HomeMy WebLinkAboutCAG2021-055 - Original - BNSF Railway Company - Quiet Zone Projects - 03/24/2021ApprovalOriginator:Department:
Date Sent:Date Required:
Authorized to Sign:
Director or Designee Mayor
Date of Council Approval:
Grant? Yes No
Type:Review/Signatures/RoutingDate Received by City Attorney:
Comments:
Date Routed to the Mayor’s Office:
Date Routed to the City Clerk’s Office:Agreement InformationVendor Name:Category:
Vendor Number:Sub-Category:
Project Name:
Project Details:
Agreement Amount:
Start Date:
Basis for Selection of Contractor:
Termination Date:
Local Business? Yes No*
Business License Verification: Yes In-Process Exempt (KCC 5.01.045)
If meets requirements per KCC 3.70.100, please complete “Vendor Purchase-Local Exceptions” form on Cityspace.
Notice required prior to disclosure?
Yes No
Contract Number:
Agreement Routing Form
For Approvals, Signatures and Records Management
This form combines & replaces the Request for Mayor’s Signature and Contract Cover Sheet forms.
(Print on pink or cherry colored paper)
Visit Documents.KentWA.gov to obtain copies of all agreementsadccW22373_1_20
Budget Account Number:
Budget? Yes No
Dir Asst:
Sup/Mgr:
Dir/Dep:
rev. 200821
FOR CITY OF KENT OFFICIAL USE ONLY
(Optional)
* Memo to Mayor must be attached
PRELIMINARY ENGINEERING SERVICES AGREEMENTFOR QUIET ZONE PROJECTSBNSF File No.: 8F10017830Mile Post 14.186 - 17.090Line Segment 0051U.S. DOT:085625H S 212th St085629K E James St085633A E Smith St085636V E Meeker St085637C E Gowe St085639R E Titus St085640K Willis St (SR-516)085642Y S 259th StSeattle SubdivisionThis Agreement ("Agreement"), is executed to be effective as of("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delawarecorporation ("BNSF") and the City of Kent, a political subdivision of the State ofWashington ("Agency").RECITALSWHEREAS, BNSF owns and operates a line of railroad in and through the City of Kent,State of Washington;WHEREAS, Agency has stated its intention to proceed initiallywith a projectto implementcrossing modifications in order to establish a QuietZone through the downtown Corridorwhich will include S 212 St, E James St, E Smith St, E Meeker St, E Gowe St, E Titus St,Willis SUSR 516, and S 259th St (the "Project");WHEREAS, Agency has requested that BNSF perform certain engineering services withrespect to its railroad facilities located at or near the Project site to facilitate Agency'sevaluation of the feasibility of proceeding with the Project (the "Work");WHEREAS, BNSF is agreeable to performing the Work, subject to the terms andconditions of this Agreement;NOW, THEREFORE, in consideration of the mutual covenants and agreements of theparties contained herein, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows:13/24/2021
1. Scope of Work.As used herein, the term "Work" includes all work performed by BNSF pursuant to thisAgreement, whether performed by BNSF employees or by BNSF's contractors,consultants or other agents, including, but not necessarily limited to, on-site visits,preliminary engineering services, developing cost estimates for construction of theProject, and reviewing and/or providing comments on preliminary layouts or otherdesigns, plans, and/or documents in connection with the Project.2. Payment for Work.Agency authorizes BNSF to proceed with the Work relating to the Project. Agency shallpay and reimburse BNSF for all actual costs and expenses that BNSF incurs in performingthe Work, including but not limited to, labor, supplies, and material; direct and indirectlabor or contractor additives; delivery charges; and BNSF additives and overhead, assuch are in effect on the date BNSF prepares the final bill; and taxes, such as applicablesales and use taxes, business and occupation taxes, and similar taxes. BNSF estimatesthe cost for Work on this Project to be $Eigfrty Three Thousand Seven Hundred Forty andNo/100 Dollars ($43,2+01, but said estimate shall not be a limitation on the Work to beperformed or costs and expenses which Agency shall reimburse to BNSF in full.During its performance of the Work pursuant to this Agreement, BNSF will send Agencyprogressive invoices detailing the costs of the Work performed by BNSF. Agency mustreimburse BNSF for completed work within thirty (30) days of the date of the invoice forsuch work. Upon completion of the Work, BNSF will send Agency a detailed invoice offinal costs. Agency must pay the final invoice within ninety (90) days of the date of thefinal invoice. BNSF will assess a finance charge of .033% per day (12o/o per annum) onany unpaid sums or other charges due under this Agreement which are past its creditterms. The finance charge continues to accrue daily until the date payment is receivedby BNSF, not the date payment is made or the date postmarked on the payment. Financecharges will be assessed on delinquent sums and other charges as of the end of themonth and will be reduced by amounts in dispute and any unposted payments receivedby the month's end. Finance charges will be noted on invoices sent to Agency under thissection.l3. Scope of AgreementThe Parties acknowledge that by entering into this Agreement, neither BNSF norAgency are obligated to authorize or participate in the construction of the Project. lfAgency seeks to proceed with development of the Project after the Work is performed,the Project will be subject to further review and approval by BNSF in BNSF's sole2
