Loading...
HomeMy WebLinkAboutR-2000-057 Burlington Northern & Santa Fe Railway Company Agreement for a whistle ban pilot studyRESOLUTION NO. R-2000- 57 A RESOLUTION authorizing and directing the City Manager to execute an Agreement with the Burlington Northern and Santa Fe Railway Company for a whistle ban pilot study project in the City of Yakima. WHEREAS, the City of Yakima acknowledges that in order to establish a whistle ban which would be beneficial to the City, the City must satisfy the requirements of the Burlington Northern and Santa Fe Railway Company ("BNSF"), the Federal Railroad Administration and the Washington Utilities and Transportation Commission for establishment of supplemental safety measures at five at -grade railroad crossings from "I" Street to Yakima Avenue; and WHEREAS, it is in the best interests of the City to perform a whistle ban pilot study project as described by the attached agreement; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is authorized, upon verification that the BNSF and the lessee of its property on the north side of Yakima Avenue immediately west of the BNSF mainline tracks have reached an accord regarding closure of the easterly driveway onto that property, to sign the attached agreement with the Burlington Northern and Santa Fe Railway Company for a Whistle Ban Pilot Study Project for Yakima, Washington. ADOPTED BY THE CITY COUNCIL this 16th day of May 2000. ATTEST: ect,IL.2.„ c4„, c City Clerk C:\WINDOWS\TEMP\res authorizing.doc ry L. Place, Mayor Last printed 05/16/00 10:44 AM AGREEMENT FOR WHISTLE BAN PILOT STUDY PROJECT FOR YAKIMA, WASHINGTON THIS AGREEMENT ("Agreement"), is made and entered into by and between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, hereinafter referred to as "BNSF," and the CITY OF YAKIMA, WASHINGTON, a municipal corporation, hereinafter referred to as the "City," BNSF and the City together hereinafter referred to as the "Parties." WITNESSETH: WHEREAS, BNSF operates a number of trains through the City over at least five at - grade crossings with City streets at all times of day and night, and WHEREAS, BNSF trains are currently required to sound whistles as they approach and pass through the at -grade crossings; and WHEREAS, the City has requested the Federal Railroad Administration (the "FRA") to authorize the City to perform a whistle ban study (the "Project"), which could establish sufficient supplemental safety improvements to certain at -grade crossings to enable the FRA and the Washington Utilities and Transportation Commission ("WUTC") to authorize BNSF to operate trains through those crossings without sounding whistles in advance of certain at -grade crossings identified herein, and WHEREAS, BNSF agrees to cooperate and work with the City in the construction of the Project, and WHEREAS, the City and BNSF desire that the work to be performed by the City in connection with the Project be performed in accordance with plans and specifications prepared by the City, and WHEREAS, the Project will require BNSF to perform certain work on its facilities, and WHEREAS, BNSF and the City are willing to undertake the construction of the Project with BNSF and the City each funding its own work as described in this Agreement and identified in Exhibit "A," which is attached. NOW THEREFORE, in consideration of the matters stated above and the mutual promises made below, the parties agree and promise as follows: SECTION 1: The Project shall occur in three phases, as described below. The Parties shall cooperate in the Project, subject to entry of appropriate orders by WUTC and FRA, and subject to the terms and conditions hereof. . Phase 1: The City shall install camera equipment at strategic locations in both approaches to the crossings at "I" and "D" Streets and at the crossing of Yakima Avenue. Driver behavior at the crossings shall be monitored by video cameras for at least 16 (sixteen) weeks. C:\WINDOWS\TEMP\5-11 final dw clean.doc WHISTLEBAN PROJECT AGREEMENT Last printed 5/17/00 2:05 PM Page 1 of 6 Phase 2: The Parties shall work together to coordinate the following work: BNSF shall remove designated tracks from at -grade crossings at "D" and "I" Streets and shall then relocate the automatic flashing light traffic control devices at each crossing identified. The City shall construct supplemental safety measures (such as median barriers and warning devices) as set forth in Exhibit B. Driver behavior at the crossings shall be monitored by video cameras. Supplemental safety measures and other crossing traffic control devices shall remain in place, and the train whistles shall continue to be blown, for at least the next 16 (sixteen) weeks. At the completion of 16 (sixteen) weeks, the Parties will review videotapes of driver behavior at all the subject crossings, any train incidents that were recorded, and other notable matters from Phases 1 and 2 of the project with the FRA and WUTC. Upon mutual agreement by both Parties that the results of the video monitoring warrant proceeding, the Parties shall jointly request (i) an order from the FRA directing BNSF to cease blowing the train whistle subject to the terms and conditions of said order and (ii) an order from the WUTC approving the as -built crossings and supplemental safety measures (such as crossing signals, center medians, and passive warning signs). Upon receiving said orders from the FRA and WUTC, the Parties shall proceed to Phase 3. Phase 3: Subject to any conditions set forth in the FRA order, BNSF trains shall not sound whistles as they approach and pass through the Yakima Avenue, "B" Street, Lincoln Avenue, "D" Street, and "I" Street crossings. Driver behavior shall be monitored by the video cameras with the supplemental safety measures and other crossing traffic control devices in place for at least 16 (sixteen) weeks. SECTION 2: A. The City or its contractor shall, at the City's expense, furnish all work to be performed and all necessary materials as follows. 1. Except as otherwise provided herein, plans, engineering, supervision, labor, material, supplies, and equipment necessary for construction of the supplemental safety measures included in the Project. 2. Install video cameras as appropriate for monitoring driver behavior. 3. Install median barriers and any warning devices required by the WUTC or the FRA. 4. Design and construct such additional supplemental safety measures as parking lot gates or other devices as may be necessary to effectively control motor vehicle traffic leaving parking lots or other premises near the crossings and traveling toward the crossing. 5. Build appropriate center medians at Yakima Avenue and "I" and "D" Streets as shown on Exhibit B. C:\WINDOWS\TEMP\5-11 final dw clean.doc WHISTLEBAN PROJECT AGREEMENT Last printed 5/17/00 2:05 PM Page 2 of 6 6. There are now two driveway approaches to the current Track 29 shopping and restaurant area located on property owned by BNSF on the north side of Yakima Avenue immediately west of the BNSF mainline tracks. The easterly driveway nearest to the mainline tracks will be closed in conjunction with this Project. The westerly driveway will be the single permitted point of ingress and egress between the Track 29 area and Yakima Avenue. Along the north side of Yakima Avenue west of the BNSF mainline tracks the City shall construct approximately 60 feet of full -height curb, which shall span the area previously occupied by the easterly driveway. The City shall also construct concrete planter/barrier curb on the north side of the sidewalk, which shall also span the area previously occupied by the easterly driveway. The City shall also install extruded concrete curb along the southerly edge of the area paved for motor vehicle circulation around the Track 29 area. B. BNSF or its contractor shall, at BNSF's expense, furnish all work to be performed and all necessary materials as follows. 1. At "I" Street, remove industrial track and the most eastern siding track from the crossing. Relocate automatic flashing light traffic control devices as required. 