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HomeMy WebLinkAbout2007-137 - Grade Separation Construction and Maintenance Agreement with BNSFL +.... i . Bill No. 2007-.137 Ordinance No. 2007-137 AN ~ ORDINANCE AUTHORIZING AND APPROVING THE CITY OF RIVERSIDE, MISSOURI, TO ENTER INTO A GRADE SEPARATION CONSTRUCTION AND MAINTENANCE AGREEMENT WITH BNSF RAILWAY COMPANY AND THE MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION WHEREAS, the City of Riverside (the "City") desires to enter into a Grade Separation, Construction and Maintenance Agreement with BNSF Railway Company and the Missouri Highways and Transportation Commission for construction of a roadway from the diamond interchange at Horizons Parkway (formerly Van de Populier) to Highway 9, including a bridge over the BNSF Railroad tracks (the "Projects"); and WHEREAS, the City has reached an agreement ("the Agreement") with BNSF Railway Company and the Missouri Highway and Transportation Commission concerning the cost participation for the Project in which the City agrees to fund certain engineering, construction and other costs, and BNSF Railway Company agrees to fund a portion of the construction costs; and WHEREAS, the City finds that entering into the Agreement is for a public purpose and is advisable and in the City's best interests for the promotion of the health, safety and welfare of the residents of the City. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: Section 1. This Ordinance is intended and is hereby determined and declared to be necessary to accomplish and serve the public purpose of improving public roads by entering into the Agreement. Section 2. The City of Riverside shall enter into the Agreement, to be substantially in the form attached hereto as Exhibit A. Section 3. The Mayor, the City Administrator, the City Attorney and other appropriate City officials are hereby authorized to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Ordinance and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents, as may be necessary or convenient to perform all matters herein authorized. Section 4. This Ordinance shall be in full force and effect from and after its passage and approval. n.. ,. ~. ~' - Y ADOPTED by the Board f Aldermen of the City of Riverside, Missouri, and approved by the Mayor of Riverside, this ~ day of December, 2007. Mayor Kathleen L. Rose ATTEST: _ ~~d~ ty Clerk 11• _ ;, 4 L CCO FORM: RR20 Horizons Parkway, Approved: 9/95 (MBG) Riverside Revised: 6/02 (RMH) Bridge No. A7616 Modified: 9/07 (MWH) ~~ T ~T M~oTDOT Job No. J4117096 ~lT~1V ~ i ~ ~~'~ l~J~~ GRADE SEPARATION CONSTRUCTION AND MAINTENANCE AGREEMENT THIS AGREEMENT is entered into by and between the Missouri Highways and Transportation Commission (hereinafter, "Commission"), BNSF Railway Company (hereinafter, "Railroad"), and the City of Riverside, Missouri (hereinafter, "City): WITNESSETH: WHEREAS, the City proposes to construct Horizons Parkway in Platte County, Missouri, a job designated by the City as Horizons- Parkway .Phase 2 (hereinafter, "Project"); WHEREAS, the City proposes to construct, own and maintain a new bridge (hereinafter, "Bridge") to carry Horizons Parkway over the Railroad's mainline track on the Railroad's Nebraska Division, St. Joseph Subdivision at approximately Milepost 7.0, a crossing to be designated as AAR/US DOT # Q Zl ~IQ o+l ; WHEREAS, the Commission will oversee the construction of said Project, a job designated by the Commission as Job No. J411709B; WHEREAS, Van de Popoulier Road crosses the Railroad's track at-grade near Railroad Milepost 7.11, a crossing designated as AAR/US DOT # 079 382U; WHEREAS, the existing at-grade crossing on Van de Popoulier Road will be permanently closed when the Bridge is opened to highway traffic; WHEREAS, the Railroad, and the City will provide funds in accordance with this agreement to construct the Bridge; WHEREAS, the City is willing to undertake the construction of said Project including the removal of the existing at-grade crossing with such funds as may be available to the City for this purpose, and the Railroad is willing to consent to the execution of the said Project upon the terms and conditions herein stated and not otherwise; WHEREAS, the parties desire that the work to be performed under this Agreement by the parties hereto -will be performed in accordance with plans and 1 specifications to be prepared by the City and in accordance with Exhibit A (which is attached hereto and incorporated herein by reference); NOW, THEREFORE, in consideration of the mutual covenants, promises, and representations in this Agreement, the parties agree as follows: (1) PROPERTY RIGHTS: The property rights needed by the City and the Commission from the Railroad for this Project will be described by a separate instrument and will be secured following the consummation of this Agreement. No work by the City, the Commission or the Commission's contractor will be allowed over the Railroad's right of way until the property rights document is executed by the Railroad. The City, without expense to the Railroad or the Commission, will secure from the owner or owners of that certain property lying adjacent to and outside of the Railroad's right of way all necessary easements, permits, or other interest therein necessary for the occupancy and use of said property during the construction, maintenance, and operation of the roadway and its appurtenances. (2) CITY'S PLANS: The City and the Commission will perform their work in accordance with detailed plans and specifications prepared by TranSystems Corporation. When such plans and specifications affect any right of way or facility of the Railroad, such aspects of the plans will be submitted to the Railroad for review and approval. No work pursuant to said plans and specifications shall be performed on the Railroad's right of way prior to receipt of notice to proceed given by the Railroad to the City and the Commission. Nothing provided in this Agreement with respect to said plans shall be construed or deemed to be a ratification or an adoption by the Railroad of said plans as its own. (3) PLAN REVISIONS: No change will be made to approved plans and specifications without approval by all parties hereto which may in any way affect Railroad's facilities or traffic. The revised plans and specifications will be furnished to all parties prior to implementation of changes. Furthermore, any de-watering utilizing drains or ditches on Railroad's property must be approved by the Railroad. The Commission's contractor must furnish details on how contractor will perform work that may affect existing drainage and/or possible fouling of track ballast. (4) CONSTRUCTION OF PROJECT: All work done pursuant to this Agreement will be done in accordance with (a) the plans and specifications prepared by the City, and (b) Exhibit A (attached hereto and incorporated herein by reference). The work will be performed at such time and in such manner as not to interfere with the movement of trains or traffic upon the tracks of the Railroad. (5) TEMPORARY CROSSING: If a temporary crossing is required during construction, the crossing will be covered under this Agreement and the location, type and duration and conditions of use for the crossing will be mutually agreed upon between the Railroad and the Commission or its contractor. 