Loading...
HomeMy WebLinkAboutRES 13-029RESOLUTION NO. 13 -029 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Highway -Rail Signal Interface Agreement with BNSF Railway Company for the installation of advanced preemption at the signal intersection of South Major Drive and Fannett Road. The agreement is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all purposes. 2013. PASSED by the City Council of the City of Beaumont this the 5th day February, M1, NWN, WFF'1 HIGHWAY -RAIL SIGNAL INTERFACE AGREEMENT THIS HIGHWAY -RAIL SIGNAL INTERFACE AGREEMENT (hereinafter called, this "Agree =f'), is entered into effective as of July 10, 2012, by and between BNSF Railway Company, a Delaware Corporation (hereinafter called, "BNSF'), and the City of Beaumont, Texas (hereinafter called, the "Agency„). WITNESSETH WHEREAS, BNSF has grade crossing warning devices located at the intersection of Major Drive, DOT 41 023740U, Line Segment 7505, Mile Post 69.68, as indicated on Exhibit "A" attached hereto and made a part hereof; and WHEREAS, Agency desires to preempt the highway traffic control signals with the grade crossing warning devices shown on Exhibit "A"; and WHEREAS, BNSF will allow the Agency to preempt the highway traffic control signals with the grade crossing warning devices shown on Exhibit "A" subject to the mutual covenants contained in this Agreement;. NOW, THERF,PORE, is consideration of tome premises and 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: AGREEMENT 1. PURPOSE The purpose of this Agreement is as follows: provide for the installation and maintenance of the improvements described below at the Major Drive at -grade crossing. 2. SCOPE OF WORK a. The Agency must provide BNSF in writing, using the 13NSF attached hereto and made part of this Agreement as Exhibit "A', with the total preempt cycle time required from the start of the preempt cycle of highway traffic control signals until the arrival of the train at the highway -rail crossing, in accordance with the Manual on Uniform Traffic Control Devices (hereinafter called, "MUTCD "). b. BNSF will provide an interface box with contact terminals, at Agency's expense on the side of the railroad instrument cabin. C. Agency or its contractor will place all necessary cable and conduit on Railroad property, as approved by BNSF and in compliance with the BNSF Utility Accommodation Manual, at the locations shown on Exhibit "A ", attached to and made a part of this Agreement d. The Agency or its contractor will cortnect the highway traffic control signals to the contact terminals in the interface box including all necessary cable and conduit. C. BNSF will provide flagging services, at Agency's sole expense as set forth in more detail on Exhibit "C" attached to and made a part of this Agreement. f. The Agency or its contractor must install the new highway traffic control signals. BNSF FORM 0100 — Major Drive project 1 EXHIBIT "A" g. An estimate of the actual costs for BNSF work is shown on Exhibit "B" attached to and made a part of this Agreement. In the event installation of the improvements has not commenced within six (6) months following the effective date of this Agreement, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth on Exhibit B. If the cost estimates are revised, 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 B not specifically mentioned therein may be included as a part of this Agreement upon written approval of the Agency, which approval will not be unreasonably withheld h. The Agency must pay BNSF for the actual costs of any work performed by BNSF under this Agreement within thirty (30) days of the date of the invoice for such work. During the constriction of the improvements, BNSF may send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement Upon completion of the improvements and all associated work, 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 B. 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 (121/o 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 un1osted payments received by the month's end Finance charges will be noted on invoices sent to Agency under this section. 3. CONSTRUCTION AND �NANCE a. BNSF will operate and maintain, at its expense, the necessary relays and the other materials required to preempt the highway traffic control signals with the grade crossing warning devices. b. BNSF will to operate and maintain, at its expense, the railroad crossing warning devices up to the contact terminals in the interface box. C. The Agency or its contractor must, at the Agency's expense, install the highway traffic control signals up to and including connection to the contact terminals in the interface box including all necessary cable and conduit. d. Following installation of the traffic control signals, the Agency will own, operate and maintain, at its expense, the highway traffic control signals up to and including connection to the contact terminals in the interface box including all necessary cable and conduit. e. For any future inspections or maintenance, 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 "contraetororientation.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, a Railroad Protective Liability insurance. 4. PROTECTION OF UNDERGRQUND SYSTEMS a, Agency and its contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications or utility companies may be buried on BNSF's property or right -of -way. The Agency or its contractor must contact appropriate personnel to have the Lines located and make arrangements with the owner of the Lines regarding protective measures that must be followed prior to the commencement of any work on BNSF's property. The Agency or its contractor will be responsible for contacting BNSF's Readmaster (Kendall Foley) at 337-572-2502 and BNSF's BNSF FORM 0100 - Major Drive project Slmaal- Construction Supervisor (Dwayne Tiffin) at 817- 740 -7384, and the telecommunications or utility companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Agency or its contractor must also marls all Lines in order to verify their locations. Agency or its contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. b. Agency or its contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the installation or construction of the improvements. Agency and/or its Contractor must cooperate fully with any telecommunications or utility company(ies) in performing such rearrangements. C. Failure to mark or identify Lines will be sufficient cause for BNSF's Engineering Representative to stop construction at no cost to BNSF until these items are completed. d. In addition to the liability terms contained elsewhere m this Agreement, Agency and its contractor hereby indemnify, defend and hold 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 Agency or its contractor, subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines 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 (a) any telecommunications or utility company, (b) Agency's contractor or subcontractors, or (c) Agency, and (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 telecommunications or utility company(ies).THE LIABILITY ASSUMED BY AGENCY OR ITS 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. 