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Contract 41892 (2)
• UPRR Folder No. 2612-56 CITY SECRETARY CONTRACT O. PUBLIC HIGHWAY AT GRADE CROSSING AGREEMENT BETWEN UNION PACIFIC 1ZAILROAD COMPANY AND THE CITY OF FORT WORTH COVERING THE RECONSTRUCTION AND WIDENING OF THE EXISTING MCALISTER ROAD AT -GRADE PUBLIC ROAD CROSSING AT RAILROAD MILE POST 238.77 — FORT WORTH SUBDIVISION DOT NO.: 415-968D IN FORT WORTH, TARRANT COUNTY, TEXAS • ti- `(1t, S'J�' R 1� r , , ` City Original Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA' PUBIIIC UPRR Folder No.: 2612-56 UPRR Audit No.: 258E077 WAY AToGRADE CROSSE\ G AURE HMEN11 McAlister- Road — DOT No. 415-968D Mile Post 238.77 — Fort Worth Subdivision Fort Worth, Tarrant County, Texas THIS AGREEMENT ("Agreement") is made and entered into as of the day of 3%,) , 20 ("Effective Date"), by and between UNION PACI'I A'IIC RAH,ROAD COMPANY, a Delaware corporation, to be addressed at Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179-1690 ("Railroad") and the CITY OF FORT WORTH, a municipal corporation of the State of Texas to be addressed at 1000 Throckmorton Street, Fort Worth, Texas 76102 ("City"), RECI ALS o The City desires to undertake as its project (the "Project") the reconstruction and widening of an existing at -grade public road crossing over McAlister Road, at Railroad Mile Post 238.77, DOT No. 415-968D, on the Railroad's Fort Worth Subdivision Fort Worth, Tarrant County, Texas (the "Crossing Area"). The Crossing Area is shown on the Railroad Location Print marked Exhibit A, and specified on the Detailed Print marked Exhibit Aril, with each exhibit being attached hereto and hereby made a part hereof. The portion of the roadway located within the Crossing Area is the "Roadway." The right of way presently occupied and used by the City for the existing Roadway is not sufficient to allow for the reconstruction and widening of the Roadway. Therefore, under this Agreement, the Railroad will be granting additional rights to the City so that the City can perform the Project work. The portion of Railroad's property that City needs for the reconstructed Roadway (including the right of way area covered under the Original Agreement or a separate document) is shown on the Illustrative Print marked Exhibit A03 and also described in the Legal Description marked Exhibit Apt, with each exhibit being attached hereto and hereby made a part hereof (the "Crossing Area"). The Railroad and the City are entering into this Agreement to cover the above. AGRIH 1-'JiY OAT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: Section 1 I3 The General Terrns and Conditions marked Exhibit part hereof'. are attached hereto and hereby made a 2612-56 City of Fort Worth, TX McAlister Road Page 1 of 7 revised March 4, 2011 Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA' Section 2. RAILROAD GRANTS RIGHT For and in consideration of the sum of TWENTY-THREE THOUSAND HUNDRED THIRTY-NINE DOLLARS DOLLARS ($23,539.00) to be paid by the City to the Railroad upon the execution and delivery of this Agreement and in further consideration of the City' s agreement to perform and comply with the terns of this Agreement including, without limitation, the indemnity agreements set forth in Section 8B, Section 8D and Section 12C of Exhibit B of this Agreement, the Railroad hereby grants to the City the right to construct, maintain and repair the Roadway over and across the Crossing Area. Section 3. DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractoi s and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. Prior to Contractor performing any work within the Crossing Area involving the Project, and any subsequent maintenance or repair work, the City shall require the Contractor to: o execute the Railroad's then current Contractor's Right of Entry Agreement o obtain the then cu;aTent insurance required in the Contractor's Right of Entry Agreement and • provide such insurance policies, certificates, binders and/or endorsements to the Railroad. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit C, attached hereto and hereby made a part hereof. The City confiirus that it will inform its Contractor that it is required to execute such foiin of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Senior Manager - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179-1690 UPRR Folder No. 2612-56 2612-56 City of Fort Worth, TX McAlister Road Page 2 of 7 revised March 4, 2011 Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING A EGI D. If the City's own employees will be performing any of the Project work the City may self - insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. Section 5. FEDERAL AID POLICY GUIDE If the City will be receiving any federal funding for the Project the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD The City agrees that no Project costs and expenses are to be borne by the Railroad In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY RAILROAD; BILLING SENT TO CITY; CITY'S PAYMENT OF BILLS A. As part of this transaction, the Railroad shall provide engineering design review, flagging and other services, if any, described in this Section and in the Estimate (as defined in this Paragraph) for the estimated consideration described in the Estimate. The engineering design review, flagging and other services, if any, are understood and agreed to be services performed by the Railroad for the City, at the City's sole cost and expense and are described in the Raihoad's: Track & Surface Material Estimate marked Exhibit D, dated March 2, 2011 in the amount of $84,472.00; Signal Material Estimate marked Exhibit D-1, dated February 14, 2011, in the amount of $43 774.00; and Engineering & Flagging Estimate marked Exhibit D-2, dated March 2, 2011, in the amount of $50,000.00; each is attached hereto and hereby made a part hereof (collectively the "Estimate"). As set forth in the Estimate, the Railroad's total estimated cost for the Railroad's services associated with the Project is One Hundred Seventy -Eight Thousand Two Hundred Forty -Six Dollars ($178,246.00). B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Raihoad's property within six (6) months from the date of the Estimate. C. The City agrees to reimburse the Railroad within thirty (30) days of its receipt of billing from the Railroad for one hundred percent (100%) of all actual costs incurred by the Railroad for the services provided by the Railroad to the City in connection with the Project including, but not limited to, all actual costs of engineering review (including preliminary engineering review costs incurred by Railroad prior to the Effective Date of this Agreement), construction, inspection, flagging (unless flagging costs are to be billed directly to the Contractor) procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad's standard additive rates. 