HomeMy WebLinkAboutDeschutes Mkt Rd Overpass Agrmt - BNSFNAN E C
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Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701 -1960
(541) 388 -6570 - Fax (541) 385 -3202 - www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of February 4, 2009
Please see directions for completing this document on the next page.
DATE: January 26, 2009
FROM: George Kolb Road Department 322 -7113
TITLE OF AGENDA ITEM:
Consideration of Signature of Document No. 2009 -040, an Overpass Agreement with Burlington
Northern Santa Fe Railroad for the Deschutes Market Overcrossing Project, Phase II.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County is in the process of constructing the Deschutes Market Overcrossing, Phase II
project. A part of the project is the installation of an overcrossing along with the closure of an at- gradle
crossing on the BNSF railroad tracks. As part of the installation of the structure, Deschutes County
required to enter into an agreement with BNSF that covers all construction activity within the railroac
right -of -way along with the future maintenance activities on the structure. This agreement also coven
any necessary payments required by BNSF of Deschutes County for work done by BNSF crews as part
of this project. Included in the agreement is the purchase price and requirements for the easement and
overpass across the railroad right -of -way ($86,250), costs to Deschutes County for the removal of the
existing at -grade crossing ($16,134) and flagging costs ($52,145) for the project. It also covers the
reimbursement by BNSF to Deschutes County for BNSF's share of the project which is 5% of all costs
associated with the installation of the overcrossing ($130,045). These costs are all estimates and will
not be finalized until completion of the project which is scheduled for October 30, 2009. This
agreement will need to be signed prior to any work starting in the railroad right -of -way.
FISCAL IMPLICATIONS:
This project is budgeted for Fiscal Year 08 -09. Estimates are that Deschutes County will owe BNSF
approximately $154,145 and BNSF's 5% share of the overcrossing structure cost will be $130,045.
RECOMMENDATION & ACTION REQUESTED:
The Road Department recommends signature of the Agreement
ATTENDANCE: George Kolb, County Engineer
DISTRIBUTION OF DOCUMENTS:
Originals are to be returned to Wanda Kuntz (ext. 7103) at the Road Department for forwarding on to
BNSF for their signature.
DESCHUTES COUNTY DOCUMENT SUMMARY
(NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be returned to
the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the
County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form
electronically to the Board Secretary.)
Date:
1/26/09
Please complete all sections above the Official Review line.
Department:
Contractor /Supplier /Consultant Name:
(BNSF)
Contractor Contact:
4474
Type of Document:
John Stilley
Road
Burlington Northern Santa Fe Railroad
Overpass Agreement
Contractor Phone #:
Goods and /or Services: T his agreement covers all of Deschutes Counties
909 -386-
responsibilities concerning the installation of the railroad overpass on Deschutes Market
Road. Included in the agreement is the purchase price and requirements for the
easement and overpass across the railroad right -of -way ($86,250), costs to Deschutes
County for the removal of the existing at -grade crossing ($16,134) and flagging costs
($52,145) for the project. It also covers the reimbursement by BNSF to Deschutes
County for BNSF's share of the project which is 5% of all costs associated with the
installation of the overcrossing ($130,045). These costs are all estimates and will not
be determined until completion of the project which is scheduled for October 30, 2009
Background & History:
Deschutes Market Overcrossing, Phase II project. A part of the project is the
installation of an overcrossing along with the closure of an at -grade crossing on the
BNSF railroad tracks. As part of the installation of the structure, Deschutes County is
required to enter into an agreement with BNSF that covers all construction activity
Deschutes County is in the process of constructin• the
within the railroad right -of -way along with the future maintenance activities on the
structure. This agreement also covers any necessary payments required by Deschutes
County to BNSF for work done by BNSF crews as part of this project.