discretion. BNSF and Agency shall be required to enter into negotiations forconstruction of the Project and other activities on terms acceptable to BNSF.The aforementioned Project is understood to be undertaken, in whole or in part, as partof Agency's proposal to seek to establish and/or maintain a quiet zone in accordance with49 CFR Parl222 ("Quiet Zone"). Agency acknowledges that BNSF does not recommendthe establishment of a Quiet Zone and believes that if not properly accounted for withappropriate safety enhancements, the elimination of the train horn can be detrimental tosafety. The train horn is intended to alert the motoring and pedestrian public of trainmovement and Agency is responsible to use the requirements provided at 49 CFR Part222 as a minimum guideline in any approach to creating a situation where the train hornis eliminated. The work to be performed by BNSF for the Project is not intended to be anendorsement or approval of the use of the Crossing or any facilities or equipment to beinstalled by BNSF for the purposes of establishing or maintaining a Quiet Zone.The design, selection, or provision of signal equipment and other Crossing appurtenancesby BNSF under or subsequent to this Agreement, including the review or adequacy ofany existing equipment or appurtenances, is provided in consideration of the subjectivestandards of BNSF for its railroad purposes only, and shall in no way be construed ordeemed to be a recommendation, condition, direction, opinion, or approval that the plansand specifications or any work intended or completed on the Project is appropriate forany other purpose including AGENCY's use of the Crossing for highway purposes,, isstructurally sound, or that such plans, specifications, or intended or completed work meetapplicable standards, regulations, laws, statutes, local ordinances, and/or building codes.No benefits to Agency or any third party are provided, intended or implied herein. Agencyshall at all times be solely responsible for the adequacy and compliance of all designelements of the Project for highway and other public purposes, and shall waive andrelease BNSF for any and all claims which may or could result from the Work performedhereunder, and if applicable to the fullest extent permitted by law, indemnity and holdBNSF harmless for the same.AGENCY is solely responsible for obtaining regulatory approvals consistent with thisAgreement.AGENCY is solely responsible for establishing, and if approved, maintaining complianceof any Quiet Zone authorized by the FRA, at its sole expense. Any additional work orequipment required to be installed at the Crossing as the result of the establishment of aQuiet Zone shall be at no cost to BNSF.4. DisclaimerBNSF GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY,QUALIry, MERCHANTABILIry, FITNESS FOR ANY PARTICULAR PURPOSE, ORANY OTHER MATTER, OF THE WORK PERFORMED PURSUANT TO THIS3
AGREEMENT OR ANY REPORT OR OTHER DELIVERABLE WHICH BNSF MAYFURNISH TO AGENCY PURSUANT TO THIS AGREEMENT. BNSF SHALL BE IN NOWAY RESPONSIBLE FOR THE PROPER RELIANCE UPON, INTERPRETATION OF,OR OTHER USE OF THE WORK BY AGENCY.lN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executedas of the day and year first written above.City of KentBNSF Railway GompanyBy:NameName:Manager Public ProjectsBy:4Dana RalphCheryl Townlian_-------------------------------Assistant Director of Public Projects
ApprovalOriginator:Department:
Date Sent:Date Required:
Authorized to Sign:
Director or Designee Mayor
Date of Council Approval:
Grant? Yes No
Type:Review/Signatures/RoutingDate Received by City Attorney:
Comments:
Date Routed to the Mayor’s Office:
Date Routed to the City Clerk’s Office:Agreement InformationVendor Name:Category:
Vendor Number:Sub-Category:
Project Name:
Project Details:
Agreement Amount:
Start Date:
Basis for Selection of Contractor:
Termination Date:
Local Business? Yes No*
Business License Verification: Yes In-Process Exempt (KCC 5.01.045)
If meets requirements per KCC 3.70.100, please complete “Vendor Purchase-Local Exceptions” form on Cityspace.
