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Contract 44950 (2)
(Ej ECREfi'ANY A1 f )fin/� lr C�T1WOTGkfl COMPROMISE SETTLEMENT AGREEMENT FOR TRV BRIDGES THIS COMPROMISE SETTLEMENT AGREEMENT ("Agreement") is entered into by and between The City of Fort Worth, a Texas home rule municipality ("City") and Fort Worth & Western Railroad Company ("FVVVVR") (collectively, the "Parties"), effective as of the last date executed, as provided for, below. RECITALS WHEREAS, the City sought to acquire certain licenses on and over the FVVVVR right-of-way and real property and related improvements for the purposes of constructing, operating, and maintaining two (2) certain temporary public street crossings and acquisition of additional right-of-way for a certain bridge structure, all as part of the Trinity River Vision Project as hereinafter more particularly described (the "Project"); and WHEREAS, the Parties were unable, initially, to agree to compensation for the property rights being sought by the City, and WHEREAS, the City asserted it had the authority to pursue the rights it sought under Texas Eminent Domain law, threatened to institute eminent domain proceedings against FVVWR if agreement could not be reached, and would necessarily be required to pursue such rights if an agreement could not otherwise be reached; and WHEREAS, the FWVVR asserted City's planned construction and maintenance of the Project in relation to the FWVVR would materially impact FVVWR's rail operations and, consequently, that the City's authority under state law would be completely preempted under federal law; and WHEREAS, the Parties worked diligently to reach an accord and, jointly, without admission of either Parties' assertions or rights, but in recognition of the uncertainties and expense of protracted litigation, desire to settle all disputes and end all past and present controversies currently existing between the City and FVVVVR with regard to the Project. TERMS NOW, FOR, AND IN MUTUAL CONSIDERATION of, the promises and covenants herein contained, the Parties agree as follows: 1. The representatives executing this Agreement along with (i) the Temporary Public Street Crossing and Railroad Warning and Safety Devices -License attached hereto as Exhibit A (Henderson Street Detour), (ii) the Temporary Public Street Crossing and Railroad Warning and Safety Devices License attached hereto as COMPROMISE SETTLEMENT AGREEMENT I:\03704\0047\M M24 34. DOCX RECEIVED OCT 7n1:51 OFFICIAL RECORD Cr"' SECRETARY t9tWoNm, TX Page 1 Exhibit B (North Commerce Street Detour), and (iii) the Easement and Right -of -Way Agreement for White Settlement Road Overpass ('White Settlement Easement") attached hereto as Exhibit C have been lawfully authorized to execute same. 2. Authorized representatives of the City and FWWR will execute the Temporary Public Street Crossing and Railroad Warning and Safety Devices Licenses in the forms attached hereto as Exhibits A and B and the White Settlement Right -of - Way Agreement attached hereto as Exhibit C (Exhibits A, B, and C are herein referred to together as the "Property Agreements") to become effective and eligible for recording in the Tarrant County Real Property Records upon and only upon funding and receipt by the FWWR of the settlement payment discussed herein. In the event the settlement payment is not funded as envisioned by this Agreement the Parties further agree that the Property Agreements shall not be recorded in the Tarrant County Real Property Records and shall be null, void, and of no legal effect. 3. Simultaneous with the execution and delivery of the signed Property Agreements between the Parties, the City will pay, or cause to be paid, good and sufficient funds in the total settlement payment sum of Two Hundred Thousand Dollars ($200,000.00) to the order of the FWWR. FWWR acknowledges that the foregoing payment is in full satisfaction for the rights being acquired by the City under the Property Agreements and FWWR releases the City from any further damages or compensation for, this Agreement and all agreements referenced herein, including the Property Agreements, save and except for, and without in any manner limiting, any express provision in those agreements obligating the City to make future payments or reimbursements to FWWR or any other sums to which it is entitled under the express terms of this Agreement and Property Agreements referenced herein Moreover, FWWR and CITY hereby mutually agree that notwithstanding that certain Settlement Agreement dated February 2, 2005 between them ("2005 Settlement Agreement") which shall otherwise remain in full force and effect, the City may temporarily reopen the N orth Commerce Street crossing as provided for in the Temporary Public Street Crossing and Railroad Warning and Safety Devices License attached as Exhibit B (North Commerce Street). Notwithstanding anything in the foregoing to the contrary, the P arties are continuing to negotiate the terms of the White Settlement Easement and will continue to do so in good faith. Accordingly the provisions hereof regarding the White S ettlement Easement as a condition precedent to the payment of consideration provided for hereunder or the commencement of work on the Henderson Street Detour and the North Commerce Street Detour shall not apply. 4. This Agreement may only be executed in a number of identical original signed counterparts, each of which shall be deemed an "original" for all purposes. No electronic or faxed signatures on this Agreement shall be considered original for purposes of this Agreement. 5. If any term, covenant or other provision of this Agreement is held invalid, illegal, or incapable of being enforced by reason of any rule of law or public policy, all other conditions of this Agreement shall nevertheless remain in full force and effect, and COMPROMISE SETTLEMENT AGREEMENT Page 2 I:\03704\0047\MM2434.DOCX such term, covenant or provision shall not be dependent upon any other covenant or provision unless so expressed herein. It is agreed by the Parties that any term which is deemed unenforceable by any court of proper jurisdiction shall be automatically revised to the fullest extent permissible by law and the Parties agree that such revised term shall be enforceable as if originally set forth in this Agreement. 6. This Agreement shall be binding upon and inure to the benefit of the P arties, as well as their respective representatives, successors and assigns. 7. This Agreement and all agreements referenced herein, including the P roperty Agreements, contain the entire agreement between the Parties hereto and all of the terms, provisions and recitals of this Agreement are contractual and not mere recitals. 8. Nothing contained herein shall be construed as an admission of liability by or on behalf of any of the Parties with respect to those matters settled pursuant to this Agreement 9. In the event it becomes necessary to bring an action in court to enforce this Agreement, any portion hereof, or any agreement referenced herein, including the P roperty Agreements, or to declare the effect of any provision of this Agreement or any agreement referenced herein, including the Property Agreements, the prevailing party shall be entitled to recover from the non -prevailing party all reasonable costs and expenses incurred in connection with such action, including, but not limited to reasonable attorneys' fees. 10. This Agreement and all agreements referenced herein, including the P roperty Agreements shall be enforceable only in the courts of Tarrant County, Texas and construed in accordance with the laws of the State of Texas. [REMAINDER OF PAGE IS INTENTIONALLY BLANK. SIGNATURES ON FOLLOW PAGE ] COMPROMISE SETTLEMENT AGREEMENT Page 3 I:\03704\0047\M M2434. DOCX IN WITNESS whereof, the parties have executed this Agreement to be effective , the 4rcIaY of t)C 2013.�! THE CITY OF FORT WORTH, TEXAS, a municipal carporattion Fernando Costa Assistant City Manager Date: _lOM!'•SEr APPROVED AS TO FORM AND LEGALITY: Assistan City Attorney Date: / Ll • 1 3 /Mit C-16P Mt.swd by: dr ary ig,:ayit eat? ay COMPROMISE SETTLEMENT AGREEMENT 1:10370410047\MM24341OCX FORT WORTH & WESTERN RAILROAD COMPANY By: Steven P. George / President and CEO Date: jigt , • *FICIAL !RECORD CITY SECRETARY Ft WORTHS TX Page 4 STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the 7 day of 2013, by Fernando Costa, Assistant City Manager, a duly authorized representative of the City of Fort Worth, on behalf of said municipal corporation. 71-Mkat STATE OF TEXAS COUNTY OF TARRANT This instrument was • Afresed Notary Public in and for the State of Texas • EVONIA DANIELS Notary Public, State of Texas My Commission Expires July 10, 2017 I •. i , .* i ...I acknowledged before me on the (: day of ) '\ , 2013, by Steven P. George, President and CEO of Fort Worth & Western Railroad Company, a Texas corporation, on behalf of said corporation. \`` n E R L Y D /J \ (TA . �CI '� Zw � G°•,, On te, CD f .•./t€ TEXAS S � %• 1mitilo COMPROMISE SETTLEMENT AGREEMENT I:\03704\0047\MM2434.DOCX Notary Public in i .. tl \t tik k State of Texas Page 5 EXHIBIT A N OTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS YOUR SOCIAL SECURITY N UMBER OR YOUR DRIVER'S LICENSE NUMBER TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) STATE OF TEXAS COUNTY OF TARRANT § KNOW ALL MEN BY THESE PRESENTS: That, Fort Worth & Western Railroad Company, a Texas corporation ("Licensor"), of the County of Tarrant, State of Texas, for and in consideration of $10.00 and other good and valuable consideration and the performance by The City of Fort Worth, a Texas home rule municipality ("Licensee") of all covenants and agreements contained in that one certain Settlement Agreement of even date herewith (the "TRV Bridges Settlement Agreement") between Licensor and Licensee, the receipt and sufficiency of which are hereby acknowledged, in conjunction with and in order to accommodate, the Trinity River Vision Project, including the construction of a new Henderson Street (SH 199) overpass (the "Bridge") necessitating a temporary detour road during the construction thereof, by these presents GRANTS unto Licensee without express or implied warranties and all warranties that might arise by common law, and the warranties in Section 5.023 of the Texas Property Code (or its successors) are e xcluded, temporary non-exclusive licenses for (i) the construction, use and maintenance of a temporary public street crossing upon a portion of Licensor's right-of- way and railroad facilities located in the City of Fort Worth, Tarrant County Texas, more particularly described and depicted in Exhibit(s) A — B-2 attached hereto and incorporated herein for any and all purposes (the "Crossing Property"); (ii) the installation, maintenance and use of Warning and Safety Devices (hereinafter defined) u pon a portion of the Crossing Property, and (iii) the installation, maintenance and use of any necessary part of that portion of Licensors right-of-way that is one thousand two hundred (1,200) feet to the east and one thousand two hundred (1,200) feet to the west of the Crossing Property (the "Devices Property") for the installation and placement of the Operating Equipment (hereinafter defined), which licenses shall hereinafter be referred to together herein as the License'. The Crossing Property and the Devices Property are sometimes referred to herein as the "Property " 1. The License granted herein shall be solely for the following purposes (collectively, the "Project"): a. The construction, operation, maintenance, repair, replacement or removal of a temporary railroad crossing for a public street known as Henderson Street Detour (the "Henderson Street Detour Crossing") in, upon, under and TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\M M2276. DOCX Page 1 EXHIBIT A I Page 1 of 22 EXHIBIT A across a portion of the Crossing Property and Licensor's railroad facility located thereupon as described and shown on attached Exhibit(s) A — B-2 together with the right and privilege at all times, subject to the terms hereof, to enter upon the Crossing Property, or any part thereof, for the above purposes; b. The installation, operation, maintenance, repair, replacement, or removal of railroad warning and safety devices and supplemental safety measures more particularly described in Exhibit(s) C - D attached hereto and incorporated herein for any and all purposes ("Warning and Safety Devices") for the Henderson Street Detour Crossing in, upon, under and across a portion of the Crossing Property, together with the right and privilege at all times, subject to the terms hereof, to enter upon the Crossing Property, or any part thereof, for the above purposes, and c. The installation, operation, maintenance, repair, replacement, or removal of equipment integral and necessary to the operation of the Warning and Safety Devices for the Henderson Street Detour Crossing more particularly described in Exhibit(s) C — D attached hereto and incorporated herein for any and all purposes ("Operating Equipment') in, upon, under and across a portion of the Devices Property, together with the right and pnvilege at all times, subject to the terms hereof, to enter upon the Devices Property, or any part thereof, for the above purposes 2. The term of this License Agreement shall be for a term commencing on the Effective Date and continuing until ninety (90) days following the completion and opening of the Bridge to regular vehicular traffic. In addition, the Licensee shall have no right to use the Henderson Street Detour Crossing other than in conjunction with the construction of the Bridge. 3. The Henderson Street Detour Crossing and Warning and Safety Devices shall be constructed and/or installed in accordance with the "Plans and Specifications" provided and more particularly described in Exhibit(s) A, C and D attached hereto and incorporated herein for any and all purposes. Licensee shall, at its sole cost and expense and subject to any statute, order, rule or regulation or any public authority having jurisdiction thereof, locate, construct and maintain the Henderson Street Detour Crossing and Warning and Safety Devices in such a manner and of such material that it will not at any time be a source of danger to or interference with the present tracks roadbed and property of Licensor, or safe operation of Licensor's railroad. Additionally, Licensee shall at all times comply with the National Railroad Safety Standards and American Railway Engineering Association Standards. 