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R-06-04-13-10D5 - 4/13/2006RESOLUTION NO. R -06-04-13-10D5 WHEREAS, in connection with the CR 122 Improvements Project, the City of Round Rock wishes to enter into an Existing At -Grade Public Road Crossing Improvement Agreement with Union Pacific Railroad Company, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Existing At -Grade Public Road Crossing Improvement 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 atall 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 13th day of April, 20 NYL ^ T4'. ayor Ci y Roun. Rock, Texas CHRISTINE R. MARTINEZ, City Secref.a @PFDesktop\:: ODMA/WORLLOX'0:/WDOX/RESOLUTI/R60413D5.WPD/sc y UNION PACIFIC MID February 21, 2006 CITY OF ROUND ROCK C/O MR STEPHAN L SHEETS ATTORNEY AT LAW 309E MAIN ST ROUND ROCK TX 78664-5246 Dear Mr. Sheets: UPRR Folder No. 2362-54 RE: Proposed improvements to the existing CR 122 (Red Bud Lane) near Round Rock, Texas. Please refer to the above subject matter and the documentation to cover the construction project. Attached hereto are revised duplicate originals of an Existing At -Grade Public Road Crossing Improvement Agreement, for the public road crossing reconstruction project. To properly document your use of the Railroad Company's property, it is necessary that you execute the attached documents. Please return to me the following: 1. ALL of the executed documents. If a Contractor's Right -of -Entry Agreement is attached hereto, you may submit the executed Contractor's Right -of -Entry documentation upon selection of a contractor. 2. Certificate of Insurance, if required. 3. Resolution for document execution, if required. 4. Check made payable to the Union Pacific Railroad Company in the amount of $1,000.00. 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. Real Estate UNION PACIFIC RAILROAD 1400 Douglas Street, Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 EXHIBIT If we have not received the executed documents within six months from the date of this letter, this proposed offer of an agreement is withdrawn and becomes null and void. If you have any questions, please contact me. LL ontracts Phone: (40 544-8620 e-mail: pilarrell@up.com No Text UPRR Folder No.: 2362-54 EXISTING AT -GRADE PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY AND CITY OF ROUND ROCK COVERING • IMPROVEMENTS TO THE EXISTING CR 122 (RED BUD LANE) AT -GRADE PUBLIC ROAD CROSSING AT RAILROAD MILE POST 157.30, ON THE AUSTIN SUBDIVISION DOT NO.: 439 680P IN OR NEAR ROUND ROCK, WILLIAMSON COUNTY, TEXAS Political Body Original Existing At -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Form Approved -AVP Law EXISTING AT -GRADE PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT CR 122 (Red Bud Lane) — DOT No. 439 680P Railroad Mile Post 157.30, on its Austin Subdivision near Round Rock, Williamson County, Texas THIS AGREEMENT, executed in duplicate this day of 200, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Railroad"), and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas (hereinafter the "Political Body"), WITNESSETH: RECITALS: The Political Body has requested the Railroad to improve the existing CR 122 (Red Bud Lane) crossing, at grade, along, over and across the Railroad's track and right of way at Railroad Mile Post 157.30, on its Austin Subdivision, DOT No. 439 680P, near Round Rock, Williamson County, Texas to which the Railroad is agreeable, but solely upon terms and conditions hereinafter set forth. AGREEMENT: NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: 1. The Railroad, at Political Body's expense, shall furnish all labor, material, equipment and supervision for the: • re-laying of 320 -feet of track, • 136 -feet of concrete road crossing surface, • 95 -cross ties, • 2 carloads of ballast, • the relocation of existing signal gates, • and other track and signal materials, all at the intersection of the Railroad's Austin Subdivision with CR 122 (Red Bud Lane) at the location described above and as shown generally on Railroad's print marked Exhibit A-1 and as detailed on the Political Body's specification print marked Exhibit A-2, with each exhibit being hereto attached and hereby made a part hereof. 2. The Political Body agrees to reimburse the Railroad for one hundred percent (100%) of Railroad's actual labor and material costs associated with the work and materials described in Section 1 above. The Railroad estimates such cost to be One Hundred Twenty -Four Thousand One Hundred One Dollars ($124,101.00), as set forth in Estimates of Material and Force Accounts marked Exhibits B-1 and 13-2, hereto attached and hereby made a part hereof. 2362-54 City of Round Rock near Round Articles of Agreement February 21, 2006 Rock, TX — CR 122 (Red Bud Lane) Page 1 of 3 Existing At -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Form Approved -AVP Law During the performance of such work the Railroad will provide progressive billing to Political Body based on Railroad's actual costs. Actual costs to the Railroad shall include customary additives to materials, services and labor provided by the Railroad. Within 120 Days after Railroad has completed its work, the Railroad will submit a final billing to Political Body for any balance owed. Political Body shall pay the Railroad within thirty (30) days of its receipt of all bills submitted by the Railroad. 3. The Railroad, at its cost, shall maintain the crossing between the track tie ends. Any future replacement of the concrete crossing shall be performed by the Railroad at Political Body's expense. 4. The Political Body, at its sole cost and expense, shall provide traffic control, barricades, and all detour signing for the crossing work, provide all labor, material and equipment to install concrete or asphalt street approaches, and if required, will install advanced warning signs, and pavement markings in compliance and conformance with the Manual on Uniform Traffic Control Devices. 5. If Political Body's contractor(s) is/are performing any work described in Section 4 above, then the Political Body shall require its contractor(s) to execute the Railroad's standard and current form of Contractor's Right of Entry Agreement attached hereto as Exhibit C and hereby made a part hereof. Political Body acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor(s) of the need to execute the Agreement. Under no circumstances will the Political Body's contractor(s) be allowed onto the Railroad's premises without first executing the Contractor's Right of Entry Agreement. 6. 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 or its contractor(s) 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 number, 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 or its contractor(s). If it is, Political Body or its contactor(s) 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. 7. The Political Body, for itself and for its successors and assigns, hereby waives any right of assessment against the Railroad, as an adjacent property owner, for any and all improvements made under this agreement. 8. Covenants herein shall inure to or bind each party's successors and assigns; provided, no right of the Political Body shall be transferred or assigned, either voluntarily or involuntarily, except by express written agreement acceptable to the Railroad. 2362-54 City of Round Rock near Round Articles of Agreement Rock, TX — CR 122 (Red Bud Lane) Page 2 of 3 February 21, 2006 Existing At -Grade PRX Improvement Agreement 20001204 Form Approved -AVP Law UPRR Folder No.: 2362-54 9. The Political Body shall, when returning this agreement to the Railroad (signed), cause same to be accompanied by such Order, Resolution, or Ordinance of the governing body of the Political Body, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of the Political Body with the power so to do, and which also will certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by Political Body. 10. Upon execution and delivery of this Agreement, the Political Body shall pay to the Railroad an administrative handling charge of ONE THOUSAND DOLLARS (S1,000.00). IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID 04-6001323) By GREGORY L. PINKER Director Contracts Al JEST: County Clerk CITY OF ROUND ROCK By Title: (Seal) Pursuant to Resolution/Order No. dated hereto attached. 2362-54 City of Round Rock near Round Articles of Agreement Rock, rX — CR 122 (Red Bud Lane) Page 3 of 3 February 21, 2006 EXHIBIT A-1 To Existing At -Grade Public Road; Crossing Improvement Agreement Railroad's Location Print (See Section 1) w K1M CV `4DELORME LOCATION OF AN EXISTING AT -GRADE PUBLIC ROAD CROSSING RECONSTRUCTION PROJECT JOSEPH ST TIFFANY MCQIEST 0 CR 1.1-• MP 157.30 - Austin Subdivision CR 122 -4 (Red Bud Lane411 ) - DOT #439 680P Existing At -Gracie Public Road Crossing Surface & Signal Reconstruction Project Ce - U• 0 a tn WOODLAND LN N0ODLAND L00P - COL;NTRYDR .. VNTAI E DR WILDFLO'NER TRL 0 z co - C 0 f m _____,=_____r -•:rte; i "` a Austin Subdivision 0, NaxilYd sti9r1s3av1/1 LZS` ry c.R.17.3 • Data use subject to icense. @ 2004 DeLorme. Street Atlas USA@ 2005. www.delonne.com MN(52'E) ft 0 1000 2008 Date Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Install 136 feet of concrete road crossing surface; 2 carloads of ballast; and reconstruct 320 -feet of track and 95 cross ties; and other track materials. 2. Relocate existing flashing signals with gates and other signal facilities. 3. Flagging. EXHIBIT "A-1" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 157.30 GPS: N 30° 31.8816', W 97° 36.8700' near ROUND ROCK, WILLIAMSON COUNTY CO., TX. Illustrative print showing location of an existing at -grade public road crossing reconstruction project with the CITY OF ROUND ROCK. Folder No. 2362-54 Date: February 21, 2006 WARNING LN ALL OCCASIONS, U.P. CO.4Lb1 NICATIONS DEPARTMENT MUST BE CONTAC l hI) IN ADVANCE OF ANY WORK TO DETER E E EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE' 1-{800) 336-9193 Exhibit A-1 Location Print To Existing Public Road At -Grade Crossing Agreement 1 �1- EXHIBIT To Existing At -Grade Public Road Crossing Improvement Agreement Political Body's Specification Print (See Section 1) Exhibit A-2 County Specification Print To Existing At -Grade Public Road Crossing Agreement EXHIBIT B-1 To Existing At -Grade Public Road Crossing Improvement Agreement Railroad's Surface Estimate of Material and Force Account Work (See Section 2) DATE: 2005-11-16 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: RECOLLECTABLE SURFACE PROSECT AUSTIN 8UB / HP 157.30 / CR122/RED BUD DOT 439680PUSIN6 STANDARD 1004 RECOLLECTABIlE ACTUAL COST CITY Or ROUND LABOR ADDITIVES OF 2354. UPRR TO FURNISH. AND INSTALL 136 TF OF NEW CONCRETE SURFACE INCLUDING RAIL., TIE8, OTM AND BALLAST REPLACING EXISTING CROSSING. INSTALL BOOTLEGS AS REQUIRED FOR SIGNALIZATION OF TRACK. MP,SUBDIV: 157.30, AUSTIN STATE: TX YID: 53872 ARO: 55135 SERVICE UNIT: 12 CITY: HUTTO DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK 1476 1476 1476 ENGINEERING ---- TOTAL ENGINEERING 1476 1476 1476 SIGNAL WORK 2085 2085 2085 LABOR ADDITIVE 2354 MATL STORE EXPENSE 1 1 1 SAN2 2 1 SIGNAL S TAX 887 51 938 9382 ------ ----- _____ —� 2972 54 3026 3026 TOTAL SIGNAL TRACK 8 SURFACE WORK 723 1193 1916 1916 �,r 2.00 CL 2500 CONTRACTOR/OPERATOR 2500 250096 FIELD Worn 96 96 15 5 415 4 FOREIGN LINE FREIGHT 41 415 900 415 BONE LINE FREIGHT 9030954 30954 30954 LABOR ADDITIVE 2354 780 780 780 MAIL STORE EXPENSE 778 B93 1671 1671 RAI 320.00 IF 1053 5488 6541 6541 RAIL 25327 RDXING 136.00 TF 4592 20735 25327 1444 SALES TAX 1444 1444 2500 TRAFFIC Cc[TtROL 2500 2500 3140 TRK-SURF.LIN 3140 3140 X 3131 526 3657 3657 XTIE 95.00 EA 6603 - 7332 - ] 3935 13935 --__--- -__-'_^- TOTAL TRAGIC & SURFACE 51070 44706 95776 95776 -------- LABOR/NATERIAL ExPENSE 55518 44760 BECOLLBCTIBLE/UPRR EXPENSE 100278 0 ---__-_ ESTIMATED PROJECT COST 100278 0 EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLE MATERIAL CREDIT RECOLLECTIBLE LESS CREDITS THE ABOVE FIGURES ARE ES AN INCREASE O DECREASE IN THE COSTYQUANTITY OR AND UOF FLUCTUATION. MATERIAL OR LABORO REQUIRED,OF UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. 