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R-06-02-09-10C4 - 2/9/2006RESOLUTION NO. R -06-02-09-10C4 WHEREAS, in connection with the A.W. Grimes Boulevard Improvements, Phase II, the Union Pacific Railroad Company ("UPRR") bridge over Brushy Creek must be reconstructed to accommodate the new roadway, and WHEREAS, the Council wishes to enter into a Public Road Crossing Agreement with UPRR, 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 Public Road Crossing Agreement with Union Pacific Railroad Company, a copy of same being attached hereto as Exhibit 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 9th day of February, VtAll ST: . ies, CHRISTINE R. MARTINEZ, City Secreta NY ;�! WELL, ayor City of Round Rock, Texas @PFDesktop\::ODMA/WORLDOX/0:/WDOX/RESOLUTI/R60209C4.WPD/sc UPRR Folder No.: 2356-83 PUBLIC ROAD CROSSING AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY CONS TR NI USE OF A AGE RAILRO BDIVISION 2` IN OR NEAR ROUND ROCK WILLIAMSON COUNTY, TEXAS EXHIBIT b a "Ail Political Body Original ACIFIC BUILDING AMERICA UPRR Folder No.: 2356-83 Agreement Number: PUBLIC ROAD CROSSING AGREEMENT A.W. Grimes Boulevard — DOT No.: 924 253L Railroad Mile Post 159.90 — Austin Subdivision Round Rock, Williamson County, Texas THIS AGREEMENT is made and entered into as of the day of 2006, 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 (the "Railroad") and the CITY OF ROUND ROCK, a Texas municipal corporation to be addressed at 221 East Main Street, Round Rock, TX 78664 (the "Political Body"), RECITALS: The Political Body desires to undertake as its project (the "Project"): • the construction of a new roadway bridge and new roadway for A.W. Grimes Boulevard under an existing railroad bridge structure. The new roadway and roadway bridge will traverse the Railroad's property and cross Brushy Creek at Railroad Milepost 159.90. on Railroad's Austin subdivision at DOT No. 924 253L at or near Round Rock, Williamson County, Texas (the "Crossing Area") as the. Crossing Area is generally shown on the location print marked Exhibit A attached hereto and hereby made a part hereof. The portion of the Political Body's roadway and roadway bridge located within the Crossing Area is hereinafter collectively the "Roadway". The Railroad will undertake as its project: • the reconstruction of an existing Railroad structure consisting of an open deck superstructure replaced with a closed deck superstructure and the rehabilitation of the Railroad bridge substructure (two abutments and 5 piers) and incidental track work to facilitate the rehabilitated structure. The structure that will carry the Railroad's locomotives and rail cars over Brushy Creek at A.W. Grimes Boulevard, DOT Number 924 253L, at Railroad Mile Post 159.90 on its Austin Subdivision at or near Round Rock, Williamson County, Texas, is hereinafter referred to as the "Structure". In order to facilitate the Political Body's construction and use of the Roadway, the Political Body has agreed to bear a portion of the cost involving the Structure as provided in this Agreement. The Railroad and the Political Body are entering into this Agreement to cover the above. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Standard Form Approved, AVP -Law — 3/4/05 Page 1 of 5 BUILDING AMERICA" UPRR Folder No.: 2356-83 AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: ARTICLE 1- EXHIBITS B AND C. The general terms and conditions marked Exhibit B and the Contractor's Right of Entry Agreement marked Exhibit C, are attached hereto and hereby made a part hereof. ARTICLE 2- RAILROAD GRANTS RIGHT. For and in consideration of the Political Body's payments to the Railroad as provided in Article 4 and the Political Body's agreement to perform and abide by the terms of this Agreement including Exhibit B, the Railroad hereby grants to the Political Body the right to establish, construct, maintain, repair or renew and reconstruct the Roadway under the Structure and across the Crossing Area. ARTICLE 3- NO ROADWAY PROJECT EXPENSES TO BE BORNE BY RAILROAD. The Political Body agrees that no Project costs and expenses involving the Roadway are to be borne by the Railroad. ARTICLE 4- POLITICAL BODY'S PAYMENT TO RAILROAD. A. The existing Structure, which is an open deck design, will not allow enough vertical clearance to accommodate the Political Body's Roadway and the Project. In order to provide enough clearance for the Political Body's Roadway, the Railroad will be redesigning and reconstructing the Structure to make it a closed deck bridge and the Political Body agrees to pay the Railroad, as provided in Paragraph B below, the costs associated with replacing two spans of the redesigned and reconstructed Structure. B. With respect to Paragraph A above, the Political Body agrees to pay to the Railroad a firm, fixed amount of One Million Seven Hundred Seven Thousand Two Hundred Twenty Eight Dollars ($1,707,228.00) in the following installment payments: (i) $569,076.00 within thirty (30) days after the execution of this Agreement, (ii) $569,076.00 within thirty days after the Railroad notifies the Political Body that reconstruction of the Structure is fifty percent (50%) complete, and (iii) $569,076.00 within thirty (30) days after the Railroad notifies the Political Body that reconstruction of the Structure has been completed. C. The Railroad agrees that all costs exceeding $1,707,228.00 involving the reconstruction of the Structure shall be borne by the Railroad. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Standard Form Approved, AVP -Law — 3/4/05 Page 2 of 5 BUILDING AMERICA- ARTICLE MERICA ARTICLE 5- PLANS. UPRR Folder No.: 2356-83 A. The Political Body, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for its Roadway Project and submit such plans and specifications to the Railroad's Assistant Vice President Engineering — Design, or his authorized representative, for review and approval. The plans and specifications shall include all appurtenances and associated drainage. B. The fmal one hundred percent (100%) completed plans for the Roadway Project 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. Notwithstanding the Railroad's approval of the Plans, the Railroad shall not be responsible for the design, details, permitting or construction of the Roadway and associated drainage. ARTICLE 6 - DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the Political Body 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. ARTICLE 7 - CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. If the Political Body will be hiring a Contractor to perform any work involving the Project (including initial construction and any subsequent relocation or maintenance and repair work), the Political Body 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 before allowing any Contractor to commence any work involving the Roadway. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit C, attached hereto and hereby made a part hereof. The Political Body 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 Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Standard Form Approved, AVP -Law — 3/4/05 Page 3 of 5 BUILDING AMERICA UPRR Folder No.: 2356-83 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 UPRR Folder No. 2356-83 D. If the Political Body's own employees will be performing any of the Project work, the Political Body may self -insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. ARTICLE 8 - FEDERAL AID POLICY GUIDE If the Political Body 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. ARTICLE 9 - FLAGGING TO BE PERFORMED BY THE RAILROAD A. During the Roadway Project, the Railroad shall provide flagging as deemed necessary by the Railroad. The Railroad's estimated flagging rate is: Seven Hundred Dollars ($700.00) per day. The Railroad and the Political Body acknowledge that the $700.00 rate is an estimate only and that actual flagging costs may be less or more than such estimate. B. The Political Body agrees to reimburse the Railroad for all actual flagging costs incurred by the Railroad within thirty (30) days of the Political Body's receipt of flagging bills from the Railroad. ARTICLE 10 POLITICAL BODY GRANTS RAILROAD USE OF PROPERTY TO RECONSTRUCT STRUCTURE. The Political Body, at no cost to the Railroad, hereby grants to the Railroad the right to use property owned by the Political Body (including the right of ingress and egress to such property) that the Railroad will need in order to reconstruct the Structure. ARTICLE 11- EFFECTIVE DATE; TERM; TERMINATION. This Agreement shall become effective as of the date first herein written, or the date work commences on the Project, whichever is earlier, and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Standard Form Approved, AVP -Law — 3/4/05 Page 4 of 5 BUILDING AMERICAA" UPRR Folder No.: 2356-83 ARTICLE 12 - CONDITIONS TO BE MET BEFORE POLITICAL BODY CAN COMMENCE ROADWAY PROJECT WORK. Neither the Political Body nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and Political Body have executed this Agreement. (ii) The Railroad has provided to the Political Body 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By TONY K. LOVE General Manager — Real Estate ATTEST: CITY OF ROUND ROCK By (Seal) Public Road Crossing Underpass Agreement Standard Form Approved, AVP -Law — 3/4/05 Title: Pursuant to Resolution/Order No. dated , 200 , hereto attached. 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SYS""'a.::<?tn.V::2;9;.,a,<.bxS.-r.:r w N s �-E WAYNE 0R or z KAROLYI UR LkAo ro LLI o I— z Ct w 0 w to J LOCATION PRINT OF NEW UNDERPASS PUBLIC ROAD CROSSING CONSTRUCTION PROJECT MP 1 59.90 - Austin Subdivision A.V. Grimes Boulevard - DOT #924 253L New Underpass Grade Separation Crossing Construction Project w,.,, c, a) Z EP "rIMBERLINE LAR CS GARDEN PATH ui. w PT4SQk Si Data use subject to license. © 2004 DeLorme. Street Atlas USA@ 2005. www.delorme.com ,-A istin Subdivision B4Ay 'eek SUGAR BERRYc' MP 159.90 - Austin Subdivision Existing Railroad Bridge Over Brushy Creek to be Replaced MAPLE RUN DR MN (5.2° E) Qs4 0 lig MIN ft 0 1000 2000 Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Railroad will pay for the costs associated with the replacement of 4 of the 6 bridge piers. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 159.90 GPS: N 30° 30.8368', W 97° 39.3610' ROUND ROCK, WILLIAMSON CO., TX. Illustrative print showing location of a new underpass grade separation crossing construction project with the CITY OF ROUND ROCK. Folder No. 2356-83 Date: January 20, 2006 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 Location Print To Public Road Crossing Agreement L Public Road Crossing Agreement ExB BUILDING AMERICA- Non Standard Form, Approved AVP -Law — 01/19/06 EXHIBIT B TO PUBLIC ROAD CROSSING 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 Political Body 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 Political Body 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 Political Body for the purpose of conveying electric power or communications incidental to the Political Body'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 Political Body 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 maybe required for its convenience or purposes in such manner as not unreasonably to interfere with its use as a public highway c) The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or not, and also to any renewals thereof. The Political Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the railroad property, unless the Political Body at its own expense settles with and obtains releasesfrom 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; also 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 any highway facilities located upon the property, provided that such attachments shall comply with Political Body's specifications and will not interfere with the use of the Crossing Area. e) So far as it lawfully may do so, the Political Body 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 Structure and its appurtenances, or for the performance of any work in connection with the Project, the Political Body 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 Political Body, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Roadway and 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 Political Body, at its expense, will furnish allnecessary 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 and right of way fences along the Roadway. Upon completion of the Project, the Political. Body shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. c) All construction work of the Political Body 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 accordance with the Plans or and other guidelines furnished by the Railroad. d) All construction work of the Political Body shall be performed diligently and completed within a reasonable time, and in any event within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad's Assistant Vice President Engineering - Design. 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. Public Road Crossing Agreement Terms of Agreement Exhibit B Standard Form, Approved AVP -Law Page 1 of 4 To Public Road Crossing Agreement BUILDING AMERICA - Public Road Crossing Agreement ExB Non Standard Form, Approved AVP -Law — 01/19/06 It is understood that the Railroad's reconstruction of the Structure will take precedence over the Political Body's Roadway Project and that Railroad's work on the Structure may cause delays to the Political Body's Project. The Railroad and Political Body's representatives shall coordinate work involving the Structure and the Roadway but the Political Body acknowledges that the Railroad's work involving the Structure may cause delays to the Project and that the Political Body and any Contractor assume the risk of any such delays and agree that no claims for damage on account of any delay shall be made against the Railroad. SECTION 3 - INJURY AND DAMAGE TO PROPERTY If the Political Body, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the Political Body 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 Political Body at the Political Body's own expense, or by the Railroad at the expense of the Political Body, and to the satisfaction of the Railroad's Assistant Vice President Engineering - Design. SECTION 4 - MAINTENANCE AND REPAIRS The Political Body, at its expense, shall maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and the Roadway. SECTION 5 - SAFETY MEASURES; PROTECTION OF RAILROAD'S 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 Political Body 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.. Political Body shall also include the Contractor, .and all references in this Agreement to work of the Political Body shall include work both within and outside of the Railroad'sproperty. b) Compliance With Laws. The Political Body shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Political Body (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 Political Body 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 Political Body shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including. without limitation attorney's fees, court costs and expenses. The Political Body 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 Political Body 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 Political Body, at its own expense, shall adequately police and supervise all work to be performed by the Political Body, 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 Political Body 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 Political Body with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the Political Body 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 Political Body'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 Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. f) Removal of Debris. The Political Body 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 Political Body at the Political Body's own expense or by the Railroad at the expense of the Political Body. The Political Body shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow Public Road Crossing Agreement Terms of Agreement Exhibit B Standard Form, Approved AVP -Law Page 2 of 4 To Public Road Crossing Agreement Public Road Crossing Agreement ExB BUILDING AMERICA- Non Standard Form, Approved AVP -Law — 01/19/06 removal from the Crossing Area. g) Explosives. The Political Body 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 Political Body 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 Political Body shall not do or cause to be done any work which will or maydisturb the stability of any area or adversely affect the Railroad's tracks or facilities. The Political Body, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the Political Body in connection with construction, maintenance or other work. The shoring and cribbing shall be constructed and maintained with materials and in a mannerapproved 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 Political Body, at the Political Body's own expense, shall provide and maintain suitable facilities for draining the Structure and its appurtenances, . and shall not suffer or permit drainage water therefrom to flow or collect upon property of. the Railroad. The Political Body, at the Political Body.'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 Political Body, 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 Political Body shall not obstruct or.interfere with existing ditches orr drainage facilities. j) Notice. Before commencing any work, .the Political Body shall provide at least ten (10) days prior notice (excluding weekends and. holidays) to the Railroad's .Manager -Track Maintenance. 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. Political Body shalltelephone 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 Political Body. If it is, Political Body 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 6 - INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated warning devices should be installed at the Crossing Area, the Political Body 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 Structure has been completed. SECTION 7 - 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 8 - REMEDIES FOR BREACH OR NONUSE a) If the Political Body 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 its property, 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 Political Body will reimburse the Railroad for the expenses thereof. b) Nonuse by the Political Body 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 Political Body hereunder. Public Road Crossing Agreement Standard Form, Approved AVP -Law Terms of Agreement Exhibit B Page 3 of 4 To Public Road Crossing Agreement BUILDING AMERICA" Public Road Crossing Agreement ExB Non Standard Form, Approved AVP -Law — 01/19/06 c) The Political Body will surrender peaceable possession of the Crossing Area upon termination of this Agreement and shall remove all portions of the Roadway from the Crossing Area to the satisfaction of the Railroad and failing which, the Railroad may, at its election, perform such removal at the Political Body's expense. 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 9 - 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 Political Body 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 Political Body 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 Political Body 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. SECTION 10 - ASSIGNMENT: SUCCESSORS AND ASSIGNS This Agreement shall not be assigned without the written consent of the Railroad. Subject hereto, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns: Public Road Crossing Agreement Standard Form, Approved AVP -Law Terms of Agreement Exhibit B Page 4 of 4 To Public Road Crossing Agreement ............... ........... q,;, gg.- ? �gm NIV P,xffi ggg ..... ..... g ............. .................... ........... g gg Olm�g m gg -mg.1111 �I.K -,k m 'IQ S, 8X.. mmli h 6, d "NOW, WWR .............. Ami"g ISNIS", e .a j cl� A Aill,ie, onl �an. t hl Iry mig .-r m, `101�.Iff. .0 -c' 1.0 -01, .2 It I . I I.I.Cil e A I., le g�* ................... �;l tg, 1'��-NERFI M WIN ME 0,101M-, M Mm,� W-Iffil .................. N -,gig 150K, "IR m ................... IS M .I....".......... -'a- m m REN . ...... NMI INE. N WE MUNIP NO IM .......... To the Contractor: UNION PACIFIC RAILROAD COMPANY Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 (402) 544-8620 January 20, 2006 Before Union Pacific Railroad Company can permit you to perform work on its property •for the construction, maintenance and operation of the new A.W. Grimes Boulevard Underpass public road crossing, it will be necessary For you to sign and complete two originals of the enclosed Contractor's Right of Entry Agreement as follows: 1. Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Permit. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2. Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3 . Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Permit. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4. Execute and return all copies of the Contractor's Permit together with your Certificate of Insurance as required in Exhibit B-1, in the attached, self-addressed envelope. 5 . Check made payable to the Union Pacific Railroad Company in the amount of $500.00. 