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HomeMy WebLinkAboutRES 09-382 RESOLUTION NO. 09-382 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a Crossing Agreement, substantially in the form attached hereto as Exhibit"A," with Burlington Northern Santa Fe Railway to allow construction of the Calder Avenue Drainage Project(Phase 11)to proceed under the railroad tracks crossing Calder Avenue right-of-way east of First Street. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of December, 2009. V 11 f Mayor Becky Ames - AV ai act CROSSING AGREEMENT FOR INSTALLATION OF DRAINAGE IMPROVEMENTS UNDER RAILROAD RIGHT OF WAY THIS CROSSING AGREEMENT FOR INSTALLATION OF DRAINAGE IMPROVEMENTS UNDER RAILROAD RIGHT OF WAY ( "Agreement"), made as of the day of , 2009 ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor" "BNSF" or "Railroad") and the CITY OF BEAUMONT,TEXAS("Licensee" "City"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL I. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third- parties, including, without limitation, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), certain drainage improvements ("Drainage Improvements"), with such Drainage Improvements to be constructed underneath and/or beside the rail corridor of Licensor at the following locations: and The above-listed locations and dimensions of the tracts of real property upon which the Drainage Improvements will be constructed (collectively, the "Premises") are more specifically described and depicted on Exhibit "A" attached hereto and incorporated herein by reference. The parties hereto further agree that the Drainage Improvements shall be constructed on the Premises in strict accordance with the Drawings and Specification and additional descriptions, written authorizations, and plans (collectively, the "Plans") attached hereto as Exhibit "B" and incorporated herein by reference. 2. Except as specifically set forth in the Plans, Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. (a) Licensee shall use the Premises solely for construction and maintenance of the Drainage Improvements, except to the extent portions of the Premises are already used by the City for a public road or public right-of-way, in strict accordance with the Plans. Licensee shall not use the Drainage Improvements, or any of them, for any purpose besides the collection of storm water. (b) Licensee covenants that it shall not dispose of, deposit, store, or otherwise use "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body within the Drainage Improvements, on the Premises, or on any portion of Licensor's property. Licensee shall periodically test and monitor the Drainage Improvements to confirm that they do not contain any hazardous substance(s) and/or hazardous waste. Should the Drainage Improvements at any time contain any hazardous substance(s) and/or hazardous waste, then Licensee shall immediately (within twenty-four (24) hours) take all steps necessary to complete the removal and remediation of any such hazardous substance(s) and/or hazardous waste. Licensee also hereby agrees and covenants that it shall test and monitor the Drainage Improvements for hazardous substance(s) and/or hazardous waste as soon as reasonably practical after major weather events(including but not limited to hurricanes and tropical storms) causing flooding within the general vicinity of the Drainage Improvements. Licensee agrees to furnish Licensor periodically with proof, satisfactory to Licensor that Licensee is in such compliance. Licensee's failure to comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, shall be deemed an event of default under this Agreement. - 1 - EXHIBIT "A" 4. Any contractors or subcontractors performing work on the Drainage Improvements or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this Agreement. TERM 5. This Agreement shall commence on the Effective Date and shall continue in perpetuity, subject to prior termination as hereinafter described. COMPENSATION 6. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Ten and No/]00 Dollars (510.00) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the Drainage Improvements, including but not limited to the furnishing of Licensor's flaggers and any vehicle rental costs incurred. The cost of flagger services provided by Licensor, when deemed necessary by Licensor's representative, will be borne by Licensee. Flagging costs shall include, but not be limited to, the following: pay for at least an eight(8)hour basic day with time and one-half or double time for overtime,rest days and holidays(as applicable); vacation allowance; paid holidays (as applicable); Licensor and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for Licensor labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates. The flagging rates in effect at the time of performance by the flaggers will be used to calculate the costs of flagging pursuant to this paragraph. (c) The City agrees to reimburse BNSF, to the extent payments are called for from the City to BNSF, pursuant to Chapter 2251 of the Texas Government Code. COMPLIANCE WITH LAWS 7. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the construction, maintenance, and use of the Drainage Improvements and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the Website "http://contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. RIGHT OF LICENSOR TO USE 8. Licensor excepts and reserves the right, to the extent such right already exists at the time of executing this Agreement, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or - 2 - (c) to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 9. (a) Licensee shall notify Licensor's Roadmaster, Aaron Whitney at 110 Sunbeam Lane, Lafayette, LA 70501, office (337) 572-2502, cell (337) 303-4589, at least ten (10) business days prior to installation of any of the Drainage Improvements and prior to entering any location within the Premises for any maintenance on the Drainage Improvements. In case of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises at the telephone number above as soon as practicable and shall promptly thereafter follow up with written notice of such entry. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensee's tracks to the other. (c) Prior to performing the work described in Section 3, Licensee shall require the Contractor (defined below) to conduct a construction feasibility review ("Feasibility Review") by a qualified, experienced jack and bore contractor for such work, and to promptly provide a copy of the Feasibility Review report to BNSF. Contractor's failure to perform such Feasibility Review and/or promptly provide a copy of the Feasibility Review report to BNSF shall be deemed a breach of this Agreement entitling, but not requiring, BNSF to immediately terminate this Agreement upon notice to Licensee. (d) Prior to performing the work described in Section 3, Licensee shall provide Licensor with a letter from the Contractor stating that (i) the Contractor is qualified and experienced in conducting jack and bore placements, including placement of drainage equipment such as the Drainage Improvements, underneath active railroad tracks, and (ii) Contractor shall successfully complete the work described in Section 3 while maintaining and protecting Licensor's tracks. 10. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on or adjacent to the Premises unless Licensee has obtained prior written approval from Licensor(all such written approvals should be requested by Licensee as a part of the Plans). Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If during any construction or maintenance of the Premises by Licensee's contractors, such contractors are ordered to cease using the Premises by Licensor's personnel due to any hazardous condition, Licensee's contractors shall immediately do so and shall immediately correct such hazardous condition before continuing with such construction or maintenance activities. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this Agreement. (b) Licensee shall, at its sole cost and expense, construct and maintain the Drainage Improvements in such a manner and of such material that it will not at any time be a source of danger to or interference with the existence or use of present or future tracks,roadbed or property of Licensor,or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the maintenance of the Drainage Improvements at any time for compliance with the Drawings and Specifications. If ordered at any time to halt maintenance of the Drainage Improvements by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee's contractors shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the Drainage Improvements, it being solely Licensee's responsibility to ensure that each of the Drainage Improvements is maintained in strict accordance with the Plans and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this Agreement. If at any time Licensee and its contractors shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, after due notice and consultation with Licensee and its contractors, Licensor may,at its - 3 - option and at Licensee's sole expense, after written notice to Licensee and its contractors, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. IL During the construction and any subsequent maintenance performed on the Drainage Improvements, or any of them, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of all of the Drainage Improvements shall be completed within one(1)year of the Effective Date. Upon completion of the construction of all of the Drainage Improvements and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to substantially their former state as of the Effective Date above. 12. In no event will the operation of the Drainage Improvements interfere with Licensor's current or future use of the rails and rail corridor located on the Premises. If at any time during the term of this License interference from the Drainage Improvements occurs, Licensor agrees to give written notice of such interference to Licensee and demand that Licensee cure such interference. Further, if at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Drainage Improvements, or any of them, Licensee shall notify Licensee of the need to modify, alter, or relocate the Drainage Improvements. Thereafter, Licensee and Licensor shall meet and confer in good faith regarding the need, cost and payment for such modification or relocation. In the event that they cannot agree on the modifications or relocation and the costs thereof and whether such costs should be borne by Licensee or the BNSF, and a default is declared hereunder, the parties shall be entitled, without limitation, to any and all remedies allowed by law with regard to the uncured default. 13. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three(3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association)to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the Drainage Improvements, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed Drainage Improvements. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 14. Any open hole, boring or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. - 4 - 15. It is agreed that should the property or any portion thereof for which permission is given hereunder cease to be used for public road or drainage purposes, this permission, as to the portion so abandoned, shall immediately cease and terminate. In such event Licensee shall, at its sole cost and expense: (a) fill in the Drainage Improvements with gravel, cement, or other material as approved by Licensor in writing in advance; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in substantially the condition as of the Effective Date above. 