The URL can be used to link to this page

R2008-031 2008-02-25RES�LUTION NO. R2D08-31 A RESOLUTION OF THE CITY C�UNCIL OF THE CITY OF PEARL�►ND, TEXAS, AUTHQRIZING THE CITY MANAGER OR HIS DESIGNEE TO ENTER INTO AN OVERPASS AGREEMENT WITH THE BNSF RAILWAY COMPANY {MAGNOLIA-PHASE li). BE 1T RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain O�erpass Agreement by and between the City of Pearland and the BNSF Railway Co., a copy of which is attached hereto as Exhibit "A° and made a part hereof for ail purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby au�harized to �xecute and the Ci#y �ecretary to attest an Overpass Agreemen� wifh BNSF Raiiway Co. PASSED, APPROVED and ADOPTED this the 25 day of F� ary, A.D., 2Q08. . l/Yyr� � T�M REID ,,,,,,,,,,,,,,,,, MAYO R .,�°�.aRr �: ,,_ ATT�ST: NG�'LORFIN�, TF�IC "SECRETARY APPROVED AS TO FORM: � � DARRfN M. COKER CITY ATT�RNEY Exhibit °A" Resolution 2008-31 pg_qp77 , T70041 �VERPR�S A�REEI�IENT �.AW tiEPAaTME{V7 APPROV�b BlVS� Fife No. 023490 Magnolia Road �verpass U.S. D.0.3. �fo. 023490J BNSF Mykawa Subc4i�ision LS: 7501, MP: 8.76 Tt�is Agreer�enf ("l�greement") is executed to be effective as a� th�s 6 day of December, 2007 ("Effective Qate"}, by and �etween BNSF RAILWAY GOMPAIVY, a Delaware corporafion �"B1VS�`"), and the CITY DF PEARLAN�, a political subtiivision of the SEa�e of Texas ("Agency"). �tECI�'AL.S WH�REAS, B�tSF owns and operates a line of �ailroad in and fhrough the City af Pearlandd, Stafe of Texas � WHEREAS, Agency [4esires Eo impro�e the exisfing Magnolia Raad (QOT No. 023202M, MP 8.79 ) at- grade crossing by constructing a new crossing at sepa�ate�4 grade5 ta be knawn as the [Uagnalia �oac� Overpass and desig�ated as €�O`f No. 023490:1; and WHEREAS, fY�e existing Mag�olia Road ai-grade crossing will be closed and reE upon completion of construcfion and the placing in ser�ic� of said overpass; �VOW, TNEREFORE, in consideration of the mutual co�enants and agreements of the parties contained herein, the receipf and sufficiency of which are herEby acknowledged, the parties agree as follows: ARTICL� I— SCOPE OF WOF2K 1. The te�m "Prnjecf" as us�d herein includ�s any and all warlc rela�ed to the canstruc�ion of the proposed Magnolia Raad O�erpass (hereinafter re�rerred to as the "Structure"), more particularly cfescribed on #he Exhil�it A aftached hereEo and incorporated herein, including, hut not limited to, any and all changes to telephone, telegraph, sig�al and eEectrical fines and ap{�urt�nances, te�nporary and permanent track work, fencing, grading, alterations to or new constructEOn of drainage facilities, prelirninary and construction engineering and cantract preparation. Any temporary confrols for the Magn�lia Road af-grade crassing d�ring constr�cfion of the new overpass must be in compliance with Secfion 8A-5, "TrafFic Gon�rols During Construcfion and Maintenance" af the Uniform Tra�Fic Cantral Devices Manual, U.S. Department of Transportafion. ARl'[CLE 11-- BNSF DBLIGATIONS In consideraiion of the coversant5 of Agency set forth herein and the faithfu[ performance ihereaf, BNSF agrees as ioElows: 1. In considerafion of the faithful performance of the Agency`s ca�enants contained herein, BNSF he�`eby grants to Agency, its successp�s and assigns, upon and subject to the terms and conditians set forth in this Agreem�nt, a temporary non-exclusive license {hereinafter called, "Tempo�ary Construction License") to co�struct the Structure across or upon the �ortion of BlVSF`s rig�f-of-way described furEher on �xhibit A-1, excepting and reserving BNSF's rights; and the righ�s of any others who have ol�tained, or may obtain, permission or authority from BNSF, to do the following: Magnolia Road Qverpass Agreemenf (12106107) 1 �orm U105 Rev. 06101I05 (a) �perate, maintain, renew andlor relocate any and all existing railroad tracfc or tracks, wires, pipeEines and other facilities of like character upon, over or under the surface of said right-of- vvay; (b) Construct, operate, maintain, renew and/or relocate upo� said right-af-way, witF�ouf fimitatian, s�ch facilities as the 6NSF inay from fittie to time deem appropriate, pro�ided such facili#ies do not materially interfere with #F�e Ager�cy's use of fhe Structure; {c} Otherwise use or operate the right-af-way as BNSF inay fram tirne to time deem appropriate, providec4 such use or operatipns does not materially interFere with the Agency's use of the Struct�re. Prior to commencing any work on BNSF's property or right-of-way, Rgency must pay BNSF the sum of Three thousand sevan hundred ninety-two and No/1�0 Do[lars ($3,792,D0} as compensation for fhe Terr�porary Cortstruction License. The term of the Temporary Constr€�ction Licer�se begins on fhe Effective �ate anci ends on Fhe earlier of (i) substantial complefion of the Strucfure, ar (ii} twelve (12) moriths foElowing the Effec#ive Date. The Temporary ConsEructian License and related rights given by BNSF to Agency in this pro�ision are withouf warranty of ti#le o# any kind, express ar impGed, and no covenant of warrar�#y af title will bE implied from ihe use of any wo� or worcls herein cotttained. The Tem orar Constructian License is for construction of the Struct�re anl and sf�af] not be used b A enc for anv ather Agency acknowkedges and agre�:s that Agency shall nof haWe the right, under the Temporary Construction License, to use tF�e 5tructure. In the e�ent Agency is evicted by anyone owning, or claiming f9tle to ar any [nterest in said right-of-way, BNSF wifl not be fiable to Agency far any damages, fasses or any �x�ens�s of any nature wha#soaver. Ti�e granting of sitnilar rights ta o�hers, subsequent to the date of this wilf not impair �r interfere witF� the rights grantec! to Agency herein. Upon recei�ing the payment from Agency describeci in the subsequent sentence and provic4ed Agency is in compliance wifh the terms and conditions of this Agreemenf, BNSF will grant to Agency, its successars and assigns, an easement (hereinafter called, the "Easerr�e�t") �o enter upon and use fhat portion of BNSF's right-of-way as is necessary to use and mainfain the 5tructure, substantially in the form of Exhibit B attached to this Agreement. Agency must pay Bf�SF t�e sum of Eigi�t tho�asand fiffy-nine and No1100 Dollars ($8,059.00) as cp►npensation for�tF�e Easem�nt within fhirty (30) days of issuing a Notice ta Proceed pursuant to Article Ill, Seetian 96 of fhis Rgreement. If Ageney fails to pay B�fSF within the thirfy day time periad sef for�h in the preceding sentertce, BIVSF inay sfop cons�ruction o�€ fhe Project until fuli payment is recei�ed by Bt�S�. 2. gNSF wil! furnish all labor, maferials, tools, and equipmenf foe railraad work required for the canstruction of the Praject, such railtoad work and the estima#ed cost #hereof being as shown on Exhibit D attached hereto and made a part hereof. In the e�ertf construction on the P�ojec� has nof commenced within six (6} months folfowing the EfFecti�e �ate, BNSF inay, in its sofe and absolute discretion, revise the cost estimafes set forth in said �xhibit D. In such evenf, the revised cost estimates wili become a part of this Agreement as though originally sef forth herein. Any item of work incidental to the items 1is#ec4 on Exhibik D not specifically mentioned therein may be incfuded as a pat't of this Agreement upon written approval a� Ager�cy, which approval will not be unreasonaaly withheld. Cons4ruction of tMe Project must incl�ade thefollowing railroad work i�y BNSF: (a} Procuremen# of maEerials, eq�ipment and supplies necessary for the railroad work; (b) Preliminary engineering, design, and contract preparatian; (c) Furnishing of f4agging services necessary for Ehe sa#ety of BhISF's properi�y and the aperation of ifs trairts dUring construcfion of the Project as set forth in further detail on Exhibit C, attached to th�s Agreement and made a part hereof; (d) �urnishing engineering and inspectipn as required i� connection with fhe construction of the Project; Form a1d5 Rev. D6I01105 (e) f2emo�aE of the existing Ma�nolia Roa� (b�7 No. 023202M) at-�rade crossing, inc]uding remova{ of #he autor�af9c warr�ing devices, and ob{iteration of the crossing be�w�en the rails and fwo feet ou�side thereof. 3. BNSF will do all railroad work set forth in Article I I, Section 2 ahove on an actual cost basis, vvhen BNSF, in ifs sole discretian, determines it is required by its labar agreements to per�orm such wark with its own employees working under ap�Eicable collectiv� bargaining agreements. 4. Agency agrees to reimburse BNS� for work of an emergency nature caused by Agency ar Agency's contracior in connection with the Project which B�IS� desms is reasonably necessary for the irnmediate restoratian af raifroad oparatia�s, ar far the pro�ection of persons or BNSF property. Such work may be performed by BNSF wiEhout p�ior approval af Age�cy and Agency agrees to fully reimburse BNSF for all such emergency v�ark. 5. BNSF inay charge Agency for insurance expenses, inclu�ing self-insurance expenses, when s�ch expenses cover fhe cost of Employer's Liability (inciudir�g, without limitation, liability under the Federal Empfoyer`s LEability Act) in connecfian with the canstr�cfion of the Prnject. S�ch charges wiH �e eonsidered par# of the actual cast af the Praject, regardless af the nature or amount nf ultima#� fiability for injury, loss or death to BN5F's ernployeas, if any. 6. During the constr�ction of the Project, Bf�ESF will send Agency progressi�e in�oices detailing the costs of the raiiraad wark performed by �NSF under tf�is Agreemenf. Agency must reirnburse BNSF for campieted force-account work within #hirty {30) days of the date af fhe �nvoice for such wark. lJpon compfetion of tk�e �roject, BNSF will send Agency a detailed invoice of finaf costs, segregated as to ]abor and rr�ateriaEs for each item in the recapitulation shown on Exhibit �. Pursuanf to fhis section and Art�cle IV, S�ction 7 herein, Agency must pay ti�e final in�oice within ninety (90) days of the date of the final invoice, BNSF will assess a finance charge of .033% per day {12% per annum) an any unpaid sums or other charges due under this Agreement which are past its credit terrrss. 7"he finance charge continues fo accrue daily until fihe date payment is recsiver� f�y B�ESF, not t�e date paymen# is made or the date �ostmarked on the paymen�. Finance charges will be assessed on delinquenf sums and other charges as of the end of the manth ar�d will be re[fuced by amounts in dispute and any unposEed payments received by the monfh's end. Finanes charges will he noted on in�aices sent to Agency under this sec�ioR. ARTICLE IIE — AGENCY OBLIGATIONS In cansideration of the co�enants of BNSF set forth herein and the #aifhfuE performance thereof, Agency agrees as fofEows: 9. Agency musf furnish fo BNSF pfans and specificatians for fhe Project. Faur sets of said plans (r�d�ced size 11" x 17"}, together with two copies of calculafions, and two copies of specifications 'tn English Units, must be submitted to �NSF for a�pro�al �rfor to cornmencement af any construction. BNSF wi[I gi�e Agency final written appro�al of t�e plans and specifications substantially in tne f�rm a� Exhibit �, atfached ta this Agreement and made a part hereof. l��on BNSF's fine] written approval of the plans and specifications, said plans anc� specifications will become part of tF�is Agreemenf and are hereby incorparated herein. Any approval of the plans and specifications by B�SF shall in no way obEigate BNSF in any manner with respect to fhe finis�ed product design and/or canstrucfion. Any a�proval by BNSF shall mean only that the plans and specifrcations rr�eet fhe subjective standards af B[�SF, and such approvaf 6y BNSF shal! not be deemed to mean that fhe plans and specifications or construction is s#rucfurally sound and appropriate or that suc� pkans and s�ecificafions meet applicable regulations, faws, statutes o� lacal ordir�ances andlor builciing cocfes. 2. Agency rrtust make any required application and obtain all requirac4 permits and approvaks €or fhe construction of the Project. 3, Agency must �rovide for and mainfain min�mum �ertieal and harizar�ta{ clearances, as required and approved hy BNSF as part of fhe plans and specifications for the �roject. rorm 0�05 Rev, 05Ip1105 4. Agency must acquire all rights of way necessary €or the construction af the Project. 5. Agency must make any and all arrang�ments for the installation or relocatian af wire lines, pipe fines and other facilities owned by private persons, campanies, corporations, polifical 5ubdivESians or puhlic utilities ofher than BNSF which may be necessary for the constr�ction of fhe Project, 6. Agency rnust construct the Projeet as shown on tF�e attached Exhibit A and do all work ("Agency's Wark") provided for 9n tf�e pfans and specificatians for the Project, except railraad work that will be performed by BNSF hereunder. Agency must furnisi� all kabor, materia[s, tools and equipment for the performance of Agency's Work. 7�e principal efements of Agency's Work are as follows: (a) Constructian of fhe Steueture; {b} Pro�ide a 110-foot span from STA. 4'f�-20 {�ENT No. 3} �o STA. 42�+3D (BEN� No. 4} �o span the entire BiVSF right-of-way; (c) Prp�ide a minimum of 23.54-foot vertica� clearartce from tap of existing rails to 1ov�est part af Structure; (d) AIE necessary grading and pa�ing, includi�g 6ackfill of excavations and restoration of dist�rbed vegetation an BNSF's right-af-way; (e) °ro4iue su�table draina�e, both femporary anc4 permanent; (f) fnstakkation and mainfena�nce of an $-ft. h'sgh fence andlor concrete cambination (throv,� fence} on the nutside barrier of the Structure; (g} Removal of the existir�g roadway approaches to the Magnolia Road (bDT No. Q23202M) at-grade crossi�g up to a point twa teet outside of the rails, including the instaflatiar� of any apprapriate end-of-road treatmenfs and signage_ {h) Job site cleanup including removal o# all constructian materials, concrete debris, surplus soi[, ref�ase, confamina�ed soils, asphalt debris, litter and o�her waste materials to the satisfaction of BNSF; 7. Agency must apply and maintain said �.O.T. Crassing number 02349DJ in a conspicuaus kocation on the Structure. 8. Agency's Work m�sf be performed by Agency or Agency's contractor in a manner that will nof endanger or interfere wifh the safe and timely operations of BNSF anc4 its facilities. 9. In order fa prevent damage to BNSF frains and prop�r�y, Agency musf requir� its contractar(s) to notify BNSF's Roadmastar at ieast thirty t30) calendar days priar to requesiin�j a BNSF flagman in accordance with the requirements of Exhibit C atEached hereta. Addifionally, Agency must require its cQntractor(s) to notify BNSF's Manager af Public Projects thirty (3D) calendar days priar to cpmmencing work on BNSF �raperty or near BNSF tracks. 