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Contract 44343 (2)
CITY SE C!CT UNDERPASS CONSTRUCTION AND MAINTENANCE AGREEMENT, BNSF File No. 020661X Keller -Haslet Road Underpass U.S. D.O.T. No. 020661X LS 7500, RR MP 363.1 XX This Agreement ("Agreement") is executed to be effective as of this 1st day of March, 2013 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation (' BNSF"), the CITY OF FORT WORTH, a political subdivision of the State of Texas (' Fort Worth"), and the CITY OF HASLET, a political subdivision of the State of Texas ("Haslet"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of Haslet, State of Texas; WHERAS, Fort Worth and BNSF have entered into that certain BNSF Relocation Agreement, dated May 17 2010 (the "Relocation Agreement"), which provides terms and conditions for the relocation of BNSF's track, including terms relating to the allocation of costs and expenses among the parties; WHEREAS, Fort Worth will construct Keller -Haslet Road, and BNSF will construct a new underpass structure and track to be known as the Keller -Haslet Road Underpass, D.O.T. No. 020661X located at railroad milepost 363.1 XX; and WHEREAS, after Fort Worth completes the construction of Keller -Haslet Road, Fort Worth will turn over to Haslet the portion of Keller -Haslet Road that is subject to this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I — SCOPE OF WORK 1. The term . �� Project as used herein includes any and all work related to the construction of Keller - Haslet Road and the proposed Keller -Haslet Road Underpass Structure (hereinafter referred to as the 'Structure") more particularly described on the Exhibit A attached hereto and incorporated herein, including, but not limited to, any and all changes to telephone, telegraph signal and electrical lines and appurtenances, temporary and permanent track work fencing, grading, alterations to or new construction of drainage facilities preliminary and construction engineering and contract preparation. ARTICLE II — JOINT OBLIGATIONS In consideration of the premises, the parties hereto mutually agree to the following: 1. In consideration of the faithful performance of Fort Worth's covenants contained herein, BNSF hereby grants to Fort Worth, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement a temporary non-exclusive license (hereinafter called, the "Temporary Construction License") to construct the roadway under the Structure and across or upon the portion of BNSF's right-of-way. The Temporary Construction License shall cover the area identified as the 'Temporary Easement" in the drawing attached to the Easement that is attached hereto as Exhibit B. The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of (i) substantial completion of the roadway construction, or (ii) twenty-four (24) months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Fort Worth in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for the construction of the roadway only and shall not be used by Fort Worth for any other purpose. Fort Worth acknowledges and agrees that Fort Worth shall not have the right, under the Temporary Construction License, to use the roadway. In the event Fort Worth is evicted by anyone owning, or claiming title to or any interest in said right-of-way BNSF will not be liable to Fort Worth for any damages, losses or any expense of any nature whatsoever The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein. 2. Upon receiving the payment from Fort Worth described in the subsequent sentence and provided Fort Worth is in compliance with the terms and conditions of this Agreement, BNSF will grant to Fort Worth, its successors and assigns, an assignable easement, substantially in the form of Exhibit B attached to this Agreement (hereinafter called, the "Easement"), to enter upon and use that portion of BNSF's right-of-way as is necessary to construct (as contemplated by Section 17 of this Article II) use and maintain the roadway under the Structure upon completion of construction of the Structure by BNSF. Fort Worth must pay BNSF the sum of Thirty Nine Thousand Nine Hundred and Seventy and No/100 Dollars ($39,970.00) as compensation for the Easement within thirty (30) days of the Effective Date of this Agreement. If Fort Worth fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. 3. BNSF will furnish all labor, materials, tools, and equipment for all work required for the construction of the Structure as described in the Scope of Work. Construction of the Structure must include the following work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the work, including railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Furnishing flagging servicesi (d) Furnishing engineering and inspection as required in connection with the construction of the Structure; (e) Construction of the Structure; and (f) Providing a contract project coordinator to serve as a project manager for the Structure. 4. Reimbursement for cost and expenses associated with the Structure work, including any work of any emergency nature, shall be made pursuant to the Relocation Agreement. 5. BNSF will furnish to Fort Worth and Haslet the plans and specification for the Structure. Said plans and specifications will become part of this Agreement and are hereby incorporated herein. 6. BNSF must construct the Structure as shown on the attached Exhibit A and do all work provided for in the plans and specifications. 7. BNSF must advise Fort Worth and Haslet of the completion date of the Structure. Additionally, Fort Worth must notify BNSF's Manager of Public Projects, in writing, of the date on which Fort Worth will meet with BNSF for the purpose of making final inspection of the Structure. A subsequent joint final inspection of the BNSF right of way will be performed upon the completion of the Project. 8. Fort Worth will furnish all labor, materials, tools, and equipment for all work required for the construction of Keller -Haslet Road as described in the Scope of Work. Construction of Keller -Haslet Road will be performed at the sole cost and expense of Fort Worth and must include the following work by Fort Worth: (a) Procurement of materials, equipment and supplies necessary for the work; 2 Form 0106 Rev. 06/01/05 (b) Preliminary engineering, design, and contract preparation; (c) Furnishing flagging servicesi (d) Furnishing engineering and inspection as required in connection with the construction of Keller -Haslet Road; (e) Construction of Keller -Haslet Road; and (f) Providing a contract project coordinator to serve as a project manager for Keller -Haslet Road. 9. For all roadway construction, inspection, work or maintenance, either routine or otherwise, performed by contractors on behalf of Fort Worth or Haslet, the city must require its contractor or subcontractors to execute and comply with the documents attached hereto as Exhibit C and Exhibit C-1, which are incorporated herein by reference. Prior to performing any maintenance with its own personnel, Fort Worth and Haslet, as applicable shall require any city employee performing maintenance to complete the safety training program at the website "contractororientation.com' and procure and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. At all times during the course of such work, City's personnel must comply with all of BNSF's applicable safety rules and regulations. 10. All work on BNSF right of way contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect Fort Worth will be subject to Fort Worth's approval prior to the commencement of any such changes or modifications. 11. Fort Worth and Haslet must include the following provisions in any contract with its contractor or subcontractor performing work on BNSF property: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines') owned by various telecommunications companies may be buried on BNSF's property or right-of-way. The locations of these Lines have been included on the plans provided to Contractor based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF's Communications Network Control Center at 800-533-2891 and/or the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The Contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable communication or otherwise) may exist. (b) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements. (c) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering representative to stop work at no cost to City or BNSF until these items are completed. (d) In addition to the liability terms contained elsewhere in this Agreement, the Contractor hereby indemnifies defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor and/or its subcontractors, agents and/or employees on BNSF's property or within BNSF's right-of- 3 Form 0106 Rev. 06/01/05 way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF ITS AGENTS SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE P ROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS N EGLIGENCE OF BNSF. 12. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF, Fort Worth, and Haslet agree to the following terms upon completion of construction of the Project (a) BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, any access gates installed pursuant to the Project, railroad drainage, the Structure and all other railroad facilities. (b) After completion of the roadway by Fort Worth, Haslet will own and maintain, at its sole cost and expense, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways installed pursuant to this Agreement. (c) After completion of the roadway by Fort Worth, Haslet must apply and maintain vertical clearance signs along their roadway and in advance of the Structure which consistently and accurately describe the minimum actual vertical clearance from the bottom of the Structure to the top of any pavement. (d) BNSF shall have the right when necessary to inspect the Structure or to make emergency repairs thereto at BNSF's sole expense. Haslet will provide at no cost to BNSF all necessary permits for inspections or emergency repairs. (e) Upon completion of construction and acceptance of the roadway components of Keller - Haslet Road, Fort Worth will transfer fee title to the roadway components to Haslet. 13. It is expressly understood by Fort Worth, Haslet and BNSF that any right to install utilities by Fort Worth, Haslet, or any other utility provider, other than the future ultimate highway component build -out (as defined in Section 17, below and shown on the approved plans) will be governed by a separate permit or license agreement between the parties hereto and shall comply with BNSF's Utility Accommodation Policy in effect at the time of the proposed installation. 14. Haslet hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from Keller -Haslet Road to BNSF tracks for maintenance purposes. BNSF's right to access must not u nreasonably impede traffic flow. 15 Haslet must notify and obtain prior authorization from BNSF's Manager of Public Projects before e ntering BNSF's right-of-way for roadway maintenance, construction, or re -construction purposes that may affect the Structure or BNSF operations, and the BNSF Manager of Public Projects will determine if flagging is required, which flagging would be at Haslet's sole expense. 16. BNSF may, at its expense, make future changes or additions to the railroad components of the Structure if necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i) the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional track or tracks, or (iii) the right to build other facilities in connection with the operation of its railroad. Such changes or additions must not change or alter the highway components of the Structure. If it becomes necessary or desirable in the future to change, alter widen or reconstruct the highway components of the Structure to accommodate railroad projects, BNSF will submit plans and specifications to Haslet for written consent. Haslet written consent shall not be withheld unreasonably. 4 Form 0106 Rev. 06/01/05 17. Future changes or additions to the highway components of the Structure. (a) Haslet may, at Haslet's sole expense, alter or reconstruct the highway components of the Structure if necessary or desirable, in Haslet's sole discretion due to traffic conditions or pedestrian or other recreational traffic; provided, however, that any such alteration or reconstruction must not encroach further upon or occupy the surface of BNSF's right-of- way to a greater extent than is contemplated by the plans and specifications, without obtaining BNSF's prior written consent and the execution of a supplement to this Agreement or the completion of a separate agreement. BNSF's written consent shalt not be withheld unreasonably (b) The parties understand and agree that Haslet anticipates the widening of the highway component under the Structure in the future to its ultimate build -out, which may include the installation of additional utilities (water, sewer and/or drainage facilities and sidewalks relating to the widening of the highway component), as shown on the Exhibit D (the 'ultimate highway component build -out") attached hereto and incorporated herein The parties specifically agree that the future expansion of the roadway, sidewalk and utilities to the ultimate highway component build -out under the Structure as shown on Exhibit D is expressly permitted under this Agreement without further approval or consent by BNSF, and without payment of additional fees, provided that there is no alteration from the approved plans and drawings, or any further encroachment upon BNSF's right-of-way than as contemplated by the plans and specifications. (c) Prior to entering BNSF's right-of-way to construct any portion of the ultimate highway component build -out, Haslet or its contractor must provide BNSF with advance written notice, a copy of the construction plans and specifications and execute the then current BNSF right of entry agreements and obtain and procure the BNSF-required insurances. (d) The provisions of this Section allowing the ultimate highway component build -out without further approval or consent by BNSF and without additional fees shall control over any conflicting language or requirements in BNSF's Utility Accommodation Policy, Pipeline Agreement or License Agreement. (e) Any roadway or utility construction or installation under the Structure, other than the ultimate highway component build -out as specified and shown in Exhibit D. shall be subject to BNSF's then existing Utility Accommodation Policy, permitting and/or licensing requirements including any fees or compensation determined at the time of the proposed installation. 18. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, the parties hereto may not assign any of their rights or obligations hereunder without the prior written consent of the other parties. 19 Neither termination nor expiration of this Agreement will release any party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 20. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Texas or other law If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 21. This Agreement (including exhibits and other documents, manuals etc incorporated herein) is the full and complete agreement between BNSF, Fort Worth, and Haslet City with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 5 Form 0106 Rev. 06/01/05 22. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF Railway Company: City of Fort Worth City of Haslet BNSF's Manager of Public Projects 5800 North Main Street Saginaw, TX 76179 Project Manager City of Fort Worth Department of Engineering 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: City Administrator / Mayor City of Haslet 101 Main Street Haslet, Texas 76052 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. ATTEST: By; Printed Na Title: 6,14 Date: BNSF RAILWAY COMPANY By: j E Printed Name: Timothy J. Huva Date: cmcl‘C Or no A ;--e-r-iroce e‘Ct Ziol3 000000000 „ CITY OF FORT WORTH Mary J. Kayse City Secretary oft__ E`er 00 cr42 °O 1� ��..0t 1' L'4 a r y4 O00000q® n 000n� inn•sitzy 7 it 4 (407.345 u a nu Ili c( Contract Authorization Date: Fernando Costa Assistant City Manager Date: 4,12/13 6 Form 0106 Rev. 06/01/05 ED AS TO FORMAN LfALI if I Theodore P. Gorski, Jr. Assistant ity Attorney Date: CITY OF HASLET ATTEST: 41-744/0- Dianna Buchanan City Secretary Date: 4fc'C/3 41.16 Rib cars — 40011 401# I. will I I II Ili/ OW W of e'�. • . • :5);\ • • • • • •• PO • • — • • • • • • rff • • •• APT AS TO FORM AND LEGALITY: AS/ Rob Allibon City Attorney Date: Y/1Ii •ie ig • -440 Date: APP-ROVAL RECOMMENDED: 3 0, fri Dougla '/V. Wiersig P.E. Director, Transportation & Public Works 4/3/zou • APPROVED: Bob Golden Mayor All invoices for the project will be sent to: Alliance Aviation Services c/o Tim Ward Alliance Boulevard Fort Worth Texas 76177-4300 Phone: (8171 890-1002 7 Form 0106 Rev. 06/01/05 750 740 730 720 710 700 690 680 670 RETNNNG MAU.. REF. SHEET S3 FACE OF A&RNENT 11- -- l STA. 13t70.53 TA. RA1-731.5301 I, , 1 1 STA16 -r.3 IV J Q PROPOSED W1 INE TRADE MO QCROCE, I1r1 I Y I\-, RETNNNC HMI. REF. SHEET A BEGN BRIDGE FACE a ABUTMENT 11 STA 15/7043 1.0. R41-731-54 KELER-HASLET--1 ROAD ROW. SPAN 1 3aW BENT/t STA. I 6.03.01 T.O.. RAU-771.43 I i 1 I I I I 1 I 1 1 1 1 I 4- 4e4 OiaU. 1 1 SlAFT5T5. IT' L_J l_J 4 —11 h 2 - 4fl DRILL•----1 SHAFTS A 12' J SPAN 2 55.Da I aer 2O.31 [FEAR lair taboo BNUST rD1H BRIDGE--11 OF T•T -r ,l l�l TYPICAI SECTION lair R*..NT43 STA. 15+5983 . I I / ; RENT STA 17:823 ElLiktralt STA I7tCB —T_��+-- 1r% A� 1 CLLLR-HASLET ROAD OVERNL 9ROGE LENGTH - 10.i00' SPAN 540D I BENT 13- 5TA 16N9.e3 !! TA. RNL-731.23 TOP OF RAL TOP Cr BEAN -035S HRT14 STA. 17t18.63 is RNL•731.42 le—KEILER-HASLET ROAD taw. SPAN 4 4a00' END MIDGE F/CE Cr ABUTMENT N STA. 17133.e3 T.O. W14430.86 EASTNC GRADE) PROPOSED DUDE-1 4 III 2 - 48'. DRtL-'-I SWFIS . 12' L_J tie • • III I I I I 2 - I8'1 DRILL-1 1 SNAPS . 13' KPROPOSED 1D4V4 ELLER-HASLET 1----NELIER H- A9£T RAC ROAD 2 40 THIS DOCUIENT IS RELEASED ON 00-09-11 FOR THE PURPOSE OF INTERN REVEW UNDER THE AUTHORITY OF DAVID L. HARTMAW4. PE. 71705. IT I5 NOT ID BE USED FOR CONSTRUCTION OR FABRICATION PURPOSES 8 NW &As.oc Ms. .k raaA. Ca PA ['Pik AM OCCJIO Wfi 03101/11 LNE SEC T500 12.00' cor 10' 5' 0 IV 2C L_ rr 1111101i ?ROR 1 SPAT VOITCAL• 410 HORIZONTAL. MO I i 4-i--LJ---------- 2 - 4(1 DILL^--1 SFIATTS + 22' AIMED 53 - 1e'1 DRu 1-1 AWES 1 2Y 750 740 730 720 710 700 690 680 670 :XHIBIT A Keller -Hash Road Underpass at MC escrow ^ ms r aD. A3 BNSF Railway DOT No. 020-661X ASSE rat DIUDI'+a ¢Sw nn MP 363.1X EXHIBIT B EASEMENT AGREEMENT FOR KELLER HASLET ROADWAY (U S. D.O.T NO. 020661X) (C&M Agreement) THIS EASEMENT AGREEMENT FOR KELLER HASLET ROADWAY ("Easement Agreement") is made and entered into as of the 1st day of March, 2013 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and the CITY OF FORT WORTH, a municipality ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Haslet, County of Tarrant, State of Texas, at Mile Post 362.15, Project # Alliance Airport Phase VIII — Keller Haslet Road, as described or depicted on Exhibit ' A-1" attached hereto and made a part hereof (the 'Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of March 1, 2013 concerning improvements on or near the Premises (the "C&M Agreement"). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as 'Improvements" and shall be constructed, located configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders including Environmental Laws (defined below) and zoning laws (collectively "Laws' ). Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Grantor Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and Form 704; Rev. 03/23/09 1 (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN 'AS IS, WHERE IS" AND 'WITH ALL FAULTS' CONDITION AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings improvements or other facilities (collectively "Other Improvements'), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist The Grantee agrees to keep the above -described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said Form 704; Rev. 03/23/09 2 work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi - governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws' ). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or ' underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of 'hazardous waste' or "hazardous substances", as "hazardous waste' and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above - stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days notice of termination upon Grantee. Upon termination Grantee shall remove the Improvements and restore the Premises as provided in Section 9. Form 704; Rev. 03/23/09 3 Section 8 Default and Termination. 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9 8 4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder Grantee shall at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee s use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee s obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise resulting from any acts, omissions or events happening prior to the date of termination, or, if later the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized Form 704; Rev. 03/23/09 4 to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with a Notice of Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such notice. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within 30 days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of Texas without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal valid and enforceable 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. Form 704; Rev. 03/23/09 5 14.7 The terms of the C&M Agreement are incorporated herein as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason no longer in effect. 14.8 Upon completion of construction and acceptance of the improvements on the Premises, Grantee may assign this Easement Agreement to the City of Haslet, Texas without Grantor's further consent, as provided in the C&M Agreement, provided City of Haslet Texas assumed all of Grantee's duties and obligations herein and Grantor receives a copy of the written assignment/assumption agreement 14.9 Compensation. As provided in the C&M Agreement, Grantee shall pay Grantor, prior to the Effective Date, the sum of Thirty Seven Thousand Nine Hundred Seventy and No/100 Dollars ($37 970.00) as compensation for the grant of this Easement. Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name. Title: GRANTEE: CITY OF FORT WORTH, a municipality By: Name. Title: MAfittglie Form 704; Rev. 03/23/09 0 lill9tS-£ 'ON 9NINYNO �..+ This nap used by $NSF RAILWAY COMPANY In the ordinary oourse of business. but It la subject to audit and should be 0 wed only with tM expressed understanding the $NSF auks no representations whatsoever about tM quality. accuracy. errors of omissions relating W. to this rap. r 42oM ';J to 1�� CD m O. 0 m 1 m m 0 0 0 0 m m + + 9-0 \ Iril O -i It —N- 8 e 1 Mat d e4CStAIN Iplihli 6.K•tta*i as g qN N OM OD • EXHIBIT A-1 for Easement Agreement PARCEL NO. 12PE RIGHT-OF-WAY EASEMENT ALLIANCE AIRPORT RUNWAY EXTENSION PHASE VM M E P & P RR CO SURVEY, ABSTRACT NO 1132 W. G. FINLEY SURVEY, ABSTRACT NO 1902 CITY OF FORT WORTH TARRANT COUNTY, TEXAS EXHIBIT "A" Being a 1.452 acre tract of land situated in the W. G. Finley Survey, Abstract No. 1902 and the M E P & P RR Co Survey, Abstract No. 1132, City of Fort Worth, Tarrant County, Texas, and being a portion of a tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company as recorded in County Clerk's File No. D193282817 of the Deed Records of Tarrant County, Texas, said 1.452 acre tract of land being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west nght-of-way line of Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south Line of a tract of land deeded to Intermodal Container, LLC (Weir Brothers) as recorded in County Clerk's File No. D206355318 of said Deed Records of Tarrant County, Texas, from which a 5/8 inch iron rod with cap stamped "Carter & Burgess" found for comer in a north line of said tract of Land deeded to the Atchison, Topeka & Santa Fe Railway Company bears North 89 degrees 44 minutes 46 seconds West, a distance of 9.43 feet; THENCE South 89 degrees 44 minutes 46 seconds East, with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with a south line of said tract of land deeded to Intermodal Container, LLC, a distance of 110.00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed east right-of- way line of said Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of said tract of land deeded to Intermodal Container, LLC; THENCE South 00 degrees 10 minutes 50 seconds West, with the proposed east right-of-way line of said Keller -Haslet Road, a distance of 472.64 feet to a 5/8 inch iron rod with cap stamped 'GORRONDONA" set for the intersection of the proposed east right-of-way line of said Keller -Haslet Road with the west line of a tract of land deeded to AIL investment, L P as recorded in County Clerk's File No. D199057458 of said Deed Records of Tarrant County Texas said 5/8 inch iron rod with cap stamped ` GORRONDONA" being in a south line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company, from which a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the northwest comer of said tract of land deeded to AIL Investment, L.P. bears North 08 degrees 50 minutes 44 seconds East, a distance of 95.73 feet; THENCE South 08 degrees 50 minutes 44 seconds West, with the west line of said tract of land deeded to AIL Investment, L.P. and with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, a distance of 103.91 feet to a point for comer, Page 1 of 2 Texas No. 5527 THENCE North 89 degrees 45 minutes 37 seconds West, with a south line of said tract of land deeded to the Atchison,, Topeka & Santa Fe Railway Company and with the west line of said tract of land deeded to AIL Investment, L.P., a distance of 17.62 feet to a point for corner in the existing east right-of-way line of said Keller -Haslet Road; THENCE North 89 degrees 56 minutes 02 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, a distance of 44.08 feet to a point for corner in the existing west right-of-way line of said Keller -Haslet Road, said point being in the cast line of a tract of land deeded to AIL Investment, L.P. as recorded in County Clerk's File No. D199057456 of said Deed Records of Tarrant County, Texas; THENCE North 89 degrees 44 tninutes 24 seconds West, with a south line of said tract of land deeded to the Ateluson, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L.P., a distance of 21.45 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found for comer; THENCE North 08 degrees 11 minutes 06 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L.P., a distance of 76.98 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west right-of-way line of said Keller -Haslet Road with a south ime of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and the east line of said tract of land deeded to AIL Investment, L.P., from which a 1/2 inch iron rod with cap stamped " Bnttian & Crawford" found for the northeast corner of said tract of land deeded to AIL Investment, L.P. bears North 08 degrees 11 minutes 06 seconds West, a distance of 128.12 feet; THENCE North 00 degrees 10 minutes 50 seconds East, with the proposed west right-of-way line of said Keller -Haslet Road, a distance of 499.38 feet to the POINT OF BEGINNING, and containing 62,070 square feet or 1.425 acres of land, of which 24 514 square feet lies within the existing right-of-way of Keller -Haslet Road, leaving a net area of 37,556 square feet or 0.862 acres of land, more or less. Notes: (1) A plat of oven survey date herewith accompanies this legal description. (2) All bearings are referenced to the project control for the Alliance Runway Extension Phase III. All bearings and distances are surface. Surface factor for this project = 1 000159672 Date: January 18, 2011 0 F;ti ,lt . to v, 4. 