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HomeMy WebLinkAboutRES 23-131RESOLUTION NO. 23-131 BE IT RESOLVED BY THE CITY COUNCIL_ OF THE CITY OF BEAUMONT: THAT the City Manager be, and he is hereby authorized to execute an agreement with BNSF Railway Company, of Fort Worth, Texas in the amount of $79,203.00 for the application fee and the cost of construction of a private crossing for access to the City's water tower located behind 3705 East Lucas Drive. The agreement is substantially in the form attached hereto as Exhibit "A," and made a part hereof for all purposes. The meeting at which this resolution was approved was in all things conducted in strict compliance with the Texas Open Meetings Act, Texas Government Code, Chapter 551. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 9th day of May, 2023. % �✓ 6 '�1 Mayor Robin"Mouton - t t Law Depailment Approved AGREEMENT FOR PRIVATE CROSSING Tracking No. 21 W-11808 THIS AGREEMENT ("Agreement"), made this — day of. , 2022, ("Effective bate") by and between t3NSF RAILWAY COMPANY, a Delaware corporation (hereinafter called "Llcensor-") and CITY OF BEAUMONT (hereinafter whether one or more persons or corporations called the "Licensee"). NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL~ 1, Licensor hereby grants Licensee a non-oxcluslve license, subject to all rights, interests, estates of third parties, Including, without limitation, any leases, licenses, easements, !lens, or other encumbrances, and upon the terms and conditions set forth below, to construct, maintain, and use in strict accordance with the drawings and spooifications approved by Licensor as part of Licensee's application process ("the Drawings and Specifications") a now at -grade crossing, thirty-two (32') feet wide ("Crossing"). across the rail corridor of Licensor at or near Licensor's station of Beaumont, County of Jefferson, State of Texas, Line Segment 7503, Mile Post 4.07, DOT No. 023193R at the location and in the manner shown upon the print No. 82706 dated September 17, 2021, marked "Exhibit A," attached hereto made a part hereof ("Premises") for the purposes specified In Section 3. For convenience, said Crossing, including crossing surface and all appurtenances thereto between the ends of railroad ties, cattle guards, farm gates or barriers, drainage facilities, traffic signs or devices, identification signs approved by Licensor, whistling posts, or other appurtenances, if any, are hereinafter collectively referred to as the "Crossing" Licensee must also adhere to the stipulations as set forth on the attached Exhibit "C". 2. Licensee shall not disturb any improvements of Licensor or Llcensor's existing lessees, licensees, easement beneficiaries or lion holders, if any, or interfere with the use of such Improvements. 3. It is expressly stipulated that the Crossing is to be a strictly private one, to be solely used for the purpose set forth in Licensee's Application for Crossing attached hereto as Exhibit 13 and is not intended for and shall not be for public use. The Licensee, without expense to Licensor, will lake any and all necessary action to preserve the private character of the Crossing and prevent its use as a public road. in the event Licensor determines that: (a) the Crossing is being used for a purpose or in a manner not set forth In Exhibit 13; (b) there is a significant change in the volume or nature of traffic, at the Crossing; or (c) the Licensee has in any way breached the tends or conditions of this Agreement, Licensor shall have the right to terminate this Agreement In accordance with Section 26, 4. In case of the eviction of Licensee by anyone owning or clalming title to or any interest in the Proillises or the Crossing, Licensor shall not be liable to refund Licensee any compensation paid herounder or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the Promises or the Crossing, or entering the Premises on behalf of Licensee, shall be deemed agents of Licensee for purposes of this Agreement. TERM 6, This Agreement shall commence oil the Effective Date and shall continue for a period of Twenty five (25) years, sub]ect to prior termination as hereinafter described. COMPENSATION 7. Licensee agrees to pay to Licensor In advance: (a) Consideration payment in the amount of Seven Thousand and No1100 Dollars ($7,000). (b) Estimated cost of construction of (lie Crossing In the amount of Seventy -One Thousand Four Hundred Three ($71,403). If actual construction costs exceed this estimate by more than one hundred dollars ($100,00), the excess costs (ovor $100) shall be paid by Licensee within thirty (30) days of the date billed, Form 432; Rev. 0i3103I09 "Exhibit A" I_aw Depart€nent Approved Tracking No. 21W-11808 Licensee agrees to pay to Licensor from time to time within thirty (30) days after, bills are rendered therefor the ontire cost of maintaining the Crossing, Including, but not limited to the expense Incurred by Licensor resulting from the necessity to remove and replace the crossing in connection with resurfacing or maintaining Licensor'.