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HomeMy WebLinkAboutR-1991-D5875 Washington Central RailroadRESOLUTION NO. D-5875 A RESOLUTION authorizing the execution of three construction and maintenance agreements for railroad -highway grade crossing improvements. WHEREAS, in the interest of public safety and motor vehicle traffic safety, the City of Yakima desires to improve three railroad -highway grade crossings located at North First Street and "G" Street, North First Street and "H" Street, and West "I" Street in Yakima, Washington; and WHEREAS, the City of Yakima has an opportunity to obtain state and federal funding for said railroad -highway grade crossing improvements; and WHEREAS, the Washington Central Railroad Company, Inc. is willing to enter into the attached Construction and Mainte- nance Agreements with the City of Yakima for said railroad - highway grade crossing improvements; and WHEREAS, the City Council deems it to be in the best interest of the public and the City of Yakima to enter into the attached Construction and Maintenance Agreements, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager and the City Clerk are hereby authorized and directed to execute the three attached and incorporated agreements entitled "Construction and Maintenance Agreement Railroad -Highway Grade Crossing" with the Washington Central Railroad Company, Inc. ADOPTED BY THE CITY COUNCIL this 12th day of February , 1991. gt.e Mayor ATTEST: City Clerk (res/mntnce.rp) CONSTRUCTION AND MAINTENANCE AGREEMENT RAILROAD -HIGHWAY GRADE CROSSING "G" St. MP 0.59 Name o S ree Mi e Pos Loca ion Yakima , WASHINGTON (City or County Name) THIS AGREEMENT, made this pp- day of , 1991 , by and between the City of Yakima, Washington , hereinafter called the "Local Agency," and the WASHINGTON CENTRAL RAILROAD COMPANY, INC., hereinafter called the "Railway." WITNESSETH: WHEREAS, in the interest of public safety and motor vehicle traffic, the Local Agency is improving a highway -railroad grade crossing located at Nn_ First St. @ "G" St., in Yakima , Washington as shown on Exhibit "A", attached hereto and made a part hereof; and WHEREAS, the Railway is either unable or unwilling to perform the construction of the crossing improvement project; and WHEREAS, the parties hereto desire that the work to be performed by the Local Agency in connection with said project be performed in accordance with plan and specifications to be prepared by the Local Agency; and WHEREAS, the Local Agency is willing to undertake the construction of said project with State and/or Local Agency funds and such federal funds as may be available for this purpose pursuant to the Federal Highway Acts applicable thereto, and the Railway is willing to consent to the execution of the said project upon the terms and conditions herein stated and not otherwise; and WHEREAS, there is certain work in connection with the project which needs to be performed by the Railway and it is deemed by the parties that it is in the best public interest for the Railway, as owners of the track or tracks, to perform said work; and WHEREAS, the parties hereto desire to contract with each other with reference to the work to be performed by each of them in connection with the project, specifically the protection of Railway facilities and the payment of costs and expenses therein involved; and WHEREAS, the Local Agency and the Railway agree that the Railway will receive no benefits from the project; and WHEREAS, the Local Agency is obligated to reimburse the Railway in the manner herein described for all or part of the costs incurred by the Railway in undertaking specific work as described in Article II. 1 Agreement Number �� ! NOW THEREFORE, in consideration of the terms, conditions, covenants and performances herein contained or attached and incorporated and made a part hereof, it is mutually agreed as follows: I This Agreement will be governed by the applicable sections of Title 23, U.S. Code, Highways; Federal -Aid Highway Program Manuals, Volume 6, Chapter 6, Section 2, Subsections 1 and 2; Volume 1, Chapter 4, Section 3; Volume 1, Chapter 7, Section 2; and amendments thereto. These references are incorporated hereby and made a part of this Agreement for all intents and purposes as if fully set forth herein. II The Railway hereby grants to the Local Agency, its contractor and successors, the right of entry on Railway right of way for all purposes connected with the construction of the project as herein described. In addition, the Local Agency and the Railway shall perform the various items of work as follows: A. WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE LOCAL AGENCY OR ITS CONTRACTOR AT LOCAL AGENCY EXPENSE. Except as otherwise herein provided, furnish all plans, engineering, supervision, labor, material, supplies, and equipment necessary for the construction of the project. B. WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE RAILWAY AT LOCAL AGENCY EXPENSE. 1. Participate with the State and Local Agency in meetings and discussions and furnishing data to complete the final plans, specifications and estimates prior to the Local Agency advertising of the project. 2. Review and approve all plans and specifications and contractors submittals to insure compliance with railroad engineering specifications and operating practices. 3. Schedule train operations so as to minimize disruptions to train operations and construction. 4. Participate in a "megger test" and a final "walk - through" inspection of the system prior to final acceptance of the contractor's work. 2 Agreement Number 5. Perform flagging and furnish protective services and devices because of the operations of the Local Agency or its contractor, when deemed necessary by the Local Agency and Railway. 6. Training of Railway's personnel required as result of the equipment installed under this project. 7. Perform preliminary, construction, and special engineering and inspection, including field and office work and preparation of bills. 8. Perform all other work not specifically mentioned, but similar to the above work, to be performed by the Railway necessary for the project to be completed. III If the system includes motion sensing devices of a design not familiar to our signal maintenance personnel, the vendor must provide a reasonable training period in diagnosis and maintenance of the system. Notice of training requirement will be given as part of the plan review process. IV The Railway agrees not to commence work until receipt of notice to begin work in writing by the Local Agency and that reimbursement will be limited to those costs incurred subsequent to the date of such notification. V The Local Agency, in consideration of the faithful performance of the work to be done by the Railway, agrees to pay the Railway the lump sum amount of Twenty Five hundred dollars ($2,500.00). The lump sum amount shall be full payment for furnishing all labor, materials, tools, and equipment necessary for the Railway to perform the work shown in Article IIB. An itemized estimate of cost for work to be done by the Railway at the Local Agency's expense marked Exhibit B is attached hereto and by this reference made a part of this agreement. Following execution of this Agreement, progress bills may be submitted to the Local Agency to cover costs incurred, and the Local Agency shall pay such progress billings promptly upon receipt. Progress bills are not to be submitted more frequently than one (1) per month. The progress billing will be supported by a statement that describes the work that was performed by the Railway during the billing period. 3 Agreement Number Final billing shall be made by the Railway and furnished to the Local Agency within ninety (90) calendar days of project completion, and the Local Agency shall pay all eligible amounts of such bill, less progress payments previously made. During the progress of construction and for a period not less than three years from the date of final payment to the Railway, the records and accounts pertaining to the construction of the project and accounting therefor are to be kept available for inspection and audit by the state of Washington, Local Agency and/or Federal Government, and copies of all records, accounts, documents or other data pertaining to the project will be furnished upon request. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until all litigation , claim, or audit finding has been resolved, even though such litigation, claim or audit continues past the three-year retention period. VI All contracts between the Local Agency and its contractor, either for the construction herein provided or for maintenance work on the highway within any easement area described herein or shown on the exhibits attached hereto, shall require the contractor to protect and hold harmless the Railway and any other railroad company occupying or using the Railway'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: A. Furnish to the Railway a Railroad Protective Policy in the form provided by FHPM 6-6-2-2. 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 is to be executed by a corporation qualified to write the same in Washington State, shall be in the form and substance satisfactory to the Railway company and shall be delivered to and approved by the Railway prior to the entry upon or use of its property by the contractor. B. Carry regular Contractor's Public Liability and Property Damage Insurance as specified in FHPM 6-6-2-2 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 4 Agreement Number 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 which specifically names the Railway as an additional insured and contains a thirty (30) day advance written notice to the Railway in the event of cancellation, nonrenewal or material change of policy, and executed by a corporation qualified to write the same in Washington State and in form and substance satisfactory to the Railway shall be delivered to and approved by the Railway prior to the entry upon or use of theRailway's property by the contractor. If the Agency, its contractor, subcontractors or agents, in the performance of the work herein provided for or by the failure to do or perform anything for which it is responsible under the provisions hereof, shall damage or destroy any property of the Railway, such damage or destruction shall be corrected by the Local Agency in the event its contractor or the insurance carriers fail to repair or restore the same. For any work performed in the state of Washington, nothing in this Agreement is intended to be construed as a requirement for an indemnification against the sole negligence of the Railway, its officers, employees or agents. Moreover, for any work performed in the state of Washington, the contractor shall specifically and expressly agree to indemnify the Railway and any other railroad company occupying or using the Railway's right of way or line of railroad against all loss, liability or damages, including environmental damage, hazardous materials damage or penalties or fines that may be assessed, caused by or resulting from the contractor's negligence; provided, however, if such loss, liability damage, penalties or fines are caused by or result from the concurrent negligence of (a) the Railway or the Railway's officers, employees or agents, and (b) the contractor or the contractor's employees, agents or subcontractors, such indemnity shall be valid and enforceable only to the extent of the negligence of the contractor or the contractor's employees, agents or subcontractors. The contractor shall further agree that it has a duty to defend at its own expense, in the name and on behalf of the Railway, all claims or suits for injuries or death of persons or damage to property arising or growing out of the work carried on under this Agreement, for which the Railway is liable or is alleged to be liable. However, upon a final determination in a court of law in which a percentage of negligence is attributed to the Railway, the Railway agrees to reimburse the contractor in the same percentage for the costs involved in defending the suit. The Railway, will protect, save and hold harmless the Washington State Department of Transportation and its authorized agents and employees, and the Local Agency and its authorized agents and employees, from all claims, actions, costs, damages or expenses of any nature whatsoever by reason of the acts or omissions of the Railway, its assigns, agents, contractors, licensees, invites, employees or any person whomsoever arising out of or in connection with any acts or activities authorized by this contract. The Railway 5 Agreement Number further agrees to defend the Washington State Department of Transportation and its agents or employees, and the Local Agency and its authorized agents and employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced thereon arising out of or in connection with acts or activities authorized by this contract. This obligation shall not include such claims, costs, damages or expenses which may be caused by the sole negligence of the Washington State Department of Transportation or its authorized agents or employees or the Local Agency or its authorized agents or employees; Provided that, if the claims or damages are caused by or result from the concurrent negligence of (a) the Washington State Department of Transportation or the Local Agency, its agents or employees, and (b) the Railway, its agents or employees, and involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the purchaser, its agents or employees. VII If the Railway enters into a contract or agreement with a contractor and/or consultant to perform any of the work which the Railway is required to perform under the terms of this Agreement, the Railway, for itself, its assigns and successors in interest, agrees that it will not unlawfully discriminate in its choice of contractors and will include all the nondiscrimination provisions set forth in Exhibit "C" attached hereto and made a part hereof, in any such contract or agreement. The Railway agrees that it will follow the provisions of Title 23, U.S. Code, Highways, Part 172 and Federal -Aid Highway Program Manual Volume 1, Chapter 7, Section 2 when selecting the services of a contractor and/or consultant. The Railway also agrees to include all of the provisions of this Agreement between the Railway and Local Agency in every contract and subcontract or purchase order so that such provisions will be binding upon each contractor, subcontractor or vendor. The Railway's contract with the contractor and/or consultant is subject to approval of the Washington State Department of Transportation. VIII Upon completion of the project, the Local Agency, at its sole cost and expense, shall maintain all improvements, other appurtenances, advance warning signs, standard pavement markings and guardrails with the exception of the crossing which will be maintained by the Railway and Local Agency as provided by law. 6 Agreement Number Upon completion of the installation of said signals, the Railway, at its sole cost and expense, shall operate and maintain said signals, provided however that the Railway shall be entitled to receive reimbursement for any or all of the cost of such maintenance as may be made available by reason of any law, order, regulation or otherwise providing for the reimbursement of said costs. IX In the event the signal system installed under this agreement is partially or wholly destroyed and the cost of repair or replacement cannot be recovered from the person or persons responsible for such destruction, then, in that event the cost of repair or replacement shall be borne by the Local Agency and the Railway at the same ratio under which the signals were installed. In the event that either highway or railway changes will necessitate revisions of the signals by rearrangement, replacement or additions at the said location, the party whose changes cause said revisions will bear the entire cost of the same without obligation to the other. X If for any reason signals shall no longer be required at said grade crossing, the Railway, on the approval of the Washington State Department of Transportation and the Local Agency, may remove said signals. If in the opinion of the Railway said signals are not obsolete, they may, as agreed to by the Washington State Department of Transportation and the Local Agency and the Railway under separate agreement, be reinstalled at some other State or Local Agency Highway -railroad grade crossing. If no other crossing is agreed upon by the Washington State Department of Transportation and the Local Agency and the Railway, and prescribed by public authority, the Washington State Department of Transportation and the Local Agency will be credited with the salvage value for the material not previously replaced by the Railway during maintenance, less cost of removal. Ownership of the signals vests in the Railway or the Washington State Department of Transportation or the Local Agency, whichever one paid for the signals. XI Upon completion of the execution of this Agreement, the Railway hereby grants the Washington State Department of Transportation and the Local Agency the right of entry to the areas outlined in green on said Exhibit "A" subject to conformance of the conditions stated in Article VI of this Agreement. 