10. Agency or its confractor(s) must submit four (A�) copies of any pfans (incluciing iwo sets of calculations in EnglisE� Llnits) for pro�osed sharing, falsewark ar cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Manager af F'ubEic Prajects for approval. The shoring, falsevs+ork ar cribbing used by Agency's contractar sha[I comply with the BNSF Bridge Requirements set forth on Exhibit F and all applicable requireme�ts pramulgated by sfafe and federal agencies, departments, commissions and oEher legislativs bodies. 11. Agency must indude the following provisior�s in any contract with its contractor(s) perForming work on said Project: Form 0�05 Rev. 08/01/05 (aj The Confra�t9r is placed on notice that fiber optic, communicatfon and ather cable Gnes and systems �callec#ively, the "Lines") owned by �ariotts te{ecommunications companies may be buried an BNSF's property or right-of-way. The locations of these Lines have been included on the plans based an infarmation from the tefecommunica�ions companies. �he cantractor wiil be r�sponsibfe for contacting B�fSF's Comm�tnication5 Network Contral Center at 840-533-2891 andlor fh� telecomrnunications campanies and notifying them of any work t�af may damage these Lines or facilities a�dlor interFere with their service. Tf�e con�ractor mus# alsa mark all Lines shown on the plans or rnarked in the fieEd in arcfer to verify their locations. The contractor must alsa use al! reasonable metE�ods when working in fhe BNSF right-of-way or an BiVSF properfy to determine if any oti�er Lines {fiber aptic, cable, communication nr otherwise) rrsay exist. (b} �aikure to mark or idantify these Lines will be sufficient cause for SNSF's engineering repres2ntati�e �o stop construction at no cost tp the Agency or BNSF unfi] these items are completed. (c) !n addition to fhe liak�ility terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and halds harmless BNSF for, from and against all cost, liabiiity, anc4 expense whatsoever (incl�ding, without iimitation, attorney's fees and court costs anc4 expenses} arising out of or in any way contribttted to by any act or omission of Cor�tractor, its subcontractors, agents andlar employees that cause or in any way or ciegree contribute to {1} any damage to or des#ruction of any �ir�es by Con��'acfor, andlor ifs subcontracto�•s, ag�n4s andlor employ�es, on BNSF's praperfy or with9n B�SF's rigkit-of=way, (2) any in��ary fo or death of �ny person employec� Eay or on behaE� of any telecommunications company, and/or its cantractor, agents andlor employees, an BNSF's property or within BNSF's right-of-way, andlor (3) any daim or cause of action far alleged loss of profits ar revenue by, or [oss of service hy a customer or user of such tefecprnmunicafion company(iss),TNE LlABIL{TY ASSUMED �Y CONTRACTOR W1LL NOT BE AFFECl"ED BY 7H� �ACT, I� IT !S A FAG�, THAT THE DAMAGE, DESTRI�CTIQN, 1f�JURY, DEATH, CA�JSE OF AGTIOPI OR CLAIM WAS OCGASfDfd�l� BY OR CO{VT�iIBUTED TO BY TFIE NEGLIGENC� OF 6hE5F, ITS AGEMTS, SERVAf�`fS, EMPLOYEES Ol� Oi'H�RWlS�, E7CC�PT TO THE EX7EN7 THAT SLiCH CLAIMS ARE PROXlMAT�LY CAUSED BY THE INT�NTIONAL MlSCOIVQUCT OR GR0�5 NEGLEG�NCE OF BNSF. � {d} The Contractor wi]] be resp�r�sible for the rearrangement of any facilities ar Lines de�ermined to interfere with the construction. The Cantractor must cooperate fully with any telecommunications com}�any{ies) i� perforrning such rearrangements. 12. Agency must incorparate in each prime contract for canstruction of the Proj�ct, or the specifications fherefor (i) the pro�isions set forth in Article I[I, SecEians 8, 9, 14, 91, and 13; {ii) the provisions set forkh in HrEicle IV, 5ectians 3, 4, 90 and 1�; and (iii} fhe provisions set forEh in Exhibit C and Exhibit C-I, aftached F�ereto ar�d by reference made a part hereof. 93. Except as otheruvise pTOVicked below in this Section 13, all constru�ctian work perFormed �ereunder by Agency fpr the Project wilf be pursuant to a contract ar contracts �o b� let by Agency, ar�cf all such cantracts must inclucfe the folfowing: (a} All work perfflrmed under suc€� contrac� or cantracts wi#hin the liirtits of BI�6F`s rigi�t-o€- way rrsust be �erformed in a good and workmanlike manner in accordance with plans and specifications appro�ed by BNSF; (b) Changes or modifications during constructipn thaf affect saf�ty or BNSF operations mUSf �ae subject to BNS�'s appro�al; Form 0105 Rev. 061011(l5 (c) No wor€c wil� be commenced within BNSF's right-of-way until each ot the prirne contractors empkoyed in connection with said wark must have (i) executed and deli�ered to BNSF a letter agreemsnt in the form of Exhibit C-I, and {ii} delivered to and secured BNS�'s approva! o# the required insurance, and (d} ff it is in Agency's best in�erest, Agency may direct that the construction of fhe Project be done by day labor uncfer the direction and control of Agency, or if at any time, in the opinion o� Agency, the contractor has failed to prosecute with diligence the wo�'k specified in and by the lerms of said contract, Agency may terminate its cantract with �he contractar and take contral over fhe w�rk and proceed to complete fhe sarne by day labQr or by empioying another contracfar(5) pra�ided; hawever, that any contractor(s) replacing the origi�al contractor(s) must cor�ply with tY�e abligafior�s in fiavor o€ BNSF set forth aba�e artd, provided furEher, fhaE if s�eh canstruction is perforrrted by day {abor, Agency will, at its expense, procure and mainkain on behalf ofi B€�SF the insurance required by Exhibit C-'l (e} To facilitate scheduling for the Project, Agency shall F�a�e its cor�tractar gi�e BNSF's Roadmas�er at (713) 847-3176 fouE (4) weeks ad�ance natice of the praposed times and dates for work windows. BNSF and Agency's cantractar wiEl establish mutuaEfy agreeabls work windows for the Project. S{VSF� has the right at any time to re�ise or change fhe work windaws, ciue to train nperations o� service abligations. BNSF wifl not be responsible for any aclditional costs ancl expenses resulting fram a change in work windows. Additional costs and expens�:s resulting fram a change in work windows shall be accountetl for i� ti�e contractor's expenses for fhe Project. (f) The plans and specifications f�r the Project must be in compliance with the Sric#ge Requirements set forEh on Exhibit F, attached to fhis Agreement and incorporated herein. 44. Agency mus� advise khe a�prapr'tata BNSF Manager af Public Projects, in writing, of the complefion date of the Project witF�iR thirty (30) days after such complefion date. Addifionally, Ageney must notify 61VSF's Manager of Pu�lic Projects, in writing, of the date on which Agency andlor its Contractor wiE[ meet with Bf�SF for the pt�rpasa of making fina[ inspection of the Praject. 15. TO TH� FULLEST EXTE9VT PERMETT�D BY LAW, AGEf�CY IiEf2�BY REE.EASES, INUEMNIFIES, b�F�NDS ANd HOLD5 HARMLE�S BNSF, ITS AFFILIATED COMPA�IIES, PART�i�RS, 5f1CCESSORS, ASSIGNS, LEGAL REI'RESENTATIVES, OFFIC�RS, �IR�CTORS, �HAREHOLD�RS, EMPLOYEES AND AGE�lTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABIL�T��S, FII�ES, PENA�TIES, COSTS, �AMAGES, LQSSES, LIEf�S, CAU$E5 �F ACTEON, SUITS, DEMANDS, JIJDGMENTS ANQ EXPENSES (INCLUQING, WITHOUT LIMI7A710N, COURT COSTS AND A�TORIVEYS' FEES) OF Af�Y NATElR�, KEND OR ❑ESCRlPTiON OF ANY P�RSON (1NCLUDING, WITFIDUT LIMITATI�t�, TH� �MP�AYEES OF THL� PARTIES HERETO) OR ENTITY dIRECT'LY OR 1NDIREGTLY ARtSING QUT OF, R�SULTlNG FROM OR R�LA'T�D TO (IEV WHOLE OR 1N AART} (I) 7HE USE, UCCI]PANCY OR PRESENCE DF AG�NCY, ITS GONTRACTORS, �i.3�3GQNTRACTORS, Eftifi�LG�E�S D�t l�GrhiT[ � I�I, O[d, �R ABOCI i�'Fic CGfVa i RUC i fOi� afTE, {II) TFfE PE�RFC]RMAIVCE, OR �AI�URE TO PEFZFORM BY THE AGENCY, �iTS C0�ITRACTORS, SUBCONTRACTORS, EMPL.OYEES, O�, AG�lVTS, ITS WORK DR ANY OBLIGATtON UNDER 7HlS A6RE�MENT, (Ill} 1'HE 50L� OR C�NTRBEJTI[VG ,4GT5 aR �IUII�SkOf�S OF' AG�NCY, !TS CONTRACTORS, SUBGONTRACTDF2S, �MPLQYEES, OF2 AGEiVTS iN, �RI, OR RBQUT TF1E CDNSTRUCTIOM �Il'�, (IV) A�ENCY'S BR�ACH OF THE T�MPORARY CONSTRUC`F[OIV LlCEi�SE OR EAS�M�N7 GRAIVT�D 70 AGENCY PURSUAI�T TO ARTICI.� Il �F TH15 AGRE�MENT, (V) ANY RIGHTS OR INTERE�TS G�At�T�D 7'O AGENCY PLFRSUAh1T TO TH� T�MPORARY COiVSTRUCTIDN LICENSE DR EASEMEf�T D15CUS5E� IN ARTlCLE tl DF TFIIS AGR�EM�NT, (VI) ACENCY'S OCCUPATION AND US� OF BRlSF'� PR�P�RTY OR RIGH'C-OF�VIlAY, I�dCLUD![VG, WITWOUT LIMITATEON, SUBSEQUE[VT MAlNTENANG£ OF THE STRUCTURE BY AGENCY, �R (VII) AIV ACT OR OMISSION OF AGENCY Of� fTS OFFICERS, AGE�ITS, INVIT��S, �MP�OY�ES DR GONTRACTORS OR ANYON� DIREC'�L.Y OR lAfDIRECT�Y �IUE�LOYED BY ANY O� THE�CI, OR ANYDNE TH�Y CONTROL OR EXERCISE CONTFtOL. OVER. THE LIABILITY A55UM�R BY AGENCY WILL MOT BE AFFECTED BY TH� FACT, EF 1T 15 A FAC7, THAT THE DAMAGE, �'orm 0105 Rev. D61091D5 DESTRUCTION, I�VJURY OR DEATH WAS OCCASION�D BY OR CO{VTRIBLfTED TO BY THE NEGLIGEN�� A�' BNSF, ITS AGEhITS, SERVANTS, EMPLDYEES OR OTHERWfSE, EXCEPT TO 7HE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY GAUSED BY TH� tNTENTIONAL M15CONDl1CT OR GR�SS NEGLEGEMCE OF BiVSF. 16. Agency must gi�e BNS�'s Mana�er af Public Projecfs wriften nafice to proceed("Notice to Proce�d"} wifh the railroad work after receipt of necessary func€s €or the Project. Bf�SF will not begin the railroad work (including, witho�f limitation, procurement af supplies, equipment or materials) until wriften notice to proceed is received from A�ency. 97. Agency must perform all necessary work to obtain the permanent closure and �acation of approacl�es to th� Magnolia Road at-grade crossing acrass BNSF's right-of-way and must �arricade the road ap�roacF�es (or install other appropriate end-of-raad treatment) prior to completion of the Project. BNSF will caaperate witF� Agency #o achie�e the closure and �acafion of thaf section of Magnolia Road and will r�move tF�e crossing surface within its right-of-way. ARTICLE 1V — JOINT D�LIGATIO{VS W CONSIDERATION of the premises, the parties F�ereEa mutually agree to the follawing: 1. AEE wark contempla#ed in this Agreemenf musf be pe�Forrr�ed in a good and workmanlike manner and eac� po�tion musf be promptly commeneed by the par�y obligated hereunder ta perfarm the same and thereafiter diligently �irosecuted to cGnclt�sian in its lagical order and sequence. Furthermore, any changes or modifications during construction which affect B�SF w[II be subje�t to BNSF's appraval priar to fhe commencernent of any such changes or modificafiorts. 2. The work hereunder must be c�one in accardance w�th the Bridge Requiremen�s set forth on Exhibit F and the detailet� p[ens and specificatior�s appro�ed by BNSF. 3. Agency must require its contracEor{s) to reasonab4y adhere to the Project's construction schedule for alf Praject work. The parties here�o mutually agree #hat BlVS�'s faiiure to complete the raiiroad work in accordance with the construction schedule due to indement weather or �nforeseen railroad em�rgencies will nof constitute a breach of this Agreement by BNSF and wi[I no� subject BiVSF fo any liability. R�gardless of fhe requirements of the construcfion sch�dule, BRfSF reser�es the right to realfocate the labor �Forces assigned to complete the railroad work in fhe e�enf of an emergency to provide for the immediafe restora#ian of raiiroad operations {BNSF or its related railroads) ar to proteet persons or praperty on or near any BNS� owned property. B[�SF will nat be lia�ale for any additional costs ar expenses resulting fram any such reallocatian of iEs labor forces. Th� parties mutually agree t�at any reallocation of labor forces by Bt�SF pursuant to this provision and any direct or indirect consequences or costs resuf#ing from any such reallocafioR wil] n�t cortstitute a breach of fhis Agreement by BNSF. 4. B�1SF will ha�e the right to stop construction work on fhe Project Ef any of the following e�ents fake place: (i} ,�gency (or any of its contraatars) performs the Project work in a manner contrary tp the plans and specificatinns appro�ed by BNSF; (ii) Agency (ar any of its contractors), in BNSF's c�pinian, prosecutes fhe Project work in a manner which is hazardous to BNSF prqperty, facil�Eies or the safe and expeditious movement af rai�road tra�fic; (iii) the �nsurance described in thE attached Exhi�it C-1 is canceled during the course of the Project; or (iv} Agency fai[s to pay BNSF for the Tempnrary Construction LiceRSe or the Easement pursuanf to Article II,. Section 1 of fhis Agreement. 7he work stoppage will continue until a![ necessary actions are taicen by Agency or its con#raetor ta rectify the situatian to the satisfactian of BNSF's Di�ision Engin��r ar until additiona{ insurance has been deliverec€ to and accepted by BNSF. In the event of a breacE� of (i) this Agreement, (ii) #he �emporary Construction License, ar (iii) the Easement, BNSF inay immediately terminafe the Temparary Construction License or fhe Easement. Any such work stoppage under t�tis pra�ision will not give risa to any liabifity on the part of BNSF. E3f�SF's right to stop the work is in addition to arty other rights BNS� may have inclucfing, but not lirnited ta, actions or suifs for damages ar last profits. In #he evenf that BNSF desires to sto� construction work on the Project, BNSF agrees �o immediatefy notify the folkowing indi�idual in writing: Form D105 Rev, p6109/05 Cecil Sowery Project Engineer, City of Peariand 3519 Liberty Dri�e Pearland, Texas 77581 5. Agency must supervise and inspect the operafions o# all Agency contractors to assure compliance wi#h the plans and specifications appro�ed by Bi�SF, the terms of th�s Agreement and afl safety requirernents of the BNSF railroad. If 6N5F determines that proper supervisian and inspection is not be�ng performed by Agency personnel at any time during construction of the Project, BNSF has the right to stap canstruction (within or adjacent t� its operating ��ght-of-way). Construction o€ the Pro�ect will not proceed until Agency corrects the situation to BNSF's reasonable satisfacfion. If BNS� feels the s�tuat9on is not being corrected in an expeciifiaus manner, BNSF wil� immetiiately nofify City's Project Engineer for appropriate carrecti�e action. 6. INT�N7IALLY L�FT BLA�IK. 7. Pursuant to this section and Article �I, Secfion 6 herein, Agency must, o�t of funds made a�ailable to it for fhE conskruction ofi the Pro�ect, reirtib�rse BNSF in full for the acEual costs of all work performed by BNSF under this Agreement. S. A!f expenses detailed in statements sent to Agency pur5uanf fa Article 11, Section 6 i�erein wil] compfy with the terms antl pro�isions af the Federa4 Aid Highway Program Manual, U.S. Department of Tra�sportatian, as amended from tirrse fo time, which manual is hereby incorporated info and rr�ade a part af this Agreement by reference. Ti�e parties mutually agree thaf BNSF's preliminary engineering, ciesig��, an� cont�act preparation costs described in Articie �I, Sectian 2�erein are par� of the costs of the Project e�en though such work may ha�e pre�edeci the ciate of this Agre�m�nt. 9_ The parties mutuaEiy agree fha� no construcfion acfi�ities far the Project, nor f�ature maintenance of �he Structure r�nce complefed, will 6e permitted during tF�e faurth quarter of each calendar year. Emergency work will be permitfed only upon prior nofifica#ion to BNSF's Network Operafions Center (tele�hone number: 80D 832-5452}_ The parties hereto mutually �nr�erstand and agree that trains cannot be subjected to cEelay during this time period. 