Resolution 2020-48 Resolution No. 2020-48
A RESOLUTION OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,
ILLINOIS,APPROVING A SERVICES AGREEMENT
WITH BNSF RAILWAY COMPANY
WHEREAS,the United City of Yorkville, Kendall County, Illinois (the "City") is a duly
organized and validly existing non home-rule municipality created in accordance with the
Constitution of the State of Illinois of 1970 and the laws of the State; and,
WHEREAS, BNSF Railway Company("BNSF') operates and maintains a system of
railway tracks throughout the United States, including parts of the City; and,
WHEREAS, the Mayor and the City Council (the "Corporate Authorities") desire to
improve safety around the existing intersection of Mill Road and BNSF's tracks (the
"Intersection"); and,
WHEREAS, BNSF has agreed to install a new concrete crossing surface at the
Intersection and to upgrade its tracks in conjunction with the installation; and,
WHEREAS,the Corporate Authorities will improve Mill Road at the Intersection to
accommodate the newly installed surface; and
WHEREAS, the Mayor and City Council of the City have reviewed the Crossing Surface
Installation Agreement (the "Services Agreement") and find it to be in the best interests of the
City and its residents to contract with BNSF in accordance with the terms of the Services
Agreement, thereby improving the safety and condition of Mill Road at the intersection with the
BNSF railway tracks.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of the
united City of Yorkville, Kendall County, Illinois, as follows:
Section 1. The recitals in the preambles to this Resolution are incorporated into this
Section 1 as if fully set forth herein.
Section 2. The Services Agreement between the United City of Yorkville and BNSF
Railway Company, a foreign corporation, attached hereto and made a part hereof, is hereby
approved and the Mayor, City Clerk, and City Administrator are hereby authorized to execute and
deliver said Services Agreement and undertake any and all actions as may be required to
implement its terms on behalf of the City.
Section 3. This Resolution shall be in full force and effect immediately from and after its
passage and approval according to law.
Resolution No.2020-48
Page 1
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
26''day of May, 2020.
KEN KOCH AYE DAN TRANSIER AYE
JACKIE MILSCHEWSKI AYE ARDEN JOE PLOCHER AYE
CHRIS FUNKHOUSER AYE JOEL FRIEDERS AYE
SEAVER TARULIS AYE JASON PETERSON AYE
Approved by me, as Mayor of the United City of Yorkville, Ken 1 unty, Illinois, this
8-6 day of J(A�F , 2020.
Mayor
Attest:
City Clerk
Resolution No.2020-48
Page 2
B/VSF
NA/LWAY
CROSSING SURFACE INSTALLATION AGREEMENT
BNSF File No.: BF10016019
Mile Post 43.743
Line Segment 1
U.S.DOT Number 079578N
Mendota Subdivision
This Crossing Surface Installation Agreement (hereinafter called, this "Agreement") is entered
into effective as of July 27, 2020, by and between the United City of Yorkville, IL (hereinafter called,
"AGENCY")and BNSF Railway Company(hereinafter called,"BNSF").
WHEREAS,BNSF operates a freight transportation system by rail with operations throughout the
United States and Canada;and
WHEREAS, AGENCY desires to extend the existing concrete crossing surface at Mill Road to
allow for a wider roadway;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties
contained herein, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. BNSF Work. The Company will install 8' of a new concrete crossing surface on each
side of the road. The new crossing surface will adequately cover all vehicular driving lanes at Mill Road.
The Company will perform all necessary track upgrades to accommodate the new crossing surface.
2. AGENCY Work. AGENCY must construct the Project as shown on the attached
Exhibit A and do all work ("AGENCY's Work") provided for in the plans and specifications for the
Project, except railroad work that will be performed by BNSF hereunder. AGENCY must furnish all
labor, materials, tools and equipment for the performance of AGENCY's Work. The principal elements
of AGENCY's Work are as follows:
(a) Design and Construction of Mill Road;
(b) Installation of a pavement marking stop bar in accordance with the Manual on Uniform
Traffic Control Devices(hereinafter called,"MUTCD");
(c) Installation of advance warning signs in accordance with the MUTCD;
(d) Perform all necessary grading and paving, including backfill of excavations and
restoration of disturbed vegetation on BNSF's right-of-way;
(e) Provide suitable drainage,both temporary and permanent;and,
(f) Job site cleanup including removal of all construction materials, concrete debris, surplus
soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the
satisfaction of BNSF.
A3r~SF`
RA/1 WAY
3. Payment; Invoicing. AGENCY agrees to pay Company the actual cost of the BNSF
Work. AGENCY's ESTIMATED total cost for the new crossing surface is $17,576 as shown in Exhibit
B. Company shall send to AGENCY a final invoice upon completion and AGENCY shall pay the final
invoice within 30 days of receipt.
4. Maintenance of the Crossing Surface. After installation of the new crossing surface is
completed, BNSF will maintain, at its own cost and expense, the crossing surface, against normal wear
and tear, in a satisfactory manner for the expected life of the crossing surface. Notwithstanding the
preceding sentence, BNSF shall be entitled to receive any contribution toward the cost of such
maintenance made available by reason of any existing or future laws, ordinances, regulations, orders,
grants,or other means or sources.
5. Vehicular Traffic during Installation. The AGENCY shall provide,at its own cost and
expense, all necessary barricades, lights or traffic control devices for detouring vehicular/pedestrian
traffic at the Mill Road Street crossing during installation of the new crossing surface.