-, right of way and tracks including but not limited to the fu3-nlshing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the 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); 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 affect at the time of performance by the Contractor hereunder will be used to caiculate the actual costs of flagging pursuant to this paragraph, 9. Licensee agrees to pay to Licensor the entire cost of constructing, installing, performing, maintaining, repairing, renewing, and replacing any cattle guards, farm gates or barriers, track drainage facilities, traffic signs or devices, whistle posts, stop signs or other appurtenances shown on Exhibit "A", or any such appurtenances orwarning signs and devices that may subsequently be required to be upgraded by Licensor, by law, by change of volume and nature of vehicular traffic, or by any public authority having Jurisdiction. The Licensee is also responsible for- notifying Licensor in writing of any need for upgrading the vehicular traffo control devices or signs at or near the Crossing, since the Licensee is most knowledgeable concerning the volume and nature of the vehicular traffic. In addition, Licensee shall notify Licensor if any significant change in volume or nature of traffic at the crossing. COMPLIANCE WITH LAWS 10, (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 Crossing and the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensors 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 Liconsor's Internet Website "www.13NSFcontractor.com", This training must be completed no more than one year In advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 11, (a) For the purpose of this Agreement, "cost' or "costs" "expense or expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. (b) All invoices are due thirty (30) days after the date of invoice. in the event that Liconsoe shall fall to pay any €cronies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its Invoice date to the date of payment by Licensee at an annual rate equal to (1) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 112%), and for the period July 1 through December 31, the prime rate last published in The Wall StreetJournalI n the preceding June plus two and one-half percent (2112%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever Is less. RIGHT Or LICENSOR TO USE 12. Licensor excepts and reserves the right, 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 Form 432; Rev. 08/03/09 -2- Law Dopailment Approves} Tracking No, 21W-11808 (0) to use the Premises In any manner as the Licensor In its sole discretion deems appropriate, provided Licensor uses all commercially roasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 13, Licensee, at its own expense, shall keep the rail flange ways of said Crossing clear of all snow, dirt, or any other obstructions whatsoever, which may accumulate by virtue of vehicles, equipment, or from machinery crossing thereover or otherwise, and shall remove and keep removed any vegetation along the rail corridor on each side of the crossing so that the motorists' line of sight to approaching trains Is not impaired or obstructed by vegetation, 14. it is specifically understood that cables, pipelines, and other electric andlor fiber optic, transmission lines may be on, about, along, or under the Promises and Licensee agrees that under no circumstances will Licensee dig In or disturb the surface of the Premises wllhout the express written consent of Licensor. 15, Licensee shall construct and maintain, at its own expense, a roadway (to end of railroad ties) and related roadway drainage in a manner acceptable to Licensor, and safe for use by any vehicles or equipmont. Prior to such construction or maintenance, tan (10) days advance notice must be given to Licensor's Roadmastor, Phillip Houslor, at 24125 Aldine Westfield Road, Spring, Texas 77373, telephone (713) 847-3390 (office) or Phill€p,Heusler@I3NSF,co111. 16. Licensee agrees to keep any Crossing gates, farm gates or barriers (consisting of a bar, cable gate or chain between posts on both sides of the Railroad rail corridor and straddling the roadway), closed and securely fastened, except when being opened to allow access upon said rail corridor, 17, While this Agreement is personal to Licensee, it is recognized that there is a possibility of the Crossing being used by unauthorized persons, and said Licensee agrees that for the purposes of this agreement all persons using the Crossing shall be deemed the agents or Invitees of the Licensee. 18, Licensee shall, at its sole cost and expense, perform all activities on and about the Crossing 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 ordered to cease using the Crossing at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor,, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Crossing to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Crossing. 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, 19, If at any time during the term of this Agreement, Licensor shall desire the use of Its rail corridor in such a manner as would, In Licenser's reasonable opinion, be interfered with by the Crossing, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensorto such effect, make such changes in the Crossing as In the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of new a Crossing. 20, Upon termination of this Agreement, Licensor may remove the Crossing and restore the rail corridor to the condition as of the Effective Date of this Agreement at Licensee's sole cost and expense and without Incurring any liability to the Licensee, Licensee shall within twenty (20) days after bill is rendered therefor, reimburse Licensor for all costs and expenses, which Licensor may incur in connection therewith, LIABILITY 21, (a) TO THE FULLEST EXTENT PERMITTED 13Y LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOWS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL. CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL. OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART); Form 432; Rev. 08/03/09 ••3- Law Depadmant Approved Tracking No. 21W-11808 (1) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (11) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT, (111) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, iNVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE; FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 21(a), LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES, 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 AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS, IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE: ENVIRONMENTAL CONDITION OF THE PREMISES. (c} TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR 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 OR OTHERWISE, 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, (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, rotating to any matter covered by this Agreement for which Licensee has an abilgation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not Ilmited to, attorneys' fees, Investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in salisfactlon of judgments, PERSONAL PROPERTY WAIVER 22. 