2612-56 City of Fort Worth, TX McAlister Road Page 3 of 7 revised March 4, 2011 Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMER! D. The City agrees that this Agreement in its entirety is subject to Texas Local Government Code Section 262.007. Section 8. PLANS A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for the Project and the Structure and submit such plans and specifications to the Raihoad's Assistant Vice President Engineering -Design or his authorized representative, for prior review and approval. The plans and specifications shall include all Roadway layout specifications, cross sections and elevations, associated drainage and other appurtenances. B. The fmal one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, are hereinafter referred to as the "Plans' . The Plans are hereby made a part of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D. The Railroad's review and approval of the Plans in no way relieves the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. Section 9. NON -RAILROAD IMPROVEMENTS A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non -railroad owned facilities (the "Non Railroad Facilities") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wirelines communication Imes and fences is required under Section 8 The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineering and Maintenance -of -Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non Railroad Facilities owner or 2612-56 City of Fort Worth, TX McAlister Road Page 4 of 7 revised March 4, 2011 Public HighwayAt-Grade-Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA' operator, or before Railroad and City mutually agree in writing to (i) deem the approved Non Railroad Facilities plans and specifications to be Plans pursuant to Section 8B, (ii) deem the Non Railroad Facilities part of the Structure, and (iii) supplement this Agreement with tet ms and conditions covering the Non Railroad Facilities. Section 10. EFFECTIVE DATE; TERM; TERMINATION A. This Agreement is effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay to the Railroad all actual costs for services provided by the Railroad to the City in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Section 11. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK Neither the City nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and the City have executed this Agreement. (ii) The Railroad has provided to the City the Railroad's written approval of the Plans. (iii) Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements required under the Contractor's Right of Entry Agreement (iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contractor's Right of Entry Agreement. Section 12. FUTURE PROJECTS Future projects involving substantial maintenance, repair reconstruction, renewal and/or demolition of the Roadway shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. Section 13. ASSIGNMENT; SUCCESSORS AND ASSIGNS A. City shall not assign this Agreement without the prior written consent of Railroad. B. Subject to the provisions of Paragraph A above, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Railroad and City. 2612-56 City of Fort Worth, TX McAlister Road Page 5 of 7 revised March 4, 2011 Public HighwayAt-Grade-Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA' Section 14. SPECIAL. PROVISIONS PERTAINING TO AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009. If the City will be receiving American Recovery and Reinvestment Act ("ARRA") funding for the Project, the City agrees that it is responsible in performing and completing all ARRA reporting documents for the Project. The City confirms and acknowledges that Section 1512 of the ARRA provisions applies only to a ' recipient" receiving ARRA funding directly from the federal government and, therefore, (i) the ARRA reporting requirements are the responsibility of the City and not of the Railroad and (ii) the City shall not delegate any ARRA reporting responsibilities to the Railroad. The City also confirms and acknowledges that (i) the Railroad shall provide to the City the Railroad's standard and customary bilhng for expenses incurred by the Railroad for the Project including the Railroad's standard and customary documentation to support such billing and (ii) such standard and customary billing and documentation from the Railroad provides the information needed by the City to perform and complete the ARRA reporting documents. The Railroad confirms that the City and the Federal Highway Administration shall have the right to audit the Railroad's billing and documentation for the Project as provided in this Agreement. Section 15. TERMINATION OF ORIGINAL AGREEMENT Upon the completion of the Roadway, the Original Agreement, (if any), shall terminate and the teniis and conditions of this Agreement shall govern the use, maintenance and repair of the Roadway. 2612-56 City of Fort Worth, TX McAlister Road Page 6 of 7 revised March 4, 2011 Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AM:RIM IM IN WI'I'N ES S WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date first herein written. ATTEST: By I V Date: sct t13z �4v *04®0 pail*o 13/40 ea o 0m.,11 1r0 % J *h '©©oe0 IK ITti MAR \ HENDRIX City Secretary ..S Ik\e22,7ti 0 o -: I 0 o° tc oo id y riZ UNION By PACIFIC RAU- ROAD COMPANY (P�cW'i'al Tax ID #94-6001323) JAMES P. GADE Director Contracts cn1y OF ¥ WORTH BY�✓1-sw..�o �i�---� FERNANDO COSTA Assistant City Manager Date APPROVED AS TO Th1ORM & 'EGA" 'FEY: APP By 'DOUG ,LACK Assistant City Attorney Date: -el-q-L45 4-C-a�1�884 Contract Author i zmtion 510t, 4-5 Date By Date: OVAII J RECOMMENDED: GREG SIMIVIC TS, P. Acting Director Transportation & Public Works Department 2612-56 City of Fort Worth, TX McAlister Road Page 7 of 7 revised March 4, 2011 T® Public Ili t:07147 - ssing s RAILROAD LOCATION PRINT OF AN EXISTING AT —GRADE PUBLIC ROAD CROSSING RECONSTRUCTIOT & WIDENING PROJECT I, II miEtoutotkt_p,G.0,, 1/4�I. \ti ,; htom•--- - y ;1�I ti H 0 0 z rn EMAIN ST1rn 2 DELORME Data use subject to license. © 2007 DeLorme. Street Atlas USA® 2008. www.delorme.com fl r -o r LIEJACRE DR HERTFORD ST KEBLE CDR NE MCSALISTER RD i 1 �L �� �,, Fort Worth Subdivision \\‘\/ V SS 11 ��et 4 ,arc 1 'Vick- j}S "_...il JYy Jl`�, 3E _1›--t, 4. 