6. Drainage. The AGENCY agrees to allow BNSF to drain water from the Mill Road
Street crossing area into existing AGENCY storm sewers, if such storm sewers are available. Drain pipes
and filter fabric necessary for such drainage will be furnished and installed by BNSF.
7. Roadway Surfacing Work. The AGENCY agrees to provide, at its sole cost and
expense, enough asphalt to cover the distance between the existing roadway surface at Mill Road
Street/Ave and the new crossing surface on both sides of the track as well as the area between the tracks.
8. Contractor Requirements: AGENCY must require its contractor to comply with the
obligations set forth in this Agreement, including Exhibit C and Exhibit C-1, and incorporate in each
prime contract for construction of the Project, or the specifications therefor, the provisions set forth in
Exhibit C and Exhibit C-1,attached hereto and by reference made a part hereof.
No work shall be commenced within BNSF's right of way until the AGENCY's contractor shall have (i)
executed and delivered to BNSF an agreement in the form of said Exhibit C-1 and (ii) delivered to and
secured BNSF's approval of the required insurance.
9. Term. This Agreement begins on the effective date set forth above and remains in effect
until completion of all work contemplated in this Agreement and AGENCY's payment of the amounts set
forth in Section 3 above.
RRtt IY.0-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by
its duly qualified and authorized officials as of the day and year first written above.
BN; F RailWAV CamMay:
By:
Printed ame:
Title: '�1SS iD►V�cv�t/E�<i c I'y�t r'f�
AGENCY:
United City of Yorkville
By: `
Printed Name: VO-144 -f URCELL
Title: MAYOR,.
IJEXHIBIT
SMOULDERS. MMBASE GRANULAR YATEMAL,TYPE B.ems.200 Sr�/ �ACCREw1E,NIUIILOERS,
rYPE�,B C / + • m lw!Y MOT-MX ASPIIKT SNQ1LpERA M.S00 9Y ry" / T1PE Bl Y�0 IONS H d • • J b T &a j /
r o .
' x i
/ r •.r ,/ // tMM TC0.RE2TEl—AMID
�..i /d ✓ ' / ' / /
I
�,. -__1 " ♦. is 1It L SCALE T
- .n11R wTE �
IW
W e-_______d— 4_—_ _ _ _ / _� W
MILL ROAD r I w
a��--��— pao —
PR CENiERIRT[(P0.) ~�---- -C � �
�I d
W i /. f Q
�p v
IS
J
AOdKW N IE!UNMADE RFROVEYENT,lY,1280 SY /_ Q
calM PROP.CURVE NO.D
Hm-wx ASPHuI BASE g,s•,195G sY r uEv as w
lYrSET:.12. RT PISTA.�51+O9.J7
// 1 / O BECIN NIUWNOUS YAIEPoAlS(1AOL CwT).610 Pd11O5 TAPER/ If T! L , 1d• A 03'08'22*(RT)
HOT-YIi ASPHALT RIDER COURSE,IL-19.0. W.1B0 TOMS / /"// E%'RR GATE ✓ D 01'45'4T
N0T-MIX AWNUT SURFACE COURSE.MIX W.N50,110 TONS � �' C) T-89.06'
78.
___
_____y_ _ T � T.R.
__�
A _
Tx Cg ______ __
�r �{ -fArt4t SE. RUN._
I� P.C.STA..50+20,30
P.T. STA..51+20.39
PROP.CURVE NO.7
q STA..52.98.90
CL Mill Road PROFILE A_01'58'2r(LT)
LOw PT T.lWO0.00 D 01'45'47'
LON PT ELEV.M64
PN STA:-50.00 R.525Q00'
PM CLEI N.00 T 5.95'
KOS,% L 111.90'
LVC:100.00 d E .0.48'
p-
'+.S T.R.
SE. RUN-
TA +14. P.C.STA.-52+4295
660
P.7, STA, 53+54
0 .8]
PII C[NIERLN[PROBE Qpl1 .559 -QNR
i 655
p5!
_
D 0.301 ----
____ Ei LLNIFPIINE PROFILE +
[ NNM PT ST'52+00.00 EIFV:pl19)
lads PT W.557,N
S1A:49+%00 PR 1 T a50
S7A:49+40.00 ELEN plI.lA PM ELL.a5710
did PROTAES ELEV:p50.9! N: w
CFI LNG: 00
aw N!