2. At "D" Street, remove eastern and western siding track and remove easterly siding track from the crossing. Relocate easterly siding track switch. Relocate signals, automatic flashing light, and traffic control devices and "tighten" the crossings. 3. At "D" and "I" Streets, where track has been removed, resurface streets to the same standard and quality as the existing adjoining surface. C. BNSF agrees to closure of the easterly driveway onto its property on the north side of Yakima Avenue immediately west of the mainline tracks, which is leased to a third party, and to establishment of the westerly driveway as the single permitted point of ingress and egress between that BNSF property and Yakima Avenue. SECTION 3: A. All contracts between the City and its contractor(s) and subcontractor(s), for either the construction herein provided for or maintenance work on the roadway within any easement area described herein or shown on the exhibits attached hereto, shall require the contractor to indemnify and hold harmless BNSF and any other railroad company occupying or using BNSF's right-of-way or line of railroad against all loss, liability and damage arising from activities of the contractor, its forces or any of its subcontractors or agents, and shall further provide that the contractor shall: 1. Furnish to BNSF a Railroad Protective Policy in the form provided by 23 CFR 646A. The combined single limit of said policy shall not be less than Two Million Dollars ($2,000,000) for all damages arising out of bodily injuries to or death of any person or persons and for all damages arising out of the loss or destruction of or C:\WINDOWS\TEMP\5-11 final dw clean.doc WHISTLEBAN PROJECT AGREEMENT Last printed 5/17/00 2:05 PM Page 3 of 6 injury or damage to property in any one occurrence during the policy period and, subject to that limit, a total (or aggregate) limit of not less than Six Million Dollars ($6,000,000) for all damages during the policy period. Said insurance policy executed by a corporation qualified to write the same in the State of Washington shall be in the form and substance satisfactory to BNSF and shall be delivered to and approved by BNSF prior to entry upon or use of its property by the contractor. 2. Carry regular Contractor's Public Liability and Property Damage Insurance as specified in 23 CFR 646A providing for a limit of not less than One Million Dollars ($1,000,000) for all damages arising out of bodily injuries to or death of one person and, subject to that limit, for each person, a total limit of not less than Two Million Dollars ($2,000,000) for all damages arising out of bodily injuries to or death of two or more persons in any one accident; and providing for a limit of not less than One Million Dollars ($1,000,000) for all damages to or destruction of property in any one accident and, subject to that limit, a total (or aggregate) limit of not less than Two Million Dollars ($2,000,000) for all damages to or destruction of property during the policy period. A certificate of insurance providing proof of Contractor's Public Liability and Property Damage Insurance containing a thirty (30) - day advance written notice to BNSF in the event of cancellation, nonrenewal or material change of policy, executed by a corporation qualified to write the same in the State of Washington, in form and substance satisfactory to BNSF shall be delivered to and approved by BNSF prior to the entry upon or use of BNSF's property by the contractor. BNSF shall be a named insured under the above policy. B. The City, its contractor(s), subcontractor(s) or agent(s), shall, during the term of this Agreement, at its/their own expense, obtain and maintain in force Worker's Compensation Insurance or coverage as required under the "Workers Compensation Act" of the State of Washington. The coverage should include occupational disease to required statutory limits, employer's liability of One Million Dollars ($1,000,000) to include FELA, if appropriate. BNSF shall not be a named insured in the above policy. SECTION 4: Nothing in this Agreement is intended to be construed as a requirement for indemnification against the sole negligence of BNSF, its officers, employees, or agents for any work relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, performed in the State of Washington. Indemnification against liability for damages arising out of bodily injuries or death of any person or to persons or damage to property for any work relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, performed in the State of Washington and caused by or resulting from the concurrent negligence of BNSF and the C:\WINDOWS\TEMP\5-11 final dw clean.doc WHISTLEBAN PROJECT AGREEMENT Last printed 5/17/00 2:05 PM Page 4 of 6 City's contractors will be enforceable only to the extent of the negligence of the City's contractors. The indemnification obligation shall include all claims brought by contractor(s)' and subcontractor(s)' employees against BNSF, its agents, servants, employees or otherwise, and contractor expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes potential liability for all actions brought by its employees. SECTION 5: The City's contractor(s) and subcontractor(s) shall prosecute and complete work in a manner which does not interfere with the normal movement of trains and according to contractor's own manner and methods and with and by contractor(s)' and subcontractor(s)' own means and employees, free from any supervision, inspection, or control whatsoever by BNSF, except that BNSF shall have the right to inspect the City's contractor(s)' or subcontractors' work in order to determine whether work performed complies with the requirements of this Agreement and conforms to the plans and specifications, it being the intention of the parties hereto that the contractor(s) and subcontractor(s) shall be and remain independent contractor(s) and subcontractor(s) and that nothing herein contained shall be constructed as inconsistent with that status. All provisions of Exhibit "C" (Contractor Requirements) are hereby incorporated and made part hereof. All contracts between the City and its contractor(s) or subcontractor(s) for the construction herein provided for or shown on the exhibits attached hereto shall require the contractor(s) and subcontractor(s) to conform to the requirements of Exhibit "C." SECTION 6: The City shall require its contractor(s) and subcontractor(s) to comply with all requirements and regulations of every federal, state, local, or other governmental authority with respect to the performance of work for the safety of the employees engaged therein and of the public; shall take all necessary precautions for the safety of contractor(s), subcontractors, employees, and the public, as well as the property of each; and shall protect contractor(s), subcontractors and the employees and tools of both while engaged in said work. BNSF's engineer or designee may advise contractor(s) or subcontractor(s), or contractor(s)' or subcontractor(s)' work site supervisor, that an agent or employee of contractor or of a subcontractor is working in an unsafe manner or may potentially work in an unsafe manner, in which event contractor's or subcontractor's work site supervisor shall cause said agent or employee to leave the work site and BNSF's property. SECTION 7: Unless stated otherwise herein, all notices and demands shall be in writing and sent by registered or certified, postage -prepaid mail or hand -delivered to the Parties to each of their addresses as follows: TO CITY: City of Yakima c/o City Engineer City Hall 129 North 2nd Street Yakima, WA 98901 TO BNSF: BNSF c/o Mike Cowles Manager Public Projects 2454 Occidental Ave. S., Ste. 1-A Seattle, WA 98134 C:\WINDOWS\TEMP\5-11 final dw clean.doc Last printed 5/17/00 2:05 PM WHISTLEBAN PROJECT AGREEMENT Page 5 of 6 or to such other addresses as the Parties may hereafter designate in writing. Such notices shall be deemed effective when mailed or hand -delivered at the addresses specified above. SECTION 8: Exhibits A, B, and C, appended hereto, are an integral part of this Agreement and shall be construed for all purposes as a part of this Agreement. SECTION 9: This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. Should any dispute or disagreement in connection with this Agreement arise and either the City or BNSF commences litigation as a result, the City and BNSF agree that the sole remedy available shall be specific performance of any obligation under this Agreement. The Parties hereby waive any right to compensatory, consequential, punitive or any other kinds of damages arising from either Party's obligations under this Agreement. SECTION 10: The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County or the Federal District Court for Eastern Washington. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their respective officials duly empowered to bind the Parties and execute this Agreement. L,Y ..� EXECUTED by BNSF this �7 day of c..,aL zi , 2000 THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY By: Git�c%G%�i Name Printed:/S: Title: Vim President Engineering Set= APPROV, D AS TO FORM7(24 Burlington Northern Santa Fe Law Denarlmerrt 2000 EXECUTED by the City this 1 si- day of Attest: k THE CITY OF YAKIMA, WASHINGTON By: R.A. Zais, Jr., City Manager Karen Roberts, City Cle City Contract No. 2000_45 Resolution No. R-2000-57 C:\WINDOWS\TEMP\5-11 final dw clean.doc WHISTLEBAN PROJECT AGREEMENT Last printed 5/17/00 2:05 PM Page 6 of 6 May 11, 2000 To: From: Subject: City of Yakima Engineering Division MEMORANDUM Members of the City Council K. Wendell Adams, P.E., City Engineer Whistle Ban Work Descriptions & Shared Costs City Project Number 1813 EXHIBIT "A" In June of 1998 the five mainline railroad crossings of Yakima Avenue, "B" Street, Lincoln Avenue, "D" Street and "I" Street were reviewed by City Staff along with the Federal Railroad Administration (FRA), the Washington State Utilities and Transportation Commission (WSUTC) and the Burlington Northern Santa Fe Railway Company (BNSF). At all of these sites, necessary road modifications were discussed, reviewed and a concensus was reached for each crossing. The consensus reached for each crossing was: Yakima Avenue BNSF will work together with the City to implement railroad pre-emption for the existing traffic signal at Front Street. (Outside of this agreement, BNSF will eliminate the rail crossing on the west side of the mainline and move existing signal crossing equipment to the east in conjunction with improvements on "D" and "1" Streets.) The City will install median curb, barrier curb and sidewalk in accordance with the location shown on the submittal drawing. • The existing eastern driveway for Track 29, closest to the mainline will be closed. (This was one of the options proposed in the original discussions between all parties.). This crossing will be monitored for all phases of the pilot study. Monitoring will be provided by ASTI and funded by the FRA. B Street and Lincoln Avenue The City will install barrier curb and sidewalk in accordance with the the submittal drawing. These crossings do not require monitoring. D Street The City will install median curb and barrier curb in accordance with the submittal drawing. BNSF will relocate a rail switch to the north of the crossing and remove the crossing on the west side of the mainline. Both crossing changes allow for moving existing crossing signal equipment closer to the mainline. Page 1 This crossing will be monitored for all phases of the pilot study. Monitoring will be provided by ASTI and funded by the FRA. I Street The City will install median curb and barrier curb in accordance with the submittal drawing. BNSF will remove one crossing on each side of the mainline. Both crossing changes allow for moving existing crossing signal equipment closer to the mainline. This crossing will tentatively be monitored for portions of the pilot study. ASTI will provide monitoring. Other Issues The FRA and WSUTC noted our desire to shorten the study periods from 16 weeks to 8 weeks each, but they did not agree. The basis for the study period length is not related to the vehicle crossing volume but to the number of gate closures in a study period. The study period length must remain at 16 weeks for each of three periods. The median curb detailed in the submittal calls for 12" tall median curb. Mr. Ries and Mr. Rowsweil indicate that 6" to 9" tall curb is preferred. We have no objections, final median height will be determined this month. A breakdown of estimated costs for participants follows on the next page: Page 2 Railroad Supplementary Safety Measures City Project 1813 City BNSF FRA I Street Safety $40,300 Measures Camera $40,000 Move Switch $16,500 Remove Crossing $5,000 Relocate Signal $40,000 $40,300 $61,500 $40,000 D Street Safety $38,300 Measures Camera $40,000 Move Switch $16,500 Remove Crossing $5,000 Relocate Signal $40,000 $38,300 $61,500 $40,000 Lincoln Avenue $0.00 $0.00 $0.00 B Street Safety $23,400 $0.00 $0.00 Measures Yakima Avenue Safety $20,700 Measures Camera New Gate $40,000 $20,700 $0.00 $40,000 Costs $122,700 $123,000 $120,000 The City project is budgeted in the "Cumulative Reserve for Capital Improvement Fund" (392) Page 3 YAKIMA SAFETY STUDY - FIVE RAIL CROSSINGS 1 SITE VICINITY & SHEET LAYOUT 2 WEST 'I' STREET / NORTH FRONT STREET 3 'D' STREET / FRONT STREET 4 LINCOLN AVENUE / FRONT STREET 5 'B' STREET / FRONT STREET 6 WEST YAKIMA AVENUE / FRONT STREET WEST THIS PORTION OF TRACK TO BE REMOVED BY OTHERS STREET 125' MEDIAN BARRIER 125' CURB MOVE EXISTING RR SIGNAL & GATE 40' EAST Ira 75' MEDIAN BARRIER GI NERAL NOTES 1. SIGNAL / GATE TO BE MOVED TO 15' FROM CENTERLINE OF TRACK., 2. TRACK REMOVAL BY OTHERS. 3. END OF GATE TO MEET END OF BARRIER. 11 \ z a - \US! Iv. 1 n can a' o N a) o => a a) ca 0 West 'P Street & North Front Street r W z 1 WEST 'D' THIS PORTION OF TRACK TO BE REMOVED BY OTHERS GENERAL NOTES 1. SIGNAL / GATE TO BE MOVED TO 15' FROM CENTERLINE OF TRACK. 2. TRACK REMOVAL BY OTHERS. 3. END OF GATE TO MEET END OF BARRIER. RELOCATE SWITCH (BY OTHERS) MOVE EXISTING RR SIGNAL/GATE 30' WEST 70' CURB STREET60' MEDIAN BARRIER 70' MEDIAN BARRIER 60' CURB MOVE EXISTING RR SIGNAL/GATE 15' EAST • City of Yakima Project No. 1813 Project Eng.Jmaine a) ‘7111 o Z U II II m c0 O O 3 N - o a) 0 2 > 3 6 FIRST FRONT r z 0 1 z z c m rn c w AVENUE STREET .2:1312:18V8 JO ON] 13311 01 31VO JO ON] '£ 'S2J3H10 A8 1VA011321 )IOV81 'Z 1. SIGNAL / GATE TO BE MOVED TO 15' FROM CENTERLINE OF D n g z 0 V) Plan Sheet Lincoln Avenue & Front Street Project Eng.Jmaine Drawing Scales Horizontal = 1".40' Vertical = None CITY OF YAKIMA SAFETY STUDY - RAILROAD CROSSINGS City of Yakima Project No. 1813 City Of Yakima Engineering Division 129 North Second Street Yakima. Washington ' J3Rl2Jd8 30 ON3 13311 01 31V0 JO GN3 T N -' D O C7 Z 1 r 0 2 O D r co O N o m 0 cn r*1 0 O cn 0 C) m z r- r z 0 m D FIRST FRONT AVENUE D 73 -oo AC m m 0� N Z N � STREET Plan Sheet 'B' Street Front Street Project Eng.Jmaine Drawing Scales Horizontal = 1"=40' Vertical = None CITY OF YAKIMA SAFETY STUDY - RAILROAD CROSSINGS City of Yakima Project No. 1813 City Of Yakima Engineering Division 129 North Second Street Yakima, Washington LTJ Z 1— IA.1 La 4L CO 77' CURB WEST YAKIMA AVENUE 60' CURB 120' MEDIAN BARRIER 55' MEDIAN BARRIER 68' CURB MOVE EXISTING RR SIGNAL & GATE 18' EAST TRACK TO BE REMOVED BY OTHERS. SAVE RUBBER TRAFFIC CROSSING TO CITY OF YAKIMA INSTALL "NO PARKING EAST OF HERE" SIGN. REMOVE PARKING STRIPES GENERAL NOTES 1. SIGNAL / GATE TO BE MOVED TO 15' FROM CENTERLINE OF TRACK. 2. TRACK REMOVAL BY OTHERS. 