0 "if:( ,,), 84 SI : N \‘' e../' 7, Y,�tJ 44. FM 1187 1 �� E F-M 1187 et McAllister Road - DOT #415-988D RR MP 238.77Fort Worth Subdivision Existing At -Grade Public Road Crossing Reconstruction & Widening Project OLDHIGHWAY 1187 'i}l ri Jf 1t7 a \\ 3 1 \N` t °1 ,det MN (4.4° E) { • al ALSBURY BLVD Fort Worth Spinks 1000 Data Zoom 13-0 2000 ft RAILROAD WORK TO BE PERFORMED: 1. Re -lay 240-feet of rail; Instal172-feet of concrete road crossing panels; Install 55 cross ties; Install 1 carload of ballast; and other track & surface materials. 2. Relocate one automatic flashing light crossing gate; and other signal facilities. 3. Engineering Design Review & Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY FORT WORTH SUBDIVISION MILE POST 238.77 GPS: N 32° 34.3085', W 97° 19 4760' FORT WORTH, TARRANT CO., TX. Railroad Location Print of an existing at -grade public road crossing reconstructin and widening project with the CITY OF FORT WORTH. Folder No. 2612-56 Date: March 4, 2011 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print T® 1147:,,t..._.„ 1 hee EX. EDGE OF ASPHALT EX. ROW PRELIMINARY EX 21" CULVERT END 7" CURB EX. POWER POLE OVERHEAD ELECTRIC PROP; 'DACE OF CURB PROP. 5' SIDEWALK SPEED LIMIT: 35 mph ADT: 4510 vpd GIN 7" CURB EX. RAIL RO 1111� Icy vow 747 /rail I re ist lumnsmuwai thins .�� llll il irjllt'1`tt c „_ Arcs ~ ^'s l r j^ I t1�'�� AILROAD (1111 PROP, RAILROAD SIGNAL POLE TO BE PLACED 4'3" FROM BACK OF CURB ROP. GHT CO QUIT 30.4 EX. SIGNAL HOUSE TO REMAIN R ROAN MCALISTER ROAD, FORT WORTH TX, RAILROAD EXHIBIT MP. NO. 238.77 FORT WORTH SUB DOT NO. 415-968D GRAPHIC SCALE ORIGINAL PLOTTED SCALE: 1 inch = 30 ft. — EX. ROW EX, RAILROAD SIGNAL POLE TO REMAIN. GATE ARM A EXTENSION REQUIRED. 5t BIKE LANE FEBRUARY 8, 2010 EXHIBIT A EX. POWER. POLE PROP. 5' SIDEWALK PR.P, _FACF OF CURB PROF LIGHT FOUNDATION E EXHIB To Public �or e s cri tii P- Moim • • • McALISTER ROAD IMPROVEMENTS 0.172 ACRES OUT OF THE JOHN STEELE SURVEY, ABSTRACT No. 1381 SARAH GRAY SURVEY, ABSTRACT No. 558 Exhibit "A" Being a 0.172 acre tract of land situated in the John Steele Survey, Abstract No. 1381 and the Sarah Gray Survey, Abstract No. 558, City of Fort Worth, Tarrant County, Texas, said 0 172 acre tract of land being a portion of a tract of land deeded to Union Pacific Railroad Company as recorded in Volume 13215, Page 130 of the Deed Records of Tarrant County, Texas, and being further described in Volume T, Page 2 of said Deed Records of Tarrant County, Texas said 0.172 acre tract of land being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 inch iron rod found for the southwest comer of Lot 1R1, Block 1 of Southwest Industrial Park, an addition to the City of Fort Worth, Tarrant County Texas, as recorded in Cabinet A, Slide 10493 of the Plat Records of Tarrant County, Texas, said 5/8 inch iron rod being the intersection of the east line of said tract of land deeded to Union Pacific Railroad Company with the north right-of-way line of McAlister Road (a variable width right-of- way); THENCE South 08 degrees 23 minutes 56 seconds East with the east line of said tract of land deeded to Union Pacific Railroad Company, a distance of 81.64 feet to a 1/2 inch iron rod with cap stamped "Pacheco Koch" found for the northwest corner of Lot 1, Block A, Gateway Station 2 Addition, an addition to the City of Fort Worth, Tarrant County, Texas, as recorded in Cabinet A, Slide 12207 of said Plat Records of Tarrant County, Texas, said 1/2 inch iron rod with cap stamped ` Pacheco Koch" being the intersection of the east line of said tract of land deeded to Union Pacific Railroad Company with the south right-of-way line of said McAlister Road; THENCE North 89 degrees 00 minutes 30 seconds West a distance of 100.89 feet to a 1/2 inch iron rod with cap stamped "KAZ' found for the northeast corner of Lot 8, Block 1, Misteltoe Hill Phase VIII, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 9892 of said Plat Records of Tarrant County, Texas said 1/2 inch iron rod with cap stamped "KAZ" being the intersection of the west line of said tract of land deeded to Union Pacific Railroad Company with the south right-of-way line of McAlister Road (a 64.0' right-of-way) as recorded in Cabinet A, Slide 8671 of said Plat Records of Tarrant County, Texas; THENCE North 08 degrees 41 minutes 32 seconds West, with the west line of said tract of land deeded to Union Pacific Railroad Company, a distance of 69.09 feet to a 1/2 inch iron rod with cap stamped "1983" found for the southeast corner of a 14.531 acre tract of land (by deed) deeded to FM 1187 Partners L.P. as recorded in County Clerk's File No. D204099980 of said Deed Records of Tarrant County, Texas, said 1/2 inch iron rod with cap stamped `1983 ' being the intersection of the west line of said tract of land deeded to Union Pacific Railroad Company with the north right-of- way line of said McAlister Road; Page 1 of 2 Exhibit A-2 Legal Description THENCE North 83 degrees 50 minutes 36 seconds East, a distance of 99.97 feet to the POINT OF BEGINNING and containing 7,513 square feet or 0.172 acres of land more or less. NOTES: 1) Bearings ale referenced to the Texas Coordinate System, NAD-83, North Central Zone 4202. All distances and areas shown are surface. 