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. After approval of the Right of Entry Agreement and insurance certificate, one fully executed counterpart of the agreement will be returned to you. In no event should you begin work until you have received your counterpart of the fully executed agreement. Under Exhibit B-1 of the enclosed Contractor's Right of Entry, you are required to procure certain insurance and insurance endorsements including but not limited to, Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you through Marsh USA. If you decide that acquiring the RPLI coverage from Marsh USA is of benefit to you, please contact Mike McGrade @ 900-729-7001; fax: 816-556-4362; or e-mail: michael.mcgrade@marsh.com. If you have any questions concerning this agreement, please contact me as noted below. Have a safe day! Paul G. Farrell Senior Manager Contracts Phone: (402) 544-8620 e-mail: pgfarrell@up.com Exhibit C To Public Road Crossing Agreement BUILDING AMERICA" UPRR Folder No.: 2356-83 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 (the "Railroad"); and (Name of Contractor) corporation (the "Contractor"). (State of Incorporation) RECITALS: Contractor has been : hired by the City of Round Rock to perform work relating to the construction, maintenance and operation of the new A.W. Grimes Boulevard Underpass public road crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad Mile Post 159.90 on its Austin Subdivision, in or near RoundRock, Willimason County, Texas, (which work is the subject of a contract dated (Date of C&MAgreement) between Railroad and the City of Round Rock. Contractor has requested Railroad to permit it to perform the work on the portion of Railroad's property shown in the general location of the print marked Exhibit D, attached hereto and hereby made a part hereof, and Railroad is agreeable thereto, subject to the following terms and conditions. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: ARTICLE 1- DEFINITION OF CONTRACTOR. For purposes of this agreement, all references in this agreement to the Contractor shall include the Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the 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 CROE Agreement - 04/01/05 Form Approved - AVP Law Articles of Agreement December 1, 2005 Page 1 of 4 BUILDING AMERICA" UPRR Folder No.: 2356-83 performing any work described in the Recitals above. The right herein granted to Contractor is 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 A, B, &C. The terms and conditions contained in Exhibit A, Exhibit B, and Exhibit C, attached hereto, are hereby made a part of this agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. The Contractor shall bear any and all costs and expenses associated with any work performed by the Contractor, or any costs or expenses incurred by the Railroad relating to this agreement. B. The 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 C. The Contractor, at its own expense, shall adequately police and supervise all work to be performed by the 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 the Contractor for safe conduct and adequate policing and supervision of the Contractor's work shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications involving the work, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad Representative, or by compliance by the Contractor with any requests or recommendations made by the 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, (Expiration Date) or 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 property. CROE Agreement - 04/01/05 Form Approved - AVP Law Articles of Agreement December 1, 2005 Page 2 of 4 BUILDING AMERICA' UPRR Folder No.: 2356-83 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 insurance binders, policies, certificates and/or endorsements set forth in Exhibit B of this agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be directed to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street MS1690 Omaha, NE 68179-1690 Attn.: Senior Manager Contracts UPRR Folder No.: 2356-83 ARTICLE 7 - DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad property any employee of Contractor or any subcontractor 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 property. ARTICLE 8 - ADMINISTRATIVE FEE. Contractor shall pay to 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 property without the prior written approval of the Railroad. CROE Agreement - 04/01/05 Articles of Agreement December 1, 2005 Form Approved - AVP Law Page 3 of 4 BUILDING AMERICA" UPRR Folder No.: 2356-83 IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. WITNESS: UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By: PAUL G. FARRELL Senior Manager Contracts (Name of Contractor) By: CROE Agreement - 04/01/05 Form Approved - AVP Law Title: Articles of Agreement December 1, 2005 Page 4 of 4 BUILDING AMERICA - Section 1. EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS NOTICE OF COMMENCEMENT OF WORK - FLAGGING. CROE ExA 03/01/05 Form Approved - AVP Law A. The 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 the 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), or thing(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 the Contractor whether a flagman need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other services, the •Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly pay to Railroad all charges connected with such services within thirty (30) days after presentation of a bill. B. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men 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 prevailingcomposite charge in effect on the day of execution of this agreement. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays; 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 the 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, the Contractor shall pay on the basis of the new rates and charges. C. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is fumished, unless he 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 said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad by assignment of such flagman to other work , even though the Contractor may not be working during such time. When it becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor must provide the 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, the 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 the Railroad if flagging service are needed again after such five day cessation notice has been given 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 the 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 maybe freely done at any time or times by the Railroad without liability to the 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 the Railroad's property, and others) and the right of the 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. The 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 the Railroad, including without limitation, the operations of the Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done CROE ExA 03/01/05 Form Approved, AVP -Law Page 1 of 3 Exhibit A To Contractor's Right of Entry Agreement BUILDING AMERICA' CROE ExA 03/01/05 Form Approved - AVP Law by the Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of the Railroad's nearest track, and there shall :be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of the Railroad and work performed by the Railroad personnel and delays in the work to be performed by the Contractor caused by such railroad operations and work are expected by the Contractor, and Contractor agrees that the Railroad shall have no liability to Contractor, its subcontractors or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of the Railroad and third parties so as to avoid interference with railroad operations. The safe operation of the Railroad takes precedence over any work to be performed by the Contractor. Section 4. LIENS. The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. The 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 the Railroad for any such work performed. The Contractor shall indemnify and hold harmless the 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 the Contractor fails to promptly cause any lien to be released of record, the 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 the Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt serviceto users resulting in business interruption and loss of revenue and profits. Contractor 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 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. The 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, the Contractor shall indemnify, defend and hold` the 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 the Contractor, its contractor, 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, the 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 the Contractor. The Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. The Contractor shall at a minimum comply with the Railroad's safety standards listed in Exhibit D, hereto attached, to, ensure uniformity with the safety standards followed by the Railroad's own forces. As a part of .the Contractor's safety responsibilities, the Contractor shall notify the Railroad if the Contractor determines that any of the Railroad's safety standards are contrary to good safety practices. The Contractor shall furnish copies of Exhibit D to each of its employees before they enter on the job site. B. Without limitation of the provisions of paragraph A above, the 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. The 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. The Contractor shall promptly notify the Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of the 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. CROE ExA 03/01/05 Form Approved, AVP -Law Page 2 of 3 Exhibit A To Contractor's Right of Entry Agreement BUILDING AMERICA CROE ExA 03/01/05 Form Approved - AVP Law D. If and when requested by the Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require the 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. Section 8. INDEMNITY. A. To the extent not prohibited by applicable statute, the Contractor shall indemnify, defend and hold harmless the Railroad, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all Toss, damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation,. any Indemnified Party, the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (iii) any breach of this agreement by the 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. The Contractor expressly and specifically assumes potential liability under this Section 8. for claims or actions brought by the . Contractors. own employees.. The . Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify the Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated by the parties hereto. D. No court or jury findingsin 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 the Contractor in any attempt to assert liability against the Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by the 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 the. Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the Contractor shall, as soon as possible and at Contractors 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. The Contractor shall remove all of Contractors tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same stateand condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by the Contractor shall in no way impair the right of the 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 the Contractor and the Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between the Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by the Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. The Contractor shall not assign or subcontract this agreement, or any interest therein, without the written consent of the Railroad. The Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by the Contractor as provided in this agreement, and to indemnify the Contractor and the Railroad to the same extent as the Railroad is indemnified by the Contractor under this agreement. CROE ExA 03/01/05 Form Approved, AVP -Law Page 3 of 3 Exhibit A To Contractor's Right of Entry Agreement DUACU CNION IjE CROE ExB 03/01/05 BUILDING AMERICA` Form Approved - AVP Law EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work an Railroad's property has been completed and the Contractor has removed all equipment and materials from the Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain a single limit of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000 and include broad form contractual liability coverage. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • The workers compensation and employee related exclusions in the above policy apply only to employeesof the. Contractor. The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges; trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Coverage for Contractor's (and Railroad's) employees shall not be excluded Waiver of subrogation If the Contractor will be using, storing and/or handling hazardous materials, the Contractor, in addition to the other endorsements to be obtained by the Contractor as provided in this exhibit, must also ensure that the Commercial General Liability Insurance policy contains a Designated Premises Pollution Coverage (CG00-39) endorsement. Evidence of the endorsement must also be indicated on the certificate of insurance that is provided to the Railroad: B. Business Automobile Coverage Insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non -owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • The workers compensation and employee related exclusions in the above policy apply only to employees of the Contractor. • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS -90) if required by law. C. Workers Compensation And Employers Liability Insurance including but not limited to: • Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self-insured, evidence of state CROE ExB 03/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit B To Contractor's Right of Entry Agreement BUILDING AMERICA" CROE ExB 03/01/05 Form Approved - AVP Law approval must be provided along with evidence of excess workers compensation coverage. Coverage shall 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 shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Altemate Employer Endorsement D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. E. Railroad Protective Liability Insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" •(ISO Form CG 00 35 0.7 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the original policy is forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor waives its right of recovery, and shall cause its insurers, through policyy endorsement, to waive their right of subrogation against Railroad including, without limitation, for Toss of Contractor's ownedor leased property orproperty under Contractor's care, custody and control. Contractor's insurance shall be primary with respect to any insurance carried by Railroad. All waivers of subrogation shall be indicated on the certificate of insurance. H. All Policy(ies) required above (excluding Workers Compensation) shall provide severabilityof interests and shall name Railroad as an additional. insured. The coverage provided to Railroad as additional insured shall 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. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. I. Prior to commencing any work, Contractor shall furnish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. J. Any insurance policy shall 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(s) in which the service is to be provided. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by. Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractor's insurance coverage will be primary. L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractorshall 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 shall not be limited by the amount of the required insurance coverage. CROE ExB 03/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit B To Contractor's Right of Entry Agreement BUILDING AMERICA" CROE ExC 03/01/05 Form Approved - AVP Law EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of the Contractor as well as all employees of any subcontractor or agent of the Contractor. 1. Clothing A. All employees of the 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, the Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are wom, 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. IL Personal Protective Equipment The 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 the contractor's or subcontractor'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 wom 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. 111. On Track Safety The 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. CROE ExC 03/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit C To Contractor's Right of Entry Agreement BUILDING AMERICA" CROE ExC 03/01/05 Form Approved - AVP Law (ill) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractors must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. The Contractors 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 the Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of the Contractor's equipment is unsafe for use, the Contractor shall remove such equipment from the Railroad's property. In addition, the 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. 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. The Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. The 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 the 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 ExC 03/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit C To Contractor's Right of Entry Agreement 11111111111111111111111, N LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MP 1 59.90 - AUstin Subdivision A.W. Grimes Eculevani - DOT #924 253L ,New Underpass Grade Separation Crossing Construction Project i P 159.90 - Austin Subdivision Existing Railroad Bridge Over Brushy Creek to be Replaced MARL,k >'1 DEN PATH use ssaks,er# to rtcense, 0.2004 DeLor;rye, Street Atlas U$A€ 220 www.delorme.com Mtn(5.2'e) I:Wa Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Flagging. 2. The Contractor is responsible for ensuring that the Underpass Public Road Crossing construction project doesn't adversely impact Railroad operations. EXHIBIT "D" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 159.90 GPS: N 30°, 30.8368'; W 97°, 39.3610' ROUND ROCK, WILLIAMSON CO., TX. To accompany Contractor's Right of Entry Agreement with (Name of Contractor) for the construction of the a new underpass public road crossing. Folder No. 2356-83 Date: January 20, 2006 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 D Location Print I., _._l._. .1_ J_ DATE: February 2, 2006 SUBJECT: City Council Meeting - February 9, 2006 ITEM: 10.C.4. Consider a resolution authorizing the Mayor to execute a Public Road Crossing Agreement with the Union Pacific Railroad Company for A.W. Grimes Boulevard. Department: Transportation Services Department Staff Person: Thomas G. Martin, P.E., Director Justification: The Public Road Crossing Agreement with the Union Pacific Railroad (UPRR) provides for the reconstruction of the railroad bridge over the proposed A.W. Grimes Boulevard alignment South of US 79. This agreement also provides for the City's use of UPRR right-of-way for the construction and maintenance of A.W. Grimes Boulevard. Funding: Cost: $1, 707, 228.00 Source of funds: Transportation System Development Corporation Outside Resources: Union Pacific Railroad, Rodriguez Transportation Group and HDR Engineering, Inc. Background Information: The A.W. Grimes Boulevard Phase II project was awarded to RGM Constructors, L.P., by council action on July 14, 2005 in the amount of $ 4, 978,357.76. This project is the second Phase of the A. W. Grimes improvements. Phase I constructed a six -lane section from SH 45 to Lake Creek. The proposed agreement will allow UPRR to reconstruct their bridge over Brushy Creek to accommodate the City's underpass on the Railroad. When complete, A.W. Grimes Boulevard will provide a new arterial roadway from Lake Creek to US 79 and complete the Arterial Roadway from SH 45 to US 79. The estimated cost of this work is $1,707,228.00, which is to be paid as follows: $569, 076.00 payable within 30 days of execution of agreement: $569, 076.00 payable when reconstruction is 50% complete: $569, 076.00 payable when reconstruction is 100% complete. Public Comment: NA EXECUTED DOCUMENT FOLLOWS UPRR Folder No.: 2356-83 PUBLIC ROAD CROSSING AGREEMENT „UD ,r 23966+ BETWEEN UNION PACIFIC RAILROAD COMPANY AND THE CITY OF ROUND ROCK COVERING THE CONSTRUCTION, MAINTENANCE AND USE OF A NEW ROADWAY AND ROADWAY BRIDGE INVOLVING A.W. GRIMES BOULEVARD AT RAILROAD 159.90 AUSTIN SUBDIVISION DOT NO.: 824 253L IN OR NEAR ROUND ROCK WILLIAMSON COUNTY, TEXAS Political Body Original BUILDING AMERICA' Agreement Number: PUBLIC ROAD CROSSING AGREEMENT UPRR Folder No.: 2356-83 239608 A.W. Grimes Boulevard — DOT No.: 924 253L Railroad Mile Post 159.90 — Austin Subdivision Round Rock, Williamson County, Texas THIS AGREEMENT is made and entered into as of the 4 - day of rE,(32uivey 2006, 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 (the "Railroad") and the CITY OF ROUND ROCK, a Texas municipal corporation to be addressed at 221 East Main Street, Round Rock, TX 78664 (the "Political Body"), RECITALS: The Political Body desires to undertake as its project (the "Project"): • the construction of a new roadway bridge and new roadway for A.W. Grimes Boulevard under an existing railroad bridge structure. The new roadway and roadway bridge will traverse the Railroad's property and cross Brushy Creek at Railroad Milepost 159.90 on Railroad's Austin subdivision at DOT No. 924 253L at or near Round Rock, Williamson County, Texas (the "Crossing Area") as the Crossing Area is generally shown on the location print marked Exhibit A attached hereto and hereby made a part hereof. The portion of the Political Body's roadway and roadway bridge located within the Crossing Area is hereinafter collectively the "Roadway". The Railroad will undertake as its project: • the reconstruction of an existing Railroad structure consisting of an open deck superstructure replaced with a closed deck superstructure and the rehabilitation of the Railroad bridge substructure (two abutments and 5 piers) and incidental track work to facilitate the rehabilitated structure. The structure that will carry the Railroad's locomotives and rail cars over Brushy Creek at A.W. Grimes Boulevard, DOT Number 924 253L, at Railroad Mile Post 159.90 on its Austin Subdivision at or near Round Rock, Williamson County, Texas, is hereinafter referred to as the "Structure". In order to facilitate the Political Body's construction and use of the Roadway, the Political Body has agreed to bear a portion of the cost involving the Structure as provided in this Agreement. The Railroad and the Political Body are entering into this Agreement to cover the above. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Page 1 of 5 Standard Form Approved, AVP -Law — 3/4/05 PA c BUILDING AMERICA" UPRR Folder No.: 2356-83 AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the parties hereto as follows: ARTICLE 1 - EXHIBITS B AND C. The general terms and conditions marked Exhibit B and the Contractor's Right of Entry Agreement marked Exhibit C, are attached hereto and hereby made a part hereof. ARTICLE 2- RAILROAD GRANTS RIGHT. For and in consideration of the Political Body's payments to the Railroad as provided in Article 4 and the Political Body's agreement to perform and abide by the terms of this Agreement including Exhibit B, the Railroad hereby grants to the Political Body the right to establish, construct, maintain, repair or renew and reconstruct the Roadway under the Structure and across the Crossing Area. ARTICLE 3- NO ROADWAY PROJECT EXPENSES TO BE BORNE BY RAILROAD. The Political Body agrees that no Project costs and expenses involving the Roadway are to be borne by the Railroad. ARTICLE 4- POLITICAL BODY'S PAYMENT TO RAILROAD. A. The existing Structure, which is an open deck design, will not allow enough vertical clearance to accommodate the Political Body's Roadway and the Project. In order to provide enough clearance for the Political Body's Roadway, the Railroad will be redesigning and reconstructing the Structure to make it a closed deck bridge and the Political Body agrees to pay the Railroad, as provided in Paragraph B below, the costs associated with replacing two spans of the redesigned and reconstructed Structure. B. With respect to Paragraph A above, the Political Body agrees to pay to the Railroad a firm, fixed amount of One Million Seven Hundred Seven Thousand Two Hundred Twenty Eight Dollars ($1,707,228.00) in the following installment payments: (i) $569,076.00 within thirty (30) days after the execution of this Agreement, (ii) $569,076.00 within thirty days after the Railroad notifies the Political Body that reconstruction of the Structure is fifty percent (50%) complete, and (iii) $569,076.00 within thirty (30) days after the Railroad notifies the Political Body that reconstruction of the Structure has been completed. C. The Railroad agrees that all costs exceeding $1,707,228.00 involving the reconstruction of the Structure shall be borne by the Railroad. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Page 2 of 5 Standard Form Approved, AVP -Law — 3/4/05 BUILDING AMERICA - ARTICLE 5- PLANS. UPRR Folder No.: 2356-83 A. The Political Body, at its expense, shall prepare, or cause to be prepared by others, the detailed plans and specifications for its Roadway Project and submit such plans and specifications to the Railroad's Assistant Vice President Engineering — Design, or his authorized representative, for review and approval. The plans and specifications shall include all appurtenances and associated drainage. B. The final one hundred percent (100%) completed plans for the Roadway Project 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. Notwithstanding the Railroad's approval of the Plans, the Railroad shall not be responsible for the design, details, permitting or construction of the Roadway and associated drainage. ARTICLE 6 - DEFINITION OF CONTRACTOR For purposes of this Agreement the term "Contractor" shall mean the contractor or contractors hired by the Political Body 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. ARTICLE 7 - CONTRACTOR'S RIGHT OF ENTRY AGREEMENT - INSURANCE A. If the Political Body will be hiring a Contractor to perform any work involving the Project (including initial construction and any subsequent relocation or maintenance and repair work), the Political Body 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 before allowing any Contractor to commence any work involving the Roadway. B. The Railroad's current Contractor's Right of Entry Agreement is marked Exhibit C, attached hereto and hereby made a part hereof. The Political Body 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 Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Page 3 of 5 Standard Form Approved, AVP -Law — 3/4/05 UNION BUILDING AMERICA' UPRR Folder No.: 2356-83 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 UPRR Folder No. 2356-83 D. If the Political Body's own employees will be performing any of the Project work, the Political Body may self -insure all or a portion of the insurance coverage subject to the Railroad's prior review and approval. ARTICLE 8 - FEDERAL AID POLICY GUIDE If the Political Body 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. ARTICLE 9 - FLAGGING TO BE PERFORMED BY THE RAILROAD A. During the Roadway Project, the Railroad shall provide flagging as deemed necessary by the Railroad. The Railroad's estimated flagging rate is Seven Hundred Dollars ($700.00) per day. The Railroad and the Political Body acknowledge that the $700.00 rate is an estimate only and that actual flagging costs may be less or more than such estimate. B. The Political Body agrees to reimburse the Railroad for all actual flagging costs incurred by the Railroad within thirty (30) days of the Political Body's receipt of flagging bills from the Railroad. ARTICLE 10 POLITICAL BODY GRANTS RAILROAD USE OF PROPERTY TO RECONSTRUCT STRUCTURE. The Political Body, at no cost to the Railroad, hereby grants to the Railroad the right to use property owned by the Political Body (including the right of ingress and egress to such property) that the Railroad will need in order to reconstruct the Structure. ARTICLE 11- EFFECTIVE DATE; TERM; TERMINATION. This Agreement shall become effective as of the date first herein written, or the date work commences on the Project, whichever is earlier, and shall continue in full force and effect for as long as the Roadway remains on the Railroad's property. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Page 4 of 5 Standard Form Approved, AVP -Law — 3/4/05 BUILDING AMERICA' UPRR Folder No.: 2356-83 ARTICLE 12 - CONDITIONS TO BE MET BEFORE POLITICAL BODY CAN COMMENCE ROADWAY PROJECT WORK. Neither the Political Body nor the Contractor may commence any work within the Crossing Area or on any other Railroad property until: (i) The Railroad and Political Body have executed this Agreement. (ii) The Railroad has provided to the Political Body 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed in duplicate as of the date first herein written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By T K. LOVE General Manager — Real Estate ATTEST: CIT OF 0 D 0.6 ztvyw `6ThAtoted By (Seal) Title. Pursuant to Resolution/Order No. R-04 - 0,2-0 9-1OCy dated FG& u AR y 9 , 200 (a , hereto attached. Public Road Crossing Underpass Agreement Articles of Agreement January 20, 2006 Page 5 of 5 Standard Form Approved, AVP -Law — 3/4/05 RESOLUTION NO. R -06-02-09-10C4 WHEREAS, in connection with the A.W. Grimes Boulevard Improvements, Phase II, the Union Pacific Railroad Company ("UPRR") bridge over Brushy Creek must be reconstructed to accommodate the new roadway, and WHEREAS, the Council wishes to enter into a Public Road Crossing Agreement with UPRR, 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 Public Road Crossing 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 9th day of February, ST.; NY City CHRISTINE R. MARTINEZ, City Secreta WELL, ayor f Round Rock, Texas UPRR Folder No.: 2356-83 PUBLIC ROAD CROSSING AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY CITY OF ROUND ROCK COVERING THE CONSTRUCTION, MAINTENANCE AND USE OF A NEW ROADWAY AND ROADWAY BRIDGE INVOLVING A.W. GRIMES BOULEVARD AT RAILROAD 15990 - AUSTIN SUBDIVISION DOT NO.: 824 253L IN OR NEAR ROUND ROCK WILLIAMSON COUNTY, TEXAS EXHIBIT "A" Political Body Original Cover Se, ero p.on N nt owing the w N s ►E LOCATION PRINT OF NEW UNDERPASS PUBLIC ROAD CROSSING CONSTRUCTION PROJECT 401 iltt'64` KAROLYN DR WoAKDR a LILAC DR WAYNE OR 0 U w CO z MILLS MEADOW DR MP 159.90 - Austin Subdivision A.W. Grimes Boulevard - DOT #924 253L New Underpass Grade Separation Crossing Construction Project } e.„„i,Ni 1 Act r 001.060%0A �y'~ DOVE HAVEN ST GARDEN PATH CV 1IMBERLINE D Austin Subdivision )3,44 cyeek l'14 Y 0.`( SUGAR BERRYGv MP 159.90 - Austin Subdivision Existing Railroad Bridge Over Brushy cV Creek to be Replaced MAPLE RUN DR 1 1414084 )14 9,C 'CL DELORME Data use subject to license. O 2004 DeLorme. Street Atlas USA® 2005. www.delorme.com MN (5.2' E) INN ft 0 1000 2000 Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Railroad will pay for the costs associated with the replacement of 4 of the 6 bridge piers. EXHIBIT "A" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 159.90 GPS: N 30° 30.8368', W 97° 39.3610' ROUND ROCK, WILLIAMSON CO., TX. Illustrative print showing location of a new underpass grade separation crossing construction project with the CITY OF ROUND ROCK. Folder No. 2356-83 Date: January 20, 2006 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 Location Print To Public Road Crossing Agreement �s WO �i �s � t ns ee iclNk . � S I'll,4M, a s 3 � Q III Public Road Crossing Agreement ExB BUILDING AMERICA- Non Standard Form, Approved AVP -Law — 01/19/06 EXHIBIT B TO PUBLIC ROAD CROSSING 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 Political Body 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 Political Body 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 Political Body for the purpose of conveying electric power or communications incidental to the Political Body'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 Political Body 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 in such manner as not unreasonably to interfere with its use as a public highway c) The right hereby granted is subject to any existing encumbrances and rights (whether public or private), recorded or not, and also to any renewals thereof. The Political Body shall not damage, destroy or interfere with the property or