4. Licensee shall use the License solely for the purposes provided for herein and shall not use them for any other purpose whatsoever. 5. Licensee shall, within thirty (30) days of invoice to Licensee, reimburse Licensor for any expenses incurred by Licensor for flagmen to protect its railroad traffic TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\MM2276.DOCX Page 2 EXHIBIT A I Page 2 of 22 EXHIBIT A during installation of the Henderson Street Detour Crossing, Warning and Safety Devices and Operating Equipment and for any other reasonable expenses incurred by Licensor arising out of or as a result of the installation, operation or maintenance of such facilities as provided for hereunder. 6. Licensee shall, upon giving Licensor seventy-two (72) hours' advance notice by contacting the Licensor's Chief Engineer, have the right to enter the Crossing Property and the Devices Property for the purpose of installing, maintaining repairing or removing the Henderson Street Crossing, Warning and Safety Devices and Operating Equipment. In the event of any emergency the seventy-two (72) hour notice shall be waived, provided that Licensee or its contractors shall make every effort to notify Licensor of the nature of the emergency and that entry onto the right-of-way has occurred. 7. At all times during construction, maintenance, repair or removal of the Henderson Street Crossing, Warning and Safety Devices and Operating Equipment, Licensee or its contractors shall keep the right-of-way in a neat and safe condition and shall keep the tracks clear of obstructions In addition, Licensee or its contractors shall keep all equipment tools and materials stored at least fifteen (15) feet from the center line of Licensor's track. Explosives or other highly flammable substances or any dangerous materials regulated pursuant to federal, state or local laws will not be stored o n the Property Additionally Licensor or its contractors shall remove all tools e quipment and material from the Property upon completion of work, restoring the premises to the same state and condition as when Licensee and/or its contractor e ntered thereon. 8. Upon the completion and opening of the Bridge to regular vehicular traffic, Licensee shall, at its sole cost and expense, barricade within twenty four (24) hours and remove within ninety (90) days the Warning and Safety Devices and Operating Equipment from the Property and render the crossing impassable to Licensor's reasonable satisfaction 9. Notwithstanding any other provisions hereof, Licensee shall comply with all statutes, ordinances, rules, regulations, orders, procedures, standards and decisions (hereinafter referred to as "Standards"), issued by any federal, state or local governmental body or agency established thereby (hereinafter referred to as "Authority") relating to Licensees use of Licensor's property hereunder. In its use of the Property, Licensee shall at all times be in full compliance with all Standards, present or future, set by any Authority. 10. Licensee, or its contractor, at its sole cost and expense, shall procure and maintain during the life of this Agreement except as otherwise provided, the following insurance coverage: a. Commercial General Liability Insurance. Commercial General Liability ("CGL") insurance shall contain broad form contractual liability with a TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\MM2276. DOCX Page 3 EXHIBIT A I Page 3 of 22 EXHIBIT A single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Contractual liability shall afford coverage for sole negligence. CGL insurance must be written on ISO Occurrence Form CGOO 01 12 04 (or a substitute form providing equivalent coverage), including but not limited to coverage for the following: • Bodily injury • Property damage • Personal injury and advertising injury • Fire legal liability • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • • • • • CG 20-10-0704 and CG 20-37-0704 (or substitute forms providing e quivalent coverage). The exclusions for railroads (within fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds terminals u nderpasses or crossings) Any exclusion related to the explosion, collapse, and underground hazards shall be removed and shall be indicated on the certificate of insurance. Waiver of subrogation Licensor named as an additional insured. b Business Automobile Insurance. Business Automobile Insurance shall contain a combined single limit of at least $1 000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non -owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • • • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law. Waiver of subrogation. Licensor named as an additional insured. c. Workers Compensation and Employers Liability Insurance Workers Compensation and Employers Liability Insurance shall contain covereage, including but not limited to coverage for the following: • Licensee's and its contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\M M2276. DOCX Page 4 EXHIBIT A 1 Page 4 of 22 EXHIBIT A • Employers' Liability (Part B) with limits of at least: $1,000,000 each accident, $1,000,000 disease policy limit $1,000,000 each employee If Licensee or its contractor is self -insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the Federal Employers Liability Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Waiver of subrogation. d. Pollution Liability Insurance. Pollution Liability Insurance must be written on ISO form Pollution Liability Coverage Form Designated Sited CG 00 39 12 04 (or a substitute form providing equivalent coverage), with limits of at least $5 000,000 per claim and an aggregate limit of $10,000,000 with a deductible not to exceed $100,000. Licensee or its contractor warrants that any retroactive date applicable to the coverage under the policy is the same as or precedes the Effective Date of this Agreement, and that continuous coverage will be maintained or an extended discovery period will be exercised for a period of five (5) years beginning from the time the work under this Agreement is completed or if coverage is cancelled for any reason the extended discovery period will be exercised for the maximum time allowed by the policy. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials from the Premises, Licensee and its contractor shall be responsible for any and all losses claims or demands arising from the disposal site operator accepting and/or disposing of such materials. e. Umbrella or Excess Liability Insurance Umbrella or Excess Liability Insurance must be written on a 'follow form" over the insurance coverage required in Items Al B and C above, with limits of $10,000 000. f. Railroad Protective Liability Insurance. Railroad Protective Liability Insurance ("RPLI') must be provided by the Licensee, or its contractor, prior to commencing, and at all times when, Licensee or its contractors are performing any work on the Property RPLI shall provide coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 12 07 (or a substitute form providing equivalent coverage). TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\M M2276. DOCX Page 5 EXHIBIT A 1 Page 5 of 22 EXHIBIT A The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • • • Licensor named as the insured Policy shall not include a Deductible or Self Insured Retention RPLI shall be primary and non-contributory Other Requirements g Licensee's contractor's policies are to be endorsed as primary and non-contributory for general liability coverages and excess of the required RPLI policy. h. Punitive damage exclusion, if any, must be deleted, which deletion shall be indicated on the certificate of insurance. I. Licensee and its contractor agree to waive their right of recovery, and their insurers, through policy endorsement, agree to waive their right of subrogation against Licensor. Licensee and its contractor further waive their right of recovery, and their insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's contractor's insurance shall be primary with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance. j. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as an additional insured. Severability of interest and naming Licensor as an additional insured shall be indicated on the certificate of insurance. The coverage provided to Licensor as an additional named insured shall to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 (or substitute forms) provide coverage for Licensor's negligence whether sole or partial, active or passive, and shall not be limited by Licensee's liability under the indemnity provisions of this Agreement. k Prior to commencing any work, Licensee or its contractor shall furnish to Licensor original certificate(s) of insurance evidencing the required coverage, endorsements and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. Licensee also agrees that: (i) Upon request from Licensor, a duplicate original of any required policy shall be furnished. TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I :\03704\0047\M M2276. DOCX Page 6 EXHIBIT A 1 Page 6 of 22 EXHIBIT A (ii) Failure to provide evidence of insurance as required by this Section shall entitle, but not require, Licensor to (i) suspend immediately, and u ntil such time as Licensee's contractor provides evidence of insurance as required by this Paragraph, Licensee's or its contractor's right, and the right of any of contractor's sub -contractors, to come on or about the Property and to u ndertake any activities contemplated hereunder or (ii) terminate this Agreement u pon the giving of written notice to Licensee as provided for herein and Licensee's failure to provide such evidence of insurance prior to the expiration of forty-five (45) days from the date of such notice (iii) The right of Licensee, its contractors, subcontractors, agents and employees to use or occupy the Premises in accordance with this Agreement shall cease immediately upon Licensee's failure to provide evidence of insurance as required by this Section and shall continue until Licensee provides evidence of insurance as required by this Section, subject, however to the right to terminate in (ii) above. (iv) Acceptance of a certificate that does not comply with this Section shall not operate as a waiver of Licensee's obligations hereunder. I. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. m. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's Risk Management personnel. n. The fact that insurance is obtained by Licensee on behalf of Licensor shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor shall not be limited by the amount o f the required insurance coverage. o. Licensor may reasonably modify the required insurance coverage to reflect future risk management practices in the railroad industry and u nderwriting practices in the insurance industry provided such modification does n ot result in coverage that is either more demanding of, or expensive for, Licensee s contractor than what is customarily required by other railroads under similar circumstances or renders insurance coverage unobtainable by Contractor p. Licensee waives all rights against Licensor and its agents officers, directors and employees, where permitted by law for recovery of damages to the extent these damages are covered by and actually recovered under the workers compensation and employers liability or commercial umbrella/excess liability TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\M M2276. DOCX Page 7 EXHIBIT A I Page 7 of 22 EXHIBIT A insurance obtained by Licensee required by this Agreement, which must be stated on the certificate of insurance. q. Insurance requirements of Licensee, but not its contractor, hereunder may be met by a combination of self-insurance, primary and excess coverage (Railroad Protective Liability Insurance may be procured by Licensee's contractor and shall not be subject to self-insurance). All insurance correspondence shall be directed to: Risk Management Department Fort Worth & Western Railroad Company 6300 Ridglea Place, Suite 1200 Fort Worth, Texas 76116 11. Licensee's activities hereunder are to be carried out in a reasonable and timely manner. The Henderson Street Crossing, Warning and Safety Devices and Operating Equipment, and all parts thereof within and outside of the limits of the right-of- way of Licensor shall be constructed and, at all times, maintained repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant continuous and uninterrupted use of the tracks, right of way and facilities of Licensor, and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. 12. Licensee will use reasonable efforts to limit the duration of any interference with Licensor's activities on its right-of-way. 13 It is agreed that should the Property or any portion thereof that is the subject of the License and License cease to be used for public purposes, the License, as to the portion so abandoned, shall immediately cease and terminate. 14. Licensee assumes the entire responsibility for the construction and maintenance of the Henderson Street Crossing, Warning and Safety Devices, and Operating Equipment and nothing contained herein shall ever be construed to place upon Licensor any manner of liability for injury to or death of persons, or for damage to or loss of property arising from or in any manner connected with the construction, maintenance or use of the Henderson Street Crossing, Warning and Safety Devices and Operating Equipment located upon Licensor's property. 