by the Agency's Contractor, as stated in
the attached Exhibit "C".
17. Agency shall provide any permits required for installation of any of BNSF's equipment, the
Improvements, and/or any other facilities deemed necessary for the project. Any permits
obtained for the BNSF will be at Agency's sole cost and expense.
18. To the limited extent of Agency's construction and maintenance of a road across BNSF's
right-of-way, Agency shall, to the maximum extent permitted by applicable law, release,
indemnify defend and hold 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, penaities, costs, damages, losses, liens,
causes of action, suits, demands, judgments and expenses (including, without limitation,
court costs and reasonable attorneys' fees) of any nature, kind or description of any person
(inciuding, without limitation, the employees of the parties hereto) or entity directly or
indirectly arising out of or resulting from (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 SHAll 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 BNSF, ITS AGENTS,
SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH
CLAIMES ARE PROXIMATELY CAUSED BY THE WillFUL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
ARTICLE IV - JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement shall be performed in a good and workmanlike
manner and each portion shall be promptly commenced by the party obligated hereunder to
perform the same and thereafter diligently prosecuted to conclusion in its logical order and
sequence. Furthermore, any changes or modifications during construction which affect either
party shall be subject to that party's approval prior to the commencement of any such
changes or modifications.
2. The work hereunder shall be done in accordance with the detailed plans and specifications
approved by BNSF and Agency.
3. Agency shall require its contractor(s) to reasonably adhere to the Project's construction
schedule for all Project work. While BNSF will make a good faith effort to complete the
project as scheduled, 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. Should BNSF labor forces
or other resources be pulled oft the Project, BNSF will provide Agency with prompt notice of
any resulting delay of Project construction. 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. However, 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.
4. 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
f,
manner contrary to the plans and specifications approved by BNSF; (ij) 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 and not reinstated without a lapse in coverage. 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:
Mr. Tim D. Serlet
Director of Public Works/Citv Enaineer
300 Centennial Wav
Tustin. CA 92780
5. Agency shall supervise and inspect the operations of all Agency contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement
and all safety requirements of the BNSF railroad. If BNSF determines that proper supervision
and inspection is not being performed by Agency personnel at any time during construction of
the Project, BNSF shall have the right to stop construction (within or adjacent to its operating
right-of-way). Construction of the Project shall not proceed until Agency corrects the situation
to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an
expeditious manner, BNSF shall immediately notify Mr. Tim D. Serlet for appropriate
corrective action.
6. The parties mutually agree that BNSF's preliminary engineering, design, and contract
preparation costs described in Article II, Section 2 herein are part of the costs of the Project
even though such work may have preceded the date of this Agreement.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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
Santa Fe Railway Company:
BNSF's Manager of Public Projects
740 East Carnegie Drive
San Bernardino, California 92408
Director of Public Works/City Engineer
City of Tustin
300 Centennial Way
Tustin, CA 92780
12. No legal right of BNSF to maintain, use and relocate the 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 shall be in anyway
affected by the granting of the Easement.
Agency:
13. If at any time during the term hereof, BNSF shall desire to make any reasonable use of its
property with which the public road will in any way interfere, including without limitation, the
relocation of existing or the construction of new tracks, pole lines, wire, conduits, pipelines, or
other facilities of BNSF or any third party, Agency shall at no expense to BNSF, make such
changes in the public road as may be necessary to avoid interference with the proposed use
of BNSF's property.
14. If it shall become necessary in the future reconstruction and/or maintenance of said public
road to make any changes or alterations in BNSF's rail corridor fences, signal, power and/or
communication pole and wire lines, and/or other facilities located upon the Easement Area,
such changes or alternations, if agreeable to BNSF and Agency, will be made by BNSF at
Agency's sole cost and expense. Agency shall promptly reimburse BNSF for all reasonable
costs directly associated therewith.
15. Agency agrees future traffic control systems at the crossing or crossing illumination will be
installed at no cost to the BNSF.
16. Agency agrees that It will reiease and vacate the Easement Area occupied by the public road,
remove the public road from the Easement Area and otherwise fully restore the Easement
Area to the condition that existed prior to the beginning of the work herein covered, as soon
as practical after BNSF and Agency agree the need for such public road ceases to exist.
17. This Agreement shall be governed by and construed in accordance with the laws of the State
of California in effect at the time of the execution of this Agreement. The parties consent to
the jurisdiction of the California courts with venue in Orange County.
18. This Agreement is the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings, whether oral
or written, between the parties with respect to the matters contained in this Agreement. Any
waiver, modification, consent or acquiescence with respect to any provision of this
Agreement shall be set forth in writing and duly executed by or on behalf of the partyto be
bound thereby. No waiver by any party of any breach hereunder shall be deemed a waiver of
any other or subsequent breach.
IN TESTIMONY WHEREOF, the parties have executed this agreement, in duplicate, on
the day and year first above written.
CITY OF TUSTIN
BY:
..¡? '<;\
VðVJ ¿ .