7 Agreement Number XII This Agreement shall inure to the benefit of and be binding on the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first hereinabove written. APPROVED AS TO FORM WASHINGTON CENTRAL RAILROAD COMPANY, INC. 19 qr By: it16 of Counsel for LA) Title: Date: / 02 /9 --990 City of Yakima [ Local Agency] BY : C C��°�� Richard A. Zais, Jr., City Manager ATTEST: a a City Clerk '3" J CONTRACT W0,G I - i i /6 5) . S S' 76 8 Agreement Number cI l -1////D - s �7S 1.41: VA« iririi ' 4' AST lisT sc, N 11 •••••wrisai• 'air4V in 1 e VICINITY MAP \\ SCALE 1" s 1000' „war...1115_11'MT -- CIOIRIPt• 11 I .7 r" tal.—t-• imikti NE I/4-, 5ec, 13)Ti3N/R 18E. IP • SHEET ........... ..... ........OF soe•es•ete .......... 40.11"001.1* EXHIBIT B WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE RAILWAY AT LOCAL AGENCY EXPENSE. 1. Participate with the State and Local Agency in meetings and discussions and furnishing data to complete the final plans, specifications and estimates prior to the Local Agency advertising of the project. 2. Review and approve all plans and specifications and contractors submittals to insure compliance with railroad engineering specifications and operating practices. 3. Schedule train operations so as to minimize disruptions to train operations and construction. 4. Participate in a "megger test" and a final "walk-through" inspection of the system prior to final acceptance of the contractor's work. 5. Perform flagging and furnish protective services and devices because of the operations of the Local Agency or its contractor, when deemed necessary by the Local Agency and Railway. 6. Training of Railway's personnel required as result of the equipment installed under this project. 7. Perform preliminary, construction, and special engineering and inspection, including field and office work and preparation of bills. 8. Perform all other work not specifically mentioned, but similar to the above work, to be performed by the Railway necessary for the project to be completed. Labor Classification Rate per hour Roadmaster - Engineer $34.00 Signalman $28.90 Laborer $20.40 Dispatcher $20.40 Flagman $20.40 Clerical $13.60 9 Agreement Number EXHIBIT B (Con"t) SUMMARY OF COST Item No. Quantity Unit Unit price 1 2 2 hours $34.00 4 hours $28.90 2 hours $34.00 2 hours $28.90 3 1 hour $34.00 1 hour $28.90 2 hours $28.90 4 5 6 10 hours $20.40 1 hour $34.00 3 hours $28.90 7 10 hours $34.00 20 hours $28.90 8 hours $13.60 8 2 hours $34.00 2 hours $28.90 Total Total Total Total labor (unit price includes overhead) equipment, materials, and tools travel and per diem cost Lump Sum Price Amount $ 68.00 $115.60 $ 68.00 $ 57.80 $ 34.00 $ 28.90 $ 57.80 $204.00 $ 34.00 $ 86.70 $340.00 $578.00 $108.80 $ 68.00 $ 57.80 $1,907.40 $ 400.00 $ 192.60 $2,500.00 The Railway will perform the above work for the lump twenty five hundred dollars ($2,500.00). The lump s be full payment for furnishing all labor, materials, equipment, and incidentals necessary for the Railway work. sum amount of um amount shall tools, to perform the 10 Agreement Number EXHIBIT C Nondiscrimination Provisions of Title VI of the Civil Rights Act of 1964. During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "Contractor"), agrees as follows: 1. Compliance with Regulations: The Contractor will comply with the regulations of the Department of Transportation relative to nondiscrimination in federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this contract. *2. Nondiscrimination: The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendices "A", "B"0 and "C". 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. 4. Information and Reports: The Contractor will provide all information and reports required by the Regulations or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the State Highway Department or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State Highway Department or the Federal Highway Administration as appropriate and shall set forth what efforts it has made to obtain the information. 11 Agreement Number EXHIBIT C (Con't) 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the State Highway Department shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs 1 through 6 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State Highway Department or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance; Provided, however, that, in the event a Contractor becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interests of the State, and, in addition, the Contractor may request the United States to enter into such litigations to protect the interests of the United States. * PROHIBITION OF DISCRIMINATION ON THE BASIS OF SEX. Sec. 162. (a) Chapter 3 of Title 23, United State Code, is amended by adding at the end thereof the following new section: S 324, Prohibition of discrimination on the basis of sex. No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance under this title or carried on under this title. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under Title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee. 12 Agreement Number CONSTRUCTION AND MAINTENANCE AGREEMENT RAILROAD -HIGHWAY GRADE CROSSING No. First St. @ "H" St., MP 6.7 (Name of Street, Yakima Mile Post Location) (City or , WASHINGTON County Name) THIS AGREEMENT, made this l`-//4- day of -e_� r , 19°H , by and between the City of Yakima, Washington , hereinafter called the "Local Agency," and the WASHINGTON CENTRAL RAILROAD COMPANY, INC., hereinafter called the "Railway." W ITNESSET H: WHEREAS, in the interest of public safety and motor vehicle traffic, the Local Agency is improving a highway -railroad grade crossing located at No. First St. @ "H" St., in Yakima , Washington as shown on Exhibit "A", attached hereto and made a part hereof; and WHEREAS, the Railway is either unable or unwilling to perform the construction of the crossing improvement project; and WHEREAS, the parties hereto desire that the work to be performed by the Local Agency in connection with said project be performed in accordance with plan and specifications to be prepared by the Local Agency; and WHEREAS, the Local Agency is willing to undertake the construction of said project with State and/or Local Agency funds and such federal funds as may be available for this purpose pursuant to the Federal Highway Acts applicable thereto, and the Railway is willing to consent to the execution of the said project upon the terms and conditions herein stated and not otherwise; and WHEREAS, there is certain work in connection with the project which needs to be performed by the Railway and it is deemed by the parties that it is in the best public interest for the Railway, as owners of the track or tracks, to perform said work; and WHEREAS, the parties hereto desire to contract with each other with reference to the work to be performed by each of them in connection with the project, specifically the protection of Railway facilities and the payment of costs and expenses therein involved; and WHEREAS, the Local Agency and the Railway agree that the Railway will receive no benefits from the project; and WHEREAS, the Local Agency is obligated to reimburse the Railway in the manner herein described for all or part of the costs incurred by the Railway in undertaking specific work as