Notice required prior to disclosure?
Yes No
Contract Number:
Agreement Routing Form
For Approvals, Signatures and Records Management
This form combines & replaces the Request for Mayor’s Signature and Contract Cover Sheet forms.
(Print on pink or cherry colored paper)
Visit Documents.KentWA.gov to obtain copies of all agreementsadccW22373_1_20
Budget Account Number:
Budget? Yes No
Dir Asst:
Sup/Mgr:
Dir/Dep:
rev. 200821
FOR CITY OF KENT OFFICIAL USE ONLY
(Optional)
* Memo to Mayor must be attached
1
PRELIMINARY ENGINEERING SERVICES AGREEMENT
FOR QUIET ZONE PROJECTS
BNSF File No.: BF10017830
Mile Post 14.186 – 17.090
Line Segment 0051
U.S. DOT:
085625H S 212th St
085629K E James St
085633A E Smith St
085636V E Meeker St
085637C E Gowe St
085639R E Titus St
085640K Willis St (SR-516)
085642Y S 259th St
Seattle Subdivision
This Agreement (“Agreement”), is executed to be effective as of _________________
(“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware
corporation (“BNSF”) and the City of Kent, a political subdivision of the State of
Washington (“Agency”).
RECITALS
WHEREAS, BNSF owns and operates a line of railroad in and through the City of Kent,
State of Washington;
WHEREAS, Agency has stated its intention to proceed initially with a project to implement
crossing modifications in order to establish a Quiet Zone through the downtown Corridor
which will include S 212 St, E James St, E Smith St, E Meeker St, E Gowe St, E Titus St,
Willis St/SR 516, and S 259th St (the “Project”);
WHEREAS, Agency has requested that BNSF perform certain engineering services with
respect to its railroad facilities located at or near the Project site to facilitate Agency’s
evaluation of the feasibility of proceeding with the Project (the “Work”);
WHEREAS, BNSF is agreeable to performing the Work, subject to the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
2
1.Scope of Work.
As used herein, the term “Work” includes all work performed by BNSF pursuant to this
Agreement, whether performed by BNSF employees or by BNSF’s contractors,
consultants or other agents, including, but not necessarily limited to, on-site visits,
preliminary engineering services, developing cost estimates for construction of the
Project, and reviewing and/or providing comments on preliminary layouts or other
designs, plans, and/or documents in connection with the Project.
2.Payment for Work.
Agency authorizes BNSF to proceed with the Work relating to the Project. Agency shall
pay and reimburse BNSF for all actual costs and expenses that BNSF incurs in performing
the Work, including but not limited to, labor, supplies, and material; direct and indirect
labor or contractor additives; delivery charges; and BNSF additives and overhead, as
such are in effect on the date BNSF prepares the final bill; and taxes, such as applicable
sales and use taxes, business and occupation taxes, and similar taxes. BNSF estimates
the cost for Work on this Project to be _________________ ($_______________), but
said estimate shall not be a limitation on the Work to be performed or costs and expenses
which Agency shall reimburse to BNSF in full.