Mayor
ATTEST:
City Cierk
THE BURLINGTON NOR~HE'N AND SANTA FE RAILWAY COMPANY
BY: ~j~~~
ITS: Æ..:'I~T¡;"""¡'T' Dd2ErT<.I1t P./6'-1'- (?~".)¿(. T.J
A~,~~~i
Burhngton Northern Sonia F, Law Dep¡¡rtm.n:
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Exhibit "B"
*""" NOTE HH NOTE *****H*HHHHH******H FOR INTERNAL USE ONLY HH*HHHH*H******HH NOTE HH NOTE *'HH*
LOCATION IRVINE
PLANITEM NUMBER. PTR026708LE
PROPERTY OF ,ENSF RAILWAY COMPANY
OPERATED BY ENSF RAILWAY COMPANY
JOINT FACILITY, CITY OF IRVINE
, SILLABLE (*/-J, 100.00
REQUESTER ID ,Q964 - AUGIE MORALES
PROJECT TYPE' PIP
DOT NUMBER 026708L
7600
0178.10 TO 0178.30
SC
SAN DIEGO
6
CA COUNTY, ORANGE
11/08/2002
481170
AFE NUMBER
RFA NUMBER
CPAR NUMBER
BUDGET YEAR
BUDGET CLASS
REPORTING OFFICE
SPONSOR
DEPT CODE
DERAILMENT CODE
LINE SEGMENT
MILEPOST
DIVISION
SUBDIVISION
TRACK TYPE
TAX STATE
MATL DATE
LOCATION CODE
9610203
CDOODO03
2003
6
106
VP ENGIN
MOWGH
PURPOSE,
- 00 -- n --00- ------- - 00 n_nnuu - n- 0000 nuu n_nu n- nn_- 00- - _noon 00 0000 n 0000 00 000000000000 00 n 00_- n- 00 --00_--00-
JUSTIFICATION AND DESCRIPTION
REPLACE VALENCIA ROAD XING, D.O.T. NO. 026 708 L, A 64 FT. FDT XING W/ 104 FT. - 115 La.
CONCRETE XING SURFACE ON BOTH LEAD & SIDING TRKS AT IRVINE, M.P. 178.1. SAN DIEGO SUED.,
S.C. DIVISION. TOTAL WIDTH = 208 FT.
RENEWAL OF VALENCIA ROAD XING IS DUE TO TUSTIN WIDENING FOR CALTRANS FREEWAY ON-RANP
TRAFFIC REROUTE.
REMOVALS OF 128 L.F. WOODEN CROSSING PLANKING AND APPROX. 280 TF OF EXISTING TRACK.
RENEW CROSSING WITH 8-115 LB. PREPLATED PANDROL TRACK PANELS.
CROSSING WILL REQUIRE FULL CLOSURE FOR 1 WEEK.
ALL TRAFFIC CONTROL AND PAVING TO EE PROVIDED BY THE CITY OF TUSTIN.
NOTE, ORIGINAL PLAN PTR026708LA, RFA 96-148-02, UPOATED TO YEAR 2003.
RFA NO. 96-102-0J
AUTHORITY NO. 7-
CASH CAPITAL NONCASH CAFITAL
BILLABLE
*..**** NOTE **** NOTE *****H*HH*H*HH*H*H FOR INTERNAL USE ONLY H*H*H*H***H*H**H*H NOTE H** NOTE H*HH
TOTALS
OPERATING EXP
REMOVAL COST
_n___n______- n__--___nn_- _n_n__nn__- n_____nuuu nun__nnn- ___nnn_n_n
__--nnnn--- ----_uunn_- _00_000000_0000 __n---_n____- _n___n__n_n _00_0000___00_-
LABOR COSTS
MATERIAL COSTS
OTHER COSTS
59,484
81,898
71,540
59,484
81,898
71.540
TOTALS
212,922
nn_____nn_- ----__u___n_- ___nn__n___- n_un__uuu _nuu_n_--n n----_n_n_--
0000_--__000000 _--_00_00___--- uu_n_--nn- -_n___--n__n _n_u_unnn 0000_0000_00_--
212,922
unn____n'_nun_nnn__nn____n_nn_n___n_n__'nn__u_nu_nnnn-n_u_nunuu_n_nn_n_u_n--nnn-
ENGINEERING SERVICES - KANSAS CITY
ESTIMATE REF. NUMBER, PTRO267D8LE - 1-96-n
COSTING DATE' 01/03/2003
PRINTED ON
ESTIMATED BY
PRINTED BY
Page 1 of 5
01/03/2003
AYALA
AYALA
Exhibit "B"
- -- - nn n n - - _00- - nn_____n - - --- _00 - - - - - - - - - - n 00- nOOn _00- - - n 0000 _00 00- - 00 - 00- - 00- - _00- 00- n_- - -" - -- - n- -- 00 0000 00_-
ACCT CST RSN PPE DESCRIPTlON
Q'l'Y/ST
OT UIM
NONCASH
REMOVAL
00 - noon - 00_00 0000 n -- 00---- - -- 00 0000- 00 noon n 00 _n n --noon nnnn_nnnn- 00 _00 00 00 00 nnn- n nn h __----non ----
