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Resolution No. 2014-012
CITY OF THE COLONY, TEXAS RESOLUTION NO. 2014- (212) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AN OVERPASS AGREEMENT BY AND BETWEEN THE CITY OF THE COLONY AND THE BNSF RAILROAD FOR CONSTRUCTION AND MAINTENANCE OF THE GRANDSCAPE BOULEVARD BRIDGE; PROVIDING AN EFFECTIVE DATE NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas, hereby approves an Overpass Agreement by and between the City of The Colony and the BNSF Railroad, for construction and maintenance of the Grandscape Boulevard Bridge, with the terms and conditions as stated therein. Section 2. That a true and correct copy of the Agreement is attached hereto and incorporated herein as "Exhibit A". Section 3. That the city manager is authorized to execute an Overpass Agreement with the BNSF Railroad for the purpose of constructing and maintaining the Grandscape Boulevard Bridge. Section 4. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 4"' day of March, 2014. ATE Christie Wilson, TRMC, City Secretary ►:�►yI1C�lOC�7:iuA Attorney �L J e McCo ry, Mayor City of The Colony, Tex NO SEAQ rEX A� OVERPASS AGREEMENT BNSF File No. 675257A Grandscape Boulevard Overpass U.S. D.O.T. No. 675257A LS 1046, MP 691.08 This Agreement ("Agreement"), is executed to be effective as of this 2nd day of December, 2013 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and the CITY OF THE COLONY, TEXAS, a political subdivision of the State of Texas("Agency"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of The Colony, State of Texas; WHEREAS, Agency desires to construct a new crossing at separated grades to be known as the Grandscape Boulevard Overpass located at railroad milepost 691.08 and designated by D.O.T. No. 675257A. 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 the proposed Grandscape Boulevard Overpass (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. During construction of the Structure, vehicular traffic will be excluded from the use of Grandscape Boulevard across BNSF Right of Way. Additionally, temporary controls during construction must be in compliance with the Manual on Uniform Traffic Control Devices (MUTGD), U.S. Department of Transportation. ARTICLE If — BNSF OBLIGATIONS In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. In consideration of the faithful performance of the Agency's covenants contained herein, BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction License") to construct the Structure across or upon the portion of BNSF's right-of-way described further on Exhibit A, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, Pipelines and other facilities of like character upon, over or under the surface of said right-of- way; (b) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate, provided such facilities do not materially interfere with the Agency's use of the Structure; (c) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate, provided such use or operations does not materially interfere with the Agency's use of the Structure. (d) Require the Agency or its contractor to execute a Temporary Construction Crossing Agreement, for any temporary crossing requested to aid in the construction of this Project. Prior to commencing any work on BNSF's property or right-of-way, Agency must pay BNSF the sum of thirty-nine thousand three hundred dollars and no cents ($39,300.00) as compensation for the Temporary Construction License and Easement plus a two thousand dollars and no cents ($2,000.00) Administrative Fee. The Administrative Fee will cover the processing of the Temporary Construction License and the Easement. The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of (i) substantial completion of the Structure, or (ii) twenty-four (24) months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Agency 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 construction of the Structure only and shall not be used d by Agency for any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Structure. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses 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. Upon receiving the payment from Agency described in the subsequent sentence and provided Agency is in compliance with the terms and conditions of this Agreement, BNSF will grant to Agency, its successors and assigns, an easement (hereinafter called, the "Easement") to enter upon and use that portion of BNSF's right-of-way as is necessary to use and maintain the Structure, substantially in the form of Exhibit B attached to this Agreement. The Easement will be in the name of the Agency. 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of Agency, which approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof; (d) Furnishing engineering and inspection as required in connection with the construction of the Project; (e) Providing a contract project coordinator, at Agency's expense, to serve as a project manager for the Project; and Page 2 Form 0105 Rev. 06/09/05 3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements. 4. Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or Agency's contractor in connection with the Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of Agency and Agency agrees to fully reimburse BNSF for all such emergency work. 5. BNSF may charge Agency for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 6. During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. Agency must reimburse BNSF for completed force -account work within thirty (30) days of the date of the invoice for such work. Upon cornpletion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article IV, Section 7 herein, Agency must pay the final invoice within ninety (90) days of the date of the final invoice. BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month's end. Finance charges will be noted on invoices sent to Agency under this section. ARTICLE III -- AGENCY OBLIGATIONS In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows: 1. Agency must furnish to BNSF plans and specifications for the Project. Four sets of said plans (reduced size 11" x 17"), together with two copies of calculations, and two copies of specifications in English Units, must be submitted to BNSF for approval prior to commencement of any construction. BNSF will give Agency final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and specifications meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes. 2. Agency must make any required application and obtain all required permits and approvals for the construction of the Project. 3. Agency must provide for and maintain minimum vertical and horizontal clearances, as required in Exhibit C and as approved by BNSF as part of the plans and specifications for the Project. Agency must acquire all rights of way necessary for the construction of the Project. Page 3 Form 0105 Rev. 06/01/05 5. Agency must make any and all arrangements, in compliance with BNSF's Utility Accommodation Manual (http:/lbnsf.com/communities/fags/permits-real-estate/#specs/UtiliyAccommodationManual), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project. 6. Agency must construct the Project as shown on the attached Exhibit A and do all work ("Agency's Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency's Work. The principal elements of Agency's Work are as follows: (a) Construction of the Structure; (b) All necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF's right-of-way; (c) Provide suitable drainage, both temporary and permanent; (d) Installation and maintenance of an 8 -ft, high fence and/or concrete combination (throw fence) on the outside barrier of the Structure; (j} Job site cleanup including removal of all construction materials, concrete debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF; 7. Agency must apply and maintain the following information, using seven (7) inch high BLACK lettering and numbering on a WHITE background in a conspicuous location on the north side of the Westbound Structure and on the south side of the Eastbound Structure near the center line of the railroad track below: DOT NO, 675257A MIP 691.08 8. Agency's Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. 9. For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to execute the C documents. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF's Internet Website "can tractororientation.com"; notify BNSF when, pursuant to the requirements of exhibit C, a flagger is required to be present; procure, and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance. 10. Agency must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 11, Agency or its contractor(s) must submit four (4) copies of any plans (including two sets of calculations in English Units) for proposed shoring, falsework or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring, falsework or cribbing used by Agency's contractor shall comply with the BNSF Bridge Requirements set forth on Exhibit F and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. Page 4 Form 0105 Rev. 06/01/05 12. Agency must include the following provisions in any contract with its contractor(s) performing work on said Project: (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 based on information from the telecommunications companies. The contractor will be responsible for contacting BNSF's Engineering Representative Roadmaster (Chris Vega) at office # 817-352- 2548, cell # 254-299-7626, BNSF's Signal Representative Signal Construction Supervisor (Dwayne Tiffin) at office # 817-740-7384, cell # 817-296-8042, and 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 construction at no cost to the Agency 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-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 PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF. 13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article 111; (ii) the provisions set forth in Article IV; and (iii) the provisions set forth in Exhibit C and Exhibit C -I, attached hereto and by reference made a part hereof. 