described in Article II. 1 Agreement Number NOW THEREFORE, in consideration of the terms, conditions, covenants and performances herein contained or attached and incorporated and made a part hereof, it is mutually agreed as follows: I This Agreement will be governed by the applicable sections of Title 23, U.S. Code, Highways; Federal -Aid Highway Program Manuals, Volume 6, Chapter 6, Section 2, Subsections 1 and 2; Volume 1, Chapter 4, Section 3; Volume 1, Chapter 7, Section 2; and amendments thereto. These references are incorporated hereby and made a part of this Agreement for all intents and purposes as if fully set forth herein. II The Railway hereby grants to the Local Agency, its contractor and successors, the right of entry on Railway right of way for all purposes connected with the construction of the project as herein described. In addition, the Local Agency and the Railway shall perform the various items of work as follows: A. WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE LOCAL AGENCY OR ITS CONTRACTOR AT LOCAL AGENCY EXPENSE. Except as otherwise herein provided, furnish all plans, engineering, supervision, labor, material, supplies, and equipment necessary for the construction of the project. B. WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE RAILWAY AT LOCAL AGENCY EXPENSE. 1. Participate with the State and Local Agency in meetings and discussions and furnishing data to complete the final plans, specifications and estimates prior to the Local Agency advertising of the project. 2. Review and approve all plans and specifications and contractors submittals to insure compliance with railroad engineering specifications and operating practices. 3. Schedule train operations so as to minimize disruptions to train operations and construction. 4. Participate in a "megger test" and a final "walk - through" inspection of the system prior to final acceptance of the contractor's work. 2 Agreement Number 5. Perform flagging and furnish protective services and devices because of the operations of the Local Agency or its contractor, when deemed necessary by the Local Agency and Railway. 6. Training of Railway's personnel required as result of the equipment installed under this project. 7. Perform preliminary, construction, and special engineering and inspection, including field and office work and preparation of bills. 8. Perform all other work not specifically mentioned, but similar to the above work, to be performed by the Railway necessary for the project to be completed. III If the system includes motion sensing devices of a design not familiar to our signal maintenance personnel, the vendor must provide a reasonable training period in diagnosis and maintenance of the system. Notice of training requirement will be given as part of the plan review process. IV The Railway agrees not to commence work until receipt of notice to begin work in writing by the Local Agency and that reimbursement will be limited to those costs incurred subsequent to the date of such notification. V The Local Agency, in consideration of the faithful performance of the work to be done by the Railway, agrees to pay the Railway the lump sum amount of Twenty Five hundred dollars ($2,500.00). The lump sum amount shall be full payment for furnishing all labor, materials, tools, and equipment necessary for the Railway to perform the work shown in Article IIB. An itemized estimate of cost for work to be done by the Railway at the Local Agency's expense marked Exhibit B is attached hereto and by this reference made a part of this agreement. Following execution of this Agreement, progress bills may be submitted to the Local Agency to cover costs incurred, and the Local Agency shall pay such progress billings promptly upon receipt. Progress bills are not to be submitted more frequently than one (1) per month. The progress billing will be supported by a statement that describes the work that was performed by the Railway during the billing period. 3 Agreement Number Final billing shall be made by the Railway and furnished to the Local Agency within ninety (90) calendar days of project completion, and the Local Agency shall pay all eligible amounts of such bill, less progress payments previously made. During the progress of construction and for a period not less than three years from the date of final payment to the Railway, the records and accounts pertaining to the construction of the project and accounting therefor are to be kept available for inspection and audit by the state of Washington, Local Agency and/or Federal Government, and copies of all records, accounts, documents or other data pertaining to the project will be furnished upon request. If any litigation, claim or audit finding has been resolved, even though such litigation, claim or audit continues past the three-year retention period. VI All contracts between the Local Agency and its contractor, either for the construction herein provided or for maintenance work on the highway within any easement area described herein or shown on the exhibits attached hereto, shall require the contractor to protect and hold harmless the Railway and any other railroad company occupying or using the Railway'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: A. Furnish to the Railway a Railroad Protective Policy in the form provided by FHPM 6-6-2-2. 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 is to be executed by a corporation qualified to write the same in Washington State, shall be in the form and substance satisfactory to the Railway company and shall be delivered to and approved by the Railway prior to the entry upon or use of its property by the contractor. B. Carry regular Contractor's Public Liability and Property Damage Insurance as specified in FHPM 6-6-2-2 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 4 Agreement Number 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 which specifically names the Railway as an additional insured and contains a thirty (30) day advance written notice to the Railway in the event of cancellation, nonrenewal or material change of policy, and executed by a corporation qualified to write the same in Washington State and in form and substance satisfactory to the Railway shall be delivered to and approved by the Railway prior to the entry upon or use of theRailway's property by the contractor. If the Agency, its contractor, subcontractors or agents, in the performance of the work herein provided for or by the failure to do or perform anything for which it is responsible under the provisions hereof, shall damage or destroy any property of the Railway, such damage or destruction shall be corrected by the Local Agency in the event its contractor or the insurance carriers fail to repair or restore the same. For any work performed in the state of Washington, nothing in this Agreement is intended to be construed as a requirement for an indemnification against the sole negligence of the Railway, its officers, employees or agents. Moreover, for any work performed in the state of Washington, the contractor shall specifically and expressly agree to indemnify the Railway and any other railroad company occupying or using the Railway's right of way or line of railroad against all loss, liability or damages, including environmental damage, hazardous materials damage or penalties or fines that may be assessed, caused by or resulting from the contractor's negligence; provided, however, if such loss, liability damage, penalties or fines are caused by or result from the concurrent negligence of (a) the Railway or the Railway's officers, employees or agents, and (b) the contractor or the contractor's employees, agents or subcontractors, such indemnity shall be valid and enforceable only to the extent of the negligence of the contractor or the contractor's employees, agents or subcontractors. The contractor shall further agree that it has a duty to defend at its own expense, in the name and on behalf of the Railway, all claims or suits for injuries or death of persons or damage to property arising or growing out of the work carried on under this Agreement, for which the Railway is liable or is alleged to be liable. However, upon a final determination in