rights of nonparties in, upon or relating to the railroad property, unless the Political Body 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; also 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 any highway facilities located upon the property, provided that such attachments shall comply with Political Body's specifications and will not interfere with the use of the Crossing Area. e) So far as it lawfully may do so, the Political Body 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 Structure and its appurtenances, or for the performance of any work in connection with the Project, the Political Body 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 Political Body, at its expense, will apply for and obtain all public authority required by law, ordinance, rule or regulation for the Roadway and the Project, and will fumish the Railroad upon request with satisfactory evidence that such authority has been obtained. b) Except as may be otherwise specifically provided herein, the Political Body, 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 and right of way fences along the Roadway. Upon completion of the Project, the Political Body shall remove from the Railroad's property all temporary structures and false work, and will leave the Crossing Area in a condition satisfactory to the Railroad. c) All construction work of the Political Body 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 accordance with the Plans or and other guidelines furnished by the Railroad. d) All construction work of the Political Body shall be performed diligently and completed within a reasonable time, and in any event within three (3) years from the effective date of this Agreement, or within such further period of time as may be specified in writing by the Railroad's Assistant Vice President Engineering - Design. 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. Public Road Crossing Agreement Terms of Agreement Exhibit B Standard Form, Approved AVP -Law Page 1 of 4 To Public Road Crossing Agreement Public Road Crossing Agreement ExB BUILDING AMERICA' Non Standard Form, Approved AVP -Law — 01/19/06 It is understood that the Railroad's reconstruction of the Structure will take precedence over the Political Body's Roadway Project and that Railroad's work on the Structure may cause delays to the Political Body's Project. The Railroad and Political Body's representatives shall coordinate work involving the Structure and the Roadway but the Political Body acknowledges that the Railroad's work involving the Structure may cause delays to the Project and that the Political Body and any Contractor assume the risk of any such delays and agree that no claims for damage on account of any delay shall be made against the Railroad. SECTION 3 - INJURY AND DAMAGE TO PROPERTY If the Political Body, in the performance of any work contemplated by this Agreement or by the failure to do or perform anything for which the Political Body 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 Political Body at the Political Body's own expense, or by the Railroad at the expense of the Political Body, and to the satisfaction of the Railroad's Assistant Vice President Engineering - Design. SECTION 4 - MAINTENANCE AND REPAIRS The Political Body, at its expense, shall maintain, repair, and renew, or cause to be maintained, repaired and renewed, the entire Crossing Area and the Roadway. SECTION 5 - SAFETY MEASURES: PROTECTION OF RAILROAD'S 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 agreed with respect to all of said work of the Political Body 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 Political Body shall also include the Contractor, and all references in this Agreement to work of the Political Body shall include work both within and outside of the Railroad's property. b) Compliance With Laws. The Political Body shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work. The Political Body shall use only such methods as are consistent with safety, both as concerns the Political Body, the Political Body's agents and employees, the officers, agents, employees and property of the Railroad and the public in general. The Political Body (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 Political Body 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 Political Body shall reimburse and indemnify the Railroad for any such fine, penalty, cost, or charge, including without limitation attomey's fees, court costs and expenses. The Political Body 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 Political Body 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 Political Body, at its own expense, shall adequately police and supervise all work to be performed by the Political Body, 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 Political Body 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 Political Body with any requests or recommendations made by such representatives. If a representative of the Railroad is assigned to the Project, the Political Body 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 Political Body'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 Political Body is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Political Body shall immediately suspend the work until suitable, adequate and proper protective measures are adopted and provided. f) Removal of Debris. The Political Body 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 Political Body at the Political Body's own expense or by the Railroad at the expense of the Political Body. The Political Body shall not cause, suffer or permit any snow to be plowed or cast upon the Railroad's property during snow Public Road Crossing Agreement Terms of Agreement Exhibit B Standard Form, Approved AVP -Law Page 2 of 4 To Public Road Crossing Agreement CSS C iItr'1 Public Road Crossing Agreement ExB BUILDING AMERICA Non Standard Form, Approved AVP -Law — 01/19/06 removal from the Crossing Area. g) Explosives. The Political Body shall not discharge any explosives on or in the vicinity of the Railroad's property without the prior consent of the Railroads 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 Political Body 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 Political Body 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 Political Body, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation and/or trenching performed by the Political Body 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 Political Body, at the Political Body's own expense, shall provide and maintain suitable facilities for draining the Structure and its appurtenances, and shall not suffer or permit drainage water therefrom to flow or collect upon property of the Railroad. The Political Body, at the Political Body'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 Political Body, 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 Political Body shall not obstruct or interfere with existing ditches or drainage facilities. j) Notice. Before commencing any work, the Political Body shall provide at least ten (10) days prior notice (excluding weekends and holidays) to the Railroad's Manager -Track Maintenance. 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. Political Body 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 Political Body. If it is, Political Body 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 6 - INTERIM WARNING DEVICES If at anytime it is determined by a competent authority, by the Political Body, or by agreement between the parties, that new or improved train activated waming devices should be installed at the Crossing Area, the Political Body shall install adequate temporary waming devices or signs and impose appropriate vehicular control measures to protect the motoring public until the construction or reconstruction of the Structure has been completed. SECTION 7 - 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 8 - REMEDIES FOR BREACH OR NONUSE a) If the Political Body 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 its property, 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 Political Body will reimburse the Railroad for the expenses thereof. b) Nonuse by the Political Body 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 Political Body hereunder. Public Road Crossing Agreement Standard Form, Approved AVP -Law Terms of Agreement Exhibit B Page 3 of 4 To Public Road Crossing Agreement vn�°ic Public Road Crossing Agreement ExB BUILDING AMERICA' Non Standard Form, Approved AVP -Law — 01/19/06 c) The Political Body will surrender peaceable possession of the Crossing Area upon termination of this Agreement and shall remove all portions of the Roadway from the Crossing Area to the satisfaction of the Railroad and failing which, the Railroad may, at its election, perform such removal at the Political Body's expense. 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 9 - 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 Political Body 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 Political Body 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 Political Body 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. SECTION 10 - ASSIGNMENT: SUCCESSORS AND ASSIGNS This Agreement shall not be assigned without the written consent of the Railroad. Subject hereto, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Public Road Crossing Agreement Terms of Agreement Exhibit B Standard Form, Approved AVP -Law Page 4 of 4 To Public Road Crossing Agreement + O 1 � flov ee r r s o on for •g En A = e _ e le E fe F O 3 L' T'o the Contractor: UNION PACIFIC RAILROAD COMPANY Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 (402) 544-8620 January 20, 2006 Before Union Pacific Railroad Company can permit you to perform work on its property for the construction, maintenance and operation of the new A.W. Grimes Boulevard Underpass public road crossing, it will be necessary For you to sign and complete two originals of the enclosed Contractor's Right of Entry Agreement as follows: 1 . Fill in the complete legal name of the contractor in the space provided on Page 1 of the Contractor's Permit. If a corporation, give the state of incorporation. If a partnership, give the names of all partners. 2 . Fill in the date construction will begin and be completed in Article 5, Paragraph A. 3 . Fill in the name of the contractor in the space provided in the signature block at the end of the Contractor's Permit. If the contractor is a corporation, the person signing on its behalf must be an elected corporate officer. 4 . Execute and return all copies of the Contractor's Permit together with your Certificate of Insurance as required in Exhibit B-1, in the attached, self-addressed envelope. 5 . Check made payable to the Union Pacific Railroad Company in the amount of $500.00. 