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R-09-03-12-8D1 - 3/12/2009RESOLUTION NO. R -09-03-12-8D1 WHEREAS, in order to facilitate the construction of the proposed roadway improvements on Arterial A, it is necessary to remove existing at -grade private road crossing, DOT No. 439-684S, Mile Post 158.80 and construct a new grade separated underpass roadway, DOT No. 440-126V, Mile Post 158.83, and WHEREAS, the Council wishes to enter into a New Public Road Crossing Underpass Agreement with Union Pacific Railroad Company, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a New Public Road Crossing Underpass Agreement with Union Pacific Railroad Company, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 12th day of March, 2009. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: • • SARA L. WHITE, City Secretary O:\wdox\RESOLUTI\R90312D1.DOC/rmc UP Real Estate Folder No.: 2524-89 NEW PUBLIC ROAD CROSSING UNDERPASS AGREEMENT UNI •� yANY CO =' O AF's. D� OF THDE RAILROA &::. ®'T .—.; IVISION DOT NO 440-126V IN ROUND ROCK WILLIAMSON COUNTY, TEXAS EXHIBIT tIAI Railroad Original Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING ANERIP.A' UPRR Folder No.: 2524-89 UPRR Audit No.: PUBLIC HIGHWAY UNDERPASS AGREEMENT Arterial A Underpass - DOT No.: 440-126V Mile Post 158.83 — Austin Subdivision Round Rock, Williamson County, Texas THIS AGREEMENT ("Agreement") is made and entered into as of the day of , 200 ("Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, to be addressed at Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179-1690 ("Railroad") and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas to be addressed at 221 East Main Street, Round Rock, TX 78664 ("City"). RECITALS: The City desires to undertake as its project (the "Project"): • the closure and removal of an existing at -grade private road crossing, DOT No. 439- 684S, located at Railroad's Mile Post 158.80 on it's Austin Subdivision, in Round Rock, Williamson County, Texas, and • undertake as its project (the "Project") the construction of a new grade separated underpass roadway (the "Roadway") that will carry the Railroad's trains over Arterial A, (DOT No. 440-126V), at Railroad's Mile Post 158.83 on the Railroad's Austin Subdivision, in Round Rock, Williamson County, Texas (the "Crossing Area") as the Crossing Area is shown on the Railroad Location Print marked Exhibit A. The City's Detailed Prints of the Roadway are collectively marked Exhibit A-1, attached hereto and hereby made a part hereof (also the "Crossing Area"). Under this Agreement, the Railroad will be granting rights to the City to facilitate the construction of the Roadway. The portion of Railroad's property that City needs for the Roadway is shown on the Illustrative Print of the Legal Description marked Exhibit A-3 and also described in the Legal Description marked Exhibit A-2, with each exhibit being attached hereto and hereby made a part hereof (also the "Crossing Area"). The construction of the Roadway will also necessitate the construction of a temporary railroad shoofly (the "Shoofly") to provide for the Railroad's continued railroad operations during the Project. The Railroad and the City are entering into this Agreement to cover the above. 2524-89 City of Round Rock, TX Arterial A Underpass Page 1 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law AGREEMENT: BUILDING ANERICA° NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: Section 1. EXHIBITS B AND D. The general terms and conditions marked Exhibit B, and the Railroad's Coordination Requirements marked Exhibit D, are attached hereto and hereby made a part hereof. Section 2. RAILROAD GRANTS RIGHT. For and in consideration of the sum of SIXTEEN THOUSAND SEVEN HUNDRED SEVENTY-SIX DOLLARS ($ 16,776.00) to be paid by the City to the Railroad upon the execution and delivery of this Agreement and in further consideration of the City's agreement to perform and comply with the terms of this Agreement, the Railroad hereby grants to the City the right to construct, maintain and repair the Roadway over and across the Crossing Area. Section 3. DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. Prior to Contractor performing any work within the Crossing Area involving the Project, and any subsequent maintenance or repair work, the City shall require the Contractor to: • execute the Railroad's then current Contractor's Right of Entry Agreement • obtain the then current insurance required in the Contractor's Right of Entry Agreement; and • provide such insurance policies, certificates, binders and/or endorsements to the Railroad. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit E, attached hereto and hereby made a part hereof. The City confirms that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Senior Manager - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179-1690 UP Real Estate Folder No. 2524-89 2524-89 City of Round Rock, TX Arterial A Underpass Page 2 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' D. If the City's own employees will be performing any of the Project work, the City may self -insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. Section 5. FEDERAL AID POLICY GUIDE If the City will be receiving any federal funding for the Project, the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD The City agrees that no Project costs and expenses are to be borne by the Railroad. In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY THE RAILROAD; BILLING SENT TO CITY CITY'S PAYMENT OF BILLS A. The work to be performed by the Railroad, at the City's sole cost and expense, is described in the Railroad's Material and Force Account Estimate dated August 12, 2008, marked Exhibit C, attached hereto and hereby made a part hereof (the "Estimate"). As set forth in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the Project is Four Hundred Fifty -Four Thousand Seven Hundred Eighty -Nine Dollars ($454,789.00). B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. If it is determined that the Railroad will be billing the Contractor directly for flagging costs, the City agrees that it will pay the Railroad for any flagging costs that have not been paid by any Contractor within thirty (30) days of the Contractor's receipt of billing. D. The Railroad shall send progressive billing to the City during the Project, and final billing to the City within one hundred eighty (180) days after receiving written notice from the City that all Project work affecting the Railroad's property has been completed. E. The City agrees to reimburse the Railroad within thirty (30) days of its receipt of billing from the Railroad for one hundred percent (100%) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, all actual costs of engineering review (including preliminary engineering review costs incurred by the Railroad prior to the Effective Date of this Agreement), construction inspection, flagging (unless flagging costs are to be billed directly to the Contractor), procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad's standard additive rates. Section 8. PLANS A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for the Project and the Roadway and submit such plans and specifications to the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, for prior review and approval. The plans and specifications shall include all appurtenances, associated drainage, shoring, sheeting and excavations for bents and/or abutments next to or 2524-89 City of Round Rock, TX Arterial A Underpass Page 3 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AM€RICA° adjacent to the Railroad's tracks and, if applicable, all demolition and removal plans for the existing Roadway. B. The final one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, are hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D. Upon completion of the Roadway, the City, at its expense, shall furnish to the Railroad three (3) sets of reproducible "as constructed" Plans of the Roadway. E. The Railroad's review and approval of the Plans in no way relieves the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranties as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. Section 9. NON -RAILROAD IMPROVEMENTS A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non -railroad owned facilities (the "Non Railroad Facilities") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wirelines, communication lines and fences is required under Section 8. The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineering and Maintenance -of - Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non Railroad Facilities owner or operator, or before Railroad and City mutually agree in writing to (i) deem the approved Non Railroad Facilities plans and specifications to be Plans pursuant to Section 8B, (ii) deem the Non Railroad Facilities part of the Roadway, and (iii) supplement this Agreement with terms and conditions covering the Non Railroad Facilities. 2524-89 City of Round Rock, TX Arterial A Underpass Page 4 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' Section 10. SHOOFLY WORK A. The City, at its expense, shall perform all grading, drainage and embankment work for the Shoofly (including the portions at both ends of the Shoofly that the Railroad will be constructing or realigning in order to connect the Shoofly to its existing trackage) to the satisfaction and standards of the Railroad and in compliance with the Plans and all specifications and guidelines furnished by the Railroad to the City. B. If the City or its Contractor needs to bring any borrow material onto the job site to accomplish such grading and embankment work, the borrow material shall be first tested by the City or its Contractor, at the City's sole expense, to determine if the borrow material is acceptable to Railroad including, without limitation, ensuring (1) that the borrow material meets specifications and standards provided by the Railroad to the City and (ii) that the borrow material does not contain any contamination or naturally occurring radiological material or any other material deemed under any applicable current federal, state or local agency law, statute, rule or regulation to be of environmental concern. C. The City, at its expense, shall supply and lay all sub -ballast material upon the grading and embankment described in Paragraph A above to the standards and satisfaction of the Railroad and in compliance with the Plans and all specifications and guidelines that have been furnished by the Railroad to the City. D. The Railroad, at the City's expense, shall furnish, install and maintain the rail and ties, or shift, realign and maintain the existing railroad tracks, as the case may be, on the portions of the Shoofly that connect to the Railroad's existing trackage out to the clearance points on the Shoofly. E. Except as set forth in Paragraph D above, the City shall supply and install all ties, track and other material to the satisfaction of the Railroad and in compliance with the Plans and all specifications and guidelines furnished by the Railroad to the City. F. Except as provided in Paragraph D above, during the Project, the City, at its expense, shall maintain and repair the Shoofly to the standards and satisfaction of the Railroad. G. Upon completion of the Project, the Railroad, at the City's expense, shall remove the rail and ties that it installed under Paragraph D above. H. Upon completion of the Project, the City, at its expense, shall remove all rails, ties and ballast installed by it for the Shoofly to the standards and satisfaction of the Railroad and in compliance with the Plans, and all specifications and guidelines, furnished by the Railroad to the City. The City shall retain all salvage with respect to material described in this Paragraph H. Section 11. DEFERRED SEASONING The City acknowledges that conditions inherent in the construction of the Roadway may delay the complete stabilization of the Roadway and Railroad's trackage including, without limitation, new embankment, cuts or fills beyond the construction period. Railroad's operation over such areas during this seasoning period may impose extraordinary maintenance costs in the event of caving, sliding, slipping, sinking or settling, including, without limitation, damage to rip -rapping or protective work in connection therewith, as well as settlement and consolidation of tracks and ballast, until such seasoning period is complete. Therefore, the City shall pay to the Railroad all that 2524-89 City of Round Rock, TX Arterial A Underpass Page 5 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA part of the cost and expense of extraordinary maintenance (hereinafter referred to as "Deferred Seasoning") associated with the Project which can be attributed to the partial or complete failure of sub -grade and/or embankment, settlement, and consolidation of sub -ballast, or roadbed, or any combination thereof, which is incurred during the period commencing immediately following completion of such work by the City or its Contractor and ending five (5) years thereafter. The Deferred Seasoning costs aforesaid shall include reimbursement of the extra cost, in excess of normal maintenance costs, of maintaining embankments and sub -grade and that portion of said tracks above sub -grade in accordance with acceptable maintenance standards, and will include cost of maintaining proper alignment, proper surface and use of ballast and other necessary materials. The work of such Deferred Seasoning repair shall normally be performed by the Railroad either with its own forces or through a responsible contractor employed by the Railroad. Section 12. RAILROAD'S COORDINATION REQUIREMENTS The City, at its expense, shall ensure that the Contractor complies with all of the terms and conditions contained in the Railroad's Coordination Requirements that are described in Exhibit D, attached hereto and hereby made a part hereof, and other special guidelines and/or requirements that the Railroad may provide to the City for this Project. Section 13. EFFECTIVE DATE; TERM; TERMINATION A. This Agreement shall become effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Section 14. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK Neither the City nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and City have executed this Agreement. (ii) The Railroad has provided to the City the Railroad's written approval of the Plans. (iii) Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements set forth in the Contractor's Right of Entry Agreement. (iv) Each Contractor has given the advance notice(s) required under the Contractor's Right of Entry Agreement to the Railroad Representative named in the Contractor's Right of Entry Agreement. 2524-89 City of Round Rock, TX Arterial A Underpass meow MC PC � j(t I'.1111 Page 6 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° Section 15. FUTURE PROJECTS Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of the Roadway shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. Section 16. ASSIGNMENT; SUCCESSORS AND ASSIGNS A. City shall not assign this Agreement without the prior written consent of Railroad. B. Subject to the provisions of Paragraph A above, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Railroad and City. Section 17. CLOSURE AND REMOVAL OF EXISTING PRIVATE ROAD CROSSING Upon the completion of the Roadway, the City agrees to close and the Railroad will remove, at the City's expense, the existing at -grade private road crossing, DOT No. 439-684S, located at Railroad's Mile Post 158.80 on it's Austin Subdivision, in Round Rock, Williamson County, Texas. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By JAMES P. GADE Director Contracts ATTEST: CITY OF ROUND ROCK By By City Clerk (SEAL) 2524-89 City of Round Rock, TX Arterial A Underpass Printed Name: Title: Pursuant to Resolution/Order No. dated , 200 hereto attached Page 7 of 7 Revised January 14, 2009 LIST OF EXHIBITS Exhibit A Railroad Location Print Exhibit A- Exhibit A Exhibit A - Exhibit Exhib Exhib Exhibi To Pu reement Exhibit A Railroad Location Print N i RAILROAD LOCATION PRINT OF A NEW w_ -'E OVERPASS GRADE SEPARATION CROSSING V CONSTRUCTION PROJECT sil r CD M 1 2 YY EIAUREI PATH 4. o n x ! m o> # 1 . �$ irk ' ..A-x 1. h-. �` d 8' hy' xv•y LLt i fir. SUGAR BEp4 CY ' . 8?6449.RE lY 4. rr 1- � ,�� jEOff _, C7 /ce is { EtX - -14 �-t+r ,-'-` '" tee �� U 6` 4 re o z` g m a G`l -1 f MP 158.76 - Austin Subdivision. Arterial A Underpass - DOT #Pending New Grade Separation Crossing Construction Project h x . ..�. _... te "� � Austin h 8ubdivision..�_.�-n.� reek .k•' `_ �C! MP 158.80 - Austin Subdivision Private Road Crossing - DOT #439-684S Existing At-Grade Private Road Crossing To Be Removed Geek' gyrus hY 4 Cil CROAS LEYXNG DELORME Data use subjectto license. ® 2004 Delorme. Street Atlas USA® 2005.Ionlillillito www.delorme.com AN (4.8' E) ft moo Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Shift 1000 feet of mainline track to connect to shoofly track; Renew 308 cross ties in shifted track; and other track & surface work. 2. Minor signal work. 3. Engineering Design Review, Inspection & Flagging. UNION PACIFIC GPS: N ROUND Location print of an construction project Folder No. 2524-89 IN ALL OCCASIONS, U.P. COMMUNICATIONS OF ANY WORK TO DETERMINE EXHIBIT "A" RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 158.76 30° 31.3473', W 97° 38.2380' ROCK, WILLIAMSON CO., TX. new underpass grade separation crossing with the CITY OF ROUND ROCK. Date: November 4, 2008 WARNING DEPARTMENT MUST BE CONTACTED IN ADVANCE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print .„ 3��R^� h �'r�`j F"k�� n�t ixQ:L•6'k`=9� �� 1�h ma fi r t+t4# ,u �'s4 �4A u� � �t r�,`;s F�,,tx�'�{ .r4.�.r. -.�.r.. �a, vy.. '?:t �_£ 7:xyd. ms:µ RMN �u 'Fh cwt, ii .7,a" y xp r .y mk 7rt�yuye °4 yy�' 't J,'I�i�tG � �. 