251
434
292
430
. LABOR SUBTOTAL
1120 308 201
1120 300 151
1120 319 430
1120 319 430
1120 319 430
. MATERIAL SUBTOTAL
1120 434 430
1120 434 430
1120 434 430
. OTHER SUBTOTAL
. ADDITIVES
. GANG TOTAL
REMOVE RAIL/OTM - NOT REPLACED 84.00
REPLACE PUBLIC CROSSING - TOTAL REHA 416.00
UNLOAD BALLAST - REPLACEMENT - CAP 36.00
UNLOAD CROSSING MATERIAL - PUBLIC - 104.00
JOINT, COMPROMISE, A & B 8.0
TRACK PANEL, 115 LB 39 FT PNEL PLTS 8.0
PIPE, PLASTIC, SCHEDULE 40, PVC 480.0
SPIKE, TIMBER SCREW,RECESSED SQ. HEAD 468.0
CONC 115 08-SEC WITH FILLER FOR WÒOD 208.0
BACKHOE
LOADER
WATER TRUCK
10.0
10.0
10.0
8.4 ME!
41.6 ME!
3.6 ME!
10.4 ME!
7,361
750
2,165
_0000000000 00_00_00_00 n_nn_n-
10,276
PR
EA
FT
EA
FT
1,548
26,739
1,935
684
31,604
1. 749
1,299
3,048
1.835
1,074
2,065
456
138,556
n_nnnn _00_0000_00 nn'nnn _00_00_0000
8,478
3,679
__--nn_n _un_noon --n-noon
3,679
KT
1,060
PAYROLL ASSOCIATED COSTS
EQUIPMENT EXPENSES
DA LAOOR OVERHEADS
INSURANCE EXPENSES
MATERIAL H!\NDLING
USE TAX
OFFLINE TRANSPORTATION
SECGANG-6M - SECTION GANG (6 MAN)
nn_nnn nn_nnn
62,510
DAY
DAY
DAY
10,000
25,000
5,000
241
- - - 00 n - - _n n n -- --- 00 --- _00 00 - 00- - - - -- n - _00 00 - - 0000 n - 00 - --' - - h h- n - - ------ --- - --nn- nn- - -- - - - - --- - - 00-- - __00 00 - ---
. LAOOR SUBTOTAL
1120 308 201
. MATERIAL SUSTOTAL
. ADDITIVES
. GANG TOTAL
PLACE FIELD WELDS - CAP
160.00
16.0 MH
--00_000000 n_nnnn
40,000
6,191
3,623
6,968
1,541
1.541
5,121
785
nnnnn- nn--n_--
1.060
2,216
1.297
2,494
551
26
86
13
nnn_nn nnnnn- _n_nn_n
11,422
- 00 - n - - n_nh- -- -- _n - - - - 00- -- - 00 n 00- n - - - - _00 - - - - -- n 00 - 00 - - - 00 _00- - - - 00 - - 0000 - n nn - - --_00 --- - - 00 - n n - - _00 - 00 - - - 00 00
WELDKIT, GENERIC FOR ALL RAIL WEIGHT
20.0
PAYROLL ASSOCIATED COSTS
EQUIPME>.'T EXPENSES
DA LAOOR OVERHEADS
INSURANCE EXPENSES
MATERIAL HANDLING
USE TAX
OFFLINE TRANSPORTATION
. LABOR SUBTOTAL
400 9911 REPLACE SIGNAL BONDING - CAP
HQWELDGANG-2M - WELDING GANG, 2 MAN
70.00 17.5 ME!
8.0 DAY
8.0 DAY
1120 319 400 9911 SIGNAL BONDING MATERIAL
. MATERIAL SUBTOTAL
1120 433 400 9911 LEASED VEHICLE
. OTHER SUBTOTAL
. ADDITIVES
. GANG TOTAL
PAYROLL ASSOCIATED COSTS
EQUIPMENT EXPENSES
DA LABOR OVERHEADS
INSURANCE EXPENSES
MATERIAL H!\NDLING
USE TAX
OFFLINE TRANSPORTATION
SIGMTNER-1M - SIGNAL MAINTAINER 11 MAN)
1,988
--00_00--_- ----------- n--nnn-
1.988
1,200
----nh_-- Un_nUn -n--n--n
1. 200
400
nn-_--n- _00_--__00-
400
1,197
701
1.348
298
29
98
15
nnnnn- nn_n_n- _n_nn_n
7,274
294
- 00 - n 00_--_00 00 - - - 00 00 _n - - - - - - - - - - - _00 _00 00 - n - - - - - n_- 00 - - nnnn 00 - 00 00 - 00 - - - 00 - n- - - 00 - - 00 - - - 00 - 00 - - - - 00 - 00 00 0000 _00-
SURFACE TRACK - REPLACEMENT - CAP
96.00
Page 2 of 5
9.6 ME
2,170
Exhibit "B"
- - un - 00 00 00 - 0000 - 00- - --- -- - - -- 00--- -- 00- -- 00 --- 00- --- - - - -- -- - -, --00 - -- -- - - -- -- 00 _00 -- - - -- -- - -, - -- -- - - - - - _00 - -- - 00- - --- ---
. LABOR SUBTOTAL
AceT CST RSN PPE DESCRIPTION
QTY/ST
OT UIM
CASH
NONCASM
DPER
------0000- 00_000000_- _----00--00
REMOVAL
- - - -- - - -- --- - --- - - - --0000 - -- - - - 0000 _00- --_--00 - 00--- _00 - - - 00-- - - - ---- - _000000- -- -- ---- - - - 00- - - -- --00 - - - - - - - - - - - - - -- - _00 - - --
1120 310 281
. MATERIAL SUBTOTAL
. ADDITIVES
. GANG TOTAL
BALLAST, TRUCKED
PAYROLL ASSOCIATED COSTS
EQUIPMENT EXPENSES
DA LAaOR OVERHEADS
PERDIEM
INSURANCE EXPENSES
MATERIAL HANDLING
ONLINE TRANSPORTATION
USE TAX
SUG-3M - SURFACING GANG (3 MAN)
300.0
NT
1,307
76S
1.471
600
325
148
2,775
491
2,170
6,000
6,000
16,052
----------- 0000_--0000 _00----0000 --_0000--00
- - -- 0000 - - -- 00 -, -- -- -- - - --0000- - - -- - - -- -- - - - - - - ---- --00 -- - - - -- - - 0000 - 00__- -- - - --- -- - - -- - - -- - - - - - --- -- -- -- - - - 00 -- - - - - -- --- --
10,000
1120 367 430
1120 399 170
. OTHER SUBTOTAL
. GANG TOTAL
FIELD ENGINEERING
REMOVAL AND HAULING FEES
NONE - NO GANG NEEDED
1.0
1.0
LS
LS
2,500