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. After approval of the Right of Entry Agreement and insurance certificate, one fully executed counterpart of the agreement will be returned to you. In no event should you begin work until you have received your counterpart of the fully executed agreement. Under Exhibit B-1 of the enclosed Contractor's Right of Entry, you are required to procure certain insurance and insurance endorsements including but not limited to, Railroad Protective Liability Insurance (RPLI) for the duration of this project. As a service to you, Union Pacific is making this coverage available to you through Marsh USA. If you decide that acquiring the RPLI coverage from Marsh USA is of benefit to you, please contact Mike McGrade @ 900-729-7001; fax: 816-556-4362; or e-mail: michael.mcgrade@marsh.com. If you have any questions concerning this agreement, please contact me as noted below. Have a safe day! Paul G. Farrell Senior Manager Contracts Phone: (402) 544-8620 e-mail: pgfarrell@up.com Exhibit C To Public Road Crossing Agreement BUILDING AMERICA" UPRR Folder No.: 2356-83 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 (the "Railroad"); and (Name of Contractor) corporation (the "Contractor"). (State of Incorporation) RECITALS: Contractor has been hired by the City of Round Rock to perform work relating to the construction, maintenance and operation of the new A.W. Grimes Boulevard Underpass public road crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad Mile Post 159.90 on its Austin Subdivision, in or near Round Rock, Willimason County, Texas, (which work is the subject of a contract dated (Date of C&MAgreement) between Railroad and the City of Round Rock. Contractor has requested Railroad to permit it to perform the work on the portion of Railroad's property shown in the general location of the print marked Exhibit D, attached hereto and hereby made a part hereof, and Railroad is agreeable thereto, subject to the following terms and conditions. AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between the Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this agreement, all references in this agreement to the Contractor shall include the Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. The Railroad hereby grants to the 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 CROE Agreement - 04/01/05 Form Approved - AVP Law Articles of Agreement December 1, 2005 Page 1 of 4 BUILDING AMERICA` UPRR Folder No.: 2356-83 performing any work described in the Recitals above. The right herein granted to Contractor is 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 A, B, &C. The terms and conditions contained in Exhibit A, Exhibit B, and Exhibit C, attached hereto, are hereby made a part of this agreement. ARTICLE 4 - ALL EXPENSES TO BE BORNE BY CONTRACTOR; RAILROAD REPRESENTATIVE. A. The Contractor shall bear any and all costs and expenses associated with any work performed by the Contractor, or any costs or expenses incurred by the Railroad relating to this agreement. B. The 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 C. The Contractor, at its own expense, shall adequately police and supervise all work to be performed by the 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 the Contractor for safe conduct and adequate policing and supervision of the Contractor's work shall not be lessened or otherwise affected by the Railroad's approval of plans and specifications involving the work, or by the Railroad's collaboration in performance of any work, or by the presence at the work site of the Railroad Representative, or by compliance by the Contractor with any requests or recommendations made by the 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, (Expiration Date) or 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 property. CROE Agreement - 04/01/05 Articles of Agreement December 1, 2005 Page 2 of 4 Form Approved - AVP Law BUILDING AMERICA' UPRR Folder No.: 2356-83 B. This agreement may be terminated by either party on ten (10) days written notice to the other ply. ARTICLE 6 - CERTIFICATE OF INSURANCE. A. Before commencing any work, Contractor will provide Railroad with the insurance binders, policies, certificates and/or endorsements set forth in Exhibit B of this agreement. B. All insurance correspondence, binders, policies, certificates and/or endorsements shall be directed to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street MS1690 Omaha, NE 68179-1690 Attn.: Senior Manager Contracts UPRR Folder No.: 2356-83 ARTICLE 7 - DISMISSAL OF CONTRACTOR/SUBCONTRACTOR EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad property any employee of Contractor or any subcontractor 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 property. ARTICLE 8 - ADMINISTRATIVE FEE. Contractor shall pay to 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 property without the prior written approval of the Railroad. CROE Agreement - 04/01/05 Articles of Agreement December 1, 2005 Page 3 of 4 Form Approved - AVP Law BUILDING AMERICA' UPRR Folder No.: 2356-83 IN WITNESS WHEREOF, the parties hereto have duly executed this agreement in duplicate as of the date first herein written. WITNESS: UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By: PAUL G. FARRELL Senior Manager Contracts (Name of Contractor) By: Title: CROE Agreement - 04/01/05 Articles of Agreement December 1, 2005 Page 4 of 4 Form Approved - AVP Law Prtt�LtC IIf�I BUILDING AMERICA" Form Approved - AVP Law CROE ExA 03/01/05 EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. The 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 the 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), or thing(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 pro'vided to watch for trains. Upon receipt of such ten (10) -day notice, the Railroad Representative will determine and inform the Contractor whether a flagman need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Contractor's expense with the understanding that if the Railroad provides any flagging or other services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. Contractor shall promptly pay to Railroad all charges connected with such services within thirty (30) days after presentation of a bill. B. The rate of pay per hour for each man will be the prevailing hourly rate in effect for an eight hour day for the class of men 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 on the day of execution of this agreement. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays; 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 the 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, the Contractor shall pay on the basis of the new rates and charges. C. Reimbursement to the Railroad will be required covering the full eight hour day during which any flagman is fumished, unless he 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 said flagman following his assignment to work on the project for which the Railroad is required to pay the flagman and which could not reasonably be avoided by the Railroad by assignment of such flagman to other work , even though the Contractor may not be working during such time. When it becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, the Contractor must provide the 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, the 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 the Railroad if flagging service are needed again after such five day cessation notice has been given 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 the 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 the Railroad without liability to the 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 the Railroad's property, and others) and the right of the 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. The 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 the Railroad, including without limitation, the operations of the Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done CROE ExA 03/01/05 Form Approved, AVP -Law Page 1 of 3 Exhibit A To Contractor's Right of Entry Agreement BUILDING AMERICA" CROE ExA 03/01/05 Form Approved - AVP Law by the Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of the Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of the Railroad and work performed by the Railroad personnel and delays in the work to be performed by the Contractor caused by such railroad operations and work are expected by the Contractor, and Contractor agrees that the Railroad shall have no liability to Contractor, its subcontractors or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of the Railroad and third parties so as to avoid interference with railroad operations. The safe operation of the Railroad takes precedence over any work to be performed by the Contractor. Section 4. LIENS. The Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. The 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 the Railroad for any such work performed. The Contractor shall indemnify and hold harmless the 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 fumished. If the Contractor fails to promptly cause any lien to be released of record, the 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 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. Contractor 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 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. The 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, the Contractor shall indemnify, defend and hold the Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attomeys' fees, court costs and expenses) arising out of any act or omission of the Contractor, its contractor, 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, the 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 the Contractor. The Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. The Contractor shall at a minimum comply with the Railroad's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by the Railroad's own forces. As a part of the Contractor's safety responsibilities, the Contractor shall notify the Railroad if the Contractor determines that any of the Railroad's safety standards are contrary to good safety practices. The Contractor shall fumish copies of Exhibit D to each of its employees before they enter on the job site. B. Without limitation of the provisions of paragraph A above, the 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. The 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. The Contractor shall promptly notify the Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of the 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. CROE ExA 03/01/05 Form Approved, AVP -Law Page 2 of 3 Exhibit A To Contractor's Right of Entry Agreement 111 't BUILDING AMERICA" CROE ExA 03/01/05 Form Approved - AVP Law D. If and when requested by the Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require the 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. Section 