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R-84-650 - 10/25/1984RESOLUTION NO. rD/Q WHEREAS, drainage conditions in the Peachtree Subdivision of Round Rock, Texas require improvement; and WHEREAS, said drainage can be improved by installation of two segments of stormwater drain pipe, installation of one certain drain outlet, and cleaning and improvement on one certain existing drainage ditch, all within the right of way of the Missouri Pacific Railroad Company in the City of Round Rock; and WHEREAS, Somerset Joint Venture, composed of Bedico Properties, Ltd. and Equitable Savings Association have entered into an agreement with Missouri Pacific Railroad Company whereby Somerset Joint Venture will install the aforementioned drainage pipes and outlet, and will clean and improve the aforementioned drainage ditch; and WHEREAS, said agreement between Somerset Joint Venture and Missouri Pacific Railroad Company is contingent upon acceptance by the City of Round Rock of responsibility for maintenance of the aforementioned drainage pipes, outlet, and ditch after completion of construction by Somerset Joint Venture; NOW THEREFORE, BE IT RESOLVED BY THE CITY OF ROUND ROCK, TEXAS That the Mayor is hereby authorized and directed to execute on behalf of the City, the Agreement with Missouri Pacific Railroad Company and Somerset Joint Venture for the construction of certain drainage improvements within the right of way of Missouri Pacific Railroad Company, whereby the City of Round Rock agrees to accept responsibility for maintenance of said drainage facilities after completion of said facilities by Somerset Joint Venture, a copy of such agreement being attached hereto and incorporated herein for all purposes. ATTEST: RESOLVED this 7day of ial/ ac_n ), 1984. c` • Lty ecretary -2- MIKE RO$IN ON, Mayor City of Round Rock JA- 5 -23 -84 THIS AGREEMENT, executed in triplicate, this 27th day of September, 1984, by and between MISSOURI PACIFIC RAILROAD COMPANY, a Delaware corporation, hereinafter called "Railroad ", SOMERSET JOINT VENTURE, to be addressed at 1205 Sam Bass Road, Round Rock, Texas 78664, a joint venture comprised of Vedico Properties, Limited (a limited partnership to be addressed at 1205 Sam Bass Road, Round Rock, Texas 78664) and Equitable Savings Association (a Texas corporation to be addressed at 505 Round Rock Avenue, Round Rock, Texas 78664), hereinafter called "Licensee ", and the City of Round Rock, to be addressed at 214 East Main Street, Round Rock, Texas, 78664, a municipal corporation of the State of Texas, hereinafter called "City ", WITNESSETII: R E C I T A L S: In order to improve drainage conditions in the Peach Tree Valley Subdivision to the City of Round Rock, Texas, lying adjacent to Railroad's property, Licensee desires to excavate for and install two (2) segments of 24 -inch, reinforced - concrete Class III storm water drain pipe, install one concrete riprapped drain outlet and clean out and improve an existing drainage ditch, all being along the westerly side of Railroad's right of way in the City of Round Rock, Williamson County, Texas. Subsequent to completion of the above- described drainage improvement work by Licensee, City will accept responsibility for the maintenance of the said drainage pipe, outlet and ditch. Railroad is agreeable to the foregoing but solely upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter contained, the parties hereto agree: 1. Licensee shall, at Licensee's. sole cost and expense, excavate for and install two (2) segments of 24 -inch Class III reinforced - concrete storm water drain pipe and one (1) concrete riprapped drain outlet, and clean out and improve an exist- ing drainage ditch, all hereinafter collectively called "Drainage Facilities ", and being located along the westerly side of Railroad's right of way, between ECS 450+84 and ECS 437 +60, in the Jacob M. Harrell Survey, in Round Rock, Williamson County, Texas, approximately where and as shown on Railroad's Texas District, Palestine Division white print, dated November 15, 1983, marked Exhibit "A ", attached hereto as part hereof. Railroad's right of way upon which said Drainage Facilities are to be located is hereinafter called "Premises ". Railroad's access roadway now located on Premises, in the area of proposed Drainage Facilities, is to be restored by Licen- see upon completion of installation and construction of said Drainage Facilities. 2. Subsequent to completion of Drainage Facilities by Licensee, as set forth in Section 1 hereof, City shall and hereby agrees to take possession of and there- after to properly maintain Drainage Facilities at City's sole cost and expense. 