00----_---- __--00--_--
2.500
----------- 00----00_--
10,000
--_0000_--0000_--_----0000--__--_--00------'_----_00----_00--00_--_--_--00----_--__--------------00--00_00____--__--0000_--
10,000
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
PROJECT GROSS COST
LESS COST PAID BY OTHERS
PROJECT NET COST
Page 3 of 5
2. SOD
175,804
17,580
968
194,352
194,352
_U-----n-
00_00_--00- n_----nu
18,478
0
92
18,570
18,570
Exhibit "B"
- - 00- ---- --_00 -- -- ----00_00 _00 00 00 - --, n- - - --- 00- -- __00--_000000 0000- hn- 00- --0000 00 00 _000000- _00_- -- _00 - 00-0000_00 00-
MAINTAIN PROPRIETARY CONFlaENTIALITY
00 - -- - 00 - 00 --- ___0000 _00- -- --- - hoon - - - - - - 00 h -- - _00- 00 00_00 __on_non 00 - - - 00 00 - - --- - - - __00-- --_00 - - - _00 -- 00 00 00- - ---
THE S. N. S. F. RAILWAY COMPANY
FHPM ESTIMATE FOR
CITY OF IRVINE
LOCATION, -
IRVINE
aETAILS OF ESTIMATE
00 - _h --- - - -- - 00 _h --, --- - - - - - - - - noon - - -- -- - 00 - 00- - - _h_- - - - - 00- - 00_00 - - - 00 _n 00 - n --- - - 0000- 00 - 00 - - 00- - 00 00 00 - 00 - -- - - ----
VERSION, 1
PLAN ITEM, PTRD26708LE
-- - 00 - _00 -- - -- __00 - 00 - - --- -- -- - - - 00 - - - - - - - - - - _00- --- 00 00 _00 - - 00 --- __n - - 00 00- 00- 00- 00 - 00 - - _00 h n -, - - - 00- - 00_- 00 - 00 0000 - 00 00
JUSTIFICATION ANa aESCRIPTION
REPLACE VALENCIA ROAD XING, D.O.T. NO. 026 708 L, A 64 FT. FaT XING WI 104 FT. - 115 LE.
CONCRETE XING SURFACE ON EOTH LEAP . SIPING TRKS AT IRVINE, M.P. 178.1, SAN aIEGO SUED..
S.C. DIVISION, TOTAL WlaTH = 208 FT.
RENEWAL OF VALENCIA ROAD XING IS aUE TO TUSTIN WIPENING FaR CALTRANS FREEWAY ON-RAMP
TRAFFIC REROUTE.
REMOVALS OF 128 L.F. wooaEN CROSSING PLANKING ANa APPROX. 280 TF OF EXISTING TRACK.
RENEW CROSSING WITH 8-115 LE. PREPLATED PANaROL TRACK PANELS.
CROSSING WILL REQUIRE FULL CLOSURE FOR 1 WEEK.
ALL TRAFFIC CONTROL AND PAVING TO EE PROVIPEa EY THE CITY OF TUSTIN.
NOTE, ORIGINAL PLAN PTR026708LA, RFA 96-148-02, upaATEa TO YEAR 2003.
PURPOSE,
RFA NO. 96-102-03
AUTHORITY NO. 7-
aESCRIPTION
QUANTITY UIM
COST
LABOR
n_--nnnn--nnnn__--n_nnnnh_--n 00--0000 00_00 _00--- _----00--00 __0000_0000
TOTAL 5
PLACE FIELD WELas - CAP
REMOVE RAIL/OTM - NOT REPLACEa
REPLACE PUBLIC CROSSING - TOTAL REHAB
REPLACE SIGNAL EONOING - CAP
SURFACE TRACK - REPLACEMENT - CAP
UNLOAD EALLAST - REPLACEMENT - CAP
UNLOAD CROSSING MATERIAL - POELIC - CAP
PAYROLL ASSOCIATED COSTS
EQUIPMENT EXPENSES
PA LABOR DVERHEAPS
PERDIEM EXPENSES
INSURANCE EXPENSES
TOTAL LASOR COST
MATERIAL
JOINT, COMPROMISE, A . B
TRACK PANEL, 115 LS 39 FT PNRL PLTS 10FT TIES
PIPE, PLASTIC, SCHEDULE 40, PVC
SPIKE, TIMBER SCREW,RECESSED SQ. HEAP, 3/4 X 1
WELDKIT, GENERIC FOR ALL RAIL WEIGHTS
CONC 115 08-SEC WITH FILLER FOR WOOD
BALLAST, TRUCKED
SIGNAL BONOING MATERIAL
MATERIAL HANDLING
ONLINE TRANSPORTATION
USE TAX
OFFLINE TRANSPORTATION
TOTAL MATERIAL COST
OTHER
SACKROE
FIELD ENGINEERING
LEASED VEHICLE
LOADER
REMOVAL AND HAULING FEES
WATER TRUCK
TOTAL OTHER ITEMS COST
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
GROSS PROJECT COST
Page 4 of 5
176.00 MH
92.40 MH
457.60 MH
87.50 MH
105.60 MH
39.60 MH
114.40 MH
3,679
1.749
8,660
1.988
2,170
750
2,165
12,746
7,460
14,346
600
3.171
59,484
-000000_00- --00_000000
59,484
8.00 PR
8.00 SA
480.00 FT
468.00 SA
20.00 KT
208.00 FT
300.00 NT
8.00 DAY
1,548
26,739
1.935
684
1,060
31,604
6,000
1,200
1.744
2,77S
5,796
813
81,898
00000000_00 _00___00_00
81,898
10.00 DAY
1. 00 LS
8.00 DAY
10.00 DAY
1.00 LS
10.00 PAY
10,000
2,500
400
2S,OOO
10,000
5,000
52,900
h_______n __0000_0000
52,900
194,282
17,580
1. 060
212.922
Exhibit "B"
LESS COST PAID BY BNSF
00---_00---
TOTAL BILLABLE COST
212,922
-==========
Page 5 of 5
EXHIBIT "Cn
CONTRACTOR REQUIREMENTS
CALIFORNIA
1.01 General
1.01.01 The Contractor shall 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
1.01.02 The Contractor shall execute and deliver to the Railway duplicate copies of the Exhibit "C-I"
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-I".