14. Except as otherwise provided below in this Section 13, all construction work performed hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following: Page 5 Form 0105 Rev. 06/01/05 (a) All work performed under such contract or contracts within the limits of BNSF's right-of- way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; (c) No work will be commenced within BNSF's right-of-way until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF a letter agreement in the form of Exhibit C -I, and (ii) delivered to and secured BNSF's approval of the required insurance; and (d) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's representative (roadmaster) 4 weeks advance notice of the proposed times and dates for work windows. BNSF and Agency's contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor's expenses for the Project. (e) The plans and specifications for the Project must be in compliance with the Bridge Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein. 15. Agency must advise the appropriate BNSF Manager of Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. Additionally, Agency must notify BNSF's Manager of Public Projects, in writing, of the date on which Agency and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project. 16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (1) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (11) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO ARTICLE 11 OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN ARTICLE Il OF THIS AGREEMENT, (VI) AGENCY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH 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 PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF. Page 6 Form 0105 Rev. 06/01/05 17. Agency must give BNSF's Manager of Public Projects written notice to proceed ("Notice to Proceed") with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from Agency. ARTICLE IV — JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work 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 BNSF will be subject to BNSF's written approval prior to the commencement of any such changes or modifications from the BNSF Project Manager. 2. The work hereunder must be done in accordance with the Bridge Requirements set forth on Exhibit F and the detailed plans and specifications approved by BNSF. 3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion, prosecutes the Project work in a manner which is hazardous to BNSF 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 Project; or (iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF 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 BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Gordon Scruggs Director of Engineering Engineering Department 6800 Main Street The Colony, TX 75056 Phone: 972-877-0740 Fax: 972-624-2317 Page 7 Form 0105 Rev. 06/01/05 5. Agency must supervise and inspect the operations of all Agency contractors to assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of the BNSF railroad. if BNSF determines that proper supervision and inspection is not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right-of-way), Construction of the Project will not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Gordon Scruggs Director of Engineering Engineering Department 6800 Main Street The Colony, TX 75056 Phone: 972-877-0740 Fax., 972-624-2317 for appropriate corrective action 6. INTENTIONALL LEFT BLANK 7. Pursuant to this section and Article il, Section 6 herein, Agency must, out of funds made available to it for the construction of the Project", reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement, less BNSF's Share as set forth in Article IV, Section 6 herein. BNSF's Share must be paid upon completion of the Project. 8. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article Il, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement. 9. The parties mutually agree that no construction activities for the Project, nor future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 800 832-5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period. 10. Subject to the restrictions imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's D.O.T. Crossing No. 675257A and must state the time that construction activities will begin. 11. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the following terms upon completion of construction of the Project: (a) Agency will own and maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, BNSF will notify Agency at its earliest opportunity. Agency must fully reimburse BNSF for the costs of maintenance performed by BNSF pursuant to this subsection (b). (b) Agency must, at Agency's sole cost and expense, keep the Structure painted and free from graffiti. Page 8 Form 0105 Rev. 06/01/05 (c) Agency must apply and maintain vertical clearance signs which consistently and accurately describe the minimum actual vertical clearance from the bottom of the Structure to the top of any pavement. (d) Agency must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto. (e) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. (f) Agency must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals. (g) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or its contractors and/or agents must procure and maintain the following insurance coverage: Railroad Protective Liability insurance naming only the Rallrotul as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 10 93 and include the following: t 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 As used in this paragraph, "Rallroad" means "Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. In lieu of providing a Railroad Protective Liability Policy, Agency may participate in BNSF's Blanket Railroad Protective Liability Insurance Policy if available to Agency or its contractors. The limits of coverage are the same as above. 12. Agency hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from Agency property to BNSF tracks for maintenance purposes. 13. Agency must provide one set of as built plans (prepared in English Units) to BNSF, as well as one set of computer diskettes containing as built CAD drawings of the Structure and identifying the software used for the CAD drawings. The "as built plans" must comply with the Bridge Requirements set forth on Exhibit F and depict all information in BNSF engineering stationing and mile post pluses. The "as built plans" must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown. 14. Subject to the restrictions imposed by Article IV, Section 9 above, Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for INSPECTION OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be Page 9 Form 0105 Rev, 06/01/05 revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations. 15. 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, the cost of such work, including any cost incidental to alteration of railroad or highway facilities made necessary by any such changes to the Structure, will be the sole responsibility of the Agency. 16. Agency may, at Agency's sole expense, alter or reconstruct the highway components of the Structure if necessary or desirable, 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 to be approved by BNSF pursuant to Article III, Section 1 herein, without obtaining BNSF's prior written consent and the execution of a supplement to this Agreement or the completion of a separate agreement. 17. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Texas and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement. 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, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party. 19. In the event construction of the Project does not commence within twelve (12) months of the Effective Date, this Agreement will become null and void. 20. Neither termination nor expiration of this Agreement will release either 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. 21. 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 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. 22. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 23. 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 CompanIV: BNSF's Manager of Public Projects 5800 North Main Street Fort Worth, Texas 76179 Page 10 Form 0105 Rev. 06/01/05 Agency: Director of Engineering Engineering Department 6800 Main Street The Colony, TX 75056 Page 11 Form 0105 Rev. 06/01/05 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. 