Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. 2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF. 3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061 5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action. 6. Pursuant to this section and Article II, Section 6 herein, Agency must, reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes). 7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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. 8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 and must state the time that construction activities will begin. 9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project: (a) Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. and the sidewalk. (b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the signs and markings or other requirements of the MUTCD. (c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF. (d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. (e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement. 10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations. 11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement. 12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party. 13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void. 14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads, ) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that which is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City Xxxxx Xxxxxxx Director of Olathe c/o Xxxxxx Xxxxxxxxx Public Works 0000 X. Xxxxxxxx XX Xxxx Xxxxx Drive OlatheBurleson, KS 66061TX 76028-4296
5. Agency must supervise and inspect the operations of all Agency contractors to ensure assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSFthe BNSF railroad. If BNSF determines that proper supervision and inspection are is not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx Xxxxx Xxxxxxx (Director of Public Works) for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, 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 under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes)Agreement.
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy GuideHighway 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.
8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 numbers 020664T and 020460G and D.O.T. Crossing No. 020664T and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. the XX Xxxxxxx Boulevard roadway and the sidewalk.
(b) Agency will maintain the signs own and pavement markings be fully responsible for repairs, maintenance, and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the signs and markings or other requirements future replacement of the MUTCD.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's rightend-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties road barricades located at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061closed County Road 921 crossing located a milepost 331.33.
Appears in 1 contract
Samples: Grade Crossing Construction and Maintenance Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject subje DocuSign Envelope ID: DE665F38-F863-42E5-BB29-D5B1B6902180 any such changes or modifications. ct to BNSF's written approval prior to the commencement of any such changes or modifications.of
2. The work hereunder must be done in accordance with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: :
(i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, ,
(ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City Xxxxxxxx Xxxxxxxxx, X.X. Xxxxxx County Director of Olathe c/o Xxxxxx Engineering 0000 Xxxxxxxxx 0000 X. Xxxxxxxx Drive OlatheXxx., KS 66061Xxxxx 000 XxXxxxxx, TX 75071 Email: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. and the sidewalk.
(b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the signs and markings or other requirements of the MUTCD.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Overpass Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval written acceptance prior to the commencement of any such changes or modificationsmodifications from the Manager of Public Projects.
2. The work hereunder must be done in accordance with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads, ) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. BNSF will contribute a not to exceed amount of Three Million and Eight Hundred and Ten Thousand and No/100 Dollars $3,810,000 (hereinafter referred to as "BNSF's Share") towards the total actual costs of the Project. BNSF’s Share will be based on the costs for preliminary engineering, right-of-way and construction within the following limits;
(a) Where a grade crossing is eliminated by grade separation, the structure and approaches required to transition to a theoretical highway profile which would have been constructed if there were no railroad present, for the number of lanes on the existing highway and in accordance with the current design standards of the appropriate state highway agency; and
(b) Where another facility, such as a highway or waterway, requiring a bridge structure is located within the limits of a grade separation project, the estimated cost of a theoretical structure and approaches as described in 23 CFR 646.210(c)
(1) to eliminate the railroad-highway grade crossing without considering the presence of the waterway or other highway. Additionally, local and state funds will be used in the construction of the Project. The total actual cost of construction for the Project is presently estimated to be $111,000,000 more particularly described (together with BNSF’s Share) on Exhibit G attached hereto and incorporated herein.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF’s Share as set forth in Article IV, Section 6 herein. BNSF’s Share must be paid upon completion of the Project. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding.
78. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
89. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will 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: 000 000-0000). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 D.O.T. Crossing No. 026519P and must state the time that construction activities will begin.
911. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for 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. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, maintenance, future construction or reconstruction BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for the costs of Church St. and the sidewalk.
maintenance performed by BNSF pursuant to this subsection (b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claimsmust, damages or losses, in whole or in part, caused by or due to the at Agency’s failure to maintain sole cost and expense, keep the signs Structure painted and markings or other requirements of the MUTCDfree from graffiti.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Overpass Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's written approval prior to the commencement of any such changes or modificationsmodifications from the Xxxxx Xxxxxxxx.
2. The work hereunder must be done in accordance with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction of the Project (within or adjacent to its operating right- right-of-way). BNSF’s right to stop construction under this Section shall not apply to any other construction projects undertaken by the Agency. Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. Intentionally left blank.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
78. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
89. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year, unless otherwise agreed. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 000 000-0000). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 D.O.T. Crossing No. Pending and must state the time that construction activities will begin.
911. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for 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. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, maintenance, future construction or reconstruction BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for its actual costs of Church St. and the sidewalkmaintenance performed by BNSF pursuant to this subsection (a).
(b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claimsmust, damages or losses, in whole or in part, caused by or due to the at Agency’s failure to maintain sole cost and expense, keep the signs Structure painted and markings or other requirements of the MUTCDfree from graffiti.
(c) Agency will do nothing must provide BNSF with any and permit nothing all necessary permits and maintain roadway traffic controls, at no cost to be done in BNSF, whenever requested by BNSF to allow BNSF to inspect the maintenance of Church St. and the sidewalk, which will interfere with Structure or endanger facilities of BNSFto make emergency repairs thereto.
(d) It is expressly understood by Agency and BNSF that any right of Agency to install utilities on or within the Structure or BNSF’s right of way will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding Agency will periodically inspect the preceding provisionstructure and conduct periodic maintenance including such items as minimizing creature nesting, if in addition to ODOTs NBI bridge inspections.
(f) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs (i) alterations or modifications to the Structure, or (ii) any regulations, ordinances, acts, rules maintenance or other laws subsequently passed work on the Structure with heavy tools, equipment or amended by machinery at ground surface level horizontally within 25’-0” of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or any other governmental or legislative authority increase its contractors and/or agents must procure and maintain the Agency’s portion of maintenance cost under this Agreementfollowing insurance coverage, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same which may be revised changed from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well : Railroad Protective Liability insurance naming only BNSF as the State Insured with coverage of Kansas at least $5,000,000 per occurrence and $10,000,000 in the Federal Highway Administration, aggregate. The policy shall 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 a period of one (1) year from the date of the final punitive damages. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to BNSF invoice prior to performing any work or services under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Overpass Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF’s Share as set forth in Article IV, Section 6 herein. BNSF’s Share must be paid upon completion of the Project.
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 <%Xxxxxx.Xxxxxxxxx.XX%> and must state the time that construction activities will beginD.O.T. Crossing No.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. and the sidewalkroadway, including the portion of roadway located between the tracks.
(b) Agency will maintain the elevation of the roadway approaches to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a distance measured thirty (30) feet from the nearest rail..
c) Agency will maintain the advanced railroad crossing warning signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.
(cd) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061the
Appears in 1 contract
Samples: Grade Crossing Construction and Maintenance Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties PARTIES hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.
3. Agency COUNTY must require its contractor(s) to reasonably adhere to the ProjectImprovement project's construction schedule for all Project Improvement work. The parties PARTIES hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties PARTIES mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project Improvements if any of the following events take place: (i) Agency COUNTY (or any of its contractors) performs the Project Improvements work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency COUNTY (or any of its contractors), in BNSF’s opinion, prosecutes the Project Improvements work in a manner that is hazardous to BNSF 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 ProjectImprovements; or (iv) Agency COUNTY fails to pay BNSF for the Temporary Construction License Easements or the Permanent Easement pursuant to Article II, Section 1 of as required by this AgreementAgreement and / or applicable laws. The work stoppage will continue until all necessary actions are taken by Agency COUNTY or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate suspend all work on and occupancy of the Temporary Construction License easement areas by COUNTY or the EasementCITY, its contractors and other agents until COUNTY or CITY remedies such breach. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the ProjectImprovements, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
5. Agency COUNTY must supervise and inspect the operations of all Agency COUNTY contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency COUNTY personnel at any time during construction of the ProjectImprovements, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project Improvements will not proceed until Agency COUNTY corrects the situation to BNSF’s reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency COUNTY must, out of funds made available to it for the construction of the Improvements, reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
7. All expenses detailed in statements sent to Agency COUNTY pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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 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 Improvements even though such work may have preceded the date of this Agreement.
8. The construction of the Project Improvements will not commence until Agency COUNTY gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 BF10015565 and D.O.T. Crossing No. 095636X and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF BNSF, the COUNTY, and the Agency CITY agree to the following terms upon completion of construction of the ProjectImprovements:
(a) Agency COUNTY and CITY will each own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. the COUNTY ROADS and the sidewalkCITY ROADS, respectively.