1.01.03 The Contractor shall 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 rig\;( to enter Railway's Property is subject to the absolute right of Railway to cause the
E'ontractor'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, health and safety. The
Contractor shall be responsible for and indemnify and save Railway harmless from 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 shall notify the City of Tustin and Railway's Manager Public Projects, telephone
number (909) 386-4472 at least thirty (30) working days before commencing any work on Railway Property.
Contractors notification to Railway, shall refer to Railroad's file 026708L.
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 I Y, horizontal to I
vertical slope beginning at eleven (II) feet from centerline of the nearest track, both measured perpendicular to
center line of track, the Contractor shall furnish the Railway five sets of working drawings showing details of
construction affecting Railway Property and tracks. 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
railway 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 registered professional engineer
licensed to practice in the state the project is located. The Contractor shall not begin work until notified by the
Railway 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 Railway's tracks. In no case shall the Contractor be
relieved of responsibility for results obtained by the implementation of said approved plans.
1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor shall have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Agreement
1.02.01 No employee oftbe Contractor, its subcontractors, agents or invitees shall enter Railway
Approved VP Law, January 31. 2001
Page I of?
Property without first hBving completed Railway's Contractor Safety Orientation, found on the web site
www.contractororientation,com, The Contractor shall ensure that each of its employees, subcontractors,
agents or invitees have received Railway's Contractor Safety Orientation through internet sessions
conducted by the or through the Contractor before any work is performed on the Project. The
Contractor shall ensure that each of its employees, snbcontractors, agents or invitees have verification
that they have completed the Safety Orientation and that every employee ofthe Contractor, its
subcontractors, agents or invitees have a card, in his or her possession, that is properly signed and dated
certifying that they have received the Safety Orientation before entering Railway Property. Tbe
Contractor is responsible to pay the cost of the Safety Orientation. It is required that tbe Safety
Orientation be renewed annually. Further clarification can be found on the web site or from tbe
Railway's Representative.
1.03 Railway Requirements
1.03.0t The Contractor shall 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 shall be paid for by the Agency.
1.03.02 The Contractor shall notify the Railway's Division Superintendent Michael Shircliffat (909) 386-4150
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 shall abide by the following clearances during construction:
.
.
.
.
25'-0" Horizontally from centerline of nearest track
22'-6" Vertically above top of rail (Temporary Falsework Clearance may be reduced to 21'.6" Subject to
Railwayand 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 intringement within State statutory clearances due to the Contractor's operations shall be submitted
to the Railway and to the City of Tustin and shall not be undertaken until approved in writing by the Railway,
and until the City of Tustin 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 shall 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 shall 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 shall be submitted to the Railway by City of Tustin for approval before work is undertaken and this work
shall not be undertaken until approved by the Railway.
1.03,07 At other than public road crossings, the Contractor shall not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor shall obtain a "Temporary .
Private Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways
tracks. The temporary crossing shall be gated and locked at all times when not required for use by the
Contractor. The temporary crossing for use of the Contractor shall be at the expense of the Contractor.
1.03,08 Discharge, release or spill on the Railway Property of any hazardous substances in excess of a
reportable quantity or any hazardous waste is prohibited and Contractor shall immediately notify the Railway's
Approved VP Law. January 31,2001
Page 2 of?
Resource Operations Center at 1(800) 832-5452. of any discharge, release or spills. Contractor shall not allow
Railway Property to become a treatment, storage facility as those terms are defined in the Resource
Conservation and Recovery Act or any state analogue.
t ,03.09 The Contractor upon completion of the work covered by this contract, shall 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 shall 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
1.04.0 I Each Contractor that will perform work within 25 feet of the centerline of a track must develop
and implement a Roadway Worker Protectiou/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 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 shall develop and
implement the Safety Action Plan, as provided for on the web site www.contractororientation,com, which
shall be made available to Railway prior to eommencement of any work on Railway Property, During the
performance of work, the Contractor shall audit it's compliance with the Safety Action Plan, The
Contractor shall designate an on-site P.roject Supervisor who shall serve as the contact person for the
Railway and who shall maintain a copy of the Safety Action Plan and subsequent audits at the job site for
inspection and review by the Railway at any time during the course of the project. Below is a partial list
of what should be contatined in the Safety Action Plan, a complete list can be found on the web site.
(NOTE - Should there be a descrenencv between the information contained on the web site and the list
below, the web site shall eovern.);
.