3. Railroad, solely to the extent of its right, title and interest, without any warranty, either express or implied, hereby grants to Licensee and to City, as their respective interests may appear, and to their respective heirs, successors JA- 5 -23 -84 and assigns, license and permission to enter on Premises for the purposes set forth in Sections 1 and 2 hereof, and subject to the terms and conditions hereinafter set forth. This grant is expressly subject and subordinate to the present and future right in Railroad, its successors, assigns, lessees, grantees and licensees to main- tain, use, operate and renew on, beneath or above surface of Premises any telephone, telegraph, power, communication or signal lines, poles and /or appurtenances, tracks, roadways, pipelines, structures, improvements or facilities of similar or different character, as now located, and to construct, install, establish and thereafter main- tain, use, operate and renew on, beneath or above the surface of Premises any or all of said things provided the same do not materially interfere with Licensee's or City's use of Premises as hereinabove provided; provided, further, however, the foregoing conditions for future construction and installation shall not apply to railroad tracks, which Railroad, its successors and assigns, shall have the right to install, construct, maintain and operate on, over or under the Premises at any and all times. Railroad's grant herein is limited to Railroad's right, title and interest in Premises and is made without any warranty of title, express or implied, and no damages shall be recoverable from Railroad because of any dispossession of Licensee or City or because of failure of, defect in, or extinction of Railroad's title. 4. This grant of license and permission is further subject to the following terms, provisions and conditions, which Licensee and City, as their respective in- terests may appear, hereby expressly accept, to wit: (a) Licensee shall not begin, nor permit its contractor to begin, any work of any nature whatsoever on Premises until Licensee or its contractor shall have given Railroad's General Manager at least 24 hours' written notice in ad- vance of starting same. (b) Licensee or its contractor shall perform its work here- under at such times and in such manner as shall be agreed upon between Licensee and Railroad's said General Manager or his duly authorized representative. During the entire progress of Licensee's work on or about Premises, Licen- see or its contractor shall maintain contact and liaison with Railroad's authorized representatives so as to ascer- tain the time of passage of trains at the site of Licensee's work and so as to permit free and safe flow of railroad traffic. All work of Licensee shall be performed without interference with Railroad's tracks and operations and structures or facilities. Licensee or its contractor shall use utmost care in protecting Railroad's and others' property and in avoiding accidents. Upon completion of its work hereunder, Licensee shall leave Premises in a condition satisfactory to Railroad's authorized represen- tative. JA- 5 -23 -84 (c) Licensee shall, at Licensee's sole cost, risk and responsi- bility, furnish or do or cause to be furnished or done any and all things, and when, where and as from time to time required to accomplish whatsoever Licensee attempts or is bound to do at any time hereunder. Said things, including the time and manner of doing any work, each shall conform to the requirements of the Railroad as well as of any State, Federal or Municipal authority. (d) City shall, at its sole cost and to Railroad's satisfaction, maintain the Drainage Facilities in a good and safe condi- tion and keep same free and clear of debris, sediment or obstructive matter which may or could interfere with or im- pede the proper functioning thereof. 5. Licensee shall submit the design of Drainage Facilities to Railroad's General Manager, or his authorized representative, for approval. No work shall be performed in connection with Drainage Facilities prior to receipt of Railroad's approval. No approval by Railroad of Licensee's or its contractor's plans shall relieve Licensee or its contractor of any responsibility or liability hereunder. 6. During any periods when work is being performed on or adjacent to Prem- ises by Licensee or its contractor in connection with the excavating and constructing of Drainage Facilities, Railroad is authorized to furnish flagmen or other protective services or devices and to take such other action as in Railroad's opinion may be necessary for Railroad's protection in the conduct of railroad operations; and Licensee, upon receipt of bill therefor, shall reimburse Railroad for any costs so incurred, such cost to be computed in accordance with Railroad's customary prac- tices. The providing of this service shall not relieve Licensee or its contractor of any responsibility or liability. 7. Licensee shall require any contractor engaged or employed to perform any work hereunder on behalf of Licensee on any part of Premises to procure and keep in effect during the period of such work Workmen's Compensation Insurance in statutory limits, and Contractor's Public Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of bodily injuries to or death of one per- son and, subject to that limit for each person, a total limit of $2,000,000 for all damages arising out of bodily injury to or death of two or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of injury to or destruction of property in any one occurrence and, subject to that limit per occurrence, a total (or aggregate) limit of $2,000,000 for all damages arising out of injury to or destruction of prop- erty during the annual policy period. If any part of the work is sublet, similar insurance shall be provided by or in behalf of the subcontractors to cover their operations. 