10. Subject to fhe restrictions impasad by Article N, Section 9 abo�e, fhe construc�ion of tF�e Praject will not camrnence until Ag�ncy gives BNSF's Ma�ager of Pupfic Projects thirty (30) days prior written nafice of such commencement. The commencement nofice will re�erence BNSF's file number 02349� and D.O.T. Crossing No. 023490J a�d must state ti�e tirne fhat constructian acti�itie5 will begin. 11. In addifion to the terms and cor�d�tions set fpr�h elsevuhere in this Agreemenf, incl�ading, b�at nat limited io, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the foElowing terms upQn compfetion af construction of the Project: {a} Agency wil[ awn anc4 mainta�n, at its sale cast and expense, the Structure, the highway approaches, and appurtenances thereta, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. Bf�S� may, at its option, pe�form maintenance on #he Structure in order to�avoid canfiicts with train o�eratipns. B�fSF wil4 notify Agency prior to per€orming eny such maintenance on the Strucfure. fn the e�ent such maintenance involves �mergency repairs, BfVSF wi[I noti'fy Agency at its �arliest opportu�ity. Agency must fully reimbu�se BNSF #or the costs of maintenance performed by BNS� pursuant Eo this subsection (b). (b) Age�cy must, at Agency's sole cQSt and exp�nse, keep fhe Struct�re painted and free frorn graff�ti. �c} Agency must pro�ide B�[SF with any and all necessary permits and maintain roadway traffic eontrols, at no cost to BNSF, whene�er requesfed by BNS� fo allaw BNSF to inspect the Structure or to make emergency repairs thereto, Form 0105 Rev. 06/01/05 8 (e) It is expressly unc{erstaod by Agency and BNSF that any right to fnstall �tilities will be governed by a s�parate perm�t or lice�se agreement between the part�es hereto. (f) Agency must keep the Structure and surro�nding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals. (g} if Agency �includi�g its contractors and agents) ar BEVSF, on behalf of Agency, performs {i) alterations or modi�ications to the Structure, or (ii) any rrsaintenance or other work on the Structure wifh heavy tools, equipment or machinery at ground sufface level horizantally within 25'-6" of the centerline of the nearest track, ar (iii) any rr�ainfenance or other work outside fhe limits of the deck of tF�e Structure �er�icalfy abo�e the top of the rail, then Agency or its contractors andfor agents must pracure and maintain the following insurance coverage: Railroad Protective Liabiiity insurance naming o�i1y the Railroad as fhe Insured wifh coverage of at least $S,Oa0,000 per occurrence and $l0 in the aggregate. The policy Must he issued an a standard ISO form CG 00 35 10 93 and include the fol3awing: e Endorsed to include the PoIlution Excluszon .A.znenc�nent (1S0 form CG 28 31 10 93) ♦ Endorsed to include the Linuted Seepage and Pollution Endorsenzent. 4 Eudorsed to remove any exclusion for punitive damages. � No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railr•oud prior to perforn�iug any work or services nnder ttus Agreement As used in this paragraph, "Ruilr•aarl" means "Bnrlington Northern Santa Fe Carporatian", `B3�SF Ti_r1TT.WAY COMPANY�" and the s�bsid.iaries, successors, assigns and affiliates of each. In lieu of providing a Railroad Protective Liability Policy, Agency may participate in �NS�"s ]3lanket Railroad Protective Liability Insurance Pol'rcy if available to Agency or its conf�•actors. TIie limits of co�erage are the same as above. 12. Agency hereby granEs to BNSF, at no cost or expense to BIVSF, a permar�ent right of access from Agency property to BNSF tracks �or maintenance purposes. 13. Agency must pro�ide one set af as built plans (prepared in Engiish linits) to BNSF, as well as one sef of cornpuf�r diskett�s containing as built CAD drawmgs of fhe 5tructure and id�ntifying the software used for the CA� c�rawings. The "as built plans" must comply with ti�e Bridge Requirements set forth on Exnibit F' and depict all information in BNSF engineeeing stafioning and mile post pluses. The "as builf plans" must alsa include plan and profile, structura] hric{ge drawings and specifications, and drainage plans. All improvements and facilities must be shawn. 14. Subject to the restrictions imposed by Article IV, Section 9 abo�e, Agency must notify and obtain prior authorization from B�lSF's Manager of Public Projects before entering BNSF's right-of-way for maintenance purposes. If fihe cansfruction work hereunder is confracted, Agency must require its prime contractor(s) to comply with the obligations sef forth in Ex�ibit C and Exhib3t C-�, as tl�� same may be revised from time to time. Agency will be responsible for its contrac#ar(s) cornpliance with such obGgafjons. 15. BNSF inay, at its expense, make future changes or additians to t�e railroad cornponents of the Structure if necessary or desirable, in BNSPs sole discrefion, incfuding, without iimitat�on the folfowing: (i} the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to �ay additianal track or tracks, or (�ii) the right to �uild other facilities in connection wifh �he operation of f�s raElroad, Such changes or additions must not change ar alter the highway components of tE�e Structure. If it becomes necessary ar desirable in the future to change, aiter, widen or recansfr�ct t[�e highway components of the Structure to accomrr�odate railroad projects, the cost of such work, inc[uding any cost incidsntal ta Form 01R5 Rev.O6I011R5 9 afte�ation of railraad or highway facilitiss made necessary by any such changes to fhe Structure, will be di�ided between BNSF and Agency in such shares as rr�ay be mutually agreed to by the parties hereto. 16. Agency may, at Agency's sole expense, alter or reconstruct t�e highway componenfs of the 5tructure if necessary or �esirable, due �o traffic conditians ar pedestrian or ofher recreational traffic, provided, however, that any such alteration or reconsfrucFian must nof encroach further upon or occupy the surface of BIVSF's right-o�-way fo a greater extent than is contemplated by the plans and specifications to be appraved by B�€SF pursuant fa Article fll, Section '[ herein, without obtaining BNSF's prior written consenf and the �xacufion af a supplsment to this Agreemen� or fhe comp�etion of a separate agreement. 17. Rny books, papers, records and accounts of the parties hereta relating to the wark hereunder or the costs or exPenses for ]abor and rr�aterial connected with fhe cartsfruction will at all reasonable times be open to inspection and audit by the agents and authorized represenfafives of the parties hereta, as well as the State of Texas and the Fede�a[ Nighway Admir�istration, �or a period of one (1) year from the date of the final BNSF in�oice under this Agreement. 18. �he covenants and provisions of this Agreement are binding upon and inure to t�e benefit of the successors and assigns of the parties her��a, f�otwithstanding the preceding sentence, neiEher party herefo may assign any of its rights or abligations here�nder without the priar vvrit�en consent of �he other party. 19. In the event constructian of the Project daes not commence within two (2) years of fhe Effecti�e Date, this Agreemer� will beu-ome nuil and vaid. 2Q. Neifher terrr�inatjan nor expiration of this Agreement will release either party from any liability ar obEigation untier this Agreement, whether af indemnity or atherwise, res�lting from any acts, omissions or events happening prior to the date of termination ar expirafion. 29. To the maximum extsnt possible, each �ro�ision of this Agreement wil] be interpreted in such a manner as to be effecti�e and �afic4 under app[ECable Eaw, If any pravision af this Agr��mer�t is prohibited by, or F�eld to be in�alicE under, applica�le law, sueh pro�ision will be ineffective solely to the extenf of such prohibifia� or in�alidity and the remainr�er of the provision will be enforceahle. 22. This Agreement (includirtg �xhii�its and other documents, manuals, etc. incorporafed herein) is the full and complete agreement be�ween BNSF and Agency with respect to tF�e subject matter herein and supersedes any and all other prior agreements between the parties hereto. 23. Any notice pro�ided �or herein or conce�ning fhis Agreement must be in writing and will be deemed sufificienfly gi�en wF�en sen# by certified mail, return receipt raquest�d, ta the parfies at the fallowing addresses: BNSF Railway Company: BNSF's Manager of Public Projects 58a0 North P�iain Street Fort Worfh, T�:xas 76179 Ager�cy: Project Engineer City of Pearland 3519 Liberty Dri�e Pearland, Texas 77581 Form 0�05 Rev. 06/01/05 10 !N WETN�S� �1VH�REOF, the ��rties hereto have caused this Agreemenf to be exec�ted and attested by its duly qualifiied and authorized officiafs as af the day and year #irsf above written. W I�NE S. /¢��y t!v BiVSF R�4fLW�lY COMPA�IY By: Printed Name: �l Ir.o��+� �. i��U`�A Title: h'1 +�NI.�Gi �'f4 �U��LI C 7��] ��.� AGENCY CITY OF PEARLA�fD - . gY= Prin#ed Name: �i 11 Ei sen 2.,1 �� l�]R Tiile: C'� 't Mana er Magnolia Road Overpass Agreement (12I061D7) '� 1 Farm 0105 Rev. 0610'f105 �` �a �w N �� c� � . } �. Wc - E �� `�a z' `-' o �� W a� �'� � om ��o� � 000g w ix°��o� V o ��t M� d Emo�� €�w � `ua '�� °�. �o ° xa .- �z�°� F� �V . � `a aa � 3 `�' " � N��° � �"�� -�` ��e� ao � � a .� ��'�"�� p o ogiioa� w o& a � °oa 2��"�' � �GY"� � `�.��^.aw'w �'n w�i{Fi¢ � (z 3 `�' . �p{F'�y �m �.S �,o o< t � (1 � � -z ° �� ¢ ° a ° W ��4m�°�� o °N�� ` ��°� -'<' c` � �: � oz� ' �o znQW��`� $ °a=�z o ° � o �c = �� x;xc. `v_.Y m ' '�u �o o`" ��a°n< o N�a'-rwee• g'�'�''c= � �� f ?e� ��< a°H°�uia � _ s ,W �c" - o �wa ��`""` � � Qoe o �`�`i�oioa< � �a° .. aa M1LL� .,� ��' -o� ��"t� �€ o m�m�oQ�c � jm��a� m o�� ° a �� 9 V � t_ - R55C'Zv.TZ.Ink � o �Ma�vr �isir.i� _' �' zd - -� -�, a� �� _"` 'OViIS[e . ' �� XA 4 � N1RU5 M3�f Ol I ' -}��._-.. ��' e��oa ts'x3"Ml --- � � � M.AC 01.4[.4iN , ! ` ! ` �- �Jl . � p � � [ _ .�_ I } � I� a .. . LJ 6 � + : �, _ ¢, . - - ; �-. }._� t 1 - I �; . r �µA4'LS-Y i �o - �y "�"o" 'l t ' �x..Ai'£ } 1 � i 1 � _ l � ! l L � z 1 C Db•Zb V15 3Plf� H�,[�V'f _��_ .'�� 1� � _ ' ` -7---�__� I b ��" . e_.. .. . .. �� - . . � �N . . � L�_ -j _ �t9Y2£Bt 1N � ; � -,: - . . 5 ' � m:6i '� , . � i `� :T; el � 3 xl'�{IA7V �0� � m I _ a __� , —y�'i y-r C --- -u¢-�__�__� - --�__ i _ �_ � {_'__' � � ol - r _ '� ' $m �'.'_ __..�...__ - _ �� _ ' 4 =��_ � __ . .� _a .� 1 m I a : y �" ` S �� pcf TO�Zi.95 _ .. -... �� - ; _�_�� - zb . Z � lP'Z - o� .o � .o a i '� - - -- y � p _ _ � - ~ - � rr .L � f \ . �".zi ' n ��-- f L Atl�f'illtl 0 .LS -�----__ °>` � � . 'ne`vano 0--�9 � � � : `� , . � �� -"� 4 W �� ' �� ` °` <1- � �� i �� k I _ � � -------_ ! S� 4 � 4 �- �- o �� ° - ' l �� } M `�i� _ 2 � a � � �' n t+ �� > L �. V - _ #` t r'z" �� j ron.�',`�'�wFmm � , z aao�_a�aaa �y h � �� s � G k T 9 � i � p x o 6 S _„ � L � o t�is3 �+ o Q gme m�, "a r�� E ��„ � � o� �: �o�= �Y@4 � �a�W v�� 7 = � cs 5 IFU � Qn `w � � U .°2 j Ja ��d z� aLLS��' � �: 40 � � 3 i � ��3DCo� O �• �$[� � W�'+ 9 g d�4 � N �oL�B� � .°. ° �2 Fi C+ FY�.- S y� � � $ I �' � � E $ �I� `*-I '; `sj i ° i � �s =1 n o _._ f ' I m ' �! j � � - - ---'- -----.__�._ .._�—_ _� _.__' . � � � --,---_ � : : , ; � , , . ; • � 3 i j ' � , 1 � : : i : � . __"__-.-. ._.j-_... ._"_ '._ ._ ` __"__ _, .i... ..._�. .. ; , i � j ' � � i ! ! i �... � . ' I . � . .... . � _ ' I i ! i � i --- -;s— � - __ . ' - � ----� E --- ; - - ; - - i ; � ' ' � �. : . � . � � ` � i ' ' r _. _ i -� -°_ --- , -----:.--- � -� � � , , i. � ; i ; I , i � , i � • ' i � . -_ t ..... ....... :" ' _ "' ' � ; i ' __" - � i E � _ � � € atr =�b tl.€S 3N[l H�.LdVV ; � i ° � � � 1 r i � . -" . _ _ ' � - i E . __�_ s_ �_ s3 [ � . _. : i _.__.� f : � `-. .."t : .5'� -\ .-�.� . � '__-_ I : f � � � } { � � \� E ", ; � ��, � : � i MI � Ill] 1i33A r I - - � , ° o N�+I.4S'£Z � ' 3 � f f f � '/- �` � I I w= m � �� "a j ` � i a ¢ � n i � { o � ¢ ` ! _' _ a ! �' 3 I t � ] I I � � _ i _. . _,..1 3 _�_ � __.1 rci ; � O ' � - � � � �-_�_ °� _ i � � m I .`n ' ; �S�SZ•..f:. � � � � �' I �' �. .I . i I i Q . ia � i �: �°_ : � � �; ' o �o - o _ .—_ � O _ - i • '� � } � i I ; a: � i� _ �`� I , j z � �S __ Up - F � __ I - Q` _ j : x.� ! i:o : H i I � �� I �^ ; Q i { �- _ i i. -�-: i i w� = I � �� }� I �� : � wi - ----- -----� C3 : � a � _ _ �.i::�..H, c � � � . �. _� � _..I _ � _ � I _ , au � I � E� : _ i '- oF= `(I ". ? : � �_ `i ,a : ; : 3 ` ¢ S i. j f � � ' � ; � i � j � �� ,'!�� ; . � .�.._._., _ 1 ��/ �� . ._ _ . _ /" % � � T � � � - .- - _ : � ` �' i I `} i I �`o � l f ! , � _ � ! �� -- ^` �€ _ __. _-'.-�_ ..._�� I _ I.� _ 1..._.. I �Qn� -Y� � o - G E zR 3 _ : : wz�t ' � - - ' i ! e�v.w � _ � . : . � , � ' `� �' �� n ' I — .� a � - - � -- ¢ i -- i - - 5 j -. �I . � `I �� _ re ! V 2 � <� �„ �� Co £N �� 4n 'o � rc ry� �� + � °a� � � °� 3 � ! I"' � f � �� I , j � � �- !, ! �� z' � ' f � 1 n� r i �+` =i . 4 _ i ' �� r� . t . '� � � 1 ' � � � w'. � ti f o_ ' � } � , j � � 's I I � il ' : � S i I� � -� 1 ry y � ,� - t � "°p S.-_ _- 'j w � �`� y l � ��I � r � ' � � ` . a' � �' �I�:1 ��'. 3 �� r f � � � � � �� f k � ' F k ? ` � n " � �Sr � _ .y _. � . , � � I , q . 7 � �o E � � � �' , ��e --, � s � ' � .. - �\ � ' � '- � r � � - � # '�n� � � `\ f j �� j" � N°�� $.� m..izso.�s.e�i - . f .�' � ' ',. e - � � _ � o N ; + � � s {� - � �� o�� , � ' � I � LL �,.- d P�,e,�o � �1rc i - m � I � __ I �r � � _ 4 5 - � �{ �I � � ' l ` �� Li� .� _ � a ,, ` j _ � 4 N i - I z i � �.,� ' = �1.-`�-F= � � z . - ' � c M.. 9'4C.Li. � Iw . .-,:. . '_ . � � .� � �� -� ' - L I rv � � .� �� i � �_ _ �_ _----�� I _ � 'A-.5 - Famu��_ � � lltld3M y xo'Y ` rA'Z l .,o�a :o-.i k 1 - '.:o-a 4-4�l.'d� _ 5 0�•'LV tl �5 3t�i�1 z 0 � U o W ^ � ' J � Q U U � a � � z� 4 Q _ i � �, � � . O m $ F. b � O N tr� o 3 m ° n $ 'C R }� U1 G�iN s � � I 4 � "mm��a � � a a � tie � ��"Q�,_ � 5 z E� c$ W r`or �� on.o� � �� ° �' ; �°rg" � �Uca e CC �j V �= ° �¢�a �16� a �� o 0.�g� � g' £ ��m �os ��.`e� � < ei �QN� s��5 m.s�� E€ K �B � �m � s � �r�s � � � s I � k$�� p � ' �{ � � � o' ' v�. N� 0. W� �• N� p� . � , � � • __._ '. ' ! _I i -� - �� - -; -- -� -----' � ---- --- -�'-`-- � � � i : } i � � � � � � I � _ _. ..... �, . , , t I . -_ S ___.-. ..._� -___ '_ _ ' '"-� _ ._ -' i ! � � . , : ; : ; ; : � � ' ' � ! i i , --- -- ,. . i I � f �_. ! ' i ; � , � � ; i _ __-!- ----; .__.. -- ----- - - -� - � i f ' -- i . f � � _.-- � � � � � i ' � I ' , , - �-- � � -- - ' -� --� -- ;-- � ---�... - - j � --- �-- -- .. .. _ F, ... � � ' _. I . .`I . 3 _ '.__ - 1 � _ i ; i � � � � ' - ; -- ? ' -; i .. i ... . , . - -- -- i �.