2) A plat of even survey date accompanies this legal description. Date: May 11, 2010 Curtis Smith Registered Professional Land Surveyor No. 5494 Page 2 of 2 ~-71.ate OFr Exhibit A-2 Legal Description T® Public I=g [01' • • r�ssing :cscrptt®n ,©Ns AB1RAC1 No. 14.531 ACRES (BY DEED) FM 1187 PARTNERS, L.P. C C.F. No. D204099980 D.R.T.C.T. EXHIBIT "B op`31z 12 Gma 0 ittaa :+ 0 bt' 74 -ti N W- z� o s< N 83°5O'36"E 99.97' 1/2"IRON ROD FOUND APPROX. SURVEY LINE/PROPERTY LINE STAMPED "1983" McALISTER ROAD (64.0' RIGHT-OF-WAY) CABINET A, SLIDE 8671, P.R.T.C.T. N 08°41'32"1V— 69 09' 1/2"CAPPED IRON ROD FOUND STAMPE,P "KAZ" /N 89°00'30°W LOT 5 LOT 6 LOT 7 / 100.89' / LOT 8 C BLOCK 1 0 f S MISTLETOE HILL PHASE VIII 1 o i W v '' Z CABINET A, SLIDE 9892 _-__ rl , n y P.R. T.C.T. SARA" AC1 Na. 55B ABSI R NOTE: A LEGAL DESCRIPTION OF EVEN DATE ACCOMPANIES THIS PLAT LOT 1 RIDU CAS SCUT CABINET A SLID S 08'23'56nE 81.64' McALISTER ROAD (A VARIABLE WIDTH RIGHT-OF-WAY) pARK 0493 APPROX. SURVEY LINE 1/2"CAPPED IRON ROD FOUND STAMPED "PACHECO KOCH" NOTE: BEARINGS ARE REFERENCED TO THE TEXAS COORDINATE SYSTEM, NAD-83, THE NORTH CENTRAL ZONE 4202. ALL DISTANCES AND AREAS SHOWN ARE SURFACE., ORT 7,513 SQ. FT. OR 0.172 ACRES BLOCK AAD�YTTO$ SALOT 1, AY STATI SLj2E 1 DITI GATCArN�T P R.T C IT. 100 50 SCALE IN FEET 100 1000 THROCKMORTON STREET • FORT WORTH, TEXAS 76102 EXHIBIT SHOWING A 0.172 ACRES OF LAND OUT OF A TRACT OF LAND DEEDED TO UNION PACIFIC RAILROAD COMPANY SITUATED IN THE JOHN STEELE SURVEY, ABSTRACT No. 1381 AND THE SARAH GRAY SURVEY, ABSTRACT No. 558, TARRANT COUNTY, TEXAS AS RECORDED IN VOLUME 13215, PAGE 130, VOLUME T, PAGE 2 DEED RECORDS OF TARRANT COUNTY, TEXAS PROJECT: CITY OF FORT WORTH McALISTER ROAD IMPROVEMENTS AREA 7,513 SQUARE FEET OR 0.172 ACRES JOB NO. 0905-3659 DRAWN BY: JPH CAD FILE: 3659 EASEMENT.DWG CURTIS SMITH REGISTERED PROFESSIONAL LAND SURVEYOR DATE: MAY 11, 2010 PAGE 1 OF.1 SCALE: 1" = 100' J10. 5494 GORRONDONA do ASSOCIATES, INC. • 6707 BRENTWOOD STAIR ROAD, SUITE 50 FORT WORTH, TX, 76112 • 817-496-1424 FAX 817-496-1768 Exhibit A-3 Illustrative Print of Legal Description s s ing nails Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA' EXHIBIT B TO PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT TERMS & CONDITIONS SECTION 1 - CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes. In the event the Railroad shall place additional tracks upon the Crossing Area the City, at its sole cost and expense, shall modify the Roadway to conform with all tracks within the Crossing area. C. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or u nrecorded and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of n onparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. D. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, o perate, repair alter, renew and replace tracks, facilities and appurtenances on the property and the right to cross the Crossing Area with all kinds of equipment. E. So far as it lawfully may do so the City will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. F. If any property or rights other than the right hereby granted are necessary for the construction maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. S ECTION 2 - CONSTRUCTION OF ROADWAY A. The City, at its expense will apply for and obtain all public authority required by law, ordinance, rule or regulation for the P roject, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein concerning the Railroad's work involving the Roadway, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper highway warning devices (except those installed by the Railroad within its right of way) and all necessary drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the City shall leave the Crossing Area in a condition satisfactory to the Railroad. C All construction work of the City upon the Railroad s property (including, but not limited to construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering -Design of the Railroad or his authorized representative and in compliance with the Plans and other guidelines furnished by the Railroad Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law Page 1 of 5 Exhibit B Terms & Conditions Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA° D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such delays and agrees that no claims for damages on account of any delay shall be made against the Railroad by the City and/or the Contractor. S ECTION 3 - INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering -Design. S ECTION 4 - RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than Railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis the City shall reimburse the Railroad for the amount of the contract. S ECTION 5 - MAINTENANCE AND REPAIRS A. The City, at its expense, shall maintain, repair and renew or cause to be maintained, repaired and renewed, the entire Crossing Area and Roadway, except the portions between the track tie ends which shall be maintained by and at the expense of the Railroad. B. If, in the future, the City elects to have the surfacing material between the track tie ends, or between tracks if there is more than one railroad track across the Crossing Area replaced with paving or some surfacing material other than timer planking, the Railroad, at the City's expense, shall install such replacement surfacing, and in the future to the extent repair or replacement of the surfacing is necessitated by repair or rehabilitation of the Railroad's tracks through the Crossing Area, the City shall bear the expense of such repairs or replacement. S ECTION 6 — CHANGES IN GRADE If at any time the Railroad shall elect, or be required by competent authority to, raise or lower the grade of all or any portion of the track(s) located within the Crossing Area, the City shall, at its own expense, conform the Roadway with the change of grade of the trackage S ECTION 7 — REARRANGEMENT OF WARNING DEVICES If the change or rearrangement of any warning device installed hereunder is necessitated for public or Railroad convenience or on account of improvements for either the Railroad highway or both, the parties will apportion the expense incidental thereto between themselves by negotiation, agreement or by the order of a competent authority before the change or rearrangement is undertaken. S ECTION 8 - SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured and in order that accidents may be prevented and avoided it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law Page 2 of 5 Exhibit B Terms & Conditions Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERI B. Entry on to Railroad's Property by City. If the City's employees need to enter Railroad's property in order to perform an inspection of the Structure, minor maintenance or other activities, the City shall first provide at least ten (10) working days advance notice to the Railroad Representative. WITH RESPECT TO SUCH ENTRY ON TO RAILROAD'S PROPERTY, THE CITY, TO THE EXTENT PERMITTED BY LAW, AGREES TO RELEASE DEFEND AND INDEMNIFY THE RAILROAD FROM AND AGAINST ANY LOSS, DAMAGE INJURY LIABILITY CLAIM, COST OR EXPENSE INCURRED BY ANY PERSON, INCLUDING, WITHOUT LIMITATION, THE CITY'S EMPLOYEES, OR DAMAGE TO ANY PROPERTY INCLUDING, WITHOUT LIMITATION THE CITY S PROPERTY OR EQUIPMENT (COLLECTIVELY THE "LOSS") THAT ARISES FROM THE PRESENCE OR ACTIVITIES OF CITY'S EMPLOYEES ON RAILROAD'S PROPERTY, EXCEPT TO THE EXTENT THAT ANY LOSS IS CAUSED BY THE SOLE DIRECT NEGLIGENCE OF RAILROAD. C. Flagging. (i) If the City's employees need to enter Railroad's property as provided in Paragraph B above, the City agrees to notify the Railroad Representative at least thirty (30) working days in advance of proposed performance of any work by City in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), orthing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such thirty (30) day notice, the Railroad Representative will determine and inform City whether a flagman need be present and whether City needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill City for such expenses incurred by Railroad. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, City agrees that City is not relieved of any of its responsibilities or liabilities set forth in this Agreement. (ii) The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight -hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension Employees Liability and Property Damage and Administration will be included computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees and may be retroactive as a result of negotiations. or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, City shall pay on the basis of the new rates and charges. (iii) Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is furnished unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though City may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, City must provide Railroad a minimum of five (5) days notice prior to the cessation of the need fora flagman. If five (5) days notice of cessation is not given, City will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee even though flagging is not required for that period. An additional thirty (30) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. D. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises IF ANY FAILURE BY THE CITY TO COMPLY WITH ANY SUCH LAWS, REGULATIONS AND ENACTMENTS SHALL RESULT IN ANY FINE, PENALTY, COST OR CHARGE BEING ASSESSED IMPOSED OR CHARGED AGAINST THE RAILROAD, THE CITY SHALL REIMBURSE AND, TO THE EXTENT IT MAY LAWFULLY DO SO INDEMNIFY THE RAILROAD FOR ANY SUCH FINE, PENALTY, COST, OR CHARGE, INCLUDING WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES. THE CITY FURTHER AGREES IN THE EVENT OF Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law Page 3 of 5 Exhibit B Terms & Conditions Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA* ANY SUCH ACTION, UPON NOTICE THEREOF BEING PROVIDED BY THE RAILROAD, TO DEFEND SUCH ACTION FREE OF COST, CHARGE, OR EXPENSE TO THE RAILROAD. E. No Interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. F. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. G. Suspension of Work. If at any time the City's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. H. Removal of Debris. The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad s property during snow removal from the Crossing Area. I. Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate J. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install andmaintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering -Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad s operations in the vicinity. K. Drainage. The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. L. Notice. Before commencing any work, the City shall provide the advance notice to the Railroad that is required under the Contractor's Right of Entry Agreement. Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law Page 4 of 5 Exhibit B Terms & Conditions Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law BUILDING AMERICA' UNION M. Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City shall telephone the Railroad during normal business hours (7 00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. If it is, City will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. S ECTION 9 - INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City, or by agreement between the parties that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the new or improved devices have been installed. S ECTION 10 - OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. S ECTION 11 - BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City. S ECTION 12 - REMEDIES FOR BREACH OR NONUSE A. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies may perform any work which in the judgment of the Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof B. Nonuse by the City of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the City hereunder. C. The City will surrender peaceable possession of the Crossing Area and the Roadway upon termination of this Agreement. TERMINATION OF THIS AGREEMENT ShALL NOT AFFECT ANY RIGHTS, OBLIGATIONS OR LIABILITIES OF THE PARTIES, ACCRUED OR OTHERWISE, WHICH MAY HAVE ARISEN PRIOR TO TERMINATION. S ECTION 13 - MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations understandings or agreements, whether written or oral, with respect to the work or any part thereof. Public Highway At -Grade -Texas Cities/Counties 05/24/10 Standard Form Approved, AVP-Law Page 5 of 5 Exhibit B Terms & Conditions air et1 n e Gmtracto July 23, 2010 To the Contractor: UPRR Folder No.: 2612-56 Before Union Pacific Railroad Company can peiinit you to perform work on its property for the reconstruction and widening of the existing McAlister Road at -grade public road crossing, it will be necessary for you to complete and execute two originals of the enclosed Contractor's Right of Entry Agreement. Please• 1. Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Right of Entry Agreement If a corporation, give the state of incorporation If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3. Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Right of Entry Agreement If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Execute and return all copies of the Contiactor's Right of Entry Agreement together with your Certificate of Insurance as required in Exhibit B, in the attached, self-addressed envelope. 