15. This instrument is made and accepted subject to any license, easement, right-of-way, lease or servitude of any kind, that may be presently in force and affects the Property, including, but not limited to (i) the Pipeline License Agreement dated August 11 2006 as amended, between Davoil Inc , as licensor and Texas Midstream Gas Services, LLC, as licensee and (ii) the Master Pipeline Easement dated February 3, 2009, as amended, between Licensor and related entities as grantors and Davoil, Inc., as grantee (memorandums of which are filed of record in the Real Property TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\MM2276.DOCX Page 8 EXHIBIT A I Page 8 of 22 EXHIBIT A Records of Tarrant County Texas). It shall be incumbent upon the Licensee to make satisfactory arrangements with the holders of any rights relative to the rights granted Licensee hereunder In addition, Licensor retains, reserves, and shall continue to enjoy the use of the surface of the Property for railroad and related uses and any other purpose that does not interfere with and prevent Licensee's stated use of this License Further, and notwithstanding anything contained in this License to the contrary, Licensor shall retain the right to use the Property and to grant additional licenses and easements to third parties, over, across and through the Property for facilities running parallel with Licensor's right-of-way of which the Property is a part. 16. Fiber optic cable systems may be buried on Licensor's right-of-way. 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. Licensee shall contact Licensor's Chief Engineer to determine if fiber optic cable is buried anywhere on Licensor's right-of-way to be used by Licensee. If cables or utilities are found, Licensee's contractor will contact the telecommunications company(ies) involved, arrange for a cable locator make arrangements for relocation or other protection of the fiber optic cable all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee's contractor shall indemnify and hold the Licensor harmless from and against all costs liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee s contractor's failure to comply with the provisions of this Section. 17. In addition, if a contractor is to do any of the work performed on the Henderson Street Crossing, Warning and Safety Devices, or Operating Equipment (including initial construction and subsequent relocation or substantial maintenance and repair work) then Licensee shall require its contractor to execute Licensor's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements and will inform its contractor of the need to execute the Agreement. Under no circumstance will Licensee's contractor be allowed onto Licensor's right of way without first executing the Contractor's Right of Entry Agreement. 18. Licensee agrees to notify Licensor in writing when all work on the railroad's right-of-way is completed. 19. Licensor retains reserves, and shall continue to enjoy the use of the surface of the property the subject of the License herein for railroad uses and any and all other purposes that do not interfere with and prevent Licensee's stated use of the License. The License is non-exclusive. 20. If any provision of this instrument shall be determined to be invalid, unlawful or unenforceable to any extent at any time, the remainder of the instrument shall not be affected and shall continue to be enforceable as permitted by law. Any invalid, unlawful or unenforceable provision shall be reformed to the extent necessary to TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\M M2276. DOCX Page 9 EXHIBIT A I Page 9 of 22 EXHIBIT A render it valid, lawful and enforceable in a manner consistent with the intentions of the parties regarding such provision. 21. Licensor's failure to enforce or exercise its rights under any term, condition or covenant hereof shall not be construed as a waiver of such rights or of such term, covenant or conditions. 22. The License and the License are personal to Licensee. As such, Licensee has no right to assign the License, the License or this instrument in whole or in part, or to sublicense the License or the License in whole or in part 23. Any notice hereunder to be given by Licensor to Licensee shall be deemed to be properly served if it be deposited in the United States Mail, postage prepaid, addressed to the Licensee at 1000 Throckmorton, Fort Worth, Texas 76102, Attention: Director, Transportation/Public Works Department. Any notice to be given hereunder by Licensee to Licensor shall be deemed to be properly served if the same be deposited in the United States Mail, postage prepaid, addressed to Licensor at 6300 Ridglea Place, Suite 1200, Fort Worth, Texas 76116, Attention: President The parties hereto may by written notice change the address to which such demands, notices or statements may be sent. 24. All the covenants and provisions of this instrument shall be binding upon and inure to the benefits of the successors, legal representatives and assigns of the parties to the same extent and effect as the same are binding upon and inure to the benefit of the parties hereto, but no assignment hereof by the Licensee, its successors, legal representatives or assigns, or any subsequent assignee, shall be binding upon Licensor without the written consent of Licensor in each instance. 25. The terms hereof and all rights and obligations hereunder shall be governed by the laws of the State of Texas. 26. This instrument shall not be modified except by written agreement of the parties. 27. The rights and privileges granted to Licensee hereunder by Licensor are subject to and conditioned upon Licensee's compliance with its obligations hereunder and under the TRV Bridges Settlement Agreement. 28. This instrument, and the TRV Bridges Settlement Agreement together with its attachments, constitute the entire agreement with respect to the subject matter hereof. TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I :\03704\0047\M M2276. DOCX Page 10 EXHIBIT A I Page 10 of 22 EXHIBIT A IN WITNESS WHEREOF, this instrument is executed on the day of October, 2013 (' Effective Date"). AGREED TO AND ACCEPTED* THE CITY OF FORT WORTH, TEXAS, a municipal corporation By: FORT WORTH & WESTERN RAILROAD COMPANY By: Fernando Costa, Assistant City Manager RECOMMENDED BY: Douglas W. Wiersig, Director, Transportation and Public Works Department Steven P. George President and CEO APPROVED AS TO FORM AND LEGALITY: M&C: Assistant City Attorney Date: ATTEST: Mary J. Kayser City Secretary TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\00471M M2276. DOCX Page 11 EXHIBIT A I Page 11 of 22 EXHIBIT A STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of October 2013, by Steven P. George, President and CEO of Fort Worth & Western Railroad Company, a Texas corporation, on behalf of said corporation. Notary Public, State of Texas AFTER RECORDING RETURN TO: Mr. Doug Black Assistant City Attorney The City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (Henderson Street Detour Crossing) I:\03704\0047\M M2276. DOCX Page 12 EXHIBIT A 1 Page 12 of 22 N 6,953, 233. 91 2,323,268.12 N 6, 945. 20b. Z 2 2, 323. 25Z. 55'. CONSTRUCT ON EASEMENT • OS• IEGD CROSSING HENDERSON DETOUR • HIGHWAY CHOSL.INc 51'NA( WITH GA-,. SEE %J0T DE CA:_ RCSS'1I-09 • • II ___� 0.> _ 10..T5' _ • (I�I _ 10.15_ _ 4 kr • i EXHIBIT A CNCRETE CROSS LNG N t,363. 202.18 • 2, J2U, 31 .03 '1 6,963,181._3 / E. 2, 524, 300, 40 0 0 n b,363. 54.34 T 343. 19 0 I0' SCALE IN FEET N014:El CON5TNUCTION JjI1 uri or erknn rr W urun r,m9 l t 20 '�FREESE ' BNICHOLS °` �Jf texas Department of Transportation 0 (Ci 2013 Exhibit A Henderson Detour (P. 1 of 2) 6 1'DOB :314: TVI 'ARP/NI 0I 51 05 08 . arc EXHIBIT A 1 Page 13 of 22 EXHIBIT A GENERAL NOTES: RE5°ONSIBI I -TES OF T-IF CV( OF =GR- WORT- OP ITS CON-RACTOF RESPONSIBILITIES 0= THE FOR- WORTH AND A=STERN RAH ROAD OR ITS CON -FACTOR F JRN.S'- ANJ _NS ALL ASP-M L PA/LMEV ID MACH 'HE OP/DE JF FA_LHOAD PLANK'_ I. INSIAL_ 0NL 80 -00' CJNCPE CROSSING .N JUL_ W.D H FOR H= ILMPOHAP7 DLIDUP. 2. FJRN.S- AND _NS'ALL I -ID APHROPPIA _ PAVLM2N NARK INCJ AS OL IL.NLJ ON T-IE LT -ACHED LAYOUT AND STANDARD SH=ET AND :N ACCORDANCE WITH THE GUIDELINES IN T-,E TEXAS MANUAL ON JNIFDFM TRAFFIC CONTROL DEVICES TMUTCD). FJRV-S- ANT INS -All THE =01i OWING SIGNS IM ACCORDANCE W-TI- THE TEXAS. MUTCD AND THE S-4NDARD -I:;-WAI SIGN DESIGNS MANUAL =OR TEXAS I5-SD!= '-WIG-H 2-R15-4 NUM9FR OE SIGN AVG DLANTI`Hi PROVIDE AL_ 'PA-F1C CON-ROL DLPINC CONSTFJC .ON IN ACCO'.DANCE W. H THE GUIDELINES :N THE T_'AS MLTCD INCLLDING "HAT NEEDED WPI_E ROADWA1 WORKERS ARE °R=SENT. 5. MAINA:N THE PAVEMENT MAPY:NOS ANC ADJANCE W/RNIVG SIGNS PLACED ALONG T-IE ROADWA'IS, ..HDEF -H=:R JURISDICTION IN ACCORDANCE W:T1- THE TEXAS MUTCD AND AS SHOWN ON TI-F LAYOLT AND STANDARD S WETS AS ACKNOWI EDGE) ON -HF TITLE SHEET. 6. TPIV AND MAINTAIN TREES r.ND JEGE-AT:ON FOP ADEQUATE `,:S:BILITY 0= -HE CROSSING SICNALE ANJ ADVANCED 'N4RNIVG SIGNS AS ACKNOW_=DGED ON -E 11FLE SHEET, REM04E AND D:S°CSE OE GL_ -REES W:T-IN FWRR ROW AN: WIT -IV 250 FEET OF T I8 EDG[ OF 'AV -VENT. --TN WORK S IAI I BE 5J35"DIAP1 _n THE PRG„-.". 8. NOT:=" AND COORDINATE W:-H FNRF ON ALL NORM. WITH WIT -IN FWRF ROW. PRO/IDE D'ETAH -D CONS-R.,CTIGN SC -FOUL F TO EWRR AT BEGINN1NL; OE 03VSTRJC-'ON AND RPOV"D= SLRS°OJENIT REVISED 50880JI= IF SCHEDULE CHANGES, 9. FJRN:S AND :NS-ALL ALL EARTHWOFK OUTSIDE 0= T-E LIM:-5 OF THE R/TLROAD 8 CONCRE-E 0 8 0 LC YZ 0- c. URNS- 1N PLAC, A_L CONJU. . I IL_ 21R ANC 2RJ'I-1'_D COVJ6 ROCK As RaLAILD IC THE :NS-4LLATII}NI 0= THE PA:_'0\D 2080?ET= ;RG55:'E P\NE_C. 7. -URN'S AND INS -AI MEMBRANE E4RR10 8-11 6" PER:CRATER )RA-NAI-r RIR- WHERE RFULIR80, 4. EXLA'iAEE EXISTING SUBORADE EASE MATERIAL. 5. =1IRN'S- AND INS-41 NEW 5TA?l117FR 9AS= MATFRIA 6. WELD RAIL CONTIIIUOLSL/ WIT -IN T1-E L:M:`S JF -HE CROSSING. 1. UR8 _S , .NSIAL_ AND MAINIA-N SIGN MOJN1 INC BFACK_IS IGV -L RL8011 SIGNS IP'5-8) A- - E CITY'S E PENSC- 8 Rr-MO',r AND STORE --C TEMROR4RY DETOJP CROSSING SIGNALS AND CONCRETE "'ANFLS ZOP JSE ON FUTURE FROJEC-S WITH THE CITA OF FOR- WORTH. --ITC PROCEDURE WI L -AKE PLACE. AFTER IHE DE-OLR ES N0 LONGER NEEDED. 9. SURFAC.NG OF IHE RAMS AP=HOA. 701i' 0 800 EAGI OF IHE HR0=J5E✓ CONCRL1E 'ANELS. N0I FOX CONSTRUCTION 1 TtA JI'fl 1rm.' �eFREESE "+" ` c &NICHOLS : .,.,.,r.r - Texas Deportment of rransportation CI 3013 AIC rNI a;G JFD 1 0171 Exhibit A Henderson Detour (P. 2 of 2) g IT 7005 I AAA LI'd', - IV! - ARPANI 05 05 , etc EXHIBIT A Page 14 of 22 BEING BEGINNING THENCE THENCE THENCE THENCE THENCE THENCE THENCE THENCE EXHIBIT A Exhibit B-1 Henderson Detour (P. 1 of 3) Page: 1 of 3 a tract of land located in the Richard Crowley Survey, Abstract No. 313, in the City of Fort Worth, Tarrant County, Texas and being a portion of a tract of land described in a deed to the Fort Worth & Western Railroad Company (FWWR), recorded in Volume 10080, Page 31, Deed Records, Tarrant County Texas (D,R.T.C.T.), and being more particularly described by metes and bounds as follows: at a 1/2" iron rod with cap stamped "Fulton Surveying" (control monument) found, at the most Westerly Southwest corner of a tract of land described in a deed to the State of Texas, recorded in Volume 2394, Page 269 D.R.T.C.T., on the Southeasterly right-of-way line of said FWWR; North 58 degrees 01 minutes 39 seconds West, a distance of 101.31 feet to a point on the Northwesterly right-of- way line of said FWWR; North 22 degrees 16 minutes 36 seconds East, along said Northwesterly line of the FWWR right-of-way, a distance of 73.83 feet to a 1" iron rod found (control monument) at the intersection of the Northeasterly right-of- way line of North Henderson Street (a variable width R.O.W ), same being the most Southerly corner of a tract of land described in a deed to SBG Bailey, LLC (an undivided one-half interest) and JGM McMahon LLC (an undivided one-half interest), recorded in Instrument No. D211202871, D.R.T C.T., said tract being Block 1, Henderson Street Bazaar, an addition to the City of Fort Worth Tarrant County, Texas, recorded in Volume 388- 160, Page 8, Plat Records, Tarrant County, Texas, (P,R.T.C.T ); North 22 degrees 14 minutes 52 seconds East, along said Northwesterly line of the FWWR right-of-way, a distance of 107.31 feet to a point; South 58 degrees 01 minutes 39 seconds East, a distance of 50.59 feet to a point; South 22 degrees 15 minutes 07 seconds West, a distance of 27.93 feet to a point; South 58 degrees 01 minutes 39 seconds East, a distance of 50.78 feet to a point on the Southeasterly line of the FWWR right-of-way and the Westerly line of a tract of land described in a deed to Tarrant Regional Water District, by Judgment recorded in Instrument No. D211294524, D.R.T,C.T ; South 22 degrees 16 minutes 41 seconds West, along the Southeasterly line of the FWWR right-of-way and the Westerly line of Tarrant Regional Water District tract, a distance of 142.55 feet to a point being the most Westerly corner of said Tarrant Regional Water District tract and the most Westerly Northwest corner of said State of Texas tract on the Northeasterly right-of-way line of North Henderson Street; South 22 degrees 22 minutes 57 seconds West, along said Southeasterly line of FWWR right-of-way and the Northwesterly line of said State of Texas tract, a distance of 10.65 feet to the POINT OF BEGINNING and containing 16,696 Square Feet or 0 383 acre of land, more or less Note: Survey sketch to accompany this legal description. Note: Basis of bearing = NAD 83 Texas North Central Zone (4202). Note: Coordinates shown are surface coordinates based on NAD 83 Texas North Central Zone (4202) with an adjustment factor of 1.0001375289116 G:\FW06\05241Survey1PARCEL-RRX2-HENDERSON DETOUR:doc EXHIBIT A I Page 15 of 22 EXHIBIT A Exhibit B-1 Henderson Detour (P. 2 of 3) Page: 2 of 3 I do hereby certify on this 16th day of September 2013 that a survey was made on the ground as per the field notes shown on this survey and accurate as to the boundaries and areas of the subject property By: TranSystems Kenneth D. Erwin Registered Professional Land Surveyor Texas Registration No. 5554 Dated: 1-04 /6 t a 13 TH D. ERWIN„ ma • , , 0.,..p.. G:\FW06\0524\Survey\PARCEL-RRX2-HENDERSON DETOUR.doc EXHIBIT A I Page 16 of 22 .O OJ CO 1.11 J d w c� J 6 1— }: cc w . o c SBG BAILEY. LLC ET AL INST, # D211202871 D.R.T.C.T. Of HENDERSONLOCK STREET BAZAAR VOL. 388-160, PG. 8 P.R.T.C. T. CONTROL POINT CC6 N 6,971,351.9471 E 2,311,947.2753 q N / E 500 W. 7TH ST., SUITE 1100 FORT WORTH, TEXAS 76102 81T-339-B950 rAX 817-336-2247 PROJ NO: P202 06 0524 SCALE: 40 DATE: 9-16-2013 DESIGNED BY: DRAWN BY: J.E.N. CHECKED BY: K.D.E. I D-RRX2-HEN-DETOUR_V-P8000 41 VISE11: 1" IRON ROD FOUND (CONTROL MONUMENT) N 6,963,134,6531 E 2,323,227.4880 NN N 6,963,066.3329 E 2,323,199.5002 6,962,932.4628 2,323,144.6595 1 dgn EXHIBIT A N 6,963,233.9710 E 2,323,268.1158 A•) O POINT OF BEGINNING 1/2" CIRF STAMPED "FULTON SURVEYING" (CONTROL MONUMENT) N 6,963,012.6889 E 2,323,285.4402 �v v i2 KENNETII11 ERWIN `' o 55,54�f A 0 `39 ., T CONTROL POINT CC4 N 6,968,816.7590 E 2,324,915.0130 N 6,963,207.1817 E 2,323,311.0334 6,963,181.3332 2,323,300.4575 1 N 6,963,022.5375 E 2,323,289.4960 1/2" BRITTAIN & CRAWFORD CAPPED IRON ROD FOUND N 6,962,915.0056 E 2,323,245.2129 SHEET 1ITLE PROJECT 0, 9 4- 4) T o T G T ' qs 0 87 40 20 40' N E 6,963,154.4437 2,323,343.5356 TARRANT REGIONAL WATER DISTRICT INST, # D211294524 D. R. T. C. T. { GRAPHIC SCALE IN FEET Exhibit B-1 Hende son Detour (P. 3 of 3) TRINITY RIVER VISION NOTE: COORDINATES SHOWN ARE SURFACE COORDINATES BASED ON NAD 83 TEXAS NORTH CENTRAL TONE 142021 WITH AN ADJUSTMENT FACTOR OF 1.0001375289116 PG, 3 of 3 40 EXHIBIT A ( Page 17 of 22 EXHIBIT A 0 POINT 6 N� 6, 963, 233. 