HomeMy WebLinkAboutMOU with Exhibits E-1 through E-4MEMORANDUM OF UNDERSTANDING
BETWEEN SAN DIEGO ASSOCIATION OF GOVERNMENTS
AND NATIONAL CITY
REGARDING CONSTRUCTION AND MAINTENANCE FOR THE PORTIONS OF
BAYSHORE BIKEWAY SEGMENTS 4 & 5 WITHIN NATIONAL CITY
This Memorandum of Understanding ("MOU") is made and entered into effective as of
this 1 day of April , 2014 by and between the San Diego Association of
Governments ("SANDAG") and the City of National City, a municipal corporation
("NATIONAL CITY").
RECITALS
The following recitals are a substantive part of this Agreement:
WHEREAS, the Bayshore Bikeway is a 24-mile bike route that provides transportation
and recreational opportunities for pedestrians and bicyclists around San Diego Bay; and
WHEREAS, the San Diego Association of Governments (SANDAG) has taken a lead in
developing improvements to the Bikeway under the guidance of the Bayshore Bikeway Working
Group, which includes elected officials representing the cities of Chula Vista, Coronado,
Imperial Beach, National City and San Diego, the County of San Diego, and a member of the
San Diego Unified Port District Board of Port Commissioners, and the bicycling community, and
WHEREAS, under the guidance of the Bayshore Bikeway Working Group, SANDAG
developed and adopted a Bayshore Bikeway Plan in 2006 to determine how to complete the
Bayshore Bikeway as a continuous Class 1 bikeway around San Diego Bay in order to encourage
bicycling and walking around San Diego Bay as a means of access to the Bay and the
employment and recreational opportunities that the Bay provides; and
WHEREAS, SANDAG has obtained the environmental clearance, prepared the
construction drawings and obtained financing to construct Segments 4 and 5 of the Bayshore
Bikeway, which are in the cities of San Diego and NATIONAL CITY, as depicted in Exhibit E-
l; and
WHEREAS, SANDAG plans to design, advertise and award a construction contract to
construct Segments 4 and 5 of the Bayshore Bikeway in coordination with NATIONAL CITY;
and
WHEREAS, for the purpose of maintenance and operations, the term PROJECT shall
refer to those portions of Segments 4 and 5 of the Bayshore Bikeway within NATIONAL CITY
as depicted in Exhibit E-2, and as specifically defined by the as -built drawings for said segments
of the Bayshore Bikeway within NATIONAL CITY following submittal by the Engineer of
Record and acceptance by the City Engineer for the City of National City, excluding the
following:
C-70229 CA/PM (Rev 09)07)
(a) Any and all existing, new, modified and/or relocated equipment and facilities
owned by BNSF including, but not limited to, crossing signal equipment, crossing
signal control housing, crossing surfaces from end -of -tie to end -of -tie, conduit,
cable, relays and other materials required to preempt the highway traffic control
signals with the grade crossing warning devices, and railroad crossing warning
devices up to the contact terminals in the interface box;
(b) Any and all existing, new, modified and/or relocated utilities, equipment and
facilities owned by agencies other than NATIONAL CITY.
WHEREAS, NATIONAL CITY agrees to maintain the PROJECT as -built, until such
time the PROJECT is modified or reconstructed in a manner that substantially deviates from the
as -built drawings; and
WHEREAS, it is likely that NATIONAL CITY will utilize the services of contractors,
subcontractors, consultants, or other agents (collectively "CONTRACTORS") for maintenance
of the PROJECT; and
WHEREAS, the parties wish to memorialize their agreement in this MOU to carry out
the purposes set forth above.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties
agree as follows:
SANDAG AGREES:
1. To acquire 100% of the funding to environmentally clear, design and construct, but not be
responsible for any required or ongoing maintenance of, Segments 4 and 5 of the Bayshore
Bikeway.
2. To environmentally clear, prepare the construction drawings and obtain all of the approvals
to construct Segments 4 and 5 of the Bayshore Bikeway.
3. To provide NATIONAL CITY copies of the improvement plans, specifications and
railroad crossing agreements for NATIONAL CITY review and approval a minimum of 30
days prior to entering into a contract for construction of Segments 4 and 5 of the Bayshore
Bikeway.
4. To advertise, award and oversee a contract for the construction of Segments 4 and 5 of the
Bayshore Bikeway.
5. Neither NATIONAL CITY nor any employee or officer thereof is responsible for any
damage or liability occurring by reason of anything done or omitted to be done by
2 C-70229 CWPM (Rev 09;07)
SANDAG under or in connection with any work, authority or jurisdiction delegated to
SANDAG under this MOU. It is understood and agreed that, pursuant to Government Code
Section 895.4, SANDAG shall fully defend, indemnify and save harmless NATIONAL
CITY, all officers and employees from all claims, suits or actions of every name, kind and
description brought for or on account of injury (as defined in Government Code Section
810.8) occurring by reason of anything done or omitted to be done by SANDAG under or
in connection with any work, authority or jurisdiction delegated to SANDAG under this
MOU.
NATIONAL CITY AGREES:
6. To maintain at its expense the PROJECT and appurtenances constructed until such time the
PROJECT is modified or reconstructed in a manner that substantially deviates from the as -
built drawings. In performing its maintenance obligations, NATIONAL CITY, directly or
through its CONTRACTORS, shall notify BNSF Railway Company ("BNSF"), and shall
undertake such maintenance, pursuant to the terms defined below:
(a) Any future inspection or maintenance, either routine or otherwise, performed by
CONTRACTORS on behalf of NATIONAL CITY, shall require the
CONTRACTORS to comply with the provisions of the attached Exhibit E-3 and
execute the letter agreement attached hereto as Exhibit E-4.
(b) Prior to performing any future maintenance with its own personnel, NATIONAL
CITY shall: comply with all of BNSF's applicable safety rules and regulations;
require any NATIONAL CITY employee performing maintenance or other work
within the BNSF right of way to complete the safety training program at the
BNSF' s Internet Website "contractororientation.com' ; notify BNSF when,
pursuant to the requirements of Exhibit E-3, a flagger is required to be present;
procure, and have approved by BNSF's Risk Management Department, Railroad
Protective Liability insurance.
(c)
Any other terms of this Agreement relevant to ongoing maintenance work.
7. NATIONAL CITY shall require its employees and CONTRACTORS performing
maintenance or other work within the BNSF right of way to notify BNSF's Roadmaster at
least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the
requirements of Exhibit E-3 attached hereto. Additionally, NATIONAL CITY must
require its employees or CONTRACTORS performing maintenance or other work within
the BNSF right of way or within 25 feet of the centerline of any BNSF track to notify
BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work.
8. NATIONAL CITY must include the following provisions in any contract with its
CONTRACTORS performing maintenance or other work within the BNSF right of way:
(a) The CONTRACTOR is placed on notice that fiber optic, communication and
other cable lines and systems (collectively, the "Lines") owned by various
telecommunications companies may be buried on BNSF's property or right-of-
way. The locations of these Lines have been included on the plans based on
3 C-70229 CA'PM (Rev 09/07)
information from the telecommunications companies. The CONTRACTOR will
be responsible for contacting BNSF and the telecommunications companies and
notifying them of any work that may damage these Lines or facilities and/or
interfere with their service. The CONTRACTOR must also mark all Lines shown
on the plans or marked in the field in order to verify their locations. The
CONTRACTOR must also use all reasonable methods when working in the
BNSF right-of-way or on BNSF property to determine if any other Lines (fiber
optic, cable, communication or otherwise) may exist.
(b) Failure to mark or identify these Lines will be sufficient cause for BNSF to stop
construction within the BNSF right of way at no cost to any public entity or
BNSF until these items are completed.
(c) In addition to the liability terms contained elsewhere in this Agreement, the
CONTRACTOR hereby indemnifies, defends and holds harmless BNSF for, from
and against all cost, liability, and expense whatsoever (including, without
limitation, attorney's fees and court costs and expenses) arising out of or in any
way contributed to by any act or omission of CONTRACTOR, its subcontractors,
agents and/or employees that cause or in any way or degree contribute to (1) any
damage to or destruction of any Lines by CONTRACTOR, and/or its
subcontractors, agents and/or employees, on BNSF's property or within BNSF's
right-of-way, (2) any injury to or death of any person employed by or on behalf of
any telecommunications company, and/or its contractor, agents and/or employees,
on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause
of action for alleged loss of profits or revenue by, or loss of service by a customer
or user of such telecommunication company(ies). THE LIABILITY ASSUMED
BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A
FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE
OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO
BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES
OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
9. NATIONAL CITY shall complete reviews of copies of the improvement plans,
specifications and railroad crossing agreements submitted for NATIONAL CITY review
for the construction of Segments 4 and 5 of the Bayshore Bikeway within 21 days of
receipt.
10. Neither SANDAG nor any officer thereof is responsible for any damage or liability
occurring by reason of anything done or omitted to be done by NATIONAL CITY under or
in connection with any work, authority or jurisdiction delegated to NATIONAL CITY
under this MOU. It is understood and agreed that, pursuant to Government Code Section
895.4, NATIONAL CITY shall fully defend, indemnify and save harmless SANDAG, all
officers and employees from all claims, suits or actions of every name, kind and description
brought for or on account of injury (as defined in Government Code Section 810.8)
occurring by reason of anything done or omitted to be done by NATIONAL CITY under or
4 C-70229 CA/PM (Rev 09/07)
in connection with any work, authority or jurisdiction delegated to NATIONAL CITY
under this MOU.
The Parties Mutually Agree:
I. That all obligations of SANDAG under the terms of this MOU are subject to the
appropriation of the required resources by SANDAG and the approval of the SANDAG
Board of Directors.
2. Any notice required or permitted under this MOU may be personally served on the other
party, by the party giving notice, or may be served by certified mail, return receipt
requested, to the following addresses:
For SANDAG
401 B Street, Suite 800
San Diego, CA 92101
Attn: Dean Hiatt,
Bayshore Bikeway PM
For NATIONAL CITY
1243 National City Boulevard
National City, CA 91950
Attn: Stephen Manganiello,
Director of Public Works/City Engineer
3. That unless it is amended by the parties in writing, this MOU shall remain in force for so
long as the PROJECT improvements remain.
4. The indemnification provisions of this MOU shall survive any termination of the MOU.
5. This MOU shall be interpreted in accordance with the laws of the State of California. If any
action is brought to interpret or enforce any term of this MOU, the action shall be brought
in a state or federal court situated in the County of San Diego, State of California.
6. All terms, conditions, and provisions hereof shall inure to and shall bind each of the parties
hereto, and each of their respective heirs, executors, administrators, successors, and
assigns.
7. For purposes of this MOU, the relationship of the parties is that of independent entities and
not as agents of each other or as joint venturers or partners. The parties shall maintain sole
and exclusive control over their personnel, agents, consultants, and operations.
8. No alteration or variation of the terms of this MOU shall be valid unless made in writing
and signed by the parties hereto who shall be vested with the authority to effect such
amendment, and no oral understanding or agreement not incorporated herein shall be
binding on any of the parties hereto.
9. Nothing in the provisions of this MOU is intended to create duties or obligations to or
rights in third parties to this MOU or affect the legal liability of the parties to this MOU to
third parties.
5 C-70229 CA/PM (Rev 09[07)
10. This MOU may be executed in any number of identical counterparts, each of which shall
be deemed to be an original, and all of which together shall be deemed to be one and the
same instrument when each party has signed one such counterpart.
IN WITNESS WHEREOF, the Parties hereto have executed this MOU effective on the
day and year first above written.
SAN DIEGO ASSOCIATION OF CITY OF NATIONAL CITY
GOVERNMENTS
GARY L. GALLEGOS RON MORRISON
Executive Director Mayor
APPROVED AS TO FORM: APPROVED AS TO FORM:
Office of General Counsel CLAUDIA G. SILVA
City Attorney
6 C-70229 CAlPM (Rev 09/07)
EXHIBIT E-1
Begin Project
Atu;i+$i.
Legend
NAVAL BASE SAN DIEGO
CITY LIMITS
---- Mean High Tide Line
Navy Right of Way
Bike Path Owner
City of National City
City of San Diego
Unified Port of San Diego
Elornarbry
School
A G,tl"yt
National
onal
>_. Ci t
End Project
BAYSHORE BIKEWAY SEGMENTS 4 & 5 VICINITY MAP
L0
TYLIN INTERNATIONAL
Date: 3/17/2014
NAVAL BASE
SAN DIEGO
UNIFIED PORT
OF SAN DIEGO
EXHIBIT E-2
CITY OF
NATIONAL CITY
ti
Gr9'Rd!G C•t
r rv.�i;�eona F
Legend
Naval Base San Diego
EDCity Limits
—�-- Mean High Tide Line
Navy Right of Way
Bike Path Owner
.. City of National City
---- City of San Diego
Unified Port of San Diego
BAYSHORE BIKEWAY SEGMENTS 4 &
NATIONAL CITY JURISDICTION MAP
TY LIN INTERNATIONAL
Date: 3/17/2014
EXHIBIT "E-3"
CONTRACTOR REQUIREMENTS
Bayshore Bikeway Maintenance within BNSF Railway Property crossing Tidelands
Avenue at W. 19th Street and W. 8th Street at Harbor Drive in National City, CA
1.01 General
• 1.01.01 The Contractor for the City of National City ("City") must cooperate with BNSF
RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under
on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway
Property", as part of the following project: Bayshore Bikeway Maintenance within BNSF
Railway Property crossing Tidelands Avenue at W. 19th Street and W. 8th Street at Harbor
Drive in National City, CA.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the
Exhibit E-4 Agreement, in the form attached hereto, obligating the Contractor to provide and
maintain in full force and effect the insurance called for under Section 3 of said Exhibit E-4.
Questions regarding procurement of the Railroad Protective Liability Insurance should be
directed to Rosa Martinez at Marsh, USA, 214-303-8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to
interfere with the movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right
of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of
Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or
operations. Railway will have the right to stop construction work on the Project if any of the
following events take place: (i) Contractor (or any of its subcontractors) performs the Project
work in a manner contrary to the plans and specifications approved by Railway; (ii)
Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work
in a manner which is hazardous to Railway property, facilities or the safe and expeditious
movement of railroad traffic; (iii) the insurance described in the attached Exhibit E-4 is
canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the
Temporary Construction License or the Easement. The work stoppage will continue until all
necessary actions are taken by Contractor or its subcontractor to rectify the situation to the
satisfaction of Railway's Division Engineer or until additional insurance has been delivered
to and accepted by Railway. In the event of a breach of (i) the Exhibit E-4 Agreement, (ii)
the Temporary Construction License, or (iii) the Easement, Railway may immediately
terminate the Temporary Construction License or the Easement. Any such work stoppage
under this provision will not give rise to any liability on the part of Railway. Railway's right
to stop the work is in addition to any other rights Railway may have including, but not
limited to, actions or suits for damages or lost profits. In the event that Railway desires to
stop construction work on the Project, Railway agrees to immediately notify the following
individual in writing:
Page 1 of 11
Stephen Manganiello
Director of Public Works/City Engineer
City of National City
Department of Engineering & Public Works
1243 National City Boulevard
National City, CA 91950
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State
and Local Governmental laws and regulations, including, but not limited to environmental
laws and regulations (including but not limited to the Resource Conservation and Recovery
Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor
hereby indemnifies, defends and holds harmless Railway for, from and against all fines or
penalties imposed or assessed by Federal, State and Local Governmental Agencies against
the Railway which arise out of Contractor's work under the Exhibit E-4 Agreement.
• 1.01.06 The Contractor must notify Stephen Manganiello, hereinafter referred to as ("City")
and Railway's Manager of Public Projects, telephone number 909-386-4472 at least thirty
(30) calendar days before commencing any work on Railway Property. Contractor's
notification to Railway must refer to Railway's file BFI000
• 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations
located with any part of the excavations located within, whichever is greater, twenty-five
(25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2
horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest
track, both measured perpendicular to center line of track, the Contractor must furnish the
Railway five sets of working drawings showing details of construction affecting Railway
Property and tracks. The working drawing must include the proposed method of installation
and removal of falsework, shoring or cribbing, not included in the contract plans and two sets
of structural calculations of any falsework, shoring or cribbing. For all excavation and
shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must
be used for determining the design loading conditions to be used in shoring design, and all
calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines
for Temporary Shoring". All submittal drawings and calculations must be stamped by a
registered professional engineer licensed to practice in the state the project is located. All
calculations must take into consideration railway surcharge loading and must be designed to
meet American Railway Engineering and Maintenance -of -Way Association (previously
known as American Railway Engineering Association) Coopers E-80 live loading standard.
All drawings and calculations must be stamped by a registered professional engineer licensed
to practice in the state the project is located. The Contractor must not begin work until
notified by the Railway that plans have been approved. The Contractor will be required to
use lifting devices such as, cranes and/or winches to place or to remove any falsework over
Railway's tracks. In no case will the Contractor be relieved of responsibility for results
obtained by the implementation of said approved plans.
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the
Contractor such that the work may be handled and performed in an efficient manner. The
Contractor will have no claim whatsoever for any type of damages or for extra or additional
compensation in the event his work is delayed by the Railway.
Page 2 of 11
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter
Railway Property without first having completed Railway's Engineering Contractor
Safety Orientation, found on the web site www.contractororientation.com. The
Contractor must ensure that each of its employees, subcontractors, agents or invitees
completes Railway's Engineering Contractor Safety Orientation through Internet
sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees
possesses a card certifying completion of the Railway Contractor Safety Orientation
before entering Railway Property. The Contractor is responsible for the cost of the
Railway Contractor Safety Orientation. The Contractor must renew the Railway
Contractor Safety Orientation annually. Further clarification can be found on the web
site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway
facilities, including track ballast, free of sand, debris, and other foreign objects and materials
resulting from his operations. Any damage to railway facilities resulting from Contractor's
operations will be repaired or replaced by Railway and the cost of such repairs or
replacement must be paid for by Contractor.
• 1.03.02 The Contractor must notify the Railway's Division Engineer at 909-386-4504 and
provide blasting plans to the Railway for•review seven (7) calendar days prior to conducting
any blasting operations adjacent to or on Railway's Property.
• 1.03.03 The Contractor must abide by the following temporary clearances during
construction:
• 15'-0" Horizontally from centerline of nearest track
• 21'-6" Vertically above top of rail
• 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
• 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
• 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
• 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
• 1.03.04 Upon completion of construction, the following clearances shall be maintained:
• 25'
• 24.5'
Horizontally from centerline of nearest track
Vertically above top of rail
• 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations
must be submitted to the Railway and to the City and must not be undertaken until approved
in writing by the Railway, and until the City 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.
Page 3 of I1
• 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the
option of installing tell -tales or other protective devices Railway deems necessary for
protection of Railway operations. The cost of tell -tales or protective devices will be borne by
the Contractor.
• 1.03.07 The details of construction affecting the Railway's Property and tracks not included
in the contract plans must be submitted to the Railway by the Contractor for approval before
work is undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.08 At other than public road crossings, the Contractor must not move any equipment or
materials across Railway's tracks until permission has been obtained from the Railway. The
Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway
prior to moving his equipment or materials across the Railways tracks. The temporary
crossing must be gated and locked at all times when not required for use by the Contractor.
The temporary crossing for use of the Contractor will be constructed and, at the completion
of the project, removed at the expense of the Contractor.
• 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil,
petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and
Contractor must immediately notify the Railway's Resource Operations Center at 1(800)
832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor
must not allow Railway Property to become a treatment, storage or transfer facility as those
terms are defined in the Resource Conservation and Recovery Act or any state analogue.
• 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly
remove from the Railway's Property all of Contractor's tools, equipment, implements and
other materials, whether brought upon said property by said Contractor or any Subcontractor,
employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property
to be left in a condition acceptable to the Railway's representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track
must develop and implement a Roadway Worker Protection/On Track Safety Program and
work with Railway Project Representative to develop an on track safety strategy as described
in the guidelines listed in the on track safety portion of the Safety Orientation. This Program
must provide Roadway Worker protection/on track training for all employees of the
Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site
through job safety briefings. Additionally, each Contractor must develop and implement the
Safety Action Plan, as provided for on the web site www.contractororientation.com, which
will be made available to Railway prior to commencement of any work on Railway Property.
During the performance of work, the Contractor must audit its work activities. The
Contractor must designate an on -site Project Supervisor who will serve as the contact person
for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
1.05 Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster (telephone 909-386-4061) a
minimum of thirty (30) calendar days advance notice when flagging services will be required
Page 4 of 11
so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's
position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary, the
Contractor must give the Roadmaster five (5) working days advance notice so that
appropriate arrangements can be made to abolish the position pursuant to union
requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway
flagger will be required and furnished when Contractor's work activities are located over,
under and/or within twenty-five (25) feet measured horizontally from centerline of the
nearest track and when cranes or similar equipment positioned beyond 25-feet from the
track centerline could foul the track in the event of tip over or other catastrophic occurrence,
but not limited thereto for the following conditions:
• 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the
opinion of Railway's representative, track or other Railway facilities may be subject to
movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at timetable
speeds.
• 1.05.02d When any hazard is presented to Railway track, communications, signal,
electrical, or other facilities either due to persons, material, equipment or blasting in the
vicinity.
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or
cumbersome objects or equipment which might result in making the track impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However, additional
personnel may be required to protect Railway Property and operations, if deemed necessary
by the Railways Representative.
• 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8)
hour basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by the
Contractor. The estimated cost for one (1) flagger is approximately between $800.00-
$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime,
rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid
holidays, Railway and unemployment insurance, public liability and property damage
insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio,
equipment, supervision and other costs incidental to performing flagging services.
Negotiations for Railway labor or collective bargaining agreements and rate changes
authorized by appropriate Federal authorities may increase actual or estimated flagging rates.
THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE
CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL
Page 5 of 11
COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where
movement of trains and equipment can occur at any time and in any direction. All work
performed by contractors within 25 feet of any track must be in compliance with FRA
Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing
must be conducted with all personnel involved with the task and repeated when the personnel
or task changes. If the task is within 25 feet of any track, the job briefing must include the
Railway's flagger, as applicable, and include the procedures the Contractor will use to protect
its employees, subcontractors, agents or invitees from moving any equipment adjacent to or
across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on
track safety strategy approved by the Railway's Project Representative. When authority is
provided, every contractor employee must know: (1) who the Railway flagger is, and how to
contact the flagger, (2) limits of the authority, (3) the method of communication to stop and
resume work, and (4) location of the designated places of safety. Persons or equipment
entering flag/work limits that were not previously job briefed, must notify the flagger
immediately, and be given a job briefing when working within 25 feet of the center line of
track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after
normal working hours or on weekends, the Railway's representative in charge of the project
must be notified. A minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under
suspicion of being under the influence of drugs or alcohol, or in the possession of same, will
be removed from the Railway's Property and subsequently released to the custody of a
representative of Contractor management. Future access to the Railway's Property by that
employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be
reported immediately to the Railway's representative in charge of the project. Any vehicle or
machine which may come in contact with track, signal equipment, or structure (bridge) and
could result in a train derailment must be reported immediately to the Railway representative
in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452.
Local emergency numbers are to be obtained from the Railway representative in charge of
the project prior to the start of any work and must be posted at the job site.
• 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms
or other deadly weapons in their possession while working on Railway's Property.
• 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet
applicable OSHA and ANSI specifications. Current Railway personnel protective equipment
requirements are listed on the web site, www.contractororientation.com, however, a partial
list of the requirements include: a) safety glasses with permanently affixed side shields (no
Page 6 of 11
yellow lenses); b) hard hats c) safety shoe with: hardened toes, above -the -ankle lace -up and a
defined heel; and d) high visibility retro-reflective work wear. The Railway's representative
in charge of the project is to be contacted regarding local specifications for meeting
requirements relating to hi -visibility work wear. Hearing protection, fall protection, gloves,
and respirators must be worn as required by State and Federal regulations. (NOTE — Should
there be a discrepancy between the information contained on the web site and the
information in this paragraph, the web site will govern.)
• 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS,
MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE
OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR
EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY
HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY CONSTRUCTION
CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW
OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK,
THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH
CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked
machines or equipment must be in gear with brakes set and if equipped with blade, pan or
bucket, they must be lowered to the ground. All machinery and equipment left unattended on
Railway's Property must be left inoperable and secured against movement. (See internet
Engineering Contractor Safety Orientation program for more detailed specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would
interfere with water drainage. Any work performed over water must meet all Federal, State
and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless
informed to the contrary by proper authority. For all power lines the minimum clearance
between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet;
200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000
KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be
maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired
clearance by visual means.
1.07 Excavation:
• 1.07.01 Before excavating, the Contractor must determine whether any underground pipe
lines, electric wires, or cables, including fiber optic cable systems are present and located
within the Project work area. The Contractor must determine whether excavation on
Railway's Property could cause damage to buried cables resulting in delay to Railway traffic
and disruption of service to users. Delays and disruptions to service may cause business
interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact BNSF's Field Engineering Representative (909-386-4079). All
underground and overhead wires will be considered HIGH VOLTAGE and dangerous until
verified with the company having ownership of the line.
It is the Contractor's responsibility to notify any other companies that have
Page 7 of 11
underground utilities in the area and arrange for the location of all underground
utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before
continuing excavation in the area if obstructions are encountered which do not appear on
drawings. If the obstruction is a utility and the owner of the utility can be identified, then the
Contractor must also notify the owner immediately. If there is any doubt about the location
of underground cables or lines of any kind, no work must be performed until the exact
location has been determined. There will be no exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA
regulations and, regardless of depth, must be shored where there is any danger to tracks,
structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered,
guarded and/or protected when not being worked on. When leaving work site areas at night
and over weekends, the areas must be secured and left in a condition that will ensure that
Railway employees and other personnel who may be working or passing through the area are
protected from all hazards. All excavations must be back filled as soon as possible.
1.08 Hazardous Waste, Substances and Material Reporting:
• 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or
other deleterious material, including but not limited to any non -containerized commodity or
material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands
or waterways, while performing any work under the Exhibit E-4 Agreement, Contractor must
immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of
such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking
of any appropriate measure to minimize the impact of such release.
Page 8 0E 11
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance with
Federal Railroad Administration (FRA) reporting requirements. Any personal injury
sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on
the Railway's Property must be reported immediately (by phone mail if unable to contact in
person) to the Railway's representative in charge of the project. The Non -Employee Personal
Injury Data Collection Form contained herein is to be completed and sent by Fax to the
Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the
close of shift on the date of the injury.
Page 9of11
SIVSI�
RAIL kV. r NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile
accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that
injuries relate to that specific event.)
Injured Person Type:
Passenger on train (C)
Contractor/safety sensitive (F)
Non -employee (N)
Oa, emp ofanother railroad or, ncn-BNSFcmp im'o/vedln vehicle accident,, /nciiBfng
company vehicles)
Contractor/non-safety sensitive (G)
nVolunteer/safety sensitive (H) ` Volunteer/other non -safety sensitive (I)
Non -trespasser (D) - to include highway users involved in highway rail grade crossing accidents who did not
go around or through gates
Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went
around or through gates
Non -trespasser (J) - Off Railway Property
If train involved, Train ID:
Transmit attached information to Accident/Incident Reporting Center by:
Fax I-B17-352-7595 or by Phone I-80D-B97-B730 or email to: Accident-Reportinq.CenterLBNSF,com
Officer Providing Information:
(Name)
(Employee No.) (Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REDUIREMENTS AND PROTECTED FROM
DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
Page 10 of I l
NON -EMPLOYEE PERSONAL INJURY OATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TC FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NDT
INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABIITY
I. Accident City/St: 2: Date: Time::
County: 3.Temperature: 4. Weather:
(if non BNSF location)
Mile Post / Line Segment
5. Driver's License No. (and state) or other ID: SSN(required):
6. Name (last. first, mi):
7. Address: City: St: Zip:
B Date of Birth: and/or Age: Gender:
(If available)
Phone Humber. Employer.
B. Injury: ID. Body Part:
(i.e. laceration, etc.) (i.e. Hand, etc.)