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L1M•811S %01 0/35tf'WNN 9/350 ad 9L -din '39YL lIX8/SI/5 31113 AsaaArsdfdt10909•wwvs&a...A. 491 "" "n;"",`l"�"L�" Exhibit A-1 Detailed Prints To Pu cement PARCEL U.P. RR FN5020 OCTOBER 15, 2008 SAM, Inc. Job No. 28101 FIELD NOTE DESCRIPTION DESCRIPTION OF A 0.956 ACRE TRACT OF LAND (41,646 SQUARE FEET) BEING LOCATED IN THE P.A. HOLDER SURVEY, ABSTRACT NO. 297 IN WILLIAMSON COUNTY, TEXAS; BEING A PORTION OF THAT CERTAIN UNION PACIFIC RAILROAD RIGHT-OF-WAY (A 100' WIDE RIGHT-OF-WAY), BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at a 1/2" iron rod with cap stamped "SAMINC" found in the southerly right-of-way line of said Union Pacific Railroad right-of-way, said 1/2" iron rod found being in a northwesterly line of that certain called 107.17 acre tract as described In a Special Warranty Deed from Federal Deposit Insurance Corporation to John Bolt Harris, et al. of record in Volume 2372, Page 112 of the Official Records of Williamson County, Texas, said 107.17 acre tract also described in a Special Warranty Deed recorded as Document No. 2006053683 of the Official Public Records of Williamson County, Texas; from George Keyes Hickox Sr. and Virginia L. Hickox to the Hickox Family Living Trust Dated October 22, 1997; THENCE crossing through said Union Pacific Railroad right-of-way N26°23'12"W a distance of 100.00 feet to a calculated point for the northwest corner of this tract, said calculated point being in the northwest right-of- way line of said Union Pacific Railroad right-of-way and in the southeast right-of-way line of State Highway No. 79 (a variable width right-of-way); THENCE with the northwest line of said Union Pacific Railroad right-of-way and the southeast line of said State Highway No. 79 N63°36'48"E, passing a TxDOT type II right-of-way monument found at a distance of 53.95 feet for reference, and continuing a distance of 416.46 feet in all to a calculated point for the northeast comer of this tract; THENCE crossing through said Union Pacific Railroad right-of-way S26°23'12"E a distance of 100.00 feet to a 1/2" iron rod with cap stamped "SAMINC" found for the southeast comer of this tract, said 1/2" iron rod found being in the northeast line of that certain called 152.392 acre tract described in a General Warranty Deed from Bison Building Materials, Ltd. to Bison Tract 79, Ltd. of record in Document No. 2007049657 of the Official Public Records of Williamson County, Texas; THENCE with the northwest line of said Bison Tract 79 tract and the northeast line of said 107.17 acre tract 563°36'48"E, a distance of 416.46 feet to the POINT OF BEGINNING and containing 0.956 acres (41,646 square feet) of land, more or less. BEARING BASIS: All bearings are based on a previous survey performed by SAM, Inc. in 2003. All distances and coordinates are surface values using a combined scale factor of 1.000084953. THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TRAVIS That I, Brian D. Scott, a Registered Professional Land Surveyor, do hereby certify that the above description is true and correct to the best of my knowledge and belief and that the property described herein was determined by a survey made on the ground under my direction and supervision. WITNESS MY HAND AND SEAL at Austin, Travis County, Texas this the 15 day of October 2008, A.D. SURVEYING AND MAPPING, Inc. 5508 West Highway 290 Building B Austin, Texas 78735 6/ I Brian D. Scott Registered Professional Land Surveyor No. 5280 - State of Texas Exhibit A-2 Legal Description �°' ��c .ter 4 w7'�*�t� ��d � + j3 �" � ��' .mak To Pur c � wa r e ass- r eement Illu rative Pry w t o e Lre a � scr tion i q PALM VALLE'/ CROSSINEPARA TION 0o a: /y= s _ (11 Extra R% W let h Sold Doc 00555 ,r> e� k / 1,A LL ppEELEGEND: GRADEIASEPARATIONPCRSSING UPRRCO. R/W OUTLINED CADD c:/codd/2008/252489.dgn FILENAME SCAN pOX-10496mi6042s61246e2010.tif FILENAME 'C:\cadd\2008\252489.dgn 10/31/2008 2:14:47 PM— Atir • -21 0 0 f� -:71 4 10 NOTE: BEFORE YOU BEGIN ANY WORK. SEE AGREEMENT FOR FIBER OPTIC PROVISIONS. Exhibit A-3 UNION PACIFIC RAILROAD COMPANY ROUND ROCK. WILLIAMSON COUNTY. TEXAS M.P. 158.76 - AUSTIN SUBDIVISION TO ACCOMPANY AGREEMENT WITH CITY OF ROUND ROCK SCALE: 1" = 400' OFFICE OF REAL ESTATE OMAHA. NEBRASKA DATE: 10/31/2008 CAA FILE: 2524-89 ,,,,ai :-ate., aRZ MIR 3 sm- or To Pu cry ga 11de .4 ass � �eement gg IN hlrz, ]Mm V, e a SPS onk{iirlon ISO Arn p sa x `iY 7 't il r rj i' -5 £1. r, T 31 r ud �y 3�:Yl �^AYs M t ggwg ON P� Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law EXHIBIT B TO PUBLIC HIGHWAY UNDERPASS AGREEMENT TERMS AND CONDITIONS BUILDING AMERICA' Section 1. CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes. C. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. D. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; and the right to cross the Crossing Area with all kinds of equipment. The Railroad further reserves the right to attach signal, communication or power lines to the Roadway, provided that such attachments shall comply with City's specifications and will not interfere with the City's use of the Crossing Area. E. So far as it lawfully may do so, the City will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. F. If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. Section 2. CONSTRUCTION OF ROADWAY A. The City, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the City shall remove from the Railroad's property all temporary Roadways and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C. All construction work of the City upon the Railroad's property (including, but not limited to, construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering -Design of the Railroad or his authorized representative and in compliance with the Plans, the Railroad's Coordination Requirements set forth in Exhibit D and other guidelines furnished by the Railroad. D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad by the State and/or the Contractor. Public Highway Underpass ExB 05-10-08 Page 1 of 4 Exhibit B Terms & Conditions Standard Form Approved, AVP -Law Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' Si *.ion 3. INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering - Design. Section 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. Section 5. MAINTENANCE AND REPAIRS A. The City, at its expense, shall maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Roadway, including the waterproofing and below, and further including, but not limited to, the superRoadway, subRoadway, piers, abutments, walls, approaches and all backfill, grading and drainage required by reason of the Roadway, as well as all graffiti removal or over -painting involving the Roadway. B. The Railroad, at its expense, will maintain, repair and renew, or cause to be maintained, repaired and renewed, above the waterproofing, including, but not limited to, the rails, ties, ballast and communication and signal facilities owned by the Railroad. Section 6. SAFETY MEASURES; PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. B. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse and, to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorney's fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. C. No Interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. D. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. E. Suspension of Work. If at any time the City's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. F. Removal of Debris. The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 2 of 4 Exhibit B Terms & Conditions Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' G. Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. H. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. Drainage. The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. J. Notice. Before commencing any work, the City shall provide the advance notice that is required under the Contractor's Right of Entry Agreement. K. Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. City shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. If it is, City will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. Section 7. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the construction or reconstruction of the Roadway has been completed. Section 8. OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. Section 9. BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City. Section 10. REMEDIES FOR BREACH OR NONUSE A. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof. B. Nonuse by the City of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the City hereunder. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 3 of 4 Exhibit B Terms & Conditions Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' C. The City will surrender peaceable possession of the Crossing Area and Roadway upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. Section 11. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 4 of 4 Exhibit B Terms & Conditions a e r ii i a xF r4 r �9u r & - a �Mt' VK W pg is k gill ILI .10 M7 al'i Av —ce 91 10. a; x N IRA 4 � ,,�?.�j x`« a*'s' r .c i �x Mal sl� �w To Pu U £ c hwa 3 z y LT{ne greement K � %aaN. . .k asr` , r r'� y r �r+"„�az r q y ry aws., 4�"ri Q5. OR EN PEN^ rM¢ '1Sy Estimate. endRailroad re All Ukx mug V$12214® h-xA' .k ago Egg EN �r<lwg r x - 'tet} 15� ti EMIR Emil J�&se I WE fi3 r' " xY" 'irx"'� ems- '9' '' Kim FEW RMS Lim ti :. rix DATE: 2008-08-12 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2009-02-10 DESCRIPTION OF WORK:. ROUND ROCK,TX /SHOOFLY FOR P&P ARTERIAL A / MP 158.80 AUSTIN SUBDIVISION PORTION OF SHOOFLY TRACK CONSTRUCTION BY UNION PACIFIC: ******************************************************* SHIFT 1000 TF MAINLINE TO CONNECT TO SHOOFLY. RENEW 308 XTIES IN SHIFTED TRACK, 5096. RENEWAL RATE. PID: 58465 AWO: 83414 SERVICE UNIT: 12 CITY: ROUND ROCK, DESCRIPTION ENGINEERING WORK CONTRACT ENGINEERING ENGINEERING LABOR ADDITIVE 236% PERSONAL EXPENSES 3 D7 DWAf- fLAWKIc, STRUCTURES -I TRACK-INSP TOTAL ENGINEERING SIGNAL WORK LABOR ADDITIVE 2360 SALES TAX- SIGNAL AXSIGNAL TOTAL SIGNAL TRACK & SURFACE WORK BALLAST UNLD FIELD WELD LABOR ADDITIVE 236% MATL STORE EXPENSE OTM UNLD/DIS RDXING MATL.BY CONTRACT SALES TAX TRACK-RELOCA TRK -SURF, LIN WELD XTIES -UNLD QTY UNIT LABOR MP,SUBDIV: TX STATE: TX 158.61, AUSTIN MATERIAL RECOLL UPRR TOTAL 3496 73429 15714 5952 5952 104543 1080 457 1537 7260 4373 158117 17177 TF 1905 3520 16754 59053 TOTAL TRACK & SURFACE 268159 LABOR/MATERIAL EXPENSE RECOLLECTIBLE/UPRR EXPENSE ESTIMATED PROJECT COST EXISTING REUSEABLE MATERIAL CREDIT SALVAGE NONUSEABLE'MATERIAL CREDIT 70075 70075 3496 73429 10132 10132 15714 5952 5952> 70075 3496 73429 10132 15714 5952 5952 80207 184750 2 69 1080 2 526 71 1608 7 10 255 7260 4373 158117 7 17177 1905 10 3520 16754 255 59053 184750 1080 2 526 1608 7260 4373 158117 7 17177 1905 10 3520 16754 255 59053 374239 RECOLLECTIBLE LESS CREDITS 272 268431 268431 80550 454789 0 0 454789 D SUBJECT TO FLUCTUATION. IN THE EVENT OF QUANTITY OF MATERIAL OR LABOR REQUIRED, COSTS AT THE CURRENT EFFECTIVE RATE. THE ABOVE FIGURES ARE ESTIMAATES ONLY AN AN INCREASE OR DECREASE IN THE COST OR UPRR WILL BILL FOR ACTUAL CONSTRUCTION Exhibit C Railroad's Material & Force Account Estimate a �Y,-�� # �dye `}�,-•... gi s_+� All r Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law EXHIBIT D TO PUBLIC HIGHWAY UNDERPASS AGREEMENT RAILROAD COORDINATION REQUIREMENTS BUILDING AMERICA° 1.01 DEFINITIONS Agreement: Agreement that has been signed, or will be signed, between Railroad and Agency covering the construction and maintenance of the Project. Agency: Name of City AREMA: American Railway Engineering and Maintenance -of -way Association Contractor: The contractor or contractors hired by the Agency to perform any project work on any portion of Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Project: Agency's Project Number Agency Project Number covering Purpose Railroad: Union Pacific Railroad Company Railroad Project Railroad's Manager of Industry and Public Projects for this Project - (see Section 1.03) Representative: Railroad MTM Railroad's Manager of Track Maintenance for this Project - (see Section 1.03) Representative: Requirements: The Railroad Coordination Requirements set forth in this Exhibit. 1.02 DESCRIPTION This Project includes construction work within Railroad's right-of-way. These Requirements describe coordination with the Railroad when work by the Contractor will be performed upon, over or under the Railroad right-of-way or may impact current or future Railroad operations. The Contractor will coordinate with the Railroad while performing the work outlined in this Agreement and shall afford the same cooperation with the Railroad as it does with the Agency. All submittals and work shall be completed in compliance with these Requirements, Railroad guidelines and requirements, AREMA recommendations and/or as directed by the Railroad Local Representative. 1.03 UPRR CONTACTS The Railroad Project Representative for this project is: Joe Garcia Manager Industry & Public Projects Union Pacific Railroad Company 1711 Quintana Road San Antonio, TX 78224-0730 Phone: 210-921-6701 FAX: 210-921-4082 Cell:210-262-4114 For Railroad flagging services and track work, contact the following Railroad MTM Representative: Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 Phone: (512) 255-5966 Fax: (512) 218-4480 1.04 PLANS / SPECIFICATIONS The plans and specifications for this Project, affecting the Railroad, are subject to the written approval by the Railroad. Changes in the plans made after the execution of the Agreement and/or the awarding of the Project to the Contractor are subject to the prior review and written approval of the Agency and the Railroad. No construction work shall commence until final stamped plans and/or Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 1 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' ch,....1ges to final stamped plans have been reviewed and approved by the Railroad in writing. The Railroad's review and approval of the Agency's and/or Contractor's plans in no way relieves the Agency and Contractor from their responsibilities, obligations and/or liabilities under this Agreement, Agency's agreement with the Contractor for the Project and/or in the separate Contractor's Right of Entry Agreement referenced in Section 1.08. Railroad's approval will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of Agency's and/or Contractor's plans and that any reliance by the Agency or the Contractor with respect to such plans is at the risk of the Agency and the Contractor. 1.05 UTILITIES AND FIBER OPTICS A. All installations shall be constructed in accordance with current AREMA recommendations and Railroad specifications and requirements. Railroad general guidelines and the required application forms for utility installations can be found on the Railroad website at http://www.uprr.com/aboutup/re.shtml. B. It shall be the responsibility of the Contractor, at its expense, to make arrangements directly with utility companies involving the protection, encasement, reinforcement, relocation, replacement, removing or abandonment in place of non -railroad facilities affected by the Project. Railroad has no obligation to supply additional Railroad property for non -railroad facilities affected by this Project, nor does the Railroad have any obligation to permit non railroad facilities to be abandoned in place or relocated on Railroad's property. Any facility and/or utility that crosses Railroad right of way must be covered under an agreement with the Railroad including, without limitation, any relocations of an existing facility and/or utility. C. Any longitudinal fiber optic lines on Railroad right of way shall be treated as Railroad facilities. Project design may need to be altered to accommodate such facilities. D. Any fiber optic relocations or protections that are required due to this Project will be at the Agency's expense. 1.06 GENERAL A. It is essential that the proposed construction shall be performed without interference to Railroad operations and in compliance with all applicable Railroad and Federal Railroad Administration rules and regulations. The Railroad shall be reimbursed by the Contractor or Agency for train delay costs and lost revenue claims due to any delays or interruption of train operations resulting from the Contractor's construction or other activities. B. Track protection is required for all work equipment (including rubber tired equipment) operating within 25 feet from nearest rail. All work shall be designed and executed outside the temporary construction clearance envelope defined in Section 1.12. C. The Contractor is also advised that new facilities within the Project may be scheduled to be built by the Railroad and that certain Contractor's activities cannot proceed until that work is complete. The Contractor shall be aware of the limits of responsibilities, allow sufficient time in the schedule for that work to be accomplished and shall coordinate its efforts with the Railroad. 1.07 RAILROAD OPERATIONS A. The Contractor shall be advised that trains and/or equipment should be expected on any track, at any time, and in either direction. The Contractor shall communicate with the Railroad MTM Representative to improve the Contractor's understanding of Railroad traffic volume and operation at the Project site. The Contractor's bid shall be Roadwayd assuming intermittent track windows as defined in Section 1.07 C. B. All Railroad tracks within and adjacent to the Project site are to be assumed as active and rail traffic over these facilities shall be maintained throughout the Project. Activities may include both through moves and switching moves to local customers. Railroad traffic and operations can occur continuously throughout the day and night on these tracks and shall be maintained at all times as defined herein. The Contractor shall coordinate and schedule the work so that construction activities do not interfere with Railroad's operations. C. Work windows for this Project shall be coordinated with the Agency or Contractor and the Railroad Project Representative and the Railroad MTM Representative. Types of work windows include Conditional Work Windows and Absolute Work Windows, as defined below: 1. Conditional Work Window: A period of time in which Railroad's operations have priority over construction activities. When construction activities may occur on and adjacent to the railroad tracks within 25 feet of the nearest track, a Railroad flag person will be required. At the direction of the flag person, upon approach of a train and when trains are present on the tracks, the tracks must be cleared (i.e., no construction equipment, materials or personnel within 25 feet from the nearest active track or as directed by the Railroad MTM Representative). Conditional Work Windows are available for the project subject to Railroad's local operating unit review and approval. 