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RES 2004-1407 - Memorandum of understanding with Burlington Northern and Santa Fe Railwayfor remediation of sewer and erosion problems in 19th and Atlas Sts neighborhood �pMAHA,NFd �� `,� • RECEIVED Public Works Department <j �,�� � '� ?�9 Omaha/Douglas Civic Center t C� 014- r,® fl ; r a; November 9, 2004 1819 Famam Street,Suite 601 °� • . . {T" (�'t r •• Omaha,Nebraska 68183-0601 ry CITY`� 4�i-i.- 1��i oR FESRVt� (402)444-5220 (�i A H t, l i E B R M S l A Telefax(402)444-5248 Cityt Es of Omaha t',, Norm Jackman,P.E. Mike Fahey,Mayor Acting Public Works Director Honorable President and Members of the City Council, Transmitted herewith is a Resolution approving a Memorandum of Understanding with Burlington Northern and Santa Fe Railway for remediation of sewer and erosion problems in the 9th and Atlas Streets Neighborhood. As part of this MOU the railroad will dismiss a present lawsuit against the City of Omaha and the City of Omaha will also participate in the funding for construction of a retaining wall, which has been estimated by the railroad to cost$472,270.00 The cost of the retaining wall construction will be split equally between the railroad and the City with the City of Omaha's share being $236,135.00. The funds for the City's portion of this project will be paid from the Neighborhood Sewer Renovation Organization 116911, Fund 21124. The Public Works Department requests your consideration and approval of the attached Resolution and Memorandum of Understanding. Respectfully submitted, Referred to City Council for Consideration: 0 _Z7 -0 y orm Jackman, P.E. Date Mayor's Office Date Acting Public Works Director Approved as to Funding: atz, Carol A. Ebdon .4M-0 Date w/& Finance Director P:APW\11381pjm.doc MEMORANDUM OF UNDERSTANDING CITY OF OMAHA,NEBRASKA AND THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY This Memorandum of Understanding between the CITY OF OMAHA, NEBRASKA, a municipal corporation of the State of Nebraska (hereinafter referred to as "the City") and, THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a railroad company (hereinafter referred to as "the Railroad"). The City and the Railroad are hereinafter referred to individually as a"Party" and collectively as "the Parties." WHEREAS, the earthen hill located immediately south of the intersection of 9th and Homer Street in Omaha, Nebraska, has experienced repeated failures which have adversely impacted the City's sewer system,the infrastructure of the Henry Doorly Zoo ("Zoo"), and the Railroad. WHEREAS, the City has hired HGM Associates Inc., a consulting engineering firm, (hereinafter referred to as"the Engineer")to investigate the problem and develop a recommendation. WHEREAS, the Engineer has developed a recommendation to relocate the impacted sewer system from the unstable hill area. The recommendation is entitled"9th and Atlas/Henry Doorly Zoo Evaluation of Sewer System Renovations and Improvements,Final Report Alternative Evaluation" (hereinafter referred to as "the Report"). WHEREAS, the Railroad has investigated and developed a recommendation for the construction of a retaining wall to limit further movement of the hill. WHEREAS,the City is working with deliberate haste to proceed with the Project due to the partial failure of the sewer system and the continued partial failure of the hill. WHEREAS, the City work (hereinafter referred to as "the Project") shall consist of the following components (see attached exhibit): 1. Construction of a separate storm sewer within the 9th and Atlas Street Neighborhood and the Kavan and Arthur Street Neighborhood within the limits of the drainage basin. 2. Construction of a separated sanitary sewer to the Lied Jungle in the Zoo. 3. Construction of a new sanitary sewer through the Zoo to the existing 72-inch sewer located in the center of the Zoo. 4. Construction of a new sanitary sewer lift station near the intersection of Miller Street and Gifford Drive and the construction of a force main sewer from the lift station to a manhole in the intersection of Homer Street and Gifford Drive. 5. Construction of a storm sewer detention basin adjacent to Gifford Drive. 6. Construction of a storm sewer along Gifford Drive to a drop structure. 7. Construction of a storm sewer from the Gifford Drive drop structure to the west end of an existing culvert on the Railroad Gibson Yard. 8. Construction of a junction box with inlets at the connection to the culvert. 9. Cleaning and possible lining of the culvert under Gibson yard. A new culvert will be bored adjacent to the existing culvert if existing culvert is not usable. 10. Construction of a junction box with inlets at the east side of Gibson yard where the culvert discharges to another culvert under Gibson Road. 11. Use of the existing 48-inch sewer and construction of a new storm sewer across the Syngenta property. 12. Abandonment of the existing sewer system within the unstable hillside. 13. Extension of the Railroad sanitary sewer force main from the existing 8-inch sewer in the hillside to the new sanitary sewer on Gifford Drive. 14. Relocation of the termination point of the Syngenta sanitary sewer force main from , the connection to the existing 36-inch sewer to the existing 12-inch sewer. 15. Cease use of the 36-inch sewer from the west edge of Gibson Yard to the Homer Street Diversion Structure at the Missouri River. 16. Design and construction of a retaining wall at the base of the hill by the Railroad. WHEREAS, the proposed improvements will require cooperation between both Parties. NOW, THEREFORE, IN CONSIDERATION of the foregoing recitals, the Parties hereby agree as follows: 1. The City will provide for the design and construction of the sanitary and storm sewer improvements listed previously as Items Nos. 1 - 15 without cost to the Railroad. 