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THIS EASEMENT AGREEMENT FOR:.... OEasernent.Agreement`) is made and entered into as of the. day of 20 ("Effective Date"), by and between BNSF . RAILWAY COMPANY, a. Delaware corp Oration {"Granti�r"), and the'City of The Colony,.a politicat suladi+�ision of the State of Texas:("Grantee").. A. GrantorowIns. or'controls certain real property situated at or near the vicinity of. The Colony,. County of Denton, State of . Texas, at Railroad Mile: Post [City Project #¢ 1, ' as described or depicted on -Exhl'bit "A" attached hereto and made a pari hereof (the "Premisos").. B. Grantor and Grantee havo-entered into that certain Construction and Mainfenance.Agreement dated as of concerning Improvements on oi' near the. Premises (the"C&M Agreement") . C.. Granted has requested that Grantor grant to Grantee an easement over: the. Prerrilses for the Easement Purpose (as defined below), D.: Grantor has :agreed to gratia Grantee.such easement, subject to the terms and conditions set forth in this Easement and in the C&MAgreement incor`p6rated herein as if fully.set forth JOhis instrument.wh[ch terries shall be in full farce and effect for purposes of.this Easement evert if tate C&M Agreement is, for whatever . reason, no longer in effect, NOWT 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 porties.agree as follows: Section 1 Granttncr of Easement: 11. E=asement Purpose. The "Easement Purpose".shall be for the purposes set forth in the C&M Agreement, Any lrnprovefnents o be constructed in connection with the Easement Purpose ate referred to herein- as "Improvements" anti 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 anon-eXeltlsive.easement {"E . ement") Over the Prsmises for the Ease meht 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* not: of'rercord, if any, relating to the. Premises and. subject to all with. all applicable. federal, state and local; laws, regula.tions, :ordinahcos, ,restrictions; covenants and .court or Administrative decisions, and orders, including Envirbhmentat Laws (defined below) -and zoning laws (collectively, "Laws"),. Grantor may not make any alterations or improvements -or perfoi m any rhaintenance:ot repair activities within the Premises except in accordance with the terms and.conditions of.the C&M. Agreement, 13 Reservations by Grantor. Grantor excepts and reserves the right, to. be exercised by Grantor and any either parties who may obtain written permission Or authority from Grantor: (a) to install;. construct, maintain, renew, repair, repiace Mise, operate; change modify and relocate any' existing : pipe,: power, c0irfat onication, cable, or. utility lines and appurtenances and otherfacilites.or structures. of like character. (collectively; "Lines"} upon; over; unrier 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 Poria 704CM-,.Rev, 0$117111 (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.terrninated under provisions sof this Easement Agreement, shall be perpetual, Section 3 Na Warranty of Any Conditions of the Premises. Grantee.acknowledges that Grantor has dude no representation. whatsoever to Grantee concerning the state or condition of the .Pr'emises, or any personal property. located thereon; or the nature or extent of Grantor's ownership interest in the Pretiiises. . Grantee. has not relied otI 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 ()ESIGN 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 PROP ERTY;'.0R.-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 UNQER THIS; I=ASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS; WHERE IS AND "WITH ALL'FA.ULTS" CONDITION, AND SUBJECT TO . ALLLIMITATIONS 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 ori 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 MAGE. In case of the .eViction of Grantee by anyone owning or claiming title to or arty .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 S. Improvements. Grantee_ shall take, in a. ti€nely m6nner, all actions necessary and proper to the. lawful establishment,. construction, operation, and maintenanco of. the Improvemen#s; including such actions as'. may. be necessary to obtain any required permits; . approvals or authorizations .from . applicatjle governrnenial . authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance-, m or future alteration of. the. improvements shall be ade and. maintained in such manner, form and extent as. will provide adequate drainage of and frorn the adjoining lands and premises.of the G(antor; and wherever any such . fill or embankment shall or may obstruct the hatural arld pie-existingArainage €ror.n.such lands and premises of the :Grantor, the Graritee 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. prerriises of: the Grantor; such extensions ta: bb of adequate sectional dirrrenslons to preserve the. present. flowage of, drainage or other,waters;=and:.of:niaterials::and workrn6bshtp equally as good as those now exlstinT In the event any oonstructlon, 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 -end make'any: adjustments necessary 10 such Other. Irriprovements,. Grantee must contactthe:. owners) of the Other - Improvements notifying therm of any work that may damage these Other Improvements and/or interfere with their service and obtain file owner's written approval prior to so affecting the Other Improvements.'- .Grantee, must mark all Other lmprovements on the Plans -arid Specifications and mark..such Other Irnprovements in the. field in order to verify their locations; , Grantee must also use all reasonable methods wlien working on or near Grantor property to determine if any Other. Improvements (fiber optic, cable,.comrnunication.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 he cut and removed at its sole expense all weeds.. and vegetation on said premises, said Form 704CM; .Rov, 08/17111 2 work of cutting and removal to be done at such times arrd.with. such frequency as to comply ,with Grantee and. local laws and regulations and: abate_ any. and all hazard of fire. Section 8' Taxes and Recording Fees. Grantee shall pay when due any taxes_, assessments_ orother: charges (collectively,. "Taxes") levied or. :assessed capon the improveinents .l)y any governmental .or qua - governmental body or any: saxes' levied or assessed.. against Grantor or the Prernises that are attributable. to the Improvements= Grantee agrees to purchase, affix and cancel any. and .oil documentary stamps. in the:ainount prescribed by statute, and to pay any and all required transfer taxes; excise toxes and any and all fees incidental to recordation of the Memorandum or.. l=asement. in fhe.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: Grantdr, includlaig all of Grantor's legal fees and expenses. Section 7 Environmental, 7,1 Compliance with Enylronrmental 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 Resaurce Conservation and Recovery Act; as amended (RCRA), , the .Clean Water Act, the .Olf Pollution Act,, the Hazardous Materials Transportation Act,: the Comprehensive Environmental Response, Coriipensat an and Liability. Act (GERCLA) and the Toxic Substances Control.Act (collectively referred to as the "Envirohrridntal Laws"), Grantee shall not maintain a "treatment, "storage," "transfer" or "disposal" #acility, or "underground storage tank," as those tennis 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 "hazardaus.waste"arid "hazardous substances" may now or in. the future be defined by any Environmental Laws, 7..2. Notice of Release.:: Grantee shall. give Grantor ,Irr mediate notice. to Grantor's Resourc Operations Center at.,(800) 832-6452 of any release of hazardous substances on or from the Premises, violation of .Environmental Lawn 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 ftorri the Premises.. Grantee also .shah give Grantor Immediate, notice of all meas cires. undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release_ or.violation. . 7.3 Reniediation of.Release;, in, the event that Grantor hasnotice from Grantee or otherwise of a release : or violation of Environmental taws which occurred. or may occur during the terns 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. Ptemises, if during the.construction or subsequent maintenance of the Improvements, soils or other materials considered. to be environmentally coniarniriated are eXposed, Grantee. wilt.remove and safely dispose of said contaminated. stills. D&terrnination:of soils contamination and applicable disposal procedures thereof, will be made only,by an agency having the -capacity and authoritty to make such a determination,: 7.4. Preventative Measures:. Grantee shall. promptly report to Grantor. in writing any conditions or; ` activities upon _tbe Premises known to Grantee:; which. create a risk of. harm:: to persons, property or (he. environment and shall take whatever action is necessary to prevent.injury to persons or prope.rty.arising out of such conditions or activities; provided, However, that Grantee's reporting. to Grantor shall not relieve Grantee of any. obligati:oti whatsoever imposed on: it by ,this basement Agreement,.: Grantee shall promptly respond to ,. Grantor's.request for information regarding said conditioris or activities., 7.5 Evidence of Compliance:. Grantee agrees periodically: Wfuniish. Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7>. Should.Grantee .riot comply. fully With: the above- stated obligations, of this Section 7,notwithstandinganything contained in any other provision hereof; Grantor may, at. its option, terminate .