1 RICHARD I EDY � . 3* Z34' �. vt Richard Kennedy, RP y /' •Cc:ss+ �o L� - SUr�j , Page 2 of 2 GO NO• P.O.B. FND 5/81R W/CAP `CARTER & BURGESS' • EXHIBIT A-1 for Easement Agreement EXHIBIT "B" TWO SR, LP. C.C.F. NO. D203028719 T.C.T. L-2 I W/CAP "CORRON00NA' DETAIL 'A' ATCHISON. TOPEKA 8t SANTA FE RAILWAY COMPANY C.C.F. NO. D193282817 D.R.T.C.T. FND 1/2'IR W/CAP Ise Rtrim CRAWFDRD' Alt. INVESTMENT, L.P. C.C.F. NO. D199057456 1 sET s/81R w/cm .e *GORRONDONA• FND 5/81R W/CAP CARTER A BURGESS' (1) A LEGAL DESCRIPTION OF EVEN SURVEY DATE HEREWITH ACCOMPANIES THIS FIAT. (2) REARMS ARE REFERENCED TO THE PROJECT CONTROL FOR THE ALLIANCE RUNWAY EXTENSION PHASE 111. BEARINGS AND DISTANCES SHOWN ARE SURFACE. SURFACE FACTOR FOR THIS PROJECT - 1.000159572. Ear UNDEDICATED 1 • • PROJECT j HAS VICINITY MAP V4TERMODAL CONTAINER, LLC N.T.S. (WEIR BROTHERS) C.C.F NO. 08355310 DRTCiC.T. 41,4 41* SET 5/8'M� W/CAP tORRONOO A' DETAIL 'Bs„t vRz � SET 5/81R W{CAP S GORR0N`D0NA %( 19 s . �s'cik P SET 5/81R W/CAP 'CORRONDONA' All, INVESTMENT, LP, C.C.F. NO. 13199057458 D.R.T.C.T. 150 75 0 150 SCALE IN FEET City of Fort Worth 1000 THROCXMORTON STREET • FORT ALLIANCE AIRPORT R UN WA Y EXTENSION PHASE VIII PA ;w- t49: 1grk I RIGKI -OF -WAY EASEMEN I OWNED ATCHISON, TOPEKA Ac SANTA FE RAILWAY COMPANY SURVEY: M >r is At RR CO SURVEY ABSTRACT NO. 1132 N ;»'1 ABSTRACT NO. 1902 �-- 'I -VW ipft 0 ' . OR 0.882NT ACRES (NETITE)fA5 • \ sag L'- 7 t Oi RK WORTH, TEXAS 78101 tlf /19;Sette. a; ,. RICE IARD KENNEDY V\ th 552 ,�• (CADO Ftt,E: ALUMCERU?mAYEXTPHhI_Exw8rmI co RICHARD KEN f � 414tM R' 18. 2011 PAt;it 1 SCALE t' 150 TEXAS N0. 552 WMONDCIN is ASSOCIATES. INC. • 0707 11/10O11003 STAIR ROAO, SUITE 30 FORT WORTH, TX. 18112 • 817-4f -1424 FAR 817-41$-17811 PLS 1 1 "'rcel No. 12PE night -of -Way Northing 7042927.397 7042926.909 7042454.268 7042351.597 7042351.671 7042351.722 7042351.819 7042428.016 7042927.397 Acquisition Lasting 2321539.667 2321649.66E 2321648.177 2321632.199 2321614.580 2321570.503 2321549.054 2321538.094 2321539.667 Bearing S 89644'46" 2 00'l0'50" S 08650'44" N 89'45'37" N 89'44'24" N 08°11'06" N 00610'50" Closure Error Distance> 0.00000 Total Distance> 1346.061 Polyline Area: 62070 sq ft, 1.425 acres P-12PE.txt Distance E 110.000 W 472.643 W 103.907 W 17.620 N 89656'02" W 44.076 W 21.450 W 76.981 E 499.383 Page 1 EXHIBIT B-1 MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT is hereby executed this day of 2013, by and between BNSF RAILWAY COMPANY a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF FORT WORTH, a municipality ("Grantee ), whose address for purposes of this instrument is , which terms ' Grantor" and 'Grantee" shalt include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in Tarrant County, Texas as described on Exhibit "A-2" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated 2013 (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the 'Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend modify supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. Page 1 of 3 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name. Title: STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on the day of , 2013, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: Page 2 of 3 STATE OF 1.--r,�-�Xs Q§ COUNTY OF /ur/rafn"1 § GRANTEE: CITY OF FORT WORTH, a municipality Naa. F�p�'1 Nme. d0 0 Title: Assistant City Manager This,..i,nstrument w s ackrpowledged before me on the , day of /. / , , 2013, by t!rfie n 7:40 (name) as 1 . i, u ie Ace./ tle) of air v 7442, /t , a /lrtst-Gti aVCQ�d' Nolary Public (Seal) �f My appointment expires: / " /c -A3 EVONIA DANIELS MY COMMISSION EXPIRES July 10, 2013 Page 3 of 3 • EXHIBIT A-2 for Memorandum of Easement PARCEL NO. 12PE RIGHT-OF-WAY EASEMENT ALLIANCE AJRPORT RUNWAY EXTENSION PHASE VIII MEP&PRRCOSURVEY,ABSTRACTNO.1132 W. G. FINLEY SURVEY, ABSTRACT NO 1902 CITY OF FORT WORTH TARRANT COUNTY, TEXAS EXHIBIT "A" Being a 1.452 acre tract of land situated in the W. G. Finley Survey, Abstract No. 1902 and the M E P & P RR Co Survey, Abstract No. 1132, City of Fort Worth, Tarrant County, Texas, and being a portion of a tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company as recorded in County Clerk's File No. D193282817 of the Deed Records of' Tarrant County, Texas, said 1.452 acre tract of land being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 Inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west nght-of-way line of Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of a tract of' land deeded to Intermodal Container, LLC (Weir Brothers) as recorded in County Clerk's File No D206355318 of said Deed Records of Tarrant County, Texas, from which a 5/8 inch iron rod with cap stamped ' Carter & Burgess" found for corner in a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company bears North 89 degrees 44 minutes 46 seconds West, a distance of 9.43 feet; THENCE South 89 degrees 44 minutes 46 seconds East, with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with a south line of said tract of land deeded to Intermodal Container, LLC, a distance of 110 00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed east right-of- way line of said Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of said tract of land deeded to Intermodal Container, LLC; THENCE South 00 degrees 10 minutes 50 seconds West, with the proposed east right-of-way line of said Keller -Haslet Road, a distance of 472.64 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed east right-of-way line of said Keller -Haslet Road with the west line of a tract of land deeded to AIL Investment, L P as recorded in County Clerk's File No. D199057458 of said Deed Records of Tarrant County, Texas said 5/8 inch iron rod with cap stamped "GORRONDONA" being in a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, from which a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the northwest comer of said tract of land deeded to AIL Investment, L.P. bears North 08 degrees 50 minutes 44 seconds East, a distance of 95.73 feet; THENCE South 08 degrees 50 minutes 44 seconds West, with the west line of said tract of land deeded to AIL Investment, L 1' and with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, a distance of 103.91 feet to a point for comer, Page 1 of 2 Richard Kennedy, RPL Texas No. 5527 THENCE North 89 degrees 45 minutes 37 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the west line of said tract of land deeded to AIL Investment, L.P., a distance of 17.62 feet to a point for corner in the existing east right-of-way line of said Keller -Haslet Road; THENCE North 89 degrees 56 minutes 02 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, a distance of 44.08 feet to a point for comer in the existing west right-of-way line of said Keller -Haslet Road, said point being in the east line of a tract of land deeded to AIL Investment, L.P. as recorded in County Clerk's File No. D199057456 of said Deed Records of Tarrant County, Texas; THENCE North 89 degrees 44 minutes 24 seconds West, with a south line of said tract of land deeded to the Atcluson, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L.P., a distance of 21.45 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found for comer; THENCE North 08 degrees 11 minutes 06 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L P., a distance of 76.98 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west right-of-way line of said Keller -Haslet Road with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and the east line of said tract of land deeded to AIL Investment, L.P., from which a 1/2 inch iron rod with cap stamped `Bnttian & Crawford" found for the northeast corner of said tract of land deeded to AIL Investment, L.P. bean North 08 degrees 11 minutes 06 seconds West, a distance of 128.12 feet; THENCE North 00 degrees 10 minutes 50 seconds East with the proposed west right-of-way line of said Kcllet;-Haslet Road, a distance of 499.38 feet to the POINT OF BEGINNING, and containing 62,070 square feet or 1.425 acres of land, of which 24 514 square feet lies within the existing right-of-way of Keller -Haslet Road, leaving a net area of 37,556 square feet or 0.862 acres of land, more or less. Notes: (1) A plat of even survey date herewith accompanies this legal description. (2) All bearings are referenced to the project control for the Alliance Runway Extension Phase III. All bearings and distances are surface. Surface factor for this project 1 000159672. Date: January 18, 2011 Ces 3 RICHARD KE4EDY v °oesS�Ye c.. S 1)`i Page 2 of 2 FND 5/S1R W/CAP 'CARTER 7 Ac BURGESS' UNE It i IEXHIBIT A-2 for Memorandum of Easement I EXHIBIT "B" TWO SR, L.P. C.C.F. NO. D203028719 D.R.T.C.T. • L-2 ESW/ R CAP "GORRONDONA' ael %y. DETAIL --A" 44 vto ATCHISON• TOPEKA & SANTA FE RAILWAY COMPANY C.C.F. NO. D193282817 D.R.T.C.T. UNE TABLE DIM" 2 4'i r. M�r44 T; ttl44. 6Y"44 24 21. N 0t11'0fl FN0 1/21R W/CAP "BRITTAN CRAWFORD" AIL INVESTMENT, L.P. C.C.F. NO. 0199057456 D.R.T.C.T. SET 3/3421 W/GW GORRONDONA' FND 5/81R W/CAP "CARTER h BURGESS' (1) ALEGAL DFSSCRRI SONATA SURVEY EVEN DATE HEREWITH T. BEARNGS ARE REFERENCED TO THE (2) F AU.MNCE RUNWAYPROJECT EXTENSIONPHASE 111. BORINN= AND DISTANCES SHOWN ARE SURFACE. SURFACE FACTOR FOR THIS PROJECT - 1.000159672. tD1li W UNDEOCAND F--0-F --RIGH as :?4§6.27454 leg 1 J • PROJECT J HAS VICINITY MAP INTERMODAL CONTAN4ER, ILO N.T.S. (WEIR BROTHERS) C.C,F NO. 06355316 T C.T.D R.C s 5!TW/5/flN / CAP f L-Z r�tORRON00NA' 4 7ltsi DETAIL °Et eICS 'SET 5/NDONWO S\S Ck SET 5/81R W/CAP 'GORRONOONA' A0. INVESTMENT. L.P. C.C.F. NO. D199057458 D.R.T.C.T. 150 75 . O 150 SCALE IN FEET City of Fort Worth 1000 THROCKMORTON STREET • FORT ALLIANCE AIRPORT R UN WA Y EXTENSION PHASE VIII PAWN_ Noe yin. I RIGKI —OF'-WAY EASbMEN I OWNER: ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY SURVEY: M E P & RR CO SURVEY ABSTRACT NO, 1132 S . W. gg F1NL :sip . ABSTRACT NO. 1902 Cf't{I OF • ' `-• " TARRANT COUNTY TEXAS ND: 991.170.7 OWL, R4 E�t 3/5s S% 1 !R 0.882 ACRES (NEl�' WORTH, TEXAS 76102 DO TLE: M,LUNCJRUNWAYEXTPH?LEXH61NiLDN0 R4Q. aliPqa It201 P 1 SCLIAlt 1' In 150' CONMIGIDONN • ASS01241171, INC. • 4707 01E311111O00 STAN1 ROAD, SINT! 50 FORT WORTH. TIL 711112 j P �Giitr5q�'� 7f p RICIIARD KENNEDY ,5527 j{!Q- -RITE NO. KEN -PLS • 817-4N-1414 FAX 617-496-1756 -mrcel No. 12PE night -of -Way Acquisition Northing 7042927.397 7042926.909 7042454.268 7042351.597 7042351.671 7042351.722 7042351.819 7042428.016 7042927.397 Fasting 2321539.667 2321649.666 2321648.177 2321632.199 2321614.580 2321570.503 2321549.054 2321539.094 2321539.667 Hearing $ 3 S N N N N N 89°44'4E" O 0410'50" O 8'50'44" 89°45'37" 89'56'02" 89444'24" 08411'06" 00'10'50" Closure Error Distance> 0.00000 Total Distance> 1346.061 Polyline Area: 62070 sq ft, 1.425 acres P-12PE.txt Distance E 110.000 W 472.643 W 103.907 W 17.620 W 44.076 W 21.450 W 76.981 E 499.383 Page 1 EXHIBIT "C" (BNSF FORM 0102) CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right of -way, hereafter referred to as 'Railway Property", during the construction or maintenance of Keller -Haslet Road at railroad milepost 363.11XX on Line Segment 7500 in Fort Worth, Texas. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1' Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "C-1 '. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction/reconstruction/maintenance work on Keller -Haslet Road if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion prosecutes the work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the work; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is hi addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction/reconstruction/maintenance work on Keller -Haslet Road. Railway agrees to immediately notify the following individual m writing Pat Buckley Transportation & Public Works Department 1000 Throckmorton Street Fort Worth Texas 76102 (817) 392-2443 • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. 