2. The City of Omaha plans to install a temporary relief sewer to the south down Gifford Drive by July 2004, which would temporarily reroute some of the sewage flow from the hillside. If for some reason this option can not be installed or fails to function properly, the City reserves the following as a section option:The Railroad shall provide access and approval for the immediate installation by the City of Omaha of a temporary sewer line(maximum 12-inch diameter)down the hillside and running along the base of the hill including a tap connection into the existing 36-inch sewer. This temporary bypass sewer shall remain in effect until the proposed project is constructed as stated in Item Nos. 1 -15,and under no circumstances for more than one-year from the date of this agreement. The cost of the installation and maintenance of the temporary sewer line is strictly the responsibility of the City of Omaha. 3. The Railroad will provide access to Gibson Yard for design purposes including surveying and inspection, and for maintenance of the temporary sewer line (if installed). City employees and any City contracted personnel shall comply with all of the Railroad safety requirements and shall notify the designated representative prior to entering the Yard. -2- 4. The City will provide for the cleaning and the inspection of the existing culvert under the Yard for the proposed use as a City storm sewer. 5. The City will include, if necessary, the lining of portions of the culvert. 6. If the existing-culvert is cleaned and determined unusable (even if lined) due to structural integrity or capacity,then the Railroad shall allow the City to bore and jack a new pipe under the Railroad property and tracks provided plans for the same are provided to the Railroad before such work begins and approved by the Railroad. If this option is necessary and approved by the Railroad, the Railroad will provide temporary construction and permanent right-of-way easements along the pipe route at no cost to the City of Omaha, with the exception of Staubach Administrative expense which the City shall pay. 7. -" The Engineer will meet with the Railroad to review construction access and safety requirements to be included in the construction documents. 8. The City will provide copies of the construction plans and specifications for the Railroad to review. The Railroad will be allowed a period of one month for their review. Review comments will be provided to the Engineer in writing. 9. The Railroad will provide access for the sewer construction items. 10. The City will apply for permits and obtain easements(through Staubach)as required by the Railroad for any portion of the project. All permit fees and flagmen fees related to the project design and construction will be waived by the Railroad; however, the Staubach administrative fees, if any, shall be paid for by the City. 11. Temporary and permanent construction and right-of-way easements for portions of the proposed sewer system running on Railroad property, will be provided by the Railroad through its agent,Staubach,on approved Railroad standard forms,at no cost to the City, except for Staubach Administrative fees. 12. The City, as well as any sewer contractors, will procure and maintain Railroad Protective Liability Insurance, Commercial General Liability Insurance, Business Automobile Insurance, and Workers' Compensation and Employers' Liability Insurance all in accordance with Railroad requirements. 13. The City agrees to incorporate in each prime contract for construction of the Project or the specifications therefore, the provisions as set forth in Exhibits C and C-1 "Contractor Requirements," attached hereto and incorporated herein, including the indemnity obligations referenced therein. 14. The City will assume the maintenance of the culvert upon completion of the storm sewer construction. The Railroad will provide access for periodic maintenance-and inspection. 15. The City will cease use of the 36-inch sewer pipe,which will be abandoned in place by the City. 16. Thereafter, the Railroad will be allowed to use the 36-inch pipe for storm water, provided such use meets the proper National Pollution Discharge Elimination System (NPDES) requirements. 17. The Railroad will provide information on the existing sanitary sewer lift station that serves the yard office including flow records; discharge pipe location and size; -3- electrical service requirements; and pump design curve, horsepower, and pump curves. The Railroad will provide the physical location of the force main within the Railroad property. The Railroad understands that the force main sewer will be out of service for a period of time when switch is made to the new force main. - - 18. The Railroad will construct a retaining wall on the west side of Gibson Yard at the base of the hill as their engineer's recommended method to stabilize the hillside. The retaining wall will be 6'x 2000'with 6'x 10'precast concrete panels and HP 12 x 53 x 18'soldier piles. 19. The City will contribute to the Railroad 50 percent of the cost of construction of the retaining wall, which has been initially estimated by the Railroad to cost $472,270.00. This shall be a one time payment made at substantial completion of the wall. Payment will not be made until the City is provided a detailed breakdown of final costs including labor man-hours & rates, material and equipment. The City shall be informed of any significant design or construction changes and cost increases prior to their implementation, and be allowed time to review and approve these if they so request. 20. The Railroad will be the owner of and responsible for the maintenance of the wall. The Railroad shall also release the City of Omaha from past damages for earth movement and mud cleanup (and dismiss the present lawsuit with prejudice) and from any future liability for the stabilization or movement of the hillside due to any act or omission of the City prior to the date hereof. This Memorandum shall become effective upon its execution by all Parties and shall be • perpetual in duration. ATTEST: CITY OF OMAHA,NEBRASKA /074V )'b-•LI-4-4 ifh2jey ity Clerk of the City of Omaha Date Mike Fahey,Mayor City Omaha Date APPROVED AS TO FORM r uty City Attorney Date • • -4- . _ . . . THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Authorized Representative Representative Date Acct..Vice • esidentEngineering Services APP'OVE a AS TO FORMi AVIA -7 lires B Luers •ate • -5- FORM APPROVED BY VP-LAW EXHIBIT "" CONTRACTOR REQUIREMENTS 1.01 General • • 1.01.01 The Contractor must cooperate with THE BURLINGTON NORTHERN AND SANTA FE 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 • 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". • 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. • 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 and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. • 1.01.06 The Contractor must notify the (Agency) at and Railway's Manager Public Projects, telephone number( ) at least thirty(30)calendar days before commencing any work on Railway Property. Contractors notification to Railway,must refer to Railroad's file • 1.01.07 For any false work above any tracks or any excavations located, whichever is greater, within twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 1 r 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 false work, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any false work, shoring or cribbing. 