8. INDEMNITY. A. To the extent not prohibited by applicable statute, the Contractor shall indemnify, defend and hold harmless the 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, consultant's and expert's fees, and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, any Indemnified Party, the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (iii) any breach of this agreement by the 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. The Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought by the Contractor's own employees. The Contractor waives any immunity it may have under worker's compensation or industrial insurance acts to indemnify the 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 the Contractor in any attempt to assert liability against the Railroad. E. The provisions of this Section 8 shall survive the completion of any work performed by the 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 the Contractor may have to any Indemnified Party by statute or under common law. Section 9. RESTORATION OF PROPERTY. In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the 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. The 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 the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by the Contractor shall in no way impair the right of the 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 the Contractor and the Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between the Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by the Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. The Contractor shall not assign or subcontract this agreement, or any interest therein, without the written consent of the Railroad. The Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by the Contractor as provided in this agreement, and to indemnify the Contractor and the Railroad to the same extent as the Railroad is indemnified by the Contractor under this agreement. CROE ExA 03/01/05 Form Approved, AVP -Law Page 3 of 3 Exhibit A To Contractor's Right of Entry Agreement UNION 'Ir' BUILDING AMERICA- Form Approved - AVP Law CROE ExB 03/01/05 EXHIBIT B TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT INSURANCE PROVISIONS Contractor shall, at its sole cost and expense, procure and maintain during the course of the Project and until all Project work an Railroad's property has been completed and the Contractor has removed all equipment and materials from the Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain a single limit of at least $5,000,000 each occurrence or claim and an aggregate limit of at least $10,000,000 and include broad form contractual liability coverage. Coverage must be purchased on a post 1998 ISO or equivalent form, including but not limited to coverage for the following: • Bodily injury including death and personal injury • Property damage • Fire legal liability (Not less than the replacement value of the portion of the premises occupied) • Products and completed operations The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • The workers compensation and employee related exclusions in the above policy apply only to employees of the Contractor. • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Coverage for Contractor's (and Railroad's) employees shall not be excluded • Waiver of subrogation If the Contractor will be using, storing and/or handling hazardous materials, the Contractor, in addition to the other endorsements to be obtained by the Contractor as provided in this exhibit, must also ensure that the Commercial General Liability Insurance policy contains a Designated Premises Pollution Coverage (CG00-39) endorsement. Evidence of the endorsement must also be indicated on the certificate of insurance that is provided to the Railroad. B. Business Automobile Coverage Insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence or claim, including but not limited to coverage for the following: • Bodily injury and property damage • Any and all motor vehicles including owned, hired and non -owned The policy shall also contain the following endorsements which shall be indicated on the certificate of insurance: • The workers compensation and employee related exclusions in the above policy apply only to employees of the Contractor. • The exclusions for railroads (except where the Job site is more than fifty feet (50') from any railroad including but not limited to tracks, bridges, trestles, roadbeds, terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be removed. • Motor Carrier Act Endorsement- Hazardous materials clean up (MCS -90) if required by law. C. Workers Compensation And Employers Liability Insurance including but not limited to: • Contractor's statutory liability under the workers' compensation laws of the state(s) affected by this Agreement • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If Workers Compensation insurance will not cover the liability of Contractor in states that require participation in state workers' compensation fund, Contractor shall comply with the laws of such states. If Contractor is self-insured, evidence of state CROE ExB 03/01/05 Page 1 of 2 Exhibit B Form Approved - AVP Law To Contractors Right of Entry Agreement IIf BUILDING AMERICA" CROE ExB 03/01/05 Form Approved - AVP Law approval must be provided along with evidence of excess workers compensation coverage. Coverage shall 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 shall also contain the following endorsement which shall be indicated on the certificate of insurance: • Altemate Employer Endorsement D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no less coverage than the primary policy. E. Railroad Protective Liability Insurance naming only the Railroad as the insured with a combined single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad form coverage for "Physical Damage to Property" (ISO Form CG 00 35 07 98 or equivalent). A binder stating the policy is in place must be submitted to the Railroad until the original policy is forwarded to the Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor waives its right of recovery, and shall cause its insurers, through policy endorsement, to waive their right of subrogation against Railroad including, without limitation, for loss of Contractor's owned or leased property or property under Contractor's care, custody and control. Contractor's insurance shall be primary with respect to any insurance carried by Railroad. All waivers of subrogation shall be indicated on the certificate of insurance. H. All Policy(ies) required above (excluding Workers Compensation) shall provide severability of interests and shall name Railroad as an additional insured. The coverage provided to Railroad as additional insured shall 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. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. I. Prior to commencing any work, Contractor shall fumish to Railroad original certificate(s) of insurance evidencing the required coverage, endorsements, and amendments. The certificate(s) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing of any cancellation or material alteration. Upon request from Railroad, a certified duplicate original of any required policy shall be furnished. J. Any insurance policy shall 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(s) in which the service is to be provided. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement and acknowledges that Contractor's insurance coverage will be primary. L. The fact that insurance is obtained by Contractor or Railroad on behalf of Contractor shall 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 shall not be limited by the amount of the required insurance coverage. CROE ExB 03/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit B To Contractor's Right of Entry Agreement I1I ' BUILDING AMERICA Form Approved - AVP Law CROE ExC 03/01/05 EXHIBIT C TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of the Contractor as well as all employees of any subcontractor or agent of the Contractor. I. Clothing A. All employees of the 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, the Contractor's employees must wear: (i) Waist -length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare -legged trousers are wom, 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 The 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 the contractor's or subcontractor'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 wom 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. 111. On Track Safety The 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: (1) 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. CROE ExC 03/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit C To Contractor's Right of Entry Agreement UNION BUILDING AMERICA" CROE ExC 03/01/05 Form Approved - AVP Law (iii) Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractors must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. The Contractors 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 the Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of the Contractor's equipment is unsafe for use, the Contractor shall remove such equipment from the Railroad's property. In addition, the 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 waming 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 property 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. The Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. The 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 the 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 Tess 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 conceming workplace safety. CROE ExC 03/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit C To Contractor's Right of Entry Agreement w N T s LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT MP 159.90 - Austin Subdivision A.W. Grimes Boulevard - DOT #924 253L New Underpass Grade Separation Crossing Construction Project ;RAastin ubdivvis an SUGAR IIEWCV1 MP 159.90 - Austin Subdivision Existing Raliroad Bridge Over Brushy Creek to be Replaced MAPLE RUN>t Data use subject to license. ® 2004 DeLorme. Street Atlas USA® 2005. www.delorme.com MIS 0 1000 2000 P4 (5.? E) Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Flagging. 2. The Contractor is responsible for ensuring that the Underpass Public Road Crossing construction project doesn't adversely impact Railroad operations. EXHIBIT "D" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 159.90 GPS: N 30°, 30.8368'; W 97°, 39.3610' ROUND ROCK, WILLIAMSON CO., TX. To accompany Contractor's Right of Entry Agreement with (Name of Contractor) for the construction of the a new underpass public road crossing. Folder No. 2356-83 Date: January 20, 2006 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 Location Print To Contractor's Riaht of Entry Aareement SCANNED # ' GIS