5. Include a check made payable to the Union Pacific Railroad Company in the amount of $500.00 If you require formal billing, you may consider this letter as a formal bill In compliance with the Internal Revenue Services' new policy regarding their Form 1099, I certify that 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. Under Exhibit B of the enclosed Contiactor's Right of Entry Agreement, you are required to procure Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you Union Pacific is making this coverage available to you. If you decide that acquiring this coverage from the Railroad is of benefit to you, please contact Mr. William Smith of Marsh USA @ 800-729-7001, e-mail william.j.smrth@marsh com. This agreement will not be accepted by the Railroad Company until you have returned all of the following to the undersigned at Union Pacific Railroad Company• 1. Executed, unaltered duplicate original counterparts of the Contractor's Right of Entry Agreement; 2. Your check in the amount of $500.00 to pay the required balance due of the required Contractor's Right of Entry fee. (The Folder Number and the name ` Paul G. Farrell" should be written on the check to insure proper credit). If you require fonnal billing, you may consider this letter as a formal bill; 3. Copies of all of your up-to-date General Liability, Auto Liability & Workman's Compensation Insurance Certificates (yours and all conti actor s ), naming Union Pacific Railroad Company as additional insured; Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, Mail Stop 1690 Omaha, Nebraska 68179-1690 fax: 402-501.0340 4. Copy of your up-to-date Railroad Protective Liability Insurance Certificate (yours and all contractors ), naming Union Pacific Railroad Company as additional insured. day! RETURN ALL OF THESE REQUIRED ITEMS TOGETHER IN ONE ENVELOPE. DO NOT MAIL ANY ITEM SEPARATELY. If you have any questions concerning this agreement, please contact me as noted below. Have a safe Sincerely, Senior Manager Contracts Phone: (402) 544-8620 e-mail: pgfarrell@up. coin Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, Mail Stop 1690 Omaha, Nebraska 68179-1690 fax: 402 501.0340 CROE - Contractors Hired by a TX City or County Form Approved - AVP Law 031210 UPRR Audit No. BUIAMERICA' UPRR Folder No. 2612-56 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT (TEXAS) THIS AGREEMENT is made and entered into as of the day of 20 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (NAME OF CONTRACTOR) a corporation ("Contractor"). (Corporate Status) RECITALS: Contractor has been hired by City of Fort Worth ("City") to perform work relating to reconstruction and widening of the existing McAlister Road at -grade public road crossing (the "Work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 238.82 on Railroad's Fort Worth Subdivision in Fort Worth, Tan ant, County, Texas, as such location is in the general location shown on the Railroad Location Print marked Exhibit A, and as specified on the Detailed Print marked Exhibit A-1, each attached hereto and hereby made a part hereof. The Work is the subject of a contract dated between the Railroad and the City. (Date of Contract) Railroad is willing to permit Contractor to perfouuur the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. 2612-56 City of Fort Worth, TX McAlister Road Page 1 of 4 July 23, 2010 CROE - Contractors Hired by a TX City or County Form Approved - AVP Law 031210 BUILDING AMERif ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing any work described in the Recitals above. The right herein granted to Contractor is limited to those portions of Railroad s property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The Terms and Conditions contained in Exhibit B, the Insurance Requirements contained in Exhibit C and the Minimum Safety Requirements contained in Exhibit D, each attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Robert Fuller Manager Track Maintenance Union Pacific Railr oad Company 101 Mesquite Street Abilene, TX 79603 Phone: 850-473-0000 Fax: 402-997-4280 Keith Corley Manager Signal Maintenance Union Pacific Railroad Company 5701 West Vickery Boulevard Fort Worth, TX 76107 Phone: 817-353-7083 Fax: 817-353-7013 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recomrnendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein provided, or at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Raihoad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. 2612-56 City of Fort Worth, TX McAlister Road Page 2 of 4 July 23, 2010 CROE - Contractors Hired by a TX City or County Form Approved - AVP Law 031210 BUILDING AMERICA° ARTICLIN; 6 - CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with (i) the insurance binders, policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this Agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Union Pacific Railroad Company 1400 Douglas Street., MS 1690 Omaha, NE 68179-1690 Attn: Senior Manager Contracts UPRR Folder No. 2612-56 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, Contractor shall pay to Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement ARTICLE 9 - CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. 2612-56 City of Fort Worth, TX McAlister Road Page 3 of 4 July 23, 2010 CROE - Contractors Hired by a TX City or County Form Approved - AVP Law 031210 BUILDING AMERICA' IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. (NAME OF CONTRACTOR) By Printed Name: Title: UNION PACIFIC RAILROAD COMPANY (Federal Tax ID No. 94-6001323) By PAUL G. FARRELL Senior Manager Contracts 2612-56 City of Fort Worth, TX McAlister Road Page 4 of 4 July 23, 2010 s Data use subject to license. O 2007 DeLorme. Street Atlas USA® 2008. www.delorrne.com RAILROAD LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMNT FtM 1187 E F'=1M 1187 McAllister Road - DOT #4'15-986D RR MP 238 77 - Fort Worth Subdivision Existing At Grade Public Road Crossing Reconstruction & Widening Project MN (4.4° E) RAILROAD WORK TO BE PERFORMED: 1. Re -lay 240-feet of rail; Insta11 72-feet of concrete road crossing panels; Install 55 cross ties Install 1 carload of ballast; and other track & surface materials. 2. Relocate one automatic flashing light crossing gate; and other signal facilities. 