During its performance of the Work pursuant to this Agreement, BNSF will send Agency
progressive invoices detailing the costs of the Work performed by BNSF. Agency must
reimburse BNSF for completed work within thirty (30) days of the date of the invoice for
such work. Upon completion of the Work, BNSF will send Agency a detailed invoice of
final costs. Agency must pay the final invoice within ninety (90) days of the date of the
final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on
any unpaid sums or other charges due under this Agreement which are past its credit
terms. The finance charge continues to accrue daily until the date payment is received
by BNSF, not the date payment is made or the date postmarked on the payment. Finance
charges will be assessed on delinquent sums and other charges as of the end of the
month and will be reduced by amounts in dispute and any unposted payments received
by the month’s end. Finance charges will be noted on invoices sent to Agency under this
section.]
3.Scope of Agreement
The Parties acknowledge that by entering into this Agreement, neither BNSF nor
Agency are obligated to authorize or participate in the construction of the Project. If
Agency seeks to proceed with development of the Project after the Work is performed,
the Project will be subject to further review and approval by BNSF in BNSF’s sole
Forty Thousand Dollars 40,000
3
discretion. BNSF and Agency shall be required to enter into negotiations for
construction of the Project and other activities on terms acceptable to BNSF.
The aforementioned Project is understood to be undertaken, in whole or in part, as part
of Agency’s proposal to seek to establish and/or maintain a quiet zone in accordance with
49 CFR Part 222 (“Quiet Zone”). Agency acknowledges that BNSF does not recommend
the establishment of a Quiet Zone and believes that if not properly accounted for with
appropriate safety enhancements, the elimination of the train horn can be detrimental to
safety. The train horn is intended to alert the motoring and pedestrian public of train
movement and Agency is responsible to use the requirements provided at 49 CFR Part
222 as a minimum guideline in any approach to creating a situation where the train horn
is eliminated. The work to be performed by BNSF for the Project is not intended to be an
endorsement or approval of the use of the Crossing or any facilities or equipment to be
installed by BNSF for the purposes of establishing or maintaining a Quiet Zone.
The design, selection, or provision of signal equipment and other Crossing appurtenances
by BNSF under or subsequent to this Agreement, including the review or adequacy of
any existing equipment or appurtenances, is provided in consideration of the subjective
standards of BNSF for its railroad purposes only, and shall in no way be construed or
deemed to be a recommendation, condition, direction, opinion, or approval that the plans
and specifications or any work intended or completed on the Project is appropriate for
any other purpose including AGENCY’s use of the Crossing for highway purposes,, is
structurally sound, or that such plans, specifications, or intended or completed work meet
applicable standards, regulations, laws, statutes, local ordinances, and/or building codes.
No benefits to Agency or any third party are provided, intended or implied herein. Agency
shall at all times be solely responsible for the adequacy and compliance of all design
elements of the Project for highway and other public purposes, and shall waive and
release BNSF for any and all claims which may or could result from the Work performed
hereunder, and if applicable to the fullest extent permitted by law, indemnity and hold
BNSF harmless for the same.
AGENCY is solely responsible for obtaining regulatory approvals consistent with this
Agreement.
AGENCY is solely responsible for establishing, and if approved, maintaining compliance
of any Quiet Zone authorized by the FRA, at its sole expense. Any additional work or
equipment required to be installed at the Crossing as the result of the establishment of a
Quiet Zone shall be at no cost to BNSF.
4. Disclaimer
BNSF GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY,
QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR
ANY OTHER MATTER, OF THE WORK PERFORMED PURSUANT TO THIS
4
AGREEMENT OR ANY REPORT OR OTHER DELIVERABLE WHICH BNSF MAY
FURNISH TO AGENCY PURSUANT TO THIS AGREEMENT. BNSF SHALL BE IN NO
WAY RESPONSIBLE FOR THE PROPER RELIANCE UPON, INTERPRETATION OF,
OR OTHER USE OF THE WORK BY AGENCY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first written above.
City of Kent BNSF Railway Company
By: ____________________________ By: _____________________________
Name: __________________________ Name: __________________________
Mayor Manager Public Projects
Accepted and effective this ___day of ______________, 2021.
Dana Ralph
22nd February