SCALE:
VERTCAL 1' S'
19+00 50+00 51+00 52+00 53+00 54+00
Engineering Enterprises,Inc. UNITED CITY OF YORKVILLE MILL ROAD RECONSTRUCTION MILL ROAD DATE: SEPTEIIBER late
® SULr►lpwvTQeETa KENDALL COUNTY. IWNOIS PRO ECT NO 726 PIP
y s�o..pap7ool •1 80554. YORKVILLE,ILLINOIS STA 49+0 TO STA 64+00 d17x PP
g - 25 Or 76
EXHIBIT
0B
AUTHORITY FOR EXPENDITURE
-------------------------------------------------------------------------------------
LOCATION: BRISTOL LINE SEGMENT: 1 AFE NUMBER:
PLANITEM NUMBER: 234633000 MILEPOST: 43.743 RFA NUMBER: 5902220
PROPERTY OF: BNSF RAILWAY COMPANY DIVISION: CH CPARNUMBER: C0000009
OPERATED BY: BNSF RAILWAY COMPANY SUBDIVISION: MENDOTA BUDGET YEAR: 2020
JOINT FACILITY: YORKVILLE TRACK TYPE: 1 BUDGET CLASS: 6
%BILLABLE(+/-): 100.0 TAX STATE: IL REPORTING OFFICE: 722
SPONSOR: VP ENGINEERING CENTER/ROLLUP: S3801
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PURPOSE,JUSTIFICATION AND DESCRIPTION
PIP-CHE DIV MENDOTA SUB LS 1 MP 43.743-DOT#079578N-100%BILLABLE TO YORKVILLE-EXTEND CROSSING TIN BOTH
DIRECTIONS ON BOTH TRACKS ACCT PUBLIC AGENCY WILL BE WIDENING THE ROADWAY
PRIMARY FUNDING SOURCE IS STATE
BUY AMERICA(N)APPLIES**
PLAN ITEM LINE SEG BEG MP END MP IRK NBR BEGIN STATION END STATION PROJECT TYPE BUD YEAR
234633000 1 43.743 43.743 1 BRISTOL BRISTOL PUBLIC IMPROVEMENT PROJECT 2020
I
CASH CAPITAL NONCASH CAPITAL OPERATING EXP REMOVAL COSTS BILLABLE TOTALS
LABOR COSTS 0 0 0 0 6,939 6,939
MATERIAL COSTS 0 0 0 0 8,518 8,518
OTHER COSTS 0 0 0 0 1,623 1,623
TOTALS 0 0 0 0 17,080 17,080
SYSTEM MAINTENANCE AND PLANNING PRINTED ON: 10/30/2019
ESTIMATE REF.NUMBER: 5902220 ESTIMATED BY: SAVARD
COSTING DATE: 01/01/2020 PRINTED BY: SAVARD
Page 1 of 2
•**•* MAINTAIN PROPRIETARY CONFIDENTIALITY **'•*
BNSF RAILWAY COMPANY
FHPM ESTIMATE FOR
YORKVILLE
LOCATION BRISTOL DETAILS OF ESTIMATE PLAN ITEM. 234633000 VERSION 2
PURPOSE,JUSTIFICATION AND DESCRIPTION
PIP-CHE DIV MENDOTA SUB LS 1 MP 43,743-DOT#079578N-100•/BILLABLE TO YORKVILLE
EXTEND CROSSING V IN BOTH DIRECTIONS ON BOTH TRACKS ACCT PUBLIC AGENCY WILL BE WIDENING THE ROADWAY
REQUESTED BY DANIEL PELTIER 6/19/19
REVISION REQUESTED BY DANIEL PELTIER 10/29/19-CHANGE XING MATERIAL
PRIMARY FUNDING SOURCE IS STATE
'*BUY AMERICA(N)APPLIES**
DESCRIPTION QUANTITY U/M COST TOTAL$
LABOR
w««w++ssss
REPLACE CROSS TIES-CAP 15.44 MH 521
REPLACE PUBLIC CROSSING-TOTAL REHAB 32.0 MH 1,001
UNLOAD CROSSING MATERIAL-PUBLIC-CAP 16.0 MH 501
PAYROLL ASSOCIATED COSTS 1,321
DA OVERHEADS 2,194
EQUIPMENT EXPENSES 1,048
INSURANCE EXPENSES 353
TOTAL LABOR COST 6,939 6,939
MATERIAL
tssss+sssssfs
SPIKE,TBR SCREW 3/4"X 13",F/ROAD XING 72.0 EA " 144
TIE,GRADE 5,BORATE TREATED 24.0 EA 1,425
CONC 136 08-SEC,FOR TANGENT TRY,WITH FILLER FOR 32.0 FT ** 5,184
CONCRETE XING RAMP AND PANEL RESTRAINT, 2.0 ST ** 620
MATERIAL HANDLING 368
ONLINE TRANSPORTATION 48
USE TAX 656
OFFLINE TRANSPORTATION 73
TOTAL MATERIAL COST 8,518 8,518
f#f#######
OTHER
TOTAL OTHER ITEMS COST 0 0
PROJECT SUBTOTAL 15,457
CONTINGENCIES 1,453
BILL PREPARATION FEE 170
GROSS PROJECT COST 17,080
LESS COST PAID BY BNSF 0
TOTAL BILLABLE COST 17,080
Page 2 of 2
ASr
RA/L WA r
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General:
• 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to
as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way,
hereafter referred to as "Railway Property", during the construction of Mill Road widening.
• 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit
"C-1"Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full
force and effect the insurance called for under Section 3 of said Exhibit "C-1". Questions regarding
procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at
Marsh, USA, 214-303-8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere
with the movement of any trains on Railway Property.
• 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of
Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway,
Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway
will have the right to stop construction work on the Project if any of the following events take place: (i)
Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans
and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's
opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or
the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached
Exhibit C-1 is canceled during the course of the Project; or(iv) Contractor fails to pay Railway for the
Temporary Construction License or the Easement. The work stoppage will continue until all
necessary actions are taken by Contractor or its subcontractor to rectify the situation to the
satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and
accepted by Railway. In the event of a breach of(i) this Agreement, (ii) the Temporary Construction
License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction
License or the Easement. Any such work stoppage under this provision will not give rise to any
liability on the part of Railway. Railway's right to stop the work is in addition to any other rights
Railway may have including, but not limited to, actions or suits for damages or lost profits. In the
event that Railway desires to stop construction work on the Project, Railway agrees to immediately
notify the following individual in writing:
• 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and
Local Governmental laws and regulations, including, but not limited to environmental laws and
regulations (including but not limited to the Resource Conservation and Recovery Act, as amended;
the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA),
and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds
harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State
B/V d
RA1 L WA r
and Local Governmental Agencies against the Railway which arise out of Contractor's work under this
Agreement.