97 Eo 2, 323, 268. 1 2 HENDERSON DETOUR EASEMENT POINT 5 6, 963, 066. 33` ▪ __• 2, 323, 1 99. 50. SCALE I NilF.EAU: C Exhibit B-2 Henderson Detour (P. 1 of 1) POINT 1 N< 6, 963, 207. 18 2, 323, 31 1 a 03 POINT 2 'IN: 6, 963, 1 81 e 33 'E: 2, 323, 300. 46 —POINT 3 N: 6, 963, 1 54. 44 E: 2, 323, 3430 54 POINT 4 N: 6, 963, 022. 54 E: 2, 323, 289. 50 HENDERSON STREET BRIDGE RAILROAD CONSTRUCTION FREESE EASEMENT re aNICHOLS • 09/16/2013 EXHIBIT A ( Page 18 of 22 EXHIBIT A Exhibit C Henderson Detour (P. 1 of 3) RAILWORKS n' October 4, 2012 William Parker Director of Projects FWWR 2495 East Long Ave Fort Worth, TX 76106 Reference: Henderson Street Crossing RAILWORKS Track Systems, Inc. P.O. Box 7128 Ft Worth, Texas 76111 3016 N Sylvania Ft Worth, Texas 76111 817-805-7039 Fax 817-549-0019 In response to the referenced inquiry, RailWorks Track Systems, Inc. (RailWorks) proposes to furnish labor, equipment and material (except for those items furnished by the owner or others) necessary to complete the above referenced project and described in the attached scope of work for the total lump sum price of : $67,000.00. Labor & Equipment $ 30,785.00 Materials $ 36,215.00 Total $ 67,000.00 See the attached Scope of JVork and Clarifications as well as the Standard Terms and Conditions and the Track Inspection Limitations of Liability The Standard Terms and Conditions and the Limits of Liability are included here or may already be on file with your company, which in either case should be considered part of this proposal Should any of these items be omitted please contact us for a copy. We propose to continence work on this project within 15 working days after notice to proceed and receipt of a formal purchase order. Also, we propose to complete this work within 7 working days thereafter, barring inclement weather and contingent upon receipt of material. Overtime, shift and/or weekend work is included unless stated otherwise in the scope of work. This proposal shall remain firm for your acceptance for a period of 30 days and will then be subject to review. We appreciate the opportunity to present this proposal for your consideration and trust that it will meet with your requirements. However, should it fall short of your requirements or further information is needed, please contact RailWorks at your earliest convenience to discuss Sincerely, RailWorks Track Systems, Inc. Accepted By: (If Applicable sign & return): Stewart Hoffman, CSP Area Manager Date: EXHIBIT A I Page 19 of 22 EXHIBIT A ATTACHMENT A. Exhibit C Henderson Detour (P 2 of 3) Scope of Work and Clarifications: RailWoiks proposes to install an 81 ft. new concrete "lag type" crossing using new panels with attached rubber flange -way filler and new 9 ft. ties. RailWorks will also install 15 additional new 9' ties outside each end of the new crossing. RailWorks will anchor the new crossing solid and anchor ever other tie to the existing crossing to comply with the current FWWR CWR policy. RailWorks will make 6 thermite welds to eliminate all the joints in the new crossing and all the joints to the existing crossing including the comp -welds. When we weld all the joints we are to crop all the rails to eliminate all the bolt holes. FWWR is going to supply three (3) 80' 112# rails for the project. RailWorks will install weld straps over the two comp -welds. RailWorks will surface the track from the existing crossing a sufficient distance to stabilize the approach to new crossing to the east. RailWorks will install filter fabric over the ballast section beyond the panels to prevent the ballast from being fouled by the road base (base installed by others). The cost to remove the panels at a later date and haul them to Hodge yard is included. RailWorks will supply any ballast needed for the new crossing area. RailWorks will remove all used material from the jobsite. Material will be stored at Hodge yard or put into haul off bins, Exclusions Rail for Project (3 ea 80' 112#) All dirt work including base material outside of crossing panels All survey work Concrete Work Site drainage outside of crossing panels Drawing or Design Work Testing or Lab work Pipeline relocating or encasing Utility Movement or locating EXHIBIT A I Page 20 of 22 EXHIBIT A ATTACHMENT B Exhibit C Henderson Detour (P. 3 of 3) Effective Jan. 20i0 supersedes previous versions Standard Terms and Conditions For track repairs in the State of Texas, labor and equipment are taxable while material ' are not, provided the owner gives a tax exemption certificate to us. For new construction (State of Texas), taxes are not applicable on any portion of the contract provided the client (or owner, user, et.) gives a tax exemption certificate to us. Unless stated othenvise RAILWORKS Track Systems, Inc. (hereinafter referred to as RAILWORKS) pricing is without taxes. Tax laws for States other than Texas in which work is performed, though taxes not included in the proposal unless stated to the contrary, will apply. Identifying, locating, relocating, removal, replacement and/or repairs of any existing underground pipes, utilities, wires, cables, concrete, asphalt or other structures are the responsibility, and to the account of, the client. The Client (or owner, user, etc.) shall apply for and obtain all permits and licenses required for the Work at its' expense and be responsible for securing inspections and approval of the Work from all authorities having jurisdiction over the Work unless stated otherwise in the proposal. Tie disposal is not included in this proposal unless stated otherwise in the scope of work. Old ties will be stockpiled at a designated location on the jobsite. Old rail and other metal track material will be hauled off site unless stated otherwise in the scope of work. Should tie disposal be specifically included in the proposal to your company, the actual disposal may be subcontracted to a company with the proper credentials to legally do so. Before disposal can take place, papers clearly indicating whom the "Generator" (i.e. owner, user, et.) is will be provided to the customer for the Generator to sign. Should an entity, other than the customer, be the Generator it will be the responsibility of the customer to obtain the signature of the Generator for the purposes of legal disposal. If arrangements can be trade for a method of legal disposal, other than that described above, you will be notified. Should any contaminants be identified during or after the disposal of the ties, any and all remediation (and associated) costs will be to the account of the Generator and/or client, owner, user, etc. Excavated materials such as dirt, ballast, base, concrete, asphalt, et al will require verification of non -contamination from the Generator (i.e. owner, user, et.) to the Landfill Owner prior to any dumping of the material in question. However, should any contaminants be identified during or after the dumping of this material, any and all remediation (and associated) costs will be to the account of the Generator and/or client, owner, user, et. Unless stated otherwise, excavated material and other spoil will be stockpiled on site. Overtime, weekend work and/or shift work is not included unless stated othenvise in the proposal. We hereby warrant all work constructed under this proposal to be free from defects in materials and/or workmanship for a period of one year from date of substantial completion or the date of beneficial occupancy by the client, whichever comes first. RAILWORKS is not bound to repair, replace or be otherwise held responsible for material, equipment and/or workmanship that has been improperly maintained and inspected, altered or tampered with by unauthorized and or untrained personnel, subjected to abrasive or corrosive conditions, normal wear and tear, damage caused by rolling stock, or has been used or maintained improperly. Exceptions taken to this warranty may be noted in the proposal. Repairs, or other work, classified as "temporary" do not carry any warranty. Customer agrees that it will not recruit, interview, solicit or hire RAILWORKS employees, whose job responsibilities require them to have contact with the customer, without prior written consent from RAILWORKS unless such employee has been voluntarily separated from RAILWORKS for more than one year or involuntarily separated from RAILWORKS by RAILWORKS. Customer and RAILWORKS agree, due to the difficulty of determining the damages to RAILWORKS for breach of this paragraph, that RAILWORKS, at its option, may select liquidated damages in the amount of S50,000 or 100% of the employee's annual salary; ti,4iichever is greater, as its remedy for each violation as an alternative to injunctive relief This provision shall survive the termination, expiration or cancellation of this agreement for a period of one year. RAILWORKS will progress invoice not less than monthly with no retainage withheld and due Net 30 days from invoice date unless specifically negotiated otherwise and confirmed by purchase order or contract. Invoices over 30 days past due will be charged Interest at 1.5% per month. RAILWORKS will complete the Work within the times specified in the proposal provided however, that RAILWORKS will not be liable directly or indirectly, for delays of carriers or delays from labor difficulties, shortages, strikes or stoppages of any sort, fires, accidents, failure or delay in obtaining materials or manufacturing facilities, delays caused by customer, acts of government, war, bad weather, or any causes beyond the control of RAILWORKS or causes commonly designated Acts of God or force majeure, and when such delays arise, the completion date shall be extended accordingly. Bonding (financial), though available, is not included for this Work unless stated otherwise in the proposal. Authorization to do the work in question signifies the Client's acceptance of these Terms and Conditions including any mutually agreed upon exceptions and/or clarifications. Our Standard Insurance Coveraaes are as follows: (Additional Coverages and higher Limits may be available if necessary.) General Liability Excess Liability (Umbrella) General Aggr. $ 4 Mill. Each Occurrence $ 10 Mill. Products - Comp/Op Aggr. $ 4 Mill. Aggregate $ 10 Mill. Personal & Adv. Injury $ 2 Mill. Workers Compensation & Employer Liability (Texas), Each Occurrence $ 2 Mill EL Each Accident $ 1 Mill. (Each Accident) Fire Damage (Any one fire) $ 100 Thou. EL Disease - Policy Lim. $ 1 Mill. Med Exp (Any one person) $ 5 Thou. EL Disease - $ 1 Mill. (Each Employee) Auto Liability Combined Single Limit $1 Mill. (713) 673-6208 I Fax: (713) 672-9614 EXHIBIT A I Page 21 of 22 EXHIBIT A Exhibit D Henderson Detour Design / Build Warning System Cost Quotation to be provided and agreed to by Licensor and Licensee and substituted herewith. EXHIBIT A 1 Page 22 of 22 PE la WORKS October 7, 2013 Mr. William R. Parker Director Planning & Special Projects Fort Worth & Western Railroad 2495 East Long Avenue Fort Worth, TX 76106 RailWorks Signals & Communications, Inc. 9250 Baymeadows Road Suite 200 Jacksonville, FL 32256 Tel: 904-296-5055 Fax: 904-296-5056 Subject: Temporary Gate Flasher Crossing Install at Henderson Street and Eventual Removal Dear Mr. Parker, RailWorks Signals & Communications, Inc. (RSC) is pleased to submit our price for the proposed work at Henderson Street in Fort Worth, TX. All prices listed on this document are good for 30 days after the date listed above. The price of this estimate does not include any track work, RSC is only bidding on the signal work. If you have any questions regarding this proposal please feel free to contact us. Project Information: Install 4 gate flashers and 6' X 6' bungalow. Install new cable to warning devices and new track connections. When civil work is complete remobilize and retire the crossing. Scone of Work: 1. RSC will provide engineering for new crossing and will make a copy of the plans available to the FWRR for final approval. 2. RSC will procure all required material and wire 6' X 6" bungalow according to approved circuit plans. 3. RSC crew will travel to jobsite. 4. RSC crew will provide equipment and tools necessary to complete proposed work. 5. RSC crew will install 4 new flashers in the appropriate quadrants. 6. RSC crew will install new 6' X 6' bungalow in the appropriate quadrant. 7. RSC crew will install new cable to warning devices and make all required track connections. 8. RSC crew will install new power cable to owner provided meter service. 9. RSC crew will eventually return to Henderson Street to retire this crossing. When this happens all retired material will be hauled to the closest FWRR yard. 10. RSC crews will provide documented pre -test and in-service test sheets to owner. Our price proposal is also based on the following assumptions and clarifications: 1. All hazardous material/substance work of any kind is excluded. RSC will not assume generator status for any hazardous materials uncovered and discovered at the project site. 2. Permits and fees are excluded. 