3. END OF GATE TO MEET END OF BARRIER. z cr La • Fri 0 .5 E E City of Yakima Project No. 1813 Project Eng.Jmaine Frz) cp 11 0 a) Z c — o N't o a) 0 > West Yakima Avenue & Front Street 6 6 EXISTING ROADWAY 97016.01 REV 3/21/97 11:\97\97016\CAD\GRAPHIC (D) ---1 3" h 36" 18" FLEXIBLE DELINEATOR SPACED 5' ON CENTER PORTLAND CEMENT CONCRETE Yakima Safety Study 5 Rail Crossings The TRANSPO Group, Inc. Figure 3 Median Barrier Cross -Section CONTRACTOR'S RIGHT OF ENTRY AGREEMENT FOR CONSTRUCTION PROJECTS ON OR ADJACENT TO PROPERTY OF THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Gentlemen: "Exhibit C" The undersigned, hereinafter referred to as Contractor, has entered into a Contract dated , 200, with the City of Yakima ("City") for the performance of certain work in connection with the project. The construction of the m the performance of which work the Contractor will necessarily be required to conduct operations within THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY ("Railway"), right of way and property ("Railway Property"). The Contract provides that no work shall be commenced within Railway Property until the Contractor employed m connection with said work for City executes and delivers to Railway an Agreement, in the form hereof, and shall have provided insurance of the coverage and limits specified in said Contract and Section 2 of this Agreement. If this Agreement is executed by other than the Owner, General Partner, President or Vice President of Contractor, evidence is furnished to you herewith certifying that the signatory is empowered to execute this Agreement for the Contractor Accordmgly, as one of the inducements to and as part of the consideration for Railway granting pei mission to Contractor to enter upon Railway Property, Contractor, effective on the date of said Contract, has agreed and does hereby agree with Railway as follows: SECTION 1. RELEASE OF LIABILITY AND INDEMNITY Contractor agrees to release Railway from any claims arising from the performance of this Agreement which Contractor or any of its employees, subcontractors, agents or invitees could otherwise assert against Railway, regardless of the negligence of Railway, except to the extent that such claims are proximately caused by the intentional misconduct or gross negligence of Railway Contractor shall indemnify and hold harmless Railway for all judgments, awards, claims, demands, and expenses (including attorney's 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 m any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or failure to perform any obligation hereunder. THE LIABILITY ASSUMED BY CONTRACTOR SHALL 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 SHALL INCLUDE ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE BOILER INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it shall adjust and settle all claims made against Railway, and shall, 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 m any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable Railway shall give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor shall proceed to adjust and handle to a conclusion such claims, and in the event of a brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, shall defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, RIGHT OF ENTRY STATE OF MAY 1, 2000 PAGE 1 judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement shall survive any termination of this Agreement. SECTION 2. INSURANCE. (a). Before commencing any work under this Agreement, Contractor must provide and maintain in effect throughout the term of this Agreement msurance, at Contractor's expense, covering all of the work and services to be performed hereunder by Contractor and each of its subcontractors, as described below: (1). Workers' Compensation coverage as is required by State law THE CERTIFICATE MUST CONTAIN A SPECIFIC WAIVER OF THE INSURANNCE COMPANY'S SUBROGATION RIGHTS AGAINST THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY. (2). Commercial General Liability insurance covering liability, including but not limited to Public Liability, Personal Injury, Property Damage and Contractual Liability covering the obligations assumed by Contractor in Section 1, with coverage of at least $2,000,000 per occurrence and $4,000,000 in the aggregate Where explosion, collapse, or underground hazards are involved, the X, C, and U exclusions must be removed from the policy (3) Automobile Liability insurance, mcluding bodily injury and property damage, with coverage of at least $1,000,000 combined single limit or the equivalent covermg any and all vehicles owned or hired by the Contractor and used m performing any of the services under this agreement. (4). Railroad Protective Liability insurance stating The Burlington Northern and Santa Fe Railway Company is the Named Insured covenng all of the liability assumed by the Contractor under the provisions of this Agreement with coverage of at least $2,000,000 per occurrence and $6,000,000 m the aggregate. Coverage shall be issued on a standard ISO form CG 00 35 01 96 and endorsed to include ISO foun CG 28 31 10 93 and the Limited Seepage and Pollution Endorsement (see attached copy) (b) The average tram traffic per 24-hour period on this route is freight trams at a timetable speed of MPH and passenger trains at a timetable speed of MPH and switch engme movements. (c) All insurance shall be placed with insurance companies licensed to do business m the States in which the work is to be performed, and with a current Best's Insurance Guide Rating of A- and Class VII, or better (d) In all cases except Workers' Compensation and Railroad Protective Liability coverage the certificate must specifically state that THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY IS AN ADDITIONAL INSURED. (e) Any coverage afforded Railway, the Certificate Holder, as an Additional Insured shall apply as primary and not excess to any coverage issued in the name of Railway. RIGHT OF ENTRY STATE OF MAY 1, 2000 PAGE 2 (f) Such insurance shall be approved by the Railway before any work is performed on Railway's Property and shall be carried until all work required to be performed on or adjacent to Railway's Property under the terms of the contract is satisfactorily completed as determined by Department of Transportation, and thereafter until all tools, equipment and materials not belonging to the Railway, have been removed from Railway's Property and Railway Property is left m a clean and presentable condition. The insurance herein required shall be obtained by the Contractor and Contractor shall furnish Railway with an original certificate of insurance, signed by the insurance company, or its authorized representative, evidencing the issuance of insurance coverage as prescribed in (a) 1, 2 and 3 above, plus the original Railroad Protective Liability insurance policy to. Attention. Maintenance Field Support The Burlington Northern and Santa Fe Railway Company Maintenance Field Support 4501 Kansas Avenue Kansas City, Kansas 66106 (g). The certificate of insurance shall guarantee that the policies will not be amended, altered, modified or canceled in so far as the coverage contemplated hereunder is concerned. without at least thirty (30) days notice mailed by registered mail to Railway (h). Full compensation for all premiums which the Contractor is required to pay on all the insurance described hereinafter shall be considered as included m the prices paid for the various items of work to be performed under the Contract, and no additional allowance will be made therefore or for additional premiums which may be required by extensions of the policies of insurance It is further distinctly understood and agreed by the Contractor that its liability to the Railway herem under SECTION 1 will not m any way be limited to or affected by the amount of insurance obtamed and carried by the Contractor in connection with said Contract. SECTION 3. CONTRACTOR REQUIREMENTS (a). While on or about Railway Property, Contractor shall fully comply with Railway's "Contractor Requirements", including (but not limited to) clearance requirements and personal protective equipment requirements. Contractor shall be responsible for fully informmg itself as to Railway "Contractor Requirements" (b). Prior to entering Railway Property, each person providmg labor, material, supervision, or services connected with the work to be performed on or about Railway Property shall attend a Safety Orientation session conducted or approved by Railway. Contractor shall contact Manger Public Projects, , telephone fax , at least thirty (30) calendar days m advance to arrange the necessary safety orientation session(s). (c) Prior to entering Railway property, the Contractor shall prepare and implement a safety action plan acceptable to Railway. Contractor shall audit its compliance with that plan dunng the course of its work. A copy of said plan and audit results shall be kept at the work site and shall be available for inspection by Railway at all reasonable times SECTION 4. PROTECTION OF RAILWAY FACILITIES AND RAILWAY FLAGGER SERVICES (a) The Contractor shall give a minimum of at least thirty (30) workmg days notice to the Railways Roadmaster at telephone , in advance of when flagging services will be required to bulletin the flaggers position and shall provide five (5) working days notice to the Roadmaster to abolish the position per union requirements. (b) Railway flagger and protective services and devices will be required and furnished when Contractor's work activities are located over or under of and within twenty-five (25) feet measured horizontally from center line of the nearest track and when cranes or similar equipment positioned outside of 25 -foot horizontally from track center line that could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions RIGHT OF ENTRY STATE OF MAY 1, 2000 PAGE 3 (1). When m the opinion of the Railway's representative, it is necessary to safeguard Railway's Property, employees, trams, engines and facilities. (2). When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. (3). When work in any way interferes with the safe operation of trains at timetable speeds. (4). When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity (5). Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result m making the track impassable (c). Flagging services will be performed by qualified Railway flaggers. The base cost per hour for (1) flagger is $50.00 which includes vacation allowance, paid holidays, Railway and Unemployment: Insurance, Public Liability and Property Damage Insurance, health and welfare benefits, transportation, meals, lodging and supervision, for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. These rates are subject to any increases which may result from Railway Employees -Railway Management negotiations or which may be authorized by Federal authorities. City/Contractor will be billed on actual costs m effect at time work is performed. (1) A flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railway's representative (2). Each time a flagger is called, the minimum period for billing shall be the eight (8) hour basic day (3). The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the City/Contractor (4). The average train traffic per 24-hour period on this route is freight trams at a timetable speed of MPH and passenger trains at a timetable speed of MPH and switch engine movements. SECTION 5. TRAIN DELAYS No work perfouned by Contractor shall cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Railway, it's lessees, licensees or others, unless specifically permitted under this agreement, or specifically authorized m advance by the Railway Representative. Nothing shall be done or suffered to be done by the Contractor at any time that would in any manner impair the safety thereof When not in use, Contractor's machinery and materials shall be kept at least 50 feet from the centerline of Railway's nearest track, and there shall be no vehicular crossings of Railway's track except at existing open public crossings. Contractor shall be responsible to Railway, including its affiliated railway companies, and its tenants for damages for any unscheduled delay to freight or passenger trams that are caused by the Contractor as follows (a). Train Delay Damages, Passenger Trains (1). Contractor will be billed and Contractor shall pay Railway within 30 days, as provided below, for the actual economic losses arising from loss of contractual incentive pay and bonuses, and contractual penalties resulting from passenger tram delays, whether caused by Contractor, or subcontractors, or by the Railway performing Railway Work associated with this project. Railway agrees that it will not perfoiiu any act to unnecessarily cause passenger train delay (2) Passenger trains operate under incentive/penalty contract with the Railway Under these arrangements, if Railway does not meet its contract service commitment, Railway may suffer loss of performance or incentive pay or be RIGHT OF ENTRY STATE OF MAY 1, 2000 PAGE 4 subject to a penalty payment. Contractor shall be responsible for any passenger train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a passenger tram delay caused by Contractor, or subcontractors. (3) As example, a passenger train arrives 30 minutes after its contract service commitments with the Railway and Railway is assessed damages per terms of the contract. Contractor, and/or its subcontractors, caused a 29 minute delay to the passenger train and therefore the Contractor is not responsible for passenger train performance incentives, penalties or other contractual economic losses actually incurred by Railway. (4). As example, a passenger tram arrives 30 minutes after its contract service commitment and Railway is assessed damages per terms of the contract. Contractor, and/or its subcontractors, caused a 31 minute delay to the passenger train and therefore the Contractor is 100% responsible for any passenger train performance incentive, penalties or other contractual economic losses actually incurred by Railway (5). The contractual relationship between Railway and its passenger customers is proprietary and confidential. In the event of a passenger train delay covered by this Agreement, Railway will share information relevant to any passenger train delay to the maximum extent consistent with Railway confidentiality obhgatrons Damage for passenger train delays for certain passenger trains could be as high as $50,000 00 per passenger tram. (b). Train Delays Damages, Freight Trains (1) Contractor will be billed and Contractor shall pay Railway withm 30 days, as provided herein, for the damages for freight tram delays, whether caused by the City, its contractors or subcontractors, or by the Railway workmg for the City The Contractor will be billed at a rate of $304.28 (for 1998) per freight tram hour for each freight train delayed as determined from Railway's records. Each delay may cause delays to more than one freight tram at the same time. These rates will be updated annually and Contractor will be billed at rate per hour in effect at the time the delay occurred. Kindly acknowledge receipt of this letter by signing and returning to the undersigned two original copies of this letter, which, upon execution by Railway, shall constitute an Agreement between us. Yours truly, (Contractor) By (Title) Address City, State, Zip The Burlington Northern and Santa Fe Railway Company By Vice President and Chief Engineer Accepted this day of ,200_ RIGHT OF ENTRY STATE OF MAY 1, 2000 PAGE 5 LIMITED SEEPAGE, POLLUTION AND CONTAMINATION COVERAGE ENDORSEMENT WORDING In consideration of the premium charged it is understood and agreed that Exclusion f. of Coverage A. of this Policy shall not apply to the liability of the Insured resulting from seepage and/or pollution and/or contamination caused solely by: a) unintended fire, lightning or explosion: or b) a collision or overturning of a road vehicle: or c) a collision or overturning or derailment of a train. Notwithstanding the foregoing it is agreed that the coverage provided by this Endorsement shall not apply to: 1. loss of, damage to or loss of use of property directly or indirectly