(b) Agency COUNTY and CITY will each maintain the elevation of the roadway approaches on the COUNTY ROADS and CITY ROADS respectively to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a distance measured thirty (30) feet from the nearest rail.
(c) COUNTY will maintain the advanced railroad crossing warning signs and pavement markings on the COUNTY ROADS and agrees to hold harmless and indemnify BNSF for any portion of claims, damages or losses, in whole or in part, caused lossescaused by or due to the AgencyCOUNTY’s failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSFMMUTCD.
(d) It is expressly understood CITY will maintain the advanced railroad crossing warning signs and pavement markings on the CITY ROADS and agrees to hold harmless and indemnify BNSF for any portion of claims, damages or losses caused by Agency or due to the CITY’s failure to maintain the advanced warning signs and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules markings or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts requirements of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this AgreementMMUTCD.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Grade Crossing Construction and Maintenance Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval written acceptance prior to the commencement of any such changes or modificationsmodifications from the Manager of Engineering and Manager of Public Projects.
2. The work hereunder must be done in accordance with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads, ) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. BNSF will contribute a not to exceed amount of Four Million and Ninety Thousand and No/100 ($4,090,000.00) (hereinafter referred to as "BNSF's Share") towards the total actual costs of the Project. BNSF’s Share will be based on the costs for preliminary engineering, right- of-way and construction within the following limits;
(a) Where a grade crossing is eliminated by grade separation, the structure and approaches required to transition to a theoretical highway profile which would have been constructed if there were no railroad present, for the number of lanes on the existing highway and in accordance with the current design standards of the appropriate state highway agency; and
(b) Where another facility, such as a highway or waterway, requiring a bridge structure is located within the limits of a grade separation project, the estimated cost of a theoretical structure and approaches as described in 23 CFR 646.210(c)
(1) to eliminate the railroad-highway grade crossing without considering the presence of the waterway or other highway. Additionally, local and state funds will be used in the construction of the Project. The total actual cost of construction for the Project is presently estimated to be $106,500,000, more particularly described (together with BNSF’s Share) on Exhibit H attached hereto and incorporated herein.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF’s Share as set forth in Article IV, Section 6 herein. BNSF’s Share must be paid upon completion of the Project. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding.
78. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
89. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will 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: 000 000-0000). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 D.O.T. Crossing No. 026519P and must state the time that construction activities will begin.
911. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for 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. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, maintenance, future construction or reconstruction BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for the costs of Church St. and the sidewalk.
maintenance performed by BNSF pursuant to this subsection (b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claimsmust, damages or losses, in whole or in part, caused by or due to the at Agency’s failure to maintain sole cost and expense, keep the signs Structure painted and markings or other requirements of the MUTCDfree from graffiti.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Overpass Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. ) All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. ) The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.
3. ) Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. A. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City Xxxxxx Xxxxxxxx Director of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive OlathePublic Works 000 XX Xxxx Xxxxx Road Burleson, KS 66061TX 76028-4296 Email: XXxxxxxxx@xxxxxxxxxx.xxx
5. 4) Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx Xxxxxx Xxxxxxxx for appropriate corrective action.
6. 5) Pursuant to this section and Article II, Section 6 herein, Agency must, 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 under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
7. 6) All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
8. 7) The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 number: BF-20431191 and D.O.T. Crossing No. 020664T and must state the time that construction activities will begin.
9. 8) In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) A. Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. the XX XXXXXXX BOULEVARD roadway and the sidewalksidewalks.
(b) B. Agency will maintain the elevation of the XX XXXXXXX BOULEVARD roadway and sidewalk approaches to match the elevation on the railroad track crossing surfaces.
C. Agency will maintain the advanced railroad crossing warning signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.
(c) D. Agency will do nothing and permit nothing to be done in the maintenance of Church St. the XXXXXX STREET roadway and the sidewalksidewalks, which will interfere with or endanger facilities of BNSF.
(d) E. It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(e) F. BNSF will, at its sole cost and expense, operate and maintain the Crossing Signal Equipment, Crossing Signal Control House, and the new crossing surfaces, from end-of-tie to end-of-tie, in proper condition.
G. Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. H. If a railway or highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment, Crossing Signal House, or the new crossing surface installed hereunder, the costs for such rearrangement, relocation or alteration will be the responsibility of the party requesting such changes.