0 Exhibit B-1 Railroad's Surface Estimate of Material and Force Account Work To Existing At -Grade Public Road Crossing Agreement EXHIBIT B-2 To Existing At -Grade Public Road Crossing Improvement Agreement Railroad's Signal Estimate of Material. and Force Account Work (See Section 2) DATE: 2005-11-30 E$TIMATE OF MATERIAL AND FORCE ACCOUNT NORK BY THE UNION PACIFIC RAILROAD DESSCRIPTION OF Nom Rb7ACAT6 EXISTING GRIM AT CR -122 IN BITI70. TE. M.P. 157.30 (I THE AUSTIN SUS. SIGNAL PROJECT 79,I601121 ROIL CLARX.SOK 867-7261 RAILROAD TO PERFORM ALL MORK / COST DISTRIBUTED AS FOLLONS: SIC?A1. - CITY OF ROVED ROCK 1000 RYCoLLBCr'IBL6 PID: 53873 AIM): 55136 MP,$UBDIV: 157.30. AUSTIN SERVICE UNIT: 12 CITY: HUTTO STATS: TX DESCRIPTION QTY UNIT LABOR MATERIAL RECOIL OPER TOTAL EN0I18iZRING WORK ENGINEERING 639 439 639 LABOR ADDITIVE 177.681 1579 1579 1579 SIG -100 ENG 250 250 250 TOTAL ENGINEERING 2468 2448 2468 SIGNAL WORK SIGNAL 2624 2674 2624 TOTAL SIGNAL 2624 2624 2624 +IRACR k SURFACE NORX BILL PREP OONrRAC'r EARTH FILL/ROCK LABOR ADDITIVE 177.681 PERSONAL EXPENSES SIC-IBCY IMO TRANSPORTATION CHARGES RI TRAFFIC CONTROL TVI'AL TRACK A SURFACE 450 450 450 262 262 26: 130D 1300 1300 7083 7883 7883 375D 3750 3750 4436 4436 4436 200 200 200 450 450 450 12769 5962 18731 18731 LABOR/1AITERIAL EXPENSE 15237 8586 RBcOIJACPIBLE/UPRR EXPENSE 23823 0 ESTIMATRO PROJECT CAST EXISTING RRU6EAEL6 MATERIAL CREDIT 0 EAMORsowszuLE MATERIAL. CRRDI? 0 RECOL[ECTIALE LesS CREDITS 23823 TEE A800E FI IES ARE ESTIMATES ONLY AND SUBJECT TO PLUCRIATIOE. IS TEE WENT OF AN INCREASE OR =ERASE I11 THE OOrT OR MAN= OF IOLTRRIAL 01 LABOR REQUIRED, UPRR Elm BILL. FOR ACTUAL OONSTRUCr20N COOTS AT THE CURRENT EFFECTIVE RATE. Exhibit B-2 Railroad's Signal Estimate of Material and Force Account Work To Existing At -Grade Public Road Crossing Agreement EXHIBIT C To Existing At -tirade Public Road Crossing Improvement Agreement Contractor's Right of Entry Agreement (See Section 5) To the Contractor: UNION PACIFIC RAILROAD COMPANY Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 (402) 544-8620 December 14, 2005 Before Union Pacific Railroad Company can permit you to perform work on its property for the reconstruction and improvement of the existing CR 122 (Red Bud Lane) at -grade public road crossing, it will be necessary For you to sign and complete two originals of the enclosed Contractor's Rizht 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 5500.00. 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 (RPLT) 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 BUILDING AMERICA" UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT (State of Texas) THIS AGREEMENT is made and entered into as of the day of 200by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (Name of Contractor) a ("Contractor"). (State of Incorporation) RECITALS: Contractor has been hired by the City of Round Rock to perform work relating to the reconstruction and widening of the existing US 77/83 Overpass grade separation crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 157.30 on the Railroad's Austin Subdivision located at or near Round Rock, in Williamson County, State of Texas, which work is the subject of a contract dated between Railroad and the City of Round Rock, as such location is also (Date of C&MAgreement) shown on the print marked Exhibit D, attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1- DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of Contractor's Permit— (Texas) 04/01/05 Form Approved- AVP Law Page 1 of 4 January 26, 2006 BUILDING AMERICA; UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 AND 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. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 Phone: (512) 255-5966 Facsimile: (512) 218-4480 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit A. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein (Expiration Date) provided, 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's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other pay Contractor's ROE — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 4 January 26, 2006 1 BUILDING AMERICA' ARTICLE 6 - CERTIFICATE OF INSURANCE. UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 sent to: Union Pacific Railroad Company Real Estate Departtnent 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 Attn: Folder No.: 2362-54 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, 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's property without the prior written approval of Railroad. Contractor's ROE — (Texas) 04/01/05 Form Approved - AVP Law Page 3 of 4 January 26, 2006 BUILbING AMERICA' UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 Contractor's ROE — (Trans) 04/01/05 Form Approved - AVP Law Title: Page 4 of 4 January 26, 2006 111111 BUILDING AMERICA Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), 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 Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local govemmental entity have agreed that Railroad is to bill such expenses to the federal, state or local govemmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractors receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized govemmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five clay cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 4 Exhibit A To Contractor's Right of Entry Agreement 1 „wIn v�unc II) !I BUILDING AMERICA Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 6. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attomeys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work Including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit C, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit C to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 4 Exhibit A To Contractor's Right of Entry Agreement Y41D" PllLlilL Contractors ROE ExA — (Texas) 04/01/05 BUILDING AMERICA Form Approved - AVP Law C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8. INDEMNITY. A. TO THE EXTENT NOT PROHIBITED BY APPLICABLE STATUTE, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS AND EMPLOYEES ("INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEY'S, CONSULTANTS AND EXPERTS FEES, AND COURT COSTS), FINE OR PENALTY (COLLECTIVELY, "LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY, CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT OF OR IN ANY MANNER CONNECTED WITH (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES, OR (11I) ANY BREACH OF THIS AGREEMENT BY CONTRACTOR. B. THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GMNG RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY NEGUGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABUSHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGUGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C. CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO. D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST RAILROAD. E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad In connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroads property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Contractors ROE ExA — (Texas) 04/01/05 Page 3 of 4 Exhibit A Forrn Approved - AVP Law To Contractor's Right of Entry Agreement 4'0.4 111111 BUILDING AMERICA` Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 4 of 4 Exhibit A To Contractor's Right of Entry Agreement MMnaI, oaa BUILDING AMERICA` Contractor's ROE ExB — (Texas) 04/01/05 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 on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $2,000,000 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 • 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 Contractor's employees. • 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 Contractor will be using, storing and/or handling hazardous materials, Contractor, in addition to the other endorsements to be obtained by 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 Railroad. B. Business Automobile Coverage Insurance. This insurance shall contain a combined single limit of at least $2,000,000 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 Contractor's employees. • Products and completed operations. • 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 of Texas • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If the State of Texas requires participants in a state workers' compensation fund and if Workers Compensation insurance will Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit B To Contractor's Right of Entry Agreement BUILDING AMERICA" Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law not cover the liability of Contractor in the State of Texas, Contractor shall comply with such laws. If Contractor is self-insured, evidence of state 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 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 Railroad until the original policy is forwarded to Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its 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 the 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 of Texas. 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. If Contractor fails to procure and maintain insurance as required, Railroad may elect to do so at the cost of Contractor, plus a 25% administration fee. M. 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. Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit B To Contractor's Right of Entry Agreement Contractor's ROE ExB -- (Texas) 04/01/05 BUILDING AMERICA' 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 Contractor as well as all employees of any subcontractor or agent of Contractor. 1. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear • Waist -length shirts with sleeves. • Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. • 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. 11. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. • Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. • 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. • 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) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be wom as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: • Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative Is present to authorize movements. • Wear an orange, reflectorized workwear approved by the Railroad Representative. Contractor's ROE ExC — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit C To Contractor's Right of Entry Agreement BUILDING AMERICA Contractors ROE ExR — (Texas) 04/01/05 Form Approved - AVP Law • Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and Bearing the track Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is In a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • Familiar and comply with Railroad's rules on lockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up 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 properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job. If any employee has any questions or concems about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: • Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. • Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. • 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). • Avoid walking or standing on a track unless so authorized by the employee in charge. • Before stepping over or crossing tracks, look in both directions first. • Do not sit on, tie 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. Contractor's ROE ExC — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit C To Contractor's Right of Entry Agreement Exhibit D Location Print To Contractor's Right of Entry Agreement IN LOCATION PRINT ACCOMPANYING A 404 w_ op ;,= -E CONTRACTOR' S RIGHT OF EN'IRY AGREEMENT s ''.JOSEPH ST y z -, TIFFANYN1CO.LEST IC . x "" • .. ,. 11:1-----------1--Austin Austin Subdivision , -*: r '" � .9 Aro& Cr. Qa CAP? - 79 " } MP 157.30 - Austin Subdivision CR 122 (Red Bud Lane) - DOT #439 680P Existing At -Grade Public Road Crossing Surface r Signal Reconstruction Prated w' " - } r $ _W.- --§ 1tiC'�` WODdLANDLN . . . ..r ---.—, ,b ,..v. k 8 _ _ 1vootn. ND LOOP y ?L. COUlffFtY DR. --- ,. - VINTAGE DR g . _...... ..- WILOFLOWERTRL ' . '''4DELORME111.111 s Dote use aubjed to !cense. o ION 153 Del.orme.Street Mss USA62005. 1 WWW.debrnie.c°m AN 5.7 E) Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Flagging. 2. The Contractor is responsible for ensuring that the reconstruction project doesn't adversely impact Railroad operations. . EXHIBIT "D" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 157.30 GPS: N 30°, 31.8816'; W 97°, 36.8700' near ROUND ROCK, WILLIAMSON CO., TX. To accompany Contractor's Right of Entry Agreement with (Name of Contractor) for the reconstruction to an existing at -grade public road crossing. Folder No. 2362-54 Date: February 21, 2006 WARNING LN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMINE EXISTENCE AND LOCATION OP FIBER OPTIC CABLE PHONE: 1-(800) 336-9193 Exhibit D Location Print To Contractor's Right of Entry Agreement • UPRR Folder No.: 2362-54 AUDIT CAg—�g�° EXISTING AT -GRADE PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY AND CITY OF ROUND ROCK COVERING IMPROVEMENTS TO THE EXISTING CR 122 (RED BUD LANE) AT -GRADE PUBLIC ROAD CROSSING AT RAILROAD MILE POST 157.30, ON THE AUSTIN SUBDIVISION DOT NO.: 439 680P IN OR NEAR ROUND ROCK, WILLIAMSON COUNTY, TEXAS Political Body Original -c f -43- J()05 Existing At -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Form Approvead-AVP Law AUDIT CA gro'o EXISTING AT -GRADE PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT CR 122 (Red Bud Lane) — DOT No. 439 680P Railroad Mile Post 157.30, on its Austin Subdivision near Round Rock, Williamson County, Texas THIS AGREEMENT, executed in duplicate this 13 day of 200 Io , by and between UNION PACIFIC RAILROAD COMPANY, a elaware corporation (hereinafter the "Railroad"), and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas (hereinafter the "Political Body"), WITNESSETH: RECITALS: The Political Body has requested the Railroad to improve the existing CR 122 (Red Bud Lane) crossing, at grade, along, over and across the Railroad's track and right of way at Railroad Mile Post 157.30, on its Austin Subdivision, DOT No. 439 680P, near Round Rock, Williamson County, Texas to which the Railroad is agreeable, but solely upon terms and conditions hereinafter set forth. AGREEMENT: NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: 1. The Railroad, at Political Body's expense, shall furnish all labor, material, equipment and supervision for the: • re-laying of 320 -feet of track, • 136 -feet of concrete road crossing surface, • 95 -cross ties, • 2 carloads of ballast, • the relocation of existing signal gates, • and other track and signal materials, all at the intersection of the Railroad's Austin Subdivision with CR 122 (Red Bud Lane) at the location described above and as shown generally on Railroad's print marked Exhibit A-1 and as detailed on the Political Body's specification print marked Exhibit A-2, with each exhibit being hereto attached and hereby made a part hereof. 2. The Political Body agrees to reimburse the Railroad for one hundred percent (100%) of Railroad's actual labor and material costs associated with the work and materials described in Section 1 above. The Railroad estimates such cost to be One Hundred Twenty -Four Thousand One Hundred One Dollars ($124,101.00), as set forth in Estimates of Material and Force Accounts marked Exhibits B-1 and B-2, hereto attached and hereby made a part hereof. 2362-54 City of Round Rock near Round Rock, TX — CR 122 (Red Bud Lane) Page 1 of 3 Articles of Agreement February 21, 2006 Existing At -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Form Approved -AVP Law During the performance of such work the Railroad will provide progressive billing to Political Body based on Railroad's actual costs. Actual costs to the Railroad shall include customary additives to materials, services and labor provided by the Railroad. Within 120 Days after Railroad has completed its work, the Railroad will submit a final billing to Political Body for any balance owed. Political Body shall pay the Railroad within thirty (30) days of its receipt of all bills submitted by the Railroad. 3. The Railroad, at its cost, shall maintain the crossing between the track tie ends. Any future replacement of the concrete crossing shall be performed by the Railroad at Political Body's expense. 4. The Political Body, at its sole cost and expense, shall provide traffic control, barricades, and all detour signing for the crossing work, provide all labor, material and equipment to install concrete or asphalt street approaches, and if required, will install advanced warning signs, and pavement markings in compliance and conformance with the Manual on Uniform Traffic Control Devices. 5. If Political Body's contractor(s) is/are performing any work described in Section 4 above, then the Political Body shall require its contractor(s) to execute the Railroad's standard and current form of Contractor's Right of Entry Agreement attached hereto as Exhibit C and hereby made a part hereof. Political Body acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor(s) of the need to execute the Agreement. Under no circumstances will the Political Body's contractor(s) be allowed onto the Railroad's premises without first executing the Contractor's Right of Entry Agreement. 6. 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 or its contractor(s) 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 number, 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 or its contractor(s). If it is, Political Body or its contactor(s) 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. 7. The Political Body, for itself and for its successors and assigns, hereby waives any right of assessment against the Railroad, as an adjacent property owner, for any and all improvements made under this agreement. 8. Covenants herein shall inure to or bind each party's successors and assigns; provided, no right of the Political Body shall be transferred or assigned, either voluntarily or involuntarily, except by express written agreement acceptable to the Railroad. 2362-54 City of Round Rock near Round Articles of Agreement February 21, 2006 Rock, 1'X — CR 122 (Red Bud Lane) Page 2 of 3 Existing At -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Foran Approved -AVP Law 9. The Political Body shall, when returning this agreement to the Railroad (signed), cause same to be accompanied by such Order, Resolution, or Ordinance of the governing body of the Political Body, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of the Political Body with the power so to do, and which also will certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by Political Body. 10. Upon execution and delivery of this Agreement, the Political Body shall pay to the Railroad an administrative handling charge of ONE THOUSAND DOLLARS ($1,000.00). IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNIO By ATTEST: ' CIFIC`RAILI�O (Fe•:ral ax ID #94-6 NY LIMN WI' • '' ' INKE Contracts 121-ri Cls SCC.6TRR eu„t9Clhtk (Seal) Pursuant to Resolution/Order No. R-04)-404/-13- /005 dated. 13) LO%%200(4) hereto attach 2362-54 City of Round Rock near Round Articles of Agreement Rock, TX — CR 122 (Red Bud Lane) Page 3 of 3 February 21, 2006 RESOLUTION NO. R -06-04-13-10D5 WHEREAS, in connection with the CR 122 Improvements Project, the City of Round Rock wishes to enter into an Existing At -Grade Public Road Crossing Improvement Agreement with Union Pacific Railroad Company, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Existing At -Grade Public Road Crossing Improvement 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 13th day of April, 20 ST: £rThoh NYL ayor Ci y Roun• Rock, Texas CHRISTINE R. MARTINEZ, City Secretary @PFDesklnp\::ODHA./WORLLOX'0:/WDOX/RESOLUTI/R604]3D5.WPD/sc UNION PACIFIC February 21, 2006 CITY OF ROUND ROCK C/O MR STEPHAN L SHEETS ATTORNEY AT LAW 309 E MAIN ST ROUND ROCK TX 78664-5246 Dear Mr. Sheets: UPRR Folder No. 2362-54 RE: Proposed improvements to the existing CR 122 (Red Bud Lane) near Round Rock, Texas. Please refer to the above subject matter and the documentation to cover the construction project. Attached hereto are revised duplicate originals of an Existing At -Grade Public Road Crossing Improvement Agreement, for the public road crossing reconstruction project. To properly document your use of the Railroad Company's property, it is necessary that you execute the attached documents. Please return to me the following: 1. ALL of the executed documents. If a Contractor's Right -of -Entry Agreement is attached hereto, you may submit the executed Contractor's Right -of -Entry documentation upon selection of a contractor. 2. Certificate of Insurance, if required. 3. Resolution for document execution, if required. 4. Check made payable to the Union Pacific Railroad Company in the amount of $1,000.00. 