�.. � i ---� ..__ . -'.. -# -- -;._ � , � ' � : : . - � 3 _ � • � : ... ; ; , i _ , i � ; � : . � : � I ' � ; � F ! � � � i : , ; _ � � • - ---' . i . _ i _ -- ` - - � - i ; , i ; �, �- -I.... � � r i 3 . I '__ I G � � r i ; F_ , i "___ P � � �I 1 -T ; � �� o �� !_ ... 1 • : � r E � ± ; - �� E ; ��" � _ � 4`� i ( f i � �� i *« � - - �- I � � ,� i ; . _ _ -. - � . _.. . � � .� .--- � � -� . _ . _ t_ w - - j ; : : � -�: .. � - ; � ; ca; � ; : : a m i a i , i . � - i ; : I ; � ; � '- � ! _ ; �o � �� ' zi � - ° � G � � or - � � �¢ ? - - � ;� � -I �`� e , ' � �"` -- � - - ---- - - -� I - � 1 -- - = L ' � ; ; �' � W� .FZ�.31.. -_. J � : � � � w � ---- - - — � � � I i I �ti � �� ; �8 �yw � 7 �� 'o< � � ! ---- � az� A�y3h � " -. o � I _.. .li€;i. . c _ u _ _ ..__. _+._� �. . � - i __. .. ' _ - � .. __ ,. _ ''. _ � A' � - ` � . . b ' ` � u f � x � � � I o ' ' w v � N . '" u . I ! : .... .. ��_ . . .,I . - .... . . I I ' � � 3 � i ; ; Qi�•Zi 'yl5 3t�1'1 F[��1t+IN � I -- �--- � - � ----. ._ ! �--.._ - , • � , , i , : ; . , � . . , , � - . ' ; � —_ .___.'�.. _�_...__. i I .....y. � . —` ... ... _ _ � . �___' _ � ...'_� —_ ° n_i oi p� • ` . . �i � i EXHEBET D Railroad Cosfi Esfiimate Railraad flagging will be an average of $80a per day based upan an $-hour work day. Raifroad Bridge Inspector w�fl be an a�erage of $� 200 per �ay based upon a 10-hour work day. Agency wi91 �e billed based upon actual cost of the wor�c performed and at the actual rate of the successful bidder for tk�ese services. At a minimum, Flaggir�g services wi[! be required while work is performed on and over the raifroad right of way. 1Nork per�ormed adjacent fio railroad right of way �hat has t�e pofier�fiial of affecting train operations will akso require these serv�ces. An example of adjacer�t work would be a tall (10D-foot) p�fe dri�er driUing piling up to 100 feet from closesf track. �r�dge Inspection will be furnis�ed at least during the farminglbracing of fhe overf�ead deck and adjacen� supporfir�g columns for the overpass. 'I�IMOTF3Y]. HUYf1 BN51� RaiIway Company Ivjanages Public Projects '�'�'' �� ''W y (.Slntar ofL4, R7S mrd Tx) 5800 Noxth 14lain Street Fart Worth, Tercas 76779 517-352-2902 817-352-2912 Fax Tim.HuyaQBNSF.com ]E�SIT E December 6, 2007 Anthony Vu, Acquisitions Coordinator Project Management Department City of Pearland 3519 Liberty Drive Pearland, Texas 77581 Re: Final Approvat of Plans and S�ecificatians datec� 07/25/2007 that wer� subm►ztted to �ny off'ice on October 26, 2p07, drafled by Bridgefa��rn.er & Associates and . released by Tz►��Jui Tang, P.E. (hereinaffer ��lfed, the "Pians a�d Spec'�f'ic�tions") Dear Anthony Vu: This letter serves as $N�F RAILWAY C�MPANY's (`BN�F") final written approval of fi1�e Plans a�d �pecifications covering the canstruction of the Magnolia Road (DQT No. 0234903} Overpass. This fu�a.l wriiten approval is given to City of Pearland ("Agency") pursuant to ArticJe III, Section 1 of that certain Overpass Agreement befiween BNSF atid Agency, dated Decemb�r 6, 2007. I� the Pians and �pecifications are revised by Agency subseque�it to the date s�t fort�i above, this l�tt�r shatl na longer serve �,s f la1 written appi•ov�l c�f the Pl�ns ar�d Specificatian;s and Agency must resubmit sai� Plans and Specifications to BN�I' far final written appraval. Regards, _.-.�-----_., � Timothy J. Huya _ � �� Manager Pubiic Projects Fiie: 0239�90 Exhi�O�t � BN�F �rid�e l�eq�ire�nengs BRIDGE D�SIGN, PLANS & SPECIFICATIONS: �xcept for the design of temparary falsework and shorin�, $NSF ret+iew of the Structure plans will 6e limited to the vertical and hor�zontal clearanoes, sight distance for exist�ng train signals, faundation di3nensions and drainage characferistics as they relate to existing and future tracks. BNSF r�vi11 z�ot revienv struchual design calculations for the penmanent Structure unless a m�mber or members are influenced by raikoad live laads. Ternporary faisewark an.d shoring plans and calcu3atio��s must be reviewed and appxaved by BNSF prior to hegmuing construction. The Agency shalI perform an indepe�dent revie��+ of the design calculations for temparary falsewo:rk and shoring priot• to submitting tliem to BNSF for appxot�al. Temporary consfiuction clearances must be no less than IS feet measured horizontally froxn t�ie centerline of #he nearest track and 21 feet-6iuches naeasured vertically from the top of rail of the anost elevated track to the bottom of lowest temporary falsework member. 5fate regulatory agencies Anay have more restrictive requirements for temporary railroad clearances. �'ar the geimanent Sfructure, the Agency wiIl suhz�ait plans showing the least horizon#al distance frono tbe cen#erline af existing and future ixacks to the face of the nearesf inember of the proposed Structure. T�e lacation of the Ieast 3�orizonSal distance nnust be accurafely described such that SNSF can detez'miue where it will occur in both flie hor�zontal and vertical plane. If the permanent member is �xrit�in 25 feet of the nearest track (or future tracIc), collision walls shall be incorporated into tbe per�anenE 5tructure design according to American Railway Engineering and Maintenance Assooia�ion Mannal of Recominended Practice - Chapter 8- Articla 2.1.5. F'or the permanant 5tructure, t7ie Ageaxcy will submit plans showing the Ieast vertical clearance frarn top of the most elevated rail of existing and future tracks ta the lowest point of the proposed Structure. A prafile of the existing top of rail elevatson sl�ali be plotted on the bridge p�ans. The prafile shall exEend for 500 feet is� each direction of the proposed overpass and a separate profile shaIl be plot�ed £or each track. If tUe exis�ing top of ra`il profle{s) zs not uniform such fhat a sag exists in the �icinity of ti�e proposed 5tntcture, the permanent Structure vertical clearance shall be increased s�ifficiently to accon�nnodate a raise in the track profile to remove the sag. Priar to beginning constructio� of flze pernaanenf SLructure, fhe top of rail elevations shauld be cb.eclted and verified that they ha�e nof changed from the assumed elevations utilized for the d.esign o£ tb.e bridge. Prior to issuing any invitation to bid on construction of the 5isucture, the Agency should conduct a pre-bid meering where prospeclive Cnntractors have the opporfunity to communicate wit3� BNSF persannel regarding site specific train speeds, fz'ain dansity, and generai safety requiremen�G foz' mezt aztd equipment working near �ive tracks. Any iulvitation to bid and specifcatians for the Struc4�ure ruust be sUbmitted to BNSF for review and approval prior to letting of bids for the Projecf. BRIDGE CON�TRUCTION: After awardiag the bid, but prior fo the �ontractor entering BNSF's right-of —way or proper�y, tlae Agency shoulcl conduct a pxe-constfuction meeYing with BNSF personnel in. attendance to reiterate the safety requiremen.ts af construction activity adjacent to li�e tracks. During construction, BNSF wiiIl require an independant engineeTin� inspector to be present during ceriain critical activities of tl�e Praject, incTuding but not limited to: driving foundation piles, erecti�g falsework, construction of shoring and reYaining walls, placing concrete, placing sozl bacIcf�ill and campaction prooesses. The Agency shall reimburse BNSF for a]I costs of supplemental inspection services. Within 90 days of the cpnclusion of the Project and final acceptance �y BNS�', fhe Agency will provide BNSF with a complete electronic set of the bridge plans Iai�eled "As Built". `�'hose plans will reflect any anc� all deviations fron� Exhibit F"BNSF Bridge Req�irerr►ents" — Fuqua Road O�erpass (7I20106} 1 the original plans that occu�red during constructian. The "As Built" plans wilI be submittad in Micro Stat?on *.dgn elec�ronic format (preferred) ar AutoCAD *.dwg £ormat. Elecfironic plans are to be submit�ed in the original forniat used far CAD plan preparation and not conver�ed to another faxmat priar to submission. Actua] measured "as constructed" clearances (horizontai and vertical) shall be shown as well as depth, size and location of all foundation components. The plans shall s�ow dimensioned locations of existing and relocated utiIiEies. BRIDGE M1IINTENANCE: The Agency will be responsible for maintenance and repair of the Structure including the earth re#ention components, emban�nent slopes, erosion control, sur£ace drainage, fencing, deck drains, landscaping, paint, walkvvays, handrails, lighting, and other improvesnents associatecE vuith the Project. Fencing and otller pedestrian access controls within BNSF's right-of-way and incarporated into the �'roject sha�l be designed and maintained by the Agency, Trespasser control shall be ihe responsibility af #he Ageney. Graffti removal wi11 be die responsibility oF fhe Agency. SRIDGE INSPECTION: 7'he Agency will conduct annual roufina stiuctural inspections. In the event of an eai fire, #Iood, damage �irom vehicular impacts or oEher emergent situafions, the�Age�cy r�ill provide an unmediate iuspection by qualif'�ed personnel and notify BNSF of ciamage that may affect safe passage of trains. If necessary the Agency will eznbargo weights or provide lane closures or other suc�i measures #o protect the struc#ural integrity of tae Structure such t�at there can be continuous safe passage of traius un#iT repairs are made. BRIDGE ALTERATIONS: Except as provided ofharwise hy this Agre�men#, fhere wiil be no alterations made to the Strucfure that wili alter the railraad verfical or horizontial clearances provided by the axiginal desi�m. Pipelines will not be added or attached ta the Structure after this Strucf.ure is completed withouf fust suU�nitEing plans and caIculations to BNSF for review and approval. Exhibit F"BlVSF Bridge Requirements" — Fuqua Road Overpass (7120/06} 2 � � :,�� a a� ��i �:a a.Gi J�� ¢ . �� o ��. �i� ''a�w ��(� ��W �i ��Z �W Z2� .� O F�. V� �� ¢ 311 m � �..1 ��4 =�i �+cs �az- � 3-i ��r SV1 M Zi� ZWO� �s`� i5x,- z ° �,e�� m w '^ m �_ � . �� - �aF ° - ..`�.e�w ° 'z a �s.�n � ++�.�. . K � x ¢ ¢ xu - y ° �� t' � �� ffs�J L N �l - � ��ssx � �+c# - ee - e n� .�� - R � p l! �� m aN Was�ez ✓�iPCfC �m�44 -� 1 - b� or�° . �.�d � �� _ �� a9tr�CY .�� K �KQ ��^� � U W ]l)U 20¢� ¢� P� l�'QW W�lil� WF-liZ }6.�. 4f d �� . { �� j Km4 tY� KC.i � ••��:�� Q Ci�W .Q�T�I 2 .�� n�a �=ss � _ m'�a-a� . �ic .z o., xQ ao y � G6�L]U' VY� J 'G� - - ¢i.L ~ O }- VId 1p'IF i4'iG YN �W � � �"� � � a} c" a aa•r� ° u ° . .o� � z�i ca � ��wmo a� aa�� o.�ic� �¢ �o �m I./ 1 � e� � �� "- i r o� [=.�� .d � �r �f- .c�c� no mre �� c . � �."�. �� W ��`� W 6W� Y �� F .3.xF' in tJ f.Y y .•. �~� 0 ��d2 � �"'a`„ ��mo -"'uF. .rm�a r �-z oax ,i;� :�S`�`� o ry v. o �2 [�¢ A.. C.'YF 0 .�dr -��-'�- mz ��wo �� .F�G �N �Ro w�i ,.�"zv�ir �'c� .on� � wz c� x m C z ��R F -SW� iY m W �Vi . �OQ JG F L.i� .x0� FGG W R v . wia ��`r o� 'a¢in � a o z � c z w H o ��n iao ww wmF� 'N-'� �r �� no 1 � 0 � w� ? �o ra z ia m -� Y � � � m W � d F � � � o `� u u'i x � � r ` ° c w� � � o � ov�i �ee. (7 W Y! � ��w S]�i!i V� � ° sra '� �. �a� .n mw reoo 0 'nw arr � o ° wwc�. ° x � � � F �� N 'e� 5 5�' w .rb� oY4 N �� u� r = F�¢a O e ,rr�w r � �w� zz o - vi� z �H 4C a� .J [ L3 Wm a° '.�c uam J � � � V _ I..� ' m � � � �� v� x w .x ~ W <1 U W � tf 1 � � Q � � cs L7 m 2 'kIh � „4-.B �a ��. iil � a u. � w c� w �� w � a � ' 0 F� � _ r c.+ ar �a m W S d. Z H < te o � � Q u � � a �W. � �� a � Z r � � o .'l. N I� LY � � � � U - �L3� �Lf " J W L LJ � w n. � V 4` `. .' � �4 _ � �� . ° Z '� .-� •-- � Z ti Y�� . �g' � . f 7!1 f�6 � V I u �!7 L1.. �n L�. - . � � Ll__ � � �. � � N w � U � � � � � � a � � � � Z ~� , U. ,� � � r �— J = � • � w . � O z L�L � _ m � CYf � z � U �, � � � '---� c_y � � � . � w � � � �C � " � � z. � �--� � �. � �� _ Z � �[ � .� � � d C.:J �. Q 6 H Q � O �I tii � 1 � 1'�1 U � �f7S7 H H z W Q L� 7 L�.[ IaJ ; �z L.F � [� oc c � �UZ t7 Z �a.l [n �� 30 - LL, Qc.�wF Lil � laJ U CC3 Y-L 'iC � .`�� i.7 [C W �L a F 3� W V7 OJOZ� S L] I-- � 0 W L!1 } W � J � � � � � d � i�J a � � � � � � G �- � � � 2 � � � � Q i- cn U [l7 w G � a L� ll 3 l t.l } a o �0�3 � � 1 �-- H m N U \ a�a Nd� ��H J cI'} •--• ,� u, E } �-L� a J �2LS[ 2 4 H. d [� �xhiait F`BNSF Bridga Requirements" — Fuc�ua Road Qverpass (7120106) 3 LAW DEPARTMENT A�PROVED EXHIS�T "C" CONTRACT�R REQUIR�NIEI�ITS 1.OI GeneraI • 1.01.EF1 The Contractor must caoperata «+itl� Bll�5F T2�L't�AY COMPAI\TY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of way, hereafter referre,cl to as "Railway Property", during the construct�an of the new Ma�nolia Road Overpass (DOT No, OZ349aJ1 at railroad milepost 8.7b. a 1.01.02 The Contractor :must execute and deIiver t.� the Railway duplicate copies of #he Exlzihit "C- I" 1lgreement, in the farn3 attached I�ereta, abligating the Canfractor to provide and znaintain in full force and effect fhe ins�rance called for under 5ec�ian 3 of sai.ci �xhibit "C-1". � I.U1.U3 The Contractar must plan, schedule and conduct al[ work acti�viYies so as not to interfere with t]ie move�nent of any trains on Rail�way Praperty. 0 1.01.04 The Contractor's right to enfer Railway's Property is subject to the absalute right of RaiIway to cae�se the Cantractax's wark on Railway's Property to aease if, in the apinion of Raii c�vay, Contractor's activif.ies create a hazard to Railway's Property, employees, andlor operations. a I.fl7�.QS The Cantraotnr is responsihie for� determfning and complying with all Federal, 5tafe ancf Locat Govenimental laws and regulations, including, but not limited to environmen�I laws and raguLations (including but uot limited to tl�e Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Acf, the Ha�ardous Materials Transportation Aet, CERCLA), and health and safety laws aud regulations. The Contractor liereby iudemuifies, defe�ds and hoIds fiarrnless Rai.3way for, fram and against all fiues or penalties imposad or assessed by Federal, 5ta.te and Local Governmental Agencias against the Railway - which arise out of Con4ractor's work under fhis Agx'eetx�.ent. 0 1.U1.(�6 The Contractox znust notify ttie Citv of �'earland at 28�. 652-1682 and Railway's Ivlanager Pub�ic Projects, telephone num6er 817-35Z-29Q2 at Ieast t:hrrty (30} calendar days before commencing any work ou Railway Property. Conizactor's noti�'ication to Railway, must refer to Railroad's file: Q23490. 1A1.07 For any falsework abave any fsacks or any excavations loca#ed, whickever is greater, within twenty-five {25) feet of the nearest 1x'ac�C or intersecting a slope f��am the plane of tbe top of rail an a 1%a horizontal ta 1 verhical siope heginning af eleven (I1) £eet fi'om centerline of the nearest traci€ both:measut'ed pexperndicular to cent�r 3ine of track, the Contractor mvsf fumish fl�e Railway five sats of working drawings showing detai�s of construction affecting Railway Property and t�acics. The worl�ng dravving must include the proposed mathod of installafion and removal of falseworlc, shoring or crihbing, nat included in the contract plans and two se�,s of strucizual calculaiaoz�s of any falsework, shoring or cril�bing. AIl caiculatiozLS must take into considera�ion xazlway surcbarge Ioadina and must be designed to meet American Railway Engineering and Maintenance-of-Way Association. {previously �nown as American Railway Engineering Associatinn) Coopers B-SO live loa3ing sta.ndard, All drawings and calcu�a.tions must be sfamped by a registered professional engineer Iicensed to prac#ice in t]te state t13e proj ecf is located. 