8. Licensee and City hereby agree that, during the performance of excavating, constructing and maintaining said Drainage Facilities, men, material and machinery shall be kept at least 9 feet from the centerline of Railroad's nearest track and there shall be no crossings of Railroad's tracks except at existing open, public crossings. JA- 5 -23 -84 9. Licensee and City further hereby agree that Railroad shall not, at any time, be required to bear or assume any cost or expense in or incident to the construction and maintenance of the Drainage Facilities; Licensee and /or City, as the case may be, hereby expressly agree to bear and assume all such cost and ex- pense. Licensee hereby agrees to reimburse the Railroad for any and all costs of repairing or replacing any property of Railroad or• others damaged or destroyed as a result of the exercise of the rights herein granted. 10. Licensee shall, and hereby agrees to, assume and discharge, and to protect, indemnify and save harmless Railroad from and against: (a) any and all claims, demands, judgments, loss, cost and expense for injury to or death of any and all persons and damage, loss or destruction to any and all property (includ- ing, but not limited to, the parties hereto and their employes, and the property of said parties and of their said employes) in any manner arising from or growing out of any work done by or for the Licensee in or incident to the installation of Drainage Facilities, or in any manner arising from or growing out of the exis- tence, maintenance or use of Drainage Facilities, and (b) any complaint, claim or damages grounded upon the effect at any time of any water which because of the excavation, maintenance or existence of said Drainage Facilities shall flow upon the lands, crops or improvements of any person or party, regardless of whether any such injury, death, loss, damage or destruction is caused or contributed to by the negligence of Railroad, or of its agents, servants or employes, or otherwise. 11. This agreement shall begin with the date first hereinabove written and continue thereafter for so long as Premises shall be used for the purposes set forth herein; provided, however, if Licensee or City shall abandon the use of Premises, or any part thereof, for such purposes, this license and permission and the rights and privileges granted hereby as to the portion or portions so abandoned shall ex- pire and terminate at the time each such portion shall be so abandoned; whereupon Railroad shall have the same complete title to Premises so abandoned as though these presents had never been executed and the right to enter thereon and exclude therefrom Licensee or pity or their respective successors and assigns. 12. This agreement and all of the covenants and conditions hereof shall inure to or bind each party's heirs, successors and assigns. Any party hereto may waive any default at any time of the other without affecting, or impairing any right aris- ing from, any subsequent or other default. 13. City, when returning this agreement to Railroad (signed), shall cause same to be accompanied by such order, resolution, or ordinance of the governing body of City, passed and approved as by law prescribed, and duly certified, evi- dencing the authority of the person executing this agreement on behalf of City with the power so to do. JA- 5 -23 -84 IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the day and year first hereinabove written. ATTEST: MISSOURI PACIFIC RAILROAD COMPANY Assistant Secretary QEDICO PROPERTIES, LIMITED on behalf of ATTEST: SOMERSET JOINT VENTURE Secretary City Clerk B By Vice President Administrative Partner ATTEST: CITY OF ROUND ROCK (TEXAS) By Mayor PLis.', • / 1= •,) 2c.:,<_...< / Npu•-_.., p-•/.7-,-..y. 1 / : / I : 1 / 5 ,__:;___________/____ _ __ 9 ' 9 N 0 uptscRE7E RI CP- RAs OLD - I - C.:v.'s, MEADOWS 15K. S .0. 6' , ;-'•:,,,.,. , i / 1 _____----7___,' I .; j- [ r r • - , ...,, " ..-- - - , - ,r. I - i .- .1 ; h ...I ,,,,, •,1 •;) ,a a. a: -----z:,, O .3 en i In 1,7. a - (1.1 .- r•-•:'..., I '', 1 " R'r U I i i ,4 • ..'„,,,-... _ 1 .. - ..)•_ ,,,,, -_t - -3- J _t• .1 •=-■-, 2; _7_ U-, • -.t " A' -- LI- _> - IF - Z.. ;71. 7.■ Pki:..;). ;7_ eenomorm. k'S pROr= - r ' , OP:7`. A' r------0 MISSOURI PACIFIC RAILROAD COMPANY DISTRICT 1 DIVISION — • MP OFFICE OF DISTRICT ENGINEER SPHIN(. I t RAS NoTE BOOK - 2. SCALE I Or: OWN BY I DATE k - .t.„ DWG NO • JA- 5 -23 -84 THIS AGREEMENT, executed in triplicate, this 27th day of September, 1984, by and between MISSOURI PACIFIC RAILROAD COMPANY, a Delaware corporation, hereinafter called "Railroad ", SOMERSET JOINT VENTURE, to be addressed at 1205 Sam Bass Road, Round Rock, Texas 78664, a joint venture comprised of Vedico Properties, Limited (a limited partnership to be addressed at 1205 Sam Bass Road, Round Rock, Texas 78664) and Equitable Savings Association (a Texas corporation to be addressed at 505 Round Rock Avenue, Round Rock, Texas 78664), hereinafter called "Licensee ", and the City of Round Rock, to be addressed at 214 East Main Street, Round Rock, Texas, 78664, a municipal corporation of the State of Texas, hereinafter called "City ", WITNESSETH: R E C I T A L S: In order to improve drainage conditions in the Peach Tree Valley Subdivision to the City of Round Rock, Texas, lying adjacent