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 Forrn 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. Real Estate UNION PACIFIC RAILROAD 1400 Douglas Street, Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 EXHIBIT If we have not received the executed documents within six months from the date of this Ietter, this proposed offer of an agreement is withdrawn and becomes null and void. If you have any questions, please contact me. LL r M. .ger ' ontracts Phone: (40 544-8620 e-mail: pilarrell@up.com t 0:9 No Text UPRR Folder No.: 2362-54 EXI S TING AT -GRADE PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT BETWEEN UNION PACIFIC RAILROAD COMPANY- AND OMPANY AND CITY OF ROUND ROCK COVERING IMPROVEMENTS TO THE EXISTING CR 122 (RED BUD LANE) AT -GRADE PUBLIC ROAD CROSSING AT RAILROAD MILE POST 157.30, ON THE AUSTIN SUBDIVISION DOT NO.: 439 680P IN OR NEAR ROUND ROCK, WILLIAMSON COUNTY, TEXAS Political Body Original Existing A; -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Form Approved -AVP Law EXISTING AT -GRADE PUBLIC ROAD CROSSING IMPROVEMENT AGREEMENT CR 122 (Red Bud Lane) — DOT No. 439 680P Railroad Mile Post 157.30, on its Austin Subdivision near Round Rock, Williamson County, Texas THIS AGREEMENT, executed in duplicate this day of 200 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation (hereinafter the "Railroad"), and the CITY OF ROUND ROCK, a municipal corporation of the State of Texas (hereinafter the "Political Body"), WITNESSETH: RECITALS: The Political Body has requested the Railroad to improve the existing CR 122 (Red Bud Lane) crossing, at grade, along, over and across the Railroad's track and right of way at Railroad Mile Post 157.30, on its Austin Subdivision, DOT No. 439 680P, near Round Rock, Williamson County, Texas to which the Railroad is agreeable, but solely upon terms and conditions hereinafter set forth. AGREEMENT: NOW THEREFORE, in consideration of the premises and of the promises and conditions hereinafter set forth, the parties hereto agree as follows: 1. The Railroad, at Political Body's expense, shall furnish all labor, material, equipment and supervision for the: • re-laying of 320 -feet of track, • 136 -feet of concrete road crossing surface, • 95 -cross ties, • 2 carloads of ballast, • the relocation of existing signal gates, • and other track and signal materials, all at the intersection of the Railroad's Austin Subdivision with CR 122 (Red Bud Lane) at the location described above and as shown generally on Railroad's print marked Exhibit A-1 and as detailed on the Political Body's specification print marked Exhibit A-2, with each exhibit being hereto attached and hereby made a part hereof. 2. The Political Body agrees to reimburse the Railroad for one hundred percent (100%) of Railroad's actual labor and material costs associated with the work and materials described in Section 1 above. The Railroad estimates such cost to be One Hundred Twenty -Four Thousand One Hundred One Dollars ($124,101.00), as set forth in Estimates of Material and Force Accounts marked Exhibits B-1 and 13-2, hereto attached and hereby made a part hereof. 2362-54 City of Round Rock near Round Rock, TX — CR 122 (Red Bud Lane) Articles of Agreement February 21, 2006 Page 1 of 3 Existing At -Grade PRX Improvement Agreement 20001204 UPRR Folder No.: 2362-54 Form Approved -AVP Law During the performance of such work the Railroad will provide progressive billing to Political Body based on Railroad's actual costs. Actual costs to the Railroad shall include customary additives to materials, services and labor provided by the Railroad. Within 120 Days after Railroad has completed its work, the Railroad will submit a final billing to Political Body for any balance owed. Political Body shall pay the Railroad within thirty (30) days of its receipt of all bills submitted by the Railroad. 3. The Railroad, at its cost, shall maintain the crossing between the track tie ends. Any future replacement of the concrete crossing shall be performed by the Railroad at Political Body's expense. 4. The Political Body, at its sole cost and expense, shall provide traffic control, barricades, and all detour signing for the crossing work, provide all labor, material and equipment to install concrete or asphalt street approaches, and if required, will install advanced warning signs, and pavement markings in compliance and conformance with the Manual on Uniform Traffic Control Devices. 5. If Political Body's contractor(s) is/are performing any work described in Section 4 above, then the Political Body shall require its contractor(s) to execute the Railroad's standard and current form of Contractor's Right of Entry Agreement attached hereto as Exhibit C and hereby made a part hereof. Political Body acknowledges receipt of a copy of the Contractor's Right of Entry Agreement and understanding of its terms, provisions, and requirements, and will inform its contractor(s) of the need to execute the Agreement. Under no circumstances will the Political Body's contractor(s) be allowed onto the Railroad's premises without first executing the Contractor's Right of Entry Agreement. 6. 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 or its contractor(s) 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 number, 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 or its contractor(s). If it is, Political Body or its contactor(s) 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. 7. The Political Body, for itself and for its successors and assigns, hereby waives any right of assessment against the Railroad, as an adjacent property owner, for any and all improvements made under this agreement. 8. Covenants herein shall inure to or bind each party's successors and assigns; provided, no right of the Political Body shall be transferred or assigned, either voluntarily or involuntarily, except by express written agreement acceptable to the Railroad. 2362-54 City of Round Rock near Round Articles of Agreement Page 2 of 3 Rock, 1X — CR 122 (Red Bud Lane) February 21, 2006 Existing At -Grade PRX Improvement Agreement 20001204 Form Approvcd-AVP Law UPRR Folder No.: 2362-54 9. The Political Body shall, when returning this agreement to the Railroadsl ed cause same to be accompanied by such Order, Resolution, or Ordinance of the governing body of the Political Body, passed and approved as by law prescribed, and duly certified, evidencing the authority of the person executing this agreement on behalf of the Political Body with the power so to do, and which also will certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by Political Body. 10. Upon execution and delivery of this Agreement, the Political Body shall pay to the Railroad an administrative handling charge of ONE THOUSAND DOLLARS (S1,000.00). IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY (Federal Tax ID #94-6001323) By GREGORY L. PINKER Director Contracts A 1'1EST: County Clerk CITY OF ROUND ROCK By Title: (Seal) Pursuant to Resolution/Order No. dated hereto attached. 2362-54 City of Round Rock near Round Articles of Agreement Rock, TX— CR 122 (Red Bud Lane) Page3 of3 February 21, 2006 EXHIBIT A-1 To Existing At -Grade Public Road Crossing Improvement Agreement Railroad's Location Print (See Section 1) s Mcv rn rn Alt DELORME Data use subject to license. 62004 Defame. Street Atlas USA9 2005. www.delonne.com LOCATION OF AN EXISTING AT—GRADE PUBLIC ROAD CROSSING RECONSTRUCTION PROJECT JOSEPH ST TIFFANY NICDLEST A cis -17 a n i w . -'�`� Austin Subdivision 4- C0 - MP 157.30 - Austin Subdivision CR 122 (Red Bud Lane) - DOT #439 680P Existing At -Gracie Public Road Crossing Surface & Signal Reconstruction Project U 0 a m WOODLAND LN W600LAND LOOP - COUNTRY DR . VNTAGEDR WILDFL09YER TRL RAILROAD WORK TO BE PERFORMED: 1. Install 136 feet of concrete road crossing surface; 2 carloads of ballast; and reconstruct 320 -feet of track and 95 cross ties; and other track materials. 2. Relocate existing flashing signals with gates and other signal facilities. 3. Flagging. 2 ca{23 n 0 1000 2000 Data Zoom 13-0 EXHIBIT "A-1" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 157.30 GPS: N 30° 3L8816', W 97° 36.8700' near ROUND ROCK, WILLIAMSON COUNTY CO., TX. Illustrative print showing location of an existing at -grade public road crossing reconstruction project with the CITY OF ROUND ROCK. Folder No. 2362-54 Date: February 21, 2006 WARNING IN ALLOCCASIONS, U3. CONLAE rCAT1ONS DEPARTMENT MUST BE CONTAL I IN ADVANCE OF ANY WORK TO DErELMn, *E EXISTENCE AND LOCATION OF FIBER OPTIC CABIN ` PHONE: 1-{800) 336-9193 Exhibit A-1 Location Print To Existing Public Road At -Grade Crossing Agreement To Existing At-Grade Public Road Crossing Improvement Agreement Political Body's Specification Print (See Section 1) Exhibit A-2 County Specification Print To Existing At -Grade Public Road Crossing Agreement EXHIBIT B-1 To Existing At-Grade Public Road Crossing Improvement Agreement Railroad's Surface Estimate of Material and Force Account Work (See Section 2) DATE: 2005--11-16 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: RECOLLECTABLE SURFACE PROJECT AUSTIN SUB / MP 157.30 / CR122/Rs0 BUD LA / DOT 439680P 1001 RECOLLECTABLE ACTUAL COST CITY OF ROUND ROCK, TX, USING STANDARD LABOR ADDITIVES OF 2351. UPRR TO FURNISH AND INSTALL 136 TF OF NEW CONCRETE SURFACE INCLUDING RAIL, TIES, OTM AND BALLAST REPLACING EXISTING CROSSING. INSTALL BOOTLEGS AS REQUIRED FOR SIGNALIZATION OF TRACK. PID: 53872 ARO: 55135 MP,SUBDIV: 157.30, AUSTIN SERVICE UNIT: 12 CITY: HUTTO STATE: TX DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK 1976 1476 ENGINEERING 1476 -_--___ -_ TOTAL ENGINEERING 1476 1476 1476 SIGNAL WORK 2085 2085 LABOR ADDITIVE 2351 2085 MATL STORE EXPENSE 1 1 1 SALES TAX 2 2 2 SIGNAL 867 51 -938 _� 938 2972 54 3026 3026 TOTAL SIGNAL TRACK i SURFACE WORK 1916 �A,sT 2_00 CL 723 1193 1916 CONTRACTOR/OPERATOR 2500 2500 2500 FIELD WELD 96 96 96 FOREIGN LINE FREIGHT 415 415 415 HOME LINE FREIGHT 900 900 900 LABOR ADDITIVE 235% 30954 780 30954 954 30954 954 MATL STORE EXPENSE 1671 OTM 778 893 1671 RAIL 320.00 LF 1053 5488 6541 6541 RDXING 136.00 TF 4592 20735 25327 25327 SALES TAX 1444 1444 1444 TRAFFIC CONTROL 2500 2500 2500 TRK_SURF, LIN 3140 3140 3140 WELD 3131 526 3657 3657 'TIE 95.00 EA 6603 7332 13935_- 13935 TOTAL TRAGIC & SURFACE 51070 44706 95776 95776 LABOR/MATERIAL EXPENSE 55518 44760 RBOOLLECTIBLE/UPRR EXPENSE 100278 0 __---- ESTIMATED PROJECT COST 100278 EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NOMUSEABLE MATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF H TERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. 