I. If the Crossing Signal Equipment and/or Crossing Signal House installed hereunder cannot, through age, be maintained, or by virtue of its obsolescence, requires replacement, the cost of installation of the new crossing signal equipment and/or new crossing signal house will be negotiated by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and applicable Agency at the time of such replacement is warranted.
9) Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1C- 1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. 10) Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas Texas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. 11) The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. 12) In the event construction of the Project does not commence within 12 months two (2) years of the Effective Date, this Agreement will become null and void.
14. 13) Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. 14) To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.applicable
16. 15) This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. 16) Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
Appears in 1 contract
Samples: Grade Crossing Construction and Maintenance Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's written approval prior to the commencement of any such changes or modificationsmodifications from the BNSF Project Manager.
2. The work hereunder must be done in accordance with the Bridge Requirements set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads, ) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that which is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; or (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) Agreement or the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the EasementLicense. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061_ _ _ _ _ _ _ _
5. Agency must supervise and inspect the operations of all Agency contractors to ensure assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSFthe BNSF railroad. If BNSF determines that proper supervision and inspection are is not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. Section intentionally deleted.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, 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 under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes)Agreement.
78. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy GuideHighway 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.
89. The parties mutually agree that no construction activities for the Project, nor future maintenance of the Structure once completed, will 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: 000 000-0000). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 D.O.T. Crossing No. 085719J and must state the time that construction activities will begin.
911. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, and drainage. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, maintenance, future construction or reconstruction BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for the costs of Church St. and the sidewalkmaintenance performed by BNSF pursuant to this subsection.
(b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claimsmust, damages or losses, in whole or in part, caused by or due to the at Agency’s failure to maintain sole cost and expense, keep the signs Structure painted and markings or other requirements of the MUTCDfree from graffiti.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(d) Agency must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals.
(e) Notwithstanding If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs
(i) alterations or modifications to the preceding provisionStructure, if or (ii) any regulations, ordinances, acts, rules maintenance or other laws subsequently passed work on the Structure with heavy tools, equipment or amended by machinery at ground surface level horizontally within 25’-0” of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or its contractors and/or agents must procure and maintain the following insurance coverage: Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 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 governmental endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railroad prior to performing any work or legislative authority increase the Agency’s portion of maintenance cost services under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Overpass Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe Wichita c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive OlatheXxxx Xxxxxx, KS 66061PE 455 N. Main, 7th Floor - Engineering Xxxxxxx, XX 00000
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx Xxxx Xxxxxx for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 BF10015499 and D.O.T. Crossing No. 670129A and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church the 17th St. sidewalk, excluding the portion of crossing surface located between the tracks and two (2) feet outside of the sidewalktracks.
(b) Agency will maintain the elevation of the 17th St. sidewalk approaches to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a distance measured thirty (30) feet from the nearest rail.
(c) Agency will maintain the advanced railroad crossing warning signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.
(cd) Agency will do nothing and permit nothing to be done in the maintenance of Church the 17th St. and the sidewalksidewalks, which will interfere with or endanger facilities of BNSF.
(de) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(ef) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
(g) If a railway or highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment, or Crossing Signal House installed hereunder, the costs for such rearrangement, relocation or alteration will be the responsibility of the party requesting such changes.
(h) If any of the Crossing Signal Equipment is partially or wholly destroyed, then such repair and/or replacement costs must be distributed among the parties as follows:
(i) In the event the BNSF’s sole negligence destroys or damages the Crossing Signal Equipment and/or the Crossing Signal House, BNSF must, at its sole cost and expense, replace or repair such Crossing Signal Equipment and/or Crossing Signal House.
(j) In the event the Contractor’s sole negligence destroys or damages the Crossing Signal Equipment and/or the Crossing Signal House, Contractor must reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment and/or Crossing Signal House.
(k) BNSF will operate and maintain, at its expense, the necessary relays and other materials required to preempt the highway traffic control signals with the grade crossing warning devices.
(l) BNSF will operate and maintain, at its expense, the railroad crossing warning devices up to the contact terminals in the interface box.
(m) Agency will own, operate and maintain, at its expense, the highway traffic control signals up to and including connection to the contact terminals in the interface box including all necessary cable and conduit.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (13) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas CityXxxxxx Xxxx, KS 66106 XX 00000 Agency: Public Works Dept. 0000 City of Wichita 000 X. Xxxxxxxx Drive OlatheXxxx Xxxxxxx, KS 66061XX 00000
Appears in 1 contract
Samples: Grade Crossing Construction and Maintenance Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Xx. Xxxxxx Xxxxxx, PE Asst. City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 Engineer 000 X. Xxxxxxxx Drive OlatheXxxx St. #200 Lincoln, KS 66061NE 68521
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx Xxxxxx for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF’s Share as set forth in Article IV, Section 6 herein.