-this Easerrient 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. Section 8. Default and Termination. 3 Form 704CM; Rev. 6811i111 8.1 Grantor's Performance Rights, If at any.tirne Grantee, or Gtantea`s.Canfracfors fans to properly perform. kts obligations uhder this. Easement:Agreement, .Grantor, in its `sole discretion,_ may: (i) seek specific: performance of the unperformed obligations, or (4) at Grantee's We. cost, .may arrange for: the performande of. such work as Grantor deems necessary for fhe safety.of its rail operations, activities.agd property, onto 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 alt costs of work performed on Grantee's, behalf upon recelpt of an invoice for such casts. Grantor's failure to perform any obligations of Grantee:or Grantee's p(sntractors shall not alter the liability allocation set forth in this . Easement Agreenr ont. 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 dons titute.a waiver of the right to terminate this Easement Agreement for any subsequent de.faolt or°defaults; nor shall any such waiver in any way affect Grantor's ability to enforce any section_ of this Easement Agreement_ j 8.3 Effect of Termination or Expiration, Neither termination nor expiration will release Grantee from. any liability or obligation under this 'Easenient, whether of inderrmity or 'otherwise, resulting from any acts; orMssions or events happehing prior to, the date of termination or expiration, or, if later, the date the Premises are restored as required by -Section 9.. i 8A 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 ittay have -under the C&M Agreement at law or. in equity. I .rection Surrender Of Premises; l i 9'.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandortment,of the Easement or.by.the exercise of Grantor's termination rights,hereunder, Grantee: 1 shall, at Its sole. cost and expense, immediatety.perforrn the following: (a) remove all or such .portion of Grantee's .improverrierits and all appurtenances thereto from the Promisesi as Grantor: directs at,Grantbes sole discretion; i (b} repair olid restore. any-darnage toAhe Premises arising from, growing outf; or.: i connected with'Grantee's use -of the Premises; (c) remedy :any unsafe conditions on. the _Premises created or aggravated by i Grantee, and i i ..(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:soie cost, in which ease Grantee Shall have. a limited license to enter. upon the Premises to the extent ryecessary to undertake the actions directed. IJy 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 Easernent Agreement,: whether of indemnity or otherwise, resulting .from ahy acts,: omissions or events happening prior to the da termination, or, lf.later; the date.when:Grante&q Improvemerite are remoued and. the Premises are restored to the condition. that: existed as of the Effective pate. It. Grantee fails to surrender the Premises to Grantor. upon any term !nation of .the• Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until j the Premises ore surrendered. I .Section 10 Liens. Grantee shall promptly pay and discharge any and. ali 'Heels arising. out . of any construction, alterations or repairs done,. suffered or permitted to.: be done. by Grantee on the Premises. or l attributable to Taites. that are the: responsibility of Grantee pursuant to Section 6. Grantor is herekiy.authorized 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 Form 704CM; Rev, OSJ17111 4. Grantor to take any r ich action shall not relieve Grantee of any obligation or liability unifier this Section Mor a.ny other section of this Easement Agreement, Section .11:. Tax Exchange:. Grantor may assign its rights (but not its Obligations) underAhis Easement Agreement to.G.oldfinch Exchange Companyll_C, an exchange. intertnediary, .in order. for Grantor 1: effect -an exchange_ under Section 1031 of the Internal Revenue .Cade: 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. riotice.. 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 CAVI Agreement, Notices to Grantor undevthls Easement shall be delivered to the following address; BLASE Railway Company, Real Estate Department, 2500 Loci Menit Drive, Ft, Worth; TX 76131, Atte: Perri! its, .or such ether address as Grantor may from time to time.direct by notice to Grantee. Section 1*3 ' .: Recordation. It is understood and agreed.: that. this Easen-tent.Agre.einent sh=ill 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 0 MerriorandUm. of Easement in the form attached hereto as. Exhibit " (the "Memorandum of Easement") subject to changes required, if any . to eonfotm.such form to local recordingrequirements. The Memorandum' of Easement shall be. recorded in the real estate records in. the county where the. Prerrilsas are .located. if a Memorandum of Easement is not executed. by the parties and recorded as described above within.34 days of the. Effective, Date, Grantor_shall have the eight to terminate this Easement Agreement upon notice to Grantee, Section 14 Miscellaneous. 141 All questions con cerning. the irite rpretati.ah or, .applicafionof provisions of this Easement Agreement shall be decided according to:the;substanfive Laws of the State of [Texas) Without regard to conflicts of lava provisions.., . 14.2 In the eventz that Grantee.coi7sists 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 hereofshall 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_Prernises. 943 _ . if any action. at laid or in equity is necessary to enforce or interpret the terms of this Easement Agreement; the prevalling 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 maybe entitled. 114A if any provision of this Easement Agre.ei lent is held to be illegal; invalid or unenforceable under present or future..Laws; such provision will be fully severable and thls. Easement Agreement.wiil tie construed and enforced as if ,such illegal, invalid or- urienforceable provision is. not a part.. hereof, and the. remaining provisions: hereof will.remain lri._fuli teres anci effect, .:ln lieu of any::itlegai, 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 Pro Isiah as niay be possible -and be legal, valid and enforceable. 14.5 Thi' Easement Agreement .is :the full: and complete; agm6ment between Grantor and Grantee with. respect: to all matters relating to Grantee's usef 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.. Ni�wever; nothing herein is intended to terminate arty 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 perlorma.nce of this Easerment:Agreement. Form 704CM; Rev. 08117/11 6 ADMINISTRATIVE FEE 15; Grantee acknowledges that a. material`conslderation. for this. agreement without which it would not be made; is :the acgreeinent between Grantee. and Grantor, that .the. Grantee shall pay upon retuhi of this Agreement signed by Graritee to Grantor's Broker a processing fee in the amount of $2,000.00 over and above the agreed. upon Acquisition Price, Said fee:'. ee shall be: made payable. to. BNSF Railway. Company by a separate Check. UVitness the execution of this* Easement Agreement. as of the data first set forth above. GRANTOR. GRANTEE City of The Colony,: . a political subdi*ion. of the State of Texas Name: Tod. K M urina.. Title:. . Assistant City Man ger of Special Development Form 704CM; Rev, 08117/11 fi Promises IPAGE 1 OF 2 1 POINT OF COMMENCING FND TXDOT OPASS CAP/CONC. 5lcptl, QBE 0 d A PORTION OF A CALLED 51.11 ACRE TRACT THE COLONY LOCAL DEVELDPMENT CORPORATION, THE COLONY ECONOMIC DEVELOPMENT CORPORATIDN & THE COLONY COMMUNITY DEVELOPMENT CORPORATION C.C. INSTR. NO. 2013-20492, O.P,R.D.C.T. Q. S06 "59' 58"E i s1g. 2e ` L" nL�CZ) '\ O op ui dap Lu �� a A PORTION OF A a C) CALLED 377.69 ACRE TRACT THE COLONY LOCAL DEVELOPMENT CORPORATION, z THE COLONY ECONOMIC DEVELOPMENT z CORPORATION & THE COLONY COMMUNITY r� DEVELOPMENT CORPORATION LD C.C. INSTR. NO. 2013-20492, D.P.R,D.C.T. `o �N73 "47'38"E 101.03' POINT OF BEGINNING NOS '59'58 "Vi 123.59' - GRA�45CA�� 6nutEV ASD 6'43'29"E 123.69' S73 "47' 38"W 100.43' InBEING A rBAJS :9 3FiNA0RSD) STATEING IS HPLANETH ECODRDINATEICAN i� 12,2a� '�-Q•F7'T. 0.2821 ACREnn] EM, TEXAS NORTH CENTRAL. TRACT OF SITUATED IN THE B.B.B. & C.R.R. CO. SURVEY, ABSTRACT NO. 174, THE CITY OF GIAPHIC SCALE 1'=100' THE COLONY Graham Associates,lnc DENTON COUNTY TEXAS o so too 150 CONSULTING SIX ENGINEERS & PLANNERS SOD SIX TT -AGS DRIVE. SUITE SOD ARLINGTON, UXAS 78011 (817) 640-8535 DATE: SEP. 27, 2013 THPE FWW F-1191/TBPLS FIRM: 1015311-130 ["NO,lr;'7 01" 12 2 89 SQ,FT ltt 2S2'I IkC. U11 1. 14 THE 13111".11.€11 AY01_l, 11 Z} AOS ci° Being a .0-282.1 aero. lr=►ct of latid silualc1. i.,� 1114 J3tiJ' ztlt� 'Ba �`au, Brazos C oWrar.10 Railroad Company St rvoy5 Absii•ar;t. No: 171, Denton Coubly, `I eras, and be ng a Pc4tic)it 01 .13u,diiigion Northern &tntu 17u. Railroad righf-ol'cNva\ (ha.vhiB a 1(10 loot l�_C�AV)" Said 0121,9'}1 Lure tract tai` find Mtil; more. p4j-i ctth)t'ly described b ma c4 aw.I bounds a'q C'(`11iYtklENC>INCY a1. a Fo and `i'sdo( brass c-ap i"n concrct.c' it c t ters�oion or aw soul right til i ,t r li-11C nf'shtle Uiohw,�y I?J (�itrt lea rl iirii "1'callatiiy) (I"t.r��iai �� vaiial�t width R:C} 14 ,`1 and }lit; west right -o f Nvay tinc" of said Burlinglon, .Northern &ntti Fe Railrpad, also b3ing (ho fiortheast,emner of a called 37?,69 ac,o tract off-alid c€ f)eyed by eced 'to The Colony Local f)cvc;lop corponation, The t"`4 lore y l":;c01147JI-I' o D6volopv ent C orporati'nn and Tile Colont.'oninimay, Doelcrl�Jt1t i7t (iot�i i'Yttiol, ns recorded in InstrunIentNt). 