0 Exhibit 8-1 Railroad's Surface Estimate of Material and Force Account Work To Existing At -Grade Public Road Crossing Agreement EXHIBIT B-2 To Existing: At -Grade Public Road Crossing Improvement Agreement • Railroad's Signal Estimate of Material and Force Account Work (See Section 2) DATE: 2005-11-30 ESTIMATE OF MATERIAL AM FORCE ACcOUI? MURK BY TNA UNION PACIFIC RAILROAD DESCRIPTION OF WORK: R61AOAt£ EXISTING GATES AT CR -122 IN RCM. id. K.R. 157.30 ON TRS AUSTIN SUB. SIGNAL PROJECT IQINAGIR: RON CLAi1S W 867-7261 RAILROAD TO PERFORM ALL NORX / COST DISSRL8UD3O AS FOGLONB: SIpRAL - CITY OF ROM ROCK 1004 RYOOLLCCCISLE PID. 531173 ANC): 55136 SERVICE UNIT; 12 CITY: HUTTO ID?.9t1EDI4: 157.30. AUSTIN STATE: TX DESCRIPTION OTT UNIT LABOR »=ARTA. RRCO L OMR TOTAL ENGINEERING WORK ENGINEERING 639 439 639 LABOR 3DDITIYE 177.46% 1579 1579 1519 SIG -N Y TNG 250 250 250 TOTAL 8I I1EEP3NG 2468 2448 2468 SIGNAL MORN SIGNAL 2624 2624 2624 TOTAL SICB.L �1RAC1C E SURFACE WORT BILL PREP CONIRACf EARTH FILL/ROC( LABOR ACOITI11 177.684 PERSONAL MOISES SIC-NNY 7310 TRANSPORTATION MERGES Wb TRAFFIC CONTROL WIWI. TRACI 6 SURFACE 450 7/83 4436 2624 2624 2624 450 450 262 262 262 1300 1300 1300 7663 7883 3750 3750 3750 4436 4436 200 200 200 450 45Q 459 12769 5962 18731 18731 LAEOR/MATIRIAL EXPENSE 15237 8586 RSCOLLECPIELE/UPRR IMPOSE 23823 0 ISTIRATm PROJECT HOST EXISTING IEUEEAII1IS RAIIIttAL CREDIT 0 SALYA'g JOEUSID.ILP RATERSAL COIT 0 REOOI.LECTI8LE LESS CREDITS 23823 THE A8008 FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IB 170E NEER' OF AN AICRERSB OR DF7C E80E 111 YBE COST OR 033872 S OF ».'INRI3L 01 LABOR AMMO, 0PRR DILL HILL. PPR ACTUAL 90MST1WCI70N COSTS AT THE 0078887 EFFECTIVE BATH. Exhibit B-2 Railroad's Signal Estimate of Material and Force Account Work To Existing At -Grade Public Road Crossing Agreement EXHIBIT C To Dd.sting-At-0-ade Public. Road Crossing Improvement Agreement _ Contractor's Right of Entry Agreement (See Section 5) r To the Contractor: UNION PACIFIC RAILROAD COMPANY Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 (402) 544-8620 December 14, 2005 Before Union Pacific Railroad Company can permit you to perform work on its property for the reconstruction and improvement of the existing CR 122 (Red Bud Lane) at -grade public road crossing, it will be necessary For you to sign and complete two originals of the enclosed Contractor's Right ofEntry 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 5500.00. 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 BUILDING AMERICA UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT (State of Texas) THIS AGREEMENT is made and entered into as of the day of 200 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (Name of Contractor) a ("Contractor"). (State of Incorporation) RECITALS: Contractor has been hired by the City of Round Rock to perform work relating to the reconstruction and widening of the existing US 77/83 Overpass grade separation crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 157.30 on the Railroad's Austin Subdivision located at or near Round Rock, in Williamson County, State of Texas, which work is the subject of a contract dated between Railroad and the City of Round Rock, as such location is also (Date of C&MAgreement) shown on the print marked Exhibit 0, attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1- DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of Contractor's Permit — (Texas) 04/01/05 Form Approved- AVP Law Page 1 of 4 January 26, 2006 YNON �( I BUILDING AMERICA"' UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 AND 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. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Roc, TX 78664 Phone: (512) 255-5966 Facsimile: (512) 218-4480 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit A. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein (Expiration Date) provided, 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's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party - Contractor's ROE — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 4 January 26, 2006 BUILDING AMERICA' UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 Attn: Folder No.: 2362-54 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, 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's property without the prior written approval of Railroad. Contractor's ROE — (Texas) 04/01A)5 Form Approved - AVP Law Page 3 of 4 January 26, 2006 BUILDING AMERICA" UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 Contractor's ROE— (Texas) 04/01/05 Form Approved -AVP Law Title: Page 4 of 4 January 26, 2006 BULDING AMERICA" Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), 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 Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local govemmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the govemmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is fumished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Contractor's ROE ExA—(Texas) 04/01/05 Form Approved - AVP Law Page 1 of 4 Exhibit A To Contractor's Right of Entry Agreement 1 BUILDING AMERICA" Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractor's machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor-, or any other person or entity for any such delays_ The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractors expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroads property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary comply with all applicable federal, state and local laws, regulations and enactments affecting the work includinpwithout imermits itation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit C, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit C to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 4 Exhibit A To Contractor's Right of Entry Agreement BUILDING AMERICA' Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have In their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Pian. 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 APPUCABLE STATUTE, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS AND EMPLOYEES ("INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT UMITATION, ATTORNEY'S, CONSULTANTS AND EXPERT'S FEES, AND COURT COSTS), FINE OR PENALTY (COLLECTIVELY, "LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY, CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT OF OR IN ANY MANNER CONNECTED WITH (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES, OR (III) ANY BREACH OF THIS AGREEMENT BY CONTRACTOR. B. THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABIUTY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABUSHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C. CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL UABIUTY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO. D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE REUED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABIUTY AGAINST RAILROAD. E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Contractors ROE ExA — (Texas) 04/01/05 Page 3 of 4 Form Approved - AVP Law Exhibit A To Contractor's Right of Entry Agreement BUILDING AMERICA Contractor's ROE ExA — (Texas) 04/01/05 Folin Approved - AVP Law Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. Contractors ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 4 of 4 Exhibit A To Contractor's Right of Entry Agreement RUII.DING AMERICA' Contractor's ROE Exe — (Texas) 04/01/05 Forrn 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 on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $2,000,000 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 • 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 Contractor's employees. • 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 Contractor will be using, storing and/or handling hazardous materials, Contractor, in addition to the other endorsements to be obtained by 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 Railroad. B. Business Automobile Coverage Insurance. This insurance shall contain a combined single limit of at least $2,000,000 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 Contractors employees. • Products and completed operations. • 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 dean 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 of Texas • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If the State of Texas requires participants in a state workers' compensation fund and if Workers Compensation insurance will Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit B To Contractor's Right of Entry Agreement Contractors ROE Ex8 — (Texas) 04/01/05 BUILDING AMERICA" Form Approved - AVP Law not cover the liability of Contractor in the State of Texas, Contractor shall comply with such laws. If Contractor is self-insured, evidence of state 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: • Alternate 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 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 Railroad until the original policy is forwarded to Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody and control. Contractors 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 Contractors 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. 1. Prior to commencing the 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. My 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 of Texas. K. Contractor WARRANTS that this Agreement has been thoroughly reviewed by Contractors insurance agent(s)Ibroker(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. If Contractor fails to procure and maintain insurance as required, Railroad may elect to do so at the cost of Contractor, plus a 25% administration fee. M. 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. Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit B To Contractor's Right of Entry Agreement BUILDING AMERICA" Contractors ROE ExB — (Texas) 04/01/05 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 Contractor as well as all employees of any subcontractor or agent of Contractor. 1. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear. • Waist -length shirts with sleeves. • Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. • 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. 11. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. • Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. • 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. • 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) • 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. 11I. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must • Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative Is present to authorize movements. • Wear an orange, reflectorized workwear approved by the Railroad Representative. Contractor's ROE ExC — (Texas) 04/01/05 Foran Approved - AVP Law Page 1 of 2 Exhibit C To Contractor's Right of Entry Agreement SIALDING AMERICA' Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law • Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is In a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • Familiar and comply with Railroad's rules on lockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment B. All sell -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 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 poweriines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job. If any employee has any questions or concems about the work, the employee must voice them during the job briefing. Additional Job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: • Always be on the alert for moving equipment Employees must always expect movement on any track, at any time, in either direction. • Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. • 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). • Avoid walking or standing on a track unless so authorized by the employee in charge. • Before stepping over or crossing tracks, look in both directions first • 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. Contractor's ROE ExC — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 2 Exhibit C To Contractor's Right of Entry Agreement w �—E LOCATION PRINT ACCOMPANYING A CONTRACTOR'S RIGHT OF ENTRY AGREEMENT 44n cv. J} JOSEPH ST TIFFANY MOLEST Subdivision • m y 6 ...rte • co MP 167.30- Austin Subdivision CR 122 (Red Bud Lane) - DOT #439 680P Existing At -Grade Public Road Crossing Surface & Signal Reconstruction Project vt • 2. WOODLAND LN 6 ^_T WOODUWD LOOP di` t': YNTAGEDR WILDFLOWERTRC- 0)94 �P` ORS 9'DELORME Data use Subject to icense. 