1 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 • 1.01.06 The Contractor must notify the CITY OF FORT WORTH at Pat Buckley, telephone number (817) 392- 2334, and Railways Manager Public Projects, telephone number 817-352-2902 at least thirty (30) calendar days before commencing any construction/reconstruction/maintenance work on Railway Property. Contractor's notification to Railway, must refer to Railroad's file 020661X. • 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring" All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engmeering and Maintenance -of -Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railways trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris and other foreign objects and materials resulting from his operations Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 The Contractor must notify the Railway's Division General Manager at 817-224-7001 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: 2 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 • • • • • • 15' Horizontally from centerline of nearest track 21'-6" Vertically above top of rail 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts 30'-0" Vertically above top of rail for electric wires carrying 15 000 volts to 20 000 volts 34'-0" Vertically above top of rail for electric wires carrying more than 20 000 volts • 1.03.04 Upon completion of construction, the following clearances shall be maintained: 25' Horizontally from centerline of nearest track 23'-3 %" Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the CITY OF FORT WORTH and must not be undertaken until approved in writing by the Railway, and until the CITY OF FORT WORTH has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell -tales or protective devices will be borne by the Agency. • 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by the CITY OF FORT WORTH for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452 of any discharge release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan • 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made available to Railway 3 Exhibit C— Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (Krum, TX) at telephone 940-482-8433 a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour bask day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by the CITY OF FORT WORTH . The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation meals, lodging, radio equipment supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. • 1.05.03d The average train traffic on this route is: no through train movements and 4 switching movements per day at 20 MPH, no passenger trains. 4 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 • • 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of commumcation to stop and resume work, and (4) location of the designated places of safety Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railroad's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 My damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project Any vehicle or machine which may come in contact with track, signal equipment or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation com however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses): b) hard hats c) safety shoe with hardened toes, above -the -ankle lace -up and a defined heel and d) high visibility retro-reflective work wear. The Railroad's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visability work wear. Hearing protection fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information contained on the web site and the information in this paragraph. the web site will govern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0' TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE 5 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 RAILROAD'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the Imes and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet 350 to 500 KV - 25 feet 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known a minimum clearance of 45 feet must be maintained A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. 1.07 Excavation • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Roadmaster (940-482-84331 and BNSF Supervisor Signal Construction (817-740-7384). All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non -containerized commodity or material, on or adjacent to Railways Property, in or near any surface water, swamp wetlands or waterways, while performing any work under this Agreement, Contractor must immediately (a) notify the Railway's Resource Operations Center at 1-800- 832-5452, of such discovery (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties. and (c) exercise due care with respect to the release including the taking of any appropriate 6 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements Any personal injury sustained by an employee of the Contractor subcontractor or Contractor s invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non -Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury 7 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/St 2. Date: Time: County: 3. Temperature: 4. Weather (if non -Railway location) 5. Social Security # 6. Name (last, first, mi) 7. Address: Street: 8. Date of Birth: 9. (a) Injury: (i.e. (a) Laceration (b) Hand) City: and/or Age Gender: (if available) 11. Description of Accident (To include location, action, result, etc.): 12. Treatment: ? First Aid Only ? Required Medical Treatment ? Other Medical Treatment 13. Dr. Name 14. Dr. Address: Street: 15. Hospital Name: City: 16. Hospital Address: Street: City: 17. Diagnosis: FAX TO RAILWAY AT (817) 352-7595 AND COPY TO RAILWAY ROADMASTER FAX 940-482-6021 RAILWAY MANAGER PUBLIC PROJECTS FAX (817) 352-2912 8 (b) Body Part: 30. Date: St. Zip: St: Zip: St: Zip: Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) 2008 FORM 0102 — Rev date June LAW DEPARTMENT APPROVED UNDERPASS EXHIBIT "C-1" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSF RAILWAY COMPANY Attention: Manager Public Projects Railway File: 020661X Agency Project: Keller -Haslet Road Underpass -- Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated , with the CITY OF FORT WORTH for the performance of certain work in connection with the following project: . Performance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property (' Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for the CITY OF FORT WORTH (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees) for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action ansing or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to 1 Exhibit C-I — Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 '.1 be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims and in the event of a suit being brought against Railway Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust or settle such suits and protect, indemnify, and save harmless Railway from and agamst all damages judgments, decrees attomey's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000 but in no event less than the amount otherwise carried by the contractor. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Waiver of subrogation in favor of and acceptable to Railroad. • Additional insured endorsement in favor of and acceptable to Railroad. • Separation of insureds • The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railroad employees. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy with regard to the work being performed under this agreement. B Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following• • Bodily injury and property damage • Any and all vehicles owned used or hired The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railroad. 2 Exhibit C-1 — Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 p • Additional insured endorsement in favor or and acceptable to Railroad. • Separation of insureds • The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: • Contractor s statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railroad. D. Railroad Protective Liability insurance naming only the Railroad as the Insured with 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 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railroad prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to contractor. Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care, custody or control. Contractor is not allowed to self -insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to include a deductible, self -insured retention or other financial responsibility for claims. Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days pnor to any cancellation, non -renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished. Contractor should send the certificate(s) to the following address: 3 Exhibit C-1 — Keller -Haslet Road UP (7-27-1 1) Form 0107 - Rev. date: January, 2010 Ebix BPO PO Box 12010-BN Hemet. CA 92546-8010 Fax number: 951-652-2882 Email. bnsf(a,ebix com Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best s 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 provide. Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be m addition to all policy limits for coverages referenced above Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and maintain the msurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to release, defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle but not require, Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be deemed to release or diminish the liability of contractor mcluding, without limitation, liability under the indemnity provisions of this Agreement Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS The Contractor must observe and comply with the provisions, obligations, requirements and limitations contained in the Contract and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, including, but not be Limited to payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records Any disruption to train traffic may cause delays to multiple trains at the same time for the same penod. 4 Exhibit C-1 -- Keller -Haslet Road UP (7-27-1 1) Form 0107 - Rev. date: January, 2010 Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s) Under these arrangements, if Railway does not meet its contract service commitments Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high as $50,000.00 per incident. Contractor and its subcontractors must give Railway's Roadmaster (940-482-8433) four (4) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Kindly acknowledge receipt of this letter by signing and returmng to the Railway two original copies of this letter, which, upon execution by Railway will constitute an Agreement between us. (Contractor) BNSF Railway Company By: By: Prmted Name: Name: Title: Manager Public Projects Contact Person: Accepted and effective this day of Address City: Fax: Phone: E-mail: State: Zip: 5 Exhibit C-1 — Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 4 KNfltyp02 2013-01-14.0GN IA Alliance Air Services -I 1 NM4YMCf 2043 x• !ail$Ttai 0101.1111 I rT� l•[ rt 177 pral t 1K1—. 1aaJ ; E1 /YRat irj r7q�Y(t a( Id nILI arie.1Sal OKI ne • KELLER HASLET ROW NSF CCTOR BADGE TYPICAL KNt STA 14•07.14 as• 17• 7111Y LAMS (Nal 17.r 17.r ALLIANCE AIRPORT RUNWAY EXTENSION PROJECT TIMM la/Mat Tani lat.R MCaf u. anaaa. IKON EXHIBIT D Keller -Haslet Road Underpass at BNSF Railway DOT No. 020-661X RR MP 362.15 FoIc1WoRTK _r 2 JACOBS V 8 RtriliA ls1/4::( [CITY OF FORT WORTH ORIGINAL COPY] ~? " i t"�•�r UNDERPASS CONSTRUCTION AND MAINTENANCE AGREEMENT BNSF File No. 020661X Keller -Haslet Road Underpass U.S D O.T. No. 020661X LS 7500, RR MP 362.15 This Agreement ("Agreement") is executed to be effective as of this 1st day of March, 2013 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), the CITY OF FORT WORTH, a political subdivision of the State of Texas ("Fort Worth"), and the CITY OF HASLET, a political subdivision of the State of Texas ("Haslet"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of Haslet, State of Texas; WHERAS, Fort Worth and BNSF have entered into that certain BNSF Relocation Agreement, dated May 17, 2010 (the "Relocation Agreement"), which provides terms and conditions for the relocation of BNSF's track, including terms relating to the allocation of costs and expenses among the parties; WHEREAS, Fort Worth will construct Keller -Haslet Road, and BNSF will construct a new underpass structure and track to be known as the Keller -Haslet Road Underpass, D.O.T. No. 020661X located at railroad milepost 362.15; and WHEREAS, after Fort Worth completes the construction of Keller -Haslet Road, Fort Worth will turn over to Haslet the portion of Keller -Haslet Road that is subject to this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I — SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of Keller - Haslet Road and the proposed Keller -Haslet Road Underpass Structure (hereinafter referred to as the "Structure"), more particularly described on the Exhibit A attached hereto and incorporated herein, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation. ARTICLE II — JOINT OBLIGATIONS In consideration of the premises, the parties hereto mutually agree to the following: 1. In consideration of the faithful performance of Fort Worth's covenants contained herein, BNSF hereby grants to Fort Worth, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, the "Temporary Construction License") to construct the roadway under the Structure and across or upon the portion of BNSF's right-of-way. The Temporary Construction License shall cover the area identified as the "Temporary Easement" in the drawing attached to the Easement that is attached hereto as Exhibit B. The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of (i) substantial completion of the roadway construction, or (ii) twenty-four (24) months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Fort Worth in this provision are without warranty of title of a ,y-kind; express -or imp = ied, and no covenant of warranty OFFICIAL RECORD CITY