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HomeMy WebLinkAboutCO 2025-236 - BNSF Railway CompanyContract Number: BF-20600522 1 of 5 PRELIMINARY ENGINEERING SERVICES AGREEMENT Project Review and Diagnostic Evaluation BNSF File No.: BF-20600522 Mile Post 41.236 Line Segment 7608 U.S. DOT Number Pending SCAX San Gabriel Subdivision This Agreement (“Agreement”) is executed to be effective as of _________________ (“Effective Date”), by and between BNSF RAILWAY COMPANY, a Delaware corporation (“BNSF”) and the City of Rancho Cucamonga, a political subdivision of the State of CA (“Agency”). RECITALS WHEREAS, BNSF owns and operates a line of railroad in and through the City of Rancho Cucamonga, State of CA; WHEREAS, Agency has stated its intention to proceed initially with a project to design and construct a new at-grade crossing at 6th Street (the “Project”); 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: City of Rancho Cucamonga CONTRACT NUMBER 2025-236 Docusign Envelope ID: 06F4BDB3-AA83-49B3-8646-D7782A45A7FA December 8, 2025 Contract Number: BF-20600522 2 of 5 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 $50,000 (“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 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. Docusign Envelope ID: 06F4BDB3-AA83-49B3-8646-D7782A45A7FA Contract Number: BF-20600522 3 of 5 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 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 Project necessitating entry upon BNSF’s railroad right-of-way shall only be conducted as Docusign Envelope ID: 06F4BDB3-AA83-49B3-8646-D7782A45A7FA Contract Number: BF-20600522 4 of 5 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, 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. Docusign Envelope ID: 06F4BDB3-AA83-49B3-8646-D7782A45A7FA Contract Number: BF-20600522 5 of 5 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first written above. City of Rancho Cucamonga BNSF Railway Company By: ____________________________ By: _____________________________ Name: __________________________ Name: __________________________ Title: ___________________________ Title: ___________________________ Accepted and effective this __________________________. Docusign Envelope ID: 06F4BDB3-AA83-49B3-8646-D7782A45A7FA City Manager eccox Cheryl Townlian December 8, 2025 Assistant Director of Public Projects Electronic Record and Signature Disclosure Certificate Of Completion Envelope Id: 06F4BDB3-AA83-49B3-8646-D7782A45A7FA Status: Completed Subject: Complete with Docusign: CO 2025-236 Preliminary Engineering Services Agreement.pdf Source Envelope: Document Pages: 5 Signatures: 2 Envelope Originator: Certificate Pages: 5 Initials: 0 Dionisio Martinez AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 2650 Lou Menk Drive Fort Worth, TX 76131 dionisio.martinez@bnsf.com IP Address: 170.49.1.246 Record Tracking Status: Original 12/2/2025 2:53:52 PM Holder: Dionisio Martinez dionisio.martinez@bnsf.com Location: DocuSign Signer Events Signature Timestamp eccox elisa.cox@cityofrc.us City Manager Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 199.201.174.250 Sent: 12/3/2025 1:55:32 PM Viewed: 12/3/2025 3:00:18 PM Signed: 12/3/2025 3:00:57 PM Electronic Record and Signature Disclosure: Accepted: 12/3/2025 3:00:18 PM ID: bd42d402-e37b-498e-8143-cff25727ab96 Cheryl Townlian cheryl.townlian@bnsf.com Assistant Director of Public Projects Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 130.41.226.17 Sent: 12/3/2025 3:00:58 PM Viewed: 12/8/2025 11:04:00 AM Signed: 12/8/2025 11:04:10 AM Electronic Record and Signature Disclosure: Accepted: 11/2/2021 10:50:05 AM ID: 2f1e964d-4d99-4c9b-97af-859402c1bb50 In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp lelani Gnaster lelani.gnaster@cityofrc.us Security Level: Email, Account Authentication (None)Using IP Address: 199.201.174.250 Sent: 12/2/2025 3:00:43 PM Viewed: 12/3/2025 1:55:32 PM Electronic Record and Signature Disclosure: Accepted: 12/3/2025 1:55:32 PM ID: aa76dd10-4283-477e-80c5-ed6631bcc85d Certified Delivery Events Status Timestamp Lelani Gnaster lelani.gnaster@cityofrc.us Security Level: Email, Account Authentication (None)Using IP Address: 199.201.174.250 Sent: 12/8/2025 11:04:11 AM Viewed: 12/8/2025 1:23:36 PM Electronic Record and Signature Disclosure: Accepted: 12/8/2025 1:23:36 PM ID: ed88d72f-a5fe-4027-ad7c-89e8a3860e36 City Clerk clerkcontracts@cityofrc.us Security Level: Email, Account Authentication (None)Using IP Address: 199.201.174.250 Sent: 12/8/2025 1:23:37 PM Viewed: 12/8/2025 5:59:12 PM Electronic Record and Signature Disclosure: Accepted: 12/8/2025 5:59:12 PM ID: c6274e22-a0cb-4205-a659-5afe0b8cb256 Carbon Copy Events Status Timestamp Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 12/2/2025 3:00:43 PM Certified Delivered Security Checked 12/8/2025 5:59:12 PM Signing Complete Security Checked 12/8/2025 11:04:10 AM Completed Security Checked 12/8/2025 5:59:12 PM Payment Events Status Timestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, BNSF Railway Company (Apttus) (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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Electronic Record and Signature Disclosure created on: 7/19/2016 6:49:52 AM Parties agreed to: eccox, Cheryl Townlian, lelani Gnaster, Lelani Gnaster, City Clerk, eccox, Cheryl Townlian, lelani Gnaster, Lelani Gnaster, City Clerk How to contact BNSF Railway Company (Apttus): You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows: To contact us by email send messages to: blaine.rozas@bnsf.com To advise BNSF Railway Company (Apttus) of your new e-mail address To let us know of a change in your e-mail address where we should send notices and disclosures electronically to you, you must send an email message to us at blaine.rozas@bnsf.com and in the body of such request you must state: your previous e-mail address, your new e-mail address. 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