to Railroad's property, Licensee desires to excavate for and install two (2) segments of 24 -inch, reinforced - concrete Class III storm water drain pipe, install one concrete riprapped drain outlet and clean out and improve an existing drainage ditch, all being along the westerly side of Railroad's right of way in the City of Round Rock, Williamson County, Texas. Subsequent to completion of the above - described drainage improvement work by Licensee, City will accept responsibility for the maintenance of the said drainage pipe, outlet and ditch. Railroad is agreeable to the foregoing but solely upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter contained, the parties hereto agree: 1. Licensee shall, at Licensee's sole cost and expense, excavate for and install two (2) segments of 24 -inch Class III reinforced - concrete storm water drain pipe and one (1) concrete riprapped drain outlet, and clean out and improve an exist- ing drainage ditch, all hereinafter collectively called "Drainage Facilities ", and being located along the westerly side of Railroad's right of way, between ECS 450+84 and ECS 437+60, in the Jacob M. Harrell Survey, in Round Rock, Williamson County, Texas, approximately where and as shown on Railroad's Texas District, Palestine Division white print, dated November 15, 1983, marked Exhibit "A ", attached hereto as part hereof. Railroad's right of way upon which said Drainage Facilities are to be located is hereinafter called "Premises ". Railroad's access roadway now located on Premises, in the area of proposed Drainage Facilities, is to be restored by Licen- see upon completion of installation and construction of said Drainage Facilities. 2. Subsequent to completion of Drainage Facilities by Licensee, as set forth in Section 1 hereof, City shall and hereby agrees to take possession of and there- after to properly maintain Drainage Facilities at City's sole cost and expense. 3. Railroad, solely to the extent of its right, title and interest, without any warranty, either express or implied, hereby grants to Licensee and to City, as their respective interests may appear, and to their respective heirs, successors JA- 5 -23 -84 and assigns, license and permission to enter on Premises for the purposes set forth in Sections 1 and 2 hereof, and subject to the terms and conditions hereinafter set forth. This grant is expressly subject and subordinate to the present and future right in Railroad, its successors, assigns, lessees, grantees and licensees to main- tain, use, operate and renew on, beneath or above surface of Premises any telephone, telegraph, power, communication or signal lines, poles and /or appurtenances, tracks, roadways, pipelines, structures, improvements or facilities of similar or different character, as now located, and to construct, install, establish and thereafter main- tain, use, operate and renew on, beneath or above the surface of Premises any or all of said things provided the same do not materially interfere with Licensee's or City's use of Premises as hereinabove provided; provided, further, however, the foregoing conditions for future construction and installation shall not apply to railroad tracks, which Railroad, its successors and assigns, shall have the right to install, construct, maintain and operate on, over or under the Premises at any and all times. Railroad's grant herein is limited to Railroad's right, title and interest in Premises and is made without any warranty of title, express or implied, and no damages shall be recoverable from Railroad because of any dispossession of Licensee or City or because of failure of, defect in, or extinction of Railroad's title. 4. This grant of license and permission is further subject to the following terms, provisions and conditions, which Licensee and City, as their respective in- terests may appear, hereby expressly accept, to wit: (a) Licensee shall not begin, nor permit its contractor to begin, any work of any nature whatsoever on Premises until Licensee or its contractor shall have given Railroad's General Manager at least 24 hours' written notice in ad- vance of starting same. (b) Licensee or its contractor shall perform its work here- under at such times and in such manner as shall be agreed upon between Licensee and Railroad's said General Manager or his duly authorized representative. During the entire progress of Licensee's work on or about Premises, Licen- see or its contractor shall maintain contact and liaison with Railroad's authorized representatives so as to ascer- tain the time of passage of trains at the site of Licensee's work and so as to permit free and safe flow of railroad traffic. All work of Licensee shall be performed without interference with Railroad's tracks and operations and structures or facilities. Licensee or its contractor shall use utmost care in protecting Railroad's and others' property and in avoiding accidents. Upon completion of its work hereunder, Licensee shall leave Premises in a condition satisfactory to Railroad's authorized represen- tative. JA- 5 -23 -84 (c) Licensee shall, at Licensee's sole cost, risk and responsi- bility, furnish or do or cause to be furnished or done any and all things, and when, where and as from time to time required to accomplish whatsoever Licensee attempts or is bound to do at any time hereunder. Said things, including the time and manner of doing any work, each shall conform to the requirements of the Railroad as well as of any State, Federal or Municipal authority. (d) City shall, at its sole cost and to Railroad's satisfaction, maintain the Drainage Facilities in a good and safe condi- tion and keep same free and clear of debris, sediment or obstructive matter which may or could interfere with or im- pede the proper functioning thereof. 