Contractors Employee Safety
All employees working on Railway property have completed Railway's annual Safety Orientation
Program through the internet(Sec 1.02.01)
Job Briefings (Sec1.06.01 & 1.06,02)
Personal Protective Equipment ( See 1.06,08)
Protection of Railway Facilities and Railway Flagger Services (Sec 1.03,05 & t .05)
All emp;loyees working on Railway property, who will be working within 25 feet from centerline of
track, have completed annual Roadway Worker Protection/On Track Safety Training(Secs 1.04.01
and 1,06.03)
Work After Hours (See 1.06.04)
Contractor Employee Training
Personal Injury Reporting (Sec 1.09)
Accident Investigation and Analysis
High Risk Work Areas/Situations
Notification of Damage to Railway property or hazards that could effect the safe operation of trains
(Sec 1.06,06)
Falsework/Shoring Bffecting the integrity of tracks (See I.Ot .06)
Clearances affecting the integrity oftrain operations (Sec 1.03.03)
Moving Equipment and Materials across Railway's tracks (Sec 1,03.07)
Security of Machines, Equipment and Vehicles (See 1.06,10)
Power line Safety (Sec 1.06.12)
Excavation Safety (Sec 1.07)
High Risk Employees
Alcohol and Drug Use (See 1,06,05)
Firearms or Deadly Weapons (See 1.06.07)
Property Damage, Housekeeping and Clean-up (Sec 1.03.01 & 1.03.09)
Storage of Materials (Sec 1.06,09)
Facility Auditing
Compliance with Laws (See 1.01.04)
.
.
.
.
Approved VP Law, January 31, 2001
Paoe 3 of7
.
Hazardous Substances and Materials
Discharges, Releases and Spills (See 1.03,08)
Hazardous Materials encountered in excavations (See 1.08)
1.05 Protection of Railway Facilities and Railway Flagger Services:
1.05,01 The Contractor shall give a minimum of 15 working days notice to David Gonzales the Railways
Roadmaster at (909) 386-4061, in advance of when flagging services will be required.
1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractors work activities are located over or under
of and within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or
similar equipment positioned outside of 25-foot horizontally from track centerline that 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 Railway's Representative it is necessary to safeguard Railway's Property,
employees, trains, engines and facilities.
1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's
representative. track or other Railway facilities may be subject to movement or settlement.
1,05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
1.05.02d When any hazard is presented to Railway track. communications, signal, electrical. or other facilities
either due to persons, material, equipment or blasting in the vicinity.
t ,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.
1.05.03s 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 shall 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 City of Tustin for a period of 10 consecutive calendar days beginning on the
date work commences on or near the Railroad's property. The Contractor shall pay to the City of Tusin
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.
1.05.03d The average train traffic on this route is I freight train(s) per 24-hour period at a timetable speed 10
MPH and 0 passenger trains at a timetable speed of 10 MPH.
1.06 Contractor General Safety Requirements
1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement oftrains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track shall be in compliance with FRA Roadway Worker Protection Regulations.
1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing shall be
conducted with all personnel involved with the tBsk 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 fiagger, as applicable,
Approved VP Law, January 31 , 200 I
Pope 4 nn
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 shall not work nearer than 25 feet to the centerline of any track without an on track
safety strategy approved by the RBilway'S Project Representative, unless the track is protected by track
bulletin and work has been authorized hy the Railway, When authority is provided, every contractor
employee must know: (I) who the Railway flagger is, and how to contact the nagger, (2) limits of the
nag/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 nag/work limits that were not previonsly
job hriefed, must notify the nagger immediately, and be given a job briefing if working at less than 25
feet from 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 shall be present at all times.
1.06.05 Any Contractor employee. its subcontractors employee, agents or invitees under suspicion of being
under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's
Propel1y 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 if any hazard is noticed on passing trains, shall be reported
immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come
in contact with a track, signal equipment. or structure (bridge) could result in a train derailment and shall be
reported by the quickest means possible to the 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 shall be posted at the job
site.
1.06.07 All persons are prohibited from having pocket knife with blade in excess of three (3) inches, fireanns or
other deadly weapons in their possession while working on Railway's Property.
1,06.08 All personnel protective equipment used on Railway Property shall meet applicable OSHA and ANSI
specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www,contracfororientation.com, however a partial list of the requirements include; aj safety glasses:
permanently affixed side shields; no yellow lenses. b) hard hats with high visibility orange cover, c) safety
shoes: hardened toe, above-the-ankle lace-lip with a defined heel and d). high visibility retro-reflective orange
vests are required as specified by the Railroad's representative in charge of the project. Hearing protection, fall
protection and respirators will be worn as required by State and Federal regulations. (NOTE - Should there be
a descrenencv between the information contained on the web site and the information in this DBra!!ranh.
the web site shall !!overn.)
1.06.09 The Contractor shall not pile or store any materials, machinery or equipment closer than 25'-0" to the
center line of the nearest Railway track. At highway/rail at-grade crossings materials, machinery or equipment
shall not be stored or left temporarily which interferes 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.
1.06.10 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.
1.06.1 t 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.
Approved VP Law, January 31, 200 I
Page 5 of 7
1.06.12 All power linc wires must be considered dangerous and of high voltage unless infonned to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment
or loud shall be; 200 KV or below - 15 feet, 200 to 350 KY - 20 feet, 350 to 500 KY - 25 feet, 500 to 750 KY-
35 feet. 750 to 1000 K V - 45 feet and if capacity of the line is not known, minimum clearance of 45 feet must be
maintained. A person shall be designated to observe c.learance 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, it must be ascertained by the Contractor if there are any underground pipe lines,
electric wires. or cables, including fiber optic cable systems that either cross or run parallel with the track which
are located within the Projects work area. Excavating on Railway's Property could result in damage to buried
cables resulting in delay to Railway 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 Railway'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.
1.07.02 The Contractor must cease all work and the Railway 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.
1.07.03 All excavations shall be conducted in compliance with applicable OSHA regulations and regardless of
depth shall be shored where there is any danger to tracks, structures or personnel.