3. Engineering Design Review & Flagging. ALSBUR'Y.BLVD ft 0 1000 2000 Data Zoom 13-0 EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY FORT WORTH SUBDIVISION MILE POST 238 77 GPS: N 32° 34.3085', W 97° 19.4760' FORT WORTH, TARRANT CO. TX. To accompany a Contractor's Right of Entry Agreement with (Name of Contractor) for an existing at -grade public road crossing reconstructin and widening project. Folder No. 2612-56 Date: August 26, 2010 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print EX. EDGE OF ASPHALT EX. ROW SPEED LIMIT: 35 mph ADT: 4610 vpd GIN 7" CURB i ( Allit W lumit a l f1 hits:. liVeititili / / PROP: ACE ��i«•rnii�' / // /.� i �, aial Ott Y. . .':R5. -. ►� N t� ' �I - r611 OVERHEAD ELECTRIC r off ,,,, '.°i�i.,:.,�:•s.�'rc'.s,4'�.s�^+�^.:�:;;r',,,,,,,,=']�r.,.,.w •<,.'�,,�� '`i�-.LY��t:�Y,,•r?;� ..��"��i,�� 1 IltYar • PRELIMINARY PROP. 5' SIDEWALK PROP, RAILROAD SIGNAL POLE TO BE PLACED 4'3" FROM BACK OF CURB ROP. GHT CO ► iT GRAPHIC SCALE D 0' i8 30 EX. RAIL RO ORIGINAL PLOTTED SCALD I inch = 30 ft. 1- EX ROW EX. RAILROAD SIGNAL POLE TO REMAIN. GATE ARM EXTENSION REQUIRED. mologi MI Ili, � MAW EI.11 E OF ASPHAL ,_imer 1111111111111111111111111111111111= imam 30.4 EX. SIGNAL HOUSE TO REMAIN MCALISTER ROAD, FORT WORTH TX, RAILROAD EXHIBIT MP. NO.238.77 FORT WORTH SUB DOT NO. 415-968D 5 BIKE LANE FEBRUARY 8, 2010 EXHIBIT A EX. POWER. POLE PROP. 5' SIDEWALK PR • PP _FACE OF CURB 7650. PRO LIGHT FOUNCJATION E EXHIBI BUILDING AMERICA* EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track No work of any kind shall be performed, and no person, equipment, machinery tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains Upon receipt of such thirty (30)-day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractors receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight -hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation holiday, health and welfare supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight -hour day during which any flagman is furnished unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work, even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of thirty (30) days notice prior to the cessation of the need for a flagman. If thirty (30) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the thirty (30) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks roadways, signal, communication, fiber optics, or other wielines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. CROE — Texas City/County — ExB Form Approved AVP-Law 031210 Page 1 of 4 Exhibit B Terms & Conditions BUILDING AMERICA° The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. S ection 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS RAILROAD FROM AND AGAINST ANY AND ALL LIENS, CLAIMS, DEMANDS COSTS OR EXPENSES OF WHATSOEVER NATURE IN ANY WAY CONNECTED WITH OR GROWING OUT OF SUCH WORK DONE, LABOR P ERFORMED, OR MATERIALS FURNISHED IF CONTRACTOR FAILS TO PROMPTLY CAUSE ANY LIEN TO BE RELEASED OF RECORD, RAILROAD MAY, AT ITS ELECTION, DISCHARGE THE LIEN OR CLAIM OF LIEN AT CONTRACTOR'S EXPENSE. S ection 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7 00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad s property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD RAILROAD HARMLESS FROM AND AGAINST ALL COSTS, LIABILITY AND EXPENSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES) ARISING OUT OF ANY ACT OR OMISSION OF CONTRACTOR, ITS AGENTS AND/OR EMPLOYEES, THAT CAUSES OR CONTRIBUTES TO (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON RAILROAD'S PROPERTY, AND/OR (2) ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEHALF OF ANY TELECOMMUNICATIONS COMPANY, AND/OR ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, ON RAILROAD S PROPERTY CONTRACTOR SHALL NOT HAVE OR SEEK RECOURSE AGAINST RAILROAD FOR ANY CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL DAMAGE TO A TELECOMMUNICATION COMPANY USING RAILROAD'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON RAILROAD'S PROPERTY. CROE — Texas City/County — ExB Form Approved AVP-Law 031210 Page 2 of 4 Exhibit B Terms & Conditions BUILDING AMERICAO Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan '). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Ran. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8. INDEMNITY. A. TO THE EXTENT NOT PROHIBITED BY APPLICABLE STATUTE, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS AND EMPLOYEES ("INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEY'S, CONSULTANT'S AND EXPERT'S FEES, AND COURT COSTS) FINE OR PENALTY (COLLECTIVELY, ' LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY, CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT OF OR IN ANY MANNER CONNECTED WITH (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS AGENTS OR EMPLOYEES, OR (III) ANY BREACH OF THIS AGREEMENT BY CONTRACTOR. B THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABLISHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C. CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST RAILROAD. CROE — Texas City/County — ExB Form Approved AVP-Law 031210 Page 3 of 4 Exhibit B Terms & Conditions BUILDING AMERICA° E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractors tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured' in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute form providing equivalent coverage) for the job site. CROE — Texas City/County — ExB Form Approved AVP-Law 031210 Page 4 of 4 Exhibit B Terms & Conditions BUILDING AMERICA' EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE REQUIREMENTS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $2 000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: o Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. o Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $2 000,000 for each accident. The policy must contain the following endorsements, which must be stated on the certificate of insurance: o Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing 'Union Pacific Property' as the Designated Job Site. ® Motor Carrier Act Endorsement - Hazardous materials clean up (MCS-90) if required by law. C. Workers' Compensation and Employers' Liability insurance. Coverage must include but not be limited to: ® Contractor s statutory liability under the workers' compensation laws of the State of Texas. o Employers' Liability (Part B) with limits of at least $500 000 each accident $500,000 disease policy limit $500,000 each employee. If Contractor is self -insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include: o liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and o the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: ® Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000 000 A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella or Excess insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability insurance. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials in the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the CROE — Texas City/County — ExC Form Approved AVP-Law 031210 Page 1 of 4 Exhibit C Insurance Requirements BUILDING AMERICA° disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1 000 000 per Toss, and an annual aggregate of $2,000,000. Other Requirements G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26 and CA 20 48 provide coverage for Railroad s negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the State of Texas. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. CROE — Texas City/County— ExC Form Approved AVP-Law 031210 Page 2 of 4 Exhibit C Insurance Requirements BUILDING AMERICA" EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel Employees working on bridges are required to wear safety - toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles or heels that are higher than normal. C Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1— latest revision. Hard hats should be affixed with Contractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87 1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: ® 100 feet of a locomotive or roadway/work equipment ® 15 feet of power operated tools ® 150 feet of jet blowers or pile drivers ® 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements CROE — Texas City/County — ExD Form Approved AVP-Law 031210 Page 1 of 2 Exhibit D Minimum Safety Requirements BUILDING AMERICA° (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition operators must be: Familiar and comply with Railroad s rules on lockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. ▪ Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment B. All self-propelled equipment must be equipped with a first -aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative if applicable During this briefing the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track:. (i) Always be on the alert for moving equipment Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. CROE — Texas City/County — ExD Form Approved AVP-Law 031210 Page 2 of 2 Exhibit D Minimum Safety Requirements To Pub Raih • Y t Grade r®sing 1�- en1 imate DATE: 2011-03-02 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS ;2011-00-31 DESCRIPTION OF WORK: RZCOLLECTABLE CROSSING SURFACE PROJECT. E`T. WORTH SUB / MP 238.82 / FT. WORTH, TX / Z4CALISTER RD / DOT 415968D 100V RECOLLECTABLE (ACTUAL COSTS) FROM CITY OF FT. WORTH, TX. ESTIMATED USING FEDERAL ADDITIVES WITH OVERHEAD & INDIRECT CONSTRUCTION COST - 205% PID: 66591 AWO: 02308 MP,SUBDIV: 238.82, FTWORTH SERVICE UNIT: 11 CITY: FORT WORTH DESCRIPTION ENGINEERING WORK ENGINEERING LABOR ADDITIVE 205% STATE: TX QTY UNIT LABOR MATERIAL RECOIL UPRR TOTAL 1000 1000 1000 2050 2050 2050 TOTAL ENGINEERING 3050 3050 3050 SIGNAL WORK LABOR ADDITIVE 205t 2176 2176 2176 SALES TAX 2 2 2 SIGNAL 1061 74 1135 1135 TOTAL SIGNAL 3237 76 3313 3313 TRACK & SURPACE WORK BALAST 1.00 CL 7E2 863 1645 1645 BILL PREP 900 900 900 CONTRACTOR /OPERATOR 7200 7200 7200 ENVIRONMENTAL PERMIT 1 1 1 FOREIGN LINE FREIGHT 305 305 305 HOME LINE FREIGHT 900 900 900 LABOR ADDITIVE 205°c 22323 22313 22313 NATL STORE EXPENSE 235 235 235 OTM 699 625 1324 1324 RAIL 240.00 LP 947 5157 6104 6104 RDXING 72.00 TF 4134 15272 19406 19406 SALES TAX 1125 1125 1125 TRK-SORF,LIN 2714 2714 2714 WELD 1712 385 2097 2097 XTIE 55.00 EA 5945 5895 11840 11840 TOTAL TRACK & SURFACE 40146 37963 78109 78109 LABOR/MATERIAL EXPENSE 46433 38039 RRCOLLECTZBLE/UPRR EXPENSE 84472 0 ESTIMATED PROJECT COST EXISTING REUSEABLB MATERIAL CREDIT 0 SALVAGE NONUSEABLB MATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS 84472 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION, IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. E ibit D Railroad's Track & Surface Material Estimate To Pub • DATE; 2011-02-14 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2011-08-25 DESCRIPTION OF WORKt RELOCATE (1) AUTOMATIC FLASHING LIGHT CROSSING GATE AT FORT WORTH, TX., MCALISTER RD., MP238.82 ON THE FT. WORTH SUBDIVISION. WORK TO BE PERFORMED BY RAILROAD WITH EXPENSE AS BELOW: SIGNAL - CITY OF PORT WORTH - 100V ESTIMATED US/NO PEDERALADDITXVES WITH OVERHEAD & INDIRECT CONSTRUCTION COST - 167.76% PIDt 66233 AWOt 02101 NP,SUBDIVt 238.82, FTWORTH SERVICE UNIT, 11 CITY: FORT WORTH DESCRIPTION ENGINEERING WORK SIG-HWY XNG T,XROR ADDITIVE 167.76V STATE, TX QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL 3084 3084 3084 5173 5173 5173 TOTAL, ENGINEERING 8257 8257 8257 • SIGNAL WORK SIGNAL 6581 1615 8196 8196 POWER TAP (METER) 2000 2000 2000 PERSONAL EXPENSES 3660 3660 3660 WZT CONTROL 3500 3500 3500 EARTH PILL 5000 5000 5000 ROCK/GRAVEL 1800 1800 1800 TRANSP/IB/OB/RCLW CONTR 158 158 158 CONTRACT 162 162 162 LABOR ADDITIVE 167.76V 11040 11040 11040 ENVIRONMENTAL -PERMITS 1 1 1 TOTAL SIGNAL LABOR/MATERIAL EXPENSE RRCOLLECTIBLE/UPRR EXPENSE ESTIMATED PROJECT COST 17621 17896 35517 35517 25878 17896 43774 43774 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION, IN THE EVENT OP AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL, CONSTRUCTION COSTS AT THN CURRENT EFFECTIVE RATE. Exhibit D-1 Railroad's Signal Material Estimate • • • • • %1 ® = .� --io To Pub Railroa �s5ti ate BUILDING AMERICA° EXH I q IT D=2 RAILROAD ENGINEERING & FLAGGING ESTIMATE TO PUBLIC HIGHWAY AT -GRADE CROSSING AGREEMENT DESCRIPTION OF WORK: Perform engineering review and flagging services for the City of Fort Worth for the reconstruction and widening of the existing McAlister Road at -grade public road crossing, (USDOT #415-968D), at Railroad Mile Post 238.77 on the Fort Worth Subdivision in Fort Worth, Tarrant County, Texas. LOCATION: Fort Worth, Tarrant County, Texas DATE: March 2, 2011 DESCRIPTION LABOR MATERIAL AUTHORITY TOTAL FLAGGING $50,000.00 $50,000.00 (at $1,000/day) X 50 days ENGINEERING REVIEW TOTAL PROJECT $0.00 $0.00 $50,000.00 $50,000.00 TOTAL ESTIMATED COST OF PROJECT LESS CREDITS $50,000.00 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OF AMOUNT OF MATERIAL OR LABOR REQUIRED, THE AUTHORITY WILL BE BILLED FOR ACTUAL COST AT THE CURRENT RATES EFFECTIVE THEREOF Exhibit D-2 Railroad's Engineering & Flagging Estimate