resulting from sub -surface operations of the Insured, and/or removal of, loss of or damage to sub -surface oil, gas or any other substance; 2. any site or location used in whole or in part for the handling, processing, treatment, storage, disposal or dumping of any waste materials or substances; 3. the cost of evaluating and/or monitoring and/or controlling seeping and/or polluting and/or contaminating substances; 4. the cost of removing and/or nullifying and/or cleaning up seeping and/or polluting and /or contaminating substances on property at any time owned and/or leased and/or rented by the insured and/or under the control of the Insured. Notwithstanding the foregoing, Item 1 does not apply to tunnels. RIGHT OF ENTRY STATE OF MAY 1, 2000 PAGE 6 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. iLI For Meeting of May 16, 2000 ITEM TITLE: Agreement with BNSF for Whistle Ban and Safety Measures SUBMITTED BY: William Cook, Dept. of Community and Economic Development CONTACT PERSON/TELEPHONE: K. Wendell Adams, P.E., City Engineer e. Engineering Division Manager / 575-6096 SUMMARY EXPLANATION: The Federal Railroad Administration (FRA) and the Burlington Northern Santa Fe Railway (BNSF) have indicated that in order to allow the trains through town without sounding whistles or horns for the street crossings, "Supplementary Safety Measures" must be in place at each crossing. The City of Yakima and BNSF developed a construction plan with and acceptable to the Federal Railroad Administration (FRA) and the Washington State Utilities and Transportation Commission (WSUTC) to make safety improvements. ( Continued ) Resolution X Ordinance _ Contract X Other (Specify) Agreement Funding Source: "Cumulative Reserve for Cal Improvement Fund" (392) ts APPROVED FOR SUBMITTAL: Pc\ City Manager STAFF RECOMMENDATION: Adopt the attached resolution approving the Agreement with Burlington Northern Santa Fe Railway Company (BNSF) BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: May 11, 2000 With safety measures under the pilot study, it was agreed to video monitor the crossings at Yakima Avenue, "D" Street and "I" Street for sixteen weeks prior to crossing modifications and sixteen weeks immediately following crossing changes. In the near future the City of Yakima will petition the WSUTC to discontinue blowing of train whistles by BNSF. Assuming that petition will be approved, BNSF can discontinue the blowing of the train whistles in the northern portion of the city. Video monitoring will continue at the three crossings for a final sixteen -week period. Final items that were adjusted since an agreement similar to the one attached was before Council were the median barrier length on "D" Street and the closure of a driveway on Yakima Avenue closest to the BNSF Mainline track. The proposed "D" Street barrier length was lengthened from 45 feet to 60 feet on the west side of the mainline track. City staff explaining the FRA requested change in the median length has contacted Pick Plath and Tommy Hanses of Washington Fruit & Produce Company discussing the proposal, The proposed Yakima Avenue driveways and turn lane were modified to close the easternmost driveway. City staff explaining the BNSF requirement of the driveway closure has contacted Track 29 owner Del Matthews discussing the proposal. BNSF has also since requested to remove all "Spinner Spur" crossings and all signal equipment which includes the west side of Washington Fruit & Produce Company's shipping operation and the proposed improved driveway for the western iiCCegs w inial 29 on. Yakima Avenue. City staff has also met with Del Matthews, owner of Track 29, explaining the reasoning and options for closure of the eastern driveway to Track 29 on Yakima Avenue. City staff is also working to coordinate Track 29s' acquisition of additional BNSF property for additional parking on the east side of Track 29. 2 — May 11, 2000 MEMORANDUM TO: Bob Desgrosellier FROM: Linda Watkins DATE: April 25, 2000 SUBJECT: Contract Follow -Up Back in September of 1999 the City Council passed Resolution No. R-99-114 authorizing an agreement with BNSF for Whistle Ban and Safety Measures. The Agreement was signed by City management and was sent to you to obtain BNSF signatures with the request that a fully executed original be returned to the City Clerk. To date we have not received that signed original. Could you please advise what the status is on this agreement and if you have the signed original, please forward it to us. Thanks. cf.-LE- i---i ., - ( se- cX s©�vt2� of '� Cov.i`Ca c-71", �.± ("0;i t v,a-(- b -e- 57-11,-..e. ck Lost Gt q - -2..e. vv, P�w`%-- v► s 4„,,,„ ';lam co 1 1 s - A �$, a - 6 {d't3 CITY OF YAKIMA LEGAL DEPARTMENT 20U `.outli 1 litpo -Tp£ET, 'Fc tµa, S2aaljlvytov 98901-2&3U (J09)J h-o0i0'Pad: OU9).) /3-b l bU MEMORANDUM November 19, 1999 TO: Dick Zais, City Manager FROM: Raymond L. Paolella, City Attorney Bill Cook, Director, Community & Economic Development Bob Desgrosellier, Acting Engineering Division Manager SUBJECT: Railroad Whistle Ban Project On November 17, 1999, we had a telephone conference call with officials and legal counsel for BNSF Railway Company regarding the Whistle Ban Project in Yakima. The Railroad has reaffirmed its commitment to go forward with the Whistle Ban Project, but has qualified this commitment in certain respects. According to the Railroad attorney, the Whistle Ban Construction Contract approved by the City Council on September 7, 1999 will have to be amended in some unspecified ways. In addition, the Railroad is insisting that prior to commencing work, there must be a four -party meeting involving the City of Yakima, BNSF, the Washington Utilities and Transportation Commission, and the Federal Railroad Administration. We are attempting to schedule this meeting prior to the end of the year, but are not certain as to how quickly this can be accomplished due to the pending holiday season. It seems clear that BNSF will not proceed with the construction until after the contract has been amended and this four -party meeting has been held. Further, there are several unresolved issues involving: 1. the length and position of medians to be built on "D" Street and Yakima Avenue, 2. whether the current driveway entrance to Yesterday's Village will be closed or modified with a signal/gate interconnect system at some considerable cost to the City above the budgeted amount of $100,000, and 3. what type of written commitment for police enforcement will be required by BNSF and the state and federal agencies with jurisdiction. Memo to Dick Zais November 19, 1999 Page - 2 It appears that all of these issues need to be discussed and resolved before significant work can be undertaken on the Whistle Ban Project. It also appears unlikely that any construction activities can be commenced until at least the spring of 2000. We propose to issue a Press Release within a few days to advise the public of the delays in the Whistle Ban Project. AGREEMENT FOR WHISTLE BAN PILOT STUDY FOR YAKIMA, WASHINGTON THIS AGREEMENT, made and entered into by and between THE BURLINGTON NORTHERN AND SANTA FE BNSF COMPANY, hereinafter referred to as "BNSF", and the CITY OF YAKIMA, WASHINGTON, a municipal corporation, hereinafter referred to as the "City." WITNESSETH: WHEREAS, BNSF operates a number of trains through the City over at least five at -grade crossings with City streets at all times of day and night, and WHEREAS, BNSF trains operate loud whistles or horns as they approach and pass through the at -grade crossings, and WHEREAS, the loud whistles or horns constitute significant disturbance to people at residences and businesses near the BNSF tracks, especially during hours when most people sleep, and WHEREAS, the City has requested the Federal Railroad Administration (the "FRA"), to authorize the City to perform a whistle ban study (the "Project"), which could establish sufficient supplemental safety improvements to certain at -grade crossings to