1.07.04 Any exeavations, holes or trenches on the Railway's Property must be covered, guarded andlor
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 perfonning any work under this
Agreement, Contractor shall 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
1.09.0 I 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 Fonn contained herein is to be completed and sent by Fax to the Railway at
1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
Approved VP Law, January 31, 2001
Pa~e 6 00
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.
Time:
4. Weather
I. Accident City/St
County:
(if non-Railway Joeation)
2. Date:
3. Temperature:
5. Social Security #
6. Name(last.first.mi)
7. Addrcss: Street:
City:
St._Zip:
S. Date of Birth:
and/or Age - Gender:
(ifavailable)
9. (a) injury:
(i.e. (a) Laeeration (bl Hand)
(b) Body Part:
II. Description of Aceident (To include location, aetion. result, ete.):
12. Treatment:
? First Aid OnJy
? Required Medieal 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 (909) 386-4843
Approved VP Law. January 3 ¡, 2001
Po." 7 nO
EXHIBIT "C-I"
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR IN CALIFORNIA
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
740 E. Carnegie Drive
San Bernardino CA. 9240R-3571
Attention: Manager Public Projects
Railway File: 026708L
Agency Project:
Gentlemen:
The undersigned, hereinafter referred to as Contractor, has entered into a Contract dated ,2003.
with the City of Tustin for the performance of certain work in connection with the project. in
the performance of which work the Contractor will necessarily be required to conduct operati~ns within THE
BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY ("Railway"), right of way and property
("Railway Property"). The Contract provides that no work shall be commenced within Railway Property until the
Contractor employed in connection with said work for City of Tustin shall have executed and delivered to Railway
an Agreement. in the form hereof, and shall have provided insurance of the coverage and limits specified in said
Contract and Section 2 of this Agreement. If this Agreement is executed by other than the Owner, General Partner.
President or Vice President of Contractor, evidence is furnished to you herewith certifying that the signatory is
empowered to execute this Agreement for the Contractor.
Accordingly. as one of the inducements to and as part of the consideration for Railway granting permission
to Contractor to enter upon Railway Property, Contractor, effective on the date of said Contract, has agreed and does
hereby agree with Railway as follows:
Section I. RELEASE OF LIABILITY AND INDEMNITY
Contractor agrees to release Railway from any claims arising from the performance of this Agreement
which Contractor or any of its employees, subcontractors, agents or invitees could otherwise assert against Railway,
regardless of the negligence of Railway. except to the extent that such claims are proximately caused by the willful
misconduct or sole negligence of Railway .
Contractor shall indemnify and hold harmless Railway for all judgments, awards, claims, demands, and
expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers
and employees, and for loss and damage to property belonging to any person, arising in any manner from
Contractor's or any of Contractor's subcontractors' acts or omissions or failure to perform any obligation hereunder.
THE LIABILITY ASSUMED BY CONTRACTOR SHALL NOT BE AFFECTED BY THE FACT, IF IT IS
A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR
CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERYANTS, EMPLOYEES
OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED
BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR SHALL INCLUDE
ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT, WHENEVER SO CLAIMED.
Approved VP Law April 17, 2000 Page 1 of 5
C-ICAA,'I7.'"
Contractor further agrees. at its expense, in the name and on behalf of Railway, that it shall adjust and settle
all claims made against Railway. and shall, at Railway's discretion, appear and defend any suits or actions oflaw or
in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner
connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to
be liable. Railway shall give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor shall proceed to adjust and handle to a conclusion such claims, and in the event of a suit being
brought against Railway, Railway may forward summons and complaint or other process in connection therewith to
Contractor, and Contractor, at Railway's discretion, shall defend, adjust, or settle such suits and protect, indemnify,
and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses
growing out of or resulting from or incident to any such claims or suits.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement shall survive any termination of this Agreement.
Section 2. INSURANCE
(a)
Before commencing any work under this Agreement, Contractor must provide and maintain in effect
throughout the term of this Agreement insurance, at Contractor's expense, covering all of the work and
services to be performed hereunder by Contractor and each of its subcontractors, as described below:
I) Workers' Compensation coverage as is required by State law. THE CERTIFICATE MUST
CONTAIN A SPECIFIC WAIVER OF THE INSURANCE COMPANY'S SUBROGATION
RIGHTS AGAINST THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY.
2) Commercial General Liability insurance covering liability, including but not limited to Public
Liability. Personal Injury, Property Damage and Contractual Liability covering the obligations
assumed by Contractor in Section I, with coverage of at least $2,000,000 per occurrence and
$6,000.000 in the aggregate. Where explosion, collapse, or underground hazards are involved, the X,
C. and U exclusions must be removed from the policy.
3) Automobile Liability insurance, including bodily injury and property damage, with coverage of at least
$1.000,000 combined single limit or the equivalent covering any and all vehicles owned or hired by the
Contractor and used in performing any of the services under this agreement.
4) Railroad Protective Liability insurance stating The Burlington Northern and Santa Fe Railway
Company is the Named Insured covering all of the liability assumed by the Contractor under the
provisions of this Agreement with coverage of at least $2,000,000 per occurrence and $6,000,000 in
the aggregate. Coverage shall be issued on a standard ISO fonn CG 00 35 01 96 and endorsed to
include ISO form CG 28 31 10 93 and the Limited Seepage and Pollution Endorsement (see attached
copy).
The average train traffic per 24-hour period on this route is I freight train(s) at a timetable speed of 10
MPH and 0 passenger trains at a timetable speed of 10 MPH.
All insurance shall be placed with insurance companies licensed to do business in the States in which
the work is to be perfonned, and with a current Best's Insurance Guide Rating of A- and Class VlI, or
better.