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 false work 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 Form 0102 Rev.07/04 • 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.contractororientation.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 • 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 Superintendent at ( ) 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 clearances during construction: • 25'-0" Horizontally from centerline of nearest track • 23'-3 1" Vertically above top of rail (Temporary Falsework Clearance may be reduced to 21'-6" subject to Railway and Public Utilities Commission approval) • 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 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the(Agency) and must not be undertaken until approved in writing by the Railway, and until the(Agency) 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. • 1.03.05 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. • 1.03.06 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by (Agency) for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.07 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 Private Crossing Agreement" from the Railway prior to moving his equipment or materials across 2 Form 0102 Rev.07/04 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 at the expense of the Contractor. • 1.03.08 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. • 1.03.09 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 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.contractororientation.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. 1.05 Protection of Railway Facilities and Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (telephone ) 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 and protective services and devices 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 in the opinion of the Railway's Representative it is necessary to safeguard Railway's Property, employees,trains,engines and facilities. • 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. 3 Form 0102 Rev.07/04 • 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, when deemed necessary by the Railway's representative,will be borne by the(Agency) .The estimated cost for one(1)flagger is $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, transportation, meals, lodging and supervision. 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 freight trains per 24-hour period at a timetable speed MPH and passenger trains at a timetable speed of MPH. 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 Railroad'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 4 Form 0102 Rev.07/04 • 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.contractororientation.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 Railroad's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visability 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.) • 1.06.09 The Contractor must not pile or store any materials, machinery 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, where storage of the same will interfere with the sight distances of motorists approaching the crossing. Prior to beginning work, the Contractor must establish a storage area with concurrence of the Railroad'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 MI 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 ( ). 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 5 Form 0102 Rev.07/04 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 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. • 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. 6 Form 0102 Rev.07/04 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 IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/State: 2. Date: Time: County: 3. Temperature: 4. Weather(if non-Railway location: 5. Social Security# -- 6. Name(last,first,mi) 7. Address: 8. City: State: Zip: 9. Date of Birth: and/or Age Gender(if available): 10. (a) Injury: • (b)Body Part: [i.e:(a)Laceration(b)Hand] 11. Description of Accident(To include location,action,result,etc.): 12. Treatment: First Aid Only Required Medical Treatment Other Medical Treatment 13. Dr.Name: 14. Dr.Address:Street: City: St: Zip: 15. Hospital Name: 16. Hospital Address: Street: City: St: Zip: 17. Diagnosis: FAX TO RAILWAY AT(817)352-7595 AND COPY TO RAILWAY ROADMASTER FAX 7 Form 0102 Rev. 07/04 • FORM APPROVED BY VP-LAW EXHIBIT "C-1" Agreement Between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY and the CONTRACTOR THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY Attention:Manager Public Projects Railway File: Agency Project: Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the"Contract") dated , 200� [***Drafter's Note: insert the date of the contract between the Agency and the Contractor here] with [Drafter's Note: insert the name of the Agency here]for the performance of certain work in connection with the following project . Performance of such work will necessarily require contractor to enter THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for [insert Agency name here] (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 Contract, has agreed and does hereby agree with Railway as follows: Section 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 INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. [Note to Drafter: In California, replace the word "INTENTIONAL" in the last sentence with the word "WILLFUL". Further, replace the word "GROSS" in the last sentence with the word "SOLE".] THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S 1 Form 0103 Rev.07/04 LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE BOILER 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 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. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2.TERM This Agreement is effective from the date of the Contract 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. Section 3. INSURANCE Contractor must,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 must 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. Coverage must be purchased on a post 1998 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 must also contain the following endorsements, which must be indicated on the certificate of insurance: • It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. • • The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Any exclusion related to the explosion,collapse and underground hazards must be removed. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy. B. Business Automobile Insurance. This insurance must 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 2 Form 0103 Rev.07/04 C. Workers Compensation and Employers Liability insurance including coverage for,but not limited to: • '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. D. Railroad Protective Liability insurance naming only the Railroad 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 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) • 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 Railroad prior to performing any work or services under this Agreement Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care,custody or control. Contractor's insurance policies through policy endorsement must include wording which states that the policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) must include a severability of interest endorsement and Railroad must be named as an additional insured with respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured must be indicated on the certificate of insurance. Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railroad 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 the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. Contractor should send the certificate(s)to the following address: The Burlington Northern and Santa Fe Railway Company P.O.Box 12010-BN 3 Form 0103 Rev.07/04 Hemet,California 92546-8010 Fax: 909-766-2299 Any insurance policy must be written by a reputable insurance company acceptable to Railroad 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 provide. 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. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Railroad 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 must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to release,defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle, but not require, Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will 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 Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section,Railroad means"Burlington Northern Santa Fe Corporation","The Burlington Northern and Santa Fe Railway Company"and the subsidiaries,successors,assigns and affiliates of each. Section 4. EXHIBIT"C"CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract,and the Contractor Requirements set forth on Exhibit"C"attached to the Contract 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. Section 5. 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 per freight train hour at an average rate of( ) with annual adjustments) per hour per train as determined from Railway's record. 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 4 Form 0103 Rev.07/04 • C-25A CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebraska RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: WHEREAS, the City of Omaha has taken bids on improvements to a sewer line and other elements of the sewer system in the 9th and Atlas Streets neighborhood and by the railroad tracks to prevent further erosion of hill above the Burlington Northern and Santa Fe Railway's (the Railroad) tracks; and, WHEREAS, the construction of a separate storm sewer and other elements within the 9th and Atlas Streets Neighborhood and by the Railroad's tracks will prevent further erosion of the hill above the Railroad's tracks; and, WHEREAS, the City of Omaha and the Railroad has reached an understanding on the elements of the project to prevent further erosion, the elements are described in more detail in the attached Memorandum of Understanding , which by this reference becomes part hereof; and, • WHEREAS, the execution of the Memorandum of Understanding will dismiss a present lawsuit by the Railroad against the City of Omaha; and, WHEREAS, the City of Omaha by executing this Memorandum of Understanding will equally share in the funding (50%) for construction of a retaining wall which has been estimated by the Railroad to cost$472,270.00 with the City's share estimated to be $236,135.00. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: THAT, the Memorandum of Understanding with the railroad for remediation of sewer and erosion problems in the 9th and Atlas Streets Neighborhood and the construction of a retaining wall by the Railroad's tracks is hereby approved. • By Councilmember Adopted City Clerk Approved Mayor • -25A CITY OF OMAHA LEGISLATIVE-CHAMBER Omaha,Nebraska PAGE 2 BE IT FURTHER RESOLVED: t THAT, the Finance Department is authorized to pay the sum of$236,135.00 from the Neighborhood Sewer Renovation Organization 116911,Fund 21124. P:\PW\11382pjm.doc APPROVED AS TO FORM: . //—o?q CITY ATTORNEY DATE 0.4 4,,, paw,1 , By i \ ., - __funcilmember Adopted 40v-9`-- 2004,,4,_—D - --- ' — f's; ,•L• _ ,City Clerk - ////e17 Approved Z - -- ;.� • Mayor c •, . , . . . • , . --• - i :. - • --- .,!.. . :,•,,, . . • '-'c' " <-1- 0 n" A) ,-'• CD - cri-.4 'c6) pp '-'1 m ...,. •-• 1-,• <-1' En ). . . . . 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