11. Description of Accident (To include location, action, result, etc.)
12. Treatment:
❑ First Aid Only
❑ Required Medical Treatment
❑ Other Medical Treatment
13. Dr. Name: Date:
14: Dr. Address:
Street; City: St: Zip:
15: Hospital tame:
18: Hospital Address:
Street: City: St: Zip:
17: Diagnosis:
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPDRTIINO REQUIREMENTS
AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
Page 11 of 11
EXHIBIT "E-4"
Agreement
Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR FOR BIKEWAY MAINTENANCE
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: BF1000
Bayshore Bikeway Maintenance within BNSF Railway Property crossing Tidelands
Avenue at W. 19th Street and W. 8th Street at Harbor Drive in National City, CA
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the
"Contract") dated , 20 with the CITY of NATIONAL CITY ("CITY") for
the performance of certain work in connection with the following project: Bayshore Bikeway
Maintenance within BNSF Railway Property crossing Tidelands Avenue at W. 19th Street and
W. 8th Street at Harbor Drive in National City, CA.
Performance of such work will necessarily require Contractor to enter BNSF RAILWAY
COMPANY ("Railway") right of way and property ("Railway Property"). The Contract
provides that no work will be commenced within Railway Property until the Contractor
employed in connection with said work for CITY (i) executes and delivers to Railway an
Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in
such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the
Owner, General Partner, President or Vice President of Contractor, Contractor must furnish
evidence to Railway certifying that the signatory is empowered to execute this Agreement on
behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date of the
Contract, has agreed and does hereby agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for
all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or
death to all persons, including Railway's and Contractor's officers and employees, and for loss
and damage to property belonging to any person, arising in any manner from Contractor's or any
of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's
Property. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED
BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH,
OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE
OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT
Exhibit E-4
Bayshore Bikeway
Page 1 of 8
TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE
WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR
INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY
UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR
STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE
LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it
will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear
and defend any suits or actions of law or in equity brought against Railway on any claim or cause
of action arising or growing out of or in any manner connected with any liability assumed by
Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway
will give notice to Contractor, in writing, of the receipt or dependency of such claims and
thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the
event of a suit being brought against Railway, Railway may forward summons and complaint or
other process in connection therewith to Contractor, and Contractor, at Railway's discretion,
must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from
and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of
or resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion
of this Article shall be deemed to be inapplicable for any reason, including without limitation as
a result of a decision of an applicable court, legislative enactment or regulatory order, the parties
agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the
fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES
EXPRESSLY INTEND FOR CON TRACTOR TO INDEMNIFY RAILWAY FOR
RAILWAY'S ACTS OF NEGLIGENCE.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the
project set forth herein, and (ii) full and complete payment to Railway of any and all sums or
other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $2,000,000 each
occurrence and an aggregate limit of at least $6,000,000 but in no event less than the
amount otherwise carried by the Contractor. Coverage must be purchased on a post
Exhibit E-4
Bayshore Bikeway
Paget of 8
2004 ISO occurrence form or equivalent and include coverage for, but not limit to the
following:
• Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated
on the certificate of insurance:
♦ The definition of insured contract shall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
♦ Waver of subrogation in favor of and acceptable to Railway.
• Additional insured endorsement in favor of and acceptable to Railway.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
It is agreed that the workers' compensation and employers' liability related
exclusions in the Commercial General Liability insurance policy(s) required herein
are intended to apply to employees of the policy holder and shall not apply to
Railway employees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being performed
under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined single limit
of at least $1,000,000 per occurrence, and include coverage for, but not limited to the
following:
♦ Bodily injury and property damage
• Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railway.
• Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
• The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
C. Workers Compensation and Employers Liability insurance including coverage for,
but not limited to:
Exhibit E-4
Bayshore Bikeway
Page 3 of 8
• Contractor's statutory liability under the worker's compensation laws of the
state(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railway.
D. Railroad Protective Liability insurance naming only the Railway as the Insured with
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The
policy Must be issued on a standard ISO form CG 00 35 12 04 and include the
following:
• Endorsed to include the Pollution Exclusion Amendment
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to remove any exclusion for punitive damages.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to the Railway prior to performing any
work or services under this Agreement
• Definition of "Physical Damage to Property" shall be endorsed to read:
"means direct and accidental loss of or damage to all property owned by any
named insured and all property in any named insured' care, custody, and
control arising out of the acts or omissions of the contractor named on the
Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available)
in Railway's Blanket Railroad Protective Liability Insurance Policy.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
Contractor agrees to waive its right of recovery against Railway for all claims and suits
against Railway. In addition, its insurers, through the terms of the policy or policy endorsement,
waive their right of subrogation against Railway for all claims and suits. Contractor further
waives its right of recovery, and its insurers also waive their right of subrogation against Railway
for loss of its owned or leased property or property under Contractor's care, custody, or control.