2013-20492, 0fricial r'iil�lic,:[Zecc►tc�s, I]viltc�i�: C;ouiI y, i eX.Aq.;. THENCE, 8outlr 06'50!-W' ] ast, Immo iig said Southrrgftt �1ay 011C, Jo1r6\� nf� f�It?iii ;aid 7�e1t right line, for a dktancc of 61 SIR feet to a poini for caa'ner, laeiog the 110IN'1' oF,13 ,(- J)i 'NiwCr: Tl-JENCE Nori.h 73c0138i' last, le.uvlint� said West rilght-of-Way line, ibr a distanp of 1€}1 03 feet to a point for oorner,,bc i ng M. ti 10 east vii -fl t -of wa), hnc of said Rurliogton. 5 North.crir +ta.gt'a f� .lZltilro� f; THENOF South 06AT291' East, atinp said cast right-of-way line,, fbr a distan(:,� of 123-69 foot to Vii, l girtt for coz or: l l lI3Nt E oitth 73s'il7' R"- Nke'A' leaving said cunt rigllto-of w-, Sv .Bne, icer ii di!;Iin e til 100,43 feet to a point for obi -iter, bdug i.ti said VNIest r-igbt-QFLA v line A" Burli.►.zppr} Nortli"om. Santa, FQ Railroad; "l'or,NCE, North, 00'5959" \��cst tilong said West rigli[: t>f �artij�'HM6, Tor a distance t,F 1?3,59 fcO to the POINT OF I3latall�l�,t17�C; incl CQN`1'1� ]1�1T�i i 12,280 syut re J;cct or 0.2821 acres ofland, more (v'less, ' MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT; Is hereby executed this da 201_by and between BNSF. RAILWAY COMPANY. a Delaware d orporatiqn. ("Grantor" . . qntor"), whose address fqr pyrp.oSesl Of this ihstr6meht is..2500 LOU Menk Drive- Fort:Worth,Texas 76131, and...the Cilv:of The C61on*y,,a political subdivision of:the, State.of Texas.. ("GmWe"), whose addre*ss-forPurposes of this instrument is 6800. hii Main Street, The Colony, Texas. 75056, which terms "Grantor".and "Graheirs16gal "Grantee" wherever the context per.ts of requires, ,.. . singular or Plural, and the' representatives;: successors. and assigns: of the respective WITN IESSETH- WHEREAS, Grantor owns or 6bbtedls certain real property situated In Denton County, Texas as described on Exhibit "N.' 0,ttached -hereto and incorporated.: herein by reference (the "Pr6ml es')' WHEREAS, Grantor and Grantee.. ee.. entered Into gait - Easeme:n't: Agr#ement, dated -."EasernenU Agr emetit"): which set forth; bi. among other things, the.tenm of aneasement granted Grantor to Grantee over and across the Prernises (the "Fasefrieff'); and WHEREAS, Grantor. and Grantee desire to memorialize. the tefms.and onditions of the Easement Agreement of record, For valuable consideration the receipt and sufficiency,of which are heoreby acknov6dged, Grantor does grant unto Grantee and Grantee does herebyactept from Grantor the Easement over.. and across the. Premises, -n The*temof the Easeme4 unless sooner ted 01n ated under provisions of. the Easement. Agreement','. shall be perpetual. All the terrns,. conditions;. provisions:. and covenants, of the Easement: Agreement are, incorporated herein by this refemnq e for all purposes.. as. though written out at: length herein, and both thbEasement Agreement and this Mennoraridunof Easement shall be de'et n*Pq to constitute a sing.le instrument or document:. This Memorandum of Easement isnot intended to amend, -modify, supplement, or supersede any of I the provisio.ns-of the E6sement.:Agreemeht arid, to the extent there may be any conflict or Inconsistency between the Easement Adreem.en't or this !VlemdtbndUm. of Eas6ment, the', E6sement Agreement shall control. Page I of 3 IN WETNESS WHEREOF, Grantor aria Grantee haveexecuted this Memorandum. of.. Easement to as of the date and year hist -above written: GRANTM BNSF RAILWAY COMPANY, a Dgla1y'art coeporatlan By; Elaine; - .. Title:. STA,m OF TEXAS § COUNTY. OF TARRANT. § This instrument was acknowledged before_ tie on.the day of: by (name) as (title} of BNSF. RAILMAY COMPANY, a Delaware corporation.' Notary. Public My appointment expires: (seal) Pa e 2 of:3 GRANTEE, The.Gity of The -Colony, a political subdivision of the State of Texas gy -- ;. Name,: Tod K.. Maurina Title:: 'Assistant :. City Manager of. Special Developt3ient STATE OF I .V ..COUNTY GEi11.. This instrument was acknowledged before me on the r zj " .:.day of 201 aby�s / 4Z�� t: (naiile} as "Notary Publir,) } My appointment expires; (Seal); zl , B(zabeth Suf![e My 1 1. 021=D16n Expir a Page 3 of EXHIBIT "C" 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 of the GRANDSCAPE BOULEVARD overpass (DOT No. 675257A) located at Railway's milepost 691.08 on Railway's Madill Subdivision, Line Segment 1046 in Frisco, 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 -I". 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 work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project 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 Project 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 Project; 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 work on the Project, Railway agrees to immediately notify the following individual in writing: Grandscape Blvd Overpass Project—Exhibit C (FORM 102 - revised 5-17-12) 1 Gordon Scruggs Director of Engineering Engineering Department 6800 Main Street The Colony, TX 75056 Phone: 972-877-0740 Email: gseruggs@thecolonytx.gov 1.01.05 To the extent allowed by law, 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. • 1.01.06 The Contractor must notify City of The Colony (Gordon Scruggs) at 972-877- 0740 and Railway's Manager Public Projects, telephone number 817-352-2902 at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railway's files 675257A. 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 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 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 Grandscape Blvd Overpass Project—Exhibit C (FORM 102 - revised 5-17-12) 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 Oricntation, found on the web site ivww.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 Keary Wallis 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: ■ 15'-0" Horizontally from centerline of nearest track ■ 21'-6" Vertically above top of rail y 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 Grandscape Blvd Overpass Project —Exhibit C (FORM 102 - revised 5-17-12) 3 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' 6" 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 The Colony and must not be undertaken until approved in writing by the Railway, and until the City of The Colony has obtained any necessary authorization from the State Regulatory Authority for the infi-ingement. 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 Cites of The Colony 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 U800) 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 Grandscape Blvd Overpass Project —Exhibit C (FORM 102 - revised 5-17-12) 4 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 Nvww.eontractororientation.com, which will be made available to Railway 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 (Chris Vega) at Office # 817- 352-2548 or Cell # 254-299-7626 or e-mail Christopher.vega@bnsf.com 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: 0 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. Grandscape Blvd Overpass Project Exhibit C (FORM 102 - revised 5-17-12) 5 • 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 frorn 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 THE COLONY. 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 18 freight trains per 24-hour period at a timetable speed 40 MPH and no switching movements. No passenger trains. 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 Grandscape Blvd Overpass Project --Exhibit C (FORM 102 - revised 5-17-12) 6 its employees, subcontractors, agents or invitees from moving any cquipment 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 Railway'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 l(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 Railway's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi -visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations.N( OTE _ Should there be a discrepancy between the information contained on the web site and the information in this paral;raph, the web site will Govern.) + 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, Grandseape Blvd Overpass Project Exhibit C (FORM 102 - revised 5-17-12) 7 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 RAILWAY'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 toad 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 (Chris Vega) at 81.7-352-2548 and BNSF's Signal Construction Supervisor (Dwayne Tiffin) at 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 Grandscape Blvd Overpass Project ---Exhibit C (FORM 102 - revised 5-17-12) 8 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 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. Grandscape Blvd Overpass Project —Exhibit C (FORM 102 - revised 5-17-12) 9 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION (If injuries are in connection with rail equipment accident/incident, highway rail grade crnssing accident or automobile accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: Passenger on train (C) F1 Nun -employee (N) (Ze, empn(anntherrar/raad, nr, nonANSFempkwk-dmvehtc%acerdeal, lnr,/uding company vehicles) Contractor/safety sensitive (F) ❑ Cnntractor/non-safety sensitive (G) nVolunteer/safety sensitive (N) ❑ Volunteer/other non -safety sensitive (1) Non -trespasser (D) - to include highway users involved in highway rail grade crossing accidents who did not go around or through gates Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates DNon -trespasser Q - Off railroad property If train involved, Train ID: Transmit attached information to Accident/Incident Reporting Center by: Fax 1-817-352-75115 or by Phone 1-800-607-6736 or email to: Accident-Repnrting.CenterLBNSF.com AND COPY TO: ROADMASTER FAX 817-352-7329 B RAILWAY MANAGER PUBLIC PROJECTS FAX 817-352-2912 Officer Prnviding Information: (Name) (Employee No.) (Phone #) REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REDUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490 Grandscape Blvd Overpass Project —Exhibit C (FORM 102 - revised 5-17-12) 10 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION MFORMSTION REQUIRED TG BE COLLECTED PDRSUANT TG FEDERAL REGULATION, 1TSHOULD BE USED MR_GlIMPLIAVEE Wf+H 'EEDE.2,'t_R GULATIONS.0NLY AND IT ISNOT INTEND -0 TGPRESUIEACCEPIAttCEt)fsPUIISiBItITY GR lItB1LtTY: tccidant Qiy[St: 2, Gate: Time: Cdantt; S.TempeV?WN:. k. Weafher: Of non BttSFtaeation). le Post 1 Line Segnipt: DrivWs. Llnense.NG(and "stats).ar o fser 16.., SSH (roquired); {lame (fast, first, mi); kddr ¢ss: Cita: SL Tip< Pate of 8irtlr andloiy'Age-, Gehl der: ofwnilable? - an a NutAer: Emplayee- Injury: :10. Body Part: 0.6,; Laceratlda: eta,) ResarVio,f.0icldei': 4a include lacation, action. result, etc,): ke, Hand, etc.) Traaimeat: first did Only . aRequired Medica Treatment Other Medical Treatsrient Dr. Nam Date: fJr. Addra�s: Si qt; City' SL Zip Hospital Hahne: Hospital address: Street:: Pity: Dtaa;saais: REPORT PREPARED TO CasiPI.,l Inco kEDER_u kccil)Ely REPORTL+:G RrQu-mumEmrs. �1i7 PROTECTED mom i?TSCLo. PL R4L LtiT i 40 %,s.C. Zt��[i3 :L'� 83 L':S.C. dgtt . Granidscape Blvd Overpass Project—Exhibit C (FORM 102 - revised 5-17-12) 11 k'�IS Iiia t'5i'.CJ1VI1.Nl ttcntatitii Ma0uger riAblie pr(&08 P gerzcy "rolect; Gia:ndsc -p ii! rd Oile��iizss atl�I�TS� Xt�ifl���y �eiitlereien: _ The urid�x`szgnec% (lierceizin t r calle�3, the `` izatracfcr") lies ezitered ziito a cont.r�ict, the `Vontracn dated.— ..____ , -With the Crr,V 0.. TIM. COLONY,, Y,, TE A: i't�r the performance bf " pertain work iii- cowlectzon with the fail{4r�zn� prajeut: :caiz;#z`uict -- + ltA)�7uCAE. B*0 I�EVA.VD .(Wei ass ° 1lUT I�i+�._. -6-5 5'�A located # . aiiiva 's Paz.formi aXzce of .samclm `�'arlc will ties ssaiil xee[aire Cantt•actcr to etitcm 8t`+t E Atl,4 SF CQ�1V-PAl�i ("Railway") i:igt t of i�vay az d piopert f ;("bail �7a r l' Q erljj" r tlae Contmet. pio rendes 111.4i . work y+tzil : beicazruxiezic within. Raih, , y i'zapurt anti( 010,v tractor emplaycd in conriect on with said work foi the Clio. o Tlie Cti1+N .. ny (i) executes and dehw s to .. Rai1�l=ay ;ui 1 gi.irient in the farnl hereof, fang (ii) Pr Wes mzisurailce of tiie covoragoe AadIan .8,. slieoifted;irt such Agroomtie�t and Section hereimi:. If this greemrzent is c ,ecu( �l by 4 party glib is not tlia:.C7vuiier, Cxeriirsl .Pa'tmmei? tostderii or trice I'mcsident of Contructorz Ca040tor fI7Ust. fiai usl :evidence tt� R�lwa-ceztif'ying:11iat t4 signatory is.ompawored. to .;e�cazfo:�u A;reeaiYet?toil tielYalf of CotatCctor Aeeprdin ly; iii obg1 i{ omfibfi of Railw g'1'�qun ��ef'miS�ilCtil tb. �4ritT�� �oC #A exlt�r.iij79n Railwa y Pz�pexty izd as aa# itxtltiee�i7ent icer sttclr ciitmy, Coatractor, elfe.ctiyc 61 thG elate ofilii Coritraota leas agreed Wid demes Hereby agree v�Fitli �dilway :�s follot��s: 3ectign 1.;+LA�'t iT L��IL. l«lENIT�Fit To time exteXitilo�Y by lavi,. ConLriic;4or IteXelr re am imtdeznnXfies; deiezitls I amici holds hath less Railvray 'ar atl �tdt;Xnenis, awEuds, claims; d6nand anel.expot scs (3nluditig, attci;�zcy5` fee5j :for injury or. eatla l¢_ alt p6rgoiig iiicliizi ng Railw iy's 4 -d Contra tai's offio.- 5 -. cl. cimr loyees,.. mid for loss;aiid daizmagc to property belonging to any persom, arising 41 env. rriianrier 1ioiYi tozitractr's of y of Contract :ubcoltracfars'.:act or: azxmissic�ns cpm any vvaxk; i rloazirezt art or_abo it Rawl day's praptrt ar rtglit-of- vrayi T UAVUT�`. ASSITkY�P �Y .lI�TTRA CTPD i 'xL i4+C?T BE rlit Uri�D BY UE Z+'Atjj Ip ff IS A v T TTM DINTRU "z`IO t, U��11�.,A.GE; DEATH, Off, INJURY �I� �' �C�� I+tII�I�]l�. BY Cin Gratidscapelv�l Overpass 6t —Exlmbt C-1: (TORN[_ 101 re>>ised 5 07-12) ( I'VTRIl3IlTEi? `I' 13Y T'Hlr. l' G(xC.TGENCE (�1 11A ILNNIAY, AN `, REM AGENTS,_ SL+'RVANTS, ) MPLOYEEI S .OR OTHERWISE, EXCEPT TO THE EMENT ifwr SU CLA M..S. ARE PROXIMATELY: CA.I7SE1) BY TIM INTMSIQNA Mt CONN' U' Crlr OR GROSS NEGLIGENCE 0 RAILWAY: 'PSE DC MNIT A't XC)T i�I3 ,T AT'>[ON ASSUty> E - �V Carel IcTOR .::. Tl'+I+CL[ZD) ANY CLAIMS;8lHTS.(?II TUDGI'1 ENTS DR61f GUT A GAINST RAILWAY iJ ER'�Cf � ItrJiT+�: Y� E PI, �1CT I.I.S.-I.�Zt�,.-BlU`f'�' AC_'T, INC.-�bTNCar Q;A.i,I4[�4` qq'1/CsJk iCy'�,yY1I{<,y1�`CAyBX�I��pIffY� ifi NPF_f[tp THE } S�.yt��FE, Ty�'�v�:p�;rl��.[ip'�PLIA.,NCE .A T OR L0C0MLTrbYJC:i�.ft{ A41t�JC�A;tC. T10N .0 CTS X) A :iE�JU' X..Ca.!Si.t3ll� LiJ..�.f III !D. - F6. the cxicnt ailavre l by lavV� ("tintraettir f4 thcr awes; at its: cxpense, in the mutt; anti : on bei all~ of Railway, that it Will adjvstand settle all t tai tis Made a„airisE Ra lrvaY, and wilt at Raiiw' 'a ifiserction, appeal Anil defond any sults �r ��ctlQnS of laxer orhi equiV brought agaimt Rail AM)' i rill clslixi Qr cause of �ctinn arisire� �i bra+�i�ttik out: of or in a?iy infer carmeciod with ally liability `assa�r��ed bar Cntractbr ruhdac this A groom foie whici R ilwq l al)(c or is � ll ed to' be: 11 ay X11 9t�ro tz titc tb Coy tmotor; in writir� , of: the. W� elpt .nr depen' dency o.f such clairns:and thereupon. Contractori usst paticeed to adjust clod 11andle to:a corlclusl(� such olaiiars, �W iii. the event. 6f a suit tieing brow ht apinst RaiMy, RailVay tnay fgrward.sirt tx s and complain. oi`ctizer process n aonnectioft thciow. Elr to Cont dor, Old - 'd at °t'Zailway`s diseretion, mist defend,.* adjust, of :.settle such suits and protect ide.�iinify,. at cl save uin�l ss: Rail way li°otxY incl; against all datna es; judgmez>fsf decrees;: I dt tirnoy}s fees; costs, end p ns rcatrit out of ori s>�lttn fi a i .ax zr►ci ltrtt to 41> 'Such claims or, suits. . In add,t n tb, ady oth.pa pxt�vis o x of this A xeem�ztt, ti. t1lb event that all or any portion of this Article shall be :tleoi <etl to tae a llcat�lc foz' > as k including 4vitl<tyt}t tiM at oti as a result of a deo' tQn cif an al pllcabie court; le,9islatlye ez�actme zt ar re ilatury:ordeir, tho partiois ogre e that this Article Shat[ be:ltxterpiieted :as. requiring Qt giraclor to incl�rrasi fy 1L�ilNray tea 04. fu[lest eXtQnt permitted Ly applicvtblc law: It is mutually und6rst©od anti agrc6d that the assunlpt>icn, oflzabilities acid indemiuficaticin pr tided. far iaEa this gracmerit u> vl e any t rrrdnatloh f this Agreement. S000rt24 `l'ER1N'll` xis Agreement is cffectave art?r>r #kti; date, .'Of tl>econtrat until (a) the carrrplctzon at tlr pt9ject set forth. herein, :aiid {iii fall ltd co pie .e payment tb Railway of any and all suers or otlaex a pants o in and.due ltereizr d0r"_. Sqctaiow 3JXSURA�i,�E Cotitractcie s11ali, at its stile ct�st acid t hpeiise; procure. And rzzaintai . duri�ig tie liAe c�£ fills AgCecamottlie followit g iilsufancb coverage' GrMidseape l'lvd Qvei'pass l_'ro 0—Exhibit+ -1 {�C�RM 107 � revised �-.07-12j 2 wf. Al Coxnixiercial wieral Uab l ty insCtz ii e. This insuf'ancc shall contain :liraad' faiM contmewat Rability with a combined single linxiit of 4. .rninYn i.Irn'of S5,O�QO 00 cacti occurrence and an. aggregate unlit of at eastY;€lUU,00 buff in na L'4'�Xtt fess:tlaaxi the .anjomt othere carried by the: Contractor- Cov raj;e_ must be parchand oil a.post 20p4 130 ecu rence fo rii 4' squiYalent and iaialude c� overage fcar butnot limit tothe fallowit�p 4 Bodily IAjux' olid property' Danxag Por-, aid Adverti.�ng, njury Fire 16M liability 4, Products And completed Operaft'ons This policy 51ta11 also containtlxe fp l i*Viiitg citdQrsemmts; Which shall tie: dicated on the certif tate dinsuraoce.: a The definition of insured contract sllall.be atxiended°te r more any exelus'to�i or ruler l mi Wion for of y wc)r'.K being done wMin 5Q.feet of railroad pro ally. W!a +it of sul}fugaitioil in "iaYor cif anti acceptable. tb. U'W; oy. Additional hisut ed endoi sc3ucizf: m favor of aid acdeptabJe to Patlin+a��. 4:.cparatio tsizsiaxds: 4 `I`he mlicy- shall bo p iina y �uul hon- ...eoilt `'but iiig with "respect to y 41sumnec carred by kait Nay, Tt : is. agreed iliac the workers': carnperisation and enip oydrs' liability related° exclusions iia: thb-CoMtrrial General Liability insurance polipy(r ..) requi�iM herela are' i:riteitcictl toappl}+ tti �roplr�yees of the, panty holder= .ani shall n6t apply to Ra ihvgy employees.