2 l II ~. ~ (6) RAILROAD'S WORK: The following will be performed by the Railroad at the City's expense except as noted. (A) Relocate Railroad communication lines if required to clear construction area. (B) Perform flagging and furnish protective services and devices as stipulated in Exhibit A to protect Railroad's interests. The Commission's contractor will pay the costs for flagging services as defined in Exhibit A by deduction for the contractor's payments. (C) Perform preliminary engineering and inspection of the construction as required to protect the Railroad's facilities and traffic. (D) Provide cost estimates for all reimbursable force account work to be performed by the Railroad at City's expense including the removal of the crossing surface and approaches within the Railroad's right of way at Van de Popoulier Road (DOT # 079 3820) after the Bridge is opened to traffic. (E) The Railroad shall pay City Four Hundred Sixty-six Thousand Forty- four Dollars ($466,044.00) which is estimated to be five percent of the cost of the bridge construction, all fill work associated with the bridge which is comprised of providing and placing acceptable fill on either side of the bridge where the elevation deviates from the natural ground as it exists on the date of this agreement, pavement on top of the fill and all right-of--way costs and other associated miscellaneous construction items and costs to complete in a safe fashion for right-of--way usage which is normal to the construction of the project. Railroad shall pay the City upon completion of the bridge structure over Railroad's right of way. (F) Maintenance of Records The Railroad agrees to maintain all books, documents, papers, accounting records, and other evidence pertaining to cost proposals and estimates and to costs incurred. The Railroad shall make such information available for the purpose of examination and audit by a representative of the City, Commission, and/or The Federal Highway Administration ("FHWA") from the date of the Railroad's first invoice to the City or the Commission. Railroad shall make such information available at Railroad's offices during reasonable hours for a period of not less than three (3) years from the date final reimbursement payment has been received by the Railroad. Copies of this information shall be furnished if requested. (7) REIMBURSEMENT: The City will reimburse the Railroad for all cost and expense incurred by the Railroad in connection with the construction work as indicated in this Agreement, except for flagging services which will be reimbursed by the Commission's contractor as stated in Exhibit A and paragraph (6). The Railroad may submit progress bills to the City during the progress of the work included in this agreement for the actual cost of services and expenses and the City shall pay such bills promptly. 3 (A) The Railroad agrees not to commence construction work for said Project until receipt from the City of written notice to proceed with the work, and that reimbursement will be limited to construction costs incurred subsequent to the date of said notification. (B) It is further agreed that a final and complete billing of all actual incurred costs and expenses, ascertained in accordance with the provisions of 23 CFR 140 Subpart I, which by this reference is incorporated in this Agreement, shall be made at the earliest practical date. The City shall, upon presentation of final billing promptly reimburse the Railroad for the cost of services and expenses of work included in this Agreement. (C) Railroad may charge City for insurance expenses, including when such expenses cover the cost of employer's liability (including, without limitation, liability under the Federal Employers' Liability Act) in connection with the construction of the Project. Such charges will be included in the additive rates approved by FHWA for the Project pursuant to 23 CFR. (8) CITY'S WORK: All work to be performed and materials to be furnished by the City, Commission or its contractor will be at the City's expense. The City will be responsible for the following: (A) Except as otherwise provided, furnish all plans, engineering, supervision, labor, material, supplies and equipment necessary for construction of the Project. (B) Provide adequate drainage of the overhead structure away from the Railroad's tracks and protect track drainage to the satisfaction of the Railroad. (C) Maintain the overhead highway bridge structure in accordance with paragraph (19) of this Agreement. (9) COMMISION'S WORK: The Commission's contractor will prosecute and complete work in a good and workmanlike manner according to contractor's own methods and with and by contractor's own means and employees, free from any supervision, inspection, or control whatsoever by the Railroad, except only as may be necessary to enable the Railroad to determine whether work performed complies with the requirements of this Agreement and conforms to the plans and specifications. It is the intention of the parties that contractor shall be and remain an independent contractor and that nothing contained in this Agreement shall be construed as inconsistent with that status. (A) The Commission shall require its contractor to abide by special provisions for the benefit and protection of Railroad interests that shall conform to Exhibit A to this Agreement. Additionally, the Commission agrees to incorporate the indemnity 4 obligations set forth in Exhibit A to this Agreement into the Commission's contract with the contractor. The Commission shall require its contractor to use all care and precaution necessary to avoid accident, damage, or interference to the Railroad's tracks. (B) If in the opinion of the Railroad a dangerous situation exists because of the contractor's work, the work will stop and the track made safe before the contractor is allowed to resume. No work delay or claim will be assessed the Railroad as a result of this stoppage. (C) Commission or Commission's contractor 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 Railroad which may be necessary for the construction of the Project. (D) Commission must give Railroad's Manager of Public Projects written notice to proceed with the Railroad's work. (10) INSURANCE: The Commission shall cause its contractor at contractor's expense to obtain and maintain in force throughout the construction period the insurance specified on Exhibit A. (11) UNSAFE WORK: The Railroad's engineer or designee may advise the Commission's contractor or the contractor's work site supervisor that an agent, servant, or employee of contractor or of a subcontractor is working in an unsafe manner or may potentially work in an unsafe manner, in which event, contractor's work site supervisor shall cause said agent, servant, or employee to leave the Railroad's property. The Commission will require its contractor to assume all responsibility for the safe work method and practices of its agents, servants, and employees. (12) TRAIN DELAYS: See Exhibit A (13) CONSTRUCTION CLEARANCES: During construction of this Project clearances may not be restricted to less than 15' horizontally from centerline of track, and 22' vertically from top of rail elevation unless authorized by Railroad. This restriction applies to the performance of any work near the Railroad's track(s) including any excavation, slope encroachment, or driving of sheetpiles. No vehicles or machines shall remain unattended within 15' horizontally from centerline of a secondary track or within 25' horizontally from centerline of a mainline track. (14) STOCKPILING OF CONSTRUCTION MATERIALS: Commission's contractor must store construction materials and/or equipment in accordance with the specifications on Exhibit A. (15) STORAGE AREA: The Commission's contractor and Railroad's designee will mutually agree upon a location for the contractor's storage area prior to construction. 