Agreement Starting Date:
2/1/09
Annual Value or Total Payment:
$154,529
Ending Date:
Il Insurance Certificate Received check box)
Insurance Expiration Date:
Check all that apply:
I� RFP, Solicitation or Bid Process
n Informal quotes ( <$150K)
7 Exempt from RFP, Solicitation or Bid Process (specify — see DCC §2.37)
1/26/2009
322 -7113
George Kolb, County Engineer
Funding Source: (Included in current budget? ® Yes ❑ No
If No, has budget amendment been submitted? ❑ Yes ❑ No
Is this a Grant Agreement providing revenue to the County? ❑ Yes ❑ No
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant- funded position so that this will be noted in the offer letter: ❑ Yes ❑ No
Contact information for the person responsible for grant compliance: Name:
Phone #:
Departmental Contact and Title:
Phone #:
Department Director Approval:
Signature
// 4Vo f
D' ate
Distribution of Document: Who gets the original document and /or copies after it has
been signed? Include complete information if the document is to be mailed.
Official Review:
County Signature Required (check one): ❑ BOCC ❑ Department Director (if <$25K)
❑ Administrator (if >$25K but <$150K; if >$150K, BOCC Order No.
Legal Review Date
Document Number
1/26/2009
OVERPASS AGREEMENT
LAW DEPARTMENT APPROVED
BNSF File No.077839E
The Deschutes Market Road Overpass
U.S. D.O.T. No.077839E
This Agreement ( "Agreement "), is executed to be effective as of this day of
2008 ( "Effective Date "), by and between BNSF RAILWAY COMPANY, a Delaware corporation
( "BNSF "), and the COUNTY OF DESCHUTES, a political subdivision of the State of Oregon ( "Agency ").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the County of Deschutes, State of
Oregon;
WHEREAS, Agency desires to improve the existing Deschutes Market Road at -grade crossing by
constructing a new crossing at separated grades to be known as The Deschutes Market Road Overpass
and designated as The Deschutes Market Road Overpass, D.O.T. No. 077839E; and
WHEREAS, the existing Deschutes Market Road at -grade crossing will be closed and removed upon
completion of construction and the placing in service of said overpass;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained
herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I — SCOPE OF WORK
1. The term "Project" as used herein includes any and all work related to the construction of the
proposed The Deschutes Market Road Overpass (hereinafter referred to as the "Structure "), more
particularly described on the Exhibit A attached hereto and incorporated herein, including, but not limited
to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary
and permanent track work, fencing, grading, alterations to or new construction of drainage facilities,
preliminary and construction engineering and contract preparation. During construction of the Structure,
temporary controls during construction must be in compliance with Section 8A -5, "Traffic Controls during
Construction and Maintenance" of the Uniform Traffic Control Devices Manual, U.S. Department of
Transportation.
ARTICLE II — BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF
agrees as follows:
1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF
hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set
forth in this Agreement, a temporary non - exclusive license (hereinafter called, "Temporary Construction
License ") to construct the Structure across or upon the portion of BNSF's right -of -way described further
on Exhibit A, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or
may obtain, permission or authority from BNSF, to do the following:
Form 0105 Rev. 06/01/05
(a) Operate, maintain, renew and /or relocate any and all existing railroad track or tracks, wires,
pipelines and other facilities of like character upon, over or under the surface of said right -of-
way;
(b) Construct, operate, maintain, renew and /or relocate upon said right -of -way, without limitation,
such facilities as the BNSF may from time to time deem appropriate, provided such facilities
do not materially interfere with the Agency's use of the Structure;
(c) Otherwise use or operate the right -of -way as BNSF may from time to time deem appropriate,
provided such use or operations does not materially interfere with the Agency's use of the
Structure.
Prior to commencing any work on BNSF's property or right -of -way, Agency must pay BNSF the
sum of N/A and No /100 Dollars ($ N/A ) as compensation for the Temporary
Construction License. The term of the Temporary Construction License begins on the Effective Date and
ends on the earlier of (i) substantial completion of the Structure, or (ii) twelve (12) months following the
Effective Date. The Temporary Construction License and related rights given by BNSF to Agency in this
provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title
will be implied from the use of any word or words herein contained. The Temporary Construction License
is for construction of the Structure only and shall not be used by Agency for any other purpose. Agency
acknowledges and agrees that Agency shall not have the right, under the Temporary Construction
License, to use the Structure. In the event Agency is evicted by anyone owning, or claiming title to or any
interest in said right -of -way, BNSF will not be liable to Agency for any damages, losses or any expenses
of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this
Agreement, will not impair or interfere with the rights granted to Agency herein.