SECRETARY u . '.NORTH, TX 3 2U13_aI pE0 P r, of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for the construction of the roadway only and shall not be used by Fort Worth for any other purpose. Fort Worth acknowledges and agrees that Fort Worth shall not have the right, under the Temporary Construction License, to use the roadway. In the event Fort Worth is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Fort Worth for any damages, losses or any expense of any nature whatsoever The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein. 2. Upon receiving the payment from Fort Worth described in the subsequent sentence and provided Fort Worth is in compliance with the terms and conditions of this Agreement, BNSF will grant to Fort Worth, its successors and assigns, an assignable easement, substantially in the form of Exhibit B attached to this Agreement (hereinafter called the "Easement"), to enter upon and use that portion of BNSF's right-of-way as is necessary to construct (as contemplated by Section 17 of this Article II) use and maintain the roadway under the Structure upon completion of construction of the Structure by BNSF. Fort Worth must pay BNSF the sum of Thirty Nine Thousand Nine Hundred and Seventy and No/100 Dollars ($39,970.00) as compensation for the Easement within thirty (30) days of the Effective Date of this Agreement. If Fort Worth fails to pay BNSF within the thirty daytime period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF 3. BNSF will furnish all labor, materials tools, and equipment for all work required for the construction of the Structure as described in the Scope of Work. Construction of the Structure must include the following work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the work, including railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Furnishing flagging servicesi (d) Furnishing engineering and inspection as required in connection with the construction of the Structure; (e) Construction of the Structure; and (f) Providing a contract project coordinator to serve as a project manager for the Structure. 4. Reimbursement for cost and expenses associated with the Structure work, including any work of any emergency nature, shall be made pursuant to the Relocation Agreement. 5. BNSF will furnish to Fort Worth and Haslet the plans and specification for the Structure. Said plans and specifications will become part of this Agreement and are hereby incorporated herein. 6. BNSF must construct the Structure as shown on the attached Exhibit A and do all work provided for in the plans and specifications. 7. BNSF must advise Fort Worth and Haslet of the completion date of the Structure. Additionally, Fort Worth must notify BNSF's Manager of Public Projects in writing, of the date on which Fort Worth will meet with BNSF for the purpose of making final inspection of the Structure. A subsequent joint final inspection of the BNSF right of way will be performed upon the completion of the Project. 8. Fort Worth will furnish all labor, materials, tools, and equipment for all work required for the construction of Keller -Haslet Road as described in the Scope of Work. Construction of Keller -Haslet Road will be performed at the sole cost and expense of Fort Worth and must include the following work by Fort Worth: (a) Procurement of materials, equipment and supplies necessary for the work; 2 Form 0106 Rev. 06/01/05 (b) Preliminary engineering, design, and contract preparation; (c) Furnishing flagging services; (d) Furnishing engineering and inspection as required in connection with the construction of Keller -Haslet Road; (e) Construction of Keller -Haslet Road; and (f) Providing a contract project coordinator to serve as a project manager for Keller -Haslet Road. 9. For all roadway construction, inspection, work or maintenance, either routine or otherwise, performed by contractors on behalf of Fort Worth or Haslet, the city must require its contractor or subcontractors to execute and comply with the documents attached hereto as Exhibit C and Exhibit C-1, which are incorporated herein by reference. Prior to performing any maintenance with its own personnel, Fort Worth and Haslet, as applicable, shall require any city employee performing maintenance to complete the safety training program at the website 'contractororientation.com" and procure and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. At all times during the course of such work, City's personnel must comply with all of BNSF's applicable safety rules and regulations. 10. All work on BNSF right of way contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect Fort Worth will be subject to Fort Worth's approval prior to the commencement of any such changes or modifications. 11. Fort Worth and Haslet must include the following provisions in any contract with its contractor or subcontractor performing work on BNSF property: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines') owned by various telecommunications companies may be buried on BNSF's property or right-of-way. The locations of these Lines have been included on the plans provided to Contractor based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF's Communications Network Control Center at 800-533-2891 and/or the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The Contractor must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements. (c) Failure to mark or identify these Lines will be sufficient cause for BNSF's engineering representative to stop work at no cost to City or BNSF until these items are completed. (d) In addition to the liability terms contained elsewhere in this Agreement, the Contractor hereby indemnifies defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-of- 3 Form 0106 Rev. 06/01/05 way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL N OT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE P ROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS N EGLIGENCE OF BNSF. 12. In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF, Fort Worth, and Haslet agree to the following terms upon completion of construction of the Project: (a) BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, any access gates installed pursuant to the Project, railroad drainage, the Structure and all other railroad facilities. (b) After completion of the roadway by Fort Worth, Haslet will own and maintain, at its sole cost and expense, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways installed pursuant to this Agreement. (c) After completion of the roadway by Fort Worth, Haslet must apply and maintain vertical clearance signs along their roadway and in advance of the Structure which consistently and accurately describe the minimum actual vertical clearance from the bottom of the Structure to the top of any pavement. (d) BNSF shall have the right when necessary to inspect the Structure or to make emergency repairs thereto at BNSF's sole expense. Haslet will provide at no cost to BNSF all necessary permits for inspections or emergency repairs. (e) Upon completion of construction and acceptance of the roadway components of Keller - Haslet Road, Fort Worth will transfer fee title to the roadway components to Haslet. 13. It is expressly understood by Fort Worth, Haslet and BNSF that any right to install utilities by Fort Worth, Haslet, or any other utility provider, other than the future ultimate highway component build -out (as defined in Section 17, below and shown on the approved plans) will be governed by a separate permit or license agreement between the parties hereto and shall comply with BNSF's Utility Accommodation Policy in effect at the time of the proposed installation. 14 Haslet hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from Keller -Haslet Road to BNSF tracks for maintenance purposes. BNSF's right to access must not unreasonably impede traffic flow. 15. Haslet must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for roadway maintenance, construction, or re -construction purposes that may affect the Structure or BNSF operations, and the BNSF Manager of Public Projects will determine if flagging is required, which flagging would be at Haslet's sole expense. 16. BNSF may, at its expense, make future changes or additions to the railroad components of the Structure if necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i) the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional track or tracks or (iii) the right to build other facilities in connection with the operation of its railroad. Such changes or additions must not change or alter the highway components of the Structure. If it becomes necessary or desirable in the future to change, alter widen or reconstruct the highway components of the Structure to accommodate railroad projects, BNSF will submit plans and specifications to Haslet for written consent. Haslet written consent shall not be withheld unreasonably. 4 Form 0106 Rev. 06/01/05 17. Future changes or additions to the highway components of the Structure. (a) Haslet may, at Haslet's sole expense, alter or reconstruct the highway components of the Structure if necessary or desirable, in Haslet's sole discretion due to traffic conditions or pedestrian or other recreational traffic; provided however, that any such alteration or reconstruction must not encroach further upon or occupy the surface of BNSF's right-of- way to a greater extent than is contemplated by the plans and specifications, without obtaining BNSF's prior written consent and the execution of a supplement to this Agreement or the completion of a separate agreement. BNSF's written consent shall not be withheld unreasonably (b) The parties understand and agree that Haslet anticipates the widening of the highway component under the Structure in the future to its ultimate build -out, which may include the installation of additional utilities (water, sewer and/or drainage facilities and sidewalks relating to the widening of the highway component), as shown on the Exhibit D (the "ultimate highway component build -out") attached hereto and incorporated herein. The parties specifically agree that the future expansion of the roadway, sidewalk and utilities to the ultimate highway component build -out under the Structure as shown on Exhibit D is expressly permitted under this Agreement without further approval or consent by BNSF, and without payment of additional fees, provided that there is no alteration from the approved plans and drawings, or any further encroachment upon BNSF's right-of-way than as contemplated by the plans and specifications. (c) Prior to entering BNSF's right-of-way to construct any portion of the ultimate highway component build -out, Haslet or its contractor must provide BNSF with advance written notice, a copy of the construction plans and specifications, and execute the then current BNSF right of entry agreements and obtain and procure the BNSF required insurances. (d) The provisions of this Section allowing the ultimate highway component build -out without further approval or consent by BNSF and without additional fees shall control over any conflicting language or requirements in BNSF's Utility Accommodation Policy, Pipeline Agreement or License Agreement. (e) Any roadway or utility construction or installation under the Structure, other than the ultimate highway component build -out as specified and shown in Exhibit D, shall be subject to BNSF's then existing Utility Accommodation Policy, permitting and/or licensing requirements including any fees or compensation determined at the time of the proposed installation. 18. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, the parties hereto may not assign any of their rights or obligations hereunder without the prior written consent of the other parties. 19. Neither termination nor expiration of this Agreement will release any party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 20. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Texas or other law If any provision of this Agreement is prohibited by or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 21. This Agreement (including exhibits and other documents, manuals etc. incorporated herein) is the full and complete agreement between BNSF, Fort Worth, and Haslet City with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 5 Form 0106 Rev. 06/01/05 22. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF Railway Company: City of Fort Worth City of Haslet BNSF's Manager of Public Projects 5800 North Main Street Saginaw, TX 76179 Project Manager City of Fort Worth Department of Engineering 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: City Administrator / Mayor City of Haslet 101 Main Street Haslet, Texas 76052 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. ATTEST: By; Printed Name: Title: 44 Date: CITY OF FORT WORTH ATTEST: Mary J. Kayser ) City Secretary Genlitti Wt72-)5 o nu4st Contract Authorization Date: SII 7/0 BNSF RAILWAY COMPANY By: Printed Name: Timothy J. Huva Date: 0 .4 <>00 Li (%)67)4A,;(1/4( EQP c.:4 -00oonogic;e:,.