a court of law in which a percentage of negligence is attributed to the Railway, the Railway agrees to reimburse the contractor in the same percentage for the costs involved in defending the suit. The Railway, will protect, save and hold harmless the Washington State Department of Transportation and its authorized agents and employees, and the Local Agency and its authorized agents and employees, from all claims, actions, costs, damages or expenses of any nature whatsoever by reason of the acts or omissions of the Railway, its assigns, agents, contractors, licensees, invites, employees or any person whomsoever arising out of or in connection with any acts or activities authorized by this contract. The Railway 5 Agreement Number further agrees to defend the Washington State Department of Transportation and its agents or employees, and the Local Agency and its authorized agents and employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced thereon arising out of or in connection with acts or activities authorized by this contract. This obligation shall not include such claims, costs, damages or expenses which may be caused by the sole negligence of the Washington State Department of Transportation or its authorized agents or employees or the Local Agency or its authorized agents or employees; Provided that, if the claims or damages are caused by or result from the concurrent negligence of (a) the Washington State Department of Transportation or the Local Agency, its agents or employees, and (b) the Railway, its agents or employees, and involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the purchaser, its agents or employees. VII If the Railway enters into a contract or agreement with a contractor and/or consultant to perform any of the work which the Railway is required to perform under the terms of this Agreement, the Railway, for itself, its assigns and successors in interest, agrees that it will not unlawfully discriminate in its choice of contractors and will include all the nondiscrimination provisions set forth in Exhibit "C" attached hereto and made a part hereof, in any such contract or agreement. The Railway agrees that it will follow the provisions of Title 23, U.S. Code, Highways, Part 172 and Federal -Aid Highway Program Manual Volume 1, Chapter 7, Section 2 when selecting the services of a contractor and/or consultant. The Railway also agrees to include all of the provisions of this Agreement between the Railway and Local Agency in every contract and subcontract or purchase order so that such provisions will be binding upon each contractor, subcontractor or vendor. The Railway's contract with the contractor and/or consultant is subject to approval of the Washington State Department of Transportation. VIII Upon completion of the project, the Local Agency, at its sole cost and expense, shall maintain all improvements, other appurtenances, advance warning signs, standard pavement markings and guardrails with the exception of the crossing which will be maintained by the Railway and Local Agency as provided by law. 6 Agreement Number Upon completion of the installation of said signals, the Railway, at its sole cost and expense, shall operate and maintain said signals, provided however that the Railway shall be entitled to receive reimbursement for any or all of the cost of such maintenance as may be made available by reason of any law, order, regulation or otherwise providing for the reimbursement of said costs. IX In the event the signal system installed under this agreement is partially or wholly destroyed and the cost of repair or replacement cannot be recovered from the person or persons responsible for such destruction, then, in that event the cost of repair or replacement shall be borne by the Local Agency and the Railway at the same ratio under which the signals were installed. In the event that either highway or railway changes will necessitate revisions of the signals by rearrangement, replacement or additions at the said location, the party whose changes cause said revisions will bear the entire cost of the same without obligation to the other. X If for any reason signals shall no longer be required at said grade crossing, the Railway, on the approval of the Washington State Department of Transportation and the Local Agency, may remove said signals. If in the opinion of the Railway said signals are not obsolete, they may, as agreed to by the Washington State Department of Transportation and the Local Agency and the Railway under separate agreement, be reinstalled at some other State or Local Agency Highway -railroad grade crossing. If no other crossing is agreed upon by the Washington State Department of Transportation and the Local Agency and the Railway, and prescribed by public authority, the Washington State Department of Transportation and the Local Agency will be credited with the salvage value for the material not previously replaced by the Railway during maintenance, less cost of removal. Ownership of the signals vests in the Railway or the Washington State Department of Transportation or the Local Agency, whichever one paid for the signals. XI Upon completion of the execution of this Agreement, the Railway hereby grants the Washington State Department of Transportation and the Local Agency the right of entry to the areas outlined in green on said Exhibit "A" subject to conformance of the conditions stated in Article VI of this Agreement. 7 Agreement Number XII This Agreement shall inure to the benefit of and be binding on the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first hereinabove written. APPROVED AS TO FORM WASHINGTON CENTRAL RAILROAD COMPANY, INC. _2--( 199/ By: ���a•-�- Title: (Title of Counsel for LA) Date: -- /rte' — City of Yakima [Local Agepcy] By: Richard A. Zais, 9r., City Manager ATTEST. / Crr,� City Clerk 8 Agreement Number G/ -/QA -5g 75 • 00e00. 30 1 A.,0 0% \\ ,‘ - • 1.33HS 3 8 rev el._1_. 7 /I -3g 117/ -q111 `I Litraw • w Vl :1-11,—.:,1[7.1:1L ►�rIN JL JI JL I • 14 1 ,000I - .1 31 `` d1/111AIIN13IA �� -- )nrlAv (�l�olLlf Lsou !kJ Cvi! Lim _67C: 1C • }q!/!![_ it0L C *pr �.��AII• : L-.111:1_11 r: k`f, EXHIBIT B WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE RAILWAY AT LOCAL AGENCY EXPENSE. 1. Participate with the State and Local Agency in meetings and discussions and furnishing data to complete the final plans, specifications and estimates prior to the Local Agency advertising of the project. 2. Review and approve all plans and specifications and contractors submittals to insure compliance with railroad engineering specifications and operating practices. 3. Schedule train operations so as to minimize disruptions to train operations and construction. 4. Participate in a "megger test" and a final "walk-through" inspection of the system prior to final acceptance of the contractor's work. 5. Perform flagging and furnish protective services and devices because of the operations of the Local Agency or its contractor, when deemed necessary by the Local Agency and Railway. 6. Training of Railway's personnel required as result of the equipment installed under this project. 7. Perform preliminary, construction, and special engineering and inspection, including field and office work and preparation of bills. 8. Perform all other work not specifically mentioned, but similar to the above work, to be performed by the Railway necessary for the project to be completed. Labor Classification Rate per hour Roadmaster - Engineer $34.00 Signalman $28.90 Laborer $20.40 Dispatcher $20.40 Flagman $20.40 Clerical $13.60 9 Agreement Number EXHIBIT B (Con"t) SUMMARY OF COST Item No. Ouantity Unit Unit price Amount 1 2 hours $34.00 $ 68.00 4 hours $28.90 $115.60 2 2 hours $34.00 $ 68.00 2 hours $28.90 $ 57.80 3 1 hour $34.00 $ 34.00 1 hour $28.90 $ 28.90 4 2 hours $28.90 $ 57.80 5 10 hours $20.40 $204.00 6 1 hour $34.00 $ 34.00 3 hours $28.90 $ 86.70 7 10 hours $34.00 $340.00 20 hours $28.90 $578.00 8 hours $13.60 $108.80 8 2 hours $34.00 $ 68.00 2 hours $28.90 $ 57.80 Total labor (unit price includes overhead) Total equipment, materials, and tools Total travel and per diem cost Total Lump Sum Price $1,907.40 $ 400.00 $ 192.60 $2,500.00 The Railway will perform the above work for the lump sum amount of twenty five hundred dollars ($2,500.00). The lump sum amount shall be full payment for furnishing all labor, materials, tools, equipment, and incidentals necessary for the Railway to perform the work. 10 Agreement Number EXHIBIT C Nondiscrimination Provisions of Title VI of the Civil Rights Act of 1964. During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "Contractor"), agrees as follows: 1. Compliance with Regulations: The Contractor will comply with the regulations of the Department of Transportation relative to nondiscrimination in federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this contract. *2. Nondiscrimination: The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendices "A", "B", and "C". 