3. Utility company fees/charges and utility relocations are excluded. 4. We assume normal site and soil conditions; no rock excavation. 2 October 7, 2013 5. Sales tax is included in the price of this proposal. 6. Railroad protective liability insurance is not included in the price of this proposal. 7. Bonding for this project is not included in the price of this proposal. 8. Prevailing wage rates are not included in the price of this proposal. 9. The cost of Railroad flagging service is not included in the price of this proposal. 10. Any track work or installation of insulated joints is excluded. 11. RSC is not responsible for the bonding of any jointed rail. All bonding shall be performed by the owner 12. RSC is not responsible for the location of any owner signal cable. 13. RSC has allowed for mobilization to the project site. 14. Payment for this job shall be broken up into 2 phases; installation and removal of temporary crossing. Payment for each phase shall be due within 60 days of acceptance by the FWWRR. 15. This price proposal is subject to a mutually agreeable contract between RSC and the Owner's Construction Manager. Total Price for Crossing Install at Henderson Street, Phase 1: $212,550.00 Total Price for Retiring Crossing at Henderson Street, Phase 2: $24,700.00 Total Price for all Work: $237,250.00 Itemized breakdown of all signal material used attached to this document All work to conform to specifications and requirements below: Installation and Design will be in compliance with the American Railway Engineering and Maintenance - of -Way Association (AREMA). All work will also be in compliance with all FWWRR Signal Standards. Safety: Safety is of primary importance and is the responsibility of personnel at all levels. Safety standards for this project fall under the jurisdiction of FWWRR. RCS will comply with safe practices and standards set forth per the contract. • Safety Briefings to be held daily and as work conditions change. • RSC employees have Roadway Worker Protection (RWP) certification. • RSC crews will have radio on Railroad frequency to communicate with dispatcher if necessary. • RSC maintains an internal safety manual as part of our safety program. • RSC randomly drug and alcohol tests their employees per FRA guidelines. RSC appreciates the opportunity to provide you this price proposal and. look forward to working on this project with you. Regards, Jason Quinlan Project Engineer/Estimator RailWorks Signals & Communications iQuinlan(a,railworks.com Cell (404) 416-9484 EXHIBIT B NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour Crossing) STATE OF TEXAS § § COUNTY OF TARRANT § KNOW ALL MEN BY THESE PRESENTS: That, Fort Worth & Western Railroad Company, a Texas corporation (' Licensor"), of the County of Tarrant, State of Texas, for and in consideration of $10.00 and other good and valuable consideration and the performance by The City of Fort Worth a Texas home rule municipality ("Licensee' )of all covenants and agreements contained in that one certain Settlement Agreement of even date herewith (the 'TRV Bridges Settlement Agreement') between Licensor and Licensee, the receipt and sufficiency of which are hereby acknowledged, in conjunction with, and in order to accommodate the Trinity River Vision Project, including the construction of a new North Main Street overpass (the "Bridge") necessitating a temporary detour road during the construction thereof, by these presents GRANTS unto Licensee, without express or implied warranties, and all warranties that might arise by common law and the warranties in Section 5.023 of the Texas Property Code (or its successors) are excluded, temporary non-exclusive licenses for (i) the construction, use and maintenance of a temporary public street crossing upon a portion of Licensors right-of-way and railroad facilities located in the City of Fort Worth, Tarrant County, Texas, more particularly described in Exhibit(s) A — B attached hereto and incorporated herein for any and all purposes (the "Crossing Property ); (ii) the installation, maintenance and use of Warning and Safety Devices (hereinafter defined) upon a portion of the Crossing Property, and (iii) the installation, maintenance and use of any necessary part of that portion of Licensor's right-of-way that is one thousand two hundred (1,200) feet to the east and one thousand two hundred (1 200) feet to the west of the Crossing Property (the ' Devices Property") for the installation and placement of the Operating Equipment (hereinafter defined), which licenses shall hereinafter be referred to together herein as the "License". The Crossing Property and the Devices Property are sometimes referred to herein as the 'Property." 1. The License granted herein shall be solely for the following purposes (collectively, the "Project"): a. The construction, operation, maintenance, repair, replacement or removal of a temporary railroad crossing for a public street known as North Commerce Street Detour (the "North Commerce Street Detour Crossing") in, TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I :\03704\0047\M M2395. DOCX Page 1 EXHIBIT B 1 Page 1 of 22 EXHIBIT B upon, under and across a portion of the Crossing Property and Licensor's railroad facility located thereupon as described and shown on attached Exhibit(s) A — B together with the right and privilege at all times subject to the terms hereof, to enter upon the Crossing Property, or any part thereof, for the above purposes; b. The installation, operation, maintenance, repair, replacement, or removal of railroad warning and safety devices and supplemental safety measures more particularly described in Exhibit(s) C — D attached hereto and incorporated herein for any and all purposes ("Warning and Safety Devices") for the North Commerce Street Detour Crossing in, upon under and across a portion of the Crossing Property, together with the right and privilege at all times, subject to the terms hereof, to enter upon the Crossing Property, or any part thereof, for the above purposes, and c. The installation, operation, maintenance, repair, replacement, or removal of equipment integral and necessary to the operation of the Warning and Safety Devices for the North Commerce Street Detour Crossing more particularly described in Exhibit(s) C — D attached hereto and incorporated herein for any and all purposes ('Operating Equipment") in, upon, under and across a portion of the Devices Property, together with the right and privilege at all times, subject to the terms hereof, to enter upon the Devices Property, or any part thereof for the above purposes 2. The term of this License Agreement shall be for a term commencing on the Effective Date and continuing until ninety (90) days following the completion and opening of the Bridge to regular vehicular traffic. In addition, the Licensee shall have no right to use the North Commerce Street Detour Crossing other than in conjunction with the construction of the Bridge. 3. The North Commerce Street Detour Crossing and Warning and Safety Devices shall be constructed and/or installed in accordance with the "Plans and S pecifications' provided and more particularly described in Exhibit(s) A, C and D attached hereto and incorporated herein for any and all purposes. Licensee shall, at its sole cost and expense, and subject to any statute, order, rule or regulation or any public authority having jurisdiction thereof locate, construct and maintain the North Commerce S treet Detour Crossing and Warning and Safety Devices in such a manner and of such material that it will not at any time be a source of danger to or interference with the present tracks, roadbed and property of Licensor, or safe operation of Licensor's railroad. Additionally, Licensee shall at all times comply with the National Railroad S afety Standards and American Railway Engineering Association Standards 4. Licensee shall use the License solely for the purposes provided for herein and shall not use them for any other purpose whatsoever. TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\M M2395. DOCX Page 2 EXHIBIT B 1 Page 2 of 22 EXHIBIT B 5. Licensee shall, within thirty (30) days of invoice to Licensee, reimburse Licensor for any expenses incurred by Licensor for flagmen to protect its railroad traffic during installation of the North Commerce Street Detour Crossing, Warning and Safety Devices and Operating Equipment and for any other reasonable expenses incurred by Licensor arising out of or as a result of the installation, operation or maintenance of such facilities as provided for hereunder. 6. Licensee shall, upon giving Licensor seventy-two (72) hours' advance n otice by contacting the Licensor's Chief Engineer, have the right to enter the Crossing Property and the Devices Property for the purpose of installing, maintaining repairing or removing the North Commerce Street Crossing, Warning and Safety Devices and Operating Equipment. In the event of any emergency, the seventy-two (72) hour notice shall be waived provided that Licensee or its contractors shall make every effort to n otify Licensor of the nature of the emergency and that entry onto the right-of-way has o ccurred. 7. At all times during construction, maintenance, repair or removal of the North Commerce Street Crossing, Warning and Safety Devices and Operating Equipment, Licensee or its contractors shall keep the right-of-way in a neat and safe condition and shall keep the tracks clear of obstructions In addition, Licensee or its contractors shall keep all equipment, tools and materials stored at least fifteen (15) feet from the center line of Licensor's track. Explosives or other highly flammable substances or any dangerous materials regulated pursuant to federal state or local laws will not be stored on the Property. Additionally, Licensor or its contractors shall remove all tools, equipment and material from the Property upon completion of work restoring the premises to the same state and condition as when Licensee and/or its contractor entered thereon. 8. Upon the completion and opening of the Bridge to regular vehicular traffic, Licensee shall, at its sole cost and expense, barricade within twenty four (24) hours and remove within ninety (90) days the Warning and Safety Devices and Operating Equipment from the Property and return the crossing to its closed condition pursuant to the 2005 Settlement Agreement (as such term is defined in the TRV Bridges Settlement Agreement). 9. Notwithstanding any other provisions hereof, Licensee shall comply with all statutes, ordinances, rules, regulations, orders, procedures, standards and decisions (hereinafter referred to as "Standards"), issued by any federal, state or local governmental body or agency established thereby (hereinafter referred to as "Authority") relating to Licensees use of Licensor's property hereunder. In its use of the Property, Licensee shall at all times be in full compliance with all Standards, present or future, set by any Authority. 10. Licensee, or its contractor, at its sole cost and expense, shall procure and maintain during the life of this Agreement except as otherwise provided, the following insurance coverage: TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) 1:10370410047\M M2395. DOCX Page 3 EXHIBIT B 1 Page 3 of 22 EXHIBIT B a. Commercial General Liability Insurance. Commercial General Liability ("CGL") insurance shall contain broad form contractual liability with a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $4,000,000. Contractual liability shall afford coverage for sole negligence. CGL insurance must be written on ISO Occurrence Form CGOO 01 12 04 (or a substitute form providing equivalent coverage), including but not limited to coverage for the following: • Bodily injury • Property damage • Personal injury and advertising injury • Fire legal liability • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • • • • • CG 20-10-0704 and CG 20-37-0704 (or substitute forms providing e quivalent coverage). The exclusions for railroads (within fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds terminals u nderpasses or crossings) Any exclusion related to the explosion, collapse, and underground hazards shall be removed and shall be indicated on the certificate of insurance. Waiver of subrogation Licensor named as an additional insured. b Business Automobile Insurance. Business Automobile Insurance shall contain a combined single limit of at least $1 000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non -owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • • • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS-90) if required by law Waiver of subrogation. Licensor named as an additional insured. c. Workers Compensation and Employers Liability Insurance Workers Compensation and Employers Liability Insurance shall contain covereage, including but not limited to coverage for the following: TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\M M2395. DOCX Page 4 EXHIBIT B I Page 4 of 22 • • EXHIBIT B Licensee's and its contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement Employers Liability (Part B) with limits of at least: $1,000,000 each accident, $1,000,000 disease policy limit $1,000,000 each employee If Licensee or its contractor is self -insured, evidence of state approval must be provided along with evidence of excess workers compensation coverage. Coverage shall include liability arising out of the Federal Employers Liability Act, if applicable. The policy shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Waiver of subrogation. d. Pollution Liability Insurance. Pollution Liability Insurance must be written on ISO form Pollution Liability Coverage Form Designated Sited CG 00 39 12 04 (or a substitute form providing equivalent coverage), with limits of at least $5 000,000 per claim and an aggregate limit of $10,000,000 with a deductible not to exceed $100,000. Licensee or its contractor warrants that any retroactive date applicable to the coverage under the policy is the same as or precedes the Effective Date of this Agreement and that continuous coverage will be maintained or an extended discovery period will be exercised for a period of five (5) years beginning from the time the work under this Agreement is completed or if coverage is cancelled for any reason the extended discovery period will be exercised for the maximum time allowed by the policy. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials from the Premises, Licensee and its contractor shall be responsible for any and all losses claims or demands arising from the disposal site operator accepting and/or disposing of such materials. e. Umbrella or Excess Liability Insurance. Umbrella or Excess Liability Insurance must be written on a 'follow form" over the insurance coverage required in Items A, B and C above, with limits of $10,000 000. f. Railroad Protective Liability Insurance. Railroad Protective Liability Insurance ("RPLI') must be provided by the Licensee, or its contractor, prior to commencing, and at all times when, Licensee or its contractors are performing any work on the Property. RPLI shall provide coverage of at least $5,000,000 TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) 16\03704\0047\M M2395. DOCX Page 5 EXHIBIT B J Page 5 of 22 EXHIBIT B per occurrence and $10,000,000 in the aggregate The policy shall be issued on a standard ISO form CG 00 35 12 07 (or a substitute form providing equivalent coverage). The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • Licensor named as the insured • Policy shall not include a Deductible or Self Insured Retention • RPLI shall be primary and non-contributory Other Requirements g Licensee's contractor's policies are to be endorsed as primary and non-contributory for general liability coverages and excess of the required RPLI policy. h. Punitive damage exclusion, if any, must be deleted, which deletion shall be indicated on the certificate of insurance. i. Licensee and its contractor agree to waive their right of recovery, and their insurers, through policy endorsement, agree to waive their right of subrogation against Licensor. Licensee and its contractor further waive their right of recovery, and their insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody and control. Licensee's contractor's insurance shall be primary with respect to any insurance carried by Licensor. All waivers of subrogation shall be indicated on the certificate of insurance. j. All policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Licensor as an additional insured. Severability of interest and naming Licensor as an additional insured shall be indicated on the certificate of insurance. The coverage provided to Licensor as an additional named insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 (or substitute forms) provide coverage for Licensor's negligence whether sole or partial active or passive and shall not be limited by Licensee's liability under the indemnity provisions of this Agreement. k Prior to commencing any work, Licensee or its contractor shall furnish to Licensor original certificate(s) of insurance evidencing the required coverage, endorsements and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. Licensee also agrees that: TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\M M2395. DOCX Page 6 EXHIBIT B 1 Page 6 of 22 EXHIBIT B (I) Upon request from Licensor, a duplicate original of any required policy shall be furnished. (ii) Failure to provide evidence of insurance as required by this Section shall entitle, but not require Licensor to (i) suspend immediately, and u ntil such time as Licensee's contractor provides evidence of insurance as required by this Paragraph, Licensee's or its contractor's right, and the right of any of contractor's sub -contractors, to come on or about the Property and to u ndertake any activities contemplated hereunder or (ii) terminate this Agreement u pon the giving of written notice to Licensee as provided for herein and Licensee's failure to provide such evidence of insurance prior to the expiration of forty-five (45) days from the date of such notice (iii) The right of Licensee, its contractors, subcontractors, agents and employees to use or occupy the Premises in accordance with this Agreement shall cease immediately upon Licensee s failure to provide evidence of insurance as required by this Section and shall continue until Licensee provides evidence of insurance as required by this Section, subject, however to the right to terminate in (ii) above. (iv) Acceptance of a certificate that does not comply with this Section shall not operate as a waiver of Licensee's obligations hereunder. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. m. Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's Risk Management personnel. n. The fact that insurance is obtained by Licensee on behalf of Licensor shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. o. Licensor may reasonably modify the required insurance coverage to reflect future risk management practices in the railroad industry and underwriting practices in the insurance industry provided such modification does not result in coverage that is either more demanding of, or expensive for, Licensee s contractor than what is customarily required by other railroads under similar circumstances or renders insurance coverage unobtainable by Contractor p. Licensee waives all rights against Licensor and its agents, officers, directors and employees, where permitted by law, for recovery of damages to the TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\MM2395.DOCX Page 7 EXHIBIT B I Page 7 of 22 EXHIBIT B extent these damages are covered by and actually recovered under the workers compensation and employers liability or commercial umbrella/excess liability insurance obtained by Licensee required by this Agreement, which must be stated on the certificate of insurance. q. Insurance requirements of Licensee, but not its contractor, hereunder may be met by a combination of self-insurance, primary and excess coverage (Railroad Protective Liability Insurance may be procured by Licensee's contractor and shall not be subject to self-insurance). r. All insurance correspondence shall be directed to: Risk Management Department Fort Worth & Western Railroad Company 6300 Ridglea Place, Suite 1200 Fort Worth, Texas 76116 11. Licensee's activities hereunder are to be carried out in a reasonable and timely manner. The North Commerce Street Crossing, Warning and Safety Devices and Operating Equipment, and all parts thereof within and outside of the limits of the right-of-way of Licensor shall be constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant continuous and uninterrupted use of the tracks, right of way and facilities of Licensor and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. 12. Licensee will use reasonable efforts to limit the duration of any interference with Licensor's activities on its right-of-way. 13 It is agreed that should the Property or any portion thereof that is the subject of the License and License cease to be used for public purposes, the License, as to the portion so abandoned, shall immediately cease and terminate. 14. Licensee assumes the entire responsibility for the construction and maintenance of the North Commerce Street Crossing, Warning and Safety Devices, and Operating Equipment, and nothing contained herein shall ever be construed to place upon Licensor any manner of liability for injury to or death of persons, or for damage to or Toss of property arising from or in any manner connected with the construction, maintenance or use of the North Commerce Street Crossing Warning and Safety Devices and Operating Equipment located upon Licensor's property. 15. This instrument is made and accepted subject to any license, easement, right-of-way, lease or servitude of any kind that may be presently in force and affects the Property. It shall be incumbent upon the Licensee to make satisfactory arrangements with the holders of any rights relative to the rights granted Licensee hereunder. In addition, Licensor retains, reserves, and shall continue to enjoy the use of TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\MM2395.DOCX Page 8 EXHIBIT B I Page 8 of 22 EXHIBIT B the surface of the Property for railroad and related uses and any other purpose that does not interfere with and prevent Licensee's stated use of this License. Further, and notwithstanding anything contained in this License to the contrary, Licensor shall retain the right to use the Property and to grant additional licenses and easements to third parties, over, across and through the Property for facilities running parallel with Licensor's right-of-way of which the Property is a part. 16. Fiber optic cable systems may be buried on Licensor's right-of-way. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and Toss of revenue and profits. Licensee shall contact Licensor's Chief Engineer to determine if fiber optic cable is buried anywhere on Licensor's right-of-way to be used by Licensee. If cables or utilities are found, Licensee's contractor will contact the telecommunications company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable all at Licensee's expense, and will commence no work on the right of way until all such protection or relocation has been accomplished. Licensee's contractor shall indemnify and hold the Licensor harmless from and against all costs liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee s contractor's failure to comply with the provisions of this Section. 17. In addition, if a contractor is to do any of the work performed on the North Commerce Street Crossing, Warning and Safety Devices, or Operating Equipment (including initial construction and subsequent relocation or substantial maintenance and repair work) then Licensee shall require its contractor to execute Licensor's form Contractor's Right of Entry Agreement. Licensee acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements and will inform its contractor of the need to execute the Agreement. Under no circumstance will Licensee's contractor be allowed onto Licensor's right of way without first executing the Contractor's Right of Entry Agreement. 18. Licensee agrees to notify Licensor in writing when all work on the railroad's right-of-way is completed. 19. Licensor retains, reserves, and shall continue to enjoy the use of the surface of the property the subject of the License herein for railroad uses and any and all other purposes that do not interfere with and prevent Licensee's stated use of the License. The License is non-exclusive. 20. If any provision of this instrument shall be determined to be invalid, unlawful or unenforceable to any extent at any time, the remainder of the instrument shall not be affected and shall continue to be enforceable as permitted by law. Any invalid, unlawful or unenforceable provision shall be reformed to the extent necessary to render it valid, lawful and enforceable in a manner consistent with the intentions of the parties regarding such provision. TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I :\03704\0047\M M2395. DOCX Page 9 EXHIBIT B J Page 9 of 22 EXHIBIT B 21. Licensor's failure to enforce or exercise its rights under any term, condition or covenant hereof shall not be construed as a waiver of such rights or of such term, covenant or conditions. 22. The License and the License are personal to Licensee. As such, Licensee has no right to assign the License, the License or this instrument in whole or in part, or to sublicense the License or the License in whole or in part. 23. Any notice hereunder to be given by Licensor to Licensee shall be deemed to be properly served if it be deposited in the United States Mail, postage prepaid, addressed to the Licensee at 1000 Throckmorton, Fort Worth, Texas 76102, Attention: Director, Transportation/Public Works Department. Any notice to be given hereunder by Licensee to Licensor shall be deemed to be properly served if the same be deposited in the United States Mail, postage prepaid, addressed to Licensor at 6300 Ridglea Place, Suite 1200, Fort Worth, Texas 76116, Attention. President. The parties hereto may by written notice change the address to which such demands, notices or statements may be sent. 24. All the covenants and provisions of this instrument shall be binding upon and inure to the benefits of the successors, legal representatives and assigns of the parties to the same extent and effect as the same are binding upon and inure to the benefit of the parties hereto, but no assignment hereof by the Licensee, its successors, legal representatives or assigns, or any subsequent assignee, shall be binding upon Licensor without the written consent of Licensor in each instance. 25. The terms hereof and all rights and obligations hereunder shall be governed by the laws of the State of Texas. 26. This instrument shall not be modified except by written agreement of the parties. 27. The rights and privileges granted to Licensee hereunder by Licensor are subject to and conditioned upon Licensee's compliance with its obligations hereunder and under the TRV Bridges and 2005 Settlement Agreements. 