5. Licensee shall submit the design of Drainage Facilities to Railroad's General Manager, or his authorized representative, for approval. No work shall be performed in connection with Drainage Facilities prior to receipt of Railroad's approval. No approval by Railroad of Licensee's or its contractor's plans shall relieve Licensee or its contractor of any responsibility or liability hereunder. 6. During any periods when work is being performed on or adjacent to Prem- ises by Licensee or its contractor in connection with the excavating and constructing of Drainage Facilities, Railroad is authorized to furnish flagmen or other protective services or devices and to take such other action as in Railroad's opinion may be necessary for Railroad's protection in the conduct of railroad operations; and Licensee, upon receipt of bill therefor, shall reimburse Railroad for any costs so incurred, such cost to be computed in accordance with Railroad's customary prac- tices. The providing of this service shall not relieve Licensee or its contractor of any responsibility or liability. 7. Licensee shall require any contractor engaged or employed to perform any work hereunder on behalf of Licensee on any part of Premises to procure and keep in effect during the period of such work Workmen's Compensation Insurance in statutory limits, and Contractor's Public Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of bodily injuries to or death of one per- son and, subject to that limit for each person, a total limit of $2,000,000 for all . damages arising out of bodily injury to or death of two or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of injury to or destruction of property in any one occurrence and, subject to that limit per occurrence, a total (or aggregate) limit of $2,000,000 for all damages arising out of injury to or destruction of prop- erty during the annual policy period. If any part of the work is sublet, similar insurance shall be provided by or in behalf of the subcontractors to cover their operations. 8. Licensee and City hereby agree that, during the performance of excavating, constructing and maintaining said Drainage Facilities, men, material and machinery shall be kept at least 9 feet from the centerline of Railroad's nearest track and there shall be no crossings of Railroad's tracks except at existing open, public crossings. 9. Licensee and City further hereby agree that Railroad shall not, at any time, be required to bear or assume any cost or expense in or incident to the construction and maintenance of the Drainage Facilities; Licensee and /or City, as the case may be, hereby expressly agree to bear and assume all such cost and ex- pense. Licensee hereby agrees to reimburse the Railroad for any and all costs of repairing or replacing any property of Railroad or. others damaged or destroyed as a result of the exercise of the rights herein granted. 10. Licensee shall, and hereby agrees to, assume and discharge, and to protect, indemnify and save harmless Railroad from and against: (a) any and all claims, demands, judgments, loss, cost and expense for injury to or death of any and all persons and damage, loss or destruction to any and all property (includ- ing, but not limited to, the parties hereto and their employes, and the property of said parties and of their said employes) in any manner arising from or growing out of any work done by or for the Licensee in or incident to the installation of Drainage Facilities, or in any manner arising from or growing out of the exis- tence, maintenance or use of Drainage Facilities, and (b) any complaint, claim or damages grounded upon the effect at any time of any water which because of the excavation, maintenance or existence of said Drainage Facilities shall flow upon the lands, crops or improvements of any person or party, regardless of whether any such injury, death, loss, damage or destruction is caused or contributed to by the negligence of Railroad, or of its agents, servants or employes, or otherwise. 11. This agreement shall begin with the date first hereinabove written and continue thereafter for so long as Premises shall be used for the purposes set forth herein; provided, however, if Licensee or City shall abandon the use of Premises, or any part thereof, for such purposes, this license and permission and the rights and privileges granted hereby as to the portion or portions so abandoned shall ex- pire and terminate at the time each such portion shall be so abandoned; whereupon Railroad shall have the same complete title to Premises so abandoned as though these presents had never been executed and the right to enter thereon and exclude therefrom Licensee or City or their respective successors and assigns. 