Allocated Loss Expense shall be in addition to all policy limits for coverages referenced
above.
Contractor is not allowed to self -insure without the prior written consent of Railway. If
granted by Railway, self -insured retention or other financial responsibility for claims shall be
covered directly by Contractor in lieu of insurance. Any and all Railway liabilities that would
Exhibit E-4
Bayshore Bikeway
Page 4 of 8
otherwise, in accordance with the provisions of this Agreement, be covered by Contractor's
insurance will be covered as if Contractor elected not to include a deductible, self -insured
retention or other financial responsibility for claims.
Prior to commencing the Work, Contractor shall furnish to Railway an acceptable
certificate(s) of insurance from an authorized representative evidencing the required coverage(s),
endorsements, and amendments. The certificate should be directed to the following addresses:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: BNSF@certfocus.com
www.certfocus.com
Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non -
renewal, substitution, or material alteration.
Any insurance policy must be written by a reputable insurance company acceptable to
Railway or with a current Best's Guide Rating of A- and Class VII or better, and authorized to
do business in the state(s) in which the service is to be provide.
If coverage is purchased on a "claims made" basis, Contractor hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation or termination of
this contract. Annually, Contractor agrees to provide evidence of such coverage as required
hereunder.
Contractor represents that this Agreement has been thoroughly reviewed by Contractor's
insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance
coverage required by this Agreement.
Not more frequently than once every five years, Railway may reasonably modify the
required insurance coverage to reflect then -current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Contractor, Contractor shall
require that the subcontractor shall provide and maintain the insurance coverage(s) set forth
herein, naming Railway as an additional insured, and shall require that the subcontractor shall
release, defend, and indemnify Railway to the same extent and under the same terms and
conditions as Contractor is required to release, defend, and indemnify Railway herein.
Failure to provide evidence as required by this section shall entitle, but not require,
Railway to terminate this Agreement immediately. Acceptance of a certificate that does not
comply with this section shall not operate as a waiver of Contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Contractor shall not be deemed to release or diminish the liability of Contractor including,
Exhibit E-4
Bayshore Bikeway
Page 5 of 8
without limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Railway shall not be limited by the amount of the required insurance coverage.
In the event of a claim or lawsuit involving Railway arising out of this agreement,
Contractor will make available any required policy covering such claim or lawsuit.
These insurance provisions are intended to be a separate and distinct obligation on the
part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be
bound thereby regardless of whether or not indemnity provisions are determined to be
enforceable in the jurisdiction in which the work covered hereunder is performed.
For purposes of this section, Railway means `Burlington Northern Santa Fe LLC",
"BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements
and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit
"C" attached to the Contract and this Agreement, , including, but not be limited to, payment of
all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto,
resulting from use, occupancy, or presence of its employees, representatives, or agents or
subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and against all damages
arising from any unscheduled delay to a freight or passenger train which affects Railway's ability
to fully utilize its equipment and to meet customer service and contract obligations. Contractor
will be billed, as further provided below, for the economic losses arising from loss of use of
equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from
train delays, whether caused by Contractor, or subcontractors, or by the Railway performing
work under this Agreement. Railway agrees that it will not perform any act to unnecessarily
cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate
per train as determined from Railway's records. Any disruption to train traffic may cause delays
to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other
grain, intermodal, coal and freight trains operate under incentive/penalty contracts between
Railway and its customer(s). Under these arrangements, if Railway does not meet its contract
service commitments, Railway may suffer loss of performance or incentive pay and/or be subject
to penalty payments. Contractor is responsible for any train performance and incentive penalties
or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
Exhibit E-4
Bayshore Bikeway
Page 6 of 8
The contractual relationship between Railway and its customers is proprietary and
confidential. In the event of a train delay covered by this Agreement, Railway will share
information relevant to any train delay to the extent consistent with Railway confidentiality
obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE
THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR
HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN
DELAY PURSUANT TO THIS AGREEMENT.
Contractor and its subcontractors must give Railway's representative (BNSF
Project Engineer, 909-386-4079) four (4) weeks advance notice of the times and dates for
proposed work windows. Railway and Contractor will establish mutually agreeable work
windows for the project. Railway has the right at any time to revise or change the work
windows due to train operations or service obligations. Railway will not be responsible for
any additional costs or expenses resulting from a change in work windows. Additional
costs or expenses resulting from a change in work windows shall be accounted for in
Contractor's expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor's work so as to not cause any delays to any trains.
Exhibit E-4
Bayshore Bikeway
Page 7 of 8
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original
copies of this letter, which, upon execution by Railway, will constitute an Agreement between
us.
Contractor BNSF Railway Company
By: By:
Printed Name:
Title:
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E-mail:
Name:
Manager Public Projects
Accepted and effective this day of 20_,
Exhibit E-4
Bayshore Bikeway
Page 8 of 8