28. This instrument, and the TRV Bridges Settlement Agreement together with its attachments, constitute the entire agreement with respect to the subject matter hereof. TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) 1:\03704\00471M M2395. DOCX Page 10 EXHIBIT B I Page 10 of 22 EXHIBIT B IN WITNESS WHEREOF, this instrument is executed on the day of October, 2013 (' Effective Date"). FORT WORTH & WESTERN RAILROAD COMPANY By: Steven P. George President and CEO AGREED TO AND ACCEPTED* THE CITY OF FORT WORTH, TEXAS, a municipal corporation By: Fernando Costa, Assistant City Manager RECOMMENDED BY: Douglas W. Wiersig, Director, Transportation and Public Works Department APPROVED AS TO FORM AND LEGALITY: M&C: Assistant City Attorney Date: ATTEST: Mary J. Kayser City Secretary TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\M M2395. DOCX Page 11 EXHIBIT B I Page 11 of 22 EXHIBIT B STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of October, 2013, by Steven P. George President and CEO of Fort Worth & Western Railroad Company, a Texas corporation, on behalf of said corporation. Notary Public, State of Texas AFTER RECORDING RETURN TO: Mr. Doug Black Assistant City Attorney The City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 TEMPORARY PUBLIC STREET CROSSING AND RAILROAD WARNING AND SAFETY DEVICES LICENSE (North Commerce Street Detour) I:\03704\0047\MM2395.DOCX Page 12 EXHIBIT B I Page 12 of 22 GENERAL NOTES: 0 a RESPONSIBILITIES OF THE STATE OF TEXAS OR ITS CONTRACTOR 1 FURNISH AND INSTALL ASPHALT PAVEMENT TO MATCH THE GRADE OF RAILROAD PLANKS 2 FURNISH AND INSTALL THE APPROPRIATE PAVEMENT MARKINGS AS OUTLINED ON THE ATTACHED LAYOUT AND STANDARD SHEET AND IN ACCORDANCE WITH THE GUIDELINES IN THE TEXAS MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES (TMUTCD) 3 FURNISH AND INSTALL THE FOLLOWING SIGNS IN ACCORDANCEWITH THE TEXAS MUTCD AND THE STANDARD HIGHWAY SIGN DESIGNS MANUAL FOR TEXAS (SHSD) 2-W10-1, 2-R15-4 (NUMBER OF SIGN AND QUANTITY) 4 PROVIDE ALL TRAFFIC CONTROL DURING CONSTRUCTION IN ACCORDANCE WITH THE GUIDELINES IN THE TEXAS MUTCD INCLUDING THAT NEEDED WHILE ROADWAY WORKERS ARE PRESENT 5 MAINTAIN THE PAVEMENT MARKINGS AND ADVANCE WARNING SIGNS PLACED ALONG THE ROADWAY(S) UNDER THEIR JURISDICTION IN ACCORDANCE WITH THE TEXAS MUTCD AND AS SHOWN ON THE LAYOUT AND STANDARD SHEETS AS ACKNOWLEDGED ON THE TITLE SHEET RESPONSIBILITIES OF THE CITY OF FORT WORTH OR ITS CONTRACTOR 1 TRIM AND MAINTAIN TREES AND VEGETATION FOR ADEQUATE VISIBILITY OF THE CROSSING SIGNALS AND ADVANCED WARNING SIGNS AS ACKNOWLEDGED ON THE TITLE SHEET RESPONSIBILITIES OF THE FORT WORTH AND WESTERN RAILROAD OR ITS CONTRACTOR 1 INSTALL ONE 72 FOOT CONCRETE CROSSING IN FULL WIDTH FOR THE TEMPORARY DETOUR 2 FURNISH IN PLACE ALL CONDUIT, FILL DIRT AND CRUSHED COVER ROCK 3- FURNISH AND INSTALL MEMBRANE FABRIC WITH 6' PERFORATED DRAINAGE PIPE WHERE REQUIRED 4. EXCAVATE EXISTING SUBGRADE BASE MATERIAL 5 FURNISH AND INSTALL NEW STABILIZED BASE MATERIAL 6 WELD RAIL CONTINUOUSLY WITHIN THE LIMITS OF THE CROSSING 7 FURNISH, INSTALL AND MAINTAIN SIGN MOUNTING BRACKETS FOR THE REPORT SIGNS (R154) AT THE STATES EXPENSE. B- REMOVE AND STORE THE TEMPORARY DETOUR CROSSING SIGNALS AND CONCRETE PANELS FOR USE ON FUTURE PROJECTS WITH THE CITY OF FORT WORTH THIS PROCEDURE WILL TAKE PLACE AFTER THE DETOUR IS NO LONGER NEEDED Cf r_s 102GNf-S dgn EXHIBIT B PAVEMENT REPLACEMENT SECTION r— 2" TYPE A HMAC — 8" TYPE A FLEX -BASE Exhibit A Commerce (P. 1 of 2) ;Sa..: f 005;::4- fJ Cf.9il�J-.�' 7 'f sb 4 s as2/a a es x.,.feb Cm00seilmi fifn ,.,... a, NICHOLS Ion Worth IX 70100-4805 4055 WtlRma.iub 300 Texas Department of Transportation Air (D 2013 NORTH MAIN STREET WU 287P) FWWR EXHIBIT A DOT4 XXX XXX M - RRMP X.X GENERAL NOTES FOR COMMERCE STREET CROSSING DESIGN I FED. ND. rccCML AID PROJECT NO. TJS DIV Nu GauENTION 6 HP 2008 1344) TJS MATE DISTRICT COUNTY 'TREE" TEXAS FTW TARRANT AIG CHECK camircTIaN .c9 JFD 0014 01 022 Nlcawnr NO. BU 2BTF SUCCT 122 EXHIBIT B I Page 13 of 22 ea 0 o 96' BY 10' CONCRETE CROSSING--; r--CAP DROP INLET /2 BELOW EXISTING GROUND BEC1N CURB MEDIAN STA. 31D-2I.41 —.\ 04-00 —CONCRETE CURB HIGHWAY CHOSSInc SIGNAL 'WVTF GATE. SCE TXDCT fi TAIL RCSS111 -09 12' • BEGIN CURB STA. 31010B.46 -44 SEND CURB MEDIA '"-STA. 310452.63 `-END CURB STA. 510.52.6.5 ,bitie Von ukk 12' 6' /stir rF((— r Era EXHIBIT B FWWR ROW BEGIN CURB MEDIAN STA. 310476.46 ...--PROPOSED CROSSING DOT •XXX XXX M ROMx. P X + n n FWWR ROW / —CONCRETE CURB 312+00 N. COMMERCE STREET —END CURB MEDIAN STA. 311-35.41 'PROPOSED LOCATION OF RR CONTROL CABINET Exhibit A Commerce (P. 2 of 2) 0 10' 20' SCALE IN FEET 1 SIGNAL CIRCUTS ARE DESIGNED TO GIVE 20 SECONDS MINIMUM WARNING TIME (NWT). PLUS (4) SECONDS FOR CLEARANCE TIME (CT), PLUS (5) SECONDS FOR BUFFER TIME (BT), PLUS (5) SECONDS FOR EQUIPMENT RESPONSE TIME (ERT) FOR A TOTAL OF 34 SECONDS APPROACH ME, PRIOR TO THE ARRIVAL OF THE FASTEST TRAIN AT THIS CROSSING 2. TRAFFIC DATA. 8,100 ADT AT 20 MPH AND 4 TRAINS PER DAY AT20 MPH 3, CONSTANT WARNING CIRCUITS ARE TO GE USED AT THIS LOCATION. 4 o r. a."..=yi 800590 S�y63 Iron ot anion -an. r� NICHOLS fn15Mw1Rll OMr; le ,® ��"Texas Deportment of Transportation f ©2013 NORTH MAIN STREET (BU 287P) FWWR EXHIBIT A DOT$ XXX XXX M - RRMP X.X RAILROAD DETOUR DEG ION I FEO.RU. TJS 01V.ND. GnBPH ICO6 FNI ' STATE ce:a 1 TEXAS prCK JED CROSSING ON COMMERCE Spneet rEDENAL AIC FFOJECT NC. HP 2008 1344) DISTRICT COunT1 FTW TARRANT cOSTROL b; CT MON JOB 0014 01 1 022 Of I RNHWAY LU. BU 287F ',HE} I ma. 23 EXHIBIT B Page 14 of 22 EXHIBIT B Exhibit B Commerce (P. 1 of 3) Page: 1 of 3 BEING a tract of land located in the John Baugh Survey, Abstract 115 and the F.G. Mulliken Survey, Abstract 1045, in the City of Fort Worth, Tarrant County Texas, and being a portion of a tract of land described in a deed to the Fort Worth & Western Railroad Company (FWWR), recorded in Volume 10080, Page 31 Deed Records, Tarrant County, Texas (D.R.T.C.T.); being more particularly described by metes and bounds as follows: COMMENCING at a 5/8 inch iron rod found (control monument) at the intersection of the Southerly right-of-way line of Eleventh Street (a 60' R.O.W) and the Westerly right-of-way line of Commerce Street (a 70 R.0 W) also being the Northeast corner of Lot 13 Block 45, North Fort Worth Addition, an addition to the City of Fort Worth, Tarrant County, Texas, recorded in Volume 63 Page 149, Plat Records Tarrant County, Texas (P.R.T C.T.); THENCE South 30 degrees 06 minutes 15 seconds East along the Westerly right-of-way line of said Commerce Street, and the Easterly line of Lots 13, 14, 15, 16 17 and 18 Block 45 of said North Fort Worth Addition, a distance of 256.67 feet to a point on the Westerly right-of-way line of said FWWR tract and being the POINT OF BEGINNING of the herein described tract. THENCE North 04 degrees 04 minutes 48 seconds East along the said Westerly right-of-way line of FWWR tract, a distance of 124,59 feet to a point on the Easterly right-of-way line of said Commerce Street being the Southwesterly corner of a tract of land described in a deed to Joe M. Lazo & Angelica Lazo Trustees of the Joe M, and Angelica Lazo Family Trust, recorded in Volume 12277, Page 2201, D.R.T,C T , from which a 1-1/4 inch iron rod found (control monument) being the Northwesterly corner of said Lazo tract at the intersection of the Easterly right-of-way line of Commerce Street and the Southerly right-of-way line of said Eleventh Street bears North 30 degrees 06 minutes 15 seconds West, a distance of 153,63 feet THENCE South 30 degrees 06 minutes 15 seconds East, along the Easterly right-of-way line of said Commerce Street, a distance of 177.96 feet to a point on the Easterly right-of-way line of said FWWR and the Westerly line of a tract of land described in a deed to Tarrant Regional Water District, recorded in Document No. D209336857, D,R.T C.T.; THENCE South 04 degrees 04 minutes 48 seconds West along the Westerly line of said FWWR and the Easterly line of said Tarrant Regional Water District tract, a distance of 124.59 feet to a point on the Westerly right--of-way line of said Commerce Street; THENCE North 30 degrees 06 minutes 15 seconds West along the Westerly right--of-way line of said Commerce Street, a distance of 177,96 feet to the POINT OF BEGINNING and containing 12,458 Square Feet or 0.286 Acre of land, more or less Note: Survey sketch to accompany this legal description. Note: Basis of bearing = NAD 83 Texas North Central Zone (4202). Note: Coordinates shown are surface coordinates based on NAD 83 Texas North Central Zone (4202) with an adjustment factor of 1 0001375289116. G:\FW0610524\Survey\PARCE L-RRX1-MAIN.doc EXHIBIT B Page 15 of 22 EXHIBIT B Exhibit B Commerce (P 2of3) Page: 2 of ; I do hereby certify on this 25th day of September 2012 that a survey was made on the ground as per the field notes shown on this survey and accurate as to the boundaries and areas of the subject property By: TranSystems Kenneth D. Erwin Registered Professional Land Surveyor Texas Registration No. 5554 Dated: 6,-- f G:\F W06105241Survey\PARCE L-RRX 1-MAI N. doc EXHIBIT B I Page 16 of 22 LOT 11\ • \ Lot 11 CONTROL POINT CC6 / \ N 6,971,351.9471 E 2.311.947.2755 \ IRE \ •\\ 0\,O.L1 LOT 13 LOT 14 LOT 10 LOT 9 LONNIE KIRK STOKES DOC.a 0204283061 D.R.T.C.T. LOT 8 it 130 1-1/4' IRON ROD FOUND (CONTROL MONUMENT) 45k1RE POINT OF \ COMMENCING \ 541 IRON FOU DROD (CONTROL MONUMENT)/ q IRE LOT 15 O. LOT 16 x 'POINT OF AA--" N 6.967.614.1005 E 2.324.225.4031,9A EXHIBIT B BLOCK 46 a LOT 12 •N li9J`12/ LOT 11 tgre • Nag Y tL O;, r c- 0 AA N 6.967.738.3720 E 2.324.234.2684 J LOT 17 LONNIE KIRK STOKES DOC.# 0204203061 D.R.T.C.T. NORTH FORT WORTH ADDITION VOL. 63. PG. 149 P.R.T.C.T. BLOCK 45 LOT 7 Tra n Systems) 500 W. 7TH Si.. SUITE 1100 FORT WORTH, TEXAS 7610? 817-339-8950 FAX 817-336-2247 ;I PROJ NO: P202 06 0524 I SCALE: 60 DATE: 9-25-2012 DESIGNED BY: DRAWN BY: K.D.E. CHECKED BY: D.L.D. FILE: P-RRX1-MAIN_V-PB0001,DGN I RIV(SID: LOT 6 i R.C.A..INC. VOL. 14474, PG. 236 D.R.T.C.T. -J — LOT 5 LOT 4 LOT 16 LOT 20 F z � KENNETH D. ERWIN • I. 04 5554 -J a 5" e,© 2 Y fa VA Ind . 300• J• - 'd0 •O O . S.60l- CCOOFt Oa•- . J 0 L' 4, CONTROL POINT CC4 N 6.968.816.7590 E 2.324.915.0130 NOTE: CITY OF FORT WORTH RESOLUTION No. 3321-03.2006 AUTHORIZING THE CLOSURE OF A PORTION OF THE 1100 BLOCK OF NORTH COMMERCE STREET AT THE FORT WORTH AND WESTERN RAILROAD CROSSING. (CITY OF PORT WORTH TO RETAIN TITLE TO PUBLIC RIGHT-OF-WAY IN SAIO STREET, RETAINING ANY AND ALL EASEMENTS FOR EXISTING AND PROSPECTIVE UTILITIES. AND RETAINING THE RIGHT OF ACCESS AT ALL TIMES FOR THE PURPOSE OF MAINTAINING EXISTING AND PROSPECTIVE UTILITY FACILITIES LOCATED IN THE AFORESAID PORTIONS OF SAID STREET.) 121458 SO. FT. e d OR 0.286 AC. SURVEY LINE SHEET TITLE PROJECT N 6.967.584.411B E 2.324.323.5307 1 • F-1n 1a7 00 Z 0•-. too . \ a M/- N• - e ft�ou 0 7-O W- a It I- .0 V) ago F O zit cc N 6.9671460.1404 E 2.324.314,6661 \60 1" - 60' 30 0 r- 0 t STARRFOAM MFG. INC. VOL. 7606. PG. 1790 O .R.T.C.T. GRAPHIC SCALE IN FEET Exhibit B Commerce (P. 3 of 3) TRINITY RIVER VISION NOTE: COORDINATES SHOWN ARE SURFACE COORDINATES BASED ON NAD 83 TEXAS NORTH CENTRAL ZONE (42021 WITH AN ADJUSTMENT FACTOR OF 1.0001375289116 BLOCK 46 NORTH FORT WORTH ADDITION VOL. 63, PG. 149 P .R.T.C.T, 60 0 PC. 3 Of 3 EXHIBIT B i Page 17 of 22 EXHIBIT B Exhibit C Commerce (P. 1 of 3) RAILWORKS February 15, 2013 Mr. Bill Parker FWWR Director of Projects 2495 East Long Ave Fort Worth, TX 76106 Reference: Commerce Street Crossing Dear Mr. Parker: Phone: (817) 222 — 9798 Mobile: (817) 201 — 4450 Email: wrnta'�,f'wwr.net RAILWORKS Track Systems, Inc. P.O. Box 7128 Ft Worth, Texas 76111 388 N Wilderman Ft Worth, TX 76102 817-805-7039 Fax 817-549-0019 In response to the referenced inquiry, RailWorks Track Systems, Inc. (RailWorks) proposes to furnish labor, equipment and material (except for those items furnished by the owner or others) necessary to complete the above referenced project and described in the attached scope of work for the total lump sum prices listed below. Taxes are included. Labor & Equipment Materials Tax Total $ 23,950.00 $ 38,650.00 $ 5,164.50 $ 67,764.50 See the attached Scope of Work and Clarifications as well as the Standard Tel rns and Conditions and the Track Inspection Limitations of Liability. The Standard Terms and Conditions and the Limits of Liability are included here or may already be on file with your company, which in either case should be considered part of this proposal. Should any of these items be omitted please contact us for a copy. We propose to commence work on this project within 15 working days after notice to proceed and receipt of a formal purchase order. Also we propose to complete this work within 6 working days thereafter, barring inclement weather and contingent upon receipt of material. Overtime, shift and/or weekend work is included unless stated otherwise in the scope of work. This proposal shall remain firm for your acceptance for a period of 30 days and will then be subject to review. We appreciate the opportunity to present this proposal for your consideration and trust that it will meet with your requirements. However, should it fall short of your requirements or further information is needed, please contact RailWorks at your earliest convenience to discuss. Sincerely, RailWorks Track Systems, Inc. Accepted By: (If Applicable sign & return): Stewart Hoffman, CSP Area Manager Date: EXHIBIT B 1 Page 18 of 22 EXHIBIT B Exhibit C Commerce (P. 2 of 3) ATTACHMENT A Scone of Work and Clarifications: RailWorks proposes to install a 99 ft. new concrete "lag type" crossing using new panels with attached rubber flange -way filler and new 9 ft ties. RailWorks will also install 15 additional new 9' ties outside each end of the new crossing RailWorks will anchor the new crossing solid and anchor every other tie to comply with FWWR policy. RailWorks will surface the track using a 2400 tamper throughout the crossing as well as an appropriate number of feet past each end of the crossing to ensure quality surface. The cost to remove the panels at a later date and haul them to Hodge yard is included. RailWorks will supply any ballast needed for the new crossing area. RailWorks will remove all used material from the jobsite. Material will be stored at Hodge yard or put into haul off bins. EXCLUSIONS: Site Clean Up Other than Contractor Material Rail Traffic Control All Asphalt Work Welding of Joints All survey work Site drainage Drawing of Design Work Testing or Lab work Pipeline relocating or encasing Utility Movement or locating EXHIBIT B I Page 19 of 22 EXHIBIT B i ATTACHMENT B Exhibit C Commerce (P. 3 of 3 )Gf%crive Jan. 2010 supersedes previous versions Standard Terms and Conditions For track repairs in the State of Texas, labor and equipment are taxable while t iaterial are not, provided the owner gives a tax exemption certificate to us. For new construction (State of Texas), taxes are not applicable on any portion of the contract provided the client (or owner, user, et.) gives a tax exemption certificate to us. Unless stated otherwise RAILWORKS