enable the FRA and the Washington Utilities and Transportation Commission ("WUTC") to authorize BNSF to operate trains through those crossings without sounding whistles or horns in advance, and WHEREAS, BNSF agrees to cooperate and work with the City in the construction of the Project. WHEREAS, the City and BNSF desire that the work to be performed by the City in connection with the Project be performed in accordance with plans and specifications prepared by the City, and WHEREAS, the Project will require BNSF to perform certain work on its facilities, and WHEREAS, BNSF and the City are willing to undertake the construction of the Project with BNSF and City each funding their own work as described in this agreement, and identified in Exhibit "A" attached. NOW THEREFORE, in consideration of the matters stated above and the mutual promises made below, the parties agree and promise as follows: SECTION 1: The Project shall occur in three phases, as described below. The parties shall use their best efforts separately and cooperatively to initiate Phase 1 as soon as possible, to avoid any gaps between phases, and to accomplish the establishment of a permanent whistle ban at the earliest possible date. Phase 1: The City shall install camera equipment at strategic locations in both approaches to the crossings at "I" and "D" Streets and at the crossing of Yakima Avenue. Driver behavior at the crossings shall be monitored by video cameras for the next sixteen weeks. C. My Documents\ENGINEER\Rail Road\ Whistle Ban\bnsf city k 9-2(16weeks).doc Last printed 09/02/99 5:08 PM WHISTLEBAN PROJECT AGREEMENT Page 1 of 5 Phase 2: BNSF shall remove designated tracks from at -grade crossings at "D" and "I" Streets and shall then relocate the automatic flashing light traffic control devices at each crossing identified. Upon the issuance by the WUTC of an order approving the proposed crossing signals and the proposed construction and design for each crossing, the City shall construct supplemental safety measures (median barriers and warning signs). Driver behavior at the crossings shall be monitored by video cameras with the supplemental safety measures and other crossing traffic control devices in place for the next sixteen weeks. As early as it becomes appropriate, the parties shall jointly request the FRA to issue an order for a four-month temporary whistle ban. The City and BNSF expect to review video tapes of driver behavior at the crossings, any train incidents that were recorded, and other notable matters from previous phases of 1 A 1 TA TT TTC before r e by the FRA. ine project with me FRA and vv LJ ii i1crure Iii order _� issued�ar = _ Phase 3: Upon the issuance by the FRA of an order for a sixteen week temporary whistle ban, BNSF trains shall not operate whistles or horns as they approach and pass through the crossings. Driver behavior shall be monitored by the video cameras with the supplemental safety measures and other crossing traffic control devices in place during the temporary whistle ban. As early as it becomes appropriate, the parties shall jointly request the FRA order a permanent whistle ban for the crossings. SECTION 2: A. The City or its contractor shall, at the City's expense, furnish all work to be performed and all necessary materials as follows. 1. Except as otherwise provided herein, plans, engineering, supervision, labor, material, supplies, and equipment necessary for construction of the supplemental safety measures included in the Project. 2. Install video cameras as appropriate for monitoring driver behavior. 3. Install median barriers and any warning devices required by WUTC or FRA. 4. Design and construct such additional supplemental safety measures as parking lot gates or other devices as may be necessary to effectively control motor vehicle traffic leaving parking lots or other premises near the crossings and traveling toward the crossing. B. BNSF or its contractor shall, at the BNSF's expense, furnish all work to be performed and all necessary materials as follows. 1. "I" Street: Remove industrial track and most easterly siding track from the crossing. Relocate automatic flashing light traffic control devices as required. 2. "D" Street: Remove westerly siding track and remove easterly siding track from the crossing. Relocate easterly siding track switch. Relocate automatic flashing light traffic control devices as required. C:\My Documents\ENGINEER\Rail Road\ Whistle Ban\bnsf city k 9-2(16weeks).doc Last printed 09/02/99 5:08 PM WHISTLEBAN PROJECT AGREEMENT Page 2 of 5 SECTION 3: The approximate daily train traffic on the subject line is 6 freight trains, maximum speed 49 MPH, and no passenger trains. A. All contracts between the City and its contractor(s), for either the construction herein provided for or maintenance work on the roadway within any easement area described herein or shown on the exhibits attached hereto, shall require the contractor to indemnify and hold harmless the BNSF and any other railroad company occupying or using the BNSF's right-of-way or line of railroad against all loss, liability and damage arising from activities of the contractor, its forces or any of its subcontractors or agents; and shall further provide that the contractor shall: 1. Furnish to BNSF a Railroad Protective Policy in the form provided by 23 CFR 646 A. The combined single limit of said policy shall not be less than Two Million Dollars ($ 2,000,000) for all damages arising out of bodily injuries to or death of any person or persons and for all damages arising out of the loss or destruction of or injury or damage to property in any one occurrence during the policy period, and subject to that limit a total (or aggregate) limit of not less than Six Million Dollars ($ 6,000,000) for all damages during the policy period. Said insurance policy executed by a corporation qualified to write the same in the state of Washington, shall be in the form and substance satisfactory to the BNSF company and shall be delivered to and approved by the BNSF prior to the entry upon or use of its property by the contractor. 2. Carry regular Contractor's Public Liability and Property Damage Insurance as specified in 23 CFR 646A providing for a limit of not less than One Million Dollars ($ 1,000,000) for all damages arising out of bodily injuries to or death of one person, and subject to that limit for each person, a total limit of not less than Two Million Dollars (2,000,000) for all damages arising out of bodily injuries to or death of two or more persons in any one accident; and providing for a limit of not less than One Million Dollars ($1,000,000) for all damages to or destruction of property in any one accident and subject to that limit a total (or aggregate) limit of not less than Two Million Dollars ($2,000,000) for all damages to or destruction of property during the policy period. A certificate of insurance providing proof of Contractor's Public Liability and Property Damage Insurance containing a thirty (30) - day advance written notice to the BNSF in the event of cancellation, nonrenewal or material change of policy, executed by a corporation qualified to write the same in the state of Washington, in form and substance satisfactory to the BNSF shall be delivered to and approved by the BNSF prior to the entry upon or use of the BNSF's property by the contractor. BNSF shall be a named insured under the above policy. B. The City, its contractor(s), subcontractor(s) or agent(s), shall, during the term of this Agreement, at its/their own expense, obtain and maintain in force Worker's Compensation Insurance or coverage as required under the "Workers Compensation Act" of the State of Washington. The Policy should include occupational disease to required statutory limits, employer's liability of One Million Dollars ($1,000,000) to include FELA, if appropriate. BNSF shall not be a named insured in the above policy. SECTION 4: Nothing in this agreement is intended to be construed as a requirement for the indemnification against the sole negligence of the BNSF, its officers, employees or agents for any work relative to the construction, alteration, repair, addition to, subtraction C.