2. Absolute Work Window: A period of time in which construction activities are given priority over Railroad's operations. During this time the designated Railroad track(s) will be inactive for train movements and may be fouled by the Contractor. Before the end of an Absolute Work Window, all Railroad tracks and signals must be completely operational for normal train operations. Also, all Railroad, Public Utilities Commission and Federal Railroad Administration requirements, codes and regulations for operational tracks must be complied with. Should the operating tracks and/or signals be affected, the Railroad will perform inspections of the work prior to placing the affected track back into service. Railroad flag persons will Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 2 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° be required for construction activities requiring an Absolute Work Window. Absolute Work Windows will generally not be granted. Any request will require a detailed explanation for Railroad review and approval. 1.08 RIGHT OF ENTRY, ADVANCE NOTICE AND WORK STOPPAGES A. Prior to beginning any work within the Railroad right-of-way, the Contractor shall enter into an agreement with the Railroad in the form of the Contractor's Right of Entry Agreement, attached as Exhibit E, or latest version thereof provided by the Railroad. There is a fee for processing of the agreement which shall be borne by the Contractor. The right of entry agreement shall specify working time frames, flagging, inspection and insurance requirements and any other items specified by the Railroad. B. The Contractor shall give advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing work in connection with construction upon or over Railroad's right-of-way and shall observe the Railroad rules and regulations with respect thereto. C. All work upon the Railroad right-of-way shall be done at such times and in such a manner as not to interfere with or endanger the operations of the Railroad. Whenever work may affect the operations or safety of trains, the method of doing such work shall first be submitted to the Railroad MTM Representative for approval, but such approval shall not relieve the Contractor from liability. Any work to be performed by the Contractor, which requires flagging service or inspection service, shall be deferred until the flagging protection required by the Railroad is available at the job site. See Section 1.21 for railroad flagging requirements. D. The Contractor shall make requests in writing to both the Railroad Project Representative and the Railroad MTM Representative for both Absolute and Conditional Work Windows, at least two weeks in advance of any work. The written request must include: 1. Description of work to be done. 2. The days and hours that work will be performed. 3. The exact location of the work and proximity to the tracks. 4. The type of window and amount of time requested. 5. The designated contact person for the Contractor. The Contractor shall provide a written confirmation notice to the Railroad MTM Representative at least fifteen (15) days prior to commencing work in connection with the approved work windows when work will be performed within 25 feet of any track center line. All work shall be performed in accordance with previously approved work plans. E. Should a condition arise from, or in connection with, the work which requires immediate and unusual actions to be made to protect operations and property of the Railroad, the Contractor shall undertake such actions. If, in the judgment of the Railroad MTM Representative, such actions are insufficient, the Railroad MTM Representative may require or provide such actions as deemed necessary. In any event, such actions shall be at the Contractor's expense and without cost to the Railroad. The Railroad or Agency have the right to order the Contractor to temporarily cease operations in the event of an emergency or if, in the opinion of the Railroad MTM Representative, the Contractor's operations may inhibit the Railroads operations. In the event such an order is given, the Contractor shall immediately notify the Agency of the order. 1.09 INSURANCE The Contractor shall not begin work within the Railroad's right-of-way until the Railroad has been furnished the insurance policies, binders, certificates and endorsements required by the Contractor's Right -of -Entry Agreement, and the Railroad Project Representative has advised the Agency that such insurance is in accordance with such Agreement. The required insurance shall be kept in full force and effect during the performance of work and thereafter until the Contractor removes all tools, equipment, and material from Railroad property and cleans the premises in a manner reasonably satisfactory to the Railroad. 1.10 RAILROAD SAFETY ORIENTATION All personnel employed by the Agency, Contractor and all subcontractors must complete the Railroad's course "Orientation for Contractor's Safety" and be registered prior to working on Railroad property. This orientation is available at www.contractororientation.com. This course is required to be completed annually. The precedin training does not apply for longitudinal fiber optic installations. 1.11 COOPERATION The Railroad will cooperate with the Contractor so that work may be conducted in an efficient manner and enable use of Railroad's right-of-way in performing the work. 1.12 CONSTRUCTION CLEARANCES The Contractor shall abide by the twenty-one (21) foot temporary vertical construction clearance defined in section 4.4.1.1 and twelve (12) foot temporary horizontal construction clearance defined in section 4.4.1.2 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. It shall be the Contractor's responsibility to obtain such guidelines from the Agency or Railroad. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 3 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' Reduced temporary construction clearances, which are less than construction clearances defined above, will require special review and approval by the Railroad. Any proposed variance on the specified minimum clearances due to the Contractor's operations shall be submitted to the Railroad Project Representative through the Agency at least thirty (30) days in advance of the work. No work shall be undertaken until the variance is approved in writing by the Railroad Project Representative. 1.13 SUBMITTALS A. Construction submittals and Requests for Information (RFI) shall be submitted per Section 3.5 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. The minimum review times, as indicated in tables 3-1 and 3-2 of Section 3.5 of the BNSF and UPRR Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. The details of the construction affecting the Railroad tracks and property, not already included in the contract plans, shall be submitted by the Agency to the Railroad Project Representative for the Railroad's review and written approval before such construction is undertaken. The Railroad shall not be liable to Agency, Contractor, and or any other person or entity if the Railroad's review exceeds a four-week review time. C. As Built Submittals shall be submitted per Section 3.6 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. 1.14 MAINTENANCE OF PROPER DRAINAGE AND DAMAGE TO RAILROAD FACILITIES A. The Contractor, at its expense, shall be required to maintain all ditches and drainage Roadways free of silt or other obstructions which may result from the Contractor's operations and to repair and restore any Railroad property, tracks and facilities of Railroad and/or its tenants. B. The Contractor must submit a proposed method of erosion control and have the method reviewed and approved by the Railroad prior to beginning any grading on the project site. Erosion control methods must comply with all applicable local, state and federal regulations. 1.15 SITE INSPECTIONS BY RAILROAD PROJECT REPRESENTATIVE, RAILROAD MTM REPRESENTATIVE OR RAILROAD'S CONTRACTOR A. In addition to the office reviews of construction submittals, site observations will be performed by the Railroad Project Representative, Railroad MTM Representative or Railroad's Contractor at significant points during construction per Section 4.11 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. Site inspections are not limited to the milestone events listed in the guidelines. Site visits to check the progress of work may be performed at any time throughout the construction process as deemed necessary by the Railroad. C. A detailed construction schedule, including the proposed temporary horizontal and vertical clearances and construction sequence for all work to be performed, shall be provided by the Contractor to the Agency for submittal to the Railroad's Project Representative for review and approval prior to commencement of work. This schedule shall also include the anticipated dates on which the above listed events will occur. This schedule shall be updated for all critical listed events as necessary but at least monthly so that site visits may be scheduled. 1.16 RAILROAD REPRESENTATIVES A. Railroad representatives, conductors, flag persons or watch persons will be provided by the Railroad at the expense of the Agency or Contractor (as stated elsewhere in these bid documents) to protect Railroad facilities, property and movements of its trains and engines. In general, the Railroad will furnish such personnel or other protective services as follows: 1 When any part of any equipment or object, such as erection or construction activities, is standing or being operated within 25 feet, measured horizontally from centerline, of any track on which trains may operate. 2. For any excavation below the elevation of track subgrade when, in the opinion of the Railroad MTM Representative, the track or other Railroad facilities may be subject to settlement or movement. 3. During any clearing, grubbing, excavation or grading in proximity to Railroad facilities which, in the opinion of the Railroad MTM Representative, may affect Railroad facilities or inhibit operations. 4. During any Contractor's operations when, in the opinion of the Railroad MTM Representative, the Railroad facilities, including, but not limited to, tracks, buildings, signals, wire lines or pipe lines, may be endangered. B. The Contractor shall arrange with the Railroad Local Representative to provide the adequate number of flag persons to accomplish the work. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 4 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° 1_.WALKWAYS REQUIRED Parallel to the outer side of each exterior track of multiple operated track and on each side of single operated track, an unobstructed continuous space suitable for trainman's use in walking along trains, extending in width not less than twelve feet -(12') perpendicular from centerline of track, shall be maintained. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during working hours must be covered, guarded and/or protected as soon as practical. Walkways with railings shall be constructed by the Contractor over open excavation areas when in close proximity of track, and railings shall not be closer than 9' perpendicular from the center line of tangent track or 9' — 6" horizontal from curved track. 1.18 COMMUNICATIONS AND SIGNAL LINES If required, the Railroad, at Agency's expense, will rearrange its communications and signal lines, grade crossing warning devices, train signals and tracks and facilities that are in use and maintained by Railroad forces in connection with its operation. This work by the Railroad will be done by its own forces or by contractors under a continuing contract and may or may not be a part of the work under this contract. 1.19 TRAFFIC CONTROL The Contractor's operations which control traffic across or around Railroad facilities shall be coordinated with and approved by the Railroad MTM Representative and shall be in compliance with the MUTCD. 1.20 CONSTRUCTION EXCAVATIONS; CALL BEFORE YOU DIG NUMBER A. The Contractor shall be required to take special precautions and care in connection with excavating and shoring. Excavations for construction of footings, piers, columns, walls or other facilities that require shoring shall comply with requirements of OSHA, AREMA and Railroad "Guidelines for Temporary Shoring". B. In addition to calling the "811" number and/or the local "one call center", the Contractor shall call the Railroad's "Call Before Your Dig" number at least 48 hours prior to commencing work at 1-800-336-9193 during normal business hours (6:30 a.m. to 8:00 p.m. Central Standard Time, Monday through Friday, except holidays - also a 24 hour, 7 day a week number for emergency calls) to determine location of fiber optics. If a telecommunications system is buried anywhere on or near Railroad property, the Contractor will co-ordinate with the Railroad and the Telecommunication Company(ies) to arrange for relocation or other protection of the system prior to beginning any work on or near Railroad property. The determination of whether fiber optics will be affected by the Project shall be made during the initial design phase of the Project. C. The Railroad does not allow temporary at grade crossings unless absolutely necessary and there is no altemative route available to contractor to access the project site. Alternative plans should be considered to avoid crossing Railroad tracks at grade. 1.21 RAILROAD FLAGGING Performance of any work by the Contractor in which person(s) or equipment will be within twenty-five (25) feet of any track, or that any object or equipment extension (such as, but not limited to, a crane boom) will reach within twenty-five (25) feet of any track, require railroad flagging services or other protective measures. The Contractor shall give an advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing any such work, allowing the Railroad to determine the need for flagging or other protective measures which ensure the safety of Railroad's operations, employees and equipment. Contractor shall comply with all other requirements regarding flagging services covered by the Contractor's Right of Entry Agreement. Any costs associated with failure to abide by these requirements will be borne by the Contractor. The estimated pay rate for each flag person is $700.00 per day for an 8 -hour work day with time and one-half for overtime, Saturdays, Sundays; double time and one-half for holidays. Flagging rates are set by the Railroad and are subject to change due to, but not limited to, travel time, setup plus, per diem and rest time (if work is required at night). 1.22 CLEANING OF RIGHT-OF-WAY The Contractor shall, upon completion of the work to be performed within the right-of-way and/or properties of the Railroad and adjacent to its tracks, wire lines and other facilities, promptly remove from the Railroad right-of-way all Contractor's tools, implements and other materials whether brought upon the right-of-way by the Contractor or any subcontractors employee or agent of Contractor or of any subcontractor, and leave the right-of-way in a clean and presentable condition to the satisfaction of the Railroad. 1.23 CONTRACTOR'S RESPONSIBILITY OF SUPERVISION The Contractor, at its expense, shall adequately supervise all work to be performed by the Contractor. Such responsibility shall not be lessened or otherwise affected by Railroad's approval of plans and specifications, or by the presence at the work site of the Railroad Project Representative, Railroad MTM Representative or any other Railroad representative or Railroad contractor providing inspection services, or by the compliance by the Contractor with any requests or recommendations made by such representatives. The Contractor will give due consideration to suggestions and recommendations made by such representatives for the safety and protection of the Railroad's property and operations. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 5 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA" 1.24 USE OF EXPLOSIVES AT PROJECT SITE PROHIBITED The Contractor's use of explosives at the Project site is expressly prohibited unless authorized in advance in writing by the Railroad Project Representative. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 6 of 6 Exhibit D Railroad's Coordination Requirements To Pu �e vya�� e� as•� *eement t Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law UP Audit No.: BUILDING AMERICA* UP Real Estate Folder No.: 2524-89 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of , 200 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (NAME OF CONTRACTOR) a corporation ("Contractor"). (State of Incorporation) RECITALS: Contractor has been hired by the City of Round Rock to perform work relating to the construction of the new Arterial A Underpass grade separation crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 158.76 on the Railroad's Austin Subdivision, (DOT No. 440-126V), located in Round Rock, Williamson County, Texas, as such location is shown on the Railroad Location Print marked Exhibit A, and as specified on the Detailed Prints collectively marked Exhibit A-1, each attached hereto and hereby made a part hereof, which work is the subject of a contract dated between the Railroad and the Name of City. (Date of C&MAgreement) Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law Page 1 of 4 Exhibit E Railroad's Form of CROE Agreement Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The terms and conditions contained in Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 Phone: (512) 255-5966 Fax: (512) 218-4480 Ajay Mehta Manager Signal Maintenance Union Pacific Railroad Company 3601 McKinney Houston, TX 77023 phone: 713-577-0953 fax: 402-997-4485 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein provided, or (Expiration Date) at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with the (i) insurance binders, policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law Page 2 of 4 Exhibit E Railroad's Form of CROE Agreement Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMi. RICA° insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this Agreement. B. All insurance correspondence, binders, policies, certificates and endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 UP Real Estate Folder No. 2524-89 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, the Contractor shall pay to the Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. ARTICLE 9 - CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law Page 3 of 4 Exhibit E Railroad's Form of CROE Agreement Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law UNION PACIFIC RAILROAD COMPANY (Federal Tax ID No. 94-6001323) By PAUL G. FARRELL Senior Manager Contracts (NAME OF CONTRACTOR) By Printed Name: Title: Page 4 of 4 Exhibit E Railroad's Form of CROE Agreement Exhibit A Railroad Location Print RAILROAD LOCATION PRINT .!XPA ► a1 ACCOMPANYING A s CONTRACTOR'S RIGHT OF ENTRY AGREEMENT E �€ fir- / -/nt aa" I .. .....r.... , ! yak � LAUR1L`PAT 1 4Q tw,n xxt v, / 4o m Sal_,._—,,.,,— ./ a, o _ MP 158.76 - Austin Subdivision Arterial A Underpass - DOT #Pending New Grade Separation Crossing Construction Project �' fi. °" v''`im Ern wZ �k,- ..r,, T t a tom i* 1 , ` ^4' ct){ w k --)c--- mki ; " ' Austin -Subdivision..".