82004 PeLorme. Street Atlas USA® 2005. www4ebrme.com M (5.2'E) n 0 woo 2010 Date Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Flagging. 2. The Contractor is responsible for ensuring that the reconstruction project doesn't adversely impact Railroad operations. EXHIBIT "D" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 157.30 GPS: N 30°, 31.8816'; W 97°, 36.8700' near ROUND ROCK, WILLIAMSON CO., TX. To accompany Contractor's Right of Entry Agreement with (Name of Contractor) for the reconstruction to an existing at -grade public road crossing. Folder No. 2362-54 Date: February 21, 2006 WARNING LN ALL OCCASIONS, U.P. COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE OF ANY WORK TO DETERMI E EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1{800) 336-9193 Exhibit D Location Print To Contractor's Right of Entry Agreement Grade Public Road Crossing Improvement Agreement Railroad's Location Print (See Section 1) w N 1 s ►E LOCATION OF AN EXISTING AT -GRADE PUBLIC ROAD CROSSING RECONSTRUCTION PROJECT KIM CV JOSEPH ST TIFFANY NICOLE ST z ' �k CR4m MP 157.30 - Austin Subdivision CR 122 (Red Bud Lane) - DOT #439 680P Existing At -Grade Public Road Crossing Surface & Signal Reconstruction Project SHADY ROCK CT WOODLAND LN 0 3NISf18. 11flNON{ tAustin Subdivision WOODLAND LOOP COUNTRY DR VINTAGE DR WILDFLOWER TRL C 2iU)I iVd SN3P{S3Qytil 4 DELORME Data use subject to license. O 2004 DeLorme. Street Atlas USA® 2005. www.delorme.com MN (5.2° E) ft 0 1000 2000 Data Zoom 13-0 RAILROAD WORK TO BE PERFORMED: 1. Install 136 feet of concrete road crossing surface; 2 carloads of ballast; and reconstruct 320 -feet of track and 95 cross ties; and other track materials. 2. Relocate existing flashing signals with gates and other signal facilities. 3. Flagging. EXHIBIT "A-1" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 157.30 GPS: N 30° 31.8816', W 97° 36.8700' near ROUND ROCK, WILLIAMSON COUNTY CO., TX. Illustrative print showing location of an existing at -grade public road crossing reconstruction project with the CITY OF ROUND ROCK. Folder No. 2362-54 Date: February 21, 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-1 Location Print To Existing Public Road At -Grade Crossing Agreement To Existing At -Grade Public Road Crossing Political Body's Specification Print (See Section 1) Exhibit A - County Speciflcation Print To Existing At -Grade Public Road Crossing Surface Estimate of Material and Force Account. Work (See Section 2) DATE: 2005-11-16 ESTIMATE OF MATERIAL AND FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: RECOLLECTABLE SURFACE PROJECT AUSTIN SUB / MP 157.30 / CR122/RED BUD LA / DOT 439680P 1004 RECOLLECTABLE ACTUAL COST CITY OF ROUND ROCK, TX, USING STANDARD LABOR ADDITIVES OF 2358. UPRR TO FURNISH AND INSTALL 136 TF OF NEW CONCRETE SURFACE INCLUDING RAIL, TIES, OTM AND BALLAST REPLACING EXISTING CROSSING. INSTALL BOOTLEGS AS REQUIRED FOR SIGNALIZATION OF TRACK. PID: 53872 AM: 55135 MP,SUBDIV: 157.30, AUSTIN SERVICE UNIT: 12 CITY: HUTTO STATE: TX DESCRIPTION QTY UNIT LABOR MATERIAL RECOLL UPRR TOTAL ENGINEERING WORK ENGINEERING 1476 1476 1476 TOTAL ENGINEERING 1476 1476 1476 SIGNAL WORK LABOR ADDITIVE 2358 2085 2085 2085 MATL STORE EXPENSE 1 1 1 SALES TAX 2 2 2 SIGNAL 887 51 938 938 TOTAL SIGNAL 2972 54 3026 3026 TRACK & SURFACE WORK BAIAST 2.00 CL 723 1193 1916 1916 CONTRACTOR/OPERATOR 2500 2500 2500 FIELD WELD 96 96 96 FOREIGN LINE FREIGHT 415 415 415 HOME LINE FREIGHT 900 900 900 LABOR ADDITIVE 2354 30954 30954 30954 MATL STORE EXPENSE 780 780 780 0Th 778 893 1671 1671 RAIL 320.00 LF 1053 5488 6541 6541 RDXING 136.00 TF 4592 20735 25327 25327 SALES TAX 1444 1444 1444 TRAFFIC CONTROL 2500 2500 2500 TRK-SURF,LIN 3140 3140 3140 WELD 3131 526 3657 3657 XTIE 95.00 EA 6603 7332 13935 13935 TOTAL TRACK & SURFACE 51070 44706 95776 95776 LABOR/MATERIAL EXPENSE 55518 44760 RECOLLECTIBLE/UPRR EXPENSE 100278 0 ESTIMATED PROJECT COST EXISTING REUSEABLE MATERIAL CREDIT 0 SALVAGE NONUSEABLE MATERIAL CREDIT 0 RECOLLECTIBLE LESS CREDITS 100278 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. 0 Exhibit B-1 Railroad's Surface Estimate of Material and Force Account Work To Existing At -Grade Public Road Crossing Agreement To Existing At -Grade Public Road Crossing Improvement Agreement Railroad's Signal Estimate of Material and Force Account Work (See Section 2) DATE: 2005.11-30 ESTIMATE OF MATERIAL Atm FORCE ACCOUNT WORK BY THE UNION PACIFIC RAILROAD DESCRIPTION OF WORK: RELOCATE EXISTING GATES AT CR -122 1N HUMID, TX. M.P. 157.30 ON THE AUSTIN SUR. SIGNAL PROJECT MANAGER: RON CLARKSON 867-7261 RAILROAD TO PERFORM ALL WORK / COST DISTRIBUTED AS FOLLOWS: SIGNAL - CITY OF ROUND ROCK 1001 RECOLLECTIBLE PID: 53873 AMO: 55136 SERVICE UNIT: 12 CITY: HUTTO MP,SUBDIV: 157.30. AUSTIN STATE: TX DESCRIPTION QTY UNIT LABOR MATERIAL RBODLI. UPRR TOTAL ENGINEERING 110RK ENGINEERING 639 639 639 LABOR ADDITIVE 177.68% 1579 1579 1579 SIG-HWY INC 250 250 250 TOTAL ENGINEERING 2468 2468 2468 SIGNAL WORK SIGNAL 2624 2624 2624 TOTAL SIGNAL 2624 2624 2624 RRACK & SURFACE WORE BILL PREP CONTRACT EARTH PILL/ROCK LABOR ADDITIVE 177.684 PERSONAL EXPENSES SIC-HWY AEG TRANSPORTATION CHARGES NZ TRAFFIC CONTROL TOTAL TRACK 1 SURFACE 450 450 450 262 262 262 1300 1300 1300 7883 7883 7883 3750 3750 3750 4436 4436 4436 200 200 200 450 450 450 12769 5962 18731 18731 LABOR/MATERIAL EXPENSE 15237 0586 RECOLLBCTIBLE/UPRR EXPENSE 23823 0 ESTIMATED PROJECT COST EXISTING REUSEA&LE MATERIAL CREDIT 0 SALVAGE NONUSRABLR MATERIAL CREDI? 0 RECOLLECTIBLE LESS CREDITS 23823 THE ABOVE FIGURES ARE ESTIMATES ONLY AND SUBJECT TO FLUCTUATION. IN THE EVENT OF AN INCREASE OR DECREASE IN THE COST OR QUANTITY OF MATERIAL OR LABOR REQUIRED, UPRR WILL BILL FOR ACTUAL CONSTRUCTION COSTS AT THE CURRENT EFFECTIVE RATE. Exhibit B-2 Railroad's Signal Estimate of Material and Force Account Work To Existing At -Grade Public Road Crossing Agreement To Existing At -Grade Public Road Crossing Improvement Agreement Contractor's Right of Entry Agreement (See Section 5) To the Contractor: UNION PACIFIC RAILROAD COMPANY Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 (402) 544-8620 December 14, 2005 Before Union Pacific Railroad Company can permit you to perform work on its property for the reconstruction and improvement of the existing CR 122 (Red Bud Lane) at -grade 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 vaanc BUILDING AMERICA' UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 CONTRACTOR'S RIGHT OF ENTRY AGREEMENT (State of Texas) THIS AGREEMENT is made and entered into as of the day of 200 , by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation ("Railroad"); and (Name of Contractor) a ("Contractor"). (State of Incorporation) RECITALS: Contractor has been hired by the City of Round Rock to perform work relating to the reconstruction and widening of the existing US 77/83 Overpass grade separation crossing (the "work"), with all or a portion of such work to be performed on property of Railroad in the vicinity of Railroad's Mile Post 157.30 on the Railroad's Austin Subdivision located at or near Round Rock, in Williamson County, State of Texas, which work is the subject of a contract dated between Railroad and the City of Round Rock, as such location is also (Date of C&M Agreement) shown on the print marked Exhibit D, attached hereto and hereby made a part hereof. Railroad is willing to permit Contractor to perform the work described above at the location described above subject to the terms and conditions contained in this Agreement AGREEMENT: NOW, THEREFORE, it is mutually agreed by and between Railroad and Contractor, as follows: ARTICLE 1 - DEFINITION OF CONTRACTOR. For purposes of this Agreement, all references in this agreement to Contractor shall include Contractor's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. ARTICLE 2 - RIGHT GRANTED; PURPOSE. Railroad hereby grants to Contractor the right, during the term hereinafter stated and upon and subject to each and all of the terms, provisions and conditions herein contained, to enter upon and have ingress to and egress from the property described in the Recitals for the purpose of Contractor's Permit — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 4 January 26, 2006 BUILDING AMERICA" UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 AND 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. Contractor shall bear any and all costs and expenses associated with any work performed by Contractor, or any costs or expenses incurred by Railroad relating to this Agreement. B. Contractor shall coordinate all of its work with the following Railroad representative or his or her duly authorized representative (the "Railroad Representative"): Oscar Escamilla Manager Track Maintenance Union Pacific Railroad Company 311 East Bagdad Round Rock, TX 78664 Phone: (512) 255-5966 Facsimile: (512) 218-4480 C. Contractor, at its own expense, shall adequately police and supervise all work to be performed by Contractor and shall ensure that such work is performed in a safe manner as set forth in Section 7 of Exhibit A. The responsibility of Contractor for safe conduct and adequate policing and supervision of Contractor's work shall not be lessened or otherwise affected by Railroad's approval of plans and specifications involving the work, or by Railroad's collaboration in performance of any work, or by the presence at the work site of a Railroad Representative, or by compliance by Contractor with any requests or recommendations made by Railroad Representative. ARTICLE 5 - TERM; TERMINATION. A. The grant of right herein made to Contractor shall commence on the date of this Agreement, and continue until , unless sooner terminated as herein (Expiration Date) provided, 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's property. B. This Agreement may be terminated by either party on ten (10) days written notice to the other party. Contractor's ROE — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 4 January 26, 2006 UNION MCI IC 111111 BUILDING AMERICA - ARTICLE 6 - CERTIFICATE OF INSURANCE. UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 sent to: Union Pacific Railroad Company Real Estate Department 1400 Douglas Street, MS 1690 Omaha, NE 68179-1690 Attn: Folder No.: 2362-54 ARTICLE 7 - DISMISSAL OF CONTRACTOR'S EMPLOYEE. At the request of Railroad, Contractor shall remove from Railroad's property any employee of Contractor who fails to conform to the instructions of the Railroad