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 INDEMNITEES WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUI; IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. Farm 432; Rev. 08/03/09 -4 Law Department Approved INSURANCE Tracking No. 21 W-1180B 23, Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the following insurance coverage: 23.1 Commercial General Liablitty_insurance, This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by Licensee. Coverage must be purchased on a post 2004.ISO occurrence or equivalent and include coverage for, but not limited to, the following: K Bodily Injury and Property Damage ■ Personal Injury and Advertising Injury Eire legal liability K Products and completed operations This policy shall also contain the following endorsements or language, which shalt be indicated on the certificate of insurance: The definition of insured contract shall be amended to remove any excluslon or other limitation for any work being done within 50 feet of railroad property. • Waiver of subrogation in favor of and acceptable to Licensor. K Additional insured endorsement, in favor of and acceptable to Licensor and Jones Lang Lasalle Brokerage, Inc. Separation of insureds. The policy shall be primary and non-contributing with respect to any insurance carried by Licensor. 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 Ltcensoes employees, No other endorsements limiting coverage may be included on the policy. 212 Business Automobile Insurance, This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and Include coverage for, but not limited to the following: K Bodily injury and property damage, K Any and all vehicles owned, used or hired. This policy shall also contain the following endorsements, which - shall be indicated on the certificate of insurance: b Waiver of subrogation in favor of and acceptable to Licensor, u Additional insured endorsement in favor of and acceptable to Licensor. Separation of insureds. The policy shall be primary and non-contributing with respect to any insurance carried by Licensor, 23.3 Workers' Compensation and E Iq ers' L€abiilt insurance. This insurance shall include coverage for, but not limited to: • Licensee's statutory l€ability under the workers' compensation laws of the state(s) in which the services are to be performed. if optional under state laws, the insurance must cover ail employees anyway. n Employers' Liability (Pall €3) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $600,000 by d€seaso 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 Licensor. 23.4 Railroad Protective Liabllity Insurance. This insurance shall name only Licensor as tho Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation andlor construction. If further maintenance is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required, The policy shall be issued on a standard ISO form CG 00 35 12 03 and include the following: ■ Endorsed to Include the Pollution Exclusion Amendment. horny 432; Rev, 08/03/09 -6- Law Department Approved 'tracking No, 24Vcr••11808 Endorsed to include the Limited Seepage and Pollution Endorsement. Endorsed to include Evacuation Expense Coverage Endorsement, a No other endorsements restricting coverage may be added. The original policy must be provided to Licensor prior' to performing any work or services under this License, Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named Insured and all property in any named insured's care, custody and control arising out of the acts or omissions of the contractor naned on the Declarations," Other Re_cquirelrrents', 23,4.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages. 23.4.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, Licensee's Insurers, through the terms of the policy or a policy endorsement, must waive their right of subrogation against Licensor for all claims and suits, and the certificate of Insurance must reflect the waiver of subrogation endorsement, License() further waives its right of recovery, and its insurers must also waive their right of subrogation against Licensor for loss of Licensee's owned or leased property, or property under Licensee's care, custody, or control. 23.4.3 Licensee is allowed to self -insure with prior written consent of Llcensor with exception of Railroad Protective Liability coverage. If granted by Licensor, any self-insurod retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Ally and all Licensor liabilities that would otherwise, In accordance with the provisions of this License, be covered by Licensee's Insurance will be covered as if Licensee elected not to include a self - insured retention or other financial responsibility for claims. 23.4.4 Prior to entering the Premises, Licensee shall furnlsh.to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. Licensee shall notify Licensor in writing at least 30 days prior to any cancellation, non -renewal, substitution, or material alteration. In the event of a claim or lawsuit involving Licensor arising out of this License, Licensee will make available any required policy covering such claitll or lawsuit. 