5 l 11 ~, .. ,[ After construction is completed, the contractor will restore the area to its condition prior to construction subject to inspection by the Railroad. If the storage area is not restored to an acceptable condition, the Railroad will do so at the contractor's expense. (16) DEDUCTIONS FROM COMPENSATION: In no event shall the Railroad be required to make deductions from compensation or report earnings of employees of contractor or subcontractor, under any Social Security Act, Railroad Retirement Act, Unemployment Compensation or Insurance Act, or any other statute, local, state, or federal, purporting to levy a tax on payrolls or the compensation of employees (17) INDEMNIFICATION BY THE CONTRACTOR: The Commission's contractor shall indemnify, defend and hold harmless the Railroad from and against any and all loss, damage, claims, demands, causes of action, costs and expenses of whatsoever nature arising out of injury to or death of persons whomsoever, or out of damage to or destruction of property whatsoever (including, without limitation, damage to fiber optic, communication and other cable lines and systems), where such injury, death, damage or destruction results from any cause arising out of work pertormed by the contractor pursuant to the agreement between Railroad and the Commission for the Project. The Commission's contractor shall also release the Railroad from and shall waive any claims for injury or damage to equipment or other property, which may result from the construction, maintenance and operation of railroad tracks, wire lines, fiber optic cable, pipe lines and other facilities on said right of way of the Railroad by the contractor. THE LIABILITY ASSUMED BY THE 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 RAILROAD, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROVEN BY ANY CLAIMANT TO HAVE BEEN PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE OR GROSS NEGLIGENCE OF RAILROAD. The contractor's indemnity shall include loss of profits or revenue arising from damage or destruction to fiber optic, communication and other cable lines and systems. (18) BURIED CABLE: The Commission is placed on notice that fiber optic, communications, control systems, and other types of cables may be buried on Railroad property. The Commission shall comply, or shall cause its contractor to comply with the buried cable requirements set forth on Exhibit A. i (19) MAINTENANCE OF STRUCTURE: Upon completion of the Project the City will, at its sole cost and expense, maintain said overhead structure, the highway approaches and appurtenances thereto, lighting and drainage, if any. (A) The City agrees that it will do nothing and permit nothing to be done in the maintenance of said overhead structure that will interfere with or endanger facilities of the Railroad. 6 R. , ,i (B) The Railroad may make changes in or addition to its existing facilities within the limits of the said grade separation structure provided that the usefulness and the purpose of the grade separation shall not be impaired. Any attachment to or modification of the structure by the Railroad must first be approved by the City, which approval shall not be unreasonably withheld. (C) The City will notify the Railroad whenever the City is requested to grant (or contemplates granting) a right to install and maintain a utility facility upon the structure. The City will provide detailed information regarding the nature of the utility crossing to the Railroad, and the Railroad will have a minimum of 30 days to make comments regarding the proposed utility crossing. (D) City agrees to use reasonable efforts to avoid scheduling routine maintenance on the structure during the fourth quarter of each calendar year. The preceding sentence shall not apply to emergency maintenance or repairs to the structure. (E) If City`s employees perform maintenance work on the structure, City agrees to maintain the liability coverage specified in Title 36, Revised Statutes of Missouri, Chapter 537, as amended from time to time. City may satisfy the liability coverage requirement set forth in the preceding sentence by purchasing an appropriate liability insurance policy or by maintaining a self insured retention equal to the liability amounts set forth in Title 36, Revised Statues of Missouri, Chapter 537 (see 537.600 and 537.610). If City's contractors or agents, on behalf of City, perform (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 City's contractors and/or agents must procure and maintain insurance coverage acceptable to Railroad and the City. The insurance coverage procured by any contractors or agents of City shall include Railroad Protective Liability insurance naming only the Railroad as the Insured and Commercial General Liability insurance naming the Railroad as an additional insured. (F) City must obtain Railroad's prior written consent for any substantial alteration or reconstruction of the structure. Substantial alterations or substantial reconstruction of the structure will be evidenced in a supplement to this Agreement or in a separate agreement. (20) REMOVAL OF STRUCTURE: In case said overhead bridge shall at any time cease to be a part of the City's highway system or otherwise become vacated or abandoned, the rights and benefits of the City under this Agreement shall immediately cease, and the City will remove said structure at its own cost and expense. If City vacates or ceases to use the structure, the City will perform all necessary work to obtain the permanent vacation and the termination of City's property rights over Railroad's property or right of way whether such rights are evidenced by an easement or license, 7 I ~ ~.. ..l and will obtain the permanent relocation of the subject highway and will eliminate or barricade the road approaches to the structure. If after one year the City has not removed the said structure, the Railroad may remove the structure at the City's expense. (21) ASSIGNMENT: Any party may assign any receivables due them under this Agreement provided, however, such assignments shall not relieve the assignor of any of its rights or obligations under this Agreement. (22) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed according to the laws of the State of Missouri. (23) AMENDMENTS: Any change in this Agreement, whether by modification or supplementation, must be accomplished by a formal contract amendment signed and approved by the duly authorized representatives of the Railroad, Commission and the City. (24) CITY REPRESENTATIVE: The City's engineer assigned to this Project is designated as the City's representative for the purpose o€ administering the provisions of this Agreement. The representative may designate by written notice other persons having the authority to act on behalf of the City in furtherance of the performance of this Agreement. (25) RAILROAD REPRESENTATIVE: The Railroad's Manager Public Projects is designated as the Railroad representative for the purpose of administering the provisions of this Agreement. The Railroad representative may designate by written notice other persons having the authority to act on behalf of the Railroad in furtherance of the performance of this Agreement. (26) COMMISSION REPRESENTATIVE: The Commission's resident engineer assigned to this Project is designated as the Commission's representative for the purpose of administering the construction provisions of this Agreement. The Commission's representative may designate by written notice other persons having the authority to act on behalf of the Commission in furtherance of the performance of this Agreement. (27) SECTION HEADINGS: All section headings contained in this Agreement are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. (28) EXECUTION IN COUNTERPARTS: This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed to be an original and all of which shall constitute but one and the same agreement. (29) AGREEMENT/BENEFIT: This Agreement shall inure to the benefit of and be binding on the parties hereto, their successors and assigns. 8 l ~ ~, ,I (30) SURVIVAL OF OBLIGATIONS: Neither termination nor expiration of this Agreement will release any 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 expiration or termination. IN WITNESS WHEREOF, the parties have entered into this Agreement on the date last written below. Executed by the Railroad this ~ day of , 2003. Executed by the City this lI'~day of , 2007. Executed by the Commission this ~ day of , 200~~, MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION Title ~~I P.IC ~-i/~~; n ~o / ~ P~ ATTEST: Se~ry to the Commission CITY OF RIVERSIDE, MISSOURI By Title ATTEST: Title Approved as to Form: ~~ Title Grp,. ~414m-'-«~r r-~ Ordinance No 0~0~ - ~ 9 ~, . BNSF RAILWAY COMPANY By 6dd~~ Title ~/~ ~A2¢P,y'IAA~/1~S ATTEST: By Title Approved as to Form: 10 Exhibit A BNSF RAILWAY COMPANY REQUIREMENTS To Report an Emergency on the railroad call: (800) 832-5452 The bridge over the railroad is to be located at approximately Milepost 7.0 on BNSF's St. Joseph Subdivision. 