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HomeMy WebLinkAbout2010-015 Agreement with BNSF for Easement for Argosy Casino Parkway ProjectBILL N0.2010-015 ORDINANCE N0.2010-015 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE BNSF RAILWAY COMPANY FOR AN EASEMENT FOR THE ARGOSY CASINO PARKWAY PROJECT WHEREAS, the City of Riverside, Missouri ("City") has engaged in negotiations with BNSF Railway Company. ("BNSF") for the acquisition of an easement necessary for the construction of a bridge as part of the Argosy Casino Parkway Project (the "Acquisition"). WHEREAS, the City and BNSF have reached an agreement concerning the provision of an easement, and payment for such Acquisition. NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside, Missouri, as follows: Section 1. The City of Riverside is authorized to enter into an agreement whereby the City, for the sum of Sixty-One Thousand Ninety Dollars and Eighty-Nine Cents ($61,090.89), shall acquire from BNSF an easement, approximately 100 feet in width, to locate, survey, construct, maintain, inspect, operate, protect, and repair a bridge structure along a route specified in the agreement attached hereto as Exhibit A (the "Agreement"). Section 2. The execution and delivery of the Agreement, in substantially the form attached hereto as Exhibit A„ is approved, and the Mayor, City Administrator and City staff are authorized to execute such final Agreement and to take such other actions reasonably necessary to carry out the intent of this Ordinance on behalf of the City, the execution of the Agreement being conclusive evidence of such approval. Section 3. This Ordinance shall be in full force and effect from and after its passage and approval. Passed;this,l6th day of February, 2010 ,~ . ~: Mayor Kathleen L. Rose .. ~,. AT ~$T: . b - ~ City Clerk OVERPASS AGREEMENT Argosy Parkway Overpass U.S. D.O.T. No. 9290326 This Agreement ("Agreement"), is executed to be effective as of this 16th day of February, 2010 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and the CITY OF RIVERSIDE, a political subdivision of the State of Missouri ("Agency"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of Riverside, State of Missouri; WHEREAS, Agency desires to improve the existing Argosy Parkway at-grade crossing by constructing a new crossing at separated grades to be known as the Argosy Parkway Overpass and designated as new two-lane 374' long bridge, D.O.T. No. 9290326; and 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 Argosy Parkway 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. Additionally, 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: (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. (d) Require the Agency or its contractor to execute a Temporary Construction Crossing Agreement, for any temporary crossing requested to aid in the construction of this Project. 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 sixty-one thousand ninety and 89/100 Dollars ($61,090.89) 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 during construction of the Project as required and 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, at Agency's expense; (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 pertorm 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 Forrn 0105 Rey. 06/01/05 2 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 pertormed 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 are 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. Four sets of said plans (reduced size 11" x 17"), together with finro copies of calculations, and two copies of specifications in English Units, must be submitted 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. 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 in Exhibit C and as 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, in compliance with BNSF's Utility Accommodation Manual 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 pertormed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the pertormance of Agency's Work. The principal elements of Agency's Work are as follows: (a) Construction of the Structure; Form 0105 Rev. 06/01/05 3 (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) Provide appropriate pedestrian control during construction; (e) Design and construction of a permanent paved roadway across the Structure along the track to be used for access to BNSF property; (f) Installation and maintenance of an 10-ft. high fence and/or concrete combination (throw fence) on the outside barrier of the Structure; (g) 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 9038 in a conspicuous location on the Structure. 8. Agency's Work must be pertormed by Agency or Agency's contractor in a manner that will not endanger or intertere with the safe and timely operations of BNSF and its facilities. 9. For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to execute the C documents. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF's Internet Website "contractororientation.com"; notify BNSF when, pursuant to the requirements of exhibit C, a flagger is required to be present; procure, and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. 10. 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. 11. Agency or its contractor(s) must submit four (4) copies of any plans (including two sets of 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. 12. Agency must include the following provisions in any contract with its contractor(s) performing work on said Project: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (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, BNSF's Signal Representative, and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or intertere 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 Form 0105 Rev. 06/01 /05 4 BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) 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. (c) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering representative to stop construction at no cost to the Agency or BNSF until these items are completed. (d) In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any. damage to or destruction of any Lines by Contractor, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF. 13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article III; (ii) the provisions set forth in Article IV; and (iii) the provisions set forth in Exhibit C and Exhibit C-I, attached hereto and by reference made a part hereof. 14. 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; (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) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's representative Four (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 Forth 0105 Rev. 06/01/05 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. (e) 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. 15. 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. 16. 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, 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. 17. 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. 19. Agency agrees to provide BNSF with one of the following credit enhancements guaranteeing the total amount of Agency's financial obligations (including, without limitation, liquidated damages, indemnity obligations and other expenses) under this Agreement: (a) Irrevocable Bank Letter of Credit drawn upon a bank satisfactory to BNSF; (b) Surety Bond underwritten by an insurance company listed in the Department of Treasury Federal Register with terms acceptable to BNSF, in BNSF's sole discretion; or (c) A posted cash deposit via wire transfer to a BNSF deposit account. Any irrevocable letter of credit or surety bond provided to BNSF pursuant to this provision shall have a minimum term of eighteen (18) months. The bank issuing the letter of credit and the insurance company Form 0105 Rev. O6/Ot/O5 6 issuing the surety bond shall notify BNSF thirty (30) days prior to the expiration date of the letter of credit or the surety bond. Upon expiration of any surety bond or letter of credit, Agency must immediately provide BNSF with a substitute letter of credit, surety bond or cash deposit as set forth above until Agency's financial obligations to BNSF are fully and finally satisfied. Any cash deposit provided under this provision will be held in anon-interest bearing account in the name of BNSF. If Agency's financial obligations at the end of the Project are less than the amount of the cash deposit, BNSF shall refund any remaining sum to Agency. Agency should forward the letter of credit or the surety bond to BNSF Manager of Credit, 2400 Western Center Boulevard, Fort Worth, Texas 76131 (phone: 817-352-4194). If posting a cash deposit pursuant to this provision, contact BNSF Manager of Credit to obtain the BNSF account information. 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 pertorm 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 written approval prior to the commencement of any such changes or modifications from the BNSF Project Manager. 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: Forth 0105 Rev. 06/01/05 7 Mr. David Blackburn City Administrator City of Riverside, Missouri 2950 NW Vivion Road Riverside, MO 64150 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 Mr. Travis Hoover, P.E., Phone No. (816) 769-1601 for appropriate corrective action. Agency agrees to provide, to the BNSF Manager Evidence Preservation, such Project documentation and records as are agreed to between the parties including: any project applications; any letters of approval and/or authorization forms (eg. PR-1240 or the equivalent); any and all payment Voucher forms requesting FHWA reimbursement (eg. PR-20 or the equivalent) or any other such project authorization or funding records as BNSF may request from time to time. Such records will be provided by the Agency to BNSF on a mutually agreeable schedule or within two (2) months after such records are generated or received by the Agency. Section 130 Documentation shall be provided to BNSF in the one of the following manners: Manager Evidence Preservation 2600 Lou Menk Drive, AOB-3 Fort Worth, Texas 76131 Or electronically to: Manager Evidence Preservation Section130Ca bnsf.coml 7. Pursuant to this section and Article II, Section 6 herein, Agency must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement. 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 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, pertorm maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to pertorming 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 pertormed 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) Agency must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals. (g) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, pertorms (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 iri 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 pertorming 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. Form 0105 Rev. O6/Ot/OS 9 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 (prepared in English Unitsl 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 INSPECTION OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if flagging is required. 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 the sole responsibility of the Agency. 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 surtace 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 represeritatives of the parties hereto, as well as the State of Missouri and the Federal Highway Administration, for a period of three (3) years from the date of 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 12 months 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 10 Form 0105 Rev. 06/01/05 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. 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: BNSF's Manager of Public Projects Ms. Cheryl Townlian BNSF Railroad 1625 N. Lexington Springfield, MO 65802 Agency: Mr. David Blackburn City Administrator City of Riverside, Missouri 2950 NW Vivion Road Riverside, MO 64150 Form 0105 Rev. 06!01/05 11 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. BNS By: Print Title, WITNESS: AGENCY CITY [COUNTY] OF ~IVerslc~e By: Printe Name: o -G Title: WITNESS: Exhibit A EASEMENT AGREEMENT FOR CITY OF RIVERSIDE, MISSOURI (C&M Agreement) THIS EASEMENT AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF BRIDGE OVERPASS ("Easement Agreement") is made and entered into as of the day of 2010 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and City of Riverside, Missouri, a Municipality ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Riverside, County of Platte, State of Missouri, at Mile Post 5.91, Project Argosy Parkway Overpass, as described or depicted on Exhibit "A" attached hereto and made a part hereof (the "Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of February 16, 2010 concerning improvements on or near the Premises (the "C&M Agreement"). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee anon-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and Form 704; Rev. 03/23/09 (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Compensation. Grantee shall pay Grantor, prior to the Effective Date, the sum of Sixty One Thousand Ninety and 89/100 Dollars ($61,090.89) as compensation for the grant of this Easement. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Form 704; Rev. 03/23/09 Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire. Section 6 Taxes and Recordins~ Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi- governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above- stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9. 3 Form 704; Rev. 03/23/09 Section 8 Default and Termination. 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 82 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9. 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. if Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Form 704; Rev. 03/23/09 Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. Section 11 Tax Exchange. Grantor reserves the right to assign this Easement Agreement to Apex Property & Track Exchange, Inc. ("Apex"). Apex is a qualified intermediary within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and Treas. Reg. § 1.1031 (k)-1(g), for the purpose of completing a tax-deferred exchange under said Section 1031. Grantor shall bear all expenses associated with the use of Apex, or necessary to qualify this transaction as atax-deferred exchange, and, except as otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Grantee from and against any and all reasonable and necessary additional costs, expenses, including, attorneys fees, and liabilities which Grantee may incur as a result of Grantor's use of Apex or the qualification of this transaction as atax-deferred transaction pursuant to Section 1031. Grantee shall cooperate with Grantor with respect to this tax-deferred exchange, and upon Grantor's request, shall execute such documents as may be required to effect this tax-deferred exchange. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within 10 days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of Texas without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision 5 Form 704; Rev. 03/23/09 herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. 14.7 The terms of the C&M Agreement are incorporated herein as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason, no longer in effect. Witness the execution of this Easement Agreement as of the date first set forth above. [Signature page follows] Form 704; Rev. 03/23/09 Form Approved by VP-Law Witness the execution of this Easement Agreement as of the date first set forth above. 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J ..~--~ n 2 D EXHIBIT "B" MEMORANDUM OF EASEMENT MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT is hereby executed this day of 2010, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF RIVERSIDE, a municipality ("Grantee"), whose address for purposes of this instrument is which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in Platte County, Missouri as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated 2010 (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. Page 1 of 3 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of 2010, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: Page 2 of 3 Form Approved by VP-Law IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: ~~~~ STATE OF § COUNTY OF § This instrument was acknowledged before me on the _ day of , 200_, by _ (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation STATE OF COU OF ~~k Eck § This instrum was nowledged before X/s~ln.,~__ (name) as a 12 Exhibit "B-1" Notary Public (Seal) My appointment the ~ day of of (Seal) My appointment 4 2 ~J Forth 0105 Rev. 06/01/05 Exhibit C EXHIBIT "C" CONTRACTOR REQUIItEMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of--way, hereafter referred to as "Railway Property", during the construction of Argosy Parkway Overpass Project. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1" Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "C-1". Questions regarding procurement of the Railroad Protective Liability Insurance should be duetted to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazazdous to Railway 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) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: • 1.01.05 The Contractor is responsible for determining and complying with all Federal, Stale and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Rewvery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazazdous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. • 1.01.06 The Contractor must notify the (Aeency~ at and Railway's Manager Public Projects, telephone number (_~at least thirty (30) calendar days before commencing any work on Railway Property. Contractors notification to Railway, • 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the neazest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the neazest track, both measwed perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structwal calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the cwrent "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the cwrent "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway swchazge loading and must be designed to meet American Railway Engineering and Maintenance-of--Way Association (previously known as American Railway Engineering Association) Coopers E-801ive loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found oo the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through interne[ sessions before any work is performed on [he Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measwes as aze necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 The Contractor must notify the Railway's Division Superintendent and provide blasting plans to the Railway for review seven (21) calendaz days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary cleazances during construction: • 15' Horizontally from centerline of neazest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires cazrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires cazrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction, the following clearances shall be maintained: , • 2S Horizontally from centerline of nearest track on the North side pier • 23'-6" Vertically above top of rail • Cleaz span to the south of BNSF south Right of Way line. • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the C~ of Riverside Missouri and must not be undertaken until approved in writing by the Railway, and until the Ciri of Riverside Missouri has obtained any necessary authorization from the Stale Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell-tales or protective devices will be borne by the Agency. • 1.03.07 The details of constmction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by Citv of Riverside Missouri for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, [he Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Constmction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any dischazge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan 1.04.01 Each Contractor that will perform work within 25 fee[ of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made avaIlable to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. DNeted: (Note to Drafter: The vertical clearance should mirror the final negotiated daigo dearaace]¶ _J 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster a minimum of thirty (30) calendaz days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services aze scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined oWerwise by Railway's Project Representative, Railway flagger will be required and fwnished when Contractor's work activities aze located over, under and/or within twenty-five (25) feet measwed horizontally from centerline of the neazest track and when cranes or similaz equipment positioned beyond 25-feet from the track centerline could foul the Vack in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities maybe subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazazd is presented to Railway track, communications, signal, electrical, or other facilities either due [o persons, material, equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cwnbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called, the minimum period for bIllwg will be the eight (8) how basic day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by the A enc . The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) how basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment inswance, public liability and property damage inswance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal autlrorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. • 1.05.03d The average train traffic on this route is 55 freight trains per 24-how period at a timetable speed 45 MPH. 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any [rack must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's Bagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across sny Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway Bagger is, and how to contact the Bagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were no[ previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railroad's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in chazge of the project. Any vehicle or machine which may come in contact witlt track, signal equipment, or structure (bridge) and could result in a train deraihnent must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at I(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work weaz. The Railroad's representative in charge of the project is to be contacted regazding local specifications for meeting requirements relating to hi-visabiliy work weaz. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE -Should there be a discreoancv between the information contained on the web site and the information in this paragraph. the web site will sovern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK, MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILROAD'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See Internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. • 1.06.12 AlI power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe cleazance of the equipment and give a timely warning for all operations where i[ is difficult for an operator to maintain the desired cleazance by visual means. 1.07 Excavation • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems aze present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Field Engineering Representative .All underground and overhead woes will be considered HIGH VOLTAGE and dangerous unfll verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the azea if obstructions aze encountered which do not appeaz on drawings. 1f the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about [he location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regazdless of depth, must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guazded and/or protected when not being worked on. When leaving work site azeas at night and over weekends, the azeas must be secured and left in a condition that will ensure that Railway employees and other persomel who may be working or passing through the azea are protected from all hazards. All excavations must be back fdled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting • 1.08.01 [f Contractor discovers any hazazdous waste, hazazdous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or neaz any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form wntained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUII2ED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE W ITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/S[ County: (ifnon-Railway location) 5. Social Security # 6. Name (last, fast, mi) 7. Address: Street: 8. Date of Bir[h: 2. Date: 3. Temperature: City: and/or Age Gender: (if available) 9. (a) Injury: (b) Body.Part: (i.e. (a) Laceration (b) Hand) 11. Description of Accident (To include location, action, result, etc.): Time: 4. Weather St. Zip: 12. Treatment ? Firs[ Aid Only ? Required Medical Treatment ? Other Medical Treatment 13. Dr. Name 30. Date: 14. Dr. Address: Street: City: St: Zip: 15. Hospital Name: 16. Hospital Address: Street: City: St: Zip: 17. Diagnosis: FAX TO RAILWAY AT (81'n 352-7595 AND COPY TO RAD.WAY ROADMASTER FAX 8 LAW DEPARTMENT APPROVED EXHIBIT "C-I" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSF RAILWAY COMPANY Attention: Manager Public Projects Railway File: %~ 9~~ Z Agency Project• Gentlemen: 7u 2do ~dYIX~-'~ ~~ ~ The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract")dated 3~ with City of Riverside Missouri for the performance of certain work in connection with the following project Argosy Parkway Overpass Project. Performance of such work will necessazily require contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for City of Riverside Missouri (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, inconsideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of--way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACTOR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that ail or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railroad to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILROAD FOR RAILROAD'S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance must contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. Any exclusions related to the explosion, collapse and underground hazards must be removed. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy. B. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited [o the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: • Missouri's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,01)0,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 l0 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 l0 93) • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railroad prior to performing any work or services under this Agreement Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care, custody or control. Contractor's insurance policies through policy endorsement, must include wording which states that the policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a severability of interest endorsement and Railroad must be named as an additional insured with respect to work performed under this agreement. severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance. Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing [he required coverage, endorsements, and amendments and referencing the contract auditlfolder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. Contractor should send the certificate(s) to the following address: F,bix BPO 3 PO Box 12010-BN Hemet. CA 92546-8010 Fax number: 951-766-2299 Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide. Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad means "Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, ,including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these azrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT. Contractor and its subcontractors must give Railway's representative Three (3) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting From a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which, upon execution by Railway, will constitute an Agreement between us. AF~jc - JG~+-r!nr5S rum-, ~tg'.rSr,S Cr'r~ Dr/~~~v~ (Contractor) gy.~ c,.~-~..~ Printed Name: lC z H Title: Irt r BNSF Railway Company By: Name: Manager ublic Projects Contact Person: 4'M LoIK~ZFatZrZ Address: ~~4L8 SPezr~4_ /~oHn' City: ~ State:~.Zip: !OL Fax: %/~, 37/~ S9yD Phone: 7! E-mail: ~ ~.¢ ~ /lo ~~,~i%- Tw ,lL ,zp/D. Accepted and effective this day of . 5 Form Approved by VP-Law EXHIBIT D Form 0105 Rev. 06/01/05 AUTHORITY FOR EXPENDITURE (FOR INTERNAL BNSF RAILWAY USE ONLY) LOCATION : CLARKS TO ARGOSY LINE SEGMENT : 16 AFE NUMBER PLANITEM NUMBER : PTRHCU{4B MILEPOST : 7.6 RFA NUMBER : 5908810 PROPERTY OF : BNSF RAILWAY COMPANY DIVISION : NE CPAR NUMBER : CB960110 OPERATED HY : BNSF RAILWAY COMPANY SUBDMSION : ST JOSEPH BUDGET YEAR : 2010 JOINT FACILITY : CITY OF RIVERSIDE TRACK TYPE : S BUDGET CLASS : 6 BILLABLE (+/-) : 100.0 TAX STATE : MO REPORTING OFFICE : 109 SPONSOR: VP ENGINEERING CENTER/ROLLUP: T6984 PURPOSE, NST~ICATION AND DESCRIPTION PIP -FLAGGING - LS 16 - MP 7.6 -ARGOSY PARKWAY - DOT HCIX4B -RIVERSIDE, MO - ST SOSEPH SUB - KSE DN - RDM D.MENDOZA - DE MARTIN -FLAGGING FOR NEW OVERPASS PLAN ITEM LINE SEG BEG MP END MP 7RK NBR BEGIN STATION END STATION PROJECT TYPE BUD YEAR PTRHCIX48 16 7.6 7.6 S CLARKS ARGOSY PARKWAY PUBLlC IMPROVEMENT PROJECT 2010 CASH CAPITAL NONCASH CAPITAL OPERATING EXP REMOVAL COSTS BILLABLE TDIALS LABOR COSTS 0 0 0 0 265,424 265,424 MATERIAL COSTS 0 0 0 0 0 0 OTHER COSTS 0 0 0 0 46,794 46,794 TOTALS 0 0 0 _ 0 312,218 312,218 SYSTEM MAINTENANCE AND PLANNING- KANSAS CITY ESTIMATE REF. NUMBER: 5908810 COSTMG DATE: 01/01/2010 Page 1 of 5 PRINTED ON: 12/22/2009 ESTENATED BY: HAMBY PAINTED BY: HAMBY BNSF ENGINEERING SUMMARY REPORT (FOR INTERNAL BNSF RAILWAY USE ONLY) LOCATION : CLARKS TO ARGOSY LINE SEGMENT : 16 AFE NUMBER PLANITEM NUMBER : PTRHC[X4B MILEPOST : 7.6 RFA NUMBER : 5908810 PROPERTY OF : BNSF RAILWAY COMPANY DMSION : NE CPAR NUMBER : CB960110 OPERATED BY : BNSF RAILWAY COMPANY SUBDMSION : ST JOSEPH BUDGET YEAR : 2010 JOINT FACILITY : CITY OF RIVERSIDE TRACK TYPE : S BUDGET CLASS : 6 BILLABLE (+/-) : 100.0 TAX STATE : MO REPORTING OFFICE : 109 SPONSOR : VP ENGINEERING CENTER/ROLLUP : T6984 LABOR TOTALS FOR RFA GANG TYPE TASK NAME STRAIGHT HOURS OVERTIME HOURS FLAGMAN, 1 MAN FLAGGING -OTHER R.O.W: CAP 2080.0 1040.0 MATERIAL, TOTALS FOR RFA NOTE: MATL WITH VAR CODE •• MUST BE FJELD ORDERED MATERIAL TYPE QTY UOM VAR CODE CASH OTHER 70TALS FOR RFA GANG TYPE OTHER DESC QTY UOM M/O BASE COST FLAGMAN, 1 MAN LEASED VEHICLE 312.0 DAY O S 15600 Page 2 of 5 CEPS PLAN ITEM DOCUMENT (FOR INTERNAL BNSF RAILWAY USE ONLY) LOCATION : CLARKE To ARGOSY PLANITEM NUMBER : PTRHCLX4B PROPERTY OF : BNSF RAILWAY COMPANY OPERATED BY : BNSF RAILWAY COMPANY IOJNT FACILITY : CITY OF RNERSIDE % BILLABLE (+/-) ; 100.0 REQUESTOR ID : H425 PROJECT TYPE: P~ D07 NUMBER: HCIX4B LINE SEGMENT : 16 MILEPOST : 7.6 DMSION: NE SUBDMSION: ST JOSEPH ENGR. DNISION : KANSAS EAST TAX STATE : MO, CO: PLATTE MATL DATE LOCATION CODE : 40101 B TRACK TYPE : S AFE NUMBER RFA NUMBER : 5908810 CPAR NUMBER : CB960110 BUDGET YEAR : 2010 BUDGET CLASS : 6 REPORTING OFFICE : 109 SPONSOR : VP ENGINEERING DEPT CODE: MOWGH DERATLMENT CODE: PURPOSE, NSTffICATION AND DESCRIPTION PIP -FLAGGING - LS l6 - MP 7.6 -ARGOSY PARKWAY - DOT HCIX4B - RIVERSIDE, MO - ST JOSEPH SUB - KSE DN - RDM D.MENDOZA - DE MARTIN -FLAGGING FOR NEW OVERPASS DESCRIPTION OF PROIECT AS PROVIDED BY PROJECT ENGINEER FLAGGING FOR BRIDGE OVERPASS, 6 DAYS PER WEEK, IO HOURS PER DAY FOR 12 MONTHS WITH VEHICLE. BILLING FOR THIS PROIECT SHOULD BE DIRECTED TO: 100 % CITY OF RNERSIDE RFA REQUEST: MARK S ANDERSON 12/22/09 AFE REQUESTED BY: MAINTAIN PROPRIETARY CONFIDENTIALTTY THE PHYSICAL LIMITS OF THIS PROJECT ARE DESCRIBED BY LINE SEGMENT, MH,E POST RANGES, AND IN SOME CASES TRACK NUMBER. THIS IS THE PRIMARY AREA FOR THE PROJECT. THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS. PROJECTS THAT INCLUDE SIGNAL, ELECTRICAL, OR TELECOMMUMCATION EQUIPMENT MAY REQUIRE ACTNH'Y BEYOND THESE DEFINED TRACK LIMITS. ALL OR PORTIONS OF SOME PROJECTS MAY OCCUR IN AREAS WHERE NO MILEPOST SIGNS EXIST SUCH AS YARDS. THIS ESTBv1ATE IS GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST FOR LABOR MATERAAI„ AND OVERHEAD. CASH CAPTTAL NONCASH CAPITAL OPERATING EXP KEMVVAl LUJIJ m~i.nn~c ivinw LABOR COSTS 0 0 0 0 265,424 265,424 MATERIAL COSTS 0 0 0 0 0 0 OTHER COSTS 0 0 _ 0 0 46,794 46,794 SYSTEM MAINTENANCE AND PLANNING - KANSAS CITY ESTENATE REF. NUMBER : PTRHCIX4B - 1-69-25 COSTING DATE : 01/0 V2010 PRINTED ON : 12/22/2009 ESTIMATED BY : HAMBY PRINTED BY : HAMBY Page 3 of 5 ACCT CST RSN PPE DESCRIPTION QTY/ST 07 U/M CASH NONCASH OPER REMOVAL 8 123 FLAGGING -OTHER R.O.W: CAP 2080.00 1040.0 MH 82,119 • LABOR SUBTOTAL 82,119 0 0 0 1120 433 130 LEASED VEHICLE 312.00 DAY 15,600 "OTHER SUBTOTAL 15,600 0 0 0 'ADDITIVES PAYROLL ASSOCIATED COSTS 56,555 EQUeMENT EXPENSES 25,580 DA LABOR OVERHEADS 88,245 INSURANCE EXPENSES 12,925 • GANG SUBTOTAL FLAGMAN-1M -FLAGMAN, 1 MAN 281,024 0 0 0 PROJECT SUBTOTAL CONTINGENCIES BILL PREPARATION FEE PROJECT GROSS COST LESS COST PAm BY OTHERS PROJECT NET COST 281,024 0 0 0 28,102 0 0 0 3,092 0 0 0 312,218 0 0 0 312,218 0 0 0 0 0 0 0 Page 4 of 5 ••••• MAINTAIN PROPRIETARY CONFIDENTIALITY ••••• BNSF RAILWAY COMPANY FHPM ESTIMATE FOR CITY OF RMiRSIDE LOCATION CLARKE TO ARGOSY PARKWAY DETAILS OF ESTIMATE PLAN CCEM : PTRHCIX48 VERSION : 1 PURPOSE, NSTIFICATTON AND DESCRIPTION PIP -FLAGGING - LS 16 - MP 7.6 -ARGOSY PARKWAY - DOT HCIX4B - RMiRSIDE, MO - ST 7OSEPH SUB - KSE DN - RDM D.MENDOZA - DE MARTIN -FLAGGING FOR NEW OVERPASS DESCRIPTTON OF PROJECT AS PROVIDED BY PROJECT ENGINEER FLAGGING FOR BRIDGE OVERPASS, 6 DAYS PER WEEK, IO HOURS PER DAY FOR 12 MONTHS WITH VEHICLE. BILLING FOR THIS PROJECT SHOULD BE DIRECTED TO: 100%CITY OF RIVERSIDE RFA REQUEST: MARK S ANDERSON 12/22/09 AFE REQUESTED HY: MAINTAIN PROPRIETARY CONFIDENTIALTTY THE PHYSICAL LIMITS OF THIS PROJECT ARE DESCRffiED BY LINE SEGMENT, MILE POST RANGES, AND IN SOME CASES TRACK NUMBER. THIS [S THE PRIMARY AREA FOR THE PROJECT. THERE WILL BE CASES WHERE WORK MAY OCCUR BEYOND THE DEFINED LIMITS. PROJECTS THAT INCLUDE SIGNAL, ELECTRICAL, OR TELECOMMUNICATION EQUH'MENT MAY REQUIRE ACTMTY BEYOND THESE DEFINED TRACK LIMITS. ALL OR PORTIONS OF SOME PROJECTS MAY OCCUR IN AREAS WHERE NO MILEPOST SIGNS EXIST SUCH AS YARDS. THIS ESTIMATE [S GOOD FOR 90 DAYS. THEREAFTER THE ESTIMATE IS SUBIECT TO CHANGE M COST FOR LABOR, MATERIAL, AND OVERHEAD. DESCRIPTTON QUANTITY UIM COST TOTAL S n•urrra LABOR FLAGGING-OTHER R.O.W: CAP PAYROLL ASSOCIATED COSTS EQUIPMENT EXPENSES DA LABOR OVERHEADS INSURANCE EXPENSES TOTAL LABOR COST 3120.0 MH 82,119 56,555 25,580 88,245 12,925 265,424 265,424 ••••••••urr• MATERIAL w•••••nrur TOTAL MATERIAL COST •rrr•••rrr OTHER LEASED VEHICLE TOTAL OTHER ITEMS COST PRO]ECT SUBTOTAL CONTINGENCIES BILL PREPARATION FEE GROSS PROJECT COST LESS COST PAID BY BNSF TOTAL BILLABLE COST 0 0 312.0 DAY 15,600 15,600 15,600 281,024 28,102 3,092 312,218 0 312,218 Page 5 of 5 Form Approved by VP-Law Exhibit F BNSF Bridee Requirements BRIDGE DESIGN, PLANS & SPECIFICATIONS: Except for the design of temporary falsework and shoring, BNSF review of the Structure plans will be limited to the vertical and horizontal cleazances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks. BNSF will not review structural design calculations for the permanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. The Agency shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary constmction cleazances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the permanent Structure, the Agency will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the neazest member of the proposed Structure. The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. If the permanent member is within 25 feet of the nearest track (or future track), collision walls shall be incorporated into the permanent Structure design according to American Railway Engineering and Maintenance Association Manual of Recommended Practice -Chapter 8 -Article 2.1.5. For the permanent Structure, the Agency will submit plans showing the least vertical clearance from top of the most elevated rail of existing and future tracks to the lowest point of the proposed Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The profile shall extend for 500 feet in each direction of the proposed overpass and a separate profile shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag exists in the vicinity of the proposed Structure, the permanent Structure vertical cleazance shall be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to beginning construction of the permanent Structure, the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. Prior to issuing any invitation to bid on construction of the Structure, the Agency should conduct apre-bid meeting where prospective Contractors have the opportunity to communicate with BNSF personnel regarding site specific train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the Project. BRIDGE CONSTRUCTION: After awarding the bid, but prior to the Contractor entering BNSF's right-of -way or property, the Agency should conduct apre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. The Agency shall reimburse BNSF for all costs of supplemental inspection services. Within 90 days of the conclusion of the Project and fmal acceptance by BNSF, the Agency will provide BNSF with a complete electronic set of the bridge plans labeled "As Built". Those plans will reflect any and all deviations from Form 0105 Rev. 06/01/05 Form Approved by VP-Law the original plans that occurred during construction. The "As Built" plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan prepazation and not converted to another format prior to submission. Actual measured "as constructed" clearances shall be shown as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. BRIDGE MAINTENANCE: The Agency will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes, erosion control, surface drainage, fencing, deck drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated with the Project. Fencing and other pedestrian access controls within BNSF's right-of--way and incorporated into the Project shall be designed and maintained by the Agency. Trespasser control shall be the responsibility of the Agency. Graffiti removal will be the responsibility of the Agency. BRIDGE INSPECTION: The Agency will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, the Agency will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary the Agency will embargo weights or provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement, there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. Pipelines will be not be added or attached to the Structure without first submitting plans and calculations to BNSF for review and approval. 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