16. Licensee's on-site supervisor shall retain/maintain a fully executed copy of this Agreement at all times while on the Premises. LIABILITY 17. (a) TO THE FULLEST EXTENT PERMITTED BY LAW LICENSEE SHALL CAUSE ITS CONTRACTOR,, TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT LICENSOR IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS AGREEMENT SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES CAUSED BY OR ARISING OUT OF LICENSEE'S USE OF THE PREMISES. (b) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL CAUSE ITS CONTRACTORS TO AGREE REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT,AND ANY SIMILAR STATE OR FEDERAL STATUTE. (c) To the fullest extent permitted by law, upon written notice from Licensor, Licensee agrees to require its contractors to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Agreement for which Licensee has responsibility. Licensee shall require its contractors to pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 18. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. - 5 - INSURANCE 19. (a) The City will not self-perform any work on the premises, including but not limited to modification, construction and maintenance of the Drainage Improvements, but, relative to the property in question, will have such work performed by a contractor. The City agrees that if it fails to cease all such self-performed work if demanded by Licensor, either orally or in writing, Licensor may seek injunctive relief to enforce this provision. The failure of Licensor to demand the stoppage of work shall not constitute a waiver of this provision. Notwithstanding the foregoing, and in addition to same, the parties shall be entitled, without limitation, to any and all remedies allowed by law with regard to the uncured default. (b) The City agrees that no contractor of the City may perform any work on the Premises without first executing, without limitation, the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement, attached hereto and indentified as Exhibit C, as amended from time to time; the failure to do so being a material default hereunder . Licensee's contractors will not be allowed on the Premises by the Railroad without first receiving an executed and binding original of the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement, attached hereto and indentified as Exhibit C. CITY AGREES THAT LICENSOR SHALL NOT BE LIABLE TO THE CITY OR THE CITY'S CONTRACTOR FOR ANY DAMAGES, DELAY, PENALTIES, FORFEITURES OR OTHER EXPENSES OR CLAIMS INCURRED BY CITY OR CONTRACTOR AS A RESULT OF THE FAILURE OF THE CITY TO REQUIRE AND OBTAIN COMPLIANCE FROM AND THE FAILURE OF CITY'S CONTRACTOR TO EXECUTE AND COMPLY WITH THE RAILROAD'S THEN-CURRENT TEXAS-STANDARD CONTRACTOR'S RIGHT OF ENTRY AGREEMENT ATTACHED HERETO AND IDENTIFIED AS EXHIBIT C, AS AMENDED FROM TIME TO TIME. The City's Contractor shall provide the insurance coverages as contained in the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement, attached hereto and indentified as Exhibit C, as amended from time to time.. The City's Contractor shall execute the Contractor's Right-of-Entry before commencing any work on the Railroad's property. (c) For future maintenance work, the City's Contractor shall provide the then-current Texas insurance coverages and be required to execute, without limitation, the Railroad's then-current Texas-standard Contractor's Right of Entry Agreement before commencing any work on the Railroad's property. Absent execution of said Right of Entry Agreement attached as Exhibit C, the City's Contractor may not enter the Premises or perform any such work. Breach of this provision shall be deemed to be material. (d) In addition to and not in limitation of any other remedies available to Railroad at law or in equity or in this Agreement, all of which are cumulative and not mutually exclusive, City agrees to require its' contractor to pay Railroad an amount of $1,000.00 per calendar day for each calendar day or portion of a calendar day that City's Contractor enters upon the Premises without having executed Railroad's then-current Texas-standard Contractor's Right of Entry Agreement and fully complied with the provisions thereof. The City shall include a provision requiring such obligation and payment in any agreement or contract with its Contractors hired or engaged to perform such work on, at, over or under the Premises. The failure to include this requirement in any such contract shall be a material default of this Agreement. ENVIRONMENTAL 20. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations 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, CERCLA(collectively referred to as the "Environmental Laws"). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor'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 Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. - 6 - (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the Drainage Improvements which occurred or may occur during the term of this License, resulting from Licensee's use and operation of the Premises, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee 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 Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request for information regarding said conditions or activities. NO WARRANTIES 21, LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS AGREEMENT AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS AGREEMENT. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 22. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 23. If default shall be made in any of the covenants or agreements of Licensee contained in this Agreement and Licensee shall fail to cure said default within 30 days after written notice is provided to Licensee by Licensor, or in case of any assignment or transfer of this Agreement by operation of law then Licensor may, at its option, take the following actions: a) Either party may bring suit, in a court of competent jurisdiction, against the other party for injunctive relief to enforce the provisions of this Agreement. b) Licensor may give Licensee notice of intent to terminate this Agreement due to any uncured default by serving five (5) days' notice in writing upon Licensee. Upon the expiration of said five (5) day period, if Licensee shall not have cured said default, then until resolved by a court of competent jurisdiction, Licensee shall not be allowed access to the Premises for any purposes permitted under this Agreement without the express written permission of Licensor. Notwithstanding the foregoing, however, and in addition to same, the parties shall be entitled, without limitation, to any and all remedies allowed by law with regard to the uncured default. Any waiver by Licensor or Licensee of any default or defaults shall not constitute a waiver of the right to terminate this Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this Agreement. The remedy set forth in this Section 23 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. - 7 - TERMINATION 24. This Agreement may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice,this Agreement and all rights of Licensee shall absolutely cease. 