Upon receiving the payment from Agency described in the subsequent sentence and provided
Agency is in compliance with the terms and conditions of this Agreement, BNSF will grant to Agency, its
successors and assigns, an easement (hereinafter called, the "Easement ") to enter upon and use that
portion of BNSF's right -of -way as is necessary to use and maintain the Structure, substantially in the form
of Exhibit B attached to this Agreement. Agency must pay BNSF the sum of Eighty Six Thousand Two
Hundred and Fifty and No /100 Dollars ($86,250) as compensation for the Easement within thirty (30)
days of issuing a Notice to Proceed pursuant to Article III, Section 16 of this Agreement. If Agency fails to
pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop
construction of the Project until full payment is received by BNSF.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the
construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit
D attached hereto and made a part hereof. In the event construction on the Project has not commenced
within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise
the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part
of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on
Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written
approval of Agency, which approval will not be unreasonably withheld. Construction of the Project must
include the following railroad work by BNSF:
(a) Procurement of materials, equipment and supplies necessary for the railroad work;
(b) Preliminary engineering, design, and contract preparation;
(c) Furnishing of flagging services necessary for the safety of BNSF's property and the
operation of its trains during construction of the Project as set forth in further detail on
Exhibit C, attached to this Agreement and made a part hereof;
(d) Furnishing engineering and inspection as required in connection with the construction of the
Project;
Form 0105 Rev. 06/01/05
2
(e) Removal of the existing Deschutes Market Road at -grade crossing, including removal of the
automatic warning devices, and obliteration of the crossing between the rails and two feet
outside thereof;
(f) Providing a contract project coordinator, at Agency's expense, to serve as a project
manager for the Project; and
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when
BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its
own employees working under applicable collective bargaining agreements.
4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or
Agency's contractor in connection with the Project which BNSF deems is reasonably necessary for the
immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such
work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse
BNSF for all such emergency work.
5. BNSF may charge Agency for insurance expenses, including self- insurance expenses, when
such expenses cover the cost of Employer's Liability (including, without limitation, liability under the
Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be
considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for
injury, loss or death to BNSF's employees, if any.
6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the
costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for
completed force - account work within thirty (30) days of the date of the invoice for such work. Upon
completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor
and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article
IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of the final
invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or
other charges due under this Agreement which is past its credit terms. The finance charge continues to
accrue daily until the date payment is received by BNSF, not the date payment is made or the date
postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges
as of the end of the month and will be reduced by amounts in dispute and any unposted payments
received by the month's end. Finance charges will be noted on invoices sent to Agency under this
section.
ARTICLE III — AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency
agrees as follows:
1. Agency must furnish to BNSF plans and specifications for the Project. Said plans together with
copy of calculations, and copy of specifications in English Units, must be submitted electronically in
"PDF" format, to BNSF for approval prior to commencement of any construction. BNSF will give Agency
final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this
Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications,
said plans and specifications will become part of this Agreement and are hereby incorporated herein.
Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with
respect to the finished product design and /or construction. Any approval by BNSF shall mean only that
the plans and specifications meet the subjective standards of BNSF, and such approval by BNSF shall
not be deemed to mean that the plans and specifications or construction is structurally sound and
appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local
ordinances and /or building codes.
Form 0105 Rev. 06/01/05
3
2. Agency must make any required application and obtain all required permits and approvals for the
construction of the Project.
3. Agency must provide for and maintain minimum vertical and horizontal clearances, as required
and approved by BNSF as part of the plans and specifications for the Project.
4. Agency must acquire all rights of way necessary for the construction of the Project.
5. Agency must make any and all arrangements for the installation or relocation of wire lines, pipe
lines and other facilities owned by private persons, companies, corporations, political subdivisions or
public utilities other than BNSF which may be necessary for the construction of the Project.