• 1.01.06 The Contractor must notify United City of Yorkville at and Railway's
Manager Public Projects, telephone number (763) 782-3495 at least thirty (30) calendar days before
commencing any work on Railway Property. Contractor's notification to Railway must refer to
Railway's file
• 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located
with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the
nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical
slope beginning at eleven (11)feet from centerline of the nearest track, both measured perpendicular
to center line of track, the Contractor must furnish the Railway five sets of working drawings showing
details of construction affecting Railway Property and tracks. The working drawing must include the
proposed method of installation and removal of falsework, shoring or cribbing, not included in the
contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all
excavation and shoring submittal plans, the current"BNSF-UPRR Guidelines for Temporary Shoring"
must be used for determining the design loading conditions to be used in shoring design, and all
calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for
Temporary Shoring". All submittal drawings and calculations must be stamped by a registered
professional engineer licensed to practice in the state the project is located. All calculations must
take into consideration railway surcharge loading and must be designed to meet American Railway
Engineering and Maintenance-of-Way Association (previously known as American Railway
Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be
stamped by a registered professional engineer licensed to practice in the state the project is located.
The Contractor must not begin work until notified by the Railway that plans have been approved. The
Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove
any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for
results obtained by the implementation of said approved plans.
• 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor
such that the work may be handled and performed in an efficient manner. The Contractor will have no
claim whatsoever for any type of damages or for extra or additional compensation in the event his
work is delayed by the Railway.
1.02 Contractor Safety Orientation
• 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter
Railway Property without first having completed Railway's Engineering Contractor Safety
Orientation, found on the web site www.BNSFContractor.com. The Contractor must ensure
that each of its employees, subcontractors, agents or invitees completes Railway's
Engineering Contractor Safety Orientation through internet sessions before any work is
performed on the Project. Additionally, the Contractor must ensure that each and every one
of its employees, subcontractors, agents or invitees possesses a card certifying completion of
the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is
responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must
renew the Railway Contractor Safety Orientation annually. Further clarification can be found
on the web site or from the Railway's Representative.
1.03 Railway Requirements
SF
RA/L WAY
• 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities,
including track ballast, free of sand, debris, and other foreign objects and materials resulting from his
operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or
replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency.
■ 1.03.02 The Contractor must notify the Railway's Division Engineer Brian Ferencak at 773-579-
5129 and provide blasting plans to the Railway for review seven (7)calendar days prior to conducting
any blasting operations adjacent to or on Railway's Property.
■ 1.03.03 The Contractor must abide by the following temporary clearances during construction:
■ 15-0" Horizontally from centerline of nearest track
■ 21'-6" Vertically above top of rail
■ 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts
■ 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts
■ 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts
■ 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts
■ 1.03.04 Upon completion of construction, the following clearances shall be maintained:
■ 25' Horizontally from centerline of nearest track
■ 23' 6" Vertically above top of rail
■ 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations
must be submitted to the Railway and to the United City of Yorkville and must not be undertaken until
approved in writing by the Railway, and until the United City of Yorkville has obtained any necessary
authorization from the State Regulatory Authority for the infringement. No extra compensation will be
allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State
Regulatory Authority's approval.
■ 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of
installing tell-tales or other protective devices Railway deems necessary for protection of Railway
operations. The cost of tell-tales or protective devices will be borne by the Agency.
■ 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the
contract plans must be submitted to the Railway by the United City of Yorkville for approval before
work is undertaken and this work must not be undertaken until approved by the Railway.
■ 1.03.08 At other than public road crossings, the Contractor must not move any equipment or
materials across Railway's tracks until permission has been obtained from the Railway. The
Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to
moving his equipment or materials across the Railways tracks. The temporary crossing must be
gated and locked at all times when not required for use by the Contractor. The temporary crossing for
use of the Contractor will be constructed and, at the completion of the project, removed at the
expense of the Contractor.
■ 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil,
petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and
Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of
any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway
Property to become a treatment, storage or transfer facility as those terms are defined in the
Resource Conservation and Recovery Act or any state analogue.
■ 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly
remove from the Railway's Property all of Contractor's tools, equipment, implements and other
materials, whether brought upon said property by said Contractor or any Subcontractor, employee or
B~2WF
HAIL WAY
agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a
condition acceptable to the Railway's representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety
Action Plan:
• 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must
develop and implement a Roadway Worker Protection/On Track Safety Program and work with
Railway Project Representative to develop an on track safety strategy as described in the guidelines
listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway
Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or
invitees. This training is reinforced at the job site through job safety briefings. Additionally, each
Contractor must develop and implement the Safety Action Plan, as provided for on the web site
www.BNSFContractor.com, which will be made available to Railway prior to commencement of any
work on Railway Property. During the performance of work, the Contractor must audit its work
activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact
person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and
Material Safety Datasheets (MSDS), at the job site.
• 1.04.02 Contractor shall have a background investigation performed on all of its employees,
subcontractors and agents who will be performing any services for Railroad under this Agreement
which are determined by Railroad in its sole discretion a) to be on Railroad's property, or b) that
require access to Railroad Critical Infrastructure, Railroad Critical Information Systems, Railroad's
Employees, Hazardous Materials on Railroad's property or is being transported by or otherwise in the
custody of Railroad, or Freight in Transit involving Railroad.