•--•- •�1 Ui R i i f ! 4., .nr MP 158.80 -Austin Subdivision Private Road Crossing - DOT #439-684S € s - # p; .k- _ ..,r k.. -A --c- i Existing At -Grade Private Road Crossing To Be Removed te r Y ' ,..mow.,,,_ yam. } --... rx Creek r.e,l4ryb rC . ±} O rnCyl d G` 3 grushY_� I N . U� BE cv l_ r' -rnn ' SPORE CG(. CROSSLEY N 6 . • DELORME IIIMI s Dais use subject to license. MIN ® 2004 DeLorme. Street Atlas USA® 2005. 0 1000 2000 www.delorme.com MW (4.8' E) Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Shift 1000 feet of mainline track to connect to shoofly track; Renew 308 cross ties in shifted track; and other track & surface work. 2. Minor signal work. 3. Engineering Design Review, Inspection & Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 158.76 GPS: N 30° 31.3473', W 97° 38.2380' ROUND ROCK, WILLIAMSON CO., TX. To accompany a Contractor's Right of Entry Agreement with (Name of Contractor) for a new underpass grade separation crossing construction project. Folder No. 2524-89 Date: November 4, 2008 WARNING IN ALL OCCASIONS, U . COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print V 7VM31MV 7Y. LI#YBRS X001 e A trj [Q199 0 4 11799 R 51/99 iL 799 9i'00.1 + 199 0 4 r/99 0 R w ZS/99 0 SL189 11389 t t R asrr6u * ar3m °toy w w w a Rd cove' 9RL 9066/51/S 'ROW 11901NNdARA9R091AiD1MARRMM1^J .711I t tin Mid 'iilSIX3 0 0 0 0 _OLEExhibit A-1 Detailed Prints 0p t f t i t1, tvsle 00.11I 'ILLS 3NI1 WIY3Iktif 7KLUIVOIM ZOO/ ai3srniora• Q13117 0/11.15D3 01 3/1 :IL '399 313 0g -,c2 IAd a 3 Z57119 476,9 r - prefe §rze9 1.1799 OZ99 06199 95709 99789 91199 90799 10'1 9 A3 Of -194:72 811119 028099 frE099 1S099 2.099 9E-099 St 99 A31 9/ -99.91 IA .0119 WOO K6L9 tg0g9 SV6Z9 ftS9EVA7I a'a POWSI/S .3JJR1 NOTOWAVIA9/809MPOICIONWNWO .771.1 On dove 0(1191113 v,: tits rsi 9stmirtsa r; 1:47crigri 1 .1 / 1 7 • I MI' 1110-110 S13411 Exhibit A-1 Detailed Prints Z 00.91. 'V1S 3NI1 H01VW o SI t C < -oa ""66W M W'a 00.19 l' . Y-.—'''` : . Y�I1Ll311Y 03sod0tld 3_ :'i tll 71. 11 V 1069J1,4/ 7Y11IMSTIS 2001 0I397W/L* 4/3511 5099 1619 69.099 A31 ZZ-ZI:g '3Acr Evb1s,- svoE.9t us 0909 .11110 3 $5099 69'619 1II'6L!E1 Y1S Y 1Y11131.3y 03s4d39d 96'083 /1313 fa, aoo$e F:0000 CZ'11« l lAd 00'Id9 *313 CZ '11911 IAds 79'099 1.8619 'L099 00'099 E • 6.099 1'2'099 06099 I -T099 1099 20'111 A31l33.,, EZ'/1WI I OAS'' X0189 00799 4 --�o n 1o 0 3 ►I •II A OL' t ?Al') 101189 09799 lld Wen 09013 1002'9L.9 •341 AOO 'f1! g p. u1 w Os •a 11799 p 1x199 Sf189 •p 95199 �4 27789 11799 1r! d011d 61'JLSI%3 przrpts tzrzgo:01. r email 11;101 ' Exhibit A-1 Detailed Prints CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS & CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), orthing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law Page 1 of 3 Exhibit B Terms & Conditions CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law Page 2 of 3 Exhibit B Terms & Conditions CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° S. -.tion 8. INDEMNITY. A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultants and expert's fees, and court costs), fine or penalty (collectively, "loss") incurred by any person (including, without limitation, any indemnified party, contractor, or any employee of contractor or of any indemnified party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees, or (iii) any breach of this Agreement by Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the loss, and shall apply regardless of any negligence or strict liability of any indemnified party, except where the loss is caused by the sole active negligence of an indemnified party as established by the final judgment of a court of competent jurisdiction. The sole active negligence of any indemnified party shall not bar the recovery of any other indemnified party. C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the federal employers' liability act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any indemnified party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 7010 01 (or a substitute form providing equivalent coverage) for the job site. CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law Page 3 of 3 Exhibit B Terms & Conditions CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE REQUIREMENTS BUILDING AMERICA° Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not less than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. • Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident and coverage must include liability arising out of any auto (including owned, hired and non -owned autos). The policy must contain the following endorsements, which must be stated on the certificate of insurance: • Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. • Motor Carrier Act Endorsement - Hazardous materials clean up (MCS -90) if required by law. C. Workers' Compensation And Employers' Liability Insurance. Coverage must include but not be limited to: • Contractor's statutory liability under the workers' compensation laws of the state where the work is being performed. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self-insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability Insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella Or Excess Insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability Insurance. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law Page 1 of 2 Exhibit C Insurance Requirements CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° Other Requirements _ G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law Page 2 of 2 Exhibit C Insurance Requirements CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS BUILDING AMERICA The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. 1. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: • 100 feet of a locomotive or roadway/work equipment • 15 feet of power operated tools • 150 feet of jet blowers or pile drivers • 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be wom as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's CROE Agreement ExD 05-10-08 Page 1 of 2 Exhibit D Standard Form Approved, AVP -Law Minimum Safety Requirements CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • Familiar and comply with Railroad's rules on lockout/tagout of equipment. ■ Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On - Track Safety) and the potential hazards of the job. If any employee has any questions or concems about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law Page 2 of 2 Exhibit D Minimum Safety Requirements January 14, 2009 MR STEPHAN L SHEETS CITY ATTORNEY CITY OF ROUND ROCK 221 EAST MAIN STREET ROUND ROCK TX 78664 Dear Mr. Sheets: UP Real Estate Folder No.: 2524-89 RE: Proposed use, construction, and maintenance of the new Aterial A Underpass roadway crossing in Round Rock, Texas. Attached are revised duplicate originals of a New Public Road Crossing Underpass Agreement covering your use of the Railroad Company's property. To properly document your use of the Railroad Company's property, it is necessary that you execute the attached documents. Please return to me the following: 1. ALL of the executed documents. If a Contractor's Right -of -Entry Agreement is attached hereto, you may submit the executed Contractor's Right -of -Entry documentation upon selection of a contractor. 2. Certificate of Insurance, if required. 3. Resolution for document execution, if required. 4. Check made payable to the Union Pacific Railroad Company in the amount of $16,776.00. If you require formal billing, you may consider this letter as a formal bill. In compliance with the Internal Revenue Services' new policy regarding their Form 1099, I certify that 94-6001323 is the Railroad Company's correct Federal Taxpayer Identification Number and that Union Pacific Railroad Company is doing business as a corporation. If we have not received the executed documents within six months from the date of this letter, this proposed offer of an agreement is withdrawn and becomes null and void. If you have any questions, please contact me. LL ntracts Phone: (= 44-8620 e-mail: pgfarrell@up.com Real Estate Department UNION PACIFIC RAILROAD COMPANY 1400 Douglas Street, MS 1690 Omaha, Nebraska 68179-1690 fax: 402.501.0340 DATE: March 5, 2009 SUBJECT: City Council Meeting — March 12, 2009 ITEM: 8D1. Consider a resolution authorizing the Mayor to execute a New Public Road Crossing Underpass Agreement with Union Pacific Railroad Company for the Arterial A project. Department: Staff Person: Justification: Transportation Services Tom Word, P.E., Chief of Public Works This agreement with Union Pacific Railroad Company is for the proposed use, construction and maintenance of an underpass roadway crossing (shoo -fly) on the new Arterial A project. The City of Round Rock's portion, designed by HDR Engineering, is from Joe DiMaggio Boulevard to a point approximately 1,500 feet south of the Union Pacific Railroad. Williamson County's portion, having been designed by S.D. Kallman, Inc., is from a point approximately 1,500 feet south of the Union Pacific Railroad right-of-way to Forest Creek Drive. Funding: Cost: $16,776.00 Source of funds: Round Rock Transportation System Development Corporation Outside Resources: Union Pacific Railroad HDR Engineering Background Information: The City Council approved a resolution authorizing the Mayor to enter into a contract with HDR Engineering on April 14, 2005 (R -04-14-14F1). Public Comment: N/A EXECUTED DOCUMENT FOLLOWS UP Real Estate Folder No.: 2524-89 NEW PUBLIC ROAD CROSSING UNDERPAS S AGREEMENT UNI ANY COO AJ C D OF TH TAz RPS S'DE RAILROA IVISION DOT NO 440-126V IN ROUND ROCK WILLIAMSON COUNTY, TEXAS City Original 4► Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' UPRR Folder No.: 2524-89 UPRR Audit No.: PUBLIC HIGHWAY UNDERPASS AGREEMENT Arterial A Underpass - DOT No.: 440-126V Mile Post 158.83 — Austin Subdivision Round Rock, Williamson County, Texas THIS AGREEMENT ("Agreement") is made and entered into as of the , 211` day of fkAGWfil/� , 200 cD ("Effective Date"), by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, to be addressed at Real Estate Department, 1400 Douglas Street, Mail Stop 1690, Omaha, Nebraska 68179-1690 ("Railroad") and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas to be addressed at 221 East Main Street, Round Rock, TX 78664 ("City"). RECITALS: The City desires to undertake as its project (the "Project"): • the closure and removal of an existing at -grade private road crossing, DOT No. 439- 684S, located at Railroad's Mile Post 158.80 on it's Austin Subdivision, in Round Rock, Williamson County, Texas, and • undertake as its project (the "Project") the construction of a new grade separated underpass roadway (the "Roadway") that will carry the Railroad's trains over Arterial A, (DOT No. 440-126V), at Railroad's Mile Post 158.83 on the Railroad's Austin Subdivision, in Round Rock, Williamson County, Texas (the "Crossing Area") as the Crossing Area is shown on the Railroad Location Print marked Exhibit A. The City's Detailed Prints of the Roadway are collectively marked Exhibit A-1, attached hereto and hereby made a part hereof (also the "Crossing Area"). Under this Agreement, the Railroad will be granting rights to the City to facilitate the construction of the Roadway. The portion of Railroad's property that City needs for the Roadway is shown on the Illustrative Print of the Legal Description marked Exhibit A-3 and also described in the Legal Description marked Exhibit A-2, with each exhibit being attached hereto and hereby made a part hereof (also the "Crossing Area"). The construction of the Roadway will also necessitate the construction of a temporary railroad shoofly (the "Shoofly") to provide for the Railroad's continued railroad operations during the Project. The Railroad and the City are entering into this Agreement to cover the above. 2524-89 City of Round Rock, TX Arterial A Underpass Page 1 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: Section 1. EXHIBITS B AND D. The general terms and conditions marked Exhibit B, and the Railroad's Coordination Requirements marked Exhibit D, are attached hereto and hereby made a part hereof. Section 2. RAILROAD GRANTS RIGHT. For and in consideration of the sum of SIXTEEN THOUSAND SEVEN HUNDRED SEVENTY-SIX DOLLARS ($ 16,776.00) to be paid by the City to the Railroad upon the execution and delivery of this Agreement and in further consideration of the City's agreement to perform and comply with the terms of this Agreement, the Railroad hereby grants to the City the right to construct, maintain and repair the Roadway over and across the Crossing Area. Section 3. DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the City to perform any Project work on any portion of the Railroad's property and shall also include the Contractor' s subcontractors and the Contractor' s and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Section 4. CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. Prior to Contractor performing any work within the Crossing Area involving the Project, and any subsequent maintenance or repair work, the City shall require the Contractor to: • execute the Railroad's then current Contractor's Right of Entry Agreement • obtain the then current insurance required in the Contractor's Right of Entry Agreement; and • provide such insurance policies, certificates, binders and/or endorsements to the Railroad. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit E, attached hereto and hereby made a part hereof. The City confirms that it will inform its Contractor that it is required to execute such form of agreement and obtain the required insurance before commencing any work on any Railroad property. Under no circumstances will the Contractor be allowed on the Railroad's property without first executing the Railroad's Contractor's Right of Entry Agreement and obtaining the insurance set forth therein and also providing to the Railroad the insurance policies, binders, certificates and/or endorsements described therein. C. All insurance correspondence, binders, policies, certificates and/or endorsements shall be sent to: Senior Manager - Contracts Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, Mail Stop 1690 Omaha, NE 68179-1690 UP Real Estate Folder No. 2524-89 2524-89 City of Round Rock, TX Arterial A Underpass Page 2 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA* D. If the City's own employees will be performing any of the Project work, the City may self -insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. Section 5. FEDERAL AID POLICY GUIDE If the City will be receiving any federal funding for the Project, the current rules, regulations and provisions of the Federal Aid Policy Guide as contained in 23 CFR 140, Subpart I and 23 CFR 646, Subparts A and B are incorporated into this Agreement by reference. Section 6. NO PROJECT EXPENSES TO BE BORNE BY RAILROAD The City agrees that no Project costs and expenses are to be borne by the Railroad. In addition, the Railroad is not required to contribute any funding for the Project. Section 7. WORK TO BE PERFORMED BY THE RAILROAD; BILLING SENT TO CITY CITY'S PAYMENT OF BILLS A. The work to be performed by the Railroad, at the City's sole cost and expense, is described in the Railroad's Material and Force Account Estimate dated August 12, 2008, marked Exhibit C, attached hereto and hereby made a part hereof (the "Estimate"). As set forth in the Estimate, the Railroad's estimated cost for the Railroad's work associated with the Project is Four Hundred Fifty -Four Thousand Seven Hundred Eighty -Nine Dollars ($454,789.00). B. The Railroad, if it so elects, may recalculate and update the Estimate submitted to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within six (6) months from the date of the Estimate. C. If it is determined that the Railroad will be billing the Contractor directly for flagging costs, the City agrees that it will pay the Railroad for any flagging costs that have not been paid by any Contractor within thirty (30) days of the Contractor's receipt of billing. D. The Railroad shall send progressive billing to the City during the Project, and final billing to the City within one hundred eighty (180) days after receiving written notice from the City that all Project work affecting the Railroad's property has been completed. E. The City agrees to reimburse the Railroad within thirty (30) days of its receipt of billing from the Railroad for one hundred percent (100%) of all actual costs incurred by the Railroad in connection with the Project including, but not limited to, all actual costs of engineering review (including preliminary engineering review costs incurred by the Railroad prior to the Effective Date of this Agreement), construction inspection, flagging (unless flagging costs are to be billed directly to the Contractor), procurement of materials, equipment rental, manpower and deliveries to the job site and all direct and indirect overhead labor/construction costs including Railroad's standard additive rates. Section 8. PLANS A. The City, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for the Project and the Roadway and submit such plans and specifications to the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, for prior review and approval. The plans and specifications shall include all appurtenances, associated drainage, shoring, sheeting and excavations for bents and/or abutments next to or 2524-89 City of Round Rock, TX Arterial A Underpass Page 3 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° adjacent to the Railroad's tracks and, if applicable, all demolition and removal plans for the existing Roadway. B. The final one hundred percent (100%) completed plans that are approved in writing by the Railroad's Assistant Vice President Engineering -Design, or his authorized representative, are hereinafter referred to as the "Plans". The Plans are hereby made a part of this Agreement by reference. C. No changes in the Plans shall be made unless the Railroad has consented to such changes in writing. D. Upon completion of the Roadway, the City, at its expense, shall furnish to the Railroad three (3) sets of reproducible "as constructed" Plans of the Roadway. E. The Railroad's review and approval of the Plans in no way relieves the City or the Contractor from their responsibilities, obligations and/or liabilities under this Agreement, and will be given with the understanding that the Railroad makes no representations or warranties as to the validity, accuracy, legal compliance or completeness of the Plans and that any reliance by the City or Contractor on the Plans is at the risk of the City and Contractor. Section 9. NON -RAILROAD IMPROVEMENTS A. Submittal of plans and specifications for protecting, encasing, reinforcing, relocation, replacing, removing and abandoning in place all non -railroad owned facilities (the "Non Railroad Facilities") affected by the Project including, without limitation, utilities, fiber optics, pipelines, wirelines, communication lines and fences is required under Section 8. The Non Railroad Facilities plans and specifications shall comply with Railroad's standard specifications and requirements, including, without limitation, American Railway Engineering and Maintenance -of - Way Association ("AREMA") standards and guidelines. Railroad has no obligation to supply additional land for any Non Railroad Facilities and does not waive its right to assert preemption defenses, challenge the right -to -take, or pursue compensation in any condemnation action, regardless if the submitted Non Railroad Facilities plans and specifications comply with Railroad's standard specifications and requirements. Railroad has no obligation to permit any Non Railroad Facilities to be abandoned in place or relocated on Railroad's property. B. Upon Railroad's approval of submitted Non Railroad Facilities plans and specifications, Railroad will attempt to incorporate them into new agreements or supplements of existing agreements with Non Railroad Facilities owners or operators. Railroad may use its standard terms and conditions, including, without limitation, its standard license fee and administrative charges when requiring supplements or new agreements for Non Railroad Facilities. Non Railroad Facilities work shall not commence before a supplement or new agreement has been fully executed by Railroad and the Non Railroad Facilities owner or operator, or before Railroad and City mutually agree in writing to (i) deem the approved Non Railroad Facilities plans and specifications to be Plans pursuant to Section 8B, (ii) deem the Non Railroad Facilities part of the Roadway, and (iii) supplement this Agreement with terms and conditions covering the Non Railroad Facilities. 