Track Systems, Inc. (hereinafter referred to as RAILWORKS) pricing is without taxes. Tax laws for States other than Texas in which work is performed, though taxes not included in the proposal unless stated to the contrary, will apply. Identifying, locating, relocating, removal, replacement and/or repairs of any existing underground pipes, utilities, wires, cables, concrete, asphalt or other structures are the responsibility, and to the account of, the client. The Client (or owner, user, etc.) shall apply for and obtain all permits and licenses required for the Work at its' expense and be responsible for securing inspections and approval of the Work from all authorities having jurisdiction over the Work unless stated otherwise in the proposal. Tie disposal is not included in this proposal unless stated othenvise in the scope of work. Old ties will be stockpiled at a designated location on theiobsite. Old rail and other metal track material will be hauled off site unless stated otherwise in the scope of work. Should tie disposal be specifically included in the proposal to your company, the actual disposal tnay be subcontracted to a company with the proper credentials to legally do so. Before disposal can take place, papers clearly indicating whom the `Generator" (i.e. owner, user, et ) is will be provided to the customer for the Generator to sign. Should an entity, other than the customer, be the Generator it will be the responsibility of the customer to obtain the signature of the Generator for the purposes of legal disposal. If arrangements can be made for a method of legal disposal, other than that described above, you will be notified. Should any contaminants be identified during or after the disposal of the ties, any and all remediation (and associated) costs will be to the account of the Generator and/or client, owner, user, etc. Excavated materials such as dirt, ballast, base, concrete, asphalt, et al will require verification of non -contamination from the Generator (i.e. owner, user, et.) to the Landfill Owner prior to any dumping of the material in question. However, should any contaminants be identified during or after the dumping of this material, any and all remediation (and associated) costs will be to the account of the Generator and/or client, owner, user, et. Unless stated othenvise, excavated material and other spoil will be stockpiled on site. Overtime, weekend work and/or shift work is not included unless stated otherwise in the proposal. We hereby warrant all work constructed under this proposal to be free from defects in materials and/or workmanship for a period of one year from date of substantial completion or the date of beneficial occupancy by the client, whichever comes first. RAILWORKS is not bound to repair, replace or be othenvise held responsible for material, equipment and/or workmanship that has been improperly maintained and inspected, altered or tampered with by unauthorized and or untrained personnel, subjected to abrasive or corrosive conditions, normal wear and tear, damage caused by rolling stock, or has been used or maintained improperly Exceptions taken to this warranty may be noted in the proposal. Repairs, or other work, classified as "temporary" do not carry any warranty. Customer agrees that it will not recruit, interview, solicit or hire RAILWORKS employees, whose job responsibilities require them to have contact with the customer, without prior written consent from RAILWORKS unless such employee has been voluntarily separated from RAILWORKS for more than one year or involuntarily separated from RAILWORKS by RAILWORKS. Customer and RAILWORKS agree, due to the difficulty of detennining the damages to RAILWORKS for breach of this paragraph, that RAILWORKS, at its option, may select liquidated damages in the atnount of S50,000 or 100% of the employee's annual salary, whichever is greater, as its remedy for each violation as an alternative to injunctive relief This provision shall survive the termination, expiration or cancellation of this agreement for a period of one year. RAILWORKS will progress invoice not less than monthly with no retainage withheld and due Net 30 days from invoice date unless specifically negotiated otherwise and confirmed by purchase order or contract. Invoices over 30 days past due will be charged Interest at 1.5% per month. RAILWORKS will complete the Work within the times specified in the proposal provided however, that RAILWORKS will not be liable directly or indirectly, for delays of carriers or delays from labor difficulties, shortages, strikes or stoppages of any sort, fires, accidents, failure or delay in obtaining materials or manufacturing facilities, delays caused by customer, acts of government, war, bad weather, or any causes beyond the control of RAILWORKS or causes commonly designated Acts of God or force majeure, and when such delays arise, the completion date shall be extended accordingly. Bonding (financial), though available, is not included for this Work unless stated otherwise in the proposal. Authorization to do the work in question signifies the Client's acceptance of these Terms and Conditions including any mutually agreed upon exceptions and/or clarifications. Our Standard Insurance Coveraaes are as follows: (Additional Coverages and higher Limits may be available if necessary.) General Liability Excess Liability (Umbrella) General Aggr. $ 4 Mill. Each Occurrence $ 10 Mill. Products - Comp/Op Aggr, $ 4 Mill. Aggregate $ 10 Mill. Personal & Adv. Injury $ 2 Mill, Workers Compensation & Employer Liability (Texas) Each Occurrence $ 2 Mill EL Each Accident $ 1 Mill. (Each Accident) Fire Damage (Any one fire) $ 100 Thou. EL Disease - Policy Lim. $ 1 Mill. Med Exp (Any one person) $ 5 Thou. EL Disease - $ 1 Mill. (Each Employee) Auto Liability Combined Single Limit $1 Mill. (713) 673-6208 I Fax: (713) 672-9614 EXHIBIT B I Page 20 of 22 EXHIBIT B Exhibit D Commerce (P. 1 of 2) RAILWORKS February 14, 2013 Mr. William R. Parker Director Planning & Special Projects Fort Worth & Western Railroad 2495 East Long Avenue Fort Worth, TX 76106 RailWorks Signals & Communications, Inc. 9250 Baymeadows Road Suite 200 Jacksonville, FL 32256 Tel: 904-296-5055 Fax: 904-296-5056 Subject: New crossing at Commerce Street Fort Worth, TX Dear Mr. Parker RailWorks Signals & Cornmunications, Inc (RSC) is pleased to submit our price for the proposed work on the Fort Worth & Western Railroad. All prices listed on this document are good for 30 days after the date listed above You will find an itemized list of signal material to be used at this crossing attached to this proposal. If you have any questions regarding this proposal please feel free to contact us. Proiect Information: Install 2 new gate flashers and 6' X 6' bungalow, with two track redundancy CWT device at Commerce Street, Fort Worth, TX Scone of Work: 1. RSC crew will travel to jobsite. 2. RSC crew will provide equipment and tools necessary to complete proposed work. 3. RSC crew will install 2 new gate flashers in the appropriate locations. 4. RSC crew will install new 6' X 6' house, cable to all warning devices and make all necessary track connections. 5. RSC crews will provide documented pre -test and in-service test sheets along with final As -In Service plans to owner. Our price proposal is also based on the following assumptions and clarifications: 1. All hazardous material/substance work of any kind is excluded. RSC will not assume generator status for any hazardous materials uncovered and discovered at the project site. 2. Perrnits and fees are excluded. 3. The Railroad will install new meter service and pole. 4. Utility company fees/charges and utility relocations are excluded 5. We assume normal site and soil conditions no rock excavation. 6. Sales tax is included. 7. Prevailing wage rates are not included in this estimate. 8. The cost of Railroad flagging service is not included in this estimate. EXHIBIT B I Page 21 of 22 EXHIBIT B Exhibit D Commerce (P. 2 of 2) February 13, 2013 9. Any track work is excluded. 10. RSC has allowed for mobilization to the project site. 11. This price proposal is subject to a mutually agreeable contract between RSC and the Owner's Construction Manager. 12. Railroad protective liability insurance is not included. Total Price for work Prouosed: $136,759 Material Cost: $103,398.00 Labor/Equipment Cost: $24,831 Tax: $8,530.00 All work to conform to specifications and requirements below: Installation will be in compliance with the American Railway Engineering and Maintenance -of -Way Association (AREMA). All work will also be in compliance with MNA standards. Safety: Safety is of primary importance and is the responsibility of personnel at all levels. Safety standards for this project fall under the jurisdiction of the Fort Worth & Western Railroad. RCS will comply with safe practices and standards set forth per the contract • Safety Briefings to be held daily and as work conditions change. • RSC employees have Roadway Worker Protection (RWP) certification. • RSC crews will have iadio on Railroad frequency to communicate with dispatcher if necessary. • RSC maintains an internal safety manual as part of our safety program. • RSC randomly drug and alcohol tests their employees per FRA guidelines. RSC appreciates the opportunity to provide you this cost proposal and look forward to working on this project with you. Regards, Jason Quinlan Project Engineer/Estimator RailWorks Signals & Communications iauinlan(a1 railworks.com Cell (404) 416-9484 Send via email to: wrp(a fwwr.net EXHIBIT B ( Page 22 of 22 EXHIBIT C White Settlement Road Right of Way Easement and Right -of -Way Agreement for White Settlement Road Overpass to be agreed to by the City and FWWR and appended to this Compromise Settlement Agreement for TRV Bridges. EXHIBIT C 1 Page 1 of 1 M&C Review Page 1 of 2 DATE: 7/9/2013 CODE SUBJECT: COUNCIL ACTION: Withdrawn on 7/16/2013 CONTINUED FROM A PREVIOUS WEEK REFERENCE NO.: C TYPE: C-26307 LOG NAME: NON- PUBLIC CONSENT HEARING: Official site of the City of Fort Worth, Texas 06TRV FORT WORTH AND WESTERN RR AGREEMENT NO Authorize Expenditure in the Amount of $304,499.83 to the Fort Worth and Western Railroad Company for Construction of Henderson Detour Railroad -Crossing and Related Equipment, Authorize Expenditure in the Amount of $204,523.50 to the Fort Worth and Western Railroad Company for Construction of Railroad -Crossing and Related Equipment for the Temporary Reopening of North Commerce Street, Authorize Execution of a Settlement Agreement in Lieu of Condemnation with the Fort Worth and Western Railroad Company in the Amount of $200,000.00 for Railroad -Crossing License Fees and Easement Acquisition for a Total in the Amount of $709,023.33 for Construction of Trinity River Vision -Related Railroad Crossings and Adopt Appropriation Ordinance (COUNCIL DISTRICTS 2 and 9) RECOMMENDATION: It is recommended that the City Council: 1. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Special Trust Fund in the amount of $228,951.33 from available funds; 2. Authorize the transfer in the amount of $228,951.33 from the Special Trust Fund to the Street Improvement 2008 Fund; 3. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the Street Improvement 2008 Fund in the amount of 228,951.33 from available funds; 4. Authorize the execution of a Settlement Agreement in lieu of condemnation with the Fort Worth and Western Railroad Company; and 5. Authorize payment in the amount of $709,023.33 to the Fort Worth and Western Railroad Company DISCUSSION: These expenditures are required to provide $304,499.83 to the Fort Worth and Western Railroad Company (FWWRR) for the construction of railroad -crossing and related equipment associated with the Henderson detour project approved by City Council on December 4, 2012, (M&C C-25977) and $204,523.50 associated with the installation by FWWRR of railroad crossing equipment to facilitate the temporary reopening of the North Commerce Street crossing, which will be the detour for the North Main Street bridge project. Staff has reviewed the construction costs and finds them to be fair and reasonable for the work to be performed. This Mayor and Council Communication also authorizes a settlement Agreement in lieu of condemnation in the amount of $200,000.00 for surface crossing license fees for the Henderson detour and North Commerce detour temporary crossings as well as additional railroad right-of-way to accommodate the new White Settlement Bridge. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=1 8408 &councildate=7/1 6/2013 10/9/2013 M&C Review Page 2 of 2 Funding for this Agreement will be paid from Tarrant County Reimbursements received for the Trinity River Vision (TRV) project and 2008 Bond Program Funds for Trinity River Vision. Since 2009, Tarrant County has provided the City with annual reimbursements for bridge and utility work associated with the TRV Project. This Mayor and Council Communication fully commits the remainder of the $14.7 million in 2004/2008 Bond Program Funds for the TRV Project. The project is physically located in COUNCIL DISTRICTS 2 and 9 but will serve Fort Worth residents in ALL COUNCIL DISTRICTS. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that upon approval of the above recommendations and adoption of the attached appropriation ordinance, funds will be available in the current capital budget as appropriated, of the Street Improvements Fund. TO Fund/Account/Centers FROM Fund/Account/Centers 11 FE72 451970 006231701000 $2281951.33 2) FE72 538070 006231701000 $228,951.33 1) FE72 538070 006231701000 $228.951.33 4) C204 539900 209260014480 $709.023.33 2 3) $228.951,33 C204 472072 209260014480 3)C204 539900 209260014480 $228.951.33 Submitted for Citv Manaaer's Office bv: Fernando Costa (6122) Oriainatina Department Head: Randle Harwood (6101) Additional Information Contact: Mark Rauscher (2446) ATTACHMENTS 06TRV FORT WORTH AND WESTERN RR AGREEMENT C204 A013.doc 06TRV FORT WORTH AND WESTERN RR AGREEMENT FE72 A013.doc FWWRR Map for Settlement Aareement.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=1 8408 &councildate=7/1 6/2013 10/9/2013