25-022.00BNSFRailwaySullivanRdSR290Interchange Docusign Envelope ID:75648782-BD64-4811-AF1 B-6DE930948107
25-022
mormimilis no
19Af2 WA Y
Contract Number: BF-20529857
PRELIMINARY ENGINEERING SERVICES AGREEMENT
Project Review
BNSF File No.: BF-20529857
Mile Post 60.9
Line Segment 45
U.S. DOT Number 066246G
Spokane Subdivision
This Agreement ("Agreement") is executed to be effective as of March ii, 2025
("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware
corporation ("BNSF") and the [Agency Name], a political subdivision of the State of WA
("Agency").
RECITALS
WHEREAS, BNSF owns and operates a line of railroad in and through the City of
Spokane Valley, State of WA; and
WHEREAS, Agency has stated its intention to proceed initially with a project to
reconstruct the Sullivan Road Overpass (the "Project"); and
WHEREAS, Agency has requested that BNSF perform certain preliminary engineering
review services and other Work (defined below) with respect to its railroad facilities
located at or near the Project site to facilitate Agency's evaluation of the feasibility of
proceeding with the Project; and
WHEREAS, BNSF is agreeable to performing the Work, subject to the terms and
conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties contained herein, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
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Docusign Envelope ID 75648782-BD64-4811-AF1 B-6DE930948107
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Contract Number: BF-20529857
1) Scope of Work
As used herein, the term "Work" includes all work performed by BNSF, its employees,
contractors, consultants, or other agents (collectively, the "BNSF Parties") pursuant
to this Agreement, including, but not limited to: (a) conducting on-site visits including
diagnostic evaluations; (b) performing preliminary engineering services; (c)
developing cost estimates for construction of the Project; (d) preparing draft
agreements including legal review; and (e) reviewing and/or providing comments on
preliminary layouts or other designs, plans, and/or documents in connection with the
Project.
2) Payment and Deposit for Work
Agency authorizes BNSF to proceed with the Work relating to the Project. Agency
shall pay and reimburse BNSF for all actual costs and expenses that BNSF incurs in
performing the Work, including without limitation: (a) labor, supplies, and material; (b)
direct and indirect labor and contractor charges including additives; (c) delivery
charges; (d) BNSF's additives and overhead, as such are in effect on the date BNSF
prepares its final billing; and (e) all applicable taxes due, paid, or payable by BNSF on
such products and services, including sales and use taxes, business and occupation
taxes, and similar taxes (collectively, "Actual Costs"). BNSF's estimated cost for
Work on this Project is $30,000.00 ("Estimated Cost"). Any estimate provided by
BNSF for the Work shall not be a limitation on the Work to be performed or the costs
and expenses incurred, which Agency shall reimburse to BNSF in full.
During its performance of the Work pursuant to this Agreement, BNSF will send
Agency progressive invoices no more frequently than once per month detailing the
costs of the Work performed to date. Agency must reimburse BNSF for completed
Work within thirty (30) days of the date of the invoice for such Work. Upon final
completion of the Work, BNSF will send Agency a detailed invoice of final costs.
Agency must pay the final invoice within ninety (90) days of the date of the final
invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on
any unpaid sums or other charges due under this Agreement which are past such
thirty (30) or ninety (90) day terms, as applicable. The finance charge continues to
accrue daily until the date payment is received by BNSF, not the date payment is
made or the date postmarked on the payment. Finance charges will be assessed on
delinquent sums and other charges as of the end of the month and will be reduced by
amounts in dispute and any unposted payments received by the month's end.
Finance charges will be noted on invoices sent to Agency under this section.
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Docusign Envelope ID:75648782-BD64-4811-AF1 B-6DE930948107
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Contract Number: BF-20529857
3) Scope and Limitations of Agreement
The parties acknowledge that entering into this Agreement does not of itself obligate
either BNSF or Agency to participate in the construction of the Project. If Agency
elects to proceed with the Project after the Work is performed, then BNSF and Agency,
as may be applicable, agree to enter into negotiations for appropriate agreements
regarding the construction of the Project and other related activities. Nothing in this
Agreement — including BNSF's performance of the Work — shall obligate BNSF to
enter into any subsequent agreement or otherwise permit the Project except and
subject to any terms and conditions that BNSF may subsequently approve in its sole
discretion.