2524-89 City of Round Rock, TX Arterial A Underpass Page 4 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' Section 10. SHOOFLY WORK A. The City, at its expense, shall perform all grading, drainage and embankment work for the Shoofly (including the portions at both ends of the Shoofly that the Railroad will be constructing or realigning in order to connect the Shoofly to its existing trackage) to the satisfaction and standards of the Railroad and in compliance with the Plans and all specifications and guidelines furnished by the Railroad to the City. B. If the City or its Contractor needs to bring any borrow material onto the job site to accomplish such grading and embankment work, the borrow material shall be first tested by the City or its Contractor, at the City' s sole expense, to determine if the borrow material is acceptable to Railroad including, without limitation, ensuring (1) that the borrow material meets specifications and standards provided by the Railroad to the City and (ii) that the borrow material does not contain any contamination or naturally occurring radiological material or any other material deemed under any applicable current federal, state or local agency law, statute, rule or regulation to be of environmental concern. C. The City, at its expense, shall supply and lay all sub -ballast material upon the grading and embankment described in Paragraph A above to the standards and satisfaction of the Railroad and in compliance with the Plans and all specifications and guidelines that have been furnished by the Railroad to the City. D. The Railroad, at the City's expense, shall furnish, install and maintain the rail and ties, or shift, realign and maintain the existing railroad tracks, as the case may be, on the portions of the Shoofly that connect to the Railroad' s existing trackage out to the clearance points on the Shoofly. E. Except as set forth in Paragraph D above, the City shall supply and install all ties, track and other material to the satisfaction of the Railroad and in compliance with the Plans and all specifications and guidelines furnished by the Railroad to the City. F. Except as provided in Paragraph D above, during the Project, the City, at its expense, shall maintain and repair the Shoofly to the standards and satisfaction of the Railroad. G. Upon completion of the Project, the Railroad, at the City's expense, shall remove the rail and ties that it installed under Paragraph D above. H. Upon completion of the Project, the City, at its expense, shall remove all rails, ties and ballast installed by it for the Shoofly to the standards and satisfaction of the Railroad and in compliance with the Plans, and all specifications and guidelines, furnished by the Railroad to the City. The City shall retain all salvage with respect to material described in this Paragraph H. Section 11. DEFERRED SEASONING The City acknowledges that conditions inherent in the construction of the Roadway may delay the complete stabilization of the Roadway and Railroad's trackage including, without limitation, new embankment, cuts or fills beyond the construction period. Railroad's operation over such areas during this seasoning period may impose extraordinary maintenance costs in the event of caving, sliding, slipping, sinking or settling, including, without limitation, damage to rip -rapping or protective work in connection therewith, as well as settlement and consolidation of tracks and ballast, until such seasoning period is complete. Therefore, the City shall pay to the Railroad all that 2524-89 City of Round Rock, TX Arterial A Underpass Page 5 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING ANERICA° part of the cost and expense of extraordinary maintenance (hereinafter referred to as "Deferred Seasoning") associated with the Project which can be attributed to the partial or complete failure of sub -grade and/or embankment, settlement, and consolidation of sub -ballast, or roadbed, or any combination thereof, which is incurred during the period commencing immediately following completion of such work by the City or its Contractor and ending five (5) years thereafter. The Deferred Seasoning costs aforesaid shall include reimbursement of the extra cost, in excess of normal maintenance costs, of maintaining embankments and sub -grade and that portion of said tracks above sub -grade in accordance with acceptable maintenance standards, and will include cost of maintaining proper alignment, proper surface and use of ballast and other necessary materials. The work of such Deferred Seasoning repair shall normally be performed by the Railroad either with its own forces or through a responsible contractor employed by the Railroad. Section 12. RAILROAD'S COORDINATION REQUIREMENTS The City, at its expense, shall ensure that the Contractor complies with all of the terms and conditions contained in the Railroad's Coordination Requirements that are described in Exhibit D, attached hereto and hereby made a part hereof, and other special guidelines and/or requirements that the Railroad may provide to the City for this Project. Section 13. EFFECTIVE DATE; TERM; TERMINATION A. This Agreement shall become effective as of the Effective Date first herein written and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. B. The Railroad, if it so elects, may terminate this Agreement effective upon delivery of written notice to the City in the event the City does not commence construction on the portion of the Project located on the Railroad's property within twelve (12) months from the Effective Date. C. If the Agreement is terminated as provided above, or for any other reason, the City shall pay to the Railroad all actual costs incurred by the Railroad in connection with the Project up to the date of termination, including, without limitation, all actual costs incurred by the Railroad in connection with reviewing any preliminary or final Project Plans. Section 14. CONDITIONS TO BE MET BEFORE CITY CAN COMMENCE WORK Neither the City nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and City have executed this Agreement. (ii) The Railroad has provided to the City the Railroad's written approval of the Plans. (iii) Each Contractor has executed Railroad's Contractor's Right of Entry Agreement and has obtained and/or provided to the Railroad the insurance policies, certificates, binders, and/or endorsements set forth in the Contractor's Right of Entry Agreement. (iv) Each Contractor has given the advance notice(s) required under the Contractor' s Right of Entry Agreement to the Railroad Representative named in the Contractor's Right of Entry Agreement. 2524-89 City of Round Rock, TX Arterial A Underpass Page 6 of 7 Revised January 14, 2009 Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' Section 15. FUTURE PROJECTS Future projects involving substantial maintenance, repair, reconstruction, renewal and/or demolition of the Roadway shall not commence until Railroad and City agree on the plans for such future projects, cost allocations, right of entry terms and conditions and temporary construction rights, terms and conditions. Section 16. ASSIGNMENT; SUCCESSORS AND ASSIGNS A. City shall not assign this Agreement without the prior written consent of Railroad. B. Subject to the provisions of Paragraph A above, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Railroad and City. Section 17. CLOSURE AND REMOVAL OF EXISTING PRIVATE ROAD CROSSING Upon the completion of the Roadway, the City agrees to close and the Railroad will remove, at the City's expense, the existing at -grade private road crossing, DOT No. 439-684S, located at Railroad's Mile Post 158.80 on it's Austin Subdivision, in Round Rock, Williamson County, Texas. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date first herein written. UNION PACIFI RAILROAD COMPANY (FedTax ID #94-6001323) By JAMES P. GADE Director Contracts ATTEST: CITY OF ROUND ROCK By 1 it-- ' (/ei41,€ By a )1, . City Clerk (SEAL) 2524-89 City of Round Rock, TX Arterial A Underpass Printed Name: A101 N M-fVtVV Title: N `tly 0 — Pursuant to Resolution/Order No. ei dated M(11,(/(n- 2-11°. , 200 ✓ , hereto attached Page 7 of 7 Revised January 14, 2009 LIST OF EXHIBITS Exhibit A Railroad Location Print Exhibit A - Exhibit A - Exhibit A - Exhibit Exhib Exhibi Exhibi k� � 5NQuy-s. L ""� Yv n� r +: i a in aft rx"' :,+ Mg,gm =-g L°'�"�� 1t t . 1AW ym ici hwaassnlow +'' g Agreement To Pu r7 ".V°#�.MEW,^�y,* Y ",:4` L six w " � x^ � . mitt *e �� allr ► d L at n Pn ,t RIM Showing therossigot NMI 11�NNW GA" ng Area g p; r 4 t . deg _ { pO RE501-2 Tlt RIP MIN FINER MEMNON TWO } s E A 2 LAUREL PATH m 111 0 0 t I RAILROAD LOCATION PRINT OF A NEW OVERPASS GRADE SEPARATION CROSSING CONSTRUCTION PROJECT MP 158.76 -Austin Subdivision Arterial A Underpass - DOT #Pending New Grade Separation Crossing Construction Project Q_.Austin..Subdivision MP 158.80 -Austin Subdivision Private Road Crossing - DOT #4394845 Existing At -Grade Private Road Crossing To Be Removed .874hy Geek vAtiaNw ii suan HERRycy 5 SYCAMORE CV reek CROSSLEYXWG rRt,,L c`Scl 4 co ilk e is DELORME Data use subject to 'cense. ® 2004 DeLorme. Street Ages USAS 2005. www.delorme.com MN(4.8'E) i>• ft 0 1000 2000 Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Shift 1000 feet of mainline track to connect to shoofly track; Renew 308 cross ties in shifted track; and other track & surface work. 2. Minor signal work. 3. Engineering Design Review, Inspection & Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 158.76 GPS: N 30° 31.3473', W 97° 38.2380' ROUND ROCK, WILLIAMSON CO., TX. Location print of an new underpass grade separation crossing construction project with the CITY OF ROUND ROCK. Folder No. 2524-89 Date: November 4, 2008 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print To Puement V W/AIZLIJV w_Lunans ZOOf a A 3 a 3 5 2 2 73 1] L0799 1(199 9(199 9219 A3 ACM Z1'999 A1113 '00.0 4 0799 ,0 9099 91/99 80Z119 Pq tree9 £99 (69SITICHM, 413Sil tn. an . . ... Ml Wert 91111 0001/0/C SIAL11 NW INAVIRA9SOMPVIKTIUM.W.ND 711d 914 9/1 90W EF•11.5123 m. 5 .555 Ss 01r170301510 illel 437:1.1'1.1:.11, Exhibit A-1 Detailed Prints 8 00•8I YLS3NI1 V 74,1,1/3181V 7V_UI1Y91?S X001 ezi a 0 036.3133 01 311 :LV200 313 01'39.63 IA 8 a 2 5 8 77899 k9789 prze9 98-889 W89 c £0789 08789 89789 99799 8c/88 y 380199 c 90789 ,t Ell4d00 ra.m. 013SfreP21.11. 913.511 gm Mel VENVI Q411 frOe7/51/99II0 NarraiddrIdASVROMFAMAka.144A1 ,371i VE' OS A31 911941 4 M799 g p7099 0099 20)89 9099 08v8.9 V099 GSM UN fi'619 a cr *-099 45a 4011d Ur115133 Exhibit A-1 flARFFFPF.Ptf,IJ Detailed Prints • 8 8 00.81 'Y1S 3NI1 MINN 1 i W I.; 6 Mo oops $ ^lSa.l "m tOeO1 a WJI IWSG II 60. g I1I 51 do.of: Je n• 004L 'VIS 3NI1 H31YW V 701211N 7V.LLInBRS %001 (13s?8CWN M3s0 CI - elf 0_ Z W C Q O_' CL H CC J W N OC _J H LL 3� 6G'099 A313,,, ZZZ41LV Ad" tai0 13 81'0G/ VIS avow .1810 ts099 '1619 05099 696!9 09099 8619 4 tsleg "l7 1e'AL.tl Y15 Y IVII13.1.11V 03SCHOtld 3 96'099 A313 A CZ '81.iI Ud 1 -.- 00 '14 .- 00'149 A313 �dddd £Z'89i11 IAd 20'199 AOl3., GZ'SI.II DM' is 08 x089 4 N £0799 00199 10799 .OZ199 ? 0 9 I'I 8 A31i, 05'0i'1.8 U 1P199 Arm 9 8f1e9 0 •l99 22769 o'i cly For uv y 0 /!189 'o 1 dOPld tly1151%3 Md 9g651 3M2 8009/91/5 9.150 M0741.1 8l9PHO8+I APINI ...1. 7111 `", Exhibit A-1 Detailed Prints To Pu €i �c 1hway nderpass A Bement rea PARCEL U.P. RR FN5020 OCTOBER 15, 2008 SAM, Inc. Job No. 28101 FIELD NOTE DESCRIPTION DESCRIPTION OF A 0.956 ACRE TRACT OF LAND (41,646 SQUARE FEET) BEING LOCATED IN THE P.A. HOLDER SURVEY, ABSTRACT NO. 297 IN WILLIAMSON COUNTY, TEXAS; BEING A PORTION OF THAT CERTAIN UNION PACIFIC RAILROAD RIGHT-OF-WAY (A 100' WIDE RIGHT-OF-WAY), BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING at a 1/2" iron rod with cap stamped "SAMINC" found in the southerly right-of-way line of said Union Pacific Railroad right-of-way, said 1/2" Iron rod found being in a northwesterly line of that certain called 107.17 acre tract as described in a Special Warranty Deed from Federal Deposit Insurance Corporation to John Bolt Harris, et al. of record in Volume 2372, Page 112 of the Official Records of Williamson County, Texas, said 107.17 acre tract also described in a Special Warranty Deed recorded as Document No. 2006053683 of the Official Public Records of Williamson County, Texas; from George Keyes Hickox Sr. and Virginia L. Hickox to the Hickox Family Living Trust Dated October 22, 1997; THENCE crossing through said Union Pacific Railroad right-of-way N26°2312"W a distance of 100.00 feet to a calculated point for the northwest corner of this tract, said calculated point being in the northwest right-of- way line of said Union Pacific Railroad right-of-way and in the southeast right-of-way line of State Highway No. 79 (a variable width right-of-way); THENCE with the northwest line of said Union Pacific Railroad right-of-way and the southeast line of said State Highway No. 79 N63°36'48"E, passing a TxDOT type 11 right-of-way monument found at a distance of 53.95 feet for reference, and continuing a distance of 416.46 feet in all to a calculated point for the northeast comer of this tract; THENCE crossing through said Union Pacific Railroad right-of-way S26°23'12"E a distance of 100.00 feet to a 1/2" iron rod with cap stamped "SAMINC" found for the southeast corner of this tract, said 1/2" iron rod found being in the northeast line of that certain called 152.392 acre tract described in a General Warranty Deed from Bison Building Materials, Ltd. to Bison Tract 79, Ltd. of record in Document No. 2007049657 of the Official Public Records of Williamson County, Texas; THENCE with the northwest line of said Bison Tract 79 tract and the northeast line of said 107.17 acre tract S63°36'48"E, a distance of 416.46 feet to the POINT OF BEGINNING and containing 0.956 acres (41,646 square feet) of land, more or less. BEARING BASIS: Air bearings are based on a previous survey performed by SAM, Inc. in 2003. All distances and coordinates are surface values using a combined scale factor of 1.000084953. THE STATE OF TEXAS § COUNTY OF TRAVIS § KNOW ALL MEN BY THESE PRESENTS: That I, Brian D. Scott, a Registered Professional Land Surveyor, do hereby certify that the above description is true and correct to the best of my knowledge and belief and that the property described herein was determined by a survey made on the ground under my direction and supervision. WITNESS MY HAND AND SEAL at Austin, Travis County, Texas this the 15 day of October 2008, A.D. SURVEYING AND MAPPING, Inc 5508 West Highway 290 Building B Austin, Texas 78735 Brian D. Scott Registered Professional Land Surveyor No. 5280 - State of Texas Exhibit A-2 Legal Description A. 1 t 1 el , / PALM VA I. L E No / q x W - �� in I)/ n; • r r� Ex A -a R / W 3 ' V a '\x"3+0 G - 0 0, h Sold Doc bg055 V r > A t\ UNION PACIFIC LEGEND: GRADRASEAARATION ppEEPCRO$SfNG UPRRCO. R/W OUTLINED CADD c:/cadd/2008/252489.dir FILENAME SCAN FILENAME IpOX-10496e:06042s/01246e2010.tif —C:\cadd\2008\252489.dgn 10/31/2008 2:14:47 PM— /6 !x,71 ac - V78 10 LL NOTE: BEFORE YOU BEGIN ANY WORK. SEE AGREEMENT FOR FIBER OPTIC PROVISIONS. Exhibit A-3 UNION PACIFIC RAILROAD COMPANY ROUND ROCK. WILLIAMSON COUNTY. TEXAS M.P. 158.76 - AUSTIN SUBDIVISION TO ACCOMPANY AGREEMENT WITH CITY OF ROUND ROCK SCALE: 1" = 400' OFFICE OF REAL ESTATE OMAHA. NEBRASKA DATE: 10/31/2008 CAA FILE: 2524-89 i SHON f f � HII Awag,MC M. To Public -Iireement V , nderpass g �Y 'i a a -E-,or „r x �E� prose 3 ti' _ 4m On: } 'J 6 TOMS Mod, to ohm: k 1TOM i. ,� 4s,!k L rG 5 Mwis mom jujq r1Z'I m 2 u+n y OW My 1v IRAs 3 w CRY, Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' EXHIBIT B TO PUBLIC HIGHWAY UNDERPASS AGREEMENT TERMS AND CONDITIONS Section 1. CONDITIONS AND COVENANTS A. The Railroad makes no covenant or warranty of title for quiet possession or against encumbrances. The City shall not use or permit use of the Crossing Area for any purposes other than those described in this Agreement. Without limiting the foregoing, the City shall not use or permit use of the Crossing Area for railroad