6. Agency must construct the Project as shown on the attached Exhibit A and do all work ( "Agency's
Work ") provided for in the plans and specifications for the Project, except railroad work that will be
performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the
performance of Agency's Work. The principal elements of Agency's Work are as follows:
(a) Construction of the Structure;
(b) All necessary grading and paving, including backfill of excavations and restoration of
disturbed vegetation on BNSF's right -of -way;
(c) Provide suitable drainage, both temporary and permanent;
(d) Design and construction of a permanent paved roadway across the Structure along the
east side of the track to be used for access to BNSF property located south of The
Deschutes Market Road Overpass;
(e) Installation and maintenance of an 8 -ft. high fence and /or concrete combination (throw
fence) on the outside barrier of the Structure;
(f) Job site cleanup including removal of all construction materials, concrete debris, surplus
soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the
satisfaction of BNSF;
7. Agency must apply and maintain said D.O.T. Crossing number 077839E and ODOT Crossing
Number 28T 143.80 -A in a conspicuous location on the Structure.
8. Agency's Work must be performed by Agency or Agency's contractor in a manner that will not
endanger or interfere with the safe and timely operations of BNSF and its facilities.
9. In order to prevent damage to BNSF trains and property, Agency must require its contractor(s) to
notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in
accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its
contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing
work on BNSF property or near BNSF tracks.
10. Agency or its contractor(s) must submit copy of any plans, electronically in "PDF" format,
(including calculations in English Units) for proposed shoring, falsework or cribbing to be used over,
under, or adjacent to BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring,
falsework or cribbing used by Agency's contractor shall comply with the BNSF Bridge Requirements set
forth on Exhibit F and all applicable requirements promulgated by state and federal agencies,
departments, commissions and other legislative bodies.
11. Agency must include the following provisions in any contract with its contractor(s) performing
work on said Project:
Form 0105 Rev. 06/01/05
4
(a) The Contractor is placed on notice that fiber optic, communication and other cable
lines and systems (collectively, the "Lines ") owned by various telecommunications
companies may be buried on BNSF's property or right -of -way. The locations of these
Lines have been included on the plans based on information from the
telecommunications companies. The contractor will be responsible for contacting
BNSF's Engineering Representative Rusty Olson at 206 - 625 -6189 and /or the
telecommunications companies and notifying them of any work that may damage
these Lines or facilities and /or interfere with their service. The contractor must also
mark all Lines shown on the plans or marked in the field in order to verify their
locations. The contractor must also use all reasonable methods when working in the
BNSF right -of -way or on BNSF property to determine if any other Lines (fiber optic,
cable, communication or otherwise) may exist.
(b) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering
representative Rusty Olson at 206 - 625 -6189 to stop construction at no cost to the
Agency or BNSF until these items are completed.
(c) In addition to the liability terms contained elsewhere in this Agreement, the contractor
hereby indemnifies, defends and holds harmless BNSF for, from and against all cost,
liability, and expense whatsoever (including, without limitation, attorney's fees and
court costs and expenses) arising out of or in any way contributed to by any act or
omission of Contractor, its subcontractors, agents and /or employees that cause or in
any way or degree contribute to (1) any damage to or destruction of any Lines by
Contractor, and /or its subcontractors, agents and /or employees, on BNSF's property
or within BNSF's right -of -way, (2) any injury to or death of any person employed by or
on behalf of any telecommunications company, and /or its contractor, agents and /or
employees, on BNSF's property or within BNSF's right -of -way, and /or (3) any claim
or cause of action for alleged Toss of profits or revenue by, or loss of service by a
customer or user of such telecommunication company(ies).THE LIABILITY
ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS
A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF
ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS
NEGLIGENCE OF BNSF.
(d) The Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor must cooperate fully
with any telecommunications company (ies) in performing such rearrangements.
12. Agency must incorporate in each prime contract for construction of the Project, or the
specifications therefor (i) the provisions set forth in Article III, Sections 8, 9, 10, 11, and 13; (ii) the
provisions set forth in Article IV, Sections 3, 4, 10 and 11; and (iii) the provisions set forth in Exhibit C and
Exhibit C -I, attached hereto and by reference made a part hereof.