The required background screening shall at a minimum meet the rail industry background screening
criteria defined by the e-RAILSAFE Program as outlined at www.eVerifile.com, in addition to any
other applicable regulatory requirements.
Contractor shall obtain written consent from all its employees, subcontractors or agents screened in
compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release
completed background information to Railroad's designee. Contractor shall be subject to periodic
audit to ensure compliance.
Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees,
subcontractors or agents to perform services hereunder who are not first approved under e-
RAILSAFE Program standards. Railroad shall have the right to deny entry onto its premises or
access as described in this section above to any of Contractor's employees, subcontractors or agents
who do not display the authorized identification badge issued by a background screening service
meeting the standards set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may
not be unreasonable, may pose a threat to the safety or security of Railroad's operations, assets or
personnel.
Contractors shall be responsible for ensuring that its employees, subcontractors and agents are
United States citizens or legally working in the United States under a lawful and appropriate work
VISA or other work authorization.
1.05 Railway Flagger Services:
8/V.S'F
RAlL WAY
• 1.05.01 The Contractor must give Railway's Roadmaster(telephone 815-246-9752)a minimum of
thirty (30) calendar days advance notice when flagging services will be required so that the
Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging
services are scheduled in advance by the Contractor and it is subsequently determined by the parties
hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5)
working days advance notice so that appropriate arrangements can be made to abolish the position
pursuant to union requirements.
• 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be
required and furnished when Contractor's work activities are located over, under and/or within
twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or
similar equipment positioned beyond 25-feet from the track centerline could foul the track in the
event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions:
• 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant.
• 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion
of Railway's representative, track or other Railway facilities may be subject to
movement or settlement.
• 1.05.02c When work in any way interferes with the safe operation of trains at timetable
speeds.
• 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or
other facilities either due to persons, material, equipment or blasting in the vicinity.
• 1.05.02e Special permission must be obtained from the Railway before moving heavy or
cumbersome objects or equipment which might result in making the track
impassable.
• 1.05.03 Flagging services will be performed by qualified Railway flaggers.
• 1.05.03a Flagging crew generally consists of one employee. However, additional personnel
may be required to protect Railway Property and operations, if deemed necessary by
the Railways Representative.
• 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour
basic day.
• 1.05.03c The cost of flagger services provided by the Railway will be borne by United City of
Yorkville. The estimated cost for one (1) flagger is approximately between $800.00-
$1,600.00 for an eight (8) hour basic day with time and one-half or double time for
overtime, rest days and holidays. The estimated cost for each flagger includes
vacation allowance, paid holidays, Railway and unemployment insurance, public
liability and property damage insurance, health and welfare benefits, vehicle,
transportation, meals, lodging, radio, equipment, supervision and other costs
incidental to performing flagging services. Negotiations for Railway labor or collective
bargaining agreements and rate changes authorized by appropriate Federal
authorities may increase actual or estimated flagging rates. THE FLAGGING RATE
IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR
HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF
FLAGGING PURSUANT TO THIS PARAGRAPH.
• 1.05.03d The average train traffic on this route is 17 freight trains per 24-hour period at a
timetable speed of 60 MPH and 7 passenger trains at a timetable speed of 79 MPH.
"~.S'F
RA/L WAY
1.06 Contractor General Safety Requirements
• 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of
trains and equipment can occur at any time and in any direction. All work performed by contractors
within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations.
• 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be
conducted with all personnel involved with the task and repeated when the personnel or task
changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger,
as applicable, and include the procedures the Contractor will use to protect its employees,
subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway
track(s).
• 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track
safety strategy approved by the Railway's Project Representative. When authority is provided, every
contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2)
limits of the authority, (3)the method of communication to stop and resume work, and (4) location of
the designated places of safety. Persons or equipment entering flag/work limits that were not
previously job briefed, must notify the flagger immediately, and be given a job briefing when working
within 25 feet of the center line of track.
• 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railway's representative in charge of the project must be notified.
A minimum of two employees must be present at all times.
• 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of
being under the influence of drugs or alcohol, or in the possession of same, will be removed from the
Railway's Property and subsequently released to the custody of a representative of Contractor
management. Future access to the Railway's Property by that employee will be denied.
• 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be
reported immediately to the Railway's representative in charge of the project. Any vehicle or machine
which may come in contact with track, signal equipment, or structure (bridge) and could result in a
train derailment must be reported immediately to the Railway representative in charge of the project
and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers
are to be obtained from the Railway representative in charge of the project prior to the start of any
work and must be posted at the job site.
• 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or
other deadly weapons in their possession while working on Railway's Property.
• 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet
applicable OSHA and ANSI specifications. Current Railway personnel protective equipment
requirements are listed on the web site, www.BNSFContractor.com, however, a partial list of the
requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b)
hard hats; c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d)
high visibility retro-reflective work wear. The Railway's representative in charge of the project is to be
contacted regarding local specifications for meeting requirements relating to hi-visibility work wear.
Hearing protection, fall protection, gloves, and respirators must be worn as required by State and
Federal regulations. (NOTE—Should there be a discrepancy between the information contained
on the web site and the information in this paragraph,the web site will govern.)
0 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY
BN�F
RRl1 WAY
OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY
TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN
250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION
CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN
APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST
ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S
REPRESENTATIVE.
