2003/11/12 Council Agenda Packet

. . .. 2 requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is not being performed by Agency personnel at any time during construction of the Project, BNSF shall have the right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project shall not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF shall immediately notify City of Everett for appropriate corrective action. 6. In accordance with 23 CFR 646 B, which by reference is incorporated in this agreement, BNSF will contribute$ 800,000 (hereinafter referred to as "BNSF's Share")towards the total actual costs of the Project. BNSF's Share shall be based on the costs for preliminary engineering, right-of-way and construction according to the following schedule; a) Upon completion of project (approximately June 2005) $ 800,000 7. Additionally, local, state and federal funds will be used in the construction of the Project. The total actual cost of construction for the Project is presently estimated to be$ 18,000,000, more particularly described (together with BNSF's Share) on Exhibit D attached hereto and incorporated herein. 8. Agency shall, out of funds made available to it for the construction of the Project, reimburse BNSF in full for the actual costs of all work performed by BNSF pursuant to this Agreement, less BNSF's Share as set forth in Article IV, Section 6 herein. BNSF's Share shall be paid upon completion of the Project. 9. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein shall comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement. 10. The parties mutually agree that no construction activities for the Project, nor future maintenance of the Structure once completed, shall be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 800 832-5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period. 11. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project shall not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice shall reference BNSF's file name Everett. WA. -41st Street OHB project and D.O.T. Crossing No. and shall state the time that construction activities will begin. 12. Upon completion of construction of the Project, BNSF and Agency hereby agree as follows: (a) Agency will own and maintain, at its sole cost and expense, the Structure,the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. (b) Additionally, Agency and BNSF shall perform the necessary work to obtain the permanent closure of the 36th Street crossing. The 36th Street closure shall be completed approximately by June, 2005. (c) Agency shall, at Agency's sole cost and expense, keep the Structure painted and free from graffiti. 11 Form 0105 Rev. 1/30/03 7