13. Except as otherwise provided below in this Section 13, all construction work performed hereunder
by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such
contracts must include the following:
(a) All work performed under such contract or contracts within the limits of BNSF's right -of-
way must be performed in a good and workmanlike manner in accordance with plans and
specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF operations must
be subject to BNSF's approval;
Form 0105 Rev. 06/01/05
5
(c) No work will be commenced within BNSF's right -of -way until each of the prime
contractors employed in connection with said work must have (i) executed and delivered
to BNSF a letter agreement in the form of Exhibit C -I, and (ii) delivered to and secured
BNSF's approval of the required insurance; and
(d) If it is in Agency's best interest, Agency may direct that the construction of the Project be
done by day labor under the direction and control of Agency, or if at any time, in the
opinion of Agency, the contractor has failed to prosecute with diligence the work specified
in and by the terms of said contract, Agency may terminate its contract with the
contractor and take control over the work and proceed to complete the same by day labor
or by employing another contractor(s) provided; however, that any contractor(s) replacing
the original contractor(s) must comply with the obligations in favor of BNSF set forth
above and, provided further, that if such construction is performed by day labor, Agency
will, at its expense, procure and maintain on behalf of BNSF the insurance required by
Exhibit C -1.
(e) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's
representative Rusty Olson at 206 - 625 -6189 4 weeks advance notice of the proposed
times and dates for work windows. BNSF and Agency's contractor will establish mutually
agreeable work windows for the Project. BNSF has the right at any time to revise or
change the work windows, due to train operations or service obligations. BNSF will not
be responsible for any additional costs and expenses resulting from a change in work
windows. Additional costs and expenses resulting from a change in work windows shall
be accounted for in the contractor's expenses for the Project.
(f)
The plans and specifications for the Project must be in compliance with the Bridge
Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein.
14. Agency must advise the appropriate BNSF Manager of Public Projects, in writing, of the
completion date of the Project within thirty (30) days after such completion date. Additionally, Agency
must notify BNSF's Manager of Public Projects, in writing, of the date on which Agency and /or its
Contractor will meet with BNSF for the purpose of making final inspection of the Project.
15. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES,
INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT
COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
(INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE,
(II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE
OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)
ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY
CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI)
AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT -OF -WAY, INCLUDING,
WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII)
AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR
CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY
AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
Form 0105 Rev. 06/01/05
6
DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.
16. Agency must give BNSF's Manager of Public Projects written notice to proceed( "Notice to
Proceed ") with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the
railroad work (including, without limitation, procurement of supplies, equipment or materials) until written
notice to proceed is received from Agency.
17. Agency must perform all necessary work to obtain the permanent closure and vacation of
Deschutes Market Road across BNSF's right -of -way and must barricade the road approaches prior to
completion of the Project. BNSF will cooperate with Agency to achieve the closure and vacation of
Deschutes Market Road and will remove the crossing surface within its right -of -way.
ARTICLE IV — JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner
and each portion must be promptly commenced by the party obligated hereunder to perform the same
and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any
changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior
to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Bridge Requirements set forth on
Exhibit F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule
for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in
accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies
will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability.
Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the
labor forces assigned to complete the railroad work in the event of an emergency to provide for the
immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or
property on or near any BNSF owned property. BNSF will not be liable for any additional costs or
expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any
reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or
costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events
take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the
plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion,
prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the safe and
expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C -1 is
canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary
Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work
stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the
situation to the satisfaction of BNSF's Division Engineer or until additional insurance has been delivered
to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction
License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or
the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of
BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not
limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction
work on the Project, BNSF agrees to immediately notify the following individual in writing:
Form 0105 Rev. 06/01/05
7
George Kolb, County Engineer
Deschutes County Road Department
61150 SE 27th Street
Bend, OR 97702
5. Agency must supervise and inspect the operations of all Agency contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all
safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is
not being performed by Agency personnel at any time during construction of the Project, BNSF has the
right to stop construction (within or adjacent to its operating right -of -way). Construction of the Project will
not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the
situation is not being corrected in an expeditious manner, BNSF will immediately notify George Kolb for
appropriate corrective action.
