Resolution No. 8519y
� f
1 RESOLUTION NO. 8519
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 VERNON APPROVING AND AUTHORIZING THE EXECUTION OF
AGREEMENTS FOR THE INSTALLATION OF FULL DEPTH
4 CONCRETE CROSSING SURFACE MATERIAL ON 37TH AND 38TH
STREETS BY AND BETWEEN THE CITY OF VERNON AND THE
5 BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
6
7 WHEREAS, the Burlington Northern and Santa Fe Railway
8 Company (the "BNSF Railroad") operates railroad lines and spur tracks
9 which cross 37th Street and 38th Street, public streets in the City of
10 Vernon; and
11 WHEREAS, on April 21, 2004, the City Council of the City of-
12 Vernon adopted Resolution No. 8432 approving railroad crossing
13 agreements for 38th Street and Vernon Avenue; and
14 WHEREAS, after the City signed the 38th Street railroad
15 crossing agreement, but prior to the agreement being signed by BNSF
16 Railroad, BNSF Railroad advised the City that the cost estimates for
17 the work were inadequate and that track crossings for both 37th Street
18 and 38th Street needed to be replaced for a total cost of Eighty -Eight
19 Thousand Two Hundred Twenty -Six Dollars and No Cents ($88,226.00); and
20 WHEREAS, based upon the poor condition of the railroad
21 crossings at 37th and 38th Streets and the inability of BNSF Railroad
22 to fulfill its prior contractual obligation for the original cost
23 estimate of Twenty -Nine Thousand Four Hundred Ninety -Four Dollars and
24 No Cents ($29,494.00), the City Council of the City of Vernon believes
25 it to be in the best interests of the City to rescind its approval of
26 the prior 38th Street railroad crossing agreement; and
27 WHEREAS, the City of Vernon and BNSF Railroad desire to
28 enter into an "Agreement for the Installation of Full Depth Concrete
1 Crossing Surface Material on the Burlington Northern and Santa Fe
2 Railway Company on 37th Street, DOT #027914C at City of Vernon, MP
3 .70," (hereinafter referred to as the "37th Street Crossing
4 Agreement") to provide for the reconstruction of grade crossing
5 surfaces at 37th Street and approaches for a materials fee of Forty-
6 Four Thousand One Hundred Thirteen Dollars and No Cents ($44,113.00);
7 and
8 WHEREAS, the City of Vernon and BNSF Railroad desire to
9 enter into an "Agreement for the Installation of Full Depth Concrete
10 Crossing Surface Material on the Burlington Northern and Santa Fe
11 Railway Company on 38th Street, DOT #027915J at City of Vernon, MP
12 .71," (hereinafter referred to as the "38th Street Crossing
13 Agreement") to provide for the reconstruction of grade crossing
14 surfaces and approaches at 38th Street for a materials fee of Forty-
15 Four Thousand One Hundred Thirteen Dollars and No Cents ($44,113.00);
16 and
17 WHEREAS, the grade crossing improvements on 37th Street and
18 38th Street are collectively referred to herein as the "Grade Crossing
19 Projects"; and
20 WHEREAS, as a condition to the 37th Street Crossing
21 Agreement and the 38th Street Crossing Agreement, the City of Vernon
22 will be required to provide traffic control, close streets and
23 maintain a detour for the Grade Crossing Projects; and
24 WHEREAS, on March 3, 2004, the City Council of the City of
25 Vernon adopted Resolution No. 8387, which approved Contract No. 570
26 and invited notice for sealed bids or proposals for Bandini Boulevard,
27 Leonis Boulevard, 37th Street and 38th Street Improvements; and
28 WHEREAS, the contractor awarded the bid for Contract No. 570
- 2 -
e
1 shall provide traffic control for the Grade Crossing Projects and work
2 with the BNSF Railroad to complete the improvements; and
3 WHEREAS, the City needs to inform the contractor, who will
4 be awarded Contract No. 570, of the BNSF Railroad requirements as set
5 forth in Exhibit "C" of the 37th Street Crossing Agreement and the 38th
6 Street Crossing Agreement and the need to execute an agreement with
7 BNSF Railroad for the performance of the improvements and the
8 provision for insurance requirements, a sample form of which is
9 attached to the 37th Street Crossing Agreement and the 38th Street
10 Crossing Agreement as Exhibit "C-1;" and
11 WHEREAS, by letter dated August 12, 2004, Bruce V.
12 Malkenhorst, City Administrator/City Clerk, recommended that the two
13 letter agreements with BNSF Railroad for the Grade Crossing Projects
14 be approved and executed and that the previously approved 38th Street
15 Crossing Agreement be rescinded.
16 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
17 CITY OF VERNON AS FOLLOWS:
18 SECTION 1: The City Council of the City of Vernon hereby
19 finds and determines that the recitals contained hereinabove are true
20 and correct.
21 SECTION 2: The City Council of the City of Vernon hereby
22 rescinds the "Agreement for the Installation of Full Depth Concrete
23 Crossing Surface Material on the Burlington Northern and Santa Fe
24 Railway Company on 38th Street, DOT #027915J at City of Vernon, MP.71"
25 approved by Resolution No. 8432 on April 21, 2004. It is the intent
26 of the City Council that the 38th Street Crossing Agreement with BNSF
27 Railroad that is attached hereto shall supersede the previously
28 approved Agreement.
- 3 -
. 0 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
261
27',
28
SECTION 3: The City Council of the City of Vernon hereby
approves the 37th Street Crossing Agreement and the 38th Street
Crossing Agreement, copies of which are attached hereto as Exhibits A
and B, respectively, and incorporated by reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute the 37th Street
Crossing Agreement and the 38th Street Crossing Agreement for, and on
behalf of, the City of Vernon.
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send the executed
duplicate originals of the 37th Street Crossing Agreement and the 38th
Street Crossing Agreement, along with a copy of this Resolution to:
Burlington Northern and Santa Fe Railway Company
Attn. John Shurson, Assistant Director Public Projects
740 E. Carnegie Drive
San Bernardino, CA 92408-3571
SECTION 5: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 18th day of August, 2004.
ATTEST:
BRUCE V. MALKENHORST, City Clerk
�LEONIS C. MALIBURG, Mayor
- 4 -
! y'
1 STATE OF CALIFORNIA )
ss
2 COUNTY OF LOS ANGELES )
3
4 I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
5 hereby certify that the foregoing Resolution, being Resolution No.
6 8519, was duly adopted by the City Council of the City of Vernon at a
7 regular meeting of the City Council duly held on Wednesday, August 18,
8 2004, and thereafter was duly signed by the Mayor of the City of
9 Vernon.
10 V
BRUCE V. MALKENHORST, City Clerk
11
12 (SEAL)
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 5 -
EXHIBIT
0
AGREEMENT FOR THE INSTALLATION OF
FULL DEPTH CONCRETE CROSSING SURFACE MATERIAL ON
THE BURLINTON NORTHERN AND SANTA FE RAILWAY COMPANY
ON 37'h STREET, DOT # 027914C AT CITY OF VERNON, MP .70
This is a letter agreement wherein The Burlington Northern and Santa Fe Railway Company,
hereinafter called Company, agrees that the existing crossing surface at 38t Street is to be
removed and new full depth concrete crossing surface to be installed to a crossing surface length
of 56ft. per track, for a total crossing surface length of 112ft. To accomplish this work, the
City of Vernon, hereinafter called Agency, and the Company, agree as follows:
♦ 1) The work will be performed at the expense of the Company. Said work will consist of
the installation of concrete crossing surface material including upgrades to the track to
accommodate new concrete crossing surface material, to adequately include all vehicular driving
lanes.
♦ 2) The Agency will pay the Company $393.87 per foot for the total crossing surface
length for work described above for a total cost of $ 44,113.
♦ 3) The Company will order the concrete crossing surface material from a qualified
supplier and after receipt of the material, the Agency will be billed on basis of Paragraph 2
above.
♦ 4) The Company, at its own cost and expense, will maintain the crossing surface in a
satisfactory manner and will make ample provisions for such maintenance, provided, however,
that the Company shall be entitled to receive any contribution toward the cost of such
maintenance as may be now or hereafter made available by reason of any law, ordinance,
regulation, order, grant, or by other means or sources.
♦ 5) The Agency, at its own cost and expense, will provide all barricades, lights, flagmen or
traffic control devices necessary for detouring vehicular traffic at the crossing, during
construction of the crossing involved.
♦ 6) The Agency further agrees to allow the Company to drain the crossing area into
existing Agency storm sewers, if available, near the crossing. The drain pipes and filter fabric
will be famished and installed by the Company.
♦ 7) The Agency, further agrees to furnish and place, at their expense, asphalt between the
saw cut in the existing roadway surface and the new concrete crossing surface, plus the area
between the tracks if there is more than one track.
♦ 8) The Agency agents or contractors to obtain Insurance as specified on Exhibit — "C-1"
prior to the Agency, or its agents or contractors performing any construction work on the
Company's property. Flagman shall be required when working within 25' of the track as
specified on Exhibit — "C". The Agency agents or contractors to contact BNSF local roadmaster
to arrange for the flagman. Roadmaster Jim Capps at telephone number 323-2674009.
♦ 9) Both parties agree to the requirements of Title VI of the Civil Rights Act of 1964,
which by reference is made a part of this agreement.
The work proposed above is agreeable to the Company under the terms and consideration stated
herein. If this is satisfactory and agreeable to the Agency, please indicate concurrence in the
space provided.
City of Vernon, California
Title LEONIS U. MALBURG, Mayor
Date
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRESCH, City Attorney
The Burlington Northern and Santa Fe
Railway Company
Manager Public Projects
Date
EXHIBIT
III
EX MIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
FORM APPROVED
BY VP -LAW
i 1.01.01 The Contractor must cooperate with THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the reconstruction of
37te Street, DOT 027914C and Railway MP 0.69, Harbor Subdivision.
® 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 2 of said Exhibit "C-1".
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
® 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause
the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create
a hazard to Railway's Property, employees, and/or operations.
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including
but not limited to the Resource Conservation and Recovery Act, as amended, the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and
regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all
fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify the (Agency) and Railways 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, must refer to Railroad's file 027914C (37* Street) .
1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 '/z
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 crabbing. 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.
Form 0102 Rev. 02/04
• 1.01.08 Subject to the movement of Railways trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railways Division Superintendent Michael Shircliff at 740 East
Carnegie Drive, San Bernardino, CA 92408 at 909-3864150, fax number 909-386441land provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to
or on Railways Property.
• 1.03.03 The Contractor must abide by the following clearances during construction:
♦ 25'-0" Horizontally from centerline of nearest track
♦ 23-3 %z " Vertically above top of rail (Temporary Falsework Clearance may be reduced to 21'-6"
subject to Railway and Public Utilities Commission approval),
♦ 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
♦ 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
♦ 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
♦ 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the (Agency) and must not be undertaken until
approved in writing by the Railway, and until the ( gency) has obtained any
necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will
be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory
Authority's approval.
• 1.03.05 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
• 1.03.06 The details of construction affecting the Railways Property and tracks not included in the contract
plans must be submitted to the Railway by (Agency) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.07 At other than public road crossings, the Contractor must not move any equipment or materials across
Form 0102 Rev. 02/04
Railways tracks until permission has been obtained from the Railway. The Contractor must obtain a
"Temporary Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by
the Contractor. The temporary crossing for use of the Contractor will be at the expense of the Contractor.
1.03.08 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railways Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
• 1.03.09 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railways 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 Railways Property to be left in a condition acceptable to the Railways
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site
through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientation.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
• 1.05.01 The Contractor must give Railway's Roadmaster (telephone 323-267-4009) a minimum of thirty (30)
working days advance notice when flagging services will be required so that the Roadmaster can make
appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by
the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements
can be made to abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under
and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip
over or other catastrophic occurrence, but not limited thereto for the following conditions:
• 1.05.02a When in the opinion of the Railways Representative it is necessary to safeguard Railways 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 Railways
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
Form 0102 Rev. 02/04
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, when deemed necessary by the Railways
representative, will be borne by the (Agency) . The estimated cost for one (1) flagger is
$600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and
holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance, health and welfare benefits,
transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated
flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to
calculate the actual costs of flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 8 freight trains per 24-hour period at a timetable speed 20
MPH and 0 passenger trains at a timetable speed of N/A MPH.
1.06 Contractor General Safety Requirements
® 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railways 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
Form 0102 Rev. 02/04
immediately to the Railways 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 Railways Resource
Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at the job site.
• 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly
weapons in their possession while working on Railway's Property.
1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above -the -ankle lace -up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information
contained on the web site and the information in this parasraph, the web site will govern.)
• 1.06.09 The Contractor must not pile or store any materials, machinery or equipment closer than 25'-0" to the
center line of the nearest Railway track. Materials, machinery or equipment must not be stored or left within
250 feet of any highway/rail at -grade crossings, where storage of the same will interfere with the sight
distances of motorists approaching the crossing. Prior to beginning work, the Contractor must establish a
storage area with concurrence of the Railroad's representative.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500
to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact the Railways Telecommunications Department (800-435-7649), Signal Supervisor
(213-267-4070) and Roadmaster (323-267-4009). All underground and overhead wires will be considered
HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the
Contractor's responsibility to notify any other companies that have underground utilities in the area and
arrange for the location of all underground utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
Form 0102 Rev. 02/04
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 Railways 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 Railways
Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this
Agreement, Contractor must immediately: (a) notify the Railways Resource Operations Center at 1(800)
832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railways 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.
Form 0102 Rev. 02/04
NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St 2. Date: Time:
County: 3. Temperature: 4. Weather
(if non -Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street: City: St. Zip:
8. Date of Birth: and/or Age Gender:
(if available)
9. (a) Injury: (b) Body Part:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis
FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
30. Date:
City: St: Zip:
City: St: Zip:
7
Form 0102 Rev. 02/04
FORM APPROVED
BY VP -LAW
EXHIBIT "C-1"
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
740 E Carnegie Drive
San Bernardino, CA 92408-3571
Railway File: 027914C — 37`h Street, City of Vernon, CA
Agency Project:
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated
, 200, with City of Vernon, California, for the performance of certain work in connection with the
following project:
Reconstruct grade crossing at 37`" Street, DOT 027914C, and BNSF Railway MP .69, Harbor Subdivision.
Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract
provides that no work will be commenced within Railway Property until the Contractor employed in connection
with said work for City of Vernon (i) executes and delivers to Railway an Agreement in the form hereof; and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement
is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor
must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including
Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
Form 0103 Rev. 02/04
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE BOILER 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, attorneys fees, costs, and expenses
growing out of or resulting from or incident to any such claims or suits.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth
herein, and (ii) full and complete payment to Railway of all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability
with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
2
Form 0103 Rev.02/04
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
♦ California's statutory liability under the worker's compensation laws of the state(s) in which
the work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
D. Railroad Protective ]Liability insurance naming only the Railroad as the Insured with coverage of at
least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard
ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or services
under this Agrmment
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor fizrther waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self -insure without the prior written consent of Railroad If granted by
Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible, self -insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any c incellation, non -renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be finuished.
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
Form 0103 Rev. 02/04
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)lbroker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage
to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "The Burlington
Northern and Santa Fe Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the specifications of the Contract, entitled EXHIBIT "C", CONTRACTOR
REQUIREMENTS, including, but not be limited to, payment of all costs incurred for any damages to Railway
roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees,
representatives, or agents or subcontractors on or about the construction site.
Section S. 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 Railways ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed per freight train hour at an average rate of ($268.27
with annual adjustments) per hour per train as determined from Railways record. Any disruption to train traffic
may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
Form 0103 Rev. 02/04
extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as $50,000.00 per incident.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this
letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor)
By:_
Name:
Address,
City:_
(Title)
State: —Zip: —
The Burlington Northern and Santa Fe
Railway Company
By:
Name:
Manager Public Projects
Accepted and effective this day of 20 .
5
Form 0103 Rev. 02/04
AGREEMENT FOR THE INSTALLATION OF
FULL DEPTH CONCRETE CROSSING SURFACE MATERIAL ON
THE BURLINTON NORTHERN AND SANTA FE RAILWAY COMPANY
ON 3e STREET, DOT # 027915 J AT CITY OF VERNON, MP .71
This is a letter agreement wherein The Burlington Northern and Santa Fe Railway Company,
hereinafter called Company, agrees that the existing crossing surface at 3e Street is to be
removed and new full depth concrete crossing surface to be installed to a crossing surface length
of 56ft. per track, for a total crossing surface length of 112ft. To accomplish this work, the
City of Vernon, hereinafter called Agency, and the Company, agree as follows:
♦ 1) The work will be performed at the expense of the Company. Said work will consist of
the installation of concrete crossing surface material including upgrades to the track to
accommodate new concrete crossing surface material, to adequately include all vehicular driving
lanes.
♦ 2) The Agency will pay the Company $393.87 per foot for the total crossing surface
length for work described above for a total cost of $44,113.
♦ 3) The Company will order the concrete crossing surface material from a qualified
supplier and after receipt of the material, the Agency will be billed on basis of Paragraph 2
above.
♦ 4) The Company, at its own cost and expense, will maintain the crossing surface in a
satisfactory manner and will make ample provisions for such maintenance, provided, however,
that the Company shall be entitled to receive any contribution toward the cost of such
maintenance as may be now or hereafter made available by reason of any law, ordinance,
regulation, order, grant, or by other means or sources.
♦ 5) The Agency, at its own cost and expense, will provide all barricades, lights, flagmen or
traffic control devices necessary for detouring vehicular traffic at the crossing, during
construction of the crossing involved.
♦ 6) The Agency further agrees to allow the Company to drain the crossing area into
existing Agency storm sewers, if available, near the crossing. The drain pipes and filter fabric
will be furnished and installed by the Company.
♦ 7) The Agency, further agrees to furnish and place, at their expense, asphalt between the
saw cut in the existing roadway surface and the new concrete crossing surface, plus the area
between the tracks if there is more than one track.
♦ 8) The Agency agents or contractors to obtain Insurance as specified on Exhibit — "C-1"
prior to the Agency, or its agents or contractors performing any construction work on the
Company's property. Flagman shall be required when working within 25' of the track as
specified on Exhibit — "C". The Agency agents or contractors to contact BNSF local roadmaster
to arrange for the flagman. Roadmaster Jim Capps at telephone number 323-267-4009.
0
♦ 9) Both parties agree to the requirements of Title VI of the Civil Rights Act of 1964,
which by reference is made a part of this agreement.
The work proposed above is agreeable to the Company under the terms and consideration stated
herein. If this is satisfactory and agreeable to the Agency, please indicate concurrence in the
space provided.
City of Vernon, California
Title LEONIS U. MALBURG, Mayor
Date
ATTEST:
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRESCH, City Attorney
The Burlington Northern and Santa Fe
Railway Company
Manager Public Projects
Date
EXHIBIT licit
CONTRACTOR REQUIREMENTS
1.01 General
FORM APPROVED
BY VP -LAW
• 1.01.01 The Contractor must cooperate with THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the reconstruction of
38`h Street, DOT 027915J and Railway MP 0.71, Harbor Subdivision.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit 11C-1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 2 of said Exhibit "C-1".
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause
the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create
a hazard to Railway's Property, employees, and/or operations.,
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including
but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and
regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all
fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify the (Agency) and Railway's Manager Public
Projects, telephone number 909-386-4472 at least thirty (30) working days before commencinj any work on
Railway Property. Contractors notification to Railway, must refer to Railroad's file 027915J (38 Street) .
1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 %
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. 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.
Form 0102 Rev. 02/04
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.conL The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any.
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railway's Division Superintendent Michael Shircliff at 740 East
Carnegie Drive, San Bernardino, CA 92408 at 909-386-4150, fax number 909-386-441land provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to
or on Railway's Property.
• 1.03.03 The Contractor must abide by the following clearances during construction:
♦ 25'--0"
Horizontally from centerline of nearest track
♦ 23'--3 % "
Vertically above top of rail (Temporary Falsework Clearance maybe reduced to 21'-6"
subject to
Railway and Public Utilities Commission approval) ,
♦ 27'-0"
Vertically above top of rail for electric wires carrying less than 750 volts
♦ 28'-0"
Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
♦ 30'-0"
Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
♦ 34'4-
Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the (Agency and must not be undertaken until
approved in writing by the Railway, and until the (Agency) has obtained any
necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will
be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory
Authority's approval.
• 1.03.05 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
• 1.03.06 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by (Agency) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.07 At other than public road crossings, the Contractor must not move any equipment or materials across
Form 0102 Rev. 02/04
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
"Temporary Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by
the Contractor. The temporary crossing for use of the Contractor will be at the expense of the Contractor.
1.03.08 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue. -
• 1.03.09 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site
through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientation.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster (telephone 323-'267-4009) a minimum of thirty (30)
working days advance notice when flagging services will be required so that the Roadmaster can make
appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by
the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements
can be made to abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under
and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip
over or other catastrophic occurrence, but not limited thereto for the following conditions:
• 1.05.02a When in the opinion of the 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
Form 0102 Rev. 02/04
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, when deemed necessary by the Railway's
representative, will be borne by the (Agency) . The estimated cost for one (1) flagger is
$600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and
holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance, health and welfare benefits,
transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated
flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to
calculate the actual costs of flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 8 freight trains per 24-hour period at a timetable speed 20
MPH and 0 passenger trains at a timetable speed of N/A MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
4 Form 0102 Rev. 02/04
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 yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above -the -ankle lace -up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information
contained on the web site and the information in this paragraph, the web site will govern.)
• 1.06.09 The Contractor must not pile or store any materials, machinery or equipment closer than 25'--0" to the
center line of the nearest Railway track. Materials, machinery or equipment must not be stored or left within
250 feet of any highway/rail at -grade crossings, where storage of the same will interfere with the sight
distances of motorists approaching the crossing. Prior to beginning work, the Contractor must establish a
storage area with concurrence of the Railroad's representative.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500
to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact the Railway's Telecommunications Department (800-435-7649), Signal Supervisor
(213-267-4070) and Roadmaster (323-267-4009). All underground and overhead wires will be considered
HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the
Contractor's responsibility to notify any other companies that have underground utilities in the area and
arrange for the location of all underground utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
5 Form 0102 Rev. 02/04
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 this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the project. The Non -Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at
1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
Form 0102 Rev. 02/04
NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St
County:
(if non -Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street:
8. Date of Birth:
2. Date:
3. Temperature:
City:
and/or Age Gender:
(if available)
9. (a) Injury:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
(b) Body Part:
30. Date:
Time:
4. Weather
St. Zip:
City: St: Zip:
City: St: Zip:
7 Form 0102 Rev. 02/04
FORM APPROVED
BY VP -LAW
EXHIBIT "C-1"
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
740 E Carnegie Drive
San Bernardino, CA 92408-3571
Railway File: 027915J — 38`h Street, City of Vernon, CA
Agency Project:
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated
200, with City of Vernon, California, for the performance of certain work in connection with the
following project:
Reconstruct grade crossing at 38t' Street, DOT 027915J, and BNSF Railway MP .71, Harbor Subdivision.
Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract
provides that no work will be commenced within Railway Property until the Contractor employed in connection
with said work for City of Vernon (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
Railways and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
Form 0103 Rev. 02/04
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE BOILER 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.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth
herein, and (ii) full and complete payment to Railway of all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability
with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
Form 0103 Rev. 02104
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
♦ California's statutory liability under the worker's compensation laws of the state(s) in which
the work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at
least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard
ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or services
under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self -insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible, self -insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audittfolder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be furnished.
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
3
Form 0103 Rev. 02/04
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage
to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "The Burlington
Northern and Santa Fe Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the specifications of the Contract, entitled EXHIBIT "C", CONTRACTOR
REQUIREMENTS, including, but not be limited to, payment of all costs incurred for any damages to Railway
roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees,
representatives, or agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated
railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a
freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed per freight train hour at an average rate of ($268.27
with annual adjustments) per hour per train as determined from Railway's record. Any disruption to train traffic
may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentivelpenalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
4
Form 0103 Rev. 02/04
extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as $50,000.00 per incident.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this
letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor)
By:
Name:
(Title)
Address
City: State _Zip:
The Burlington Northern and Santa Fe
Railway Company
By:
Name:
Manager Public Projects
Accepted and effective this day of 20—.
5
Form 0103 Rev. 02/04
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro -Tern
WM. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator/City Clerk
Chief Executive Officer of
Light & Power
FAX: (323) 826-1438
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
August 25, 2004
ERIC T. FRESCH
City Attorney
FAX: (323) 826-1439
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 826-1435
Burlington Northern and Santa Fe Railway Company
470 E. Carnegie Drive
San Bernardino, CA 92408-3571
Attn: John Shurson, Assistant Director Public Projects
STEVEN E. PARKER
Fire Chief
FAX: (323) 826-1407
SOL BENUDIZ
Police Chief
FAX: (323) 826-1481
LEWIS J. POZZEBON
Director of Environmental Health
FAX: (323) 588-4320
Re: Agreements for the Installation of Full Depth concrete crossing
surface material on the Burlington Northern and Santa Fe Railway
Company on 37th Street (DOT #027914C) and 38th Street (DOT
#027915J)
Dear Mr. Shurson:
Enclosed are four original agreements that have been executed by the
City of Vernon. Please have these executed as soon as possible and
return two fully executed agreements to the attention of the
undersigned.
Very truly yours,
4.
A-�, 0
6JUL4
Gloriaeda
Assistant City Clerk
cc: Kevin Wilson
Resolution No. 8519
Agreement File No. 04-076
AGREEMENT FOR THE INSTALLATION OF
FULL DEPTH CONCRETE CROSSING SURFACE MATERIAL ON
THE BURLINTON NORTHERN AND SANTA FE RAILWAY COMPANY
ON 38 h STREET, DOT # 027915 J AT CITY OF VERNON, MP .71
This is a letter agreement wherein The Burlington Northern and Santa Fe Railway Company,
hereinafter called Company, agrees that the existing crossing surface at 38n' Street is to be
removed and new full depth concrete crossing surface to be installed to a crossing surface length
of 56ft. per track, for a total crossing surface length of 112ft. To accomplish this work, the
City of Vernon, hereinafter called Agency, and the Company, agree as follows:
♦ 1) The work will be performed at the expense of the Company. Said work will consist of
the installation of concrete crossing surface material including upgrades to the track to
accommodate new concrete crossing surface material, to adequately include all vehicular driving
lanes.
♦ 2) The Agency will pay the Company $393.87 per foot for the total crossing surface
length for work described above for a total cost of $44,113.
♦ 3) The Company will order the concrete crossing surface material from a qualified
supplier and after receipt of the material, the Agency will be billed on basis of Paragraph 2
above.
♦ 4) The Company, at its own cost and expense, will maintain the crossing surface in a
satisfactory manner and will make ample provisions for such maintenance, provided, however,
that the Company shall be entitled to receive any contribution toward the cost of such
maintenance as may be now or hereafter made available by reason of any law, ordinance,
regulation, order, grant, or by other means or sources.
♦ 5) The Agency, at its own cost and expense, will provide all barricades, lights, flagmen or
traffic control devices necessary for detouring vehicular traffic at the crossing, during
construction of the crossing involved.
♦ 6) The Agency further agrees to allow the Company to drain the crossing area into
existing Agency storm sewers, if available, near the crossing. The drain pipes and filter fabric
will be furnished and installed by the Company.
♦ 7) The Agency, further agrees to furnish and place, at their expense, asphalt between the
saw cut in the existing roadway surface and the new concrete crossing surface, plus the area
between the tracks if there is more than one track.
♦ 8) The Agency agents or contractors to obtain Insurance as specified on Exhibit — "C-1"
prior to the Agency, or its agents or contractors performing any construction work on the
Company's property. Flagman shall be required when working within 25' of the track as
specified on Exhibit — "C". The Agency agents or contractors to contact BNSF local roadmaster
to arrange for the flagman. Roadmaster Jim Capps at telephone number 323-267-4009.
♦ 9) Both parties agree to the requirements of Title VI of the Civil Rights Act of 1964,
which by reference is made a part of this agreement.
The work proposed above is agreeable to the Company under the terms and consideration stated
herein. If this is satisfactory and agreeable to the Agency, please indicate concurrence in the
space provided.
City of Vernon, California
The Burlington Northern and Santa Fe
Railway Company
itl LEONIS U. MALBUG, Mayor �anaggerublic Projects
Date
ATTEST:
.; �-t - � /' I �' - - Z-," � �
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRES , City Attorney
ate
EXHIBIT licit
CONTRACTOR REQUIREMENTS
1.01 General
FORM APPROVED
BY VP -LAW
• 1.01.01 The Contractor must cooperate with THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the reconstruction of
38's Street, DOT 027915J and Railway MP 0.71, Harbor Subdivision.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 2 of said Exhibit "C-1".
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause
the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create
a hazard to Railway's Property, employees, and/or operations.,
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including
but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and
regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all
fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify the (Agency) and Railway's Manager Public
Projects, telephone number 909-386-4472 at least thirty (30) working days before commencinj any work on
Railway Property. Contractors notification to Railway, must refer to Railroad's file 027915J (38 Street) .
1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 i/z
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. 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.
Form 0102 Rev. 02/04
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railway's Division Superintendent Michael Shircliff at 740 East
Carnegie Drive, San Bernardino, CA 92408 at 909-386-4150, fax number 909-386-4411and provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to
or on Railway's Property.
• 1.03.03 The Contractor must abide by the following clearances during construction:
♦ 25' 0"
Horizontally from centerline of nearest track
♦ 23' 3 Y2 "
Vertically above top of rail (Temporary Falsework Clearance maybe reduced to 21'-6"
subject to
Railway and Public Utilities Commission approval)
♦ 27'-0"
Vertically above top of rail for electric wires carrying less than 750 volts
♦ 28'-0"
Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
♦ 30'-0"
Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
♦ 34'-0"
Vertically above top of rail for electric wires carrying more than 20,000 volts
1.03.04 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the (Agency) and must not be undertaken until
approved in writing by the Railway, and until the (Agency) has obtained any
necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will
be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory
Authority's approval.
• 1.03.05 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
• 1.03.06 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by (Agency) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.07 At other than public road crossings, the Contractor must not move any equipment or materials across
2 Form 0102 Rev. 02/04
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
"Temporary Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by
the Contractor. The temporary crossing for use of the Contractor will be at the expense of the Contractor.
1.03.08 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
• 1.03.09 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site
through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientation.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster (telephone 323-267-4009) a minimum of thirty (30)
working days advance notice when flagging services will be required so that the Roadmaster can make
appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by
the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements
can be made to abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under
and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip
over or other catastrophic occurrence, but not limited thereto for the following conditions:
• 1.05.02a When in the opinion of the 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
Form 0102 Rev. 02/04
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, when deemed necessary by the Railway's
representative, will be borne by the (Agency) . The estimated cost for one (1) flagger is
$600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and
holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance, health and welfare benefits,
transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated
flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to
calculate the actual costs of flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 8 freight trains per 24-hour period at a timetable speed 20
MPH and 0 passenger trains at a timetable speed of N/A MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
4 Form 0102 Rev. 02/04
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 yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above -the -ankle lace -up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information
contained on the web site and the information in this paragraph, the web site will govern.)
• 1.06.09 The Contractor must not pile or store any materials, machinery or equipment closer than 25' 0" to the
center line of the nearest Railway track. Materials, machinery or equipment must not be stored or left within
250 feet of any highway/rail at -grade crossings, where storage of the same will interfere with the sight
distances of motorists approaching the crossing. Prior to beginning work, the Contractor must establish a
storage area with concurrence of the Railroad's representative.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500
to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact the Railway's Telecommunications Department (800435-7649), Signal Supervisor
(213-2674070) and Roadmaster (323-267-4009). All underground and overhead wires will be considered
HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the
Contractor's responsibility to notify any other companies that have underground utilities in the area and
arrange for the location of all underground utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
Form 0102 Rev. 02/04
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 this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone
mail if unable to contact in person) to the Railway's representative in charge of the project. The Non -Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at
1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the
injury.
Form 0102 Rev. 02/04
NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St
County:
(if non -Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street:
8. Date of Birth:
2. Date:
3. Temperature:
City:
and/or Age Gender:
(if available)
9. (a) Injury:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
(b) Body Part:
30. Date:
Time:
4. Weather
St. Zip:
City: St: Zip:
City: St: Zip:
7 Form 0102 Rev. 02/04
FORM APPROVED
BY VP -LAW
EXHIBIT "C-V
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
740 E Carnegie Drive
San Bernardino, CA 92408-3571
Railway File: 027915J — 38`b Street, City of Vernon, CA
Agency Project:
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated
, 200, with City of Vernon, California, for the performance of certain work in connection with the
following project:
Reconstruct grade crossing at 38'h Street, DOT 027915J, and BNSF Railway MP .71, Harbor Subdivision.
Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract
provides that no work will be commenced within Railway Property until the Contractor employed in connection
with said work for City of Vernon (i) executes and delivers to Railway an Agreement in the form hereof, and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement
is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor
must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including
Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
Form 0103 Rev. 02/04
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE BOILER 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.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth
herein, and (ii) full and complete payment to Railway of all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability
with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
2
Form 0103 Rev. 02/04
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
♦ California's statutory liability under the worker's compensation laws of the state(s) in which
the work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at
least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard
ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or services
under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self -insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible, self -insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be furnished.
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
Form 0103 Rev. 02/04
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage
to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "The Burlington
Northern and Santa Fe Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the specifications of the Contract, entitled EXHIBIT "C", CONTRACTOR
REQUIREMENTS, including, but not be limited to, payment of all costs incurred for any damages to Railway
roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees,
representatives, or agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated
railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a
freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed per freight train hour at an average rate of ($268.27
with annual adjustments) per hour per train as determined from Railway's record. Any disruption to train traffic
may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
Form 0103 Rev. 02/04
extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as $50,000.00 per incident.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this
letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor) The Burlington Northern and Santa Fe
Railway Company
By: By:
(Title)
City: -
State:-Zip:-
Manager Public Projects
Accepted and effective this day of 20_.
5
Form 0103 Rev. 02/04
AGREEMENT FOR THE INSTALLATION OF
FULL DEPTH CONCRETE CROSSING SURFACE MATERIAL ON
THE BURLINTON NORTHERN AND SANTA FE RAILWAY COMPANY
ON 371h STREET, DOT # 027914C AT CITY OF VERNON, MP .70
This is a letter agreement wherein The Burlington Northern and Santa Fe Railway Company,
hereinafter called Company, agrees that the existing crossing surface at 3,8`7�tgeet is to be
removed and new full depth concrete crossing surface to be installed to a cr6ssmg surface length
of 56ft. per track, for a total crossing surface length of 112ft. To accomplish this work, the
City of Vernon, hereinafter called Agency, and the Company, agree as follows:
♦ 1) The work will be performed at the expense of the Company. Said work will consist of
the installation of concrete crossing surface material including upgrades to the track to
accommodate new concrete crossing surface material, to adequately include all vehicular driving
lanes.
♦ 2) The Agency will pay the Company $393.87 per foot for the total crossing surface
length for work described above for a total cost of $ 44,113.
♦ 3) The Company will order the concrete crossing surface material from a qualified
supplier and after receipt of the material, the Agency will be billed on basis of Paragraph 2
above.
♦ 4) The Company, at its own cost and expense, will maintain the crossing surface in a
satisfactory manner and will make ample provisions for such maintenance, provided, however,
that the Company shall be entitled to receive any contribution toward the cost of such
maintenance as may be now or hereafter made available by reason of any law, ordinance,
regulation, order, grant, or by other means or sources.
♦ 5) The Agency, at its own cost and expense, will provide all barricades, lights, flagmen or
traffic control devices necessary for detouring vehicular traffic at the crossing, during
construction of the crossing involved.
♦ 6) The Agency further agrees to allow the Company to drain the crossing area into
existing Agency storm sewers, if available, near the crossing. The drain pipes and filter fabric
will be furnished and installed by the Company.
♦ 7) The Agency, further agrees to furnish and place, at their expense, asphalt between the
saw cut in the existing roadway surface and the new concrete crossing surface, plus the area
between the tracks if there is more than one track.
♦ 8) The Agency agents or contractors to obtain Insurance as specified on Exhibit — "C-1"
prior to the Agency, or its agents or contractors performing any construction work on the
Company's property. Flagman shall be required when working within 25' of the track as
specified on Exhibit — "C". The Agency agents or contractors to contact BNSF local roadmaster
to arrange for the flagman. Roadmaster Jim Capps at telephone number 323-267-4009.
♦ 9) Both parties agree to the requirements of Title VI of the Civil Rights Act of 1964,
which by reference is made a part of this agreement.
The work proposed above is agreeable to the Company under the terms and consideration stated
herein. If this is satisfactory and agreeable to the Agency, please indicate concurrence in the
space provided.
City of Vernon, California The Burlington Northern and Santa Fe
Railway Company
Titles LEONIS U. MALBU G, Mayor Manager Public Projects
Date
ATTEST:
r�
BRUCE V. MALKENHORST, City Clerk
APPROVED AS TO FORM:
ERIC T. FRESC , City Attorney
,f- ; 7 - 6 -,-//
Date
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
FORM APPROVED
BY VP -LAW
• 1.01.01 The Contractor must cooperate with THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to
Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the reconstruction of
37'h Street, DOT 027914C and Railway MP 0.69, Harbor Subdivision.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-l"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 2 of said Exhibit "C-1".
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause
the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create
a hazard to Railway's Property, employees, and/or operations.
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental laws and regulations (including
but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil
Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and
regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all
fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway
which arise out of Contractor's work under this Agreement.
• 1.01.06 The Contractor must notify the (Agency) 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, must refer to Railroad's file 027914C (37'h Street) .
1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 '/Z
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. 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 Railways tracks. In no case will the Contractor be
relieved of responsibility for results obtained by the implementation of said approved plans.
Form 0102 Rev. 02/04
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the
work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for
any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property
without first having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that each of its employees,
subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation
through internet sessions before any work is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card
certifying completion of the Railway Contractor Safety Orientation before entering Railway Property.
The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor
must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on
the web site or from the Railway's Representative.
1.03 Railway Requirements
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including
track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any
damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and
the cost of such repairs or replacement must be paid for by the Agency.
• 1.03.02 The Contractor must notify the Railway's Division Superintendent Michael Shircliff at 740 East
Carnegie Drive, San Bernardino, CA 92408 at 909-3864150, fax number 909-386441land provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to
or on Railway's Property.
• 1.03.03 The Contractor must abide by the following clearances during construction:
♦ 25'-0"
Horizontally from centerline of nearest track
♦ 23-3 '/2 "
Vertically above top of rail (Temporary Falsework Clearance may be reduced to 21'-6"
subject to
Railway and Public Utilities Commission approval)
♦ 27'-0"
Vertically above top of rail for electric wires carrying less than 750 volts
♦ 28'-0"
Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
♦ 30'-0"
Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
♦ 34'-0"
Vertically above top of rail for electric wires carrying more than 20,000 volts
• 1.03.04 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the (Agency) and must not be undertaken until
approved in writing by the Railway, and until the (Agency) has obtained any
necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will
be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory
Authority's approval.
• 1.03.05 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing
tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell -tales or protective devices will be borne by the Agency.
• 1.03.06 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by (Agency) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
• 1.03.07 At other than public road crossings, the Contractor must not move any equipment or materials across
2 Form 0102 Rev. 02/04
Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a
"Temporary Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by
the Contractor. The temporary crossing for use of the Contractor will be at the expense of the Contractor.
1.03.08 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum,
constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately
notify the Railways Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in
excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or
transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state
analogue.
• 1.03.09 The Contractor upon completion of the work covered by this contract, must promptly remove from
the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought
upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any
Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's
representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan
1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and
implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project
Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety
portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for
all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site
through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan,
as provided for on the web site www.contractororientation.com, which will be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the
contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
1.05 Protection of Railway Facilities and Railway Flagger Services:
1.05.01 The Contractor must give Railway's Roadmaster (telephone 323-2674009) a minimum of thirty (30)
working days advance notice when flagging services will be required so that the Roadmaster can make
appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by
the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements
can be made to abolish the position pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractor's work activities are located over, under
and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip
over or other catastrophic occurrence, but not limited thereto for the following conditions:
• 1.05.02a When in the opinion of the Railways Representative it is necessary to safeguard Railways 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
Form 0102 Rev. 02/04
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, when deemed necessary by the Railway's
representative, will be borne by the (Agency) . The estimated cost for one (1) flagger is
$600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and
holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance, health and welfare benefits,
transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated
flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to
calculate the actual costs of flagging pursuant to this paragraph.
• 1.05.03d The average train traffic on this route is 8 freight trains per 24-hour period at a timetable speed 20
MPH and 0 passenger trains at a timetable speed of N/A MPH.
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and
equipment can occur at any time and in any direction. All work performed by contractors within 25 feet
of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task changes. If
the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable,
and include the procedures the Contractor will use to protect its employees, subcontractors, agents or
invitees from moving any equipment adjacent to or across any Railway track(s).
1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering flag/work limits that were not previously job
briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of
the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and
subsequently released to the custody of a representative of Contractor management. Future access to the
Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported
4 Form 0102 Rev. 02/04
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 Railways Property.
1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and
ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contractororientation.com' however, a partial list of the requirements include: a) safety glasses with
permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes,
above -the -ankle lace -up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's
representative in charge of the project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information
contained on the web site and the information in this para¢raph, the web site will govern.)
• 1.06.09 The Contractor must not pile or store any materials, machinery or equipment closer than 25'-0" to the
center line of the nearest Railway track. Materials, machinery or equipment must not be stored or left within
250 feet of any highway/rail at -grade crossings, where storage of the same will interfere with the sight
distances of motorists approaching the crossing. Prior to beginning work, the Contractor must establish a
storage area with concurrence of the Railroad's representative.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or
equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to
the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water must meet all Federal, State and Local regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary
by proper authority. For all power lines the minimum clearance between the lines and any part of the
equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500
to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of
45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a
timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual
means.
1.07 Excavation
1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires,
or cables, including fiber optic cable systems are present and located within the Project work area. The
Contractor must determine whether excavation on Railway's Property could cause damage to buried cables
resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may
cause business interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact the Railway's Telecommunications Department (800-435-7649), Signal Supervisor
(213-267-4070) and Roadmaster (323-267-4009). All underground and overhead wires will be considered
HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the
Contractor's responsibility to notify any other companies that have underground utilities in the area and
arrange for the location of all underground utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation
Form 0102 Rev. 02/04
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 this
Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800)
832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents
and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate
measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad
Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor,
subcontractor or Contractor's invitees while on the Railways 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.
6 Form 0102 Rev. 02/04
NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St
County:
(if non -Railway location)
5. Social Security #
6. Name (last, first, mi)
7. Address: Street:
8. Date of Birth:
2. Date:
3. Temperature:
City:
and/or Age Gender:
(if available)
9. (a) Injury:
(i.e. (a) Laceration (b) Hand)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
14. Dr. Address:
Street:
15. Hospital Name:
16. Hospital Address:
Street:
17. Diagnosis:
FAX TO
RAILWAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
City:
City:
(b) Body Part:
Time:
4. Weather
St. Zip:
30. Date:
St: Zip:
St: Zip:
7 Form 0102 Rev. 02/04
FORM APPROVED
BY VP -LAW
EXHIBIT "C-V
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
Attention: Manager Public Projects
740 E Carnegie Drive
San Bernardino, CA 92408-3571
Railway File: 027914C — 37`s Street, City of Vernon, CA
Agency Project:
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated
, 200, with City of Vernon, California, for the performance of certain work in connection with the
following project:
Reconstruct grade crossing at 37'h Street, DOT 027914C, and BNSF Railway MP .69, Harbor Subdivision.
Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract
provides that no work will be commenced within Railway Property until the Contractor employed in connection
with said work for City of Vernon (i) executes and delivers to Railway an Agreement in the form hereof, and (ii)
provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement
is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor
must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby
agree with Railway as follows:
Section 1. RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments,
awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including
Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR
WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
Form 0103 Rev. 02/04
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE BOILER 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.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract until (i) the completion of the project set forth
herein, and (ii) full and complete payment to Railway of all sums or other amounts owing and due hereunder.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must contain broad form contractual liability
with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and
include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy must also contain the following endorsements, which must be indicated on the certificate of
insurance:
♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
♦ The definition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards must be removed.
No other endorsements limiting coverage as respects obligations under this Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must contain a combined single limit of at least
$1,000,000 per occurrence, and include coverage for, but not limited to the following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
2
Form 0103 Rev. 02/04
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
♦ California's statutory liability under the worker's compensation laws of the state(s) in which
the work is to be performed. If optional under State law, the insurance must cover all
employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at
least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be issued on a standard
ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railroad prior to performing any work or services
under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self -insure without the prior written consent of Railroad If granted by
Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the
provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to
include a deductible, self -insured retention or other financial responsibility for claims.
Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be finnished.
Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
Form 0103 Rev. 02/04
Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance
agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this
Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage
to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance
industry.
If any portion of the operation is to be subcontracted by contractor, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional
insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be
deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "The Burlington
Northern and Santa Fe Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the specifications of the Contract, entitled EXHIBIT "C", CONTRACTOR
REQUIREMENTS, including, but not be limited to, payment of all costs incurred for any damages to Railway
roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees,
representatives, or agents or subcontractors on or about the construction site.
Section 5. TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated
railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a
freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service
and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from
loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train
delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed per freight train hour at an average rate of ($268.27
with annual adjustments) per hour per train as determined from Railway's record. Any disruption to train traffic
may cause delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal,
coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these
arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance
or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential. In the
event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the
Form 0103 Rev. 02/04
extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high
as $50,000.00 per incident.
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this
letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor)
By:
Name:
Address
City:
(Title)
State: Zip:
The Burlington Northern and Santa Fe
Railway Company
By:
Name:
Manager Public Projects
Accepted and effective this day of 20_
5
Form 0103 Rev.02/04