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. 4. Information and Reports: The Contractor will provide all information and reports required by the Regulations or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the State Highway Department or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State Highway Department or the Federal Highway Administration as appropriate and shall set forth what efforts it has made to obtain the information. 11 Agreement Number EXHIBIT C (Con't) 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the State Highway Department shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs 1 through 6 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State Highway Department or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance; Provided, however, that, in the event a Contractor becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interests of the State, and, in addition, the Contractor may request the United States to enter into such litigations to protect the interests of the United States. * PROHIBITION OF DISCRIMINATION ON THE BASIS OF SEX. Sec. 162. (a) Chapter 3 of Title 23, United State Code, is amended by adding at the end thereof the following new section: S 324, Prohibition of discrimination on the basis of sex. No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance under this title or carried on under this title. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under Title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee. 12 Agreement Number CONSTRUCTION AND MAINTENANCE AGREEMENT RAILROAD -HIGHWAY GRADE CROSSING West "I" Street MP 91.00 (Name of Street, Mile Post Location) Yakima , WASHINGTON (City or County Name) THIS AGREEMENT, made this !Tr- day of `9--e.br�A-+-j , 19q/ , by and between the city of Yakima, Washington , hereinafter called the "Local Agency," and the WASHINGTON CENTRAL RAILROAD COMPANY, INC., hereinafter called the "Railway." WITNESSETH: WHEREAS, in the interest of public safety and motor vehicle traffic, the Local Agency is improving a highway -railroad grade crossing located at West "I" Street, in Yakima , Washington as shown on Exhibit "A", attached hereto and made a part hereof; and WHEREAS, the Railway is either unable or unwilling to perform the construction of the crossing improvement project; and WHEREAS, the parties hereto desire that the work to be performed by the Local Agency in connection with said project be performed in accordance with plan and specifications to be prepared by the Local Agency; and WHEREAS, the Local Agency is willing to undertake the construction of said project with State and/or Local Agency funds and such federal funds as may be available for this purpose pursuant to the Federal Highway Acts applicable thereto, and the Railway is willing to consent to the execution of the said project upon the terms and conditions herein stated and not otherwise; and WHEREAS, there is certain work in connection with the project which needs to be performed by the Railway and it is deemed by the parties that it is in the best public interest for the Railway, as owners of the track or tracks, to perform said work; and WHEREAS, the parties hereto desire to contract with each other with reference to the work to be performed by each of them in connection with the project, specifically the protection of Railway facilities and the payment of costs and expenses therein involved; and WHEREAS, the Local Agency and the Railway agree that the Railway will receive no benefits from the project; and WHEREAS, the Local Agency is obligated to reimburse the Railway in the manner herein described for all or part of the costs incurred by the Railway in undertaking specific work as described in Article II. 1 Agreement Number NOW THEREFORE, in consideration of the terms, conditions, covenants and performances herein contained or attached and incorporated and made a part hereof, it is mutually agreed as follows: I This Agreement will be governed by the applicable sections of Title 23, U.S. Code, Highways; Federal -Aid Highway Program Manuals, Volume 6, Chapter 6, Section 2, Subsections 1 and 2; Volume 1, Chapter 4, Section 3; Volume 1, Chapter 7, Section 2; and amendments thereto. These references are incorporated hereby and made a part of this Agreement for all intents and purposes as if fully set forth herein. II The Railway hereby grants to the Local Agency, its contractor and successors, the right of entry on Railway right of way for all purposes connected with the construction of the project as herein described. In addition, the Local Agency and the Railway shall perform the various items of work as follows: A. WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE LOCAL AGENCY OR ITS CONTRACTOR AT LOCAL AGENCY EXPENSE. Except as otherwise herein provided, furnish all plans, engineering, supervision, labor, material, supplies, and equipment necessary for the construction of the project. B. WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE RAILWAY AT LOCAL AGENCY EXPENSE. 1. Participate with the State and Local Agency in meetings and discussions and furnishing data to complete the final plans, specifications and estimates prior to the Local Agency advertising of the project. 2. Review and approve all plans and specifications and contractors submittals to insure compliance with railroad engineering specifications and operating practices. 3. Schedule train operations so as to minimize disruptions to train operations and construction. 4. Participate in a "megger test" and a final "walk - through" inspection of the system prior to final acceptance of the contractor's work. 2 Agreement Number 5. Perform flagging and furnish protective services and devices because of the operations of the Local Agency or its contractor, when deemed necessary by the Local Agency and Railway. 6. Training of Railway's personnel required as result of the equipment installed under this project. 7. Perform preliminary, construction, and special engineering and inspection, including field and office work and preparation of bills. 8. Perform all other work not specifically mentioned, but similar to the above work, to be performed by the Railway necessary for the project to be completed. III If the system includes motion sensing devices of a design not familiar to our signal maintenance personnel, the vendor must provide a reasonable training period in diagnosis and maintenance of the system. Notice of training requirement will be given as part of the plan review process. IV The Railway agrees not to commence work until receipt of notice to begin work in writing by the Local Agency and that reimbursement will be limited to those costs incurred subsequent to the date of such notification. V The Local Agency, in consideration of the faithful performance of the work to be done by the Railway, agrees to pay the Railway the lump sum amount of Twenty Five hundred dollars ($2,500.00). The lump sum amount shall be full payment for furnishing all labor, materials, tools, and equipment necessary for the Railway to perform the work shown in Article IIB. An itemized estimate of cost for work to be done by the Railway at the Local Agency's expense marked Exhibit B is attached hereto and by this reference made a part of this agreement. Following execution of this Agreement, progress bills may be submitted to the Local Agency to cover costs incurred, and the Local Agency shall pay such progress billings promptly upon receipt. Progress bills are not to be submitted more frequently than one (1) per month. The progress billing will be supported by a statement that describes the work that was performed by the Railway during the billing period. 