• 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked
machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket,
they must be lowered to the ground. All machinery and equipment left unattended on Railway's
Property must be left inoperable and secured against movement. (See internet Engineering
Contractor Safety Orientation program for more detailed specifications)
• 1.06.11 Workers must not create and leave any conditions at the work site that would interfere
with water drainage. Any work performed over water must meet all Federal, State and Local
regulations.
• 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed
to the contrary by proper authority. For all power lines the minimum clearance between the lines and
any part of the equipment or load must be; 200 KV or below- 15 feet; 200 to 350 KV-20 feet; 350 to
500 KV-25 feet; 500 to 750 KV- 35 feet; and 750 to 1000 KV-45 feet. If capacity of the line is not
known, a minimum clearance of 45 feet must be maintained. A person must be designated to
observe clearance of the equipment and give a timely warning for all operations where it is difficult for
an operator to maintain the desired clearance by visual means.
1.07 Excavation:
• 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines,
electric wires, or cables, including fiber optic cable systems are present and located within the Project
work area. The Contractor must determine whether excavation on Railway's Property could cause
damage to buried cables resulting in delay to Railway traffic and disruption of service to users.
Delays and disruptions to service may cause business interruptions involving loss of revenue and
profits. Before commencing excavation, the Contractor must contact BNSF's Field Engineering
Representative (John Stilley 913-551-4519). All underground and overhead wires will be considered
HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is
the Contractor's responsibility to notify any other companies that have underground utilities
in the area and arrange for the location of all underground utilities before excavating.
• 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing
excavation in the area if obstructions are encountered which do not appear on drawings. If the
obstruction is a utility and the owner of the utility can be identified, then the Contractor must also
notify the owner immediately. If there is any doubt about the location of underground cables or lines
of any kind, no work must be performed until the exact location has been determined. There will be
no exceptions to these instructions.
• 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and,
regardless of depth, must be shored where there is any danger to tracks, structures or personnel.
• 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded
and/or protected when not being worked on. When leaving work site areas at night and over
weekends, the areas must be secured and left in a condition that will ensure that Railway employees
and other personnel who may be working or passing through the area are protected from all hazards.
All excavations must be back filled as soon as possible.
B/V,SF
RA/L WAY
1.08 Hazardous Waste, Substances and Material Reporting:
• 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other
deleterious material, including but not limited to any non-containerized commodity or material, on or
adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while
performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's
Resource Operations Center at 1(800) 832-5452, of such discovery: (b)take safeguards necessary to
protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with
respect to the release, including the taking of any appropriate measure to minimize the impact of such
release.
1.09 Personal Injury Reporting
• 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal
Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee
of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be
reported immediately (by phone mail if unable to contact in person)to the Railway's representative in
charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to
be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project
Representative no later than the close of shift on the date of the injury.
BA~
9A/L WAY
R7/77 AY NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile
accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that
injuries relate to that specific event.)
Injured Person Type:
❑ Passenger on train (C) Non-employee (N)
(ie.,amp afangtherrailmad,or,ngn-&Sf emp invglvedin vehic%accident,including
company vehicles)
Contractor/safety sensitive (F) ❑ Contractor/non-safety sensitive (G)
Volunteer/safety sensitive K Volunteer/other non-safety sensitive (1)
❑ Non-trespasser (0)-to include highway users involved in highway rail grade crossing accidents who did not
go around or through gates
Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went
around or through gates
❑ Non-trespasser U-Off railroad property
If train involved,Train ID:
Transmit attached information to Accident/Incident Reporting Center by:
Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident-Reuorting.CenterCBNSF.com
Officer Providing Information:
(Name) (Employee No.) (Phone#)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM
DISCLOSURE PURSUANT TO 49 U.S.C.20903 AND 83 U.S.C.490
B/VS►F
9A/L WAY
NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION.IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT
INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
I.Accident City/St: 2.Date: Time:
County: 3.Temperature: 4. Weather:
(if non BNSF location)
Mile Post/Line Segment:
5.Driver's License No(and state)or other ID: SSN(required):
G.Name(last,first,mi):
7.Address: City: St: Zip:
8.Date of Birth: and/or Age: Gender:
(if available)
'hone Number: Employer:
9.Injury: 10.Body Part:
(i.e.,laceration,etc.) (i.e.,Hand,etc.)
II.Description of Accident(To include location,action,result,etc.):
12.Treatment:
First Aid Only
Required Medical Treatment
Other Medical Treatment
13.Dr.Name: Date:
14.Dr.Address:
Street: City: St: Zip:
15.Hospital Name:
16.Hospital Address:
Street: City: St: Zip:
17.Diagnosis:
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS
AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C.20903 AND 83 U.S.C.490
8/V 44
r
HA/f WAY
EXHIBIT "C-1"
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File:
Agency Project: BF10016019
[contractor's legal name] (hereinafter called "Contractor"),
has entered into an agreement (hereinafter called "Agreement") dated , 202_, with the
United City of Yorkville for the performance of certain work in connection with the following project:
widening of Mill Road. Performance of such work will necessarily require Contractor to enter BNSF
RAILWAY COMPANY (hereinafter called "Railway") right of way and property (hereinafter called
"Railway Property"). The Agreement provides that no work will be commenced within Railway Property
until the Contractor employed in connection with said work for United City of Yorkville (i) executes and
delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and
limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is
not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish
evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of
Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property
and as an inducement for such entry, Contractor, effective on the date of the Agreement, has agreed and
does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all
judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or
death to all persons, including Railway's and Contractor's officers and employees, and for loss
and damage to property belonging to any person, arising in any manner from Contractor's or any
of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's
property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE
AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH,
OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF
RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE
EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENSIONAL
MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE
SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO
CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust
and settle all claims made against Railway, and will, at Railway's discretion, appear and defend
BiV"►F
RA/1 WAY
any suits or actions of law or in equity brought against Railway on any claim or cause of action
arising or growing out of or in any manner connected with any liability assumed by Contractor
under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice
to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor
must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being
brought against Railway, Railway may forward summons and complaint or other process in
connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust,
or settle such suits and protect, indemnify, and save harmless Railway from and against all
damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting
from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion of this
Article shall be deemed to be inapplicable for any reason, including without limitation as a result
of a decision of an applicable court, legislative enactment or regulatory order, the parties agree
that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest
extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES
EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY'S
ACTS OF NEGLIGENCE.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
2) TERM
This Agreement is effective from the date of the Agreement until (i) the completion of the project
set forth herein, and (ii) full and complete payment to Railway of any and all sums or other
amounts owing and due hereunder.