7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
8. The construction of the Project will not commence until Agency gives BNSF's Manager Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 BF10017465 and D.O.T. Crossing No. 074406N and must state the time that construction activities will begin.
9. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of Church St. and the Old Xxxxxx Xx. sidewalk, including the portion of sidewalk located between the tracks.
(b) Agency will maintain the elevation of the Old Xxxxxx Xx. sidewalk approaches to match the elevation on the railroad track crossing surfaces and to be no more than three (3) inches above or six (6) inches below top-of-rail elevation at a distance measured thirty (30) feet from the nearest rail.
(c) Agency will maintain the advanced railroad crossing warning signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency’s failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.
(cd) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the Old Xxxxxx Xx. roadway or sidewalk, which will interfere with or endanger facilities of BNSF.
(de) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
(ef) Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency’s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
(g) In the event the Crossing Signal Equipment is damaged or destroyed by any other cause, Agency must reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment and/or Crossing Signal House.
(h) If the Crossing Signal Equipment and/or Crossing Signal House installed hereunder cannot, through age, be maintained, or by virtue of its obsolescence, requires replacement, the cost of installation of the new crossing signal equipment and/or new crossing signal house will be negotiated by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and applicable Agency at the time of such replacement is warranted.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas Nebraska and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months (1 year) of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas CityXxxx, KS 66106 XX 00000 Agency: Public Works Dept. 0000 City of Lincoln, Nebraska 000 X. Xxxxxxxx Drive OlatheXxxx St. #200 Lincoln, KS 66061NE 68521
Appears in 1 contract
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's written approval prior to the commencement of any such changes or modificationsmodifications from the Xxxxx Xxxxxxxx.
2. The work hereunder must be done in accordance with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx 0000 X. Xxxxxxxx Drive Olathe, KS 66061:
5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction of the Project (within or adjacent to its operating right- right-of-way). BNSF’s right to stop construction under this Section shall not apply to any other construction projects undertaken by the Agency. Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx for appropriate corrective action.
6. Intentionally left blank.
7. Pursuant to this section and Article II, Section 6 herein, Agency must, must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
78. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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.
89. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year, unless otherwise agreed. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 000 000-0000). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period.
10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's file number BF10015210 D.O.T. Crossing No. 977699P and must state the time that construction activities will begin.
911. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) Agency will own and be fully responsible for 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. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, maintenance, future construction or reconstruction BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for its actual costs of Church St. and the sidewalkmaintenance performed by BNSF pursuant to this subsection (a).
(b) Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claimsmust, damages or losses, in whole or in part, caused by or due to the at Agency’s failure to maintain sole cost and expense, keep the signs Structure painted and markings or other requirements of the MUTCDfree from graffiti.
(c) Agency will do nothing must provide BNSF with any and permit nothing all necessary permits and maintain roadway traffic controls, at no cost to be done in BNSF, whenever requested by BNSF to allow BNSF to inspect the maintenance of Church St. and the sidewalk, which will interfere with Structure or endanger facilities of BNSFto make emergency repairs thereto.
(d) It is expressly understood by Agency and BNSF that any right of Agency to install utilities on or within the Structure or BNSF’s right of way will be governed by a separate permit or license agreement between the parties hereto.
(e) Notwithstanding Agency will periodically inspect the preceding provisionstructure and conduct periodic maintenance including such items as minimizing creature nesting, if in addition to ODOTs NBI bridge inspections.
(f) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs (i) alterations or modifications to the Structure, or (ii) any regulations, ordinances, acts, rules maintenance or other laws subsequently passed work on the Structure with heavy tools, equipment or amended by machinery at ground surface level horizontally within 25’-0” of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or any other governmental or legislative authority increase its contractors and/or agents must procure and maintain the Agency’s portion of maintenance cost under this Agreementfollowing insurance coverage, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same which may be revised changed from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well : Railroad Protective Liability insurance naming only BNSF as the State Insured with coverage of Kansas at least $5,000,000 per occurrence and $10,000,000 in the Federal Highway Administration, aggregate. The policy shall 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 a period of one (1) year from the date of the final punitive damages. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to BNSF invoice prior to performing any work or services under this Agreement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Overpass Agreement
Joint Obligations. IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. ) All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications.