(0 rf, 4 0 4(c) ,4-5*.282) emir, 0 S 0 0 a o fa tb , o 00 c �' bia1300000 NVAStit e at's', - - ttcr Fernando Costa Assistant City Manager Date: OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Fcrm 0106 Rev. 06/01/05 APPROVED AS TO Theodore P. Gorski, Jr. Assistant City Attorney Date: CITY OF HASLET ATTEST: atelta_ alina404. Dianna Buchanan City Secretary M AND LEGALITY: Date: Yssi"d&M APCED AS TO FORM AND LEGALITY: Rob Allilson, City Attorney Date: MAI • • AP e 'VAL RECOMMENDED@ LJ4 Douglas . Wiersig P.E. Directo ; Transportation & Public Works Date: 4/3/7"9/3 APPROVED: Bob Golden Mayor 7 All invoices for the project will be sent to: Alliance Aviation Services c/o Tim Ward Alliance Boulevard Fort Worth, Texas 76177-4300 Phone: (817) 890-1002 7 Form 0106 Rev. 06/01/05 750 740 730 720 710 700 - 690 680 670 O PROPOSED CONNECTOR TRACK AND E BRIDGE RETAINING WALL, REF. SHEET S3 BEGIN BRIDGE FACE OF ABUTMENT 0- SP. 15+70.83 1 T.O. RAIL=731.5381 I I ‘', S82'28'25-E 1 II RETAINING WALL, REF. SHEET S3 BEGIN -BRIDGE- -._ FACE,OEARDTMENT RI , I -STA. 15+70,83 T.O. RAIL=731.54 lI (FT 1 KELLER-HASLET--1 ROAD R.O.W. SPAN'1 30.00' BENT. fl2 - STA, I6+00.63.1„ ,T.O. RNL=731-43 , - - (E) 1F) 2 - 48"m DRILL-'� SHAFTS x 12' ' L' 8 co J STA 16+00.83 20.33' CLEAR 10.17' 10.17' 3.67' 13:00' BALLAST WIDTH l BRIDGE—<{ OP OF AIL - 1 TYPICAL SECTION ly .67' I PLATE GIRDER, IYP. STA. 16+59.83 �\I i ) O KELLER-HASLET ROAD OVERALL BRIDGE LENGTH = 193 00' SPAN 2--_-- 51,00' . . BENT. i3 - .STA_ ,16+59 83 4 T.D., RAL=731.23 I TOP OF RAIL _ ' 70P OF BEAM- 035% EXISTING GRADE� PROPOSED CRADE7 - E) CO 2 - 48% DRILL— SHAFTS x 12' FE PROPOSED KELLER-HASLE ROAD - J s THIS DOCUMENT IS RELEASED ON 03.09.11 FOR THE PURPOSE OF INTERIM REVIEW UNDER THE AUTHORITY OP DAVID L. HARTMANN. P.E. 71798. IT IS NOT TO DE USED FOR CONSTRUCTION OR FABRICATION PURPOSES. SPAN 3-' 59.00' ) a / STA, 17+0QI I\ 11 11/1 LI 4 BENT A4 STA. 17+18.53 I. , t bENT.,p4 - , STA._147+18.83 T.O. RAIL24731.02_ 1-KELLER-HASI ET ROAD R.O.W. TT El E) • 2 - 48"0 DRILL SHAFTS x 13' • ¢ EXISTING KEII ER -HASLET: - ROAD- - 8 + Noal & AssocwInc. lou, C aI t.oIAWwni4nNO l 0 Jo MOLTApCM iy(PV7 Alin ui 'tl� 4500' „ END, BRIDhy"P - FACE 0F, ABUTMENT fl5 _ - - STA. 1,7+63.83 T.O. RAIL=730,86 DES Dw DRANK. AOT CHECK: JAG DATE: GRASP I ART{: LINE SEC /SD0 „ 2 - 48'W ORIEL— 4 - . SHAFTS x 22' BRIDGE ENGINEERING KANSAS Ott, K5 APPROVED: ASST. DIRECTOR STROCNFLS DESIGN DI FRIDGE FACE OF ABUTMENT fl5 STA. 17+63.83 T.O. RAIL=730.86 12.00' N 10' 0 20' 1 � 0 pROFIIF WAIF VERRCAL- 1:10 HORIZONTAL= 1:10 750 740 730 720 J_-------- -__ 710 u2 - 18T0 DRILL SHAFTS .x 22 _ _ _ 8 m 700 690 680 670 EXHIBIT A B/VS/- Keller -Haslet Road Underpass at BNSF Railway DOT No. 020-661X RR MP 362.15 EXHIBIT B EASEMENT AGREEMENT FOR KELLER HASLET ROADWAY (U.S. D.O.T NO. 020661X) (C&M Agreement) THIS EASEMENT AGREEMENT FOR KELLER HASLET ROADWAY ("Easement Agreement") is made and entered into as of the 1st day of March, 2013 (' Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and the CITY OF FORT WORTH, a municipality ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Haslet, County of Tarrant, State of Texas, at Mile Post 362.15, Project # Alliance Airport Phase VIII — Keller Haslet Road, as described or depicted on Exhibit "A-1" attached hereto and made a part hereof (the 'Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of March 1, 2013 concerning improvements on or near the Premises (the "C&M Agreement"). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as 'Improvements" and shall be constructed, located configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions covenants, easements, licenses permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders including Environmental Laws (defined below) and zoning laws (collectively "Laws' ). Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Grantor Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and Form 704; Rev. 03/23/09 1 (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. S ection 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE THE QUALITY OF THE MATERIAL O R WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN 'AS IS, WHERE IS" AND "WITH ALL FAULTS' CONDITION AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR U SE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. S ection 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively ' Other Improvements'), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist The Grantee agrees to keep the above -described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said Form 704; Rev. 03/23/09 2 work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi - governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws' ). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport release or suffer the release of "hazardous waste' or "hazardous substances", as "hazardous waste' and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above - stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days notice of termination upon Grantee. Upon termination Grantee shall remove the Improvements and restore the Premises as provided in Section 9. Form 704; Rev. 03/23/09 3 Section 8 Default and Termination. 8.1 Grantor's Performance Riahts. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder Grantee shall at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantees use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee s obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized Form 704; Rev. 03/23/09 4 to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. S ection 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with a Notice of Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such notice. S ection 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. S ection 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within 30 days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. S ection 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of Texas without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal valid and enforceable 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. Form 704; Rev. 03/23/09 5 14.7 The terms of the C&M Agreement are incorporated herein as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason, no longer in effect. 14.8 Upon completion of construction and acceptance of the improvements on the Premises, Grantee may assign this Easement Agreement to the City of Haslet, Texas without Grantor's further consent, as provided in the C&M Agreement, provided City of Haslet, Texas assumed all of Grantee's duties and obligations herein and Grantor receives a copy of the written assignment/assumption agreement. 14.9 Compensation. As provided in the C&M Agreement, Grantee shall pay Grantor, prior to the Effective Date, the sum of Thirty Seven Thousand Nine Hundred Seventy and No/100 Dollars ($37,970.00) as compensation for the grant of this Easement. Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: GRANTEE: CITY OF FORT WORTH, a municipality By: Name: Title: ; f_ r t t t'G 6 Form 704; Rev. 03/23/09 sions relating Scale: 1'1= 100'+/- N89' 56'2"W 44.08'(S)- ; To: Temple To: City of Ft. Worth At: Ft. Worth Tarrant County, TX MP 362.04 ES 19132.56 N87' 32'44"W 53.8931(S) N11" 8119'l5/ NB'11.6,�W ]8.90'l51 1 W 12 . '• 'A''f/,t f' 10 .911S e'S0.4 N87.33.57"W 78.75'f; 160.201510ii•C• y S1' 31'44"W 175.03(S) PcI19 Legend: k'z.•:.1 Permanent Easement Temporary Easement MEASUREMENTS BASED ON PROVIDED SURVEYS (S) MEASUREMENTS TAKEN OFF SURVEY (M) MEASUREMENT Staubach Tracking TI •: B&W Proj. No.: 012196.003 MAP REFERENCE: Sta. - 500319 R/W - N/A EXHIBIT "A-1" rTX-2-3/4.1 14 WILLIAM A. BLAKLEY To: Gainesville Texas Division Fort Worth Sub.- L.S. 7500-5 Val. Sec. 45220 AT&SF TX-21, Map 14 M.E.P. & P.R.R. Co. Survey May 9, 2011 REV 7/6/11 M.P. 362.04 TJ S DRAWING NO. 3-51617r1 EXHIBIT A-1 for Easement Agreement PARCEL NO. 12PE RIGHT-OF-WAY EASEMENT ALLIANCE AIRPORT RUNWAY EXTENSION PHASE VIII MEP & P RR CO SURVEY, ABSTRACT NO. 1132 W. G. FINLEY SURVEY, ABSTRACT NO 1902 CITY OF FORT WORTH TARRANT COUNTY, TEXAS EXHIBIT "A" Being a 1.452 acre tract of land situated in the W. G. Finley Survey, Abstract No. 1902 and the M E P & P RR Co Survey, Abstract No. 1132, City of Fort Worth, Tarrant County, Texas, and being a portion of a tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company as recorded in County Clerk's File No. DI93282817 of the Deed Records of Tarrant County, Texas, said 1.452 acre tract of land being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west nght-of-way line of Keller -Haslet Road with a north hne of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of a tract of land deeded to Intennodal Container, LLC (Weir Brothers) as recorded in County Clerk's File No. D206355318 of said Deed Records of Tarrant County, Texas, from which a 5/8 inch iron rod with cap stamped ' Carter & Burgess" found for comer in a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company bears North 89 degrees 44 minutes 46 seconds West, a distance of 9.43 feet; THENCE South 89 degrees 44 minutes 46 seconds East, with a north line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company and with a south line of said tract of land deeded to Intermodal Container, LLC, a distance of 110.00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA' set for the intersection of the proposed east right-of- way line of said Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of said tract of land deeded to Intermodal Container, LLC; THENCE South 00 degrees 10 minutes 50 seconds West, with the proposed east nght-of-way line of said Keller -Haslet Road, a distance of 472.64 feet to a 5/8 inch iron rod with cap stamped 'GORRONDONA" set for the intersection of the proposed east right-of-way line of said Keller -Haslet Road with the west line of a tract of land deeded to AIL Investment, L P as recorded in County Clerk's File No. D199057458 of said Deed Records of Tarrant County, Texas, said 5/8 inch iron rod with cap stamped "GORRONDONA" being in a south line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company, from which a 5/8 inch iron rod with cap stamped "GORRONDONA' set for the northwest corner of said tract of land deeded to AIL Investment, L.P. bears North 08 degrees 50 minutes 44 seconds East, a distance of 95.73 feet THENCE South 08 degrees 50 minutes 44 seconds West, with the west line of said tract of land deeded to AIL Investment L.P. and with a south line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company, a distance of 103.91 feet to a point for comer; Page 1 of 2 T NCE North 89 degrees 45 minutes 37 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the west line of said tract of land deeded to AIL Investment, L.P., a distance of 17.62 feet to a point for corner in the existing east right-of-way line of said Keller -Haslet Road; THENCE North 89 degrees 56 minutes 02 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, a distance of 44.08 feet to a point for corner in the existing west right-of-way line of said Kesler -Haslet Road, said point being in the east line of a tract of land deeded to AIL Investment, L.P. as recorded in County Clerk's File No. D199057456 of said Deed Records of Tarrant County, Texas; THENCE North 89 degrees 44 minutes 24 seconds west, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L.P., a distance of 21.45 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found for comer; T ` `ONCE North 08 degrees 11 minutes 06 seconds West, with a south line of said tract of' land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L.P., a distance of 76.98 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west right-of-way line of said Keller -Haslet Road with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and the east line of said tract of land deeded to AIL Investment, L.P., from which a 1/2 inch iron rod with cap stamped "Brittian & Crawford" found for the northeast corner of said tract of land deeded to AIL Investment, L.P. bears North 08 degrees 11 minutes 06 seconds West, a distance of 128.12 feet; THENCE North 00 degrees 10 minutes 50 seconds East, with the proposed west right-of-way line of said Keller -Haslet Road, a distance of 499.38 feet to the POINT OF BEGINNING, and containing 62,070 square feet or 1.425 acres of land, of which 24,514 square feet lies within the existing right-of-way of Keller -Haslet Road, leaving a net area of 37,556 square feet or 0.862 acres of land, more or less. Notes: (1) A plat of even survey date herewith accompanies this legal description. (2) All bearings are referenced to the project control for the Alliance Runway Extension Phase III. All bearings and distances are surface. Surface factor for this project 1.000159672. Date: January 18, 2011 ; - ri r'� �� �_ ................. t Z\ t RICHARD K EDY } Wtl/ _____ \ wrs 7 �. -it: 6--c- (7/ _, SU ` _�-nee Richard Kennedy, RPL Texas No. 5527 Page 2 of 1 • • . FND 5/8"IR z W/CAP "CARTER & BURGESS" z • lag •', ti UNIE L-1 L-2 L-3 L-4 L-5 L-6 L-7 L-8 1IOTES: ~•••• • • ,I as2 •1. . al • EXHIBIT A-1 for Easement Agreement EXHI MO SR, LP C.C.F. NO. D203028719 D.R T.C.T. • L-2 • • • • • • • Iscesw.Z I —SET 5/8'1R W/CAP "GO RRONDONAS ..4.....• 1••. .11. 1.. Si ,..•. DETAIL As !•' •1 ve • 2 1 Pr St it ••�` • . ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY C.0 F. NO. D193282817 D.R.T.C.T. LINE TABLE SIG 8744'46-W 8744'46 S B9'44.48 S 0350144 Al 8745'37 N 87,5,02 N Wt 44'24 N OU 11'O 8 1 • . DtSTANCE 9.43` 110.00' 8.70' 1433.91" 17.82• 44a 08' 21.45' 76.98' END 1 /21R W/CAP 'IBRITTAN CRAWFORD` • • AIL INVESTMENT, 1 P. C.G F. NO, D199057456 D R.T.C.T. • • SET 5/81R W/CAP .GORRON°DCNK meek N w FND 5/8"IR W/CAP 'CARTER t BURGESS.' (1) A LEGAL DESCRIPTION OF EVEN SURVEY DATE HEREWITH ACCOMPANIES THIS PLAT. (2) BEARINGS ARE REFERENCED TO THE PROJECT CONTROL FOR THE ALUANCE RUNWAY EXTENSION PHASE III. BEARINGS AND DISTANCES SHOWN ARE SURFACE, SURFACE FACTOR FOR THIS PROJECT — 1.000159672. City 1•..