Notwithstanding anything to the contrary in this Agreement, BNSF's review, approval,
and/or other participation in the Project or any element thereof, including the Work
performed by the BNSF Parties hereunder, are expressly limited to — and are intended
and understood by the parties to be in furtherance of— BNSF's railroad purposes, and
are not in furtherance of Agency's purposes in undertaking the Project. All Work
performed hereunder is intended for use in evaluating the impact of the Project on BNSF's
railroad and the costs to Agency associated therewith. BNSF is providing the Work in
consideration of BNSF's subjective standards for its railroad purposes only.
Consequently, the Work shall in no way be construed or deemed to be BNSF's
recommendation, condition, or direction to Agency, nor shall the Work be construed or
deemed to be BNSF's opinion or approval that the plans and specifications or any work
intended or completed on the Project (a) is appropriate for any other purpose including
highway purposes; (b) is structurally sound; or (c) meets applicable standards,
regulations, laws, statutes, local ordinances, and/or building codes. No benefits to
Agency or any third party are provided, intended, or implied herein. Agency shall at all
times be solely responsible for the adequacy and compliance of all design elements of
the Project for highway and other public purposes. AGENCY SHALL WAIVE ANY
CLAIMS AGAINST BNSF FOR — AND SHALL RELEASE BNSF FROM — ANY AND
ALL CLAIMS WHICH MAY OR COULD RESULT FROM THE WORK PERFORMED
HEREUNDER, AND IF APPLICABLE TO THE FULLEST EXTENT PERMITTED BY
LAW, AGENCY SHALL INDEMNIFY BNSF FOR AND HOLD IT HARMLESS FROM
AND AGAINST ANY SUCH CLAIMS
4) No Right of Entry
Nothing in this Agreement shall be construed as providing Agency or its contractors,
consultants, or other agents any right of entry upon property owned or occupied by BNSF.
Any preliminary engineering or other work required by Agency in connection with the
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Contract Number: BF-20529857
Project necessitating entry upon BNSF's railroad right-of-way shall only be conducted as
authorized by a separate written permit obtained by Agency from BNSF for such entry
("Entry Permit").
The Entry Permit will provide that any on-site visits, including diagnostic evaluations, by
Agency and its parties required for the Project shall be conducted only from adjoining
properties, and Agency shall ensure that no attendees enter or remain on BNSF's right-
of-way, except when using an authorized highway-rail crossing designated for such
purpose.
Agency or its agents must contact BNSF's Manager of Public Projects, Kyle Leatham at
425-210-8084, or BNSF's permitting agent Jones Lang LaSalle Brokerage, Inc. ("JLL")
at http://bnsf.railpermitting.com/ to obtain the required Entry Permit prior to any entry.
5) Disclaimer
BNSF GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY,
QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR
ANY OTHER MATTER, OF OR FOR THE WORK PERFORMED PURSUANT TO THIS
AGREEMENT OR ANY REPORT OR OTHER DELIVERABLE WHICH BNSF MAY
FURNISH TO AGENCY PURSUANT TO THIS AGREEMENT. BNSF SHALL IN NO
WAY BE RESPONSIBLE FOR AGENCY'S PROPER RELIANCE UPON,
INTERPRETATION OF, OR OTHER USE OF THE WORK. BNSF IS NOT A
CONTRACTOR, AGENT, PARTNER, OR JOINT VENTURER OF AGENCY BECAUSE
OF THIS AGREEMENT OR BECAUSE OF BNSF'S PERFORMANCE OF THE WORK.
LIKEWISE, THE BNSF PARTIES WHO MAY ASSIST BNSF IN PERFORMING THE
WORK ARE DOING SO FOR BNSF'S BENEFIT ONLY, AND ARE NOT—AND SHALL
NOT BE DEEMED TO BE — CONTRACTORS, SUBCONTRACTORS, OR AGENTS
OF AGENCY.
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Docusign Envelope ID:75648782-BD64-4811-AF1 B-6DE930948107
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Contract Number: BF-20529857
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first written above.
City of Spokane Valley BNSF Railway Company
T—DocuSiyncd by:
By:"j:11 , By: kk__ SCR
__
1409896E6478488...
Name: John Hohman Name: Richard Scott
City Manager Assistant Director of Public Projects
Accepted and effective this 11 day of March , 2025.
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