- lVa o iaar . endvrs�mools• limit ng co�c=.exsge as respects obl�gatidns under thus #�grCement array bc; included 611 the pulley with egard to the work being lied- rm d antler ihls agreemetafi B. Business Automob le lnsu drxce. This insurance -Miall contain a conibirna . single lantit of at least ;pQO, itis per_ 0s:cu oee and ix elude coverage for, but rat limited to the �'t�ilo�vi�3g Bodily iliju�-, aild pr riy �l�g o.Any and, -ill voliTel es owr ed, tsed or hired The policy shall also contain the followin endomergents or language; Mintel shall �a �r�dicated oto the certificate of �nsuranee ' Waiver oisiibxain favor :ef anti acGeplal�lc to Tt�.ilw€iy;. Additiollal: hinted endormnefit in fWor of arid: S.ccelatabla to ttailway, O'rranclseape Blvd Overpm PrgJect�rxliilalt C4(FORM 107' rev sed -07 1.2 Separation.ofinsueeds; _ I'[xe policy shall bc� primary acid 1f37i�contt iliutiza� �vitli r`espoct to aiW insurance carby Itaili ay: C:: W&keb Corn-misation and 8n ployers. Liability insurance including cbmagc £Qr : brat not HO.Red to; # Contractor's. mitutofT liability Under the worker's conipex sd con lmw of tho :state(s) in which the Wor% is to 6 - pe fnri�acd T� optim al .tir�cli<r Mate lauv, _l%e. uts aust Cover all empl.oyc s ariy`way, ty (paft B with lWts of s.# leas# MUM cxh aceident- . $504,900 liy diseme policy l nut; $ 4t3;OQD by �iiseas eaoli ettiployw.. This pt�iicy shallcontain tl e fal.lvwin ecldoisec� nfs or language, wl� cli shall: W fridicki6d ori the Wti icafe of ic}Stiance:. 0 aver. of sial koation in f'ay or of aittl �6oeptablo to 16 lwo} . D. Railroad I'rotcctie Liciblty itisucanoe tirnfitg only therriliiry as:tlY�: Iiisiaredritl� : coveza�c of at least 55,0013 000 pex 4 ourreirM apd 5x0,004,000- in the aggragato,_ lhd li640 Must lie !suet d on a standud ISO focm`CG 00'3:5.12 0.4 and cnklude :the follmt ing : tr gaged to include the Pout1iion Exclusion Amcnr m6ot: 4 Endorsed to include he tiii lwdLepage and Poll 106 Endorseinetit. .: l ndo Aird tp x aoov an-y e ltisxoii for ptim ,ve lama es.` 4 N6 other 611dorsenieclts restrietizr9 POW a;age n! ' be a added, The originalpolicy 1111;st be ga o'Oded fo th li`aMvgy prior. to pert`orrri ng any Wort Qx services under this`Agreemec t: Definition of "P-hDam, tq l'iopext}cI F" shall. to 1`10ad "Means direct aAd acoiderital loss. ofer damage to all pcopc rw owned by aq laomr ed iitsured W all p operfy hi d4 nalued zcxsurcd' cam oustvdy, 4tao_. . control wising out-Of the.acfs or: omissions of-the: co itractiir named O" t$e - L�ecls�r�ttons In lieu o providing a I a read l'�atet�t ye. Liability policy, Licecksee mEay artzcipc�te (f available) in R.ait*r y's B'hinket lea lr4adPcotect ve ,ability lnst�rdnce Vol' . C}ther :Cte�f3�rerf�uts GYlicie allot cable by law; 4.11policies (a rOng to caverage.listed aiiovo} shall confaiu.ho, e clumc iz for putu.fc e damages:: Graridscaioe F vd. Ovcrpam Nojeot E Bait G-I (C?] i ;1.07 - r6vlmd 54742- 4 Caznractdi agrees to waive its right of ieeover � against �ttrrl OAP for all cli ims a0 suits against .lt a140ity. In additirm; itsns' urea s, tluough tlio terms of° the policy err pgiic3! endorsement; : , waive .tboii: iixglitof siubrot;Won against; Rriilimfor all. 01aiins aiid suits. +Contractor Enter wa vw its right of i`eao=very, a zd its usurers also vmiv iheit right a Csiibrtrt;eitioi against )W1111a. for lass af:its ofted Or leased property of p3`4iseiiy linciet Ctszit actor';§ care,_ custody.; ar contrii1 ooV ieferom ds7iti bet €dttt�. isrologia#etos x rse alio-v. 'oirtractor-A obt al]a ved fc� self»iiistuc. Nf fly ut #lte px rix Nvi.itten ecinsent cif it slaver ` if f :granted b I'tt'*I'(r}, self insured retention or ether r1mric.ial responsibility fcit quints shun be covered diiectlV by Contractor in lien of itnurance. AO.and all RalhPay liabilities iliat would bth-ei=wki in accordance with..dio provisions o£ lfiis Agreement, be co m ea b}.. Contractor's:. ing6ran;ce will be govered as. ii' Confcaot4r: dotted not to irxcludL a &Aueiiblo,,.self insured i•etenfiort tar other' finaiie%al i Gs ontsib lity for claims.. Prior to co-Mmencing fisc orki . Contractor shall furnish. to- Atiflipay an .gmable certifioate(O of histuraiiee iiii i air autliotized cpresentafive cvide tcziig ilio required cci ctage(s), dhdorsenentsx.and ameitdz nts `lfie cerfifwate sfloutd be'diiecietl-to tliafb lowing addxessesi . BNF Rail�sy Cdlt.l�Yiy . e10 �ot>aociis .. P.Oi Bok 140528. Kansas,,Cityj i1!1O 641.14 . `'`oil free;: 8775`76 X378 Fax.nttrnbor, 8 17-814.7487 l hitt l: j NSFng oertl'ocu .coni %vww.cer#facus t rri i Contraotor shall notify .I althwz in fu at. least.3U-tla:3rs prior to arty can66114011; ripp-: renewal,,silbstitrft�ii,-chi• inateial altet�atiori::: Any inguranee l duty must tie wrRU 1 by a'icirttttab 0 iiisti €uice. cot ipait� abcVia' le to �t l rry or with a m*m.t Best's Guide F.ating bf A,tinct glass YII ar- b6tter, tinct: duf ioirzed, to: c3o business in the state{§) in which #lie set vice is to lio protide.. if coverqe is purc,11ased oh,a' "clz n 4 madell basis. e6traao.r-Ureby agrees to maintaili . coverage in force fa> a nunYzn#zm, ibiee Fears after e4iratioii, catim abort. or teria�inatio. of this ediltrdet. Annually, Contraotq.. agxees.:to pzcivtde e4dence. of sii.cit coverage, as required Contractor relireseiits #haat kliis �igr eel zerif. bas bc6n th�rroughly f evietived: by Conk actor's. ,ing.uwao ageiit(s}llixrtr?coi(s}, -Mi Bays }been xnstructeel :by.Ctrt trac,tox to procure the insurance eer`vora.�c .required 1�y tlxs ,il�jre�yrt��f: CraiidscapeBW Overpass Pwieci-1 x4 iliit C l .{ O if 1 7 - revise � 7-I }. Tacit i' oro .�equi-1. tha oxteo ever3� It :years; i<�nih�iiy may yeaso ably rr oOif d39 re-.. fed insurance coverage to reflect t[icri-cuizetit Ask mana�;era -izt Ijraetaces irx .the railroad' itidustay and un erwriting practices.' the inl a ante Mdustzy,. If ariy Portion of tl�e. opeiatlon is !o -'.be. subcotxh'ae ed by Contractor, Contrac(or req .Uiire that the wbcoittta�:tot' sixall Iaaov"de ana ii�xaiiltairi the iz sura tee co�vei•age(s) sei t6�t17 h Te'in- tiatxixtx rtrt3a}X a `an.:�iciditional insured, and shall require. that th. subcontractor Shall releaso, dcf'ehd,, acid itclemu"ily 'kala'mi tc the -.3 extent and..under tb& same, . Wrihs and cenditirns as Con radta"is x quitJo iEl -Me, defend, ahs ndexx�nxt}+,It[cfltrti 7 liereiri. Pa lui e to l�rav de e`videiic tis recaired by #1x s se 4W shall entity; .i�ut xtot retlUlr'j Rahway to terrtrivate tut- Apvenjetrt axxxlxiediat ly; Acccu inee- of .a. certificate that does Apt: Comply with this section sl3a11not operate as a waive- of ContrAWY. s obligations hereunder fact iliac xisxlx xtce (i icltxding ; �rxtlaattt li itatrozi; self instzranee) iS nl taInc _y Goiitractor. shall nbt be deoined tti rolexse or lxninxsli.the .liability of Contraclor uxcluditxg, aythout litrdution, 1 ibility: U tder cite ltzdenlzxii: pztavlslons or tills. ,dg1,081fzcrzt; Daraam rocoverable by _RaUjPity' shall:.notb.e`litrtitetl.by th amount €if the i'4cluire d trisrtraarce coverage, to the cvcri :ot a claim or Imst t. involving. X colt ay zarising out 9f thisrigreeinent;, Contractor vrtll. ariak available, any ,required policy covering s.ch: claix or lai suit_ Tl1se irisu�rarrce prgymoi s ale Itatoziiied to be a separate aztcl ilisttrict; obligation op the, part of the Contzactolierftire, these pziayiszozks shall lie ennYoetalile and CoxttraetoL sliall lie bi5i.6d. thereby regWless of Whether or riot: indemniid. deteXmiri.ed to :be eriCoiceal?le a the jtitisilict n. itt v�rlXiolt tl►e i�+orl{ caver��l I�Oieundo� is 6tfOmed. Por lxuTo5es of this. sections ,i a lipay means 'Burlington: NoWhem. S,,Mto F0, LLC"; :"BN -S � 1ATL,'4VA'r' C.OkylPANY,i ,. ' file subsidiaries, uecessc�rs; assigns and.nf Bates arteach: . Seeflom C.iCxW. O% "C" CONT 4CTOS{ wvo!L�No �11 'ClrlticlGtt7i m -u Q SEiTS'e and oomply NAtlx all lJrovisioixs, oblxgatioris, x gahril iits . atzd 11rriitattot7s ontailied jrx e Crriztract, at d the Contractar Re iaii Ments sett toattt on -Exhibit _ifC attac}ied to, tlaeJCoiitract.arrd this A,ree_m xit, �. Incl�i�M& Wt 66. be lrmiiked to; payment. of: All costs :zncuned for airy damages to Railway road l�ed,..iti ., s� atiNor appurtenahees thereto ; ' ill�hig from I15 , Q 4Lt IctliGy, latera cc of its eanployees,. xepa`esefitattvos, 0 , ageztt3. 0.r sul5w.utractop tin or about the constri dtron site. Contractor is responsible -or and lterelay indemnifies acid liolds l arirnless Ratltvay (iticludIng it$. affiliated°rarlway corn art es. arid. its tenails) fora rohi:and a in, all dw ages GGrandscapo Blvd 0v�ipass,P ojeet=Exhibit C=1 (FOM -1107 � revlmd.. 5--0.7- 12) 6 a�rRsIng frena axiy unsela�clialed delay to a freigh or passeiigex Train wl-iieh afleats l aili � ,Y's ability to hIlY.Atilize it8 eclwproient and to:.nieet customservice acid ,cazitiact: obligations.. ConlMaor Will leo billed, as. ltirffier provided belay, .lor tl1e: aeont�rzt c �vsse� arising fia lose Of use Of: cltaiprrent, coiiixactiial loss of inoenti e pay and bonuses and contractuai`penalt es i' Sult ng # mi train delay�, t','lietlzcr mused by C© itrac�tc�r� ar subccnitractors, or by the Daily ay erfnrtruii : work under this Agree;j1enL Raibmy agrees that it will not perform ani tet to tunucessarily c�iuse train delay, Fox lass of use of ecliiiprrio nt; Cotit iicto r7aill be billed tb" curicut freight traii;",.'Witi rate- er train;ns tictcz xiiiied fi:oza itail�vav's iecoi'i1s t y clisrixptir.ti,to train traffic iriay cause delays tc� aultiplc txais at tl�e:srne tizte fd, .Fidditio ally; the cities aclfi�u�j�letlge that lmss:Qngei U.S_ nadil' trains acid cwrtain att er .rain, intermodal, ete rl Arid freight trains apeidto; unilexmoeh iycirpanalty caritract, betwedia: Railway rind ifs custom er(s)' Under these arrtorigements,.if Ra lmy docs iiat meet its contract service corinxitixic>its, Railway tray snifter Iris of1jerfoimaoci; o>y n11t%ve pay riridloz tae subject to Petialtj payments. C:4iiitaetrir is resnr.ai y Haiti ljerft��-marict atid:iizccii(I . P naiues. Or 01110r. e0111maual economic lossas actually. inctirred lay Reil-w4y wlalare athibVtable to. a train delay'oaimd byContractor or its simbcontrts: The, coiitrttctual xelatiombip bets.}een R. ll`Yay and its oustbboas s: o xletaty atzd` c4i fdenf l I>ti tbo e Tit of. a giaiir dolay cn tired by this rti eeo iint .Railty y . will rip itifortbati6a m. evai t. to. any train delay to the extent coinsisteni with... Railway confidenifalit' . o�Ulig,tiol s l a zt g s fQr fra iti d lay' ate cur;tem y.. 1$2 2Q tier laout` per uiesdeiSt Tx1.1L'A Tr T�iEN IN l�"ii+FEC.'>t T Tl TIMI✓ Or l� x lt+(} ii t liGC T3X TJW CONTRA O 1<J(J UI�I 3T�lt WILL, W"AZSl✓13 To CALCULATE TRE, ACTUAL COSTS. TRAIN - DELAY PURSUANYT.0. ,T1 -HS .AGRr'Ll ME, W. .Contractor and t .snilirrintraeto'es: rriurA give �nilt�*�ty'�; IlosduujstRr Chris Vga_�at- . Cifiee..817-3522543 ¢.r Ce0: 2S4499-7626: wind ::email: Cliristoz lieia.k. a . bnsl;com f9 ii (4) weeks atlr�r,�ico titifi�e of flxc #i�iz±�s aii.d date&. for �x•o�osed �ira�rlC NY nclo�vs. 12a #i6 naiad Contractor will est:i.blisli nautu�lly agrccable Wqj* try clo tvs for tic proj tR l �ilwuy i s , the light, fi alit+ tiiri a M x wise ori- cliangc .tf Mirk Oihdowa dtw.. to train doexatious oil Service cbligatloxis. air Ay "Will not be res�c�nsfble for Tiny addit tival.�tists ai` crpeits.�s i-csultirig froixri a. 6a g& irt.�rl'9� l� �vi1i ows. Atltli#iotiiI eo5ts or expenses resiiltin� fi pm i clian a in r� ark whidowk shall.bi; accounted or hi.' g Cointr;ietax°'s exoduses' for the t<t, Cosiitra€toi uxid :sixl3eoittza #o}s nxust u, sclleaill ,, aa�rrdiniite. an caiidixct. air Coutrilletor'sastir so inita ho't. cable any filiiys #o ally trains: Grandscape 91vd C l (l t 11Y1107 revised. S-0fi l2). 7 Qon.dsb. p -Wvd Ove ass Pxc��ect -AB-khibit CFS �� Q7 revised 547 A 8 - ***t* NIAINTAINP1tOPIUFFARYCONFIDEN'i'IALI'CY •++t+ EXHIBIT t7 BNSF RAILWAY COMPANY Railroad Flagging Cost Estimate FHPM ESTIMATF, FOR revised 2/07114 THECOLONY LOCATION NSSIiEBRON DF,TAILSOFESTIMATE PLAN ITEM: 407214000 VERSION: I PURPOSE, IUSTTFICATTON AND DESCRIPTION FLAGGING PIP TX DIV MADJLL SUB LS 1046 MP 691.08 BNSF TO PROVIDE 130 DAYS OF RAILROAD FLAGGING DURING THE CONSTRUCTION OF TI IE NEW GRANI)SCAPIi BOULEVARD {DOT NO. 675257A) OVERPASS LOCATED IN T13E COLONY, TEXAS AT NIP 691.08, LS 1046, MADILL SUR, TEXAS DIVISION DESCRIPTION QUANTITY U1M COST TOTAL$ +++t#t+t#a LABOR #4 ... **«Ot FLAGGING - OTHER RO,IV: CAP 1872.0 MU 54,867 PAYROLL ASSOCIATED COSTS 36,195 DA OVERHEADS 54,680 EQUIPMENT EXPENSES 15,146 INSURANCE EXPENSE'S 9,212 TOTAL LABOR COST 170,300 170,300 MATERIAL #aattttt##att 'FOTAL MATERIAL COST 0 0 tttr«tent OTHER tta#tttt## TOTAL OTHER ITEMS COST PROJECT SUBTOTAL CONTINGENCIES BILL PREPARATION FEE. GROSS PRO)ECI'COST LESS COST PAID BY BNSF TOTAL BILLAIILE COST Q 170,300 17,030 1,874 189,204 ***** MAINTAIN PROPRIFTARY CONFLDENPIAI,ITY ***** EXHIBIT D BNSF RAILWAY COMPANY Railroad Project/Bridge inspector FILPM ES'17MATE FOR Cost Estimate CITY OF THE COLONY revised 2/07/2014 LOCATION NSS BEBRON DETAILS OF ESTIMATE PLAN ITEM : 407214001 VERSION: 1 PURPOSE, JUSTIFICATION AND DESCRIPTION INSPECTOR PIP TX DIV MADILL SUB LS 1046 NIP 691.08 - DOT 675257A - 100% BILLABLE TO CITY OF T1IE COLONY BNSF'1'O HIRE A BRIDGFJPROJECT INSPECTOR FROM AN ENGINEERING COMPANY TO PROVIDE 90 DAYS OF INSPECTION DURING ME CONSTRUCTION OF THE NEW GRANT)SCAPE BOULEVARD (DOT NO- 675257A) OVERPASS LOCATED IN THE COLONY, TEXAS AT MP 691.08, LS 1046, MADILL SUB, TEXAS DIVISION THE CITY OF THE COLONY, TEXAS IS FUNDING THIi CONSTRUCTION OF THIS PROJECT 100°.0. DESCRIPTION QUANTIFY U,M COST 'TOTALS #i4#tit«t! LABOR TOTAL LABOR COST tttte!!Rel ti! MATERIAL tl t.t«t#i.i.t TOTAL MATLRIAL COST t«#.lttit. OTHER «.... t.t!! INSPECrION! COORDINATION TOTAL OTHER ITEMS COST PROJECT SUBTOTAL CONTINGENCIES BILL PREPARATION FEE GROSS PROJECT COST LESS COST PAID BY BNSF TOTAL BILLABLE COST 0 0 90,0 DAY 108,000 108,000 108,000 108,000 10,800 1,188 119,988 0 119,988 .r`f RAILWAY February 10, 2014 Gordon Scruggs Director of Engineering Engineering Department City of The Colony 6800 Main Street The Colony, TX 75056 Timomyj, HmY Manager Public Projects (S/ales of LA, MS, and TX) EXHIBIT E BNSF Railway Company 5800 North Alain Strect Port Worth, Texas 76179 817-352-2902 817-352-2912 Fax Tim.1-Iuya©BN8P.com ECEIVE FEB 14 2014 D Re: Final Approval of Plans and Specifications marked as "Exhibit A" — signed and sealed by Mark Burckhard, P.E. on May 11, 2013 and attached to the OVERPASS AGREEMENT (hereinafter called, the "Plans and Specifications") for Grandscape Boulevard Dear Gordon Scruggs: This letter serves as BNSF RAILWAY COMPANY'S ("BNSF") final written approval of the Plans and Specifications covering the construction of the Grandscape Boulevard overpass (DOT No. 675257A) at BNSF Railway milepost 691.08. This final written approval is given to the City of The Colony, Texas ("Agency") pursuant to Article III, Section 1 of that certain Underpass Agreement between BNSF and the City of The Colony, effectively dated February 10, 2014. If the Plans and Specifications are revised by The Colony subsequent to the date set forth above, this letter shall no longer serve as final written approval of the Plans and Specifications and The Colony must resubmit said Pians and Specifications to BNSF for final written approval. Regards, �,Jzs- Timothy J. Huya Manager Public Projects Exhibit F BNSF Bridge Requirements BRIDGE DESIGN, PLANS & SPECIFICATIONS: Except for the design of temporary falsework and shoring, BNSF review of the Structure plans will be limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks. BNSF will not review structural design calculations for the permanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. The Agency shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet -6 inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the permanent Structure, the Agency will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure. The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. If the permanent member is within 25 feet of the nearest track (or future track), collision walls shall be incorporated into the permanent Structure design according to American Railway Engineering and Maintenance Association Manual of Recommended Practice - Chapter 8 - Article 2.1.5. For the permanent Structure, the Agency will submit plans showing the least vertical clearance from top of the most elevated rail of existing and future tracks to the lowest point of the proposed Structure. A profile of the existing top of rail elevation shall be plotted on the bridge plans. The profile shall extend for 500 feet in each direction of the proposed overpass and a separate profile shall be plotted for each track. If the existing top of rail profile(s) is not uniform such that a sag exists in the vicinity of the proposed Structure, the permanent Structure vertical clearance shall be increased sufficiently to accommodate a raise in the track profile to remove the sag. Prior to beginning construction of the permanent Structure, the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. Prior to issuing any invitation to bid on construction of the Structure, the Agency should conduct a pre-bid meeting where prospective Providers have the opportunity to communicate with BNSF personnel regarding site specific train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and 1of3 specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the Project. BRIDGE CONSTRUCTION: After awarding the bid, but prior to the Provider entering BNSF's right -of —way or property, the Agency should conduct a pre -construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. The Agency shall reimburse BNSF for all costs of supplemental inspection services. Within 90 days of the conclusion of the Project and final acceptance by BNSF, the Agency will provide BNSF with a complete electronic set of the bridge plans labeled "As Built". Those plans will reflect any and all deviations from the original plans that occurred during construction. The "As Built" plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. Actual measured "as constructed" clearances shall be shown as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. BRIDGE MAINTENANCE: The Agency will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes, erosion control, surface drainage, fencing, deck drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated with the Project. Fencing and other pedestrian access controls within BNSF's right-of-way and incorporated into the Project shall be designed and maintained by the Agency. Trespasser control shall be the responsibility of the Agency. Graffiti removal will be the responsibility of the Agency. BRIDGE INSPECTION: The Agency will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, the Agency will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary the Agency will embargo weights or provide lane closures or 2of3 other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement, there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. Pipelines will be not be added or attached to the Structure without first submitting plans and calculations to BNS)~ for review and approval. 3 of 3