5. INDEMNIFICATION a. Agency hereby indemnifies, defends and holds harmless BNSF for, from and against any and all claims, suits, losses, damages, costs and expenses for injury to or death to third parties or BNSF's officers and employees, and for loss and damage to property belonging to any third parties (mchrding damage to the property of BNSF officers and employees), to the extent caused by the negligence of the Agency or any of its employees, agents or contractors. The Agency also releases BNSF from and waives any claims for injury or damage to the Agency's highway traffic control signals or other equipment which may occur as a result of any of the work provided for in this Agreement or the operation or the maintenance thereafter of any of the Agency's highway traffic control signals, cables, connections at and about the grade crossing. b. To the fullest extent permitted by law, Agency hereby releases, indemnifies, defends and holds harmless BNSF and BNSF's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, employees and agents for, from and against any and all claims, suits, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys fees and court costs) for injury to or death to Agency employees, agents or representatives arising out of, resulting from or related to any act or omission of Agency or any work performed on or about BNSF's property or right-of-way. THE LIABILITY ASSUMED BY THE AGENCY IN THIS PROVISION 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 RAILROAD, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF BNSF. BNSF FORM 0100 — Major Drive project C. The Agency further agrees, at its expense, in the name and on behalf of BNSF, that it will adjust and settle any claims made against BNSF and will appear and defend any suits or actions at law or in equity brought against BNSF on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by the Agency under this Agreement for which BNSF is alleged to be liable. BNSF will give notice to the Agency in writing of the receipt of pendency of such claims and thereupon the Agency must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against BNSF, BNSF may forward the summons and complaint or process in connection therewith to the Agency, and the Agency must defend, adjust or settle such suits and protect, indemnify, and save harmless BNSF 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. 6. AGENCY CONTRACTOR REQUIREMENTS a. While on or about BNSF property, Agency and its contractors must fully comply with BNSF's "Contractor Requirements" set forth in Exhibit "C" attached to and made a part of this Agreement The "Contractor Requirements" include clearance requirements and personal protective equipment requirements. Agency and its contractors will be responsible for becoming familiar with BNSF's "Contractor Requirements ". Prior to entering BNSF property, Agency's Contractor must execute Exhibit C -1 attached to and made a pint of this Agreement. b. Prior to enlering BNSF property, each person providing labor, material, supervision or services connected with the work to be performed on or about BNSF property must complete the safety training program (hereinafter called "BNSF Contractor Safety Orientation ") at the following internet website: "contractororientatiion.com". Agency must ensure that each of its contractors, employees, subcontractors, agents or invitees completes the BNSF Contractor Safety Orientation before any work is performed under this Agreement. Additionally, Agency must ensure that each and every contractor, employee, subcontractor, agent or invitee possesses a card certifying completion of the BNSF Contractor Safety Orientation prior to entering BNSF property. Agency must renew the BNSF Contractor Safety Orientation annually. C. Prior to entering BNSF properly, Agency or its contractors must prepare and implement a safety action plan acceptable to BNSF. Agency must audit compliance with the plan during the course of Agency's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by BNSF at all reasonable times. INSURANCE Agency and its contractor must, at Agency and contractor's sole cost and expense, procure and maintain during the We of this Agreement the following insurance coverage: a. Commercial General Liability insurance. Tlus insurance must contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited 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 BNSF FORM 0100 — Major Drive project be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. ♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards must be removed. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy. b. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ 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 Pmtecftve Liability insurance naming only the Rain oad as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the pollution Exclusion Amendment (ISO form CG 28 3110 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 e. 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. Agency 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. Agency 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 Agency's care, custody or control. Agency's insurance policies through policy endorsement, must include wording which states that the policy will be 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. BNSF FORM 0100 — Major Drive project Agency 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 Agency in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Agency's insurance will be covered as if Agency elected not to include a deductible, self- insured retention or other financial responsibility for claims. Prior to commencing the Work, Agency must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non - renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. The insurance certificate(s) should be forwarded to the following address: BNSF Railway Company c/o CertFocus P.O. Box 140528 Kansas City, MO 64114 Toll Free: 877 -576 -2378 Fax number: 817 -840 -7487 Email: 13NSF@eiertfocus com www.certfocus.com 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 provided. Agency represents that this Agreement has been thoroughly reviewed by Agency's insurance agent(s)/broker(s), who have been instructed by Agency to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. If any portion of the operation is to be subcontracted by Agency, Agency 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 Agency 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 Agency's obligations hereunder. The fact that insurance (including, without limitation, self - insurance) is obtained by Agency will not be deemed to release or diminish the liability of Agency including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad means "Burlington Northern Santa Fe Corporation", "The Burlington Northern and Santa Fe Railway Company" and the subsidiaries, successors, assigns and affiliates of each. 8. NOTICES BNSF FORM 0100 —Major Drive project 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: Manager Public Projects 5800 North Main Street Saginaw, Texas 76179 Agency: Director of Public Works 801 Main Street P.O. Box 3827 Beaumont, TX 777704 -3827 BNSF FORM 0100 — Major Drive project 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BNSF RAILWAY COMPANY By: Printed Name: Timothy J. Hu-ya Title: Manager Public Proiects AGENCY By: Printed Name: Title: All invoices for the project will be sent to: Mark Horelica Transportation Manager City of Beaumont Public Works Department 801 Main Street, Suite 210 P.O. Box 3827 Beaumont, Texas 77704 -3827 Phone: 409- 838 -6527 or 409 - 838 -5016 Email: mhorelica@ci.beaumonttx.us BNSF FORM 0100 — Major Drive project Mt 3nm 0 x a K z $ &,*,, W � o � r w o o = d lag Iry 0 m W o N o w �10 SWPw O� o T� yti o y Jj #--4 W"*- III Jill � 5, 1 11 its t� I ! -- V1, ►8 a