IGA FCD & BF-20585383+PEA_MARICOPATRAIL_MCMICKENDAMOUTFALL.PDF

Return to Contracts Branch 
Flood Control District of Maricopa County 
2801 W. Durango Street, Phoenix, AZ 85009 
 
INTERGOVERNMENTAL AGREEMENT 
 
FCD 2025A016 
 
between the 
 
FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, 
and the  
BNSF RAILWAY COMPANY 
BF - 20585383  
 
for the 
 
PRELIMINARY ENGINEERING SERVICES AGREEMENT 
 
 
Approved by the 
BOARD OF DIRECTORS 
of the 
Flood Control District of Maricopa County 
 
 
Agenda Item No.   
Date C-69-26-015-X-00 
 
 
 
DO NOT REMOVE 
THIS COVER IS PART OF THE OFFICIAL DOCUMENT

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PRELIMINARY ENGINEERING SERVICES AGREEMENT 
Project Review 
 
 
BNSF File No.: BF-20585383 
Mile Post 167.3 
Line Segment 7208 
U.S. DOT Number TBD 
Phoenix 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 Flood Control District of Maricopa County, a political 
subdivision of the State of Arizona (“Agency”).  
RECITALS 
WHEREAS, BNSF owns and operates a line of railroad in and through the County of 
Maricopa, State of Arizona; 
WHEREAS, Agency has stated its intention to proceed initially with a project that 
proposes a new trail alignment that crosses beneath and through the US-60 and the 
BNSF Railway by following the McMicken Dam Outlet Channel.(the “Project”) 
WHEREAS, Agency has requested that BNSF perform certain services with respect to its 
railroad facilities located at or near the Project site to facilitate Agency’s evaluation of the 
feasibility of proceeding with the Project (the “Work”);  
WHEREAS, BNSF is agreeable to performing the Work, subject to the terms and 
conditions of this Agreement; 
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: 
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

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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 $17,135 
(“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. 
 
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

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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. 
This Agreement is subject to cancellation by any party pursuant to the provisions of A.R.S. 
Section 38-511. 
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 
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, Rafer Nichols at 
303-480-6586, 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

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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. 
 
 
 
 
 
BNSF Railway Company 
 
By: ____________________________   
 
 
Name: __________________________  
 
Assistant Director Public Project 
 
Accepted and effective this date: __________________

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FLOOD CONTROL DISTRICT OF MARICOPA COUNTY 
A Political Subdivision of the State of Arizona 
 
Recommended by: 
 
 
 
_______________________________ 
Paul Baughman, P.E., CFM                   Date 
Chief Engineer & General Manager 
 
 
 
 
 
 
Approved and Accepted: 
 
 
 
 
 
By:____________________________ 
 
 
Chairman, Board of Directors       Date 
 
 
 
 
 
Attest: 
 
 
 
 
 
By:____________________________ 
 
 
Clerk of the Board                         Date 
 
 
 
The foregoing Agreement FCD 2025A016-BF-20585383 has been reviewed pursuant to 
Arizona Revised Statutes § 11-952, as amended, by the undersigned General Counsel, 
who has determined that it is in proper form and within the powers and authority granted 
to the Flood Control District of Maricopa County under the laws of the State of Arizona. 
 
 
 
____________________________________ 
Flood Control District General Counsel     Date