purposes, or for gas, oil or gasoline pipe lines. Any lines constructed on the Railroad's property by or under authority of the City for the purpose of conveying electric power or communications incidental to the City's use of the property for highway purposes shall be constructed in accordance with specifications and requirements of the Railroad, and in such manner as not adversely to affect communication or signal lines of the Railroad or its licensees now or hereafter located upon said property. No nonparty shall be admitted by the City to use or occupy any part of the Railroad's property without the Railroad's written consent. Nothing herein shall obligate the Railroad to give such consent. B. The Railroad reserves the right to cross the Crossing Area with such railroad tracks as may be required for its convenience or purposes. C. The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or unrecorded, and also to any renewals thereof. The City shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the Railroad's property, unless the City at its own expense settles with and obtains releases from such nonparties. D. The Railroad reserves the right to use and to grant to others the right to use the Crossing Area for any purpose not inconsistent with the right hereby granted, including, but not by way of limitation, the right to construct, reconstruct, maintain, operate, repair, alter, renew and replace tracks, facilities and appurtenances on the property; and the right to cross the Crossing Area with all kinds of equipment. The Railroad further reserves the right to attach signal, communication or power lines to the Roadway, provided that such attachments shall comply with City's specifications and will not interfere with the City's use of the Crossing Area. E. So far as it lawfully may do so, the City will assume, bear and pay all taxes and assessments of whatsoever nature or kind (whether general, local or special) levied or assessed upon or against the Crossing Area, excepting taxes levied upon and against the property as a component part of the Railroad's operating property. F. If any property or rights other than the right hereby granted are necessary for the construction, maintenance and use of the Roadway and its appurtenances, or for the performance of any work in connection with the Project, the City will acquire all such other property and rights at its own expense and without expense to the Railroad. Section 2. CONSTRUCTION OF ROADWAY A. The City, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Project, and will furnish the Railroad upon request with satisfactory evidence that such authority has been obtained. B. Except as may be otherwise specifically provided herein, the City, at its expense, will furnish all necessary labor, material and equipment, and shall construct and complete the Roadway and all appurtenances thereof. The appurtenances shall include, without limitation, all necessary and proper drainage facilities, guard rails or barriers, and right of way fences between the Roadway and the railroad tracks. Upon completion of the Project, the City shall remove from the Railroad's property all temporary Roadways and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. C. All construction work of the City upon the Railroad's property (including, but not limited to, construction of the Roadway and all appurtenances and all related and incidental work) shall be performed and completed in a manner satisfactory to the Assistant Vice President Engineering -Design of the Railroad or his authorized representative and in compliance with the Plans, the Railroad's Coordination Requirements set forth in Exhibit D and other guidelines furnished by the Railroad. D. All construction work of the City shall be performed diligently and completed within a reasonable time. No part of the Project shall be suspended, discontinued or unduly delayed without the Railroad's written consent, and subject to such reasonable conditions as the Railroad may specify. It is understood that the Railroad's tracks at and in the vicinity of the work will be in constant or frequent use during progress of the work and that movement or stoppage of trains, engines or cars may cause delays in the work of the City. The City hereby assumes the risk of any such delays and agrees that no claims for damage on account of any delay shall be made against the Railroad by the State and/or the Contractor. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 1 of 4 Exhibit B Terms & Conditions Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING ANERIG° -tion 3. INJURY AND DAMAGE TO PROPERTY If the City, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the City is responsible under the provisions of this Agreement, shall injure, damage or destroy any property of the Railroad or of any other person lawfully occupying or using the property of the Railroad, such property shall be replaced or repaired by the City at the City's own expense, or by the Railroad at the expense of the City, and to the satisfaction of the Railroad's Assistant Vice President Engineering - Design. Section 4. RAILROAD MAY USE CONTRACTORS TO PERFORM WORK The Railroad may contract for the performance of any of its work by other than railroad forces. The Railroad shall notify the City of the contract price within ninety (90) days after it is awarded. Unless the Railroad's work is to be performed on a fixed price basis, the City shall reimburse the Railroad for the amount of the contract. Section 5. MAINTENANCE AND REPAIRS A. The City, at its expense, shall maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Roadway, including the waterproofing and below, and further including, but not limited to, the superRoadway, subRoadway, piers, abutments, walls, approaches and all backfill, grading and drainage required by reason of the Roadway, as well as all graffiti removal or over -painting involving the Roadway. B. The Railroad, at its expense, will maintain, repair and renew, or cause to be maintained, repaired and renewed, above the waterproofing, including, but not limited to, the rails, ties, ballast and communication and signal facilities owned by the Railroad. Section 6. SAFETY MEASURES: PROTECTION OF RAILROAD COMPANY OPERATIONS It is understood and recognized that safety and continuity of the Railroad's operations and communications are of the utmost importance; and in order that the same may be adequately safeguarded, protected and assured, and in order that accidents may be prevented and avoided, it is agreed with respect to all of said work of the City that the work will be performed in a safe manner and in conformity with the following standards: A. Definitions. All references in this Agreement to the City shall also include the Contractor and their respective officers, agents and employees, and others acting under its or their authority; and all references in this Agreement to work of the City shall include work both within and outside of the Railroad's property. B. Compliance With Laws. The City shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The City shall use only such methods as are consistent with safety, both as concerns the City, the City's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The City (without limiting the generality of the foregoing) shall comply with all applicable state and federal occupational safety and health acts and regulations. All Federal Railroad Administration regulations shall be followed when work is performed on the Railroad's premises. If any failure by the City to comply with any such laws, regulations, and enactments, shall result in any fine, penalty, cost or charge being assessed, imposed or charged against the Railroad, the City shall reimburse and, to the extent it may lawfully do so, indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attorneys fees, court costs and expenses. The City further agrees in the event of any such action, upon notice thereof being provided by the Railroad, to defend such action free of cost, charge, or expense to the Railroad. C. No Interference or Delays. The City shall not do, suffer or permit anything which will or may obstruct, endanger, interfere with, hinder or delay maintenance or operation of the Railroad's tracks or facilities, or any communication or signal lines, installations or any appurtenances thereof, or the operations of others lawfully occupying or using the Railroad's property or facilities. D. Supervision. The City, at its own expense, shall adequately police and supervise all work to be performed by the City, and shall not inflict injury to persons or damage to property for the safety of whom or of which the Railroad may be responsible, or to property of the Railroad. The responsibility of the City for safe conduct and adequate policing and supervision of the Project shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad's representatives, or by compliance by the City with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the City will give due consideration to suggestions and recommendations made by such representative for the safety and protection of the Railroad's property and operations. E. Suspension of Work. If at any time the City's engineers or the Vice President -Engineering Services of the Railroad or their respective representatives shall be of the opinion that any work of the City is being or is about to be done or prosecuted without due regard and precaution for safety and security, the City shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. F. Removal of Debris. The City shall not cause, suffer or permit material or debris to be deposited or cast upon, or to slide or fall upon any property or facilities of the Railroad; and any such material and debris shall be promptly removed from the Railroad's property by the City at the City's own expense or by the Railroad at the expense of the City. The City shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow removal from the Crossing Area. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 2 of 4 Exhibit B Terms & Conditions Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° G": Explosives. The City shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroad's Vice President -Engineering Services, which shall not be given if, in the sole discretion of the Railroad's Vice President -Engineering Services, such discharge would be dangerous or would interfere with the Railroad's property or facilities. For the purposes hereof, the "vicinity of the Railroad's property" shall be deemed to be any place on the Railroad's property or in such close proximity to the Railroad's property that the discharge of explosives could cause injury to the Railroad's employees or other persons, or cause damage to or interference with the facilities or operations on the Railroad's property. The Railroad reserves the right to impose such conditions, restrictions or limitations on the transportation, handling, storage, security and use of explosives as the Railroad, in the Railroad's sole discretion, may deem to be necessary, desirable or appropriate. H. Excavation. The City shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, or impair or endanger the clearance between existing or new slopes and the tracks of the Railroad. The City shall not do or cause to be done any work which will or may disturb the stability of any area or adversely affect the Railroad's tracks or facilities. The City, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the City in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the Railroad's Assistant Vice President Engineering - Design to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the Railroad's operations in the vicinity. I. Drainage. The City, at the City's own expense, shall provide and maintain suitable facilities for draining the Roadway and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The City, at the City's own expense, shall provide adequate passageway for the waters of any streams, bodies of water and drainage facilities (either natural or artificial, and including water from the Railroad's culvert and drainage facilities), so that said waters may not, because of any facilities or work of the City, be impeded, obstructed, diverted or caused to back up, overflow or damage the property of the Railroad or any part thereof, or property of others. The City shall not obstruct or interfere with existing ditches or drainage facilities. J. Notice. Before commencing any work, the City shall provide the advance notice that is required under the Contractor's Right of Entry Agreement. K. Fiber Optic Cables. Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and Toss of revenue and profits. City shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the City. If it is, City will telephone the telecommunications company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the Railroad's premises. Section 7. INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the City, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the City shall install adequate temporary warning devices or signs and impose appropriate vehicular control measures to protect the motoring public until the construction or reconstruction of the Roadway has been completed. Section 8. OTHER RAILROADS All protective and indemnifying provisions of this Agreement shall inure to the benefit of the Railroad and any other railroad company lawfully using the Railroad's property or facilities. Section 9. BOOKS AND RECORDS The books, papers, records and accounts of Railroad, so far as they relate to the items of expense for the materials to be provided by Railroad under this Project, or are associated with the work to be performed by Railroad under this Project, shall be open to inspection and audit at Railroad's offices in Omaha, Nebraska, during normal business hours by the agents and authorized representatives of City for a period of three (3) years following the date of Railroad's last billing sent to City. Section 10. REMEDIES FOR BREACH OR NONUSE A. If the City shall fail, refuse or neglect to perform and abide by the terms of this Agreement, the Railroad, in addition to any other rights and remedies, may perform any work which in the judgment of the Railroad is necessary to place the Roadway and appurtenances in such condition as will not menace, endanger or interfere with the Railroad's facilities or operations or jeopardize the Railroad's employees; and the City will reimburse the Railroad for the expenses thereof. B. Nonuse by the City of the Crossing Area for public highway purposes continuing at any time for a period of eighteen (18) months shall, at the option of the Railroad, work a termination of this Agreement and of all rights of the City hereunder. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 3 of 4 Exhibit B Terms & Conditions Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' C. The City will surrender peaceable possession of the Crossing Area and Roadway upon termination of this Agreement. Termination of this Agreement shall not affect any rights, obligations or liabilities of the parties, accrued or otherwise, which may have arisen prior to termination. Section 11. MODIFICATION - ENTIRE AGREEMENT No waiver, modification or amendment of this Agreement shall be of any force or effect unless made in writing, signed by the City and the Railroad and specifying with particularity the nature and extent of such waiver, modification or amendment. Any waiver by the Railroad of any default by the City shall not affect or impair any right arising from any subsequent default. This Agreement and Exhibits attached hereto and made a part hereof constitute the entire understanding between the City and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work or any part thereof. Public Highway Underpass ExB 05-10-08 Standard Form Approved, AVP -Law Page 4 of 4 Exhibit B Terms & Conditions it. DATE: 2008-08-12 ESTIMATE OF MATERIAL AND FnRCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD THIS ESTIMATE GOOD FOR 6 MONTHS EXPIRATION DATE IS :2009-02-10 DESCRIPTION OF WORK: ROUND ROCK,TX /SHOOFLY FOR P&P ARTERIAL A / MP 158.80 AUSTIN SUBDIVISION PORTION OF SHOOFLY TRACK CONSTRUCTION BY UNION PACIFIC: ******************************************.******:******* SHIFT 1000 TF MAINLINE TO CONNECT TO SHOOFLY, RENEW 308 XTIES IN SHIFTED TRACK, 50% RENEWAL RATE. PID: 58465 AWO: 83414 MP,SUBDIV: 158,61, AUSTIN CITY: ROUND ROCK, TX STATE: TX SERVICE UNIT: 12 DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK CONTRACT ENGINEERING 70075 70075 70075 ENGINEERING 3496 3496 3496 LABOR ADDITIVE 236% 73429 73429 73429 PERSONAL EXPENSES 10132 10132 10132 R RI' - Ft15714 15714 15714 STRUCTURES -I 5952 5952 5952 TRACK-INSP 5952 5952 5952 TOTAL ENGINEERING 104543 80207 184750 184750 SIGNAL WORK LABOR ADDITIVE 236% 1080 1080 1080 SALES TAX 2 2 2 SIGNAL 457 69 526 526 TOTAL SIGNAL 1537 71 1608 1608 TRACK & SURFACE WORK BALLAST UNLD 7260 7260 7260 FIELD WELD 4373 4373 4373 LABOR ADDITIVE 236% 158117 158117 158117 MATL STORE EXPENSE 7 7 7 OTM UNLD/DIS 17177 17177 17177 RDXING MATL.BY CONTRACT TF 1905 1905 1905 SALES TAX 10 10 10 TRACK-RELOCA 3520 3520 3520 TRK-SURF,LIN 16754 16754 16754 WELD 255 255 255 XTIES -UNLD 59053 59053 59053 TOTAL TRACK & SURFACE 268159 272 268431 268431 LABOR/MATERIAL EXPENSE 374239 80550 RECOLLECTIBLE/UPRR EXPENSE 454789 ESTIMATED PROJECT COST EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLE MATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS 454789 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. Exhibit C Railroad's Material & Force Account Estimate To Public i hvc a y n erpass Y'w�` ement Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' EXHIBIT D TO PUBLIC HIGHWAY UNDERPASS AGREEMENT RAILROAD COORDINATION REQUIREMENTS 1.01 DEFINITIONS Agreement: Agreement that has been signed, or will be signed, between Railroad and Agency covering the construction and maintenance of the Project. Agency: Name of City AREMA: American Railway Engineering and Maintenance -of -way Association Contractor: The contractor or contractors hired by the Agency to perform any project work on any portion of Railroad's property and shall also include the Contractor's subcontractors and the Contractor's and subcontractor's respective employees, officers and agents, and others acting under its or their authority. Project: Agency's Project Number Agency Project Number covering Purpose Railroad: Union Pacific Railroad Company Railroad Project Railroad's Manager of Industry and Public Projects for this Project - (see Section 1.03) Representative: Railroad MTM Railroad's Manager of Track Maintenance for this Project - (see Section 1.03) Representative: Requirements: The Railroad Coordination Requirements set forth in this Exhibit. 1.02 DESCRIPTION This Project includes construction work within Railroad's right-of-way. These Requirements describe coordination with the Railroad when work by the Contractor will be performed upon, over or under the Railroad right-of-way or may impact current or future Railroad operations. The Contractor will coordinate with the Railroad while performing the work outlined in this Agreement and shall afford the same cooperation with the Railroad as it does with the Agency. All submittals and work shall be completed in compliance with these Requirements, Railroad guidelines and requirements, AREMA recommendations and/or as directed by the Railroad Local Representative. 1.03 UPRR CONTACTS The Railroad Project Representative for this project is: Joe Garcia Manager Industry & Public Projects Union Pacific Railroad Company 1711 Quintana Road San Antonio, TX 78224-0730 Phone: 210-921-6701 FAX: 210-921-4082 Ce11:210-262-4114 For Railroad flagging services and track work, contact the following Railroad MTM Representative: Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 Phone: (512) 255-5966 Fax: (512) 218-4480 1.04 PLANS / SPECIFICATIONS The plans and specifications for this Project, affecting the Railroad, are subject to the written approval by the Railroad. Changes in the plans made after the execution of the Agreement and/or the awarding of the Project to the Contractor are subject to the prior review and written approval of the Agency and the Railroad. No construction work shall commence until final stamped plans and/or Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 1 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' ch, ages to final stamped plans have been reviewed and approved by the Railroad in writing. The Railroad's review and approval of the Agency's and/or Contractor's plans in no way relieves the Agency and Contractor from their responsibilities, obligations and/or liabilities under this Agreement, Agency's agreement with the Contractor for the Project and/or in the separate Contractor's Right of Entry Agreement referenced in Section 1.08. Railroad's approval will be given with the understanding that the Railroad makes no representations or warranty as to the validity, accuracy, legal compliance or completeness of Agency's and/or Contractor's plans and that any reliance by the Agency or the Contractor with respect to such plans is at the risk of the Agency and the Contractor. 1.05 UTILITIES AND FIBER OPTICS A. All installations shall be constructed in accordance with current AREMA recommendations and Railroad specifications and requirements. Railroad general guidelines and the required application forms for utility installations can be found on the Railroad website at http://www.uprr.com/aboutup/re.shtml. B. It shall be the responsibility of the Contractor, at its expense, to make arrangements directly with utility companies involving the protection, encasement, reinforcement, relocation, replacement, removing or abandonment in place of non -railroad facilities affected by the Project. Railroad has no obligation to supply additional Railroad property for non -railroad facilities affected by this Project, nor does the Railroad have any obligation to permit non railroad facilities to be abandoned in place or relocated on Railroad's property. Any facility and/or utility that crosses Railroad right of way must be covered under an agreement with the Railroad including, without limitation, any relocations of an existing facility and/or utility. C. Any longitudinal fiber optic lines on Railroad right of way shall be treated as Railroad facilities. Project design may need to be altered to accommodate such facilities. D. Any fiber optic relocations or protections that are required due to this Project will be at the Agency's expense. 1.06 GENERAL A. It is essential that the proposed construction shall be performed without interference to Railroad operations and in compliance with all applicable Railroad and Federal Railroad Administration rules and regulations. The Railroad shall be reimbursed by the Contractor or Agency for train delay costs and lost revenue claims due to any delays or interruption of train operations resulting from the Contractor's construction or other activities. B. Track protection is required for all work equipment (including rubber tired equipment) operating within 25 feet from nearest rail. All work shall be designed and executed outside the temporary construction clearance envelope defined in Section 1.12. C. The Contractor is also advised that new facilities within the Project may be scheduled to be built by the Railroad and that certain Contractor's activities cannot proceed until that work is complete. The Contractor shall be aware of the limits of responsibilities, allow sufficient time in the schedule for that work to be accomplished and shall coordinate its efforts with the Railroad. 1.07 RAILROAD OPERATIONS A. The Contractor shall be advised that trains and/or equipment should be expected on any track, at any time, and in either direction. The Contractor shall communicate with the Railroad MTM Representative to improve the Contractor's understanding of Railroad traffic volume and operation at the Project site. The Contractor's bid shall be Roadwayd assuming intermittent track windows as defined in Section 1.07 C. B. All Railroad tracks within and adjacent to the Project site are to be assumed as active and rail traffic over these facilities shall be maintained throughout the Project. Activities may include both through moves and switching moves to local customers. Railroad traffic and operations can occur continuously throughout the day and night on these tracks and shall be maintained at all times as defined herein. The Contractor shall coordinate and schedule the work so that construction activities do not interfere with Railroad's operations. C. Work windows for this Project shall be coordinated with the Agency or Contractor and the Railroad Project Representative and the Railroad MTM Representative. Types of work windows include Conditional Work Windows and Absolute Work Windows, as defined below: 1. Conditional Work Window: A period of time in which Railroad's operations have priority over construction activities. When construction activities may occur on and adjacent to the railroad tracks within 25 feet of the nearest track, a Railroad flag person will be required. At the direction of the flag person, upon approach of a train and when trains are present on the tracks, the tracks must be cleared (i.e., no construction equipment, materials or personnel within 25 feet from the nearest active track or as directed by the Railroad MTM Representative). Conditional Work Windows are available for the project subject to Railroad's local operating unit review and approval. 2. Absolute Work Window: A period of time in which construction activities are given priority over Railroad's operations. During this time the designated Railroad track(s) will be inactive for train movements and may be fouled by the Contractor. Before the end of an Absolute Work Window, all Railroad tracks and signals must be completely operational for normal train operations. Also, all Railroad, Public Utilities Commission and Federal Railroad Administration requirements, codes and regulations for operational tracks must be complied with. Should the operating tracks and/or signals be affected, the Railroad will perform inspections of the work prior to placing the affected track back into service. Railroad flag persons will Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 2 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA" PAM IC X11111 be required for construction activities requiring an Absolute Work Window. Absolute Work Windows will generally not be granted. Any request will require a detailed explanation for Railroad review and approval. 1.08 RIGHT OF ENTRY, ADVANCE NOTICE AND WORK STOPPAGES A. Prior to beginning any work within the Railroad right-of-way, the Contractor shall enter into an agreement with the Railroad in the form of the Contractor's Right of Entry Agreement, attached as Exhibit E, or latest version thereof provided by the Railroad. There is a fee for processing of the agreement which shall be borne by the Contractor. The right of entry agreement shall specify working time frames, flagging, inspection and insurance requirements and any other items specified by the Railroad. B. The Contractor shall give advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing work in connection with construction upon or over Railroad's right-of-way and shall observe the Railroad rules and regulations with respect thereto. C. All work upon the Railroad right-of-way shall be done at such times and in such a manner as not to interfere with or endanger the operations of the Railroad. Whenever work may affect the operations or safety of trains, the method of doing such work shall first be submitted to the Railroad MTM Representative for approval, but such approval shall not relieve the Contractor from liability. Any work to be performed by the Contractor, which requires flagging service or inspection service, shall be deferred until the flagging protection required by the Railroad is available at the job site. See Section 1.21 for railroad flagging requirements. D. The Contractor shall make requests in writing to both the Railroad Project Representative and the Railroad MTM Representative for both Absolute and Conditional Work Windows, at least two weeks in advance of any work. The written request must include: 1. Description of work to be done. 2. The days and hours that work will be performed. 3. The exact location of the work and proximity to the tracks. 4. The type of window and amount of time requested. 5. The designated contact person for the Contractor. The Contractor shall provide a written confirmation notice to the Railroad MTM Representative at least fifteen (15) days prior to commencing work in connection with the approved work windows when work will be performed within 25 feet of any track center line. All work shall be performed in accordance with previously approved work plans. E. Should a condition arise from, or in connection with, the work which requires immediate and unusual actions to be made to protect operations and property of the Railroad, the Contractor shall undertake such actions. If, in the judgment of the Railroad MTM Representative, such actions are insufficient, the Railroad MTM Representative may require or provide such actions as deemed necessary. In any event, such actions shall be at the Contractor's expense and without cost to the Railroad. The Railroad or Agency have the right to order the Contractor to temporarily cease operations in the event of an emergency or if, in the opinion of the Railroad MTM Representative, the Contractor's operations may inhibit the Railroads operations. In the event such an order is given, the Contractor shall immediately notify the Agency of the order. 1.09 INSURANCE The Contractor shall not begin work within the Railroad's right-of-way until the Railroad has been furnished the insurance policies, binders, certificates and endorsements required by the Contractor's Right -of -Entry Agreement, and the Railroad Project Representative has advised the Agency that such insurance is in accordance with such Agreement. The required insurance shall be kept in full force and effect during the performance of work and thereafter until the Contractor removes all tools, equipment, and material from Railroad property and cleans the premises in a manner reasonably satisfactory to the Railroad. 1.10 RAILROAD SAFETY ORIENTATION All personnel employed by the Agency, Contractor and all subcontractors must complete the Railroad's course "Orientation for Contractor's Safety" and be registered prior to working on Railroad property. This orientation is available at www.contractororientation.com. This course is required to be completed annually. The precedin training does not apply for longitudinal fiber optic installations. 1.11 COOPERATION The Railroad will cooperate with the Contractor so that work may be conducted in an efficient manner and enable use of Railroad's right-of-way in performing the work. 1.12 CONSTRUCTION CLEARANCES The Contractor shall abide by the twenty-one (21) foot temporary vertical construction clearance defined in section 4.4.1.1 and twelve (12) foot temporary horizontal construction clearance defined in section 4.4.1.2 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. It shall be the Contractor's responsibility to obtain such guidelines from the Agency or Railroad. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 3 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING ANERIG° Reduced temporary construction clearances, which are less than construction clearances defined above, will require special review and approval by the Railroad. Any proposed variance on the specified minimum lenranc:' due tc the Contractor's operations shall be submitted to the Railroad Project Representative through the Agency at least thirty (30) days in advance of the work. No work shall be undertaken until the variance is approved in writing by the Railroad Project Representative. 1.13 SUBMITTALS A. Construction submittals and Requests for Information (RFI) shall be submitted per Section 3.5 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. The minimum review times, as indicated in tables 3-1 and 3-2 of Section 3.5 of the BNSF and UPRR Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. Guidelines for Railroad Grade Separation Projects, should be anticipated for review of all submittals. The details of the construction affecting the Railroad tracks and property, not already included in the contract plans, shall be submitted by the Agency to the Railroad Project Representative for the Railroad's review and written approval before such construction is undertaken. The Railroad shall not be liable to Agency, Contractor, and or any other person or entity if the Railroad's review exceeds a four-week review time. C. As Built Submittals shall be submitted per Section 3.6 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. 1.14 MAINTENANCE OF PROPER DRAINAGE AND DAMAGE TO RAILROAD FACILITIES A. The Contractor, at its expense, shall be required to maintain all ditches and drainage Roadways free of silt or other obstructions which may result from the Contractor's operations and to repair and restore any Railroad property, tracks and facilities of Railroad and/or its tenants. B. The Contractor must submit a proposed method of erosion control and have the method reviewed and approved by the Railroad prior to beginning any grading on the project site. Erosion control methods must comply with all applicable local, state and federal regulations. t15 SITE INSPECTIONS BY RAILROAD PROJECT REPRESENTATIVE, RAILROAD MTM REPRESENTATIVE OR RAILROAD'S CONTRACTOR A. In addition to the office reviews of construction submittals, site observations will be performed by the Railroad Project Representative, Railroad MTM Representative or Railroad's Contractor at significant points during construction per Section 4.11 of BNSF and UPRR Guidelines for Railroad Grade Separation Projects. B. Site inspections are not limited to the milestone events listed in the guidelines. Site visits to check the progress of work may be performed at any time throughout the construction process as deemed necessary by the Railroad. C. A detailed construction schedule, including the proposed temporary horizontal and vertical clearances and construction sequence for all work to be performed, shall be provided by the Contractor to the Agency for submittal to the Railroad's Project Representative for review and approval prior to commencement of work. This schedule shall also include the anticipated dates on which the above listed events will occur. This schedule shall be updated for all critical listed events as necessary but at least monthly so that site visits may be scheduled. 1.16 RAILROAD REPRESENTATIVES A. Railroad representatives, conductors, flag persons or watch persons will be provided by the Railroad at the expense of the Agency or Contractor (as stated elsewhere in these bid documents) to protect Railroad facilities, property and movements of its trains and engines. In general, the Railroad will furnish such personnel or other protective services as follows: 1. When any part of any equipment or object, such as erection or construction activities, is standing or being operated within 25 feet, measured horizontally from centerline, of any track on which trains may operate. 2. For any excavation below the elevation of track subgrade when, in the opinion of the Railroad MTM Representative, the track or other Railroad facilities may be subject to settlement or movement. 3. During any clearing, grubbing, excavation or grading in proximity to Railroad facilities which, in the opinion of the Railroad MTM Representative, may affect Railroad facilities or inhibit operations. 4. During any Contractor's operations when, in the opinion of the Railroad MTM Representative, the Railroad facilities, including, but not limited to, tracks, buildings, signals, wire lines or pipe lines, may be endangered. B. The Contractor shall arrange with the Railroad Local Representative to provide the adequate number of flag persons to accomplish the work. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 4 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° 1'":7 WALKWAYS REQUIRED Parallel to the outer side of each exterior track of multiple operated track and on each side of single operated track, an unobstructed continuous space suitable -for trainman's use in walking along trains, extending in width not less than twelve feet (1-2') perpendicular from centerline of track, shall be maintained. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during working hours must be covered, guarded and/or protected as soon as practical. Walkways with railings shall be constructed by the Contractor over open excavation areas when in close proximity of track, and railings shall not be closer than 9' perpendicular from the center line of tangent track or 9' — 6" horizontal from curved track. 1.18 COMMUNICATIONS AND SIGNAL LINES If required, the Railroad, at Agency's expense, will rearrange its communications and signal lines, grade crossing warning devices, train signals and tracks and facilities that are in use and maintained by Railroad forces in connection with its operation. This work by the Railroad will be done by its own forces or by contractors under a continuing contract and may or may not be a part of the work under this contract. 1.19 TRAFFIC CONTROL The Contractor's operations which control traffic across or around Railroad facilities shall be coordinated with and approved by the Railroad MTM Representative and shall be in compliance with the MUTCD. 1.20 CONSTRUCTION EXCAVATIONS; CALL BEFORE YOU DIG NUMBER A. The Contractor shall be required to take special precautions and care in connection with excavating and shoring. Excavations for construction of footings, piers, columns, walls or other facilities that require shoring shall comply with requirements of OSHA, AREMA and Railroad "Guidelines for Temporary Shoring". B. In addition to calling the "811" number and/or the local "one call center", the Contractor shall call the Railroad's "Call Before Your Dig" number at least 48 hours prior to commencing work at 1-800-336-9193 during normal business hours (6:30 a.m. to 8:00 p.m. Central Standard Time, Monday through Friday, except holidays - also a 24 hour, 7 day a week number for emergency calls) to determine location of fiber optics. If a telecommunications system is buried anywhere on or near Railroad property, the Contractor will co-ordinate with the Railroad and the Telecommunication Company(ies) to arrange for relocation or other protection of the system prior to beginning any work on or near Railroad property. The determination of whether fiber optics will be affected by the Project shall be made during the initial design phase of the Project. C. The Railroad does not allow temporary at grade crossings unless absolutely necessary and there is no alternative route available to contractor to access the project site. Alternative plans should be considered to avoid crossing Railroad tracks at grade. 1.21 RAILROAD FLAGGING Performance of any work by the Contractor in which person(s) or equipment will be within twenty-five (25) feet of any track, or that any object or equipment extension (such as, but not limited to, a crane boom) will reach within twenty-five (25) feet of any track, require railroad flagging services or other protective measures. The Contractor shall give an advance notice to the Railroad as required in the Contractor's Right of Entry Agreement before commencing any such work, allowing the Railroad to determine the need for flagging or other protective measures which ensure the safety of Railroad's operations, employees and equipment. Contractor shall comply with all other requirements regarding flagging services covered by the Contractor's Right of Entry Agreement. Any costs associated with failure to abide by these requirements will be borne by the Contractor. The estimated pay rate for each flag person is $700.00 per day for an 8 -hour work day with time and one-half for overtime, Saturdays, Sundays; double time and one-half for holidays. Flagging rates are set by the Railroad and are subject to change due to, but not limited to, travel time, setup plus, per diem and rest time (if work is required at night). 1.22 CLEANING OF RIGHT-OF-WAY The Contractor shall, upon completion of the work to be performed within the right-of-way and/or properties of the Railroad and adjacent to its tracks, wire lines and other facilities, promptly remove from the Railroad right-of-way all Contractor's tools, implements and other materials whether brought upon the right-of-way by the Contractor or any subcontractors employee or agent of Contractor or of any subcontractor, and leave the right-of-way in a clean and presentable condition to the satisfaction of the Railroad. 1.23 CONTRACTOR'S RESPONSIBILITY OF SUPERVISION The Contractor, at its expense, shall adequately supervise all work to be performed by the Contractor. Such responsibility shall not be lessened or otherwise affected by Railroad's approval of plans and specifications, or by the presence at the work site of the Railroad Project Representative, Railroad MTM Representative or any other Railroad representative or Railroad contractor providing inspection services, or by the compliance by the Contractor with any requests or recommendations made by such representatives. The Contractor will give due consideration to suggestions and recommendations made by such representatives for the safety and protection of the Railroad's property and operations. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 5 of 6 Exhibit D Railroad's Coordination Requirements Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA, 1.24 USE OF EXPLOSIVES AT PROJECT SITE PROHIBITED The Contractor'-- use of explosives at the Project site is expressly prohibited unless authorized in Pdvance-i,n writing by the Railroad Project Representative. Public Highway Underpass ExD 05-10-08 Standard Form Approved, AVP -Law Page 6 of 6 Exhibit D Railroad's Coordination Requirements ilb, Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA" UP Audit No.: UP Real Estate Folder No.: 2524-89 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT THIS AGREEMENT is made and entered into as of the day of , 200, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (NAME OF CONTRACTOR) a corporation ("Contractor"). (State of Incorporation) RECITALS: Contractor has been hired by the City of Round Rock to perform work relating to the construction of the new Arterial A Underpass grade separation crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 158.76 on the Railroad's Austin Subdivision, (DOT No. 440-126V), located in Round Rock, Williamson County, Texas, as such location is shown on the Railroad Location Print marked Exhibit A, and as specified on the Detailed Prints collectively marked Exhibit A-1, each attached hereto and hereby made a part hereof, which work is the subject of a contract dated between the Railroad and the Name of City. (Date of C&MAgreement) Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of performing the work described in the Recitals above. The right herein granted to Contractor is Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law Page 1 of 4 Exhibit E Railroad's Form of CROE Agreement Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' limited to those portions of Railroad's property specifically described herein, or as designated by the Railroad Representative named in Article 4. ARTICLE 3 - TERMS AND CONDITIONS CONTAINED IN EXHIBITS B, C AND D. The terms and conditions contained in Exhibit B, Exhibit C and Exhibit D, attached hereto, are hereby made a part of this Agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 Phone: (512) 255-5966 Fax: (512) 218-4480 Ajay Mehta Manager Signal Maintenance Union Pacific Railroad Company 3601 McKinney Houston, TX 77023 phone: 713-577-0953 fax.• 402-997-4485 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit B. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein provided, or (Expiration Date) at such time as Contractor has completed its work on Railroad's property, whichever is earlier. Contractor agrees to notify the Railroad Representative in writing when it has completed its work on Railroad's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with the (i) insurance binders, policies, certificates and endorsements set forth in Exhibit C of this Agreement, and (ii) the Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law Page 2 of 4 Exhibit E Railroad's Form of CROE Agreement Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° insurance endorsements obtained by each subcontractor as required under Section 12 of Exhibit B of this Agreement. B. All insurance correspondence, binders, policies, certificates and endorsements shall be sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 UP Real Estate Folder No. 2524-89 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, the Contractor shall pay to the Railroad FIVE HUNDRED DOLLARS ($500.00) as reimbursement for clerical, administrative and handling expenses in connection with the processing of this Agreement. ARTICLE 9 - CROSSINGS. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Railroad's trackage shall be installed or used by Contractor without the prior written permission of Railroad. ARTICLE 10 - EXPLOSIVES. Explosives or other highly flammable substances shall not be stored on Railroad's property without the prior written approval of Railroad. Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law Page 3 of 4 Exhibit E Railroad's Form of CROE Agreement Public Highway Underpass 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. Public Highway Underpass ExE 05-10-08 Standard Form Approved, AVP -Law UNION PACIFIC RAILROAD COMPANY (Federal Tax ID No. 94-6001323) By PAUL G. FARRELL Senior Manager Contracts (NAME OF CONTRACTOR) By Printed Name: Title: Page 4 of 4 Exhibit E Railroad's Form of CROE Agreement w s E Z-tl C0 :0 IAURE PA1110 t RAILROAD LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MP 158.76 - Austin Subdivision Arterial A Underpass - DOT #Pending New Grade Separation Crossing Construction Project Austin-S.ubdi.vision- ` , MP 158.80 -Austin Subdivision ,t ` Private Road Crossing - DOT $439-684S Existing At -Grade Private Road Crossing Y-„ To Be Removedtf ;(''` B 4Y meek V,' ydlti, I r 1 ,, SUR 13ERRYcv i A- SY 76/41[ ORE C DELORME c' CROSSLEYXN G Data use subject to license. ® 2004 DeLorme. Street Atlas USA® 2005. www ,delorme .com NMI 0 ft 1000 2000 MN (4 •$, E) Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Shift 1000 feet of mainline track to connect to shoofly track; Renew 308 cross ties in shifted track; and other track & surface work. 2. Minor signal work. 3. Engineering Design Review, Inspection & Flagging. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 158.76 GPS: N 30° 31.3473', W 97° 38.2380' ROUND ROCK, WILLIAMSON CO., TX. To accompany a Contractor's Right of Entry Agreement with (Name of Contractor) for a new underpass grade separation crossing construction project. Folder No. 2524-89 Date: November 4, 2008 WARNING IN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit A Railroad Location Print 1. 8 00+1 'V1S 3NI1 HO1VN1 I' 00.9 iI I. Ii I .. 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Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), orthing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Railroad's track(s) at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law Page 1 of 3 Exhibit B Terms & Conditions CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroau peg sonrrel and decays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law Page 2 of 3 Exhibit B Terms & Conditions CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' S!' ^tion 8. INDEMNITY. A. To the extent not prohibited by applicable statute, Contractor shall indemnify, defend and hold harmless Railroad, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss, damage, -- injury, liability, claim, demand, cost or expense (including, without limitation, attorneys, consultant's and expert's fees, and court costs), fine or penalty (collectively, "loss") incurred by any person (including, without limitation, any indemnified party, contractor, or any employee of contractor or of any indemnified party) arising out of or in any manner connected with (i) any work performed by Contractor, or (ii) any act or omission of Contractor, its officers, agents or employees, or (iii) any breach of this Agreement by Contractor. B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the loss, and shall apply regardless of any negligence or strict liability of any indemnified party, except where the loss is caused by the sole active negligence of an indemnified party as established by the final judgment of a court of competent jurisdiction. The sole active negligence of any indemnified party shall not bar the recovery of any other indemnified party. C. Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by Contractor's own employees. Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the federal employers' liability act against a party to this Agreement may be relied upon or used by Contractor in any attempt to assert liability against Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by Contractor or the termination or expiration of this Agreement. In no event shall this Section 8 or any other provision of this Agreement be deemed to limit any liability Contractor may have to any indemnified party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors. Before Contractor commences any work, the Contractor shall, except to the extent prohibited by law; (1) require each of its subcontractors to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each of its subcontractors to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each of its subcontractors to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute form providing equivalent coverage) for the job site. CROE Agreement ExB 05-10-08 Standard Form Approved, AVP -Law Page 3 of 3 Exhibit B Terms & Conditions CROE Agreement ExC 05-10-08 Standard Form Approved, AVP-Law BUILDING AMEBIC EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE REQUIREMENTS ONION PACIFIC 111111 Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $5,000,000 each occurrence and an aggregate limit of not Tess than $10,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, which must be stated on the certificate of insurance: • Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site. • Designated Construction Project(s) General Aggregate Limit ISO Form CG 25 03 03 97 (or a substitute form providing equivalent coverage) showing the project on the form schedule. B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a combined single limit of not less $5,000,000 for each accident and coverage must include liability arising out of any auto (including owned, hired and non -owned autos). The policy must contain the following endorsements, which must be stated on the certificate of insurance: • Coverage For Certain Operations In Connection With Railroads ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Property" as the Designated Job Site. • Motor Carrier Act Endorsement - Hazardous materials clean up (MCS -90) if required by law. C. Workers' Compensation And Employers' Liability Insurance. Coverage must include but not be limited to: • Contractor's statutory liability under the workers' compensation laws of the state where the work is being performed. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Contractor is self-insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. The policy must contain the following endorsement, which must be stated on the certificate of insurance: • Alternate Employer endorsement ISO form WC 00 03 01 A (or a substitute form providing equivalent coverage) showing Railroad in the schedule as the alternate employer (or a substitute form providing equivalent coverage). D. Railroad Protective Liability Insurance. Contractor must maintain Railroad Protective Liability insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. A binder stating the policy is in place must be submitted to Railroad before the work may be commenced and until the original policy is forwarded to Railroad. E. Umbrella Or Excess Insurance. If Contractor utilizes umbrella or excess policies, these policies must "follow form" and afford no less coverage than the primary policy. F. Pollution Liability Insurance. Pollution liability coverage must be written on ISO form Pollution Liability Coverage Form Designated Sites CG 00 39 12 04 (or a substitute form providing equivalent liability coverage), with limits of at least $5,000,000 per occurrence and an aggregate limit of $10,000,000. If the scope of work as defined in this Agreement includes the disposal of any hazardous or non -hazardous materials from the job site, Contractor must furnish to Railroad evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of $1,000,000 per loss, and an annual aggregate of $2,000,000. CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law Page 1 of 2 Exhibit C Insurance Requirements CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA, Other Requirements G. All policy(ies) required above (except worker's compensation and employers liability) must include Railroad as "Additional Insured" using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad's negligence whether sole or partial, active or passive, and shall not be limited by Contractor's liability under the indemnity provisions of this Agreement. H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless the law governing this Agreement prohibits all punitive damages that might arise under this Agreement. I. Contractor waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees. This waiver must be stated on the certificate of insurance. J. Prior to commencing the work, Contractor shall furnish Railroad with a certificate(s) of insurance, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements in this Agreement. K. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state where the work is being performed. L. The fact that insurance is obtained by Contractor or by Railroad on behalf of Contractor will not be deemed to release or diminish the liability of Contractor, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Contractor or any third party will not be limited by the amount of the required insurance coverage. CROE Agreement ExC 05-10-08 Standard Form Approved, AVP -Law Page 2 of 2 Exhibit C Insurance Requirements CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA' EXHIBIT D TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Contractor as well as all employees of any subcontractor or agent of Contractor. I. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 — latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: • 100 feet of a locomotive or roadway/work equipment • 15 feet of power operated tools • 150 feet of jet blowers or pile drivers • 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized workwear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law Page 1 of 2 Exhibit D Minimum Safety Requirements CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law BUILDING AMERICA° property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • Familiar and comply with Railroad's rules on lockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On - Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. CROE Agreement ExD 05-10-08 Standard Form Approved, AVP -Law Page 2 of 2 Exhibit D Minimum Safety Requirements