23*6 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Bost's Guide Rating of A- and Glass VII or better, and authorized to do business In the state(s) In which the service is to be provided. 23.4.6 if coverage Is purchased on a "claims made" basis, Licensee hereby agrees to maintain coverage In force for a minimum of three years after expiration or termination of this License. Annually, Licensee agrees to provide evidence of such coverage as required hereunder. 23,4,7 Licensee represents that this License has been thoroughly roviewed by Licensee's insurance agent(s)lbroker(s), who have been Instructed by Licensee to procure the insurance coverage required by this License. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. 23.4.8 Not more frequently than once every five year's. Licensor 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. 23.4.9 If any portion of the operation Is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional Insured, and shall require that the subcontractor shall release, defend and Indamnlfy Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and €ndemnify Licensor herein. Form 432; Rev, O8/03/09 Law department Approved Tracking No. 21VV-11808 23.4.10 Failure to provide evidence as required by this Section 23 shall entitle, but not require, Licensor to terminate this License Immediately. Acceptance of a certificate that does not comply with this Section shall not operate as a waiver of Licensee's obligations hereunder. 23.4.11 The fact that insurance (including, without Itmitetion, self-insurance) Is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee, Including, without limitation, liability under the indemnity provisions of this License, Damages recoverable by Licensor shall not be limited by the amount of the required Insurance coverage. 23.4.12 Those insurance provisions are Intended to be a separate and distinct obligation on the part of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby regardless of whether or not Indemnity provisions are determined to be enforceable. 23.4.13 For purposes of this Section 23, Licensor shall mean "Burlington Northern Santa Fc, LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and afflllates of each. ENVIRONMENTAL. 24. (a) Licensee shall strictly comply with ail 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 dofined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licenser's Resource Operations Center at (800) B32-5452 of any release of hazardous substances on or from the Promises, 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. (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 Premises which occurred or may occur during the term of this Agreement, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remedlate, 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 activilies upon the Promises known to Licensee which create a risk of harm to persons, property or the onvironmarit 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 Agreement. Licensee shall promptly respond to Licensor's request for information regarding said conditions or activities. IDEI=AULT 25. if default shall be made In any of tine covenants or agreements of Licensee contained in this document, or ill case of any assignment or transfer of this Agreement by operation of law, Licensor may, at its option, terminate this Agreement by serving five (5) days' notice In writing upon Licensee. Any waiver by Licensor of ally 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 25 shall be in addition to, and not in limitation of, any other romedles that Licensor may have at law or in equity. TERMINATION 20, This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be tern"Inated by Licensee upon execution of Licensor's Mutual 'Termination Letter Agreoment then in effect, Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. Form 432; Rev. 08103109 -7- Law Drapadmant Approvod Tracking No, 21 W-t 180b 27. if Licenseo falls 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, whether of indemnity or otherwise, resulting fr0111 any events happening prior to the date of termination. ASSIGNIVI i T 28, Neither Licensee, nor the heirs, legal representatives, successors or assigns of Hcenseo, nor any subsequent assignee, shall assign or transfer this Agreement or any interest herein, without the prior written consent and approval of Licensor, wh4ch may be withheld in Licensor's sole discretion. NOTICES 29. 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 (11) 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 Brokerage, Inc., 4200 Buckingham Road, Sulte 110 Fort Worth, TX 76155 Attn: LicenseslParrnits with a copy to: BNSF Railway Company 2650 Lou Menk fir. Fort Worth, TX 76131 If to Licensee: City of Beaumont 801' Main Street Beaumont, TX 77701 SURVIVAL 30. Neither termination nor expiration will release elther 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 Premises are restored to its condition as of the Effective Date, RECORDATION 31. It Is understood and agreed that this Agreement shall not be placed on public record. APPLICADLI I..AW 32. All questions concerning the interpretatlan 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. SFVERAI31LITY 33. 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. Form 432; Rev. 08103/09 Law Department Approved Tracking No. 21 W-11800 INTEGRATION 34. This Agreement is the fall and complete agreement between Licensee and Liconsor with respect to all matters relating to Licensee's use of the Crossing, and supersedes any and all other agreements betwoert the parties hereto relating to Licensee's use of the Crossing as described herein. However, nothing hereln Is intended to terminate any surviving obligation of Licensee or Licensee's obligation to dofend and hold Licensor harmless In any prior, written agreement between the parties. MISCELLANEOUS. 35. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the Joint and several covenants and agreements of such parties. 36. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. 37. In the event Licensee conveys, transfers, leases or otherwise grants a right of access and/or use of any Interest In all or a portion of Licensee's property which is accessed by the Crossing, Licensee shall notify Licensor in writing of the same within thirty (30) days prior to the date of such conveyance, transfer, lease or, grant of access andlor use, and Licensee shall cause any recelver or subsequent holder(s) of such an interest or right C'Holder") to: (1) file an application with Liicensor's outside contractor, Jones Lang LaSalle Brokerage, Inc., for use of the Crossing, which application may be granted or denied in Licenser's sole discretlan, and (2) upon Licenser's approval of Holder's application, Licensee shall cause Holder- to execute Licenser's standard License Agreement then in effect for the use of the Crossing. Licensee may not assign or otherwise transfer, or permit the use of this Agreement or the Crossing by Holder without Licensor's prior written approval for the same and any attempt to do so is a material breach of this Agreement and shall render it null and void. 38. Licensors Representative, Jones Lang LaSalle Brokerage, Inc. Is acting as representative for BNSF Railway Company. Jones Lang LaSalle Global Services — RR, Inc. Is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY Jones Lang LaSalle Brokerage, Inc., its Attorney in fact 4200 Buckingham Load, Suite 110 Fort Worth, TX 76155 By: Title: Shane Krueger Vice President — Permits & Special Pro ects CITY OF BEAUMONT 801 Main Street Beaumont, TX 77701 By: Title: Form 432; Rev. O8103109 COORDINATE SYSTEM: TX SC LEGEND: 1Z PREMISES M RIGHT OF WAY LINE -- TRACK BEAUMONT COUNTY OF JEFFERSON REVISION 1 a DESCRIPTION: A NEW 32' WIDE PRIVATE CROSSING SHOWN MATCHED, DOT t!- STATE OF TX JNC mmmmommmmmm ❑RAWING NO, 82706 EXHIBIT "B" Id:21W-11808 Application for Private Crossing Most recent submittal date. 08/23/202116:40 UTC Rail Perm itting.com Applicant Name: Antoinette Hardy Title; heal Property Coordinator Company: City of Beaumont Phone: 409-880-3725 Email: Antolnette.Hard Beaurnonttexas. ov Applicant Details Legal name of company / municipality who will occupy the property: CITY OF BEAUMONT State In which Incorporated: Texas Name of owners or partners if not Incorporated: Name of contact for ownership entity: ANTOINETTE HARDY Phone Number: 4098803725 Ext: Email: antoinette.liardv@beaumonttexas.gov Mailing address: 801 MAIN STREET BEAUMONT Texas 77701 Application Details Construction Start Date; 08 23 2021 Construction End Date: 02 23 2022 is this applicant a condemning authority? Yes Is this project within public right of way? No Is this applicant a railroad shipper? No Is this project requested by railroad? No Is this project In conjunction with a track or track expansion Project? No Is this project associated with a public road crossing/widening or a grade separation project? No Location Details Name of nearest town on RR: Beaumont County: Jefferson State: Texas Name of nearest roadway crossing RR: is LUCAS ST DOT Number; 023668F Id,. 21W-11808 Application for Private Crossing PLSS: RR milepost: latitude: 30.12237 Longitude:-94,13663 Private Crossing Does crossing already exist? No Width of crossing: 3(Y Time period crossing will be required: 25 ears The crossing is being used for: Commercial Number of vehicle crossing a day; 1-5 Type of user vehicle: Auto, Pickup Are there other private crossing in the vicinity? No Distance to nearest public crossing: 800-830 feet Do you own or lease the land on either side of the track? Own F � 1k• � 11 ,Y E ,�.y. y3 l' RAIL WAY EXHIBIT "C" )BNS)+ Rallway Company 2600 Lou Menk drive PottlVorth,7'exas 76131 Re, Request submitted to be permitted for a now at -grade crossing, thirty-two (32') feet wide ("Crossing"), across the rail corridor of Licensor at or near Licensor's station of Beaumont, County of Jefferson, Stale of Texas, Line Segment 7603, Milo Post 4,07, DOT No. 023193R. The above referenced request is hereby approved under the following conditions: 1) LICENSEE agrees to install, construct, and maintain appropriate safety measures on their roadway approaches to this conunercial crossing to warn roadway users of approaching trains. a. Since the LICBNSEB has not requested the installation of active wanting devices such as flasher lights and gates, BNSF will continue to use the existing PRIVATE CROSSING sign and STOP sign attaelied to the same support post on each side of the crossing, b. Since the LICENSEE has not requested the installation of "whistle signs and posts" along the track, trains will have no instructions to routinely sound the trails horns when approaching this commercial crossing, 2) The LICENSEE may contact and request BNSF to install flasher lights and gates as a safety measure to warn roadway users of approaching trains, a. The total amount of the crossing signal cost estimate would be paid in advance by tiie LICENSEE. b. Aninial crossing signal maintenance costs and any necessary signal equipment replacement costs would be paid by the LICENSEE. 3) The LICENSEE ntay contact and request BNSF to install "whistle signs and posts" along the track to instruct trains to routinely sowed. the train horns when approaching this coniniercial crossing. a. The total amount of the whistle signs and posts cost estimate would be paid in advance by the LICENSEE. 4) LICENSEE agrees to construct and maintain their roadway approaches across the full width of BNSF right of way up to file edge of the crossing panels on the track, including the area between any future additional track(s