12. This agreement and all of the covenants and conditions hereof shall inure to or bind each party's heirs, successors and assigns. Any party hereto may waive any default at any time of the other without affecting, or impairing any right aris- ing from, any subsequent or other default. 13. City, when returning this agreement to Railroad (signed), shall cause same to be accompanied by such order, resolution, or ordinance of the governing body of City, passed and approved as by law prescribed, and duly certified, evi- dencing the authority of the person executing this agreement on behalf of City with the power so to do. - 4 - JA- 5 -23 -84 IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the day and year first hereinabove written. ATTEST: MISSOURI PACIFIC RAILROAD COMPANY Assistant Secretary Secretary City Clerk JA- 5 -23 -84 - 5 - By By Vice President »EDICO PROPERTIES, LIMITED on behalf of ATTEST: SOMERSET JOINT VENTURE Administrat Partner ATTEST: CITY OF ROUND ROCK (TEXAS) By Mayor TO GE-.-.10R GC: rc.)\117 S , ' •Ns • - 7'. 0 -10" P-1 i . 1 1 j_ 1-1_/\1•1 9 R. 0 -1' \ •D ROC.;<- / Npu-...., -- R,A. , _ pr-v-e.tc, .• COWC-RF P- SRAP - , OLD 70v 1+ Ei\DOWS 8 I pc, — — , r `.:1: '4; , 3 1 1 P1R-OP ?-' RC P (C1--/\ 53 ) - (3' _ - Z . HOP.- VER 1 r I ZOO - 7 - -- ..`C - 71 ---- 1 - 71 . - -1' `[.... - .-:-T,------- - - 'Di,/ 1 Ck-Aelt-ANFL "A" \ ..-__.._ s I Li- q 0 ' i . i 1 - 1 VAM - 5 10 ' "n., 20' I ! 7 I ..-- -mg CHAN:\ P,'' T'1 P. SECTION -t-I 1 _ I ti/ 1 . 1 .1 PRO? RCP C S M. ST OR /s/ .S.E\N EP_ PIP F_L-1 NI Pa. assma. 1 12. -- PROP C.-Ct.' . 30X R - R.A\i" , ce.9 0/, OPE CH P...1 L N - E "A" ISA\ PROP° 13 la" trRo--./ tr_i m. EN— TO 71 sT D, q ' R C P \/-1 1 13'1 IZ1-P NOTE BOOK \ S- - 252. DWN BY R\,/p, V's SC11 CC131-4. TE.YAS H A RR.ELI- SCALE. 1" =100' PHIBIT "A" SCALE DATE \ L -15 -E1.S 011 100' DWG NO OFFICE OF DISTRICT ENGINEER. SPRING. TEXAS 7 EX ST. n"-- is" c ARCH-- MISSOURI PACIFIC RAILROAD COMPANY DISTRICT . DIVISION Pol‘LV:-. issUST11 suauxy. C&Eogc,E IND. LEAD ) PROP. 2.4: ST.OR.14\ SEIv`i E-NCRO'C-WiAtiNT TO SER.'? a PE-1-4.1 REE Vr\ Lk-EY /Ap s .5;4- RoL)No THIS AGREEMENT, executed in triplicate, this 27th day of September, 1984, by and between MISSOURI PACIFIC RAILROAD COMPANY, a Delaware corporation, hereinafter called "Railroad ", SOMERSET JOINT VENTURE, to be addressed at 1205 Sam Bass Road, Round Rock, Texas 78664, a joint venture comprised of Vedico Properties, Limited (a limited partnership to be addressed at 1205 Sam Bass Road, Round Rock, Texas 78664) and Equitable Savings Association (a Texas corporation to be addressed at 505 Round Rock Avenue, Round Rock, Texas 78664), hereinafter called "Licensee ", and the City of Round Rock, to be addressed at 214 East Main Street, Round Rock, Texas, 78664, a municipal corporation of the State of Texas, hereinafter called "City ", WITNESSETH: RECITAL S: JA 5 - 23 - 84 In order to improve drainage conditions in the Peach Tree Valley Subdivision to the City of Round Rock, Texas, lying adjacent to Railroad's property, Licensee desires to excavate for and install two (2) segments of 24 -inch, reinforced- concrete Class III storm water drain pipe, install one concrete riprapped drain outlet and clean out and improve an existing drainage ditch, all being along the westerly side of Railroad's right of way in the City of Round Rock, Williamson County, Texas. Subsequent to completion of the above - described drainage improvement work by Licensee, City will accept responsibility for the maintenance of the said drainage pipe, outlet and ditch. Railroad is agreeable to the foregoing but solely upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter contained, the parties hereto agree: 1. Licensee shall, at Licensee's sole cost and expense, excavate for and install two (2) segments of 24 -inch Class III reinforced- concrete storm water drain pipe and one (1) concrete riprapped drain outlet, and clean out and improve an exist- ing drainage ditch, all hereinafter collectively called "Drainage Facilities ", and being located along the westerly side of Railroad's right of way, between ECS 450+84 and ECS 437+60, in the Jacob M. Harrell Survey, in Round Rock, Williamson County, Texas, approximately where and as shown on Railroad's Texas District, Palestine Division white print, dated November 15, 1983, marked Exhibit "A ", attached hereto as part hereof. Railroad's right of way upon which said Drainage Facilities are to be located is hereinafter called "Premises ". Railroad's access roadway now located on Premises, in the area of proposed Drainage Facilities, is to be restored by Licen- see upon completion of installation and construction of said Drainage Facilities. 2. Subsequent to completion of Drainage Facilities by Licensee, as set forth in Section 1 hereof, City shall and hereby agrees to take possession of and there- after to properly maintain Drainage Facilities at City's sole cost and expense. 