2003/11/12 Council Agenda Packet

G ARTICLE I —SCOPE OF WORK 1. The term "Project" as used herein shall include any and all work related to the construction of the proposed 41st Street Overpass (hereinafter referred to as the "Structure"), more particularly described on the Exhibit A attached hereto and incorporated herein, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation. ARTICLE II —BNSF OBLIGATIONS 1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF shall grant to Agency, its successors and assigns, an easement of 1.680 square feet for the consideration fee of$40,000 to enter upon and use that portion of BNSF's right-of-way as is necessary to construct, and thereafter maintain, the Structure shown on Exhibit A. The easement referenced in the preceding sentence shall be governed by a separate agreement between the parties hereto and shall be executed simultaneously with the execution of this Agreement. For and in consideration of $ 1,000, a transaction fee for processing the easement documents. 2. BNSF shall furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit B attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit B. In such event,the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit B not specifically mentioned therein may be included as a part of this Agreement upon written approval of Agency, which approval shall not be unreasonably withheld. Construction of the Project shall include the following railroad work by BNSF: (a) Preliminary engineering, design, and contract preparation of railroad force work only; (b) Place 330 TF of protective plank material on all tracks and remove when construction is complete. The Agency will provide the Railway the plank material. Place temporary construction crossing. Location to be agreed to between Agency and Railway. (c) Relocate fiber-optics and to reconnect power and telephone service. (d) Furnishing of such flagging services as may be necessary for the safety of BNSF's property and the operation of its trains during construction of the Project; (e) Furnishing of engineering and inspection as required in connection with the construction of the Project; (f) Removal of the existing 36th Street at-grade crossing, including removal of the automatic warning devices, and obliteration of the crossing between the rails and two feet outside; and 3. BNSF shall do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements. 4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or Agency's contractor in connection with the Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such 6 Form 0105 Rev. 1/30/03 2