6. BNSF will contribute 5% (hereinafter referred to as " BNSF's Share ") towards the total actual
costs of the Project. BNSF's Share will be based on the costs for preliminary engineering, right -of -way
and construction within the following limits;
(a) Where a grade crossing is eliminated by grade separation, the structure and approaches
required to transition to a theoretical highway profile which would have been constructed if
there were no railroad present, for the number of lanes on the existing highway and in
accordance with the current design standards of the appropriate state highway agency; and
(b) Where another facility, such as a highway or waterway, requiring a bridge structure is located
within the limits of a grade separation project, the estimated cost of a theoretical structure
and approaches as described in 23 CFR 646.210(c)(1) to eliminate the railroad- highway
grade crossing without considering the presence of the waterway or other highway.
Additionally, local, state and federal funds will be used in the construction of the Project. The total actual
cost of construction for the Project is presently estimated to be $2,949,785 more particularly described
(together with BNSF's Share) on Exhibit G attached hereto and incorporated herein.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, out of funds made available
to it for the construction of the Project, reimburse BNSF in full for the actual costs of all work performed by
BNSF under this Agreement, less BNSF's Share as set forth in Article IV, Section 6 herein. BNSF's Share
must be paid upon completion of the Project.
8. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will
comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of
Transportation, as amended from time to time, which manual is hereby incorporated into and made a part
of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design,
and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project
even though such work may have preceded the date of this Agreement.
9. The parties mutually agree that no construction activities for the Project, nor future maintenance
of the Structure once completed will be permitted during the fourth quarter of each calendar year.
Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center
(telephone number: 800 832 - 5452). The parties hereto mutually understand and agree that trains cannot
be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project
will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written
notice of such commencement. The commencement notice will reference BNSF's file number 077839E
and D.O.T. Crossing No. 077839E and must state the time that construction activities will begin.
Form 0105 Rev. 06/01/05
8
11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not
limited to, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the following terms
upon completion of construction of the Project:
(a) Agency will own and maintain, at its sole cost and expense, the Structure, the highway
approaches, and appurtenances thereto, lighting, drainage and any access roadways to
BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform
maintenance on the Structure in order to avoid conflicts with train operations. BNSF will
notify Agency prior to performing any such maintenance on the Structure. In the event
such maintenance involves emergency repairs, BNSF will notify Agency at its earliest
opportunity. Agency must fully reimburse BNSF for the costs of maintenance performed
by BNSF pursuant to this subsection (b).
(b) Agency must, at Agency's sole cost and expense, keep the Structure painted and free
from graffiti.
(c) Agency must apply and maintain vertical clearance signs which consistently and
accurately describe the minimum actual vertical clearance from the bottom of the
Structure to the top of any pavement.
(d) Agency must provide BNSF with any and all necessary permits and maintain roadway
traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to
inspect the Structure or to make emergency repairs thereto.
(e) It is expressly understood by Agency and BNSF that any right to install utilities will be
governed by a separate permit or license agreement between the parties hereto.
(f)
(g)
Agency must keep the Structure and surrounding areas clean and free from birds,
pigeons, scavengers, vermin, creatures and other animals.
If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs
(i) alterations or modifications to the Structure, or (ii) any maintenance or other work on
the Structure with heavy tools, equipment or machinery at ground surface level
horizontally within 25' -0" of the centerline of the nearest track, or (iii) any maintenance or
other work outside the limits of the deck of the Structure vertically above the top of the
rail, then Agency or its contractors and /or agents must procure and maintain the following
insurance coverage:
Railroad Protective Liability insurance naming only the Railroad as the Insured with
coverage of at least $5,000,000 per occurrence and $10,000,000 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
As used in this paragraph, "Railroad" means `Burlington Northern Santa Fe
Corporation ", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns
and affiliates of each.
In lieu of providing a Railroad Protective Liability Policy, Agency may participate in
BNSF's Blanket Railroad Protective Liability Insurance Policy if available to Agency or
its contractors. The limits of coverage are the same as above.
9
Form 0105 Rev. 06/01/05
12. Agency hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from
Agency property to BNSF tracks for maintenance purposes.
13. Agency must provide one set of as built plans, electronically in "PDF" format, (prepared in
English Units) to BNSF, as well as one set of computer diskettes containing as built CAD drawings of the
Structure and identifying the software used for the CAD drawings. The "as built plans" must comply with
the Bridge Requirements set forth on Exhibit F and depict all information in BNSF engineering stationing
and mile post pluses. The "as built plans" must also include plan and profile, structural bridge drawings
and specifications, and drainage plans. All improvements and facilities must be shown.
14. Subject to the restrictions imposed by Article IV, Section 9 above, Agency must notify and obtain
prior authorization from BNSF's Manager of Public Projects before entering BNSF's right -of -way for
maintenance purposes. If the construction work hereunder is contracted, Agency must require its prime
contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C -1, as the same may be
revised from time to time. Agency will be responsible for its contractor(s) compliance with such
obligations.
15. BNSF may, at its expense, make future changes or additions to the railroad components of the
Structure if necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i)
the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional
track or tracks, or (iii) the right to build other facilities in connection with the operation of its railroad. Such
changes or additions must not change or alter the highway components of the Structure. If it becomes
necessary or desirable in the future to change, alter, widen or reconstruct the highway components of the
Structure to accommodate railroad projects, the cost of such work, including any cost incidental to
alteration of railroad or highway facilities made necessary by any such changes to the Structure, will be
divided between BNSF and Agency in such shares as may be mutually agreed to by the parties hereto.
16. Agency may, at Agency's sole expense, alter or reconstruct the highway components of the
Structure if necessary or desirable, due to traffic conditions or pedestrian or other recreational traffic,
provided, however, that any such alteration or reconstruction must not encroach further upon or occupy
the surface of BNSF's right -of -way to a greater extent than is contemplated by the plans and
specifications to be approved by BNSF pursuant to Article III, Section 1 herein, without obtaining BNSF's
prior written consent and the execution of a supplement to this Agreement or the completion of a separate
agreement.
17. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or
the costs or expenses for labor and material connected with the construction will at all reasonable times
be open to inspection and audit by the agents and authorized representatives of the parties hereto, as
well as the State of Oregon and the Federal Highway Administration, for a period of one (1) year from the
date of the final BNSF invoice under this Agreement.
18. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party.
19. In the event construction of the Project does not commence within 2 Years of the Effective Date,
this Agreement will become null and void.
20. Neither termination nor expiration of this Agreement will release either party from any liability or
obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination or expiration.
21. To the maximum extent possible, each provision of this Agreement will be interpreted in such a
manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited
by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of
such prohibition or invalidity and the remainder of the provision will be enforceable.
Form 0105 Rev. 06/01/05
10
22. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is
the full and complete agreement between BNSF and Agency with respect to the subject matter herein
and supersedes any and all other prior agreements between the parties hereto.
23. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the
following addresses:
BNSF Railway Company:
Agency:
11
BNSF's Manager of Public Projects
John R. Stilley
909 - 386 -4474
Deschutes County Road Department
George Kolb, County Engineer
541 - 322 -7113
Form 0105 Rev. 06/0110E
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
WITNESS:
REVIEWED by County Counsel
By:
Date:
ATTEST:
Recording Secretary
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
DESCHUTES COUNTY
TAMMY BANEY, CHAIR
DENNIS R. LUKE, VICE CHAIR
ALAN UNGER, COMMISSIONER
Date:
Form 0105 Rev. 06/01/05
398
WEST 1/4 COR. SEC. 26
T.16 S.,R.12 E., W.M.
TUMALO ROAD
405 +00
//
4 �5 +0
NRkT o'
/c
/1
/
/
(0
SCALE
300 0 150 300
1.1 immi
1 inch = 300 ft.
HATCHING = RAILROAD
OVERPASS EASEMENT
17,014 sq.ft.
0.39 acres
X
/
DESCHU I ES Du C T iON OVERCROSS NC
NEW TUMALO ROAD/ BURLINGTON NORTHERN SANTA FE RAILWAY CO. OVERPASS
DESCHUTES COUNTY ROAD DEPARTMENT
61150 S.E. 27TH STREET, BEND, OR. 97702
SCALE: 1" = 300
'DRAWN BY: M.J.B.
DATE: 7/22/08
FILE: BNRR— bridge- 2008RW.dwg
REVISIONS'
SHEET
1 OF 1
J:\ CAD\ Projects \W376SVY \DWG \Phase2 \BNRR — bridge- 2008RW.dwg
07/22/2008