3. Railroad, solely to the extent of its right, title and interest, without any warranty, either express or implied, hereby grants to Licensee and to City, as their respective interests may appear, and to their respective heirs, successors - 2 - JA- 5 -23 -84 and assigns, license and permission to enter on Premises for the purposes set forth in Sections 1 and 2 hereof, and subject to the terms and conditions hereinafter set forth. This grant is expressly subject and subordinate to the present and future right in Railroad, its successors, assigns, lessees, grantees and licensees to main- tain, use, operate and renew on, beneath or above surface of Premises any telephone, telegraph, power, communication or signal lines, poles and /or appurtenances, tracks, roadways, pipelines, structures, improvements or facilities of similar or different character, as now located, and to construct, install, establish and thereafter main- tain, use, operate and renew on, beneath or above the surface of Premises any or all of said things provided the same do not materially interfere with Licensee's or City's use of Premises as hereinabove provided; provided, further, however, the foregoing conditions for future cdnstruction and installation shall not apply to railroad tracks, which Railroad, its successors and assigns, shall have the right to install, construct, maintain and operate on, over or under the Premises at any and all times. Railroad's grant herein is limited to Railroad's right, title and interest in Premises and is made without any warranty of title, express or implied, and no damages shall be recoverable from Railroad because of any dispossession of Licensee or City or because of failure of, defect in, or extinction of Railroad's title. 4. This grant of license and permission is further subject to the following terms, provisions and conditions, which Licensee and City, as their respective in- terests may appear, hereby expressly accept, to wit: (a) Licensee shall not begin, nor permit its contractor to begin, any work of any nature whatsoever on Premises until Licensee or its contractor shall have given Railroad's General Manager at least 24 hours' written notice in ad- vance of starting same. (b) Licensee or its contractor shall perform its work here- under at such times and in such manner as shall be agreed upon between Licensee and Railroad's said General Manager or his duly authorized representative. During the entire progress of Licensee's work on or about Premises, Licen- see or its contractor shall maintain contact and liaison with Railroad's authorized representatives so as to ascer- tain the time of passage of trains at the site of Licensee's work and so as to permit free and safe flow of railroad traffic. All work of Licensee shall be performed without 6 interference with Railroad's tracks and operations and structures or facilities. Licensee or its contractor shall use utmost care in protecting Railroad's and others' property and in avoiding accidents. Upon completion of its work hereunder, Licensee shall leave Premises in a condition satisfactory to Railroad's authorized represen- tative. JA- 5 -23 -84 (c) Licensee shall, at Licensee's sole cost, risk and responsi- bility, furnish or do or cause to be furnished or done any and all things, and when, where and as from time to time required to accomplish whatsoever Licensee attempts or is bound to do at any time hereunder. Said things, including the time and manner of doing any work, each shall conform to the requirements of the Railroad as well as of any State, Federal or Municipal authority. (d) City shall, at its sole cost and to Railroad's satisfaction, maintain the Drainage Facilities in a good and safe condi- tion and keep same free and clear of debris, sediment or obstructive matter which may or could interfere with or im- pede the proper functioning thereof. 5. Licensee shall submit the design of Drainage Facilities to Railroad's General Manager, or his authorized representative, for approval. No work shall be performed in connection with Drainage Facilities prior to receipt of Railroad's approval. No approval by Railroad of Licensee's or its contractor's plans shall relieve Licensee or its contractor of any responsibility or liability hereunder. 6. During any periods when work is being performed on or adjacent to Prem- ises by Licensee or its contractor in connection with the excavating and constructing of Drainage Facilities, Railroad is authorized to furnish flagmen or other protective services or devices and to take such other action as in Railroad's opinion may be necessary for Railroad's protection in the conduct of railroad operations; and Licensee, upon receipt of bill therefor, shall reimburse Railroad for any costs so incurred, such cost to be computed in accordance with Railroad's customary prac- tices. The providing of this service shall not relieve Licensee or its contractor of any responsibility or liability. 7. Licensee shall require any contractor engaged or employed to perform any work hereunder on behalf of Licensee on any part of Premises to procure and keep in effect during the period of such work Workmen's Compensation Insurance in statutory limits, and Contractor's Public Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of bodily injuries to or death of one per- son and, subject to that limit for each person, a total limit of $2,000,000 for all damages arising out of bodily injury to or death of two or more persons in any one occurrence, and Property Damage Liability Insurance providing for a limit of not less than $1,000,000 for all damages arising out of injury to or destruction of property in any one occurrence and, subject to that limit per occurrence, a total (or aggregate) limit of $2,000,000 for all damages arising out of injury to or destruction of prop- erty during the annual policy period. If any part of the work is sublet, similar insurance shall be provided by or in behalf of the subcontractors to cover their operations. 