Representative in connection with the work on Railroad's property, and any right of Contractor shall be suspended until such removal has occurred. Contractor shall indemnify Railroad against any claims arising from the removal of any such employee from Railroad's property. ARTICLE 8 - ADMINISTRATIVE FEE. Upon the execution and delivery of this Agreement, 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's property without the prior written approval of Railroad. Contractor's ROE — (Texas) 04/01/05 Form Approved - AVP Law Page 3 of 4 January 26, 2006 BUILCING AMERICA' UPRR Folder No.: 2362-54 UPRR Audit No. CA87846 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 Contractor's ROE — (Texas) 04/01/05 Form Approved - AVP Law Title: Page 4 of 4 January 26, 2006 PACIFIC BUILDING AMERICA" Form Approved - AVP Law Contractor's ROE ExA — (Texas) 04/01/05 EXHIBIT A TO CONTRACTOR'S RIGHT OF ENTRY AGREEMENT TERMS AND CONDITIONS Section 1. NOTICE OF COMMENCEMENT OF WORK - FLAGGING. A. Contractor agrees to notify the Railroad Representative at least ten (10) working days in advance of Contractor commencing its work and at least ten (10) working days in advance of proposed performance of any work by Contractor in which any person or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), 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 Contractor whether a flagman need be present and whether Contractor needs to implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by Railroad, Railroad will bill Contractor for such expenses incurred by Railroad, unless Railroad and a federal, state or local governmental entity have agreed that Railroad is to bill such expenses to the federal, state or local governmental entity. If Railroad will be sending the bills to Contractor, Contractor shall pay such bills within thirty (30) days of Contractor's receipt of billing. If Railroad performs any flagging, or other special protective or safety measures are performed by Railroad, Contractor agrees that Contractor is not relieved of any of its responsibilities or liabilities set forth in this Agreement. B. The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Railroad and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Contractor (or the govemmental entity, as applicable) shall pay on the basis of the new rates and charges. C. Reimbursement to Railroad will be required covering the full eight-hour day during which any flagman is fumished, unless the flagman can be assigned to other Railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Railroad is required to pay the flagman and which could not reasonably be avoided by Railroad by assignment of such flagman to other work , even though Contractor may not be working during such time. When it becomes necessary for Railroad to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Contractor must provide Railroad a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Contractor will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Railroad if flagging services are needed again after such five day cessation notice has been given to Railroad. Section 2. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Railroad to use and maintain its entire property including the right and power of Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Railroad without liability to Contractor or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad's property, and others) and the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Contractor's ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 4 Exhibit A To Contractor's Right of Entry Agreement YNION MCIfIC III II Contractors ROE ExA — (Texas) 04/01/05 BUILDING AMERICA" Form Approved - AVP Law Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS. A. Contractor shall conduct its operations so as not to interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of Railroad, including without limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at any time that would in any manner impair the safety of such operations. When not in use, Contractors machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest track, and there shall be no vehicular crossings of Railroads tracks except at existing open public crossings. B. Operations of Railroad and work performed by Railroad personnel and delays in the work to be performed by Contractor caused by such railroad operations and work are expected by Contractor, and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so as to avoid interference with railroad operations. The safe operation of Railroad train movements and other activities by Railroad takes precedence over any work to be performed by Contractor. Section 4. LIENS. Contractor shall pay in full all persons who perform labor or provide materials for the work to be performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's liens of any kind or nature to be created or enforced against any property of Railroad for any such work performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens, claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's expense. Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all such protection or relocation (if applicable) has been accomplished. B. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify, defend and hold Railroad harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission of Contractor, its agents and/or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on Railroad's property, and/or (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on Railroad's property. Contractor shall not have or seek recourse against Railroad for any claim or cause of action for alleged loss of profits or revenue or loss of service or other consequential damage to a telecommunication company using Railroad's property or a customer or user of services of the fiber optic cable on Railroad's property. Section 6. PERMITS - COMPLIANCE WITH LAWS. In the prosecution of the work covered by this Agreement, Contractor shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 7. SAFETY. A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Contractor. Contractor shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Contractor shall at a minimum comply with Railroad's safety standards listed in Exhibit C, hereto attached, to ensure uniformity with the safety standards followed by Railroad's own forces. As a part of Contractor's safety responsibilities, Contractor shall notify Railroad if Contractor determines that any of Railroad's safety standards are contrary to good safety practices. Contractor shall furnish copies of Exhibit C to each of its employees before they enter the job site. B. Without limitation of the provisions of paragraph A above, Contractor shall keep the job site free from safety and health hazards and ensure that its employees are competent and adequately trained in all safety and health aspects of the job. Contractors ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 2 of 4 Exhibit A To Contractor's Right of Entry Agreement YMION veacic BUILDING AMERICA` Form Approved - AVP Law Contractor's ROE ExA — (Texas) 04/01/05 C. Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Contractor shall promptly notify Railroad of any U.S. Occupational Safety and Health Administration reportable injuries. Contractor shall have a nondelegable duty to control its employees while they are on the job site or any other property of Railroad, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. D. If and when requested by Railroad, Contractor shall deliver to Railroad a copy of Contractor's safety plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require Contractor to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 8. INDEMNITY. A. TO THE EXTENT NOT PROHIBITED BY APPLICABLE STATUTE, CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, AGENTS AND EMPLOYEES ("INDEMNIFIED PARTIES") FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, INJURY, LIABILITY, CLAIM, DEMAND, COST OR EXPENSE (INCLUDING, WITHOUT LIMITATION, ATTORNEY'S, CONSULTANT'S AND EXPERTS FEES, AND COURT COSTS), FINE OR PENALTY (COLLECTIVELY, "LOSS") INCURRED BY ANY PERSON (INCLUDING, WITHOUT LIMITATION, ANY INDEMNIFIED PARTY, CONTRACTOR, OR ANY EMPLOYEE OF CONTRACTOR OR OF ANY INDEMNIFIED PARTY) ARISING OUT OF OR IN ANY MANNER CONNECTED WITH (I) ANY WORK PERFORMED BY CONTRACTOR, OR (II) ANY ACT OR OMISSION OF CONTRACTOR, ITS OFFICERS, AGENTS OR EMPLOYEES, OR (III) ANY BREACH OF THIS AGREEMENT BY CONTRACTOR. B. THE RIGHT TO INDEMNITY UNDER THIS SECTION 8 SHALL ACCRUE UPON OCCURRENCE OF THE EVENT GIVING RISE TO THE LOSS, AND SHALL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNIFIED PARTY, EXCEPT WHERE THE LOSS IS CAUSED BY THE SOLE ACTIVE NEGLIGENCE OF AN INDEMNIFIED PARTY AS ESTABLISHED BY THE FINAL JUDGMENT OF A COURT OF COMPETENT JURISDICTION. THE SOLE ACTIVE NEGLIGENCE OF ANY INDEMNIFIED PARTY SHALL NOT BAR THE RECOVERY OF ANY OTHER INDEMNIFIED PARTY. C. CONTRACTOR EXPRESSLY AND SPECIFICALLY ASSUMES POTENTIAL LIABILITY UNDER THIS SECTION 8 FOR CLAIMS OR ACTIONS BROUGHT BY CONTRACTOR'S OWN EMPLOYEES. CONTRACTOR WAIVES ANY IMMUNITY IT MAY HAVE UNDER WORKER'S COMPENSATION OR INDUSTRIAL INSURANCE ACTS TO INDEMNIFY RAILROAD UNDER THIS SECTION 8. CONTRACTOR ACKNOWLEDGES THAT THIS WAIVER WAS MUTUALLY NEGOTIATED BY THE PARTIES HERETO. D. NO COURT OR JURY FINDINGS IN ANY EMPLOYEE'S SUIT PURSUANT TO ANY WORKER'S COMPENSATION ACT OR THE FEDERAL EMPLOYERS' LIABILITY ACT AGAINST A PARTY TO THIS AGREEMENT MAY BE RELIED UPON OR USED BY CONTRACTOR IN ANY ATTEMPT TO ASSERT LIABILITY AGAINST RAILROAD. E. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE COMPLETION OF ANY WORK PERFORMED BY CONTRACTOR OR THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. IN NO EVENT SHALL THIS SECTION 8 OR ANY OTHER PROVISION OF THIS AGREEMENT BE DEEMED TO LIMIT ANY LIABILITY CONTRACTOR MAY HAVE TO ANY INDEMNIFIED PARTY BY STATUTE OR UNDER COMMON LAW. Section 9. RESTORATION OF PROPERTY. In the event Railroad authorizes Contractor to take down any fence of Railroad or in any manner move or disturb any of the other property of Railroad in connection with the work to be performed by Contractor, then in that event Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition as the same were in before such fence was taken down or such other property was moved or disturbed. Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon. Section 10. WAIVER OF DEFAULT. Waiver by Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept, observed and performed by Contractor shall in no way impair the right of Railroad to avail itself of any remedy for any subsequent breach or default. Section 11. MODIFICATION - ENTIRE AGREEMENT. No modification of this Agreement shall be effective unless made in writing and signed by Contractor and Railroad. This Contractors ROE ExA - (Texas) 04/01/05 Page 3 of 4 Exhibit A Form Approved - AVP Law To Contractor's Right of Entry Agreement PACIFIC PACIFIC 111111 Contractor's ROE ExA — (Texas) 04/01/05 BUILDING AMERICA` Form Approved - AVP Law Agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between Contractor and Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written or oral, with respect to the work to be performed by Contractor. Section 12. ASSIGNMENT - SUBCONTRACTING. Contractor shall not assign or subcontract this Agreement, or any interest therein, without the written consent of the Railroad. Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors to maintain the insurance coverage required to be maintained by Contractor as provided in this Agreement, and to indemnify Contractor and Railroad to the same extent as Railroad is indemnified by Contractor under this Agreement. Contractors ROE ExA — (Texas) 04/01/05 Form Approved - AVP Law Page 4 of 4 Exhibit A To Contractor's Right of Entry Agreement BUILDING AMERICA' Contractor's ROE ExB — (Texas) 04/01/05 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 on Railroad's property has been completed and the Contractor has removed all equipment and materials from Railroad's property and has cleaned and restored Railroad's property to Railroad's satisfaction, the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain a single limit of at least $2,000,000 each occurrence or claim and an aggregate limit of at least $2,000,000 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 • 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 Contractor's employees. • 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 Contractor will be using, storing and/or handling hazardous materials, Contractor, in addition to the other endorsements to be obtained by 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 Railroad. B. Business Automobile Coverage Insurance. This insurance shall contain a combined single limit of at least $2,000,000 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 Contractor's employees. • Products and completed operations. • 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 of Texas • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee If the State of Texas requires participants in a state workers' compensation fund and if Workers Compensation insurance will Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit B To Contractor's Right of Entry Agreement P4Gfrc 1Iltii BUILDIlG AMERICA" Contractors ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law not cover the liability of Contractor in the State of Texas, Contractor shall comply with such laws. If Contractor is self-insured, evidence of state 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: • Alternate Employer Endorsement D. Umbrella or Excess Policies In the event Contractor utilizes Umbrella or excess policies, these policies shall "follow form" and afford no Tess coverage than the primary policy. E. Railroad Protective Liability Insurance naming only 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 Railroad until the original policy is forwarded to Railroad. Other Requirements F. Punitive damage exclusion must be deleted, which deletion shall be indicated on the certificate of insurance. G. Contractor agrees to waive its right of recovery, and its insurers, through policy endorsement, agree to waive their right of subrogation against Railroad. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its 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 the 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 of Texas. 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. If Contractor fails to procure and maintain insurance as required, Railroad may elect to do so at the cost of Contractor, plus a 25% administration fee. M. 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. Contractor's ROE ExB - (Texas) 04/01/05 Page 2 of 2 Exhibit B To Contractor's Right of Entry Agreement Form Approved - AVP Law PACIFIC Contractor's ROE ExB — (Texas) 04/01/05 BUILDING AMERIEK 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 Contractor as well as all employees of any subcontractor or agent of Contractor. I. Clothing A. All employees of Contractor will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Contractor's employees must wear: • Waist -length shirts with sleeves. • Trousers that cover the entire leg. If flare -legged trousers are worn, the trouser bottoms must be tied to prevent catching. • Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety -toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas -type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Contractor shall require its employees to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. • Hard hat that meets the American National Standard (ANSI) Z89.1 — latest revision. Hard hats should be affixed with Contractor's company logo or name. • 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. • Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within: • 100 feet of a locomotive or roadway/work equipment • 15 feet of power operated tools • 150 feet of jet blowers or pile drivers • 150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection — plugs and muffs) • Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be wom as recommended or requested by the Railroad Representative. III. On Track Safety Contractor is responsible for compliance with the Federal Railroad Administration's Roadway Worker Protection regulations — 49CFR214, Subpart C and Railroad's On -Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: • Maintain a distance of twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. • Wear an orange, reflectorized workwear approved by the Railroad Representative. Contractors ROE ExC — (Texas) 04/01/05 Form Approved - AVP Law Page 1 of 2 Exhibit C To Contractor's Right of Entry Agreement Anal o�ar�c 111 11 BUILDING AMERIKA Contractor's ROE ExB — (Texas) 04/01/05 Form Approved - AVP Law • Participate in a job briefing that will specify the type of On -Track Safety for the type of work being performed. Contractor must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Contractor will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Contractor to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Contractor's equipment is unsafe for use, Contractor shall remove such equipment from Railroad's property. In addition, Contractor must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be: • Familiar and comply with Railroad's rules on lockout/tagout of equipment. • Trained in and comply with the applicable operating rules if operating any by -rail equipment on -track. • Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other railbound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up 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 properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Contractor shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Contractor shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Contractor meets the minimum safety requirements established by the Federal Railroad Administration's Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: • Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. • Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. • 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). • Avoid walking or standing on a track unless so authorized by the employee in charge. • Before stepping over or crossing tracks, look in both directions first. • 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. Contractor's ROE ExC - (Texas) 04/01/05 Page 2 of 2 Exhibit C To Contractor's Right of Entry Agreement Form Approved - AVP Law Exhibit D Location Print To Contractor's Right of Entry Agreement • N LOCATION PRINT ACCOMPANYING A W—�s'E CONTRACTOR'S RIGHT OF ENTRY AGREEMENT .av►. I s cam, ;:, z E IMP X vim' 15 �... JOSEPH 3T Tlff� tV1COtfl ST i. g.�; x r o XI r m :.$ f. 4 t ...,..,...-i--+---4-4- .4 ea ' Austin Subdivision c,023 r" - < ., x .. LOOP ^fy 0 {3 Ca f7 157.30 - Austin Subdivisionip CR 122 (Red Bud Lane) - DOT #439 680P Existing At -Grade Public Road Crossing Surface & Signal Reconstruction Project 1r? WOODWiD LN tr WOODLAND Lei.41 R _. _,_ COUNTRY DR 3 VINTAGE DR WILDFLOWERTRL' < 'aDELORME > e MI 0 L 2000 MN (5.2' E) Date Zoom 13-0 Data use subject to iaense. ® 2004 DeLorme. Street Atlas USA® 2005. www.delorme.com RAILROAD WORK TO BE PERFORMED: 1. Flagging. 2. The Contractor is responsible for ensuring that the reconstruction project doesn't adversely impact Railroad operations. EXHIBIT "D" UNION PACIFIC RAILROAD COMPANY AUSTIN SUBDIVISION MILE POST 157.30 GPS: N 30°, 31.8816'; W 97°, 36.8700' near ROUND ROCK, WILLIAMSON CO., TX. To accompany Contractor's Right of Entry Agreement with for the reconstruction Folder No. IN ALL OCCASIONS, U OF ANY WORK TO (Name of Contractor) to an existing at -grade public road crossing. 2362-54 Date: February 21, 2006 WARNING . COMMUNICATIONS DEPARTMENT MUST BE CONTACTED IN ADVANCE DETERMINE EXISTENCE AND LOCATION OF FIBER OPTIC CABLE. PHONE: 1-(800) 336-9193 Exhibit D Location Print To Contractor's Right of Entry Agreement DATE: April 6, 2006, 2006 SUBJECT: City Council Meeting - April 13, 2006 ITEM: 10.D.5. Consider a resolution authorizing the Mayor to execute an Existing At - Grade Public Road Crossing Improvement Agreement with Union Pacific Railroad Company for the crossing at Red Bud Lane. Department: Transportation Services Department Staff Person: Thomas G. Martin, P.E., Director Justification: The Existing At -Grade Public Road Crossing Improvement Agreement is for the reconstruction of the existing railroad crossing of CR 122, south of US 79. In addition to the work on the crossing, this agreement also provides for the temporary relocation of the railroad signals to accommodate Phase III improvements to CR 122 as well as the bridge over Brushy Creek. Funding: Cost: $124, 101.00 Source of funds: 4B -RR Transportation System Development Corporation Outside Resources: Union Pacific Railroad HDR Engineering, Inc. Background Information: Phase III improvements were designed by HDR Engineering, based on a professional services contract approved by the City Council on October 13, 2005. The expected Letting date of this work is in April, 2006. Public Comment: NA DATE: April 6, 2006, 2006 SUBJECT: City Council Meeting - April 13, 2006 ITEM: 10.D.5. Consider a resolution authorizing the Mayor to execute an Existing At - Grade Public Road Crossing Improvement Agreement with Union Pacific Railroad Company for the crossing at Red Bud Lane. Department: Transportation Services Department Staff Person: Thomas G. Martin, P.E., Director Justification: The Existing At -Grade Public Road Crossing Improvement Agreement is for the reconstruction of the existing railroad crossing of CR 122, south of US 79. In addition to the work on the crossing, this agreement also provides for the temporary relocation of the railroad signals to accommodate Phase III improvements to CR 122 as well as the bridge over Brushy Creek. Funding: Cost: $124, 101.00 Source of funds: 4B -RR Transportation System Development Corporation Outside Resources: Union Pacific Railroad HDR Engineering, Inc. Background Information: Phase III improvements were designed by HDR Engineering, based on a professional services contract approved by the City Council on October 13, 2005. The expected Letting date of this work is in April, 2006. Public Comment: NA