•• O a tp .♦ 1. • •• . 6. -• • jt• 0, ay w.op d ais • a. • . W'• ' . .• • • 0a.• • .. . • g : . • _ . •• •. . • • • • • • .•... .•1 . /• ••..• .••nt. •.••• {y1 .• •▪ ••••.▪ 1▪ .. .• ./ • •▪ . • . .. • •••••.I.L 3•• • ..t.•.•I ,•. Mil /1...•••.- • • _•1 .11••1•. fled a•►•.• -.••••••..••f•. ••• •••• •..••..1••.•••.• .•.••• .••••1.1 •.a•14 g. ; ▪ :... ::.a... .. • ••.•. ••...•..)•.. •1 •.•.••�•••..•• 1 ..••4 ..... •. .•..•• 11•••.1••.•.1••1 .....• •.a•.••• ••••••• •..••♦ a•11••• flub •• •. • ▪ • 1. i.•• S fiCi ..▪ � ..•. .. ..p •• •. 1• .40 ••1•• •,� .. .• • • • • w ▪ .. •. •... .•••1 I.- -•• 0►1 1. ..• •• • • W I. I. k••114 ••1 • Ai .•• •• .••�• f•• .• ►. .. 11114 II ..•..,. ••.1. •♦.•.••••a.. =•••1.1.••1••••.11 .•••...• •l. •••.•••• OS•I•.•..• .•. .•••••.• ..• •I•••••• 1111 1I• 11.40••••••1 aim ••/.. .1• • i••1..••,•J . ••.••4••1•►a •• •.-....••...••..• 1 /..• •11..1.• .•1 .1 ••..•.. •. • ••••1 .•..•••• ••• .y ••••a • .•••• ••.... ../R .• • 1` •ip . I::• :1 • •. ••• tt ..•.•.•/• •• ▪ ...• .1... I... f.••� •••• 1.1•• • • • • W -J 00 LU UNDEDICATED FIGHT —OF —WAY • 1 PROJECT i /HASLLI VICINITY MAP INTERMODAL CONTAINER, LLC N.T.S. (WEIR BROTHERS) C.0 F NO. D20835531 B DRTC.T. F i L-2 1PI�TPp Yt ISSN SEr 5/8"IR; p W/cA GORRONDONA DETAIL SB s SET 5/8I r iR W/CAP S°IS GORRONDONA `5• 9 \14 Cd\:\ G. c N16\ 1 SET 5/8"IR W/CAI' "CORRONDONA" AILI NVESTM ENT, L. P. C.G.F. NO. D199057458 D.R.T.C.T. 1191 150 75Y C} a 150 SCALE IN FEET of Fort Worth 1000 THROCxuoR 011 S EEr • FORT WORTH, TEXAS 76102 ALLIANCE AIRPORT RUNWAY EXTENSION PHASE VIII �� g�R• AT12PE I IEASEMENT �CHI ON, TOPEKA &SANTA FE RAILWAY COMPANY 0 SURVEY: M E P & RR CO SURVEY, ABSTRACT NO. 1132 SURVEY: W. G. FINLEY SURVEY ABSTRACT NO, 1902 LOCATION: CITY OF FORT WORT\-i TARRANT COUNTY, TEXAS PARCEL AREA: 37.556 SQ.FT. OR 0.862 ACRES (NET) onN0. 091 i-3897 I DRAWN BY: RK I CADD HLE: ALLIIANCERUNWAYEXTPHIII_EXHIBITS,,,ROO.DWWG WE JIANUARY 18, 2011 PAGE 1 OF 1 SCALE: 1 " — 150' GORRONDONA & ASSOCIATES, IttC1 • 6707 BRENTW000 STNR ROAD, SUITE 50 FORT WORTH, TX. 76112 • 817-498-1424 FAX 817--486-1768 I •n•.. +. ` r T- r (r • F'a•• `i r C tic';''`' f`i i IsJ I 1 RIB'P I.,s t3 t".Lt° NLfY'fi It ♦ 6 .� t l_ . f si 1441. •1. feet"t �`-- Raw— w rthsHARD RPLS TEXAS NO. 5527 l� as 1 1 1 Pia 1 at r — — 1 • . 1 ■ 1 "mrcel No. 12PE night -of -Way Northing 7042927.397 7042926.909 7042454.268 7042351.597 7042351.671 7042351.722 7042351.819 7042428.016 7042927.397 Acquisition Easting 2321539.667 2321649.666 2321648.177 2321632.199 2321614.580 2321570.503 2321549.054 2321539.094 2321539.667 Bearing P-12PE.txt Distance S 89°44'4E" E 110.000 s 00°10'60" S 08°50'44" N 89°45'37" W 472.643 W 103.907 W 17.620 N 89°56'02' W 44.076 N 89°44'24" N 08°11'06" N 00°10'50" Closure Error Distance> 0.00000 Total Distance> 1346.061 Polyline Area: 62070 sq ft, 1.425 acres W 21.450 W 76.981 E 499.383 Page 1 EXHIBIT B-1 MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2013, by and between BNSF RAILWAY COMPANY a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and the CITY OF FORT WORTH, a municipality ("Grantee'), whose address for purposes of this instrument is , which terms ' Grantor" and 'Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in Tarrant County, Texas as described on Exhibit "A-2" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, things, the terms of 'Easement' ); and Grantor and Grantee entered into an Easement Agreement, dated , 2013 (the "Easement Agreement") which set forth, among other an easement granted by Grantor to Grantee over and across the Premises (the WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions Easement Agreement of record. of the For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. Page 1 of 3 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on the day of , 2013, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: Page 2 of 3 GRANTEE: CITY OF FORT WORTH, a municipality By: Name: r-iprnando COS Title: ," 41s}st n ►e1 STATE OF COUNTY OF l2irraf7+§ This instrument was ack9owledged before me on the day of /� , 2013, by rA.5.74a._ (name) as45S4514 C/i�/ MLl/kTe!(title) of C/,�c/ Wo2 +-h , a firtn-w Notary Public (Seal) My appointment expires: `o III I//StspilY. rob i 0 . A• „ .• c-"`. EVONIA DANIELS MY COMMISSION EXPIRES July 10, 2013 Page 3 of 3 EXHIBIT A-2 for Memorandum of Easement PARCEL NO. I2PE RIGHT-OF-WAY EASEMENT ALLIANCE AIRPORT RUNWAY EXTENSION PHASE VIII MEP & P RR CO SURVEY, ABSTRACT NO. 1132 W. G. FINLEY SURVEY, ABSTRACT NO 1902 CITY OF FORT WORTH TARRANT COUNTY, TEXAS EXHIBIT "A" Being a 1.452 acre tract of land situated in the W. G. Finley Survey, Abstract No. 1902 and the M E P & P RR Co Survey, Abstract No. 1132, City of Fort Worth, Tarrant County Texas, and being a portion of a tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company as recorded in County Clerk's File No. DI93282817 of the Deed Records of Tarrant County, Texas, said 1.452 acre tract of land being more particularly described by metes and bounds as follows: BEGINNING at a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west nght-of-way line of Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of a tract of land deeded to Intermodal Container, LLC (Weir Brothers) as recorded in County Clerk's File No. D206355318 of said Deed Records of Tarrant County, Texas, from which a 5/8 inch iron rod with cap stamped ` Carter & Burgess" found for comer in a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company bears North 89 degrees 44 minutes 46 seconds West, a distance of 9.43 feet; THENCE South 89 degrees 44 minutes 46 seconds East, with a north line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company and with a south line of said tract of land deeded to Intermodal Container, LLC, a distance of 110.00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed east nght-of- way line of said Keller -Haslet Road with a north line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and a south line of said tract of land deeded to Intermodal Container, LLC; THENCE South 00 degrees 10 minutes 50 seconds West, with the proposed east nght-of-way line of said Keller -Haslet Road, a distance of 472.64 feet to a 5/8 inch iron rod with cap stamped 'GORRONDONA' set for the intersection of the proposed east right-of-way line of said Keller -Haslet Road with the west line of a tract of land deeded to AIL Investment, L P as recorded in County Clerk's File No. D199057458 of said Deed Records of Tarrant County, Texas said 5/8 mch iron rod with cap stamped ` GORRONDONA" being in a south line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company, from which a 5/8 inch iron rod with cap stamped "GORRONDONA' set for the northwest corner of said tract of land deeded to AIL Investment, L P. bears North 08 degrees 50 minutes 44 seconds East, a distance of 95.73 feet; THENCE South 08 degrees 50 minutes 44 seconds West, with the west line of said tract of land deeded to AIL Investment L.P. and with a south line of said tract of land deeded to the Atchison Topeka & Santa Fe Railway Company, a distance of 103.91 feet to a point for comer; Page 1 of 2 NCE North 89 degrees 45 minutes 37 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the west line of said tract of land deeded to AIL Investment, L.P., a distance of 17.62 feet to a point for corner in the existing east right-of-way line of said Keller -Haslet Road; THENCE North 89 degrees 56 minutes 02 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company, a distance of 44.08 feet to a point for corner in the existing west right-of-way line of said Keller -Haslet Road, said point being in the east line of a tract of land deeded to AIL Investment, L.P. as recorded in County Clerk's File No. D199057456 of said Deed Records of Tarrant County, Texas; THENCE North 89 degrees 44 minutes 24 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, LP., a distance of 21.45 feet to a 5/8 inch iron rod with cap stamped "Carter & Burgess" found for corner; THENCE North 08 degrees 11 minutes 06 seconds West, with a south line of said tract of land deeded to the Atchison, Topeka & Santa Fe Railway Company and with the east line of said tract of land deeded to AIL Investment, L.P., a distance of 76.98 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the intersection of the proposed west right-of-way line of said Keller -Haslet Road with a south line of said tract or land deeded to the Atchison, Topeka & Santa Fe Railway Company and the east line of said tract of land deeded to AIL Investment, L.P., from which a 1/2 inch iron rod with cap stamped "Brittian & Crawford" found for the northeast corner of said tract of land deeded to AIL Investment, L.P. bears North 08 degrees 11 minutes 06 seconds West, a distance of 128.12 feet; THENCE North 00 degrees 10 minutes 50 seconds East, with the proposed west right-of-way line of said Keller -Haslet Road, a distance of 499.38 feet to the POINT OF BEGINNING, and containing 62,O70 square feet or 1.425 acres of land, of which 24,514 square feet lies within the existing right-of-way of Keller -Haslet Road, leaving a net area of 37,556 square feet or 0.862 acres of land, more or less. Notes: (1) A plat of even survey date herewith accompanies this legal description. (2) All bearings are referenced to the project control for the Alliance Runway Extension Phase III. All bearings and distances are surface. Surface factor for this project 1.000159672. i 1 Date: January 18, 2011 -- jr • %-- � f ,. 4?' es c ......,,.� f ti. it) , :'Qc ' - r ('3••..) W ', :-% Is" ..►A..�.....�...�.iwM�.r.�ride—rwSt• Richard Kennedy, Texas No. 5527 1CHARD K � ,o by RPLt,r�� cif , S t) Page of n } • GO Np. cl:C bac'C ire sob FND 5/8"IR W/CAP "CARTER & BURGESS" a 1` tit • • • EXHIBIT A-2 for Memorandum of Easement EXHIBIT "B°' TWO SR, L.P. C.C.F. NO. D203028719 D.R T.C.T. • �S • L— 2 SET 5/frIR r W/CAP "GORRONDONAn r M %54- •• .•L I• 1• L.V.. 1. ••• DECAL AD Q� ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY C.C.F. NO. D193282817 D•R•7.C,T. UNE TABLE UNE BEARING La 1 4 89'44'4&W L 2 fl9'44'48 5 ■/8..9y��'44'4488 s I L-4 S 08.5 '44 L-5 N 69r45137 L-6 N 8 02 I L-7 1 99 '24 I 1.41 N OF 11'08 DOTES: INSTANCE 9.43' 110.00' 0.70' 103.91' 17.82' 44.08' 21.45' 76.98' END 1 /2°1 R W/CAP "QRITTAN CRAWF©RD' •• a AIL INVESTMENT. L P. C.C.F. NO. D199057456 D R.T.C.T. SET 5/81R w/GAP "GORRONOD NA" FND 5/8"IR W/CAP "CARTER & BURGESS" (1) A LEGAL DESCRIPTION OF EVEN SURVEY DATE HEREWITH ACCOMPANIES THIS PLAT. (2) BEARINGS ARE REFERENCED TO THE PROJECT CONTROL FOR THE ALLIANCE RUNWAY EXTENSION PHASE III. BEARINGS AND DISTANCES SHOWN ARE SURFACE SURFACE FACTOR FOR THIS PROJECT in 1.000159672. • • La=s2 1 1 I z a •• ••••••J•L••'• .• •••,••.• •• • • • • • • ..• ••11•11••• •. •1•R• ...•...••• • „ \ • • u • • • • • , 1 ,••, ••••••• •• • ••••• 1•••a••• •r. • ••mama ..•••••••a•i.., •▪ •••• •••••••.• ••• a• •••••nog •.•••••• •••all •• . ••..•A••♦ •• •• 1▪ 1•••i •••••••• •.• • $ ••••••• •• •• .•/• 4.1••.•• ••• •• ••.• ...•name •n• ••,.•• .••1•••a.., f•11 manna• ••••.••. •.•••• ••,,., , ••••1•• •u•i• ••• 0 3r• ••� VI •r .. •••• •• .• • 1 w •tcsi „ a.�• •. ▪ .. IC)..••ri., • 1.• ,it•. r Ts 1 •• •• • •• • t, Ti. •• ▪ • • • • w. 1T•. • •.•ate .. i?. ••4±• ••••.� • r1 .•••r •. 4 1. m• anna. • •..1... ••••• -••••, • ..• .....it •r••• ..• manna •••.•••• nne • name .•••.•.a•..� i • • • • • •mean••. •• .•.,., ,•,,.... •r1• *manna •.,r•••• rr• /••••••• .aseal .1„•.•• 4 • • •. •1110■1104 ••■ ■••• .•••. 4 •■ •a • • • • • —•••►••• •••1• r::• 1 :.: 1 - 1 EXISTING UNDEDICATED RIGHT-OF-WAY • ■ PROJECT HASLET ES oRT PARKWAY VICINITY MAP INTERt 1ODAL CONTAINER, LlC N.T.S. (WEIR BROTHERS) C.0 F N0. D206355318 N`'''+ti,+ D R T C.T. s tz<>, l� • • SET 5/8"tR W/Ca 'GORRONDONA" f SET% 5/81R\LL I / ( pOR GRONDOhlA • I e ei N f \,a DETAIL 'B�� el \N\5N�• g \N . Go C ixic35-CCU\ 1 SET 5/8"IR W/CAP •GORROh1DONA" AIL INVESTMENT, L.P. C.C.F. NO. D199057458 D.R.T.C.T• 150 75 it 0 SCALE IN FEET 150 1 City of Fort Worth 1000 THRQCK6.MOU TON STREET • FORT ALLIANCE AIRPORT RUNWAY EXTENSION PHASE VIII WORTH, TEXAS 76102 PARr'ec€L 12PE I RIGHT—OF—WAY EASEMENT OWNER: ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY SURVEY: M E P & RR CO SURVEY, ABSTRACT NO. 1132 SURVEY: W. G. FINLEY SURVEY, ABSTRACT NO. 1902 LOCATION: CITY OF FORT WORTH TARRANT COUNTY, TEXAS PARCEL AREA: 37.556 SQ.FT. OR 0.862 ACRES (NET) ‘JOP- NO. 0911-3897 DRAWN 13Y: RK CADL rILE: ALLJANCERUNWAYEXTPH?l+_EXH®1TS,.,,R00.DWG DATE: JANUARY 18, 2011 I PAGE 1 OF I SCALE: 1" - 150' GORRONDONA & ASSOCIATES, INC. • 6707 BRENTW000 STAR ROAD, SUITE 50 FORT WORTH, TX. 76112 s kgc- r r& r,•' * 4‘. .r • i ?I kAHU KENNLDY It ei: - ♦ • Pi., J 1 \ RICHARD KENtr):T'., TEXAS NO. 5527 817-496-1424 •• • 41 i_ *• •j• • -yam t,t(• RPLS FAX 617-496-1768 "mrcel No. 12PE night -of -Way Northing 7042927.397 7042926.909 7042454.268 7042351.597 7042351.671 7042351.722 7042351.819 7042428.016 7042927.397 Acquisition Easting 2321539.667 2321649.666 2321648.177 2321632.199 2321614.580 2321570.503 2321549.054 2321539.094 2321539.667 Bearing P 12PE.txt Distance $ 89°44'46" E 110.000 5 00°10150" W 472.643 S 08°50'44" W 103.907 N 89°45'37" W 17.620 N 89°56'02" W 44.076 N 89644'24" W 21.450 N 08611'06" W 76.981 N 00°10'50" E 499.383 Closure Error Distance> 0.00000 Total Distance> 1346.061 Polyline Area: 62070 sq ft, 1.425 acres Page 1 EXHIBIT "C" (BNSF FORM 0102) CONTRACTOR REQUIREMENTS 1.01 General • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway' where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction or maintenance of Keller -Haslet Road at railroad milepost 362.15 on Line Segment 7500 in Fort Worth, Texas. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1" Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "C-1 '. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations Railway will have the right to stop construction/reconstruction/maintenance work on Keller -Haslet Road if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion prosecutes the work in a manner which is hazardous to Railway property facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described m the attached Exhibit C-1 is canceled during the course of the work; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction/reconstruction/maintenance work on Keller -Haslet Road, Railway agrees to immediately notify the following individual m writings Pat Buckley Transportation & Public Works Department 1000 Throckmorton Street Fort Worth, Texas 76102 (817) 392-2443 • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act as amended; the Clean Water Act, the Oil Pollution Act the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. 1 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 • • 1.01.06 The Contractor must notify the CITY OF FORT WORTH at Pat Buckley, telephone number (817) 392- 2334 and Railway's Manager Public Projects, telephone number 817-352-2902 at least thirty (30) calendar days before commencing any construction/reconstruction/maintenance work on Railway Property. Contractor's notification to Railway, must refer to Railroad's file 020661X. 1 01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shormg submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance -of -Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard All drawings and calculations must be stamped by a registered professional engineer licensed to practice m the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as cranes and/or winches to place or to remove any falsework over Railway's tracks In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway s trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency. • 1.03.02 The Contractor must notify the Railway's Division General Manager at 817-224-7001 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: 2 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 ot • • 15' Horizontally from centerline of nearest track 21'-6" Vertically above top of rail 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts 34' 0" Vertically above top of rail for electric wires carrying more than 20 000 volts • 1.03.04 Upon completion of construction, the following clearances shall be maintained• • 25' Horizontally from centerline of nearest track • 23'-3 % " Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the CITY OF FORT WORTH and must not be undertaken until approved in writing by the Railway, and until the CITY OF FORT WORTH has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell -tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell -tales or protective devices will be borne by the Agency. • • • 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by the CITY OF FORT WORTH for approval before work is undertaken and this work must not be undertaken until approved by the Railway. 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a 'Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832 5452 of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described m the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www contractororientation.com, which will be made available to Railway 3 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on -site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS) at the job site. 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (Krum, TX) at telephone 940-482 8433 a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position) If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05 02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions* • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by the CITY OF FORT WORTH . The estimated cost for one (1) flagger is approximately between $800 00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation meals, lodging radio equipment supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. • 1.05.03d The average train traffic on this route is: no through train movements and 4 switching movements per day at 20 MPH, no passenger trains. 4 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railroad's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above -the -ankle lace -up and a defined heel; and d) high visibility retro-reflective work wear. The Railroad's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information contained on the web site and the information in this paragraph, the web site will govern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT -GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE 5 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 RAILROAD'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway s Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage Any work performed over water must meet all Federal, State and Local regulations • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet 350 to 500 KV - 25 feet 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means 1.07 Excavation • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Roadmaster (940-482-8433) and BNSF Supervisor Signal Construction (817-740-7384) All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth must be shored where there is any danger to tracks, structures or personnel • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered guarded and/or protected when not being worked on When leaving work site areas at night and over weekends the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non -containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1-800- 832 5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate 6 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements Any personal injury sustained by an employee of the Contractor subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non -Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury 7 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 NON -EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY. 1. Accident City/St 2. Date: Time: County: 3. Temperature: 4. Weather (if non -Railway location) 5. Social Security # 6. Name (last, first, mi) 7. Address: Street 8. Date of Birth: and/or Age City: Gender: (if available) 9. (a) Injury: (b) Body Part: (i.e. (a) Laceration (b) Hand) 11. Description of Accident (To include location, action, result, etc.): 12. Treatment: ? First Aid Only ? Required Medical Treatment ? Other Medical Treatment 13. Dr. Name 30. Date: 14. Dr. Address: Street: 15. Hospital Name: City: St. Zip: St: Zip: 16. Hospital Address: Street. City: St: Zip: 17. Diagnosis: FAX TO RAILWAY AT (817) 352-7595 AND COPY TO RAILWAY ROADMASTER FAX 940-482-6021 RAILWAY MANAGER PUBLIC PROJECTS FAX (817) 352-2912 8 Exhibit C — Keller -Haslet RoadUnderpass (7-27-11) FORM 0102 — Rev date June 2008 BNSF RAILWAY COMPANY Attention: Manager Public Projects LAW DEPARTMENT APPROVED UNDERPASS EXHIBIT "C-1" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR Railway File: 020661X Agency Project: Keller -Haslet Road Underpass — Gentlemen• The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated , with the CITY OF FORT WORTH for the performance of certain work in connection with the following project: . Performance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property (' Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for the CITY OF FORT WORTH (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, m consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees) for injury or death to all persons including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor s or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to 1 Exhibit C-1 — Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims and m the event of a suit being brought against Railway Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and agamst all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000 but in no event less than the amount otherwise carried by the contractor. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. Waiver of subrogation in favor of and acceptable to Railroad. Additional insured endorsement in favor of and acceptable to Railroad. Separation of insureds The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. It is agreed that the workers' compensation and employers' hability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railroad employees. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy with regard to the work being performed under this agreement B Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following* • Bodily injury and property damage • Any and all vehicles owned used or hired The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railroad. 2 Exhibit C-1— Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 • Additional insured endorsement in favor or and acceptable to Railroad. • Separation of insureds • The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: • Contractor s statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railroad. D. Railroad Protective Liability insurance naming only the Railroad as the Insured with 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 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railroad prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to contractor. Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits agamst Railroad. In addition, its insurers through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under contractor's care, custody or control. Contractor is not allowed to self -insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self -insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to include a deductible, self -insured retention or other financial responsibility for claims. Prior to commencing the Work, contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non -renewal, substitution or material alteration This cancellation provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate original of any required policy must be furnished Contractor should send the certificate(s) to the following address: 3 Exhibit C-1— Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 Ebix BPO PO Box 12010-BN Hemet, CA 92546 8010 Fax number: 951-652-2882 Email: bnsf(aebix.com Any insurance policy must be written by a reputable insurance company acceptable to Railroad or with a current Best's 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 provide. Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be m addition to all policy limits for coverages referenced above Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect then -current risk management practices in the railroad industry and underwriting practices in the insurance industry If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as contractor is required to release defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle but not require, Railroad to terminate this Agreement immediately Acceptance of a certificate that does not comply with this section will not operate as a waiver of contractor's obligations hereunder The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be deemed to release or diminish the liability of contractor including without limitation liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad means `Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY' and the subsidiaries, successors, assigns and affiliates of each Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS The Contractor must observe and comply with the provisions, obligations, requirements and limitations contained in the Contract and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, including, but not be limited to payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records Any disruption to train traffic may cause delays to multiple trains at the same time for the same period 4 Exhibit C-1 — Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains may be as high as $50,000.00 per incident. Contractor and its subcontractors must give Railway's Roadmaster (940-482-8433) four (4) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which, upon execution by Railway will constitute an Agreement between us. (Contractor) BNSF Railway Company By: By Printed Name. Name: Title: Manager Public Projects Contact Person: Address City: Fax: Phone: E-mail: State: Zip: Accepted and effective this day of 5 Exhibit C-1— Keller -Haslet Road UP (7-27-11) Form 0107 - Rev. date: January, 2010 KHRtyp02 2013-01-14.DGN APPROX. TRACK IA Alliance Air Services JANUARY 2013 55' ISTING GROUND FUTURIE I WATERLINE 'l CENTERLINE 2r. 1- FUTURE CONSTRUCTION F1 By OTHERS FUTURE 12" WATERLINE PROP UTILITY TRENCH (FFOR ORRFULTURE SANITARY S 110• 11.0'- -. 8.0' 11' I 11' -1 PROP UTILITY TRENCH 1 CENTERLINES 1 27. ONCORi KELLER HASLET ROAD BNS TYPICAL NNECTSECOR TIONGE KHR STA 14•07.14 55' 38' 27' THRU LANES 13.5' 13.5' LANE LANE F PGL� • zX \\ \\\\\\\\ FUTURE BRIDGE BY OTHERS IT' 4.5'5' 7.5'-,� SDWLK 2Z I FUTURE CONCRETE SIDEWALK BY OTHERS TAUPED TOPSOIL TALVEO SELECT BACKFILL APPROX. TRACK EXHIBIT D Keller -Haslet Road Underpass at BNSF Railway DOT No. 020-661X RR MF 362.15 FORT'O1ZTH ALLIANCE AIRPORT RUNWAY EXTENSION PROJECT JATAGGES COBS IX REGISTRATION F Na. 1,2966 1