25. If Licensee fails to surrender to Licensor the Premises, upon any termination of this Agreement, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation resulting from any events happening prior to the date of termination. Nothing herein, however, shall require the termination or abandonment of any public roadway currently in use by Licensee on, over or under the Premises. ASSIGNMENT 26. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee, nor any subsequent assignee, shall assign, transfer, sell, or hypothecate this Agreement or any interest herein (either voluntarily or by operation of law)without the prior written consent and approval of Licensor,which shall not be unreasonably withheld. EXISTING AGREEMENTS 27. It is agreed that all existing agreements between the Railroad and the City concerning licenses, permits, leases or easements at this location shall remain in full force and effect. To the extent that property is referred to as being the "Railroad property," "Railroad right of way," or other such notation, such reference does not change the legal status of such property as it exists on the date of executing this agreement and such terms are simply used to reference the property where the Railroad tracks are located on Calder Avenue as of the Effective Date. RESPONSIBLE FOR ITS OWN ACTIONS 28. The parties hereto acknowledge that no party is an agent, servant, or employee of any of the other parties, and each party agrees it is responsible for its own individual acts and deeds as well as the acts and deeds of its contractors, agents, representatives, and employees during performance of contract work. TITLE TO PROPERTY 29. Nothing in this agreement alters the respective parties ownership interests, if any, in the Premises. NOTICES 30. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if(i)placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: Jones Lang LaSalle 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr.—A0133 Fort Worth, TX 76131 Attn: Senior Manager Real Estate - 8 - If to Licensee: City of Beaumont, Texas 801 Main Street, Suite 210 Beaumont, TX 77701 Attn: Craig Koch, Engineering Supervisor Tel: 409-880-3725 with a copy to: City of Beaumont, Texas 801 Main Street, Suite 210 Beaumont, TX 77701 Attn: Joseph Sanders, First Assistant City Attorney Tel: 409-880-3715 SURVIVAL 31. Neither termination nor expiration will release either party from any liability or obligation under this Agreement, 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 when the Drainage Improvements and improvements are removed and the Premises are restored to its condition as of the Effective Date. RECORDATION 32. It is understood and agreed that this Agreement shall not be recorded in the Deed Records of Jefferson County, Texas or otherwise recorded in the chain of title of the property. APPLICABLE LAW 33. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions. VENUE AND JURISDICTION 34. Venue and Jurisdictions for all disputes between the parties relative to this Agreement shall be in a court of competent jurisdiction, whether state or federal, in Jefferson County, Texas. SEVERABILITY 35. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this Agreement. [The balance of this page has been intentionally left blank] - 9 - IN WITNESS WHEREOF, this Agreement has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY By: Jones Lang LaSalle 3017 Lou Menk Drive,Suite 100 Fort Worth,TX 76131-2800 By: CITY OF BEAUMONT,TEXAS By: Title: - 10 - EXHIBIT "A" Description/Depiction of Premises [see attached) Exhibit"A" EXHIBIT "B" Plans [see attached] Exhibit"B" EXHIBIT "C" Form of Contractor's Right of Entry Agreement [see attached] Exhibit"C" CONTRACTOR'S RIGHT OF ENTRY AGREEMENT FOR CONSTRUCTION PROJECTS ON OR ADJACENT TO PROPERTY OF BNSF RAILWAY COMPANY This Right of Entry Agreement ("Agreement") is entered into effective as of 200_, by and between ("Contractor"), corporation, and BNSF RAILWAY COMPANY ("Railway"),a Delaware corporation. WHEREAS, Railway operates a freight transportation system by rail with operations throughout the United States and Canada; and WHEREAS, linsert Industry's name here] desires Contractor to perform certain construction services adjacent to and upon Railway's right of way and/or property, and Contractor is willing to perform such services. NOW, THEREFORE, in consideration of Railway entering this Agreement with Contractor and granting Contractor permission to enter upon the Premises (defined herein), Contractor agrees with Railway as follows: SECTION 1. SCOPE OF SERVICES Contractor (and/or Industry) will perform the following services, hereinafter described as "Work": Performance of the Work will necessarily require Contractor to enter Railway's right of way and property ("Premises"). Contractor agrees that no work will be commenced on the Premises until (i) this Agreement is executed by both Contractor and Railway; and (ii) Contractor provides the Railway with the insurance contemplated herein. Contractor further agrees that if this Agreement is not executed by the owner, general partner, president or vice-president of Contractor, Contractor will furnish Railway with evidence certifying that the signatory is empowered to execute this Agreement. SECTION 2. PAYMENT OF FEES Industry will be responsible for paying Contractor for the Work performed under this Agreement. SECTION 3. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnities, defends and holds harmless Railway for, from and against all judgments, awards, claims, demands, and expenses (including attorney's fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right of way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing,of the receipt or pendency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a brought against Railway, Railway, may forward summons and complaint or other process in connection Exhibit"C" therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify,and save harmless Railway from and against all damages,judgments,decrees,attorney's fees, costs,and expenses growing out of or resulting from or incident to any such claims or suits. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement will survive any termination of this Agreement. SECTION 4. INSURANCE Prior to any access to the Premises, Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement, and provide written proof therof in advance of any Work on or access to the Premises„ the following insurance coverages: (a) Commercial General Liability Insurance. This insurance must contain broad form contractual liability with a combined single limit of a minimum of$5,000,000 each occurrence and an aggregate limit of at least $10,000,000 but in no event less than the amount otherwise carried by the Contractor. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited to, the following: Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦. Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: ♦ The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. Waiver of subrogation in favor of and acceptable to Railroad. ♦_ Additional insured endorsement in favor of and acceptable to Railroad and Jones, Lang, LaSalle Global Services RR,Inc. ♦ Separation of insureds. _* The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railroad employees. No other endorsements limiting coverage may be included on the policy with regard to the work being performed under this Agreement or otherwise with respect to any obligations under this Agreement. (b) Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence,and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired This policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: Waiver of subrogation in favor of and acceptable to Railroad. Additional insured endorsement in favor or and acceptable to Railroad. ♦ Separation of insureds. ♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railroad. (c) Workers Compensation and Employers Liability insurance including coverage for, but not limited to: _♦_ Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. Exhibit"C" _f Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit,$500,000 by disease each employee. This policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: ♦ Waiver of subrogation in favor of and acceptable to Railroad. (d) Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy must be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 10 93) Endorsed to include the Limited Seepage and Pollution Endorsement Endorsed to include Evacuation Expense Coverage Endorsement ♦ No other endorsements restricting coverage may be added The original policy must be provided to the Railroad prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Policy, Contractor may participate in Railroad's Blanket Railroad Protective Liability Insurance Policy available to Contractor. The limits of coverage are the same as above. The cost is$ U 1 elect to participate in Railroad's Blanket Policy for activities commencing as of the Effective Date(if any); U I elect not to participate in Railroad's Blanket Policy for activities commencing as of the Effective Date(if any). Other Requirements: Where allowable by law, all policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad, for loss of its owned or leased property or property under its care, custody or control. Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly by Contractor in lieu of insurance. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor's insurance will be covered as if Contractor elected not to include a deductible,self-insured retention or other financial responsibility for claims. Prior to commencing the Work, Contractor must furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) must contain a provision that obligates the insurance company(ics) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this Lease, Industry will make available any required policy covering such claim or lawsuit. Any insurance policy must be written by a reputable 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 in the state(s) in which the service is to be provided. Contractor represents that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Exhibit"C" Not more frequently than once every five years,Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Contractor, Contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railroad as an additional insured, and requiring that the subcontractor release, defend and indemnify Railroad to the same extent and under the same terms and conditions as Contractor is required to release,defend and indemnify Railroad herein. Failure to provide evidence as required by this section will entitle, but not require,Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor will not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad will not be limited by the amount of the required insurance coverage. For purposes of this section, "Railroad" means "Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMPANY" and the subsidiaries,successors,assigns and affiliates of each. SECTION 5. CONTRACTOR REQUIREMENTS (a) While on or about the Premises, Contractor must fully comply with Railway's "Contractor Requirements", including (but not limited to) clearance requirements and personal protective equipment requirements. Contractor will be responsible for fully informing itself as to Railway "Contractor Requirements". (b) Prior to