3 Agreement Number Final billing shall be made by the Railway and furnished to the Local Agency within ninety (90) calendar days of project completion, and the Local Agency shall pay all eligible amounts of such bill, less progress payments previously made. During the progress of construction and for a period not less than three years from the date of final payment to the Railway, the records and accounts pertaining to the construction of the project and accounting therefor are to be kept available for inspection and audit by the state of Washington, Local Agency and/or Federal Government, and copies of all records, accounts, documents or other data pertaining to the project will be furnished upon request. If any litigation, claim or audit is commenced, the records and accounts along with supporting documentation shall be retained until all litigation , claim, or audit finding has been resolved, even though such litigation, claim or audit continues past the three-year retention period. VI All contracts between the Local Agency and its contractor, either for the construction herein provided or for maintenance work on the highway within any easement area described herein or shown on the exhibits attached hereto, shall require the contractor to protect and hold harmless the Railway and any other railroad company occupying or using the Railway'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: A. Furnish to the Railway a Railroad Protective Policy in the form provided by FHPM 6-6-2-2. 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 is to be executed by a corporation qualified to write the same in Washington State, shall be in the form and substance satisfactory to the Railway company and shall be delivered to and approved by the Railway prior to the entry upon or use of its property by the contractor. B. Carry regular Contractor's Public Liability and Property Damage Insurance as specified in FHPM 6-6-2-2 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 4 Agreement Number 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 which specifically names the Railway as an additional insured and contains a thirty (30) day advance written notice to the Railway in the event of cancellation, nonrenewal or material change of policy, and executed by a corporation qualified to write the same in Washington State and in form and substance satisfactory to the Railway shall be delivered to and approved by the Railway prior to the entry upon or use of theRailway's property by the contractor. If the Agency, its contractor, subcontractors or agents, in the performance of the work herein provided for or by the failure to do or perform anything for which it is responsible under the provisions hereof, shall damage or destroy any property of the Railway, such damage or destruction shall be corrected by the Local Agency in the event its contractor or the insurance carriers fail to repair or restore the same. For any work performed in the state of Washington, nothing in this Agreement is intended to be construed as a requirement for an indemnification against the sole negligence of the Railway, its officers, employees or agents. Moreover, for any work performed in the state of Washington, the contractor shall specifically and expressly agree to indemnify the Railway and any other railroad company occupying or using the Railway's right of way or line of railroad against all loss, liability or damages, including environmental damage, hazardous materials damage or penalties or fines that may be assessed, caused by or resulting from the contractor's negligence; provided, however, if such loss, liability damage, penalties or fines are caused by or result from the concurrent negligence of (a) the Railway or the Railway's officers, employees or agents, and (b) the contractor or the contractor's employees, agents or subcontractors, such indemnity shall be valid and enforceable only to the extent of the negligence of the contractor or the contractor's employees, agents or subcontractors. The contractor shall further agree that it has a duty to defend at its own expense, in the name and on behalf of the Railway, all claims or suits for injuries or death of persons or damage to property arising or growing out of the work carried on under this Agreement, for which the Railway is liable or is alleged to be liable. However, upon a final determination in a court of law in which a percentage of negligence is attributed to the Railway, the Railway agrees to reimburse the contractor in the same percentage for the costs involved in defending the suit. The Railway, will protect, save and hold harmless the Washington State Department of Transportation and its authorized agents and employees, and the Local Agency and its authorized agents and employees, from all claims, actions, costs, damages or expenses of any nature whatsoever by reason of the acts or omissions of the Railway, its assigns, agents, contractors, licensees, invites, employees or any person whomsoever arising out of or in connection with any acts or activities authorized by this contract. The Railway 5 Agreement Number further agrees to defend the Washington State Department of Transportation and its agents or employees, and the Local Agency and its authorized agents and employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced thereon arising out of or in connection with acts or activities authorized by this contract. This obligation shall not include such claims, costs, damages or expenses which may be caused by the sole negligence of the Washington State Department of Transportation or its authorized agents or employees or the Local Agency or its authorized agents or employees; Provided that, if the claims or damages are caused by or result from the concurrent negligence of (a) the Washington State Department of Transportation or the Local Agency, its agents or employees, and (b) the Railway, its agents or employees, and involves those actions covered by RCW 4.24.115, this indemnity provision shall be valid and enforceable only to the extent of the negligence of the purchaser, its agents or employees. VII If the Railway enters into a contract or agreement with a contractor and/or consultant to perform any of the work which the Railway is required to perform under the terms of this Agreement, the Railway, for itself, its assigns and successors in interest, agrees that it will not unlawfully discriminate in its choice of contractors and will include all the nondiscrimination provisions set forth in Exhibit "C" attached hereto and made a part hereof, in any such contract or agreement. The Railway agrees that it will follow the provisions of Title 23, U.S. Code, Highways, Part 172 and Federal -Aid Highway Program Manual Volume 1, Chapter 7, Section 2 when selecting the services of a contractor and/or consultant. The Railway also agrees to include all of the provisions of this Agreement between the Railway and Local Agency in every contract and subcontract or purchase order so that such provisions will be binding upon each contractor, subcontractor or vendor. The Railway's contract with the contractor and/or consultant is subject to approval of the Washington State Department of Transportation. VIII Upon completion of the project, the Local Agency, at its sole cost and expense, shall maintain all improvements, other appurtenances, advance warning signs, standard pavement markings and guardrails with the exception of the crossing which will be maintained by the Railway and Local Agency as provided by law. 6 Agreement Number Upon completion of the installation of said signals, the Railway, at its sole cost and expense, shall operate and maintain said signals, provided however that the Railway shall be entitled to receive reimbursement for any or all of the cost of such maintenance as may be made available by reason of any law, order, regulation or otherwise providing for the reimbursement of said costs. IX In the event the signal system installed under this agreement is partially or wholly destroyed and the cost of repair or replacement cannot be recovered from the person or persons responsible for such destruction, then, in that event the cost of repair or replacement shall be borne by the Local Agency and the Railway at the same ratio under which the signals were installed. In the event that either highway or railway changes will necessitate revisions of the signals by rearrangement, replacement or additions at the said location, the party whose changes cause said revisions will bear the entire cost of the same without obligation to the other. X If for any reason signals shall no longer be required at said grade crossing, the Railway, on the approval of the Washington State Department of Transportation and the Local Agency, may remove said signals. If in the opinion of the Railway said signals are not obsolete, they may, as agreed to by the Washington State Department of Transportation and the Local Agency and the Railway under separate agreement, be reinstalled at some other State or Local Agency Highway -railroad grade crossing. If no other crossing is agreed upon by the Washington State Department of Transportation and the Local Agency and the Railway, and prescribed by public authority, the Washington State Department of Transportation and the Local Agency will be credited with the salvage value for the material not previously replaced by the Railway during maintenance, less cost of removal. Ownership of the signals vests in the Railway or the Washington State Department of Transportation or the Local Agency, whichever one paid for the signals. XI Upon completion of the execution of this Agreement, the Railway hereby grants the Washington State Department of Transportation and the Local Agency the right of entry to the areas outlined in green on said Exhibit "A" subject to conformance of the conditions stated in Article VI of this Agreement. 7 Agreement Number XII This Agreement shall inure to the benefit of and be binding on the parties hereto, their successors and assigns. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first hereinabove written. APPROVED AS TO FORM WASHINGTON CENTRAL RAILROAD COMPANY, INC. 1 O / By: Title: (T of Counsel for LA) Date: City of Yakima -- 9& [Local Aggncy] By: Richard A. Zais, Jr., City Manager ATTEST: Ki r- /--4€ C k11 City Clerk 8 Agreement Number qr- i3/6 -5 S -2 VICINITY MAP Jig Iftb ktRitilbAt [77 ka 11.* -0\71 NE ,5ec-,13,T-131\1)ZI8E EXHIBIT "A" SHEET..............................OF .. ........................... * EXHIBIT B WORK TO BE PERFORMED AND MATERIALS TO BE FURNISHED BY THE RAILWAY AT LOCAL AGENCY EXPENSE. 1. Participate with the State and Local Agency in meetings and discussions and furnishing data to complete the final plans, specifications and estimates prior to the Local Agency advertising of the project. 2. Review and approve all plans and specifications and contractors submittals to insure compliance with railroad engineering specifications and operating practices. 3. Schedule train operations so as to minimize disruptions to train operations and construction. 4. Participate in a "megger test" and a final "walk-through" inspection of the system prior to final acceptance of the contractor's work. 5. Perform flagging and furnish protective services and devices because of the operations of the Local Agency or its contractor, when deemed necessary by the Local Agency and Railway. 6. Training of Railway's personnel required as result of the equipment installed under this project. 7. Perform preliminary, construction, and special engineering and inspection, including field and office work and preparation of bills. 8. Perform all other work not specifically mentioned, but similar to the above work, to be performed by the Railway necessary for the project to be completed. Labor Classification Rate per hour Roadmaster - Engineer $34.00 Signalman $28.90 Laborer $20.40 Dispatcher $20.40 Flagman $20.40 Clerical $13.60 9 Agreement Number EXHIBIT B (Con"t) SUMMARY OF COST Item No. Quantity Unit Unit price 1 2 2 hours $34.00 4 hours $28.90 2 hours $34.00 2 hours $28.90 3 1 hour $34.00 1 hour $28.90 2 hours $28.90 4 5 6 10 hours $20.40 1 hour $34.00 3 hours $28.90 7 10 hours $34.00 20 hours $28.90 8 hours $13.60 8 2 hours $34.00 2 hours $28.90 Total Total Total Total labor (unit price includes overhead) equipment, materials, and tools travel and per diem cost Lump Sum Price Amount $ 68.00 $115.60 $ 68.00 $ 57.80 $ 34.00 $ 28.90 $ 57.80 $204.00 $ 34.00 $ 86.70 $340.00 $578.00 $108.80 $ 68.00 $ 57.80 $1,907.40 $ 400.00 $ 192.60 $2,500.00 The Railway will perform the above work for the lump twenty five hundred dollars ($2,500.00). The lump su be full payment for furnishing all labor, materials, equipment, and incidentals necessary for the Railway work. sum amount of m amount shall tools, to perform the 10 Agreement Number EXHIBIT C Nondiscrimination Provisions of Title VI 1964. During the performance of this contract, its assignees and successors in interest the "Contractor"), agrees as follows: of the Civil Rights Act of the contractor, for itself, (hereinafter referred to as 1. Compliance with Regulations: The Contractor will comply with the regulations of the Department of Transportation relative to nondiscrimination in federally assisted programs of the Department of Transportation (Title 49, Code of Federal Regulations, Part 21, hereinafter referred to as the "Regulations"), which are herein incorporated by reference and made a part of this contract. *2. Nondiscrimination: The Contractor, with regard to the work performed by it after award and prior to completion of the contract work, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendices "A", "B", and "C". 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials or equipment, each potential subcontractor or supplier shall be notified by the Contractor of the Contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. 4. Information and Reports: The Contractor will provide all information and reports required by the Regulations or orders and instructions issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the State Highway Department or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a Contractor is in the exclusive possession of another who fails or refuses to furnish this information, the Contractor shall so certify to the State Highway Department or the Federal Highway Administration as appropriate and shall set forth what efforts it has made to obtain the information. 11 Agreement Number EXHIBIT C (Con't) 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the nondiscrimination provisions of this contract, the State Highway Department shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: a. Withholding of payments to the Contractor under the contract until the Contractor complies, and/or b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs 1 through 6 in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, orders, or instructions issued pursuant thereto. The Contractor will take such action with respect to any subcontract or procurement as the State Highway Department or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for noncompliance; Provided, however, that, in the event a Contractor becomes involved in or is threatened with litigation with a subcontractor or supplier as a result of such direction, the Contractor may request the State to enter into such litigation to protect the interests of the State, and, in addition, the Contractor may request the United States to enter into such litigations to protect the interests of the United States. * PROHIBITION OF DISCRIMINATION ON THE BASIS OF SEX. Sec. 162. (a) Chapter 3 of Title 23, United State Code, is amended by adding at the end thereof the following new section: S 324, Prohibition of discrimination on the basis of sex. No person shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance under this title or carried on under this title. This provision will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination, under Title VI of the Civil Rights Act of 1964. However, this remedy is not exclusive and will not prejudice or cut off any other legal remedies available to a discriminatee. 12 Agreement Number