\My Documents\ENGINEER\Rail Road\ Whistle Ban\bnsf city k 9-2(16weeks).doc Last printed 09/02/99 5:08 PM WHISTLEBAN PROJECT AGREEMENT Page 3 of 5 from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, performed in the State of Washington. Indemnification against liability for damages arising out of bodily injury to persons or damage to property for any work relative to the construction, alteration, repair, addition to, subtraction from, improvement to, or maintenance of, any building, highway, road, railroad, excavation, or other structure, project, development, or improvement attached to real estate, including moving and demolition in connection therewith, performed in the State of Washington and caused by or resulting from the concurrent negligence of the BNSF and the City and its agents or employees will be enforceable only to the extent of the negligence of the City and its agents and employees. The indemnification obligation shall include all claims brought by contractor's employees against the BNSF, its agents, servants, employees or otherwise, ise, and contractor expressly waives its immunity under the industrial insurance act (RCW Title 51) and assumes potential liability for all actions brought by its employees. SECTION 5: The City's contractor(s) shall prosecute and complete work according to contractor's own manner and methods and with and by contractors own means and employees, free from any supervision, inspection, or control whatsoever by the BNSF, except only as may be necessary to enable the BNSF to determine whether work performed complies with the requirements of this agreement and conforms to the plans and specifications, it being the intention of the parties hereto that the contractor shall be and remain an independent contractor and that nothing herein contained shall be constructed as inconsistent with that status. All provisions of Exhibit "B" (Contractor Requirements) are hereby incorporated and made part hereof. All contracts between the City and its contractor, for the construction herein provided for or shown on the exhibits attached hereto, shall require the contractor to conform to the requirements of Exhibit "B". SECTION 6: The city shall req ire its rontractor(s) to comply with all requirements and regulations of every Federal, State, Local, or other governmental authority with respect to the performance of work for the safety of the employees engaged therein, and of the public; shall take all necessary precautions for the safety of contractor, subcontractors and the employees and property of each; and shallprotectcontractor, subcontractors and the euemployees and tools of both while engage(? in said work. ■r.�vy a..�.� _ b..b-� BNSF's engineer or designee may advise contractor or contractor's work site supervisor that an agent or employee of contractor or of a subcontractor is working in an unsafe manner or may potentially work in an unsafe manner, in which event, contractor's work site supervisor shall cause said agent or employee to leave the work site and BNSF's property. Transit shall require that its contractor assume all responsibility for the safe work method and practices of its agents and employees and agree to indemnify and hold harmless BNSF from and against any and all claims arising from or in any manner connected with the removal of the agents and employees of contractor from the work site and BNSF's property for safety reasons. C.\My Documents\ENGINEER\Rail Road\Whistle Ban\bnsf city k 9-2(16weeks).doc Last printed 09/02/99 5:08 PM WHISTLEBAN PROJECT AGREEMENT Page 4 of 5 SECTION 7: Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: City of Yakima c/o City Engineer City Hall 129 North 2nd Street Yakima, WA 98901 TO BNSF: BNSF c/ o Mike Cowles Manager Public Projects 2454 Occidental Ave. S., Ste. 1-A Seattle, WA 98902 or to such other addresses as the parties may hereafter designate in writing. Notices and/ or demands shall be sent by registered or certified mail, postage prepaid, or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. SECTION 8: This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. SECTION 9: The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by their proper officials thereunto duly authorized as the dates below indicated. EXECUTED by BNSF this day of ,1999 THE BURLINGTON NORTHERN AND SANTA FE COMPANY By: Name Printed: Title: Vice President and Chief Engineer EXECUTED by the City this i day of S 1999 THE CITY OF YAKIMA, WASHINGTON Bv: Attest: Karen Roberts, City Clerk City Contract No. 99-103 Resolution No. R-99-114 C:\My Documents \ ENGINEER\ Rail Road\ Whistle Ban\Unsf city k 9-2(16weeks).doc Last printed 09/02/99 5:08 PM WHISTLEBAN PROJECT AGREEMENT Page 5 of 5 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of September 7,1999 ITEM TITLE: Agreement with BNSF for Whistle Ban and Safety Measures SUBMI 11 ED BY: William Cook, Dept. of Community and Economic Development CONTACT PERSON/TELEPHONE: Robert Desgrosellier, Acting Engineering Division Manager / 575-6228 SUMMARY EXPLANATION: The Federal Railroad Administration (FRA) and the Burlington Northern Santa Fe Railway (BNSF) have indicated that in order to allow the trains through town without sounding whistles or horns for the street crossings, "Supplementary Safety Measures" must be in place at each crossing. The City of Yakima and BNSF developed a construction plan with and acceptable to the Federal Railroad Administration (FRA) and the Washington State Utilities and Transportation Commission (WSUTC) to make safety improvements. ( Continued ) Resolution X Ordinance _Contract X Other (Specify) Agreement Funding Source APPROVED FOR SUBMI 1" I AL: C\ City Manager STAFF RECOMMENDATION: Adopt the attached resolution approving the Agreement with Burlington Northern Santa Fe Railway Company (BNSF) BOARD/COMMISSION RECOMMENDATION: COUNCIL AC. 110N: September2, 1999 With safety measures under the pilot study, it was agreed to video monitor the crossings at Yakima Avenue, "D" Street and "I" Street for sixteen weeks prior to crossing modifications and sixteen weeks immediately following crossing changes. In the near future the City of Yakima will petition the WSUTC to discontinue blowing of train whistles by' BNSF. Assurning that petition will be approved, BNSF can discontinue the blowing of the train whistles in the northern portion of the city. Video monitoring will continue at the three crossings for a final sixteen -week period. The attached agreement with BNSF specifies work that will be completed by both parties of the agreement. 2 — September 2, 1999 RESOLUTION NO. R - 99 -114 A RESOLUTION authorizing and directing the City Manager and City Clerk of the City of Yakima to execute an agreement with Burlington Northern Santa Fe Railway Company (BNSF), for the joint construction of supplemental safety improvements for five railroad crossings in the City of Yakima. WHEREAS, the City of Yakima acknowledges the requirements of the Federal Railroad Administration and the Burlington Northern Santa Fe Railway to provide Supplemental Safety Measures at five crossings in the city; and WHEREAS, the Yakima City Council deems it to be in the best interest of the city that the attached agreement document be executed by the City of Yakima, accordingly; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and City Clerk of the City of Yakima are hereby authorized and directed to execute an agreement with Burlington Northern Santa Fe Railway Company (BNSF) for the purpose mentioned above, a copy of which agreement is attached hereto and by reference made a part hereof. ADOPTED BY THE CITY COUNCIL this 7th day of September, 1999 ATTEST: City Clerk September 2, 1999 SI JOHN PUCCINELLI John Puccinelli, Mayor s>.t 1 ;r';_t : and ".%• F •_ ,.. :'.ri _' ; y, off q -Y -9y' CITY C1.t K Dery ItY