entering the Premises, each person providing labor, material, supervision, or services connected with the Work to be performed on or about the Premises must complete the safety training program (hereinafter called, "Railway Contractor Safety Orientation") at the following internet website: "contractororientation.com". Contractor must ensure that each of its employees, subcontractors, agents or invitees completes the Railway Contractor Safety Orientation before any Work is performed under this Agreement. Additionally, Contractor must ensure that each and every employee of Contractor, its subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation prior to entering the Premises. Contractor must renew the Railway Contractor Safety Orientation annually. (c) Prior to entering the Premises, the Contractor must prepare and implement a safety action plan acceptable to Railway. Contractor must audit compliance with that plan during the course of Contractor's work. A copy of the plan and audit results must be kept at the work site and will be available for inspection by Railway at all reasonable times. (d) When not in use, Contractor's machinery and materials must be kept at least 50 feet from the centerline of Railway's nearest track. Contractor must not cross Railway's tracks except at existing open public crossings. SECTION 6. PROTECTION OF RAILWAY FACILITIES AND RAILWAY FLAGGER SERVICES (a) The Contractor must give Railway's Roadmaster (telephone ) a minimum of thirty (30) working days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. (b) Railway flagger and protective services and devices will be required and furnished when Contractor's work activities are located over or under of and within twenty-five(25) feet measured horizontally from center line of the nearest track and when cranes or similar equipment positioned outside of 25-foot horizontally from track center line that could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: (1)When in the opinion of the Railway's representative,it is necessary to safeguard the Premises, employees,trains,engines and facilities. Exhibit"C" (2) When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative,track or other Railway facilities may be subject to movement or settlement. (3)When work in any way interferes with the safe operation of trains at timetable speeds. (4) When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons,material,equipment or blasting in the vicinity. (5) Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. (c) Flagging services will be performed by qualified Railway flaggers. The estimated cost for one (1) nagger is $600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each nagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (1) A flagging crew generally consists of one employee. However, additional personnel may be required to protect the Premises and operations, if deemed necessary by the Railway's representative. (2) Each time a nagger is called, the minimum period for billing will be the eight (8) hour basic day. (3) The cost of nagger services provided by the Railway, when deemed necessary by the Railway's representative,will be borne by the /Contractor. SECTION 7. INDEPENDENT CONTRACTOR Contractor is considered an independent contractor under this Agreement and neither Contractor nor any of its employees, subcontractors, agents or servants are considered employees of Railway in any respect. Contractor has the exclusive right and duty to control the work of its employees. All persons employed by Contractor or any of its subcontractors under this Agreement are the sole employees of Contractor or its subcontractors. Contractor will be given general directions and instructions regarding the Work to be performed under this Agreement; however, direct supervision of Contractor's employees will be Contractor's responsibility and obligation. SECTION 8. TRAIN DELAYS Work performed by Contractor must not cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Railway, its lessees, licensees or others, unless specifically permitted under this Agreement, or specifically authorized in advance by the Railway Representative. Additionally, Contractor must not, at any time, impair the safety of Railway operations or the operations of Railway's lessees, licensees or other Railway invitees. Delays to freight or passenger trains affect BNSF's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be responsible to Railway, including its subsidiaries, affiliated companies, partners, successors and assigns, for economic losses resulting from unscheduled delays to freight or passenger trains in accordance with the following: (a)Train Delay Damages (l) Contractor will be billed for the economic losses arising from loss of use of equipment and train service employees, contractual incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, its subcontractors or by Railway performing Work associated with this project. (2) The parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts with the Railway. Under such arrangements, if Railway does not meet its contract service commitments, Railway may (i) suffer loss of performance or incentive pay, or (ii) be subject to a penalty payment. Contractor is responsible Exhibit"C" for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor,or its subcontractors. (3) The contractual relationship between Railway and its passenger customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the maximum extent consistent with Railway confidentiality obligations. SECTION 9. ALL TERMS MATERIAL Contractor agrees and acknowledges that each and every term hereof is deemed to be material. Contractor acknowledges that Contractor shall not be allowed nor will attempt access to the Premises and shall not perform any of the Work if not in strict compliance hereunder. /The balance of this page has been intentionally left blank/ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above. (Contractor) BNSF Railway Company, a Delaware corporation By By Vice President and Chief Engineer (Title) Address Exhibit"C"