1.0 Authority of Railroad Englneer and Commission's Representative. 1.1 The authorized representative of BNSF Railway Company, herein called "Railroad Engineer", shall have final authority in all matters affecting the safe maintenance and operation of railroad traffic including the adequacy of the foundations and structures supporting the railroad tracks. 1.2 The authorized representative of the Missouri Highways and Transportation Commission, herein called "Engineer", shall have authority over all other matters as prescribed herein and in the Project specifications. 2.0 Contractor's Indemnity Obligations to the Railroad. 2.1 The term "contractor" as used in this special provision includes any and all subcontractors. The contractor shall indemnify, defend and hold harmless the Railroad from and against any and all loss, damage, claims, demands, causes of action, costs and expenses of whatsoever nature arising out of injury to or death of persons whomsoever, or out of damage to or destruction of property whatsoever, including, without limitation, damage to fiber optic, communication and other cable lines and systems, where such injury, death, damage or destruction results from any cause arising out of work performed by the contractor pursuant to the agreement between Railroad and the Commission for the Project, and shall also release the Railroad from and shall waive any claims for injury or damage to equipment or other property, which may result from the construction, maintenance and operation of railroad tracks, wire lines; fiber optic cable, pipe lines and other facilities on said right of way of the Railroad by the contractor. THE LIABILITY ASSUMED BY THE 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 THE RAILROAD, THE RAILROAD'S AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROVEN BY ANY CLAIMANT TO HAVE BEEN PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE OR GROSS NEGLIGENCE OF THE RAILROAD. The contractor's indemnity shall include loss of profits or revenue arising from damage or destruction to fiber optic, communication and other cable lines and systems. 2.2 In addition to the indemnity obligations contained in the preceding paragraph, the contractor shall indemnify, defend and hold harmless the Railroad from any claims, expenses, costs, actions, demands, losses, fines, penalties, and fees, of whatsoever nature arising from, related to or connected, in whole or in part, with the following: (a) The removal of the contractor's agents, servants, employees or invitees from the Railroad's property for safety reasons. A-1 t .. ) - ~, . . ,G i (b) Contractor's compliance or failure to comply with the provision of applicable law in connection with the performance of contractor's work. 2.0 Notice of Starting Work. 2.1 The contractor shall not commence any work on Railroad's right of way until the contractor has complied with the following conditions: (a) At least 30 days in advance of the date the contractor proposes to begin work on Railroad's right of way, the contractor shall give the Railroad written notice to Railroad Engineer at the address below with copy to the Engineer who has been designated to be in charge of the work. Ms. Cheryl Townlian, Manager Public Projects BNSF Railway Company 1625 N. Lexington Springfield, Missouri 65802 Office: (417) 829-2134 Cell: (417) 848-7035 E-mail: Cheryl.Townlian@bnsf.com (b) Obtain written or electronic authorization from the Railroad to begin work on the Railroad's right of way, such authorization to include an outline of specific conditions with which contractor shall comply. (c) Obtain the insurance coverage required in Section 12.0 of this job special provision. Contractor shall submit written evidence of such coverage to Railroad prior to commencing any work. (d) Prior to performing any work on Railroad's property, right -of way or in an area that may impact Railroad's operations, the contractor's employees, representatives or agents who are regularly assigned to perform work on the Project shall complete the safety orientation training available on the Internet at www.contractororientation.com, hereinafter called, "Internet Safety Orientation". If the contractor's employee, representative or agent is not regularly assigned to perform work on the Project, hereinafter called "Flexible Worker(s)", the contractor shall ensure that any Flexible Worker receives appropriate safety training prior to pertorming any work on the Railroad's property, right ~f way or in an area that may impact the Railroad's operations. The content of safety training for Flexible Workers shall include the information covered in the Intemet Safety Orientation. The approximate cost of the Internet Safety Orientation is $11 per person, subject to annual escalation. 2.2 The Railroad's written authorization to proceed with the work, with a copy to the Engineer, will include the names, addresses and telephone numbers of the Railroad's representatives who are to be notified as hereinafter required. Where more than one representative is designated, the area of responsibility of each representative shall be specified. 3.0 Interference with Railroad Operations. 3.1 The contractor shall an'ange and conduct all work so that there shall be no interference with the Railroad's operations, including train, signal, telephone and telegraphic services; or damage to the Railroad's property; poles, wires and other facilities of tenants, licensees, easement grantees and invitees on the Railroad's right of way. Whenever work may affect the operations A-2 l .. if ~, , .. .~ i . or safety of trains, the method of doing such work shall first be submitted to the Railroad Engineer for approval, but such approval shall not relieve the contractor from liability. Any work to be performed by the contractor that requires flagging service or inspection service shall be deferred by the contractor until the flagging service required by the Railroad is available at the job site. 3.2 Whenever work within the Railroad's right of way is of such a nature that impediment to the Railroad's operations is unavoidable, such as use of runaround tracks or necessity for reduced speed, the contractor shall schedule and conduct these operations so that such impediment is reduced to the absolute minimum. 3.3 Should conditions arising from, or in connection with the work require that immediate and unusual provisions be made to protect the Railroad's operations and property, the contractor shall make such provisions. If in the judgment of the Railroad Engineer, or the Engineer if the Railroad Engineer is absent, such provision is insufficient, the Railroad Engineer or Engineer may require or provide such provisions as deem necessary. In any event, such provisions shall be at the contractor's expense and without cost to the Railroad or the Commission. 3.4 The contractor shall be responsible for any damage to the Railroad as a result of work on the Project, which shall include but not be limited to interterence with the normal movement of trains caused exclusively by the work performed by the contractor. The contractor shall be responsible for damages for the Railroad's train delays that are caused exclusively by the contractor. The Railroad agrees not to perform any act to unnecessarily cause any train delay. The damages for train delays per freight hour will be billed at an average rate per hour as determined from the Railroad's records. These records shall be provided by the Railroad, upon request, to the Commission or the Commission's contractor. 4.0 Track Clearances. 