2. ) The work hereunder must be done in accordance with the Bridge Requirements set forth on Exhibit A F and the detailed plans and specifications approved by BNSF.
3. ) Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either (BNSF or its related railroads, ) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. ) BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF’s opinion, prosecutes the Project work in a manner that which is hazardous to BNSF 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) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF’s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate exercise all remedies available at law or equity; provided, however, that BNSF will not have termination of the Temporary Construction License or the EasementEasement as a remedy prior to the twenty-fifth (25th) anniversary of the date hereof. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF’s right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: City of Olathe c/o Xxxxxx Xxxxxxxxx Minneapolis Park and Recreation Board 0000 Xxxx Xxxxx Xxxx X. Xxxxxxxx Drive OlatheMinneapolis, KS 66061MN 55411 Attn: Director, Design and Project Management
5. ) Agency must supervise and inspect the operations of all Agency contractors to ensure assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSFthe BNSF railroad. If BNSF determines that proper supervision and inspection are is not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right- right-of-way). Construction of the Project will 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 will immediately notify Xx. Xxxxxxxxx Xxxxxxx Xxxxxxx for appropriate corrective action.
6. Pursuant to this section and Article II, Section 6 herein, Agency must, reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).
7. ) All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, 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. Highway Program
7) The parties mutually agree that no construction activities for the Project, nor future maintenance of the Trail or Associated Structure once completed, will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's preliminary engineering, design, ’s Network Operations Center (telephone number: 000- 000-0000). The parties hereto mutually understand and contract preparation costs described in agree that trains cannot be subjected to delay during this time period.
8) Subject to the restrictions imposed by Article IIIV, Section 2 herein are part of 9 above, the costs of the Project even though such work may have preceded the date of this Agreement.
8. The construction of the Project will not commence until Agency gives BNSF's ’s Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's ’s file number BF10015210 BF-20277660 and D.O.T. Crossing No. 980832V and must state the time that construction activities will begin.
9. ) In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and the Agency agree to the following terms upon completion of construction of the Project:
(a) A. BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, any access gates installed pursuant to the Project, railroad drainage, and all other railroad facilities.
B. Agency will own and be fully responsible for repairsmaintain, maintenanceat its sole cost and expense, future construction or reconstruction of Church St. the Trail, lighting, drainage and the sidewalkany access roadways to BNSF gates installed pursuant to this Agreement.
(b) C. Agency will maintain the signs and pavement markings and agrees to hold harmless and indemnify BNSF for any claimsmust, damages or losses, in whole or in part, caused by or due to the at Agency’s failure to maintain sole cost and expense, keep the signs Trail and markings or other requirements of the MUTCDAssociated Structure free from graffiti.
(c) Agency will do nothing and permit nothing to be done in the maintenance of Church St. and the sidewalk, which will interfere with or endanger facilities of BNSF.
(d) D. It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.
E. Agency must keep the Trail, Associated Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals.
F. If Agency (eincluding its contractors and agents) Notwithstanding performs (i) alterations or modifications to the preceding provisionTrail or Associated Structure, if or (ii) any regulations, ordinances, acts, rules maintenance or other laws subsequently passed work on the Trail or amended by Associated Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25’-0” of the centerline of the nearest track, then Agency or any other governmental or legislative authority increase its contractors and/or agents must procure and maintain the Agency’s portion of maintenance cost under this Agreement, BNSF will receive following insurance coverage:
i) Railroad Protective Liability insurance naming only the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency’s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.
10. Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, Railroad as the same may Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy must be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.issued on a standard ISO form CG 00 35 10 93 and include the following:
11. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one (1) year from Endorsed to include the date of Pollution Exclusion Amendment (ISO form CG 28 31 10 93) (2) Endorsed to include the final BNSF invoice under this AgreementLimited Seepage and Pollution Endorsement.
12. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.
13. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.
14. Neither termination nor expiration of this Agreement will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration.
15. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.
16. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.
17. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager Public Projects 0000 Xxxxxx Xxx. Kansas City, KS 66106 Agency: Public Works Dept. 0000 X. Xxxxxxxx Drive Olathe, KS 66061
Appears in 1 contract
Samples: Underpass Agreement