'I'lie Contractor must not begin work until nntified by the Railway tUat plans have been approved. The Contractor w�l be required to use Iifting devices such as cranes and/or winches ta place or to remove any falsework over RaiIway's fracks. Xn no case will the Contractor be re3ieved of resgonsibilzty for resuits obtained by the implementation of said approved pkans. Exhibit C—Magnolia Road Overpass (12106107) 1 Farm d]02 Rev. 0ll20/05 4 lAI.08 5ubject to the movement of Rai3way's trains, Railway wi�l coaperate vvith the Contractor such that the work may be laandled and per�ormed in an efficient maa��ex. The Contractor will have no olaim whatsoevax• fnr any type of damages or for extra or additianal compensa�ion in the event his work is delayed by the Raiiway. 1.02 Contractor Safety Orientation 1.02.01 No employee of t�e Contractor, its subeonfiractors, agents or in�itees may entier Rai�way Properiy without �'irsf havina co�upleted Railway's Engineering Contractar Safety Orientafion, found on the web site www.confractarox'ientation.com. The Contractor must ensure �ha� each of its employees, subcontractors, agents or invitees cnmpletes Raitway's Engineering Contractor �afety Orientatinn through internet sassiozzs before any worlc is performed an t�ee 1'roject. Addifionally, the Con*r�ctor must ensure that eac� and every one of its employees, subcantractors, ageuts ar invitees �►ossesses a card eer�ifying completian nf the Railway Cantractor Safety Orienta#ion before entering Rai�way �raperty. The Contrxctor is responsible for the cost af the RxiltiF ay� Contractor �afety Drientation. '�he Cantractor must renew fhe Railway Co��ractor Sa#et�� Orientatian annually. Further elarificatian can be found an the we6 site or from the Rai�vvay's Representative, I.Q3 Railway lZequirements 0 1.(13.01 TIie Contractor must talce pro�ective measures as are necessary to lteep railway facilities, inclutiing h bailast, free of sand, dehris, and otl�er foreign ol�jects and mateziais resulting from his operations. Any daznage to railway facilities resulting frozn Contractor's operafions_wil] be repaired or replaced by Railway and fhe cost of such repairs or replacement xn.ust be paid for by the Caniraetor. • 1.03.�2 The Contractior zzaust notify the Railway's Divisian General Manager af 28I-354-7781 and provide hlasting plaus to the Railway for review seven (7} calendar days priar ta conducting any blasting operations adjacent to or on Railway's Property. a �.�3.(}3 The Contractar mtist abide by the following temparary cIearances during canstructian: a 15' Horizantally from centerline of nearest track g 2�'-6" Vez�ically a6ove top of rail ■ 2T-0" Vertically above top of rail for electric wires carrying lass than 750 volfs ■ 28'-0" Vertical�y above top of rail for electri� vrires carryin�; 750 volfs ta I5,04D volts r 30'-p° Ve�ically above top of rail far electric �vires carrying 15,000 volt� to 2Q,00� volts ■ 34'-D" Ve�icaily above top of rail for electric uvires carrying inore tha�i 2Q,000 volts � 1.�3.04 Upon compie#ioii of constiuction, fhe following clearances sl�afl be inaintiained: ■ 25' Horizontally frnm cenferline of iiearest track � 23'-3 %z" Vertically above top of rail • 1.03.U5 Any infriugement witt�in State statutory clearances due to f�ie Coutractor`s operations must be submitt�d to the Aai�vvay and to flie City of Pearland a�id must not be undertaken unfil approved in writizig by fhe Rail�cvay, and u�ttil the Citv of Pearland has obtaixied any necessary authorization from t�ie 5tate Regnlatory Authoritp for the ir�ingement. No extra compansation will be allowed in the e�ent tke Conh work is delayed pending Railway appxoval, andlor the 5tate Regulatory Authoxity's approva�. • 1.03A6 �� the case of impaired vertical clearance above top of rail, Railway will l�ave the aption of installing tell-tales or ofher protective devices Railway deems necessary for protectian af Railway operatio�s. The cost of teIl-tales or protecfive devices will l�e borna by the Ci� of Pearl€�nd, s 1.03.07 The details af cottstr�iction affecting fhe Railway's Properry az�d tracks not included in the co�tsact plans mnsf be subnnit�ed to tl}e Railway by City Qf Pe�rIand for appraval before work is undertaken and this work naust not be undertaken �ntil approvad by the Railway. Exhibit C—MagnoiiaRoad Overpass (12/06/07) 2 Form d102 Rev. 0112o/os • 1.U3.08 At other tUan public road crossings, the Contractor must not move any equipment ar materials across Rail��ay's iracks ur�til pennission has been obtained from the Railway. T'he �antractor must abtain a "Temporary Pr.ivate Crossing Agreement" from the Railway prior to moving his equipment ar materials across fihe Raiiways traeks. The temporary crossing must be gated and locked at ail times wl�en no# rec�uired for use by fihe Contractor. The temporary crossing for use nf the Contractar will be at the expense of fihe Contractor. • I.Q3.09 Discharge, release or spill on the Railway Property of any hazardaus substances, oil, pei�o3eum, consfitueats, polluCants, contaminants, ar auy bazardous waste is prohibited and Contractor must itnmediately notify the Railway's Resource Operation,s Genter at 1{8Q0) $32-5452, of any dischazge, release or spills in excess of a reportable qnantity. Contractor must not allow Railway Properry to hecome a treatment, starage or transfer faci3ity as those terrns are defined in the Resource Conservation and Recovery Act or any stata analogue. I.Q3.10 'I`he Confractor upon completion af the work. covered by Ehis contract, must pxomptty remove from the Railway's Property a1� of Contractor's tools, equipment, implements and ofhex z�naterials, whefher brongl�t upon said properry by said Contractor or any S�tbcontractor, empLoyee or agent of Contractor or of any SubcQntractor, and inust cause Ra�lway`s Properiy to be ieft in a condition acceptable to the Railway's representative. 1.04 Contractar Road�vay Worker on Track Safety Program and Safei�y Action Pian s 1.04.01 Each Contracfor th�t will perform wor�C within 25 feet o£ the centerline of a track_must deve�op and iz�nplezaaent a Roadway Worker Prot�ction/On Track Safety -Paogcam and worlc witi� Razlway Project ltepresentative to develop an on traak sa£et}+ strate�y as described in the guidelines lisfed in the on track safety portion of tl�e SaFety Orientation. Tlus Program must provide Roadway Worker protectionlon track training for ai1 e�nployees af the �ontractor, its subcontractars, agents or invitaes, This training is reinfarced aL the job site #hrough job safety briefngs. Addi�iona�ly, each Cantractor mast develop and implement tfie 5a£e#y Action I'lan, as provided for an the web site r�v�v.contractarorientatio�.cam, which wi11 be made available to Railway prior to commencament of any work an Railway Property. During the performance of work, the Contractar must audit its work activ'rties. The Cantractor must designate an an-site Project 5upervisor wkzo will serve as t47.e contacf person for the Railway and who wiU aaazn#ain a copy of the Safety Action Plan, safety audits, and Material Safety Da#ashee#s (M5D5), at the job site. 1.05 �ratection of Railway Facilities and Railvvay Fltaggez Services: 1.05.01 The Caniractor must give Railway's Roadmaster ,Fames Wa�es at 713-�47-3I76 fof�ce #}. or 281� 862-��G3 (cell #), a minimum of thirty (30) calendar days advance no�ice when flagging services will be requiz so that the Raadmaster can make appropriate arra.s�gements (r.e., hulletin tl�e flaggex''s positioz�). Zf tlagging services are scheduled in acivance by �kse Cantracfi.or and it is subseqnently deterrnined by the parties hereto fhat such services are no longer aecessary t4�e Contractoz' znust give the Roadmaster five (5) working days advance nofice sa that apprnp�iate arrangements can be made to abalzsh tha position pursvanc to union requirez�e�xfs. � 1.OS.D2 Un3ess detarmined otherwise by Railway's Projecf. Representa�ive, Railway �lag�er and pro#ecti�e services and deaices will be required and furnis]ied when Confractor's work activities are located over, under andlor within tvrenty-five {25) feet measured horizontal[y from centerline af �e nearest track and vahen cranes or similar equipment positioned beyond 25-feet fro� �e kz centeriine cauld foul the track in the event of tip over or other catas#rophic occurrei�ce, but not limited thareto For th.e follo�+ing conditions: W 1.OS.pZa Wkien in [he opi�ion of tlie Railway's Representati�e it is necessary to safeguard Rai�way's Pxaperty employees irains, engines and facilities. � e 1.OS.U2b When any excavation is performed belaw �he bottom of tie elevafiion, if; in the opinion of Railway's represei�tafive, track or otrier Railway facilit�es may be subject fo raavement or settlement. e 1.[}S.42c 'Wilen work in any way interferes with t�e sa£e apera#ion of trains at tune�able speeds, Exhibit C-- Magnolia Road �verpass {12/05/07) 3 Form 0102 Rev. 01�20�05 o L�5.02d When any hazaxd is presented to Railway fxack, coznmunications, signal, electrical, or other facilitias eitber due to persons, matersal, equipment ar blasting in the �icinity. * 1.OSA2e Specia3 pernussion must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in n�alcing the frack impassable. • 1.Q5.fl3 Flagging services will be performed by qualif ed Raiiway flaggers. • 1.05.03a Flagging crew generaIly consists of one employee. However, additional personnel may be required to protect Raiiway Property and opera�ions, if deemed necessaty by the Railways Representa.tive. a T.05.Q3b Each time a flagger is called, the minimum period far bilIing will be th.e eight (8) hour basic day. ! I.fl5.�3c The cost of flagger services provided by the Railway, when deemad necessary by tne Railway's representafive, wiil be borne by the City af Pearland.'The es�ima.ted cost for one (I) #Iagger is $806.00 for an eight ($) hour Uasic day with time and one-half or double tixne foz overtime, rest days and holidays. The esl�mated cost for each flagger includes vacation atlowance, paid holidays, Railway and unemploymeni insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervasion. Negofiations for Railway lahor or collective bargaining agreemenfs and rate changes aufharized by appropriate �ederaI authorit�es may increase actual ar estimated flaggizxg z'ates. 'I'l�e flagging rate in efFect at fi2e time of performance hy tha Cantractox hereunder will be used to calculate the actual cosfs of flagging p�rsuant to this paragraph. + 1.A5.03d The average tz'ain traffic on this roufe is 2b thru fraight frains �er 24-hour period at a timefable speed 5� MPH and Q switching movement, anr� � passenger #rains. L06 Contractar General Safety Requia'ements • �.f16.01 Wark in the proximity of rai�way track(s) is potentially hazardous vvhere xnovement of trains and equipme�� can occu�• at any time and in an}� directian. AlI wnrk performed by cnntractars r�ithin 25 feet of any track must be in comgliance with rRA Roadway Warker Protection Regulafions. o �.46.02 Befare beginning any task on Railr�vap Property, a t�orough job safety briefing must be conducted wif� all persvnnel invnlved with the fask and repeated when the personnei ar taslc changes. If the task is within 25 feet� of any track, tite job hriefing must inclnde the Raihvay's f3agger, as ap�Iicable, and include the procedures tl�e Contractor �vill use to profect its emptoyees, subcoutractors, agents o� invitees from mo�ing any equipment adjacent to or acruss any Railwa,y Y�•ack{s). 1.U6.f13 Workers must nof work rvithin 25 feet of the cen�erline of any track ��ifhout an on tracl� safety strategy Rpproved by the Railway's Project Regresentative. When au�hority is provided, every contractor employee must l�no�°: (1) who the Rail�vay flagger is, and ho►�� ta can�act tlae flagger, (2} 3imits of t�xe at�thox'ity, (3) the mefl�od of communication to stop aad resume �vorlt, a�tl (4) location of the desitr�ated p3aces af safety. Persons ar equigment entering fTaglwork lim4ts tliat were not previausly joh briefed, must no8fy the flagger immediately, and be given a�ob briefing when working witivn Z5 feet uf t�e ce�nfer line of trA�k. • I.D6.fl4 When Con#ractar employees are required to work ou the Railwa�� Propert�� after normal working hanrs or on weekeuds, the Raiiroad's representative in charge of the praject ��st be nofified. A mini murn nf two enzplo5�ees mus� be present at a� �imes. � 1.06.a5 Any employees, agents or invitees of Can�ractax or ifs su.bcantractors under susgicion of being undar the znfluence of dz'u�s or alcohol ax in the possession of same, wiIl be removed frorn the Railway's Property and subsequently released to flte custody of a represanfative of Contractor management. Future access to the Railway's Property by #hat employee will be denied. Exh:ibit C—Magnolia Road Overpass {12/06/07) 4 Form 0102 Re�. olYLO/o5 s 1.06.�6 Any damage to Railway Pzoperky, or auy hazard no�iced on passing trair.�s must i�e reported i�ediately to the Raii�,vay's representa�ive in charge af tk�e pz•oject. Any vehicle or machine which may couie in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported irr�ned'zately to fhe Ra�lway representative in chazge af the project aud to the RaiIway`s Resource Operations Cen�er at 1(800) 832-5452, Lacal emergency nu�r►bers are to be obtained fxam tk�e Railway representative in charge of the project prior to the start of any woxk and must be posted at the job site. • X.€16.07 Far safety reasons, all persons are prohibited fram having pocket Itnives, firearms or other dead3y weapons in their poss�ssian while working on Railway's Property. 1.Q6.08 All personnel protective equipment (PPE) used on Railway Property must nleet appiicable OSHA a.nd ANSI specificat{ons. Current Railway personnel protective equipment reqvirements are 3isted on tke web site, www°.cantracfarorienta�on,coni, bowever, a partial list of the requ�rements include: a) safety glasses vvitl� permanently a�ed side shields (n.o ye]low lenses}; b) l�ard liats c) safety shoe vaith: hardened Loes, above-the-ankle lace-up and a de£iued heel; and d} high visi6ility xetra-reflective wark wear. The Railroad's representafive in charge of the proj ect is to be contacted regarding Iocal speci�'xcations for maeting requirements relating to }ai-visahility worlc wear. Hearing protection, fall protection, gloves, and respiratoxs must be wom as required by State and Federal regulations. OTE — Should tliere be a discre ancv hetween fhe information co�taiined on the web site and fhe informatinn in ttus nara�raul�, the web siYe v��ill governJ � 1.�6.�9 Tlje Canfractor must nat pi�e or store any materials, macliinery or equipme�t closer than 25`-0" to tha center liue_of-the-.neareSt Railway track..Materials, �achine.ry ar equipment �nust not be stored nr left ��ithin 250 feet of any highway/rail at-grade crossings, where storage of the same will interfere wiTh fhe sigbt distances of �uatarists approaching #he crossing. Pzior to beguuiing work, t�ze Cozt�ractor must establish a storage area �vith cancurreuoe of tlie Railroad's repxesez�tative, + 1.06.10 Machines or velucles must not be Ieft unattended witln the engine running. Parked machines or equipment must be ia gear wzth bzakes set and if equipped with b�ade, gan ar bucke�, they must be lowezed to #he grouad. All machirtery and equipment left unattended on �ailvvay's ProperCy must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more deYailed spec�fications) + 1.Q6.11 Workers must nnt creaEe and leave any conditiionAs at the work site that would interfexe witb water drainage. Any work performed over water must meet all Federal, State azad X.acal regulations. � 1A6.12 All pawer iine wires zz►ust be canszdered dangerous and of f�igh voltage unless it�£o:rzx�ed to tkze contz'ary by proper authority. For alI powex lines the zxtsnimum clearance between the lines aild any part of t}�e eyuipsnent or load inust be; 200 KV or below - 15 feet; 200 to 3Sa KV - 20 feet; 350 to SDO KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1�00 KV - 45 feet. If capacEry af the 3ine is not I�nawn, a minimum cleasance of 45 feet must he maintained, A pexson must be desiguated to observe clearance of fhe equipment aad give a Eimely warning for alI operatians �vhere it is difficult for an operator to �aintain the desired clearance by visual means. 1.07 Excavation ]..07.�1 Be,fore excavaYing, the Cantractor must d�termine whether any undergrouttd pipe lines, electric wires, or cables, including fiber optzc cable systezns are present and located wittun the Project war�e area. Tbe Cant��actor must detei�iue whetlier exca�ation on Railway's Property could cause damage to buried eab3es resulting in delay to Railway 4raf�ic and disrup�ion of service to users. Delays and disrup�io�is to service may cause business intemiptions invo9�ing loss of revenue and profifs. Before commencing excavation, the Contractor nnusl cantact BNSF's Signal Supervisor and Roadmaster. AiI undexgrauud aud overhead wires will be considered HIGH VD�.TAG� and dangerous until verified t�th the compauy havizxg ow�ership of the 3ine. ft is #he Contractor's respon�ibilit,y tn nofify anp uther coixzpan�es f.hat have underground nfili�ies in tlie area and arrange for fhe locatinn of all undergraund �tilities before excavatiue. Exhibit C— Ma�nalia Road Overpass {1210b107) 5 Form 0102 Rev. aI/20/o5 • I.07.02 The Contractor must cease aIl work and noti�y the Railway immediateiy before continuing excavation �in the area zf obstructians are encountered which do not appear on c�rawings. If t��e obstruction is a utility and the owner of t�e utility can be identified, then the Contractar must also no�ify the owner immediateiy. If there is any doubt abaut the Iocation of underground cables or lines af any kind, no wark must be pe:rformed until the exact location has been determiz�ed. There will be no excepCions to these instrucfions. � 1.07.€�3 AIl excavations mus# be conducted in comp�iance with applicable OSHA regulatians and, regard�ess of depth, must ba shored whera there is any danger to tracks, structu�res ox personnel. 0 1.07.04 Any excavatians, holes or trenches on the Railway's Properry must be covered, guarded andlor protected when not being worked on. When leaving wazk site areas at night and aver weakends, the areas mnst be secured and Ieft in a condition that wil] ensure that Raiiwaq employees and other personnel who may be working or passing t}�ough tlie area are proteeted from all }�azards. A�l excavations must be back filled as soon as possible. 1.08 Hazardorts �Va��e, Substances and Material Reporfing 1.08.4J Tf Contxactor discovers any hazardous waste, hazardous substance, petroleum or other dele#erious material, including but noi Iimited to any non-confainerized comznodity or material, on or a.djacent to RaiJway's Property, iu or near any surface water, svvamp, �a+etlands or waterways, vvhile per�ornling any wark under this Agreement, �pni:racto:r must imtnediately: {a) notify the Railway's Resource Ogerations Cen#er at 1(800) �32-5452, of such discovery; (b) take safeguards necessary to pratect its employees, s�hcontractors,. agents arit3lor �liird parties: and {c� ex�rcise due care with respect to �ie releaise, incluiiii�g �lie takirig pf any appropriate measure to minimi�e the impact of such release. 1.09 P�rsonal I�ju�ty Reporting 1.09.01 The Railway is z•equzred to report certain injuries as a part af compIianca with Federal Railroad Adminisfxation (FAA) reparting requirements. Any personal izzjury sustained by av emplayee of the Contractor, subcontractor or Cantractor`s invifees while on the Railway's Property must be reported inin�ediately {by phone mail if unahle to contact in person) tn the Railway`s representative in charge of fhe proj eof. The Non-Employee Pexsoiaal Injury Data Co�lecfion Form contained herein is to be completed and sent by Fax ta the Razlway at 1{817) 352-7595 and to the Railway's Project Represen#ative no later Yhan t�e close of shi�t an t1�e date af the injury. E�ibit C— Magnolia Road Overpass (12/06107) 6 Farm 0102 Rev, 011201a5 NON-EMPLpY�E PERSpPiAL INJURI' DATA COLLECTION INFORMATTON REQUIREA TO BE COLLECTED PURSL3ANT TO FEDERAL REGULATION. IT S[-�0[]T,D BE USED FOR COMPLIANCE VsTITH FEDERAL REGULATIQI�S ONLY AND IS NOT FNT�NDED TO ARESUNiE ACCEPTANCE QF FiESPONSIBILi'�'I' OR LIABILI'T'Y. 1. .�CC1ClE11Y �1E��SE Cou�ty: (if non-Railway locatian) 5. Social Securiry # 6. Name (last, first, mi} 7. Address: 5treet: 8. Date of Birtl�: 2. Date: 3. Temperature: CELy: andlor Age Gender: (if availahle) 9. (a) Injury: {U) Body Part: (i.e. (a) Laceration (b) Hand) ] 1, Description of Accident (To inoiude lacation, accion, resu3t, etc.): 12. Treatment: ? First Aid Only ? Required MedicaI '�'reacment ? Other 3Vledica� TreaEmer�t 13. Dr. I�ama 74, Dr, Address: SYreet: ] S. �Iospital Naine: ] 6. Il.ospital Address: Street: 17. �la�ElO51S: Ciry: C3��; �'A7C '1'O ItA3i,WAY AT (817) 352-7595 AN� COPY TO: ItAIL,WAX 1tOA.AMA.STEit FAh No, 281-33I-2070 ItA�LWAY MANAGER PUSC,IC PFtC}dECTS FAX No. ��7-352-2912 'Fime: 4. Weather St. Zip: 30. DaYe: 5t: Zip: .�t: Z7}]: E�ibit C-- Ma�nolia Road Overpass {12/0b/07) 7 Forrn 0102 Rev. 0�120/05 LAW DEPARTMEI\TT APPROVED ��'�IT �f C„1 Agreement BetweeQ BNSR RAII.WAY C�M�'ANX and t�e CONTRACTQR BNSF RAII�WAY COMPANY Attenfion: Maaiager ]Public Projects Railway Feles: 02349� Agency Projecf: Construct MagnoIia Ro�d Ove�t•uass Gentlemen: The undersigned {hereinafter called, flie "Contractor"), lias entered into a contract {the "Contract") dated , 20D�, with #he �ity af �'ea�'land for the perfatmance of certaiu work in conneclion with the follo��+ing project: constntct nea� Ma�nolia Road Qvaipass. Performance of such wark will necessarily reguire contractar to ente:r BNSF RAILWAY COMPANY {"Railway"} right of way and property ("Railway Pz'operry"). The Confract provides that no work wil] be commenced within Railway Property uutil the Contraetor employed in connection with said work for tha City of Pearland (i) executes and delivers to Railway an �greement in the form hereof, and {u) provides insurance of the coverage and limits specifted in such Agreement and 5ection 3 herein. I£ fhis A�reenaex�t is executed by a party who is not the Owner, General ParWer, �resident or Vice President of Contractor, Contractor must fi�rnish e�idence to Railway certifying that the signatory is em�aw�red to execute fl�is Agreament on behalf of ContracLnr. Accorduigly, iu consideration of Railway granting pe�x}ission to Conttactor to enter upon Railway Property arid as ai� inducemeiit for such eniry, Contractar, e£fective ou t}ie date of the Contract, has agreed a�id does i�ereby agree with Railway as fol3ows: Section L Ii�L�A�� OF LIAIiILITY AND �ND�MNITY Contractor hereby waives, releases, inde�tsnifies, defends aitd holds harniless Railway for all judgnients, awai•ds, clai�ns, deznia�ids, and expenses (inclucIing attorneys` fees), for injury or death to all persons, i��clading Railway's and Contractor's officers and employees, and for lass and damage to property belonging to any person, arising in any manner from Contracfar's or any of Gontractor`s subcontractors' acts or omissions or any work perfon�ied on or ahou.t Railway's property or �ig��.t-of way. THE LIAI3ILITY A55ITMED BY CONTRACTOR WII.,L NOT B� Ai�I<�CTED BY THE FACT, IF IT IS A r'ACT, 'I'HAT �'HE DESTRUCTION, DAMACrE, DEATH, OR ]NJUI2Y WA� OCCASION�D BY OR COItTT`RIBUT�D TO BY THE NEGLIGENCE OT RAII.WAIT, ITS AGENTS, ��RVAN'I'S, �MPLOYEES OR OTH�RWIS�, EXC�PT TO THE E7�T�N'T THAT SUCH CLAIMS AIt� PROXIMATELY CAUS�D BY 'TtIE IN"1`L<',1�TIONAL MISGONDUCT OR GROSS N�GLIGENCE Ol+ RAII,WAY. TH� IND�MieTII<ICATION OBLI�ATION AS�iJMED BY C�P1T'R_ACTDR INCL.UDES ANY CL�MS, SUITS OR JUDGMEIVTS EROUGHT AGATNST RAII,WAY TJNDER TIlE FEDERAL EMPLOYE�'S LIAEILITY ACT, INCLUDrNG C�.AIl1�fS TOR STRiCT LIABILITY UNDER THE SATETY APPLIANCE ACT OR TFI� BOIL�R IN�P�CTION AC'F, WHENEVER SO CLAIMEll. Contractor furtlter agrees, at its expense, in #he name and on behalf of Railway, that it will adjust and settle all claims rnade against Railway, and will at Railway's discretion, appear and defend any suits ar actio�ls of 3aw or zu equtty broughf agaiust Raifway on any claim or cause of actiau arising or growizig out of or in aay manner Exhibrt Gl —Magnajia Road Overpass {�2/06107) 1 Fot�rn 0103 Rev. 04115Po5 connected witT� any liability assumed by Contractor under this Agreement for which Railway is liable ar is alleged to be liable. Railway will give notice to Contractor, in ��ritiug, of the xeceipt or dependency of such claims and therenpan Contractar musf pxoceed ta adjust and handie to a conclusion such claims, and in�the event of a suit being brought against Railway, Railway may forward summons and complaint or otl�er process in connection tE�erewi#h to Contr'actor, and Contractor, a# RaiSway's discretifln, rnust defend, adjust, or setEle such suits and protect, indemrzify, and save haimless Railway from and against a]_l damages, judgznents, decrees, attorney's fees, aosts, and expenses gxowing out af or resulting from or incident to any such claims or saits. It is mntually undersfood and agreed that the assuxnption of Iiabilities and indemnificafion provided fox un this Agreement survive any ternunation of this Agr�ement. Section 2. TERM This Agreement is effective from the data of the Contract until (i} the completion af the project set forth herein, and (ii} full and com�lete payment to Railway of any aud all sums or other amounts owing and due hereunder. Seetian 3. �N�CI�t.ANCE Contractar must, at its soSe cost and expense, procure and maintain during the lifa af this Agreement the following insurance coverage: A. Carnmerci�] General Li�biliLy insutance. This in,surance must contain broad form contractual lraliility with a combined single limit of a minimum of $5,000,000 eacb occurrence and an aggr�gate iimit of at least $10,000,000. Covarage must be purchased on a post i99$ ISO accurre�ce form or equtvaient and include coverage for, but not limit to the £allawing: ♦ Bodily Injury and Pxoperty Damage e Persanal Injury and Advertising Injury 4 Fire legal fiabiiity � Products and compJ.eted �perations Tlus poficy mnst also contain the following endorsements, which must be indicated on the certi�cate af insurance: �t is agread that any worlcers' compensation excluszon does not apply Eo �ai(t�or�r7 payments xelated tio the �'ederal Employers Liability Act or a Railraad Wage Continuat�on Pro� am or similar pro��ams and any payments made are deemed nat fo be either payments made or obligations assumed under any Workers Compe�sa�ian, d.isability benefits, or unenipIoyment compensation law or similar law. The de#inition of insured coniract ar►ust be amended to remove any exclusion or othar Iunitation for any work heing done within SQ feet of raiiroad property. Any excfusions related to the explosion, collapse and undarground hazards must be removed. No other endorse�nents limifing covez'age as respects obl.igations under this_Agreement may $e included on the policy. B. Business Automobile Insuraitce. Tl�is insurance must contain a combined single lvnit of at least $ I,000,000 per occurrence, and include coverage for, but not limited to the foIlowing: ♦ Bodily injury and property damage e Any and all vehicles owned, ased or hired C, Warl�exs Compe:nsation and Employers Liabiliiy insurance including coverage for, buf nol3imited to: A Contractor's sTatutory liability under tl►e worker's compensation laws of fhe state(s) in whic}� the work i� #o be performed. Lf aptional under State law, the insurauce must cover all amployees anyway. Exhibit C-1 —3vlagnolia Road Overpass (12/06/07) 2 Form Q103 Rev. 49/15/05 � Employers' Liability (�'a�t B} �vith 1'un'r#s of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Raikoad Protective Liability insurance naming onJy t�ie Railraad as the Tnsured witb coverage of at least $S,D00,000 per accuzrez�ce and $1Q,OQ0,000 in the aggregaEe. The policy Must be issued on a standard ISO form CG �0 35 10 93 and include ti�e followiug: 9 Endorsad ta incl�xde the Pollution Exclusion Amendment (ISO form CG 28 3 I 10 93) o Endorsed to inclnde the Limited Seepage and Pallution Endoxsetnent. s Endorsed to remove any exclusion for punitive damages. � No other endorsements restricting coverage may be added. s The original policy �ust be provided to the l2ailf•oad prior ta perforix�ing any work or services under #his Agreement Other Requirements: All policies (applying to coverage list�d above) must nat contain an exclusion for punitive damages and certif cates of insuranca must reflect tha# no exclusron exists. Conlx'actor agrees to waive its right of reco�ery against Itailr•oad for all clairns and suits against Railroad. In addition, its iusurers, through the ferms of the policy or poIicy endorsemenC, waive their right of subrogation against dtailroarl far a11 claims and suits. The cexti£'xcate af insurance must reflect the waieer of subrogation endarse�nent. Cankractor f��rt�er waives its right of recovery, and its insurers also waive f3ieir right of subrogation against Railt•oud for loss of its owned or leased property ar groperty under contractar's care, custoay oz' con#rol. Contractor's insurance po�icies through policy endorsement, must include wording which states that the policy is py�rnary and non-confributing with respect to any insurance carrietE by Railroad. The certificate of insurance must refleot thaf the above wording is included in evidenced po�icies. All policy(ies} required above {excluding Workers Compensation and if applicable, Railroad Protectave) ixzust inciude a severability.of interest endorsement and Railroad must be na�ned as an additional insured with respect to worlc performed under this agreament. SeveraUility of interest a�nd namt_ng Railroari as additional insured rnust be indicated on the certif"icate of insurance, Contractor is not allowed to self-insure without the prior writ#en cansent of Railroarl. If granted by RaiIroad, any deductible, self insured retention or other finaucial responsibi�ity fox claims must be covered. directIy hy contractor in �ieu of insurance. Any and all Raitroud Iiabi[ities that would othervt�ise, in accordance with the provisions of this Agr•eentent, be covered bq contractor's insurance will be co�ered as if contractor elected noE Cp incl�de a deductible, self-insured retention or otlier financial responsibility for claims. Prior fo commencing tiie Worl� confractor must £uz'nisl� to RailYOad an acceptable certifcate(s) of insurance includi�g an ori�;inal sig.nature of the authorized representative evidencing fhe required coverage, endorsernents, and amendme�ts and referencing the contract auditlfolder number if available. The palicy(zes) must can#ain a provision that obligafes the insurance company{ies} issuing suck policy(ies) to ��ot�f}+ Railt�oad in writing at Ieast 30 days prior to any caucellation, non-renevval, subsfstution ar material afteration. This ca.ncei{ation provision must be indicated on tl�.e certificate of insurance. Upon request from Railroarl, a certified duplicate original of any requirad poIic}l must ba furnished. Contractor slfould send the cer�i�cate(s} to Ehe following address: BNSF RiSK MANAGEIVIENT 2504 Lou Mex�k Drive AOB-I FarC Worth, TX 76131-2828 Fax: 8 I7-352-72Q7 Exhibit C-1— Magnolia Road Overpass {12/06/07} 3 Farm 01 Q3 Rev, D9l15IU5 Any insurance policq must be writ�en by a raputabFe insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business iz� tlie state(s) in v�hich the service is to 6e provide, Contractor represents that this Agreemetst has been thoroughly re�iawed by contractor's insnrance agent{s)/broker(s), who have Ueen instntcted by contractar to pracure the insurance coverage required hy this Agreement. Aliocated Loss Expense must be in addition to all palicy limits for coverages referenced above. Nof more frequently than once every �rve years, Raiiroad may reasonably modify fdle required insurance coverage to ref3ect then-current risk management practices in the railroad indusfry and undeE practices in the insurance �ndustty. If any portion of the opera#ion is to be suhcontracted by contractor, contractor must require that the subcontractor provide and maintain the insurance caverages set fartli herein, natnrng R�til�•aad as an additional insured, and requiring that ihe subcontractor release, d.efend and indernnify Railr�oad to the sama extent and under the same terms and canditions as cont�ractor is required t� release, defend and iFidemnify Ruiir•oad here�t. Fail�re to provIde evidence as required by this section wiil entitle, but not require, Itail��onrl to tez�inate this Agr�eemesrt i�nmediately. Acceptance of a ccrtificate that does not comply with this section w�ll not operate as a waiver of contractor`s abligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by cav.tractor u�ill not be deenzed to release or dinunish �a liabiIity of contractax including, witlxout limitatiot�, liability under the indemnity provisions of this Agresntent. .Damages xeco�erahle by Ruilr•oarl will nat Ue ]irnited �iy t�e amoui�t of tlie required insurance caverage. For purposes of tl�is sec#son, Railro�rl means `Burlingtan Northern Santa Fe Corporation", "BNSF ItAILWAY COMPANY" and the subsidiaries, successoxs, assigns azzd affiliates of each. Sect'ron A. �XFIJB�T "C" COl\TTRACTOR REQi3IREM�NTS 'I'he Cantractor must observe and c�mply wi#h ail provisions, obligations, requirements aud limitations contained in the Contract, and the Coniractor Requiremen#s set forth on Eachibil "C" atiached [o the Cantract and fihis Agreemenf, , including, but not be limited ta, payment nf all costs inctured £or �€ny darnages to �ailway roadbed, tracks, and/or appurtenances thereto, resulting from use, oocupancy, or presence of its employees, representatives, or agenls or subcontractors ou or about thc construction site. Sectian 5. TRAIiV DELAY Contractor is responsibl.e for and herehy indemnifies a�id holds harmless ilailway (including its af#'iliated railway companies, and its tenants} for, From and against a[I damages arising fiom any unscl�eduIed delay to a freight or passenger train w�ich affects Railway's ahility to fufly ulilize its ec�uipment and ta nneet austomer service and contract obligatious. Contractoz' will be bifled, as furt�er provided belaw, for the economic losses arising from loss af use of equi.p�xaent, contractual loss of iucentive pay and bonuses and co�itractual penatties resulting from train delays, whetber caused by Contractor, or subcoahaotors, or by tlie Railway perforniing work under fhis Agreemextt. ILailway agrees that if wiIl not perform any act to unnecessarily cause tra.in delay, For loss of use of equipm�nt, Contractor wili he billed tl�e current �'eigbt tt'ain hour rate per train as determined from Railway`s records. Any disruptson to �rain trafF'ic zx�ay cause delays to muitiple trains at the same ti�� far the same period, Additionally, t�e parties acknowledge t�at passenger, U.S. mail trains and certain other grain, intern�odal, coal and freight trains operate under incentive/penalty coniracts between Railway and its customer(s). Under these arrangements, if Railway do�s not meet its contract service comznitments, Railway may suffer loss of performance or incentive pay aud/or be subject to penalty payments. Contractor is responsible for any tc•ain performance and incentive penalties ar other contractuaf economic losses actually incurred by Rai�way which are attributable ta a tz'ain delay caused by Contractor or its subcontractor�. � Exhibit C-t —Magnolia Roacf Qverpass {12/06/07) 4 Fonn 0103 Rev. �9/151�5 The contractual relationship between Railway and its customers is proprietary and conf`idential. In the eveait of a train deiay covered by this Agreement, Railvray wi�t sl�are infortnation relevant to any fzain delay to �lxe extent consisten# with Railway confidentiality obligatians. Damages for train delay for certain trains may be as bigh as $50,000.00 per incident. Contractor and its snbco�tractors must give Railv��ay's representatzve 4 weeks ad��ance not�ce of the times and dates for propased work �vindows. Railway and Contractor �viIl establish mut�ia�iy agr�eable work windotivs far tlae projecti. Railway has the right at any time to revise or cha�ge t�e warli windar�vs due to train operatio�s or service obiigations. Railway �vilI not be responsible for any additional costs or egpenses result�ng from a change in wprk winduws. Addi�ional casts or expenses resulting fi•om a change in K�ork windaws shall be accounted far in Cont►•acfor's expenses for the praject. Contractar and subconiractors must plan, schedule, coordinate and conduct all Contractor's wnrk so as to nat cause any delays to any traius. Kindly acknowledge receipt of this letter Uy signi�ig and returning to the Rarlway two original copies of this letEer, which, upoa execution by Railway, �uil] constitute an Agreement between us. (Contractor} By: Printed Name: Ti�le: Contact Person: Address: BNSF RaiIway Campany By:_ Name: Manager Public Projects Accepted and effective tUis day of _ , 200 . City: State: .Zip: Fa�e: � Phone: E�ibit C-1 —Magnolia Road Oyerpass (12/06/07) 5 Fonn �103 Rev. 09/15/05 Law Department Approved EASEMENT AGREEMENT FOR TEMPORARY OVERPASS CONSTRUCTION AND AIR RIGHTS Attachment to C&M Agreement THIS EASEMENT AGREEMENT FOR TEMPORARY OVERPASS CONSTRUCTION AND AIR RIGHTS ("Easement Agreement") is made and entered into as of the 10th day of December 2007, ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and CITY OF PEARLAND, a political subdivision of the State of Texas ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of Pearland, County of Brazoria, State of TX, at Mile Post 8.65, [Project # 12196.003], as described or depicted on Exhibit "A" attached hereto and made a part hereof(the"Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of December 6, 2007 concerning improvements on or near the Premises (the "C&M Agreement"). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose(as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the.,Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits,leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"),. Grantee may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and Form 704;Rev.04/26/05 1 Law Department Approved (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. 1.4 Term of Easement. The term of this Easement, unless sooner terminated under provisions of this Easement Agreement, shall expire on the date that is 365 Days after the Effective Date. Section 2 Compensation. Grantee shall pay Grantor, prior to the Effective Date, the sum of Three Thousand Seven Hundred Ninety Two Dollars and No/100 Dollars ($3,792.00) as compensation for the grant of this Easement. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined)can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must Form 704;Rev.04/26/05 2 Law Department Approved mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire. Section 6 Taxes and Recording Fees. Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi- governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act(collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor's Resource Operations Center at(800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above- stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Form 704;Rev.04/26/05 3 Law Department Approved Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9. Section 8 Default and Termination. 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors,fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise', resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9. 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Form 704;Rev.04/26/05 4 Law Department Approved Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. Section 11 Tax Exchange. Grantor reserves the right to assign this Easement Agreement to Apex Property & Track Exchange, Inc. ("Apex"). Apex is a qualified intermediary within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended, and Treas. Reg. § 1.1031(k)-1(g), for the purpose of completing a tax-deferred exchange under said Section 1031. Grantor shall bear all expenses associated with the use of Apex, or necessary to qualify this transaction as a tax-deferred exchange, and, except as otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Grantee from and against any and all reasonable and necessary additional costs, expenses, including, attorneys fees, and liabilities which Grantee may incur as a result of Grantor's use of Apex or the qualification of this transaction as a tax-deferred transaction pursuant to Section 1031. Grantee shall cooperate with Grantor with respect to this tax-deferred exchange, and upon Grantor's request, shall execute such documents as may be required to effect this tax-deferred exchange. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement: Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of[Texas] without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. Form 704;Rev.04/26/05 5 Law Department Approved 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. 14.7 The terms of the C&M Agreement are incorporated herein as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C&M Agreement is, for whatever reason, no longer in effect. SECTION 15 ADMINISTRATIVE FEE Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $1,000.00 over and above the agreed upon Purchase Price. Said fee shall be made payable to BNSF Railway Company by a separate check. Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: GRANTEE: a By: Name: Title: Form 704;Rev.04/26/05 6 Law Department Approved EXHIBIT"A" Premises Exhibit"A" EXHIBIT "A" • �"� BNSF File;S-Colfins Scale: 1"= 100'+/- #� • B&W Proj.No.:12196.003 ilr MAP REFERENCE: - Sta. - N/A IR I lir ■ Load - N%A 603 TS Cl..) !pi 0 t SF • b Q4& Rk- 2i• 416 I 411 iii 1. F. a LiIC) !. 02 • Z b In 1 14) ati co 3 $ .- 0 v lb 1� Igho illyil In .,,g N'oe i .....1 cn E.g CO Cr/ .a. -- 1 i II)14-) il? ItIP lej) >,g Iti 1 . >,g 2-1-1115\ • N _ 1 Hla•2a'' 26• . . . y ,r ' rjrif..*•M'ei:*Ze,kin'.„ '""'''''' — •• „ '' . Vill1=0111111111.1MMININIMI - Ili.. =° ,,,, ,... _ , . , .. . r WEN Jav ilk RV 1 S28'J2'E 306.32' , z m^ , .. ..,7\tit . l n ....,... • .. • ^Tg + To: Houston ga€ � To: Alvin gi« 7501. Legend: • • Texas Division on L.S. . 750 To: City of Pearland awa Subdivision - L.S. 7501 1 Temporary Easeme 1- 2V � At Pearland :•:•:�.: Permanent Easeme AT&SF ap 02 Brazoria County, Sec., Twn., Rng., Me . Texas ,. September 17, 2007 11(111* am AM M.P. 8.65 J J T.IIII DRAWING NO. 3-42142 • EXHIBIT"A" PERMANENT AIR RIGHTS EASEMENT METES AND BOUNDS DESCRIPTION 496,419 CUBIC FEET OUT OF H.T. & B. R.R. COMPANY SURVEY ABSTRACT 239 PEARLAND, BRAZORIA COUNTY,TEXAS All that certain 496,419 cubic feet out of H.T. & B. R.R. Company Survey, Abstract 239, Pearland, Brazoria County, Texas, included in this description is the area 77' above the following described plane and being more particularly described by metes and bounds as follows (bearings based on Texas Coordinate System of 1983, South Central Zone); Commencing at NGS Monument HGCDS 76 (AW 5552) having published grid coordinates of X: 3,150,843.79; Y: 13,765,213.04; Thence S 75° 30' 12" W—461.60 to a found 5/8" iron rod marking the northwest corner of that certain tract described in a deed dated 02-04-2005 from Correia Holdings, Inc. to City of Pearland as filed in the Official Records of Real Property of. Brazoria County at Clerk's File Number 2005-007867; Thence S 16°28' 32"E—53.99' with the east right-of-way line of Burlington Northern & Santa Fe Railroad right-of-way (100' wide) ; Thence vertically to an approximate elevation of 45.00' based on the published elevation of said HGCSD 76 to be 46.01' (1987 Harris Galveston Coastal Subsidence District Adjustment) to the true POINT OF BEGINNING of herein described plane; 1. Thence S 16° 28' 32" E — 64.47' continuing with the east right-of-way line of said Burlington Northern& Santa Fe Railroad right-of-way to a point for corner; 2. Thence S 69° 09' 58"W— 100.29.' to a point for corner; 3. Thence N 16°28' 32" W — 64.47' with the west right-of-way line of said Burlington Northern& Santa Fe Railroad right-of-way to a point for corner; 4. Thence N 69° 09' 58" E — 100.29' to the POINT OF BEGINNING and containing 496,419 cubic feet of land more or less. This metes and bounds description is accompanied by a separate plat, drawing or exhibit per Texas Board of Professional Land Surveyor's "General Rules of Procedures and Practices" Section 663.19(9). _ Compiled by: r' ``; S F9 AC.L. Davis & Company RViS `'u��{ Job Number: 11-421-34 Mag-Bridge 496,419 cubic feet M&B.doc .•.�. ��.!-• � A 06/27/2007 \vim,po 4464'' � � S,1Q'yo 1 I-421-34 Mag-Bridge 496,419 cubic feet M&B.doc EXHIBIT`B" • PERMANENT EASEMENT METES AND BOUNDS DESCRIPTION 0.1480 ACRE OUT OF H.T. &B. R.R. COMPANY SURVEY ABSTRACT 239 PEARLAND, BRAZORIA COUNTY, TEXAS All that certain 0.1480 acre out of H.T. & B. R.R. Company Survey, Abstract 239, Pearland, Brazoria County, Texas and being more particularly described by metes and bounds as follows (bearings based on Texas Coordinate System of 1983, South Central Zone); Commencing at NGS Monument HGCDS 76 (AW 5552) having published grid coordinates of X: 3;150,843.79'; Y: 13,765,213.04'; Thence S 75° 30' 12" W —.461.60 to a found 5/8" iron rod marking the northwest corner of that certain tract described in a deed dated 02-04-2005 from Correia Holdings, Inc. to City of Pearland as filed in the Official Records of Real Property of Brazoria County at CIerk's File Number 2005-007867; Thence S 16° 28' 32"E—53.99' with the east right-of-way line of Burlington Northern.& Santa Fe Railroad right-of-way (100' wide) to the POINT OF BEGINNING of herein described tract; 1. Thence S 16° 28' 32" E — 64.47' continuing with the east right-of-way line of said Burlington Northern&Santa Fe Railroad right-of-way to a point for corner; 2. Thence S 69° 09' 58" W— 100.29' to a point for corner; 3. Thence N 16°28' 32" W — 64.47' with the west right-of-way line of said Burlington Northern&Santa Fe Railroad right-of-way to a point for corner; 4. Thence N 69° 09' 58" E — 100.29' to the POINT OF BEGINNING and containing 0.1480 acre(6,447 square feet) of land more or less. This metes and bounds description is accompanied by a separate plat, drawing or exhibit per Texas Board of Professional Land Surveyor's "General Rules of Procedures and Practices" Section 663.19(9). Compiled by: C.L. Davis & Company Job Number: 11-421-34 Mag-Bridge 0.148 Acre M&B.doc "L •. 06/27/2007 ?...,..".. DAVIS � ....4:Mi.....y.,..�/ 'PP:FssiQ� o7' 11-421-34 Mag-Bridge 0.148 Acre M&B.doc EXHIBIT "C" '� US.main:*LLn COMMENCING POINT • g L°PR 99,-0 r I) cnRReu"� INC. HGCSD MOH. 76 re OP-22-199car OF X=3,150,843.79 R.R. use uEt 1N° (40pg-D0786R•) �— — Y=13,765,213.04 • I TRACKS 1 fie AND-GL�IN oa a-aDaTr 1 y 1` ARG D7-01f011) '�"� .,, 0 m / 30r 120 ..1i . vY 50PENDS/8RR OR E0 51,498 SO. Na w CORREIA HOLDINGS INC. oL ND AR GNOLI4ERSFAIDITL �1 CITY OF PEARUWD TO 100 0 10.0 • P£N11.VA M4CNC11L LLC. \ \ 61-1=U= 1= 14 l: CRY D C2005-0078fi7 9.0-D.R,) \00 00 *, P.O.B. 01-04 2005 • (acne-es3eT5 6.co.R) /' �e zi zane \ / \ (cep 010 01271R+°r q . • • ,,, REAM py A PFNTER PERMANENT EASEMENT lo P ,,lro 38.50 ODOR LLG _ - TOE CITY ON P ^40 0.1480 ACRE 9e-O(D-1°CDR `R,R. IYo1•v.2•-11 a a1 OR-JD-lase — 0* 6,447 Sq. Ft. • Also SFe 1 RACKS / °£ WESTERN 1uOWVFAc �C / ��,c''' r - AIR RIGHTS EASEMENT „�; °RA / °��' �'' 496,419 Cubic Ft. °f "�° ` TOP AIR RIGHTS APRX. EL. 122.00 wA1ER/SL1u� ,,-- PEARLAND MAGONOLIA, LLC. R R)S` 04 CD BOTTOM AIR RIGHTS APRX. EL. 45.00 (zDes-ezza°e B.C.O.R)� CRY OF PEARLAND TRACKS ` / (200504 22 2005.O.R.) m, \� -P U: �, o Lit / BENCHMARK: „,- '.. NGS MONUMENT HGCSD 76 (AW 5552) BEING A STEEL ROb LINE DISTANCE BEARING up ,, ) . IN 5' PVC PIPE WITH CAP STAMPED HGC50 76 1966" / LOCATED ON THE NORTH SIDE OF MAGNOLIA ROAD ON THE L1 64.47' S 1 6'28'32" E o TTI WEST SIDE OF ENTRANCE DRIVE TO 38T0 MAGNOLIA. L2 100.29' S 69'09'56" W "`� ISPWJ ELEVATION 46.01 (1987 HGCSD ADJ.) A z si r �'" l Sj.,"MA L3 64.47' N 15'28'32" W G F L4 100.29' N 69'09'58" E ` _tc. _ F L5 53.99' S 16'28'32" E 11/"�`°`� I rp4cr ) 4 ,�fy; --1 ."`wan'` awo ` TO \ THE ant r RA)Or PEARLAAO ;C! C. L. DAVIS...'.. ; IBBB ROAD • I ((R/w UARIES) ,1�� $ 1\ ..,� ` .,,::I qq; 2 1 MAGNOLIA I , eisi " I I \ ..�,✓ o� ,40 o44.1,.... 11.. ___ --.---. -*--.--"---------'.----- V ir\ (esci '-'*.,:.,:,....,--.'''' . _ _ Cil 4464 . _—— ———— '-—— - "� R.R. DATE C. L. DAMS R.P.L .S No. „ R �',�y. ` TRACKS Fc6 C.L. DAVIS & CO. FR EENNDS1 DD�D,TEXAS n546 • DIVING SOUTH RAY LINE LAURIN 41 `1 LAND SURVEYING FA6i'L B-482�1294 .. •rani GPgN4 _ NOTES: 0 MILE MARKER PERMANENT EASEMENT 1.THE SURVEYOR HAS NOT ABSTRACTED THE SUBJECT No. 8 PROPERTY BUT HAS BETTED ON HENDERSON ABSTRACT & AIR RIGHTS EASEMENT COMPANY TO PROVIDE DEED COPES OF THE SUBJECTLEGEND . PROPERTY ANT)ADJOINERS. 5.TRACT SHOWN HEREON SUBJECT TO CRY OF PEARLAND (S) SET. 5/8`IRON ROD W/CAP 0.1480 ACRE 2.THE BASIS OF BEARINGS SHOWN IS REFERENCED TO THE BUILDING ORDINANCE. (pK) SET P-K NAIL IN ASPHALT • g 44'] $ (�{, TEXAS COORDINATE SYSTEM OF MO, SOUTH CENTRAL i q• ZONE. COORDINATES ARE SHOWN AS GRID. 6.UNDERGROUND UTILITIES NOT SHOWN. BCDR BRAZORIA COUNTY DEED RECORDS 496,419 CUBIC Ft. OUT OF THE BCOR BRAZORIA COUNTY OFFICIAL RECORDS • 3.THE BUILDINGS OR IMPROVEMENTS SHOWN HEREON 7.THIS SURVEY PLAT IS ACCOMPANIED BY A SEPARATE METES BCPR BRAZORIA COUNTY PLAT RECORDS H.T. & B.R.R. COMPANY SURVEY. REPRESENT THE OUTLINE AT GROUND SURFACE LEVEL. AND BOUNDS DESCRIPTION PER TFYAS BOARD OF POINT OF BEGINNING P.O.B.UNLESS OTHERWISE NOTED. PROFESSIONAL LAND SURVEYOR'S -GENERAL RULES OF ABSTRACT 239 PROCEDURES AND PRACTICES-SECTION 663.19(9). R/W RIGHT-OF-WAY 4,THE UTILITY APPURTENANCES ( I.e., utility polee, inlet_, etc.) W/CAP(CL) STAMPED C.L. DAVIS RPLS 4484 PEARLAND, BRAZORIA COUNTY, TEXAS SHOWN HEREON ARE THOSE VISIBLE AT THE TIME OF 8.CAPPED RODS STAMPED C.L DAVIS, R.P.LS. NO. 4464 SURVEY AND MAY NOT BE COMPLETE. w/CAP(W) STAMPED WILSON SURVEY GROUP DAIS OB-25-2007 SCALE;_ 1'�. 100'I JOB NO.: 11-421-34 .�.� �•-�� " FILE Ne. 0:\11-421 City of Peartond\II-421-34-2881035\MAGNOLIA BASE DWG\0-11-421-34-OVERPASS.DWG Law Department Approved EXHIBIT "B" Memorandum of Easement THIS MEMORANDUM OF EASEMENT is hereby executed this 10th day of December 2007, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and CITY OF PEARLAND, a political subdivision of the State of Texas ("Grantee"), whose address for purposes of this instrument is 3519 Liberty Drive, Pearland, Texas 77581, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in Brazoria County, TX as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated December 10, 2007 (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises(the"Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and Grantee agree to abide by the terms of the Easement Agreement. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. Exhibit"B" Page 1 of 3 Law Department Approved IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Title: STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of , 200 , by (name) as (title)of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: Page 2 of 3 Law Department Approved GRANTEE: By: Name: Title: STATE OF § COUNTY OF § This instrument was acknowledged before me on the_day of , 200_, by (name) as (title)of , a Notary Public (Seal) My appointment expires: Page 3 of 3 EXHIBIT"A" PERMANENT AIR RIGHTS EASEMENT METES AND BOUNDS DESCRIPTION 496,419 CUBIC FEET OUT OF H.T. &B. R.R. COMPANY SURVEY ABSTRACT 239 PEARLAND, BRAZORIA COUNTY, TEXAS All that certain 496,419 cubic feet out of H.T. & B. R.R. Company Survey, Abstract 239, Pearland, Brazoria County, Texas, included in this description is the area 77' above the following described plane and being more particularly described by metes and bounds as follows (bearings based on Texas Coordinate System of 1983, South Central Zone); Commencing at NGS Monument HGCDS 76 (AW 5552) having published grid coordinates of X: 3,150,843.79; Y: 13,765,213.04; Thence S 75° 30' 12" W—461.60 to a found 5/8" iron rod marking the northwest corner of that certain tract described in a deed dated 02-04-2005 from Correia Holdings, Inc. to'City of Pearland as filed in the Official Records of Real Property of Brazoria County at Clerk's File Number 2005-007867; Thence S 16° 28' 32"E—53.99' with the east right-of-way line of Burlington Northern & Santa Fe Railroad right-of-way (100' wide) ; Thence vertically to an approximate elevation of 45.00' based on the published elevation of said HGCSD 76 to be 46.01' (1987 Harris Galveston Coastal Subsidence District Adjustment) to the true POINT OF BEGINNING of herein described plane; 1. Thence . S 16° 28' 32" E — 64.47' continuing with the east right-of-way line of said Burlington Northern&Santa Fe Railroad right-of-way to a point for corner; 2. Thence S 69° 09' 58"W— 100.29' to a point for corner; 3. Thence N 16° 28' 32" W — 64.47' with the west right-of-way line of said Burlington Northern&Santa Fe Railroad right-of-way to a point for corner; 4. Thence N 69° 09' 58" E — 100.29' to the POINT OF BEGINNING and containing 496,419 cubic feet of land more or less. This metes and bounds description is accompanied by a separate plat, drawing or exhibit per Texas Board of Professional Land Surveyor's "General Rules of Procedures and Practices" Section 663.19(9). Compiled by: +to`5 9 a--7t CI_ Davis & Company ...........:.... Job Number: 11-421-34 Mag-Bridge 496,419 cubic feet M&B.doc t C. L. DAVIS 06/27/2007 l,� 9 4464 �'��•rrS S`��;�p • 5'U It 421-34 Mag-Bridge 496,419 cubic feet M&B.doc • EXHIBIT`B" • PERMANENT EASEMENT. METES AND BOUNDS DESCRIPTION. 0.1480 ACRE OUT OF H.T. &B. R.R. COMPANY SURVEY ABSTRACT 239 PEARLAND,BRAZORIA COUNTY, TEXAS All that certain 0.1480 acre out of H.T. & B. R.R. Company Survey, Abstract 239, Pearland, Brazoria County, Texas and being more particularly described by metes and bounds as follows (bearings based on Texas Coordinate System of 1983, South Central Zone); Commencing at NGS Monument HGCDS 76 (AW 5552) having published grid coordinates of X: 3,150,843.79'; Y: 13,765,213.04'; Thence S 75° 30' 12" W —461.60 to a found 5/8" iron rod marking the northwest corner of that certain tract described in a deed dated 02-04-2005 from Correia Holdings, Inc. to City of Pearland as filed in the Official Records of Real Property of Brazoria County at Clerk's File Number 2005-007867; Thence S 16° 28' 32"E—53.99' with the east right-of-way line of Burlington Northern & Santa Fe Railroad right-of-way (100' wide) to the POINT OF BEGINNING of herein described tract; 1. Thence S 16° 28' 32" E — 64.47' continuing with the east right-of-way line of said Burlington Northern& Santa Fe Railroad right-of-way to a point for corner; 2. Thence S 69° 09' 58" W— 100.29' to a point for corner; 3. Thence N 16° 28' 32" W — 64.47' with the west right-of-way line of said Burlington Northern& Santa Fe Railroad right-of-way to a point for corner; 4. Thence N 69° 09' 58" E — 100.29' to the POINT OF BEGINNING and containing 0.1480 acre(6,447 square feet) of land more or less. This metes and bounds description is accompanied by a separate plat, drawing or exhibit per Texas Board of Professional Land Surveyor's "General Rules of Procedures and Practices" Section 663.19(9). Compiled by: �s E. . fv� C.L. Davis &Company ) .n.G - <``=c„ v Job Number: 11-421-34 Mag-Bridge 0.148 Acre M&B.doc r •• ••".°... 06/27/2007 "C.L• DAVIS 11-421-34 Mag-Bridge 0.148 Acre M&B.doc • EXHIBIT "C" '\ M.G. lroT°M C.L.C. °1$ 9 COMMENCING POINT i . SI1 Fr. c 810 R'C ,�i°a HGCSD MON. 76 ° -00,851) ‘440e-�-lase �, Ta ,,,yp ,• X=3,150.843.79 R.R. O sEE rxG /sow-007e6?saoR•) Y=13,765,213.04 • TRACKS `/m Aeo-GaAs IR �02-e4_2 05 y MG�9r7x-A0s1�8raYIer6LLG • • ` 1� ns—oa—ree�i i 461.g0 �� " W . • 0m / 3012 ``\ S 75. 1 JCHlatr A • 'S0'00 ` FND.5/6!R C UE0 51,40 50. FT. CORREIA HOLDINGS, trIG TO 100 0 100 PDoor4or EASEMENT \ANGNO LLG� U1 CITY OF PF7 13.C.O & b H 1-1 N I�i I- 1' 70 (2005=007867 IA O.R.) q: GYIt'OF PEARLAND / N 00.0 r P.O.B. O2-04-2005' . (rood-o01BS7 RGo.R.) MIR71; '°-�-'°°° \ / \ ° °SANG'A ro �) PERMANENT EASEMENT P LLa s RfE cm'or PE' J° 0.1480 ACRE sa° 0- BcoR , R.R. tee Rca+J -043$50 0c @01• °Ji Jose / ''O SEEIoY TRACKS , 6,447 Sq. Ft. o,,,Fm„� A / \, ' AIR RIGHTS EASEMENT ro x / 4PIy' W 14 ,PG"' 496,419 Cubic Ft. 01-03-,990 V. TOP AIR RIGHTS APRX. EL. 122.00 wizrER/SERER/ vR� ,/ / " PEARLAND MAGNOLIA, LLC. R.R.R N �' BOTTOM AIR RIGHTS APRX. EL. 45.00 (2p05-az2B00 aao.R.)� / CITY OF PEARI.AND TRACKS 1 / / x (20050 2222 20os.0.R.) & '\ rP C,y� o rn BENCHMARK: / \ , LA tr mw NGS MONUMENT HGCSD 76 (AW 5552) BEING A STEEL ROb / LINE DISTANCE BEARING ` �. I / IN 5"PVC PIPE WITH CAP STAMPED " HGCSD 76 7956" / - 3 LOCATED ON THE NORTH SIDE OF MAGNOLIA ROAD ON THE L1 64.47' S 1 6'28'32" E oO \ \ T'' it WEST SIDE OF ENTRANCE DRIVE TO 3810 MAGNOLIA. o �+, 7 L2 100.29' S 69'09 58" W ELEVATION 46_,.r0�'t1(1987 HGCSD ADJ.) L3 64.47' N 16'28'32" W :� \ r. - c 0 F L4 100.29' N 69'09'58" E £,ck I •.14 1 •,,1 `:'.S T 6"" L5 53.99' S 16'28'32" E "t.""" ;:Ltlt I 1 , ` (OWED o aye AG—T1ucr ryry COc� �� '•• 1 'e EARL A TCpT99FFMER PEARIANO il.....3 S ,. --I Mi-win xi m c,W \, \ N(Vat.93J2,Po 1896 ) (I:1 -C, L. DAVIS _ a.noW 1a"0' ROAD (R „�� i \ f , . MAGNOLIA j I VARIES) molar `01\ / f ?' F G4 a? � —— • — 4464 _ —— --——` "tom R.R. DATE C. L. DAVi5 R.f'.L.t. No. , e_Q. TRACKS C.L. DAVIS & CO. FRIEt115Wmtv WTE(PS 77848 281-482-9490 ask LAND SURVEYING MAX 2BI-a ri294 msruo sours/RAY •e ApT.N0111 iP�;'�� NOTES: MILE MARKER PERMANENT EASEMENT- 1.THE SURVEYOR HAS NOT ABSTRACTED THE SUBJECT No. B & AIR RIGHTS EASEMENT PROPERTY BUT HAS RELIED ON HENDERSON ABSTRACT • COMPANY TO PROVIDE DEED COPIES OF THE SUBJECT LEGEND PROPERTY AND ADJOINERS. •5.TRACT SHOWN HEREON SUBJECT TO CITY OF PEARLAND (S) SET. 5/8`IRON ROD W/CAP 0.1480 ACRE 2.THE BASIS OF BEARINGS SHOWN IS REFERENCED TO THE BUILDING ORDINANCE. (PK) SET P-K NAIL IN ASPHALT . (6,447. Sq. Ft.) TEXAS COORDINATE SYSTEM OF 1983, SOUTH CENTRAL ZONE. COORDINATES ARE SHOWN AS GRID. 6.UNDERGROUND IfiLRIES NOT SHOWN. BCDR BRAZORIA COUNTY DEED RECORDS 496,419 CUBIC Ft. OUT OF THE BCOR BRAZORIA COUNTY OFFICIAL RECORDS 3.THE BUILDINGS'OR IMPROVEMENTS SHOWN HEREON 7.THIS SURVEY FIAT LS ACCOMPANIED BY A SEPARATE METES BCPR BRAZORIA COUNTY PLAT RECORDS W.T. & B.R.R. COMPANY SURVEY. REPRESENT THE OUTLINE AT GROUND SURFACE LEVEL, AND BOUNDS DESCRIPTION PER TEXAS BOARD OF POINT OF BEGINNING UNLESS OTHERWISE NOTED. PROFESSIONAL LAND SURVEYOR'S "GENERAL RULES OF P.O.B. ABSTRACT 239 PROCEDURES AND PRACTICES"SECTION 883.19(9). R/W RIGHT-OF-WAY 4,THE UTIUIY APPURTENANCES (Le., utility Po1oa, Inlets, etc.) w/CAP(CL) STAMPED C.L. DAVIS RPLS 4484 PEARLAND, BRAZORIA COUNTY, TEXAS SHOWN HEREON ERO M E AYARE NOT OS SE VISIBLE AT THE TIME OF 8.CAPPED RODS STAMPED CA.. DAVIS, R.P.LS. No. 4464 w/CAP(W) STAMPED WILSON SURVEY GROUP DATE 08-25-2007 AL• 1'p. L00.140 NO.: 11-421-34 FILE No. 0:\I1-421 City of Poorload\11-421-34-28Bto3S\MAGNOLIA BASE DWG\0-11-421-34-DVERPASS.DWG