4.1 The minimum track clearances to be maintained by the contractor during construction are shown on the Project plans. However, before undertaking any work within Railroad's right of way, or before placing any obstruction over any track, the contractor shall: (a) Notify the Railroad Engineer at least 72 hours in advance of the work. (b) Receive assurance from the Railroad Engineer that arrangements have been made for flagging service as may be necessary. (c) Receive permission from the Railroad Engineer to proceed with the work. (d) Ascertain that the Engineer has received copies of notice to the Railroad and of the Railroad's response. 4.2 The contractor shall fully comply with any horizontal and vertical clearance requirements imposed by Missouri state statutes and regulations and Federal statutes and regulations regarding the placement of structures or equipment near or over railroad tracks. 5.0 Construction Procedures. 5.1 General. Construction work on the Railroad's property shall be: A-3 1 11 ~.. ( (a) Subject to the inspection and review of the Railroad. (b) in accordance with the Railroad's written outline of specific conditions (c) In accordance with this special provision. 5.2 Excavation. The subgrade of an operated track shall be maintained with the berm edge at least 12 feet from centerline of track and not more than 26 inches below top of the rail. The contractor will not be required to make existing section meet this specification if substandard, in which case the existing section will be maintained. The contractor shall cease all work and notify the Railroad immediately before continuing excavation in the work area if obstructions are encountered which do not appear on the drawings. If the obstruction is a utility and the owner of the utility can be identified, then the contractor shall also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work shall be performed until the exact location has been determined. There will be no exceptions to these instructions. Additionally, all excavations shall be conducted in compliance with applicable Occupational Safety and Health Act regulations and, regardless of depth, shall be shored where there is any danger to tracks, structures or personnel. Any excavations, holes or trenches on the Railroad's property shall be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas shall be secured and left in a condition that will ensure that Railroad's employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations shall be back filled as soon as possible. 5.3 Excavation for Structure. The contractor shall be required to take special precaution and care in connection with excavating, shoring pits and in driving piles for footings adjacent to tracks to provide adequate lateral support for the tracks and the loads which the tracks carry, without disturbance of track alignment and surtace, and to avoid obstructing track clearances with working equipment, tools or other material. The procedure for doing such work, including need of and plans for shoring, shall be approved by the Railroad Engineer before work is performed, but such approval shall not relieve the contractor from liability. Before submission of plans to the Railroad Engineer for approval, the Engineer will first review such plans in accordance with the Missouri Standard Specifications for Highway Construction, hereinafter called "Standard Specifications". The responsibility for the design and construction of the sheeting rests solely with the contractor. The temporary shoring along the railroad tracks shall be designed for the Cooper E80 loading. The design shall insure that the shoring is braced or substantially securely to prevent movement. The contractor shall submit plans for the temporary shoring that shall be signed, sealed, and stamped in accordance with the laws relating to Architects and Professional Engineers, Chapter 327, RSMo. and then submitted for review by the Engineer. 5.4 Demolition of Existing Structures. The contractor shall be required to take special precaution and care in connection with demolition of existing structures. The procedure for doing such work, including need of and plans for temporary falsework, shall first be approved by Railroad Engineer before work is pertormed, but such approval shall not relieve the contractor from liability. Before submission of plans to the Railroad Engineer for approval, the Engineer will first review such plans. 5.5 falsework. The contractor shall be required to take special precaution and care to prevent any material from falling on the Railroad's right of way. The procedure for preventing material from falling, including need of and plans for temporary falsework, shall first be approved by the Railroad Engineer, but such approval shall not relieve the contractor from liability. Before A-4 submission of plans to the Railroad Engineer for approval, the Engineer will first review such plans. 5.6 Blasting. 5.6.1 The contractor shall obtain advance approval of the Railroad Engineer and the Engineer for use of explosives on or adjacent to the Railroad's property. If permission for use of explosives is granted, the contractor shall be required to comply with the following: (a) Blasting shall be done with light charges under the direct supervision of a responsible officer or employee of the contractor. (b) Electric detonating fuses shall not be used because of the possibility of premature explosions resulting from operation of two-way train radios. (c) No blasting shall be done without the presence of the Railroad Engineer. At least 72 hours advance notice to the person designated in the Railroad's notice of authorization to proceed as mentioned in Section 2.2 of this job special provision, the contactor shall be required to arrange for the presence of the Railroad Engineer and such flagging as the Railroad may require. (d) The contractor shall have at the job site adequate equipment, labor and materials and allow sufficient time to clean up debris resulting from the blasting without delay to trains, as well as correcting, at contractor's expense, any track misalignment or other damage to the Railroad's property resulting from the blasting as directed by the Railroad Engineer. If contractor's actions result in delay of trains, the contractor shall bear the entire cost thereof. 5.6.2 The Railroad Engineer will: (a) Determine the approximate location of trains and advise the contractor the approximate amount of time available for the blasting operation and clean-up. (b) Have the authority to order discontinuance of blasting if blasting is too hazardous or is not in accordance with this special provision. 5.7 Maintenance of Railroad Facilities. The contractor shall be required to maintain all ditches and drainage structures free of silt or other obstructions that may result from contractor's operations. The contractor shall promptly repair eroded areas within Railroad's right of way and repair any other damage to the Railroad's property, tenants, licensees, easement grantees and invitees. All such maintenance and repair of damages due to the contractor's operations shall be done at the contractor's expense. 5.8 Storage of Materials and Equipment. 5.8.1 The contractor shall not store or stockpile construction materials or equipment closer than 25 feet to the centerline of the nearest railroad track or on the Railroad's property not covered by construction easement, contractor's permit, lease or agreement. Additionally, the contractor shall not store or leave materials or equipment within 250 feet of the edge of any highway/rail at- grade crossings. Further, both sides of a main track shall remain unobstructed for a distance of 10 feet from the exterior edge of the track at all times to allow for stopped train inspection. A-5 i ... II ~, .. ,~ 5.8.2 Machines or vehicles shall not be left unattended with the engine running. Parked machines or equipment shall be in gear with brakes set and with blade, pan or bucket lowered to the ground if so equipped. All grading or construction machinery that is left parked near the track unattended shall be effectively immobilized so that unauthorized persons cannot move such equipment. 5.9 Cleanup. Upon completion of the work, the contractor shall remove from within the limits of the Railroad's right of way, all machinery, equipment, surplus materials, falsework, rubbish or temporary buildings of the contractor, and leave said right of way in a neat condition satisfactory to the Railroad Engineer. 5.10 Buried Cable and Other Buried Facilities. 5.10.1 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 Railroad's property or right of way. The locations of the buried Lines, pipelines or utility facilities have been included on the plans based on information from the telecommunications companies, pipeline operators, or utilities, as the case may be. The contractor shall be responsible for contacting the Railroad Engineer, the Railroad's 24-hour information number (1- 800-533-2891), the telecommunications companies, pipeline operators and utilities and notifying them of any work that may damage the buried Lines, pipelines, utility facilities and/or intertere with their service. The contractor shall verify the location of all buried Lines, pipelines and utility facilities shown on the plans or marked in the field in order to establish their exact locations prior to or while doing work on the Railroad's property or right of way. The contractor shall also use all reasonable methods when working on the Railroad's property or right of way to determine if any other buried Lines, pipelines or utility facilities exist on the Railroad's property or right of way. 5.10.2 Failure to mark or identify the buried Lines, pipelines or utility facilities will be sufficient cause for the Railroad Engineer to stop construction at no cost to the Commission or Railroad until these items are completed. The contractor shall be responsible for the rearrangement of any buried facilities, Lines, pipelines or utility facilities determined to intertere with the construction. The contractor shall cooperate fully with any telecommunications companies, pipeline operators and utility facility owners in performing such rearrangements. 6.0 Damages. The Railroad will not assume liability for any damages to the contractor, contractor's work, employees, servants, equipment and materials caused by railroad traffic. Any cost incurred by the Railroad for repairing damages to Railroad's property or to property of the Railroad's tenants, licensees, easement grantees and invitees caused by or resulting from the contractor's operations shall be paid directly to the Railroad by contractor. 7.0 Flagging Services. 7.1 When Required. Under the terms of the agreement between the Commission and the Railroad, the Railroad has sole authority to determine the need for flagging required to protect the Railroad's operations. In general, the requirements of such services will be whenever the contractor's personnel or equipment are, or are likely to be, working on the Railroad's right of way within 25 feet of the centeriine of any track, or across, over, adjacent to, or under a track, or when such work has disturbed or is likely to disturb a railroad structure or the railroad roadbed or surface and alignment of any track to such extent that the movement of trains must be controlled by flagging, or reasonable probability of accidental hazard to Railroad's operations or personnel. A-6 Normally, the Railroad will assign one flagger to a Project; but in some cases, more than one may be necessary, such as yard limits where 3 flaggers may be required. However, if the contractor works within distances that violate instructions given by the Railroad Engineer or performs work that has not been scheduled with the Railroad Engineer, flaggers may be required full time until the Project has been completed. 7.2 Scheduiing and Notiflcatlon. 7.2.1 Not later than the time that approval is initially requested to begin work on the Railroad's right of way (30 days), contractor shall furnish to the Railroad and the Commission a schedule for all work required to complete the portion of the Project within Railroad's right of way and arrange for a job site meeting between the contractor, the Engineer, and the Railroad Engineer. Flaggers may not be provided until the job site meeting has been conducted and the contractor's work scheduled. 7.2.2 The contractor shall be required to give the Railroad Engineer at least 30 days of advance written notice of intent to begin work within Railroad's right of way in accordance with this special provision. Once begun, if such work is then suspended at any time, or for any reason, the contractor shall be required to give the Railroad Engineer at least 5 working days of advance notice before resuming work on Railroad's right of way. Such notices shall include sufficient details of the proposed work to enable the Railroad Engineer to determine if flagging will be required. If such notice is in writing, the contractor shall furnish the Engineer a copy; if notice is given verbally, the notice shall be confirmed in writing with copy to the Engineer. If flagging is required, no work shall be undertaken until the flagger or flaggers are present at the job site. Obtaining a flagger or flaggers may take up to 30 days to obtain initially from the Railroad. When flagging begins, the flagger is usually assigned by the Railroad to work at the Project site on a continual basis until no longer needed and cannot be called for on a spot basis. If flagging becomes unnecessary and is suspended, obtaining a flagger or flaggers may take an additional 30 days. Due to Railroad labor agreements, 10 working days notice may be necessary before flagging services may be discontinued and responsibility for payment stopped. Notification for flagging should be addressed to: Mr. Don Schibbelhut, Roadmaster BNSF Railway 1650 Murray Drive North Kansas City, Office: (816) 472-2203 Cell Phone: (913) 530-7930 [Flagging contact information is subject to change; Verify with Railroad Engineer] 7.2.3 If, after the flagger is assigned to the Project site, emergencies arise which require the flagger's presence elsewhere, then the contractor shall delay work on the Railroad's right of way until such time as the flagger is again available. Any additional costs resulting from such delay shall be borne by the contractor and not the Railroad. 7.2.4 The contractor shall provide a temporary structure to provide shelter from weather conditions for the person(s) providing flagging protection service on behalf of the Railroad as described herein. The structure shall be provided in an area immediately accessible to the Railroad's main track and the construction site, and be equipped with telephone service, lighting and desk. A-7 ~. .. ,1 7.3 Payment. 7.3.1 The Commission will pay the Railroad directly for the cost of flagging services associated with the Project by deducting the amount from the normal contractor payments. 7.3.2 The Railroad shall submit progress invoice to the Engineer during the time flagging services are required. A final invoice shall be submitted to the Engineer within 180 days of completion of the Project. This is defined as the point in time at which the Commission and the Railroad both accept the Project and the contractor is relieved of contractual obligation. Should the invoice not be received within this time period, the Railroad will be responsible for obtaining payment directly from the contractor. 7.3.3 Should a dispute between the Railroad, the Commission and the contractor develop conceming the cost of flagging service or should the contractor fail to promptly pay the Railroad for flagging services, the full amount of the Railroad's invoice will be deducted from the contractor's payment request. However, The Commission will send only 95 percent of the amount requested to the Railroad. The Commission will make a corrected payment once a settlement is reached between the Railroad, the Commission and the contractor. 7.3.4 The contractor shall be responsible for arranging needed flagging services as required by the Railroad to accomplish the highway improvement. 7.3.5 The cost of flagging service is approximately $540 per day based on an 8-hour work day and a 40-hour work week. This cost includes the base pay for the flagger, overhead, and per diem charge for travel expenses, meals and lodging. The charge to the contractor by the Railroad will be the actual cost based on the rate of pay for the Railroad's employees who are available for flagging service at the time the service is required. Work by a flagger in excess of 8 hours per day or 40 hours per week but not more than 12 hours a day will result in overtime pay at 1 1/2 times the appropriate rate. Work by a flagger in excess of 12 hours per day will result in overtime pay at 2 times the appropriate rate. If woric is performed on a holiday, the flagging rate is 2 1/2 times the normal rate. Railroad expenses incurred preparing and handling invoices will also be charged to the contractor and/or the Commission. Charges to the contractor and/or the Commission by the Railroad shall be in accordance with ~ applicable provisions of Volume 1, Chapter 4, §3 and Volume 6, Chapter 6, §2, Subsection 1 of the Federal-Aid Highway Program Manual issued by the Federal Highway Administration, including all current amendments. Flagging costs are subject to change. The above estimates of flagging cost are provided for information only and are not binding in any way. Each time a flagger is called, the minimum period for billing will be the 8 hour basic day unless the flagger can be assigned to other Railroad work during the work day. 7.3.6 A maximum of one hour travel time each way per day per flagger will be required for travel to and from the Project. 7.4 Verification. 7.4.1 Any complaints concerning a flagger shall be resolved in a timely manner. If need for a flagger is questioned, please contact the Railroad Engineer. All verbal complaints shall be confirmed in writing by the contractor within 5 working days with copy to the Railroad Engineer and Engineer. All written correspondence shall be addressed to Ms. Townlian as shown in Section 2.1 of this job special provision. A-8 l .. it ~„ .. ` i . 7.4.2 The Railroad flagger assigned to the Project will be responsible for notifying the Engineer upon arrival at the job site on the first day, or as soon thereafter as possible, that flagging services begin and on the last day that flagger performs such services for each separate period that services are provided. The Engineer will document such notification in the Project records. 8.0 Haul Across Railroads. 8.1 Where the plans show or imply that materials of any nature must be hauled across the Railroad's tracks, unless the plans clearly show that the Commission has included arrangements for such haul in the agreement with the Railroad, the contractor shall be required to make all necessary arrangements with the Railroad regarding means of transporting such materials across the Railroad's tracks. The contractor shall be required to bear all costs incidental to such crossings, including flagging, whether services are performed by contractor's own forces or by Railroad's personnel. 8.2 No crossing may be established for use of the contractor for transporting materials or equipment across the tracks of the Railroad unless specific authority for the installation, maintenance, necessary watching and flagging thereof and removal, all at the expense of the contractor, is first obtained from the Railroad Engineer. ' 9.0 Work for the Benefit of the Contractor. All temporary or permanent changes in wire lines or other facilities which are considered necessary to the Project are shown on the plans, and are included in the agreement between the Commission and the Railroad or will be covered by appropriate revisions to same which will be initiated and approved by the Commission and/or the Railroad. Should the contractor desire any changes in addition to the above, then contractor shall make separate arrangements with the Railroad for same to be accomplished at the contractor's expense. 10.0 Cooperation and Delays. The contractor shall arrange a schedule with the Railroad for accomplishing staged construction involving work by the Railroad or tenants, licensees, easement grantees and invitees of the Railroad. In arranging a schedule, the contractor shall ascertain, from the Railroad, the lead time required for assembling crews, materials and make due allowance. No charge of claims of the contractor against the Railroad will be allowed for hindrance or delay on account of railway traffic for any work done by the Railroad, other delay incident to or necessary for safe maintenance of railway traffic, or for any delays due to compliance with this special provision. 11.0 Trainman's Walkways. Along the outer side of each exterior track of multiple operated track and on each side of single operated track, an unobstructed continuous space suitable for trainman's use in walking along trains shall be maintained extending to a line not less than 12 feet from centerline of track. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during work hours while Railway's protective service is provided shall be removed before the close of each work day. The contractor shall install a handrail with a 12-foot minimum clearance from centerline of track for any excavation near a walkway. 12.0 Insurance. The amount of work to be performed upon, over or under Railroad's right of way is estimated to be ten (10%) percent of the contractor's total bid for the Project. A-9 I 11 ~. ~ 12.1 In addition to any other forms of insurance or bonds required under the terms of the contract and specifications, the contractor shall be required to carry insurance of the following kinds: (a) Commercial General Liability Insurance, including contractual liability and products completed/operations, against claims arising out of bodily injury, illness and death and from damage to or destruction of property of other, including loss of use thereof, and including liability of Railroad, with minimum limits for bodily injury and property damage of $5,000,000 for each occurrence, with an aggregate of $10,000,000. The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage as respects obligations under this special provision shall be included on the policy with regard to the work being pertormed under the contract between the contractor and the Commission. (b) Business Automobile Policy Insurance, including owned, non-owned, and hired vehicles with r'ninimum limits for bodily injury and property damage of $1,000,000 per occurrence, on all vehicles used on Railroad's property during the term of the contract between the contractor and the Commission. (c) Worker's Compensation Insurance or coverage as required under the Worker's Compensation Act of the state of Missouri. The policy shall include occupational disease to required statutory limits, employer's liability of $1,000,000 to include FELA, if appropriate, and an "all states" endorsement. (d) A Railroad Protective Liability policy issued in the name of the Railroad with limits of $5,000,000 for bodily injury and property damage per occurrence, with an aggregate of $10,000,000. The policy shall remain in force during the construction phase of the Project and shall be provided prior to start of work. The following endorsements shall also required: • 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. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy shall be provided to the Railroad prior to pertorming any work or services under the contract between the contractor and the Commission. 12.1.2 It is understood and agreed that these policies are primary and not contributory' and release the Railroad as to payments of any eamed premium. All insurance certificates provided by the contractor shall be satisfactory to the Railroad as to insurance carriers covering the risk and shall bear a cancellation clause providing that such insurance may not be canceled, amended, or allowed to lapse until the expiration of at least 30 days advance written notice to the Railroad. 12.1.3 With the exception of Workers Compensation, the Railroad shall be named an additional insured under the above mentioned policies. A-10 1 .. ~ ~, ,~ 12.1.4 The policies described above shall contain a "Waiver of Transfer Rights" endorsement to waive any right of recovery that the insurance company may have against Railroad because of payments made for bodily injuries or property damage. 12.1.5 Prior to the entry upon Railroad's property, the contractor shall furnish to the Railroad for approval the original Certificate of Insurance, the original Policy, or other satisfactory evidence that all the insurance, which contractor is obliged to furnish under the foregoing provisions, has been obtained and is being maintained. 12.1.6 Failure to provide evidence as required by this paragraph shall entitle, but not require, the Railroad to terminate immediately the agreement with the Commission with respect to the Project. Acceptance of a certificate that does not comply with this paragraph shall not operate as a waiver of the contractor's obligations. 12.1.7 The fact that insurance, including, without limitation, self-insurance, is obtained by the contractor shall not be deemed to release or diminish the liability of the contractor including, without I'rmitation, liability under the indemnity provisions of this special provision. Damages recoverable by the Railroad shall not be limited by the amount of the required insurance coverage. 12.1.8 For purposes of Section 12 of this job special provision, the Railroad shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. 12.1.8 Evidence of insurance as required above shall be furnished to the address shown below for review by the Commission and transmittal to the Railroad: Railroad: Ms. Jamie Johnson BNSF Risk Management 2500 Lou Menk Drive, 1s` Floor Forth Worth, TX 76131 Commission: Mr. Dave Ahlvers State Construction and Materials Engineer MoDOT P.O. Box 270 Jefferson City, MO 65102 12.1.10 Railroad will not accept binders as evidence of insurance, the original policy shall be provided. The named insured, description of the work and designation of the job site to be shown on the Policy are as follows: (a) Named Insured: BNSF Railway Company (b) Description and Designation: Horizons Parkway, Platte County Job No. J411709B Construction of Overhead Structure at MP 7.0 (St. Joseph Subdivision) 12.2 If any part of the work is sublet, similar insurance and evidence thereof in the same amounts as required of the prime contractor, shall be provided by or in behalf of the subcontractor to cover the subcontractor's operations. Endorsements to the prime contractor's policies specifically naming subcontractors and describing their operations will be acceptable for this purpose. A-11 ~. . 12.3 All Insurance hereinbefore specified shall be carried until all work required to be performed under the terms of the contract has been satisfactorily completed within the limits of the Railroad's right of way as evidenced by the formal acceptance by the Commission. Insuring Companies may cancel insurance by permission of the Commission and Railroad or on 30 days written notice to the Railroad and Commission as follows: Notice To: CODV Notice To: Ms. Jamie Johnson Mr. Dave Ahlvers BNSF Railway State Construction and Materials Engineer Risk Management MoDOT 2500 Lou Menk Drive, 16` Floor P.O. Box 270 Forth Worth, TX 76131 Jefferson City, MO 65102 13.0 Hazardous Materials Compliance and Reporting. Contractor shall be responsible for complying with all applicable federal, state and local govemmental 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, as amended; the Oil Pollution Act, as amended; the Hazardous Materials Transportation Act, as amended; and the Comprehensive Environmental Response, Compensation and Liability Act, as amended), and health and safety laws and regulations. In addition to the liability provisions contained elsewhere in this job special provision, the contractor hereby indemnifies, defends and holds harmless the Railroad for, from and against all fines or penalties imposed or assessed by federal, state and local governmental agencies against the Railroad which arise out of contractor's work under this special provision. Notwithstanding the preceding sentence, the contractor will not be liable for pre-existing hazardous materials or hazardous substances discovered on Railroad's property or right of way so long as such hazardous materials or hazardous substances were not caused by (in whole or in part) contractor's work, acts or omissions. 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 Railroad's property, in or near any surtace water, swamp, wetlands or waterways, while pertorming any work under this special provision, the contractor shall immediately: (a) Notify the Railroad's Resource Operations Center at (800) 832-5452, of such discovery. (b) Take safeguards necessary to protect employees, subcontractors, agents and/or third parties. (c) Exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release 14.0 Personal Injury Reporting. The Railroad is required to report certain injuries as a part of compliance with Federal Railroad Administration ("FRA") reporting requirements. Any personal injury sustained by any employee of the contractor, subcontractor or contractor's invitees while on the Railroad's property shall be reported immediately, by phone or mail if unable to contact in person, to the Railroad's representative in charge of the Project. The Non-Employee Personal Injury Data Collection Form is to be completed and sent by Fax to the Railroad at (817) 352- 7595 and to the Railroad's Project Representative no later than the close of shift on the date of the injury. A-12 ~, . 15.0 Failure to Comply. In the event the contractor violates or fails to comply with any of the requirements of this special provision, the below orders will be applied. Any such orders shall remain in effect until the contractor has remedied the situation to the satisfaction of the Railroad Engineer and the Engineer. (a) The Railroad Engineer may require that the contractor to vacate the Railroad's property. (b) The Engineer may withhold all monies due to the contractor until contractor has remedied the situation to the satisfaction of the Railroad Engineer and the Engineer. 16.0 Payment for Cost of Compliance.- No separate payment will be made for any extra cost incurred on account of compliance with this special provision. All such cost shall be included in the contract unit price for other items included in the contract. Railroad will not be responsible for paying the contractor for any work perForrned under this special provision. J: zachem\agree\BSNF GSA 3-party, Riverside 10-1-07 draft y• _ .. t ... A-13 ~ ... ~ ~.. ` T. ., Missouri Mca~OT Department of Transportation 105 West Capitol Avenue P.O. Box 270 Jefferson Clty, MO 85102 (573) 751-2551 Fax (573) 751-6555 www.modot.org Pete K. Rahn, Director Missouri 2007 Missouri Quality Award Winner A~~ February 28, 2008 Ms. Cheryl Townlian Manager of Public Projects BNSF Railway Company 1625 North Lexington Springfield, Missouri 65802 Dear Ms. Townlian: Enclosed is the railway's counterpart of the fully executed grade separation agreement for the construction and maintenance of a new bridge to carry Horizons Parkway over the BNSF tracks in Riverside. Thanks for your assistance. Sincerely, Mar Zacher Railroad Liaison Enclosure Copies: ~dy Johnson-4 Sabin Yanez -Cook, Flatt & Strobel Engineers (with Agency counterpart for Riverside) Horizons Parkway, Riverside Job J4I1709B Our mission !s to provide aworld-class transportation experience that delights our customers and promotes a prosperous Missouri. 1 .. ~ ~~