In all cases except Workers' Compensation and Railroad Protective Liability coverage the certificate
must specifically state that THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY IS AN ADDITIONAL INSURED.
Any coverage afforded Railway, the Certificate Holder, as an Additional Insured shall apply as
primary and not excess to any coverage issued in the name of Railway.
Approved VP Law April 17, 2000 Page 2 of 5
C-ICAA""."",
(b)
Such insurance shall be approved by the Railway before any work is performed on Railway's Property and
shall be carried until all work required to be performed on or adjacent to Railway's Property under the
terms of the contract is satisfactorily completed as determined by City of Tustin, and thereafter until all
tools, equipment and materials not belonging to the Railway, have been removed ITom Railway's Property
and Railway Property is left in a clean and presentable condition. The insurance herein required shall be
obtained by the Contractor and Contractor shall furnish Railway with an original certificate of insurance,
signed by the insurance company, or its authorized representative, evidencing the issuance of insurance
coverage as prescribed in (a) I. 2 and 3 above, plus the original Railroad Protective Liability insurance
policy to:
Attention:
Insurance Approvals
Engineering Services
The Burlington Northern and Santa Fe Railway Company
4515 Kansas Avenue
Kansas City, Kansas 66106
The certificate of insurance shall guarantee that the policies will not be amended, altered, modified or
canceled insofar as the coverage contemplated hereunder is concerned, without at least thirty (30) days
notice mailed by registered mail to Railway.
Full compensation for all premiums which the Contractor is required to pay on all the insurance described
hereinafter shall be considered as included in the prices paid for the various items of work to be performed
under the Contract. and no additional allowance will be made therefor or for additional premiums which
may be required by extensions of the policies of insurance.
It is further distinctly understood and agreed by the Contractor that its liability to the Railway herein under
Section I will not in any way be limited to or affected by the amount of insurance obtained and carried by
the Contractor in connection with said Contract.
The Railway file reference number and location information shown at the top of this Agreement,
must appear on any original insurance policies or certificates of insurance sent to Railway by the
Contractor,
Section 3. 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 subdivision of the specifications of said Contract, entitled EXHIBIT "C",
CONTRACTOR REQUIREMENTS, and shall include, but not be limited to, payment of all costs incurred for any
damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its
employees. representatives, or agents or subcontractors on or about the construction site.
Section 4. TRAIN DELAY
Contractor shall be responsible to Railway, including its affiliated railway companies, and its tenants for all
damages for any unscheduled delay to a freight or passenger train that affects Railway's ability to fully utilize its
equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided
below, for the economic losses arising from loss of use of equipment and train service employees contractual loss of
incentive pay and bonuses, and contractual penalties resulting from train delays, whether caused by Contractor, or
subcontractors, or by the Railway performing Railway Work. Railway agrees that it will not perform any act to
unnecessarily cause train delay.
For loss of use. Contractor will be billed per ITeight train hour at an average rate of ($385.33 in 1997\ with
annual adiustments) 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.
Approved VP Law April 17, 2000 Page 3 of 5
C-I CAA" ".doc
In addition to the above damages, passenger, U.S. mail trains and certain other grain, intermodal, coal and
freight trains operate under incentive/penalty contracts between Railway and its customer. Under these
arrangements, if Railway does not meet its contract service commitment, Railway may suffer loss of performance or
incentive payor be subject to a penalty payment. Contractor shall be responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor. or subcontractors.
As example. a train an-ives 30 minutes after its contract service commitments and Railway is assessed
damages per terms of the contract. Either Contractor, and/or subcontractors, caused a 29 minute delay to the train
and therefore are not responsible for any train performance and incentive penalties or other contractual economic
losses actually incun-ed by Railway.
As example, a train arrives 30 minutes after its contract service commitments and Railway is assessed
damages per terms of the contract. Either Contractor, and/or subcontractors, caused a 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 Railway.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
maximum extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains
could be as high as $50,000.00 per incident.
Contractor and subcontractors shaJJ plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains,
Kindly acknowledge receipt of this letter by signing and returning to the undersigned two original
copies of this letter, which, upon execution by Railway, shall constitute an Agreement between us,
Yours truly.
(Contractor)
The Burlington Northern and Santa Fe
Railway Company
By:
Name:
By:
Name:
Manager Public Projects
(Title)
Address
Accepted this _day of
2003
City:
State:_Zip:-
Approved VP Law April 17, 2000 Page 4 of 5
C.I CAA", 17."',
LIMITED SEEPAGE, POLLUTION AND CONTAMINATION COVERAGE ENDORSEMENT WORDING
In consideration of the premium charged it is understood and agreed that Exclusion f. of Coverage A. of this Policy
shall not apply to the liability of the Insured resulting from seepage and/or pollution and/or contamination caused
solely by:
I.
unintended fire, lightning or explosion: or
2.
a collision or overturning of a road vehicle: or
3.
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:
I.
1055 of, damage to or loss of use of property directly or indirectly resulting from sub-surface operations of
the Insured, and/or removal of. loss of or damage to sub-surface oil, gas or any other substance;
2.
any site or location used in whole or in part for the handling, processing, treatment, storage, disposal or
dumping of any waste materials or substances;
3.
the cost of evaluating and/or monitoring and/or controlling seeping and/or polluting and/or contaminating
substances;
4.
the cost of removing and/or nullifying and/or cleaning up seeping and/or polluting and lor contaminating
substances on property at any time owned and/or leased and/or rented by the insured and/or under the
control of the Insured.
Notwithstanding the foregoing, Item I does not apply to tunnels.
Approved VP Law April 17, 2000 Page 5 of 5
C-ICAA,'17.'"