8. Licensee and City hereby agree that, during the performance of excavating, constructing and maintaining said Drainage Facilities, men, material and machinery shall be kept at least 9 feet from the centerline of Railroad's nearest track and there shall be no crossings of Railroad's tracks except at existing open, public crossings. JA- 5 -23 -84 9. Licensee and City further hereby agree that Railroad shall not, at any time, be required to bear or assume any cost or expense in or incident to the construction and maintenance of the Drainage Facilities; Licensee and /or City, as the case may be, 'hereby expressly agree to bear and assume all such cost and ex- pense. Licensee hereby agrees to reimburse the Railroad for any and all costs of repairing or replacing any property of Railroad or others damaged or destroyed as a result of the exercise of the rights herein granted. 10. Licensee shall, and hereby agrees to, assume and discharge, and to protect, indemnify and save harmless Railroad from and against: (a) any and all claims, demands, judgments, loss, cost and expense for injury to or death of any and all persons and damage, loss or destruction to any and all property (includ- ing, but not limited to, the parties hereto and their employes, and the property of said parties and of their said employes) in any manner arising from or growing out of any work done by or for the Licensee in or incident to the installation of Drainage Facilities, or in any manner arising from or growing out of the exis- tence, maintenance or use of Drainage Facilities, and (b) any complaint, claim or damages grounded upon the effect at any time of any water which because of the excavation, maintenance or existence of said Drainage Facilities shall flow upon the lands, crops or improvements of any person or party, regardless of whether any such injury, death, loss, damage or destruction is caused or contributed to by the negligence of Railroad, or of its agents, servants or employes, or otherwise. 11. This agreement shall begin with the date first hereinabove written and continue thereafter for so long as Premises shall be used for the purposes set forth herein; provided, however, if Licensee or City shall abandon the use of Premises, or any part thereof, for such purposes, this license and permission and the rights and privileges granted hereby as to the portion or portions so abandoned shall ex- pire and terminate at the time each such portion shall be so abandoned; whereupon Railroad shall have the same complete title to Premises so abandoned as though these presents had never been executed and the right to enter thereon and exclude therefrom Licensee or City or their respective successors and assigns. 12. This agreement and all of the covenants and conditions hereof shall inure to or bind each party's heirs, successors and assigns. Any party hereto may waive any default at any time of the other without affecting, or impairing any right aris- ing from, any subsequent or other default. 13. City, when returning this agreement to Railroad (signed), shall cause same to be accompanied by such order, resolution, or ordinance of the governing body of City, passed and approved as by law prescribed, and duly certified, evi- dencing the authority of the person executing this agreement on behalf of City with the power so to do. IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the day and year first hereinabove written. .TA- 5 -23 -84 ATTEST: MISSOURI PACIFIC RAILROAD COMPANY Assistant Secretary By 'PEDICO PROPERTIES, LIMITED on behalf of ATTEST: SOMERSET JOINT VENTURE Secretary City Clerk ATTEST: CITY OF ROUND ROCK (TEXAS) By Vice President Administrativ Partner artner Mayor „„,•••••\ • .. -•” : R. rc) • --. __((/ •.--- / . , • .-''`,,, 0 .... 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DATE JOB NO. ATTENTION 11 E. — WE ARE SENDING YOU W ❑ Under separate cover via' the following items: ❑ Shop drawings ❑ Prints ❑ Plans ' ❑ Samples ❑ Specifications . ❑ Copy of letter ❑ Change order ' • 1 4 LT C c rSS 6 t >4 c (-S E'- f N T COPIES DATE NO. DESCRIPTION - THESE ARE TRANSMITTED as checked below: ❑ Resubmit copies for approval ❑ Submitcopies for distribution ❑ Retur corrected prints ❑ For approval ❑ Approved as submitted ❑ For your use ❑ Approved as noted — ❑ As requested ❑ Returned for corrections ❑ For review and comment ❑ ❑ c FF � OR BIDS DUE 19 ❑ 'PRINTS RETURNED AFTER LOAN TO US REMARKS v'�O� -- 3 - 0- e lc _ (/.�DS.' r,v :,Rw 4- I 0.'�-{'o.Q,L. la 4:,,,„ 0.gc .�w-c — �/ ►'w (A- v.. L $ - _DA_ t, dtn � s` 4<a+,�,. (`,uk . t`(04 a A . _ r S T w+ * . C -C1 w to 4-41--s„„ 'ts I ( /F COPY TO . PRODUCT NM (,,nrJi . Dan Yea 0101 co-f z rt,--' SIGNED: . If enclosures are not as noted, kindly notify us at once. e FOR L DATE /GPI i TIME 1/. 0 ( ) PTVI M 44 1 OF TELEPHONED PHONE nZ SS - . c'en5 RETURNED YOUR CALL AREA CODE MESSAGE NU SER EXTENSION PLEASE CALL Wits CALL AGAIN CAME TO SEE YOU WANTS TO SEE YOU SIG ED TOP F ORM4003 J y..