3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability insurance. This insurance shall contain broad form contractual
liability with a combined single limit of a minimum of $2,000,000 each occurrence and an
aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried
by the Contractor. Coverage must be purchased on a post 2004 ISO occurrence form or
equivalent and include coverage for, but not limit to the following:
♦ Bodily Injury and Property Damage
♦ Personal Injury and Advertising Injury
♦ Fire legal liability
♦ Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on the
certificate of insurance:
8#W
R4 fL WAY
♦ The definition of insured contract shall be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
♦ Waver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any insurance
carried by Railway.
It is agreed that the workers' compensation and employers' liability related
exclusions in the Commercial General Liability insurance policy(s) required herein
are intended to apply to employees of the policy holder and shall not apply to
Railway employees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being performed
under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined single limit of
at least $1,000,000 per occurrence, and include coverage for, but not limited to the
following:
♦ Bodily injury and property damage
♦ Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
♦ Additional insured endorsement in favor of and acceptable to Railway.
♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any insurance
carried by Railway.
C. Workers Compensation and Employers Liability insurance including coverage for, but not
limited to:
B1VS/F
f Al1WAY
♦ Contractor's statutory liability under the worker's compensation laws of the state(s) in
which the work is to be performed. If optional under State law, the insurance must
cover all employees anyway.
♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000
by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.
A. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage
of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy Must be
issued on a standard ISO form CG 00 35 12 04 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
♦ Endorsed to remove any exclusion for punitive damages.
♦ No other endorsements restricting coverage may be added.
♦ The original policy must be provided to the Railway prior to performing any work or
services under this Agreement
♦ Definition of"Physical Damage to Property" shall be endorsed to read: "means direct
and accidental loss of or damage to all property owned by any named insured and all
property in any named insured' care, custody, and control arising out of the acts or
omissions of the contractor named on the Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if
available) in Railway's Blanket Railroad Protective Liability Insurance Policy.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above)shall contain no exclusion
for punitive damages.
Contractor agrees to waive its right of recovery against Railway for all claims and suits against
Railway. In addition, its insurers, through the terms of the policy or policy endorsement, waive
their right of subrogation against Railway for all claims and suits. Contractor further waives its
right of recovery, and its insurers also waive their right of subrogation against Railway for loss of
its owned or leased property or property under Contractor's care, custody or control.
Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.
enrgW
AA/L LYAY
Contractor is not allowed to self-insure without the prior written consent of Railway. If granted by
Railway, any self-insured retention or other financial responsibility for claims shall be covered
directly by Contractor in lieu of insurance. Any and all Railway liabilities that would otherwise, in
accordance with the provisions of this Agreement, be covered by Contractor's insurance will be
covered as if Contractor elected not to include a deductible, self-insured retention or other
financial responsibility for claims.
Prior to commencing services, Contractor shall furnish to Railway an acceptable certificate(s) of
insurance from an authorized representative evidencing the required coverage(s), endorsements,
and amendments.The certificate should be directed to the following address:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: BNSF@certfocus.com
www.certfocus.com
Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non-renewal,
substitution, or material alteration.
Any insurance policy shall be written by a reputable insurance company acceptable to Railway or
with a current Best's Guide Rating of A-and Class VII or better, and authorized to do business in
the state(s) in which the service is to be provided.
If coverage is purchased on a "claims made" basis, Contractor hereby agrees to maintain
coverage in force for a minimum of three years after expiration, cancellation or termination of this
Agreement. Annually Contractor agrees to provide evidence of such coverage as required
hereunder.
Contractor represents that this Agreement has been thoroughly reviewed by Contractor's
insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance
coverage required by this Agreement.
Not more frequently than once every five years, Railway may reasonably modify the required
insurance coverage to reflect then-current risk management practices in the railroad industry and
underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Contractor, Contractor shall require that
the subcontractor shall provide and maintain insurance coverage(s) as set forth herein, naming
Railway as an additional insured, and shall require that the subcontractor shall release, defend
and indemnify Railway to the same extent and under the same terms and conditions as
Contractor is required to release, defend and indemnify Railway herein.
Failure to provide evidence as required by this section shall entitle, but not require, Railway to
terminate this Agreement immediately. Acceptance of a certificate that does not comply with this
section shall not operate as a waiver of Contractor's obligations hereunder.
"A
RAIL WAY
The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor
shall not be deemed to release or diminish the liability of Contractor including, without limitation,
liability under the indemnity provisions of this Agreement. Damages recoverable by Railway
shall not be limited by the amount of the required insurance coverage.
In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will
make available any required policy covering such claim or lawsuit.
These insurance provisions are intended to be a separate and distinct obligation on the part of
the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be bound
thereby regardless of whether or not indemnity provisions are determined to be enforceable in the
jurisdiction in which the work covered hereunder is performed.
For purposes of this section, Railway shall mean "Burlington Northern Santa Fe LLC", "BNSF
Railway Company"and the subsidiaries, successors, assigns and affiliates of each.
4) SALES AND OTHER TAXES
In the event applicable sales taxes of a state or political subdivision of a state of the United States
are levied or assessed in connection with and directly related to any amounts invoiced by
Contractor to Railway ("Sales Taxes"), Railway shall be responsible for paying only the Sales
Taxes that Contractor separately states on the invoice or other billing documents provided to
Railway;provided, however, that(i) nothing herein shall preclude Railway from claiming whatever
Sales Tax exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor shall be
responsible for all sales, use, excise, consumption, services and other taxes which may accrue
on all services, materials, equipment, supplies or fixtures that Contractor and its subcontractors
use or consume in the performance of this Agreement, (iii) Contractor shall be responsible for
Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails to
separately state on the invoice or other billing documents provided to Railway or fails to collect at
the time of payment by Railway of invoiced amounts (except where Railway claims a Sales Tax
exemption), and (iv) Contractor shall be responsible for Sales Taxes (together with any penalties,
fines or interest thereon) if Contractor fails to issue separate invoices for each state in which
Contractor delivers goods, provides services or, if applicable, transfers intangible rights to
Railway.
Upon request, Contractor shall provide Railway satisfactory evidence that all taxes (together with
any penalties, fines or interest thereon) that Contractor is responsible to pay under this
Agreement have been paid. If a written claim is made against Contractor for Sales Taxes with
respect to which Railway may be liable for under this Agreement, Contractor shall promptly notify
Railway of such claim and provide Railway copies of all correspondence received from the taxing
authority. Railway shall have the right to contest, protest, or claim a refund, in Railway's own
name, any Sales Taxes paid by Railway to Contractor or for which Railway might otherwise be
responsible for under this Agreement; provided, however, that if Railway is not permitted by law
to contest any such Sales Tax in its own name, Contractor shall, if requested by Railway at
Railway's sole cost and expense, contest in Contractor's own name the validity, applicability or
amount of such Sales Tax and allow Railway to control and conduct such contest.
Railway retains the right to withhold from payments made under this Agreement amounts
required to be withheld under tax laws of any jurisdiction. If Contractor is claiming a withholding
exemption or a reduction in the withholding rate of any jurisdiction on any payments under this
Agreement, before any payments are made (and in each succeeding period or year as required
by law), Contractor agrees to furnish to Railway a properly completed exemption form prescribed
by such jurisdiction. Contractor shall be responsible for any taxes, interest or penalties assessed
sF
against Railway with respect to withholding taxes that Railway does not withhold from payments
to Contractor.
5) EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and
limitations contained in the Agreement, and the Contractor Requirements set forth on Exhibit "C"
attached to the Agreement and this Agreement, including, but not be limited to, payment of all
costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto,
resulting from use, occupancy, or presence of its employees, representatives, or agents or
subcontractors on or about the construction site. Contractor shall execute a Temporary
Construction Crossing Agreement or Private Crossing Agreement
(http://www.bnsf.com/communities/faqs/permits-real-estate/), for any temporary crossing
requested to aid in the construction of this Project, if approved by BNSF.
6) TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its
affiliated railway companies, and its tenants) for, from and against all damages arising from any
unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its
equipment and to meet customer service and contract obligations. Contractor will be billed, as
further provided below, for the economic losses arising from loss of use of equipment, contractual
loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether
caused by Contractor, or subcontractors, or by the Railway performing work under this
Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate per train
as determined from Railway's records. Any disruption to train traffic may cause delays to multiple
trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain,
intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and
its customer(s). Under these arrangements, if Railway does not meet its contract service
commitments, Railway may suffer loss of performance or incentive pay and/or be subject to
penalty payments. Contractor is responsible for any train performance and incentive penalties or
other contractual economic losses actually incurred by Railway which are attributable to a train
delay caused by Contractor or its subcontractors.
The contractual relationship between Railway and its customers is proprietary and confidential.
In the event of a train delay covered by this Agreement, Railway will share information relevant to
any train delay to the extent consistent with Railway confidentiality obligations. The rate then in
effect at the time of performance by the Contractor hereunder will be used to calculate the actual
costs of train delay pursuant to this agreement.
Contractor and its subcontractors must give Railway's representative Dusty Hartz (815-246-9752)
four (4) weeks advance notice of the times and dates for proposed work windows. Railway and
Contractor will establish mutually agreeable work windows for the project. Railway has the right
at any time to revise or change the work windows due to train operations or service obligations.
Railway will not be responsible for any additional costs or expenses resulting from a change in
work windows. Additional costs or expenses resulting from a change in work windows shall be
accounted for in Contractor's expenses for the project.
S/VSF
RAr[Isla r
Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work
so as to not cause any delays to any trains.
BAW
AAIZ WAY
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its
duly authorized officer the day and year first above written.
(Contractor legal name) BNSF Railway Company
By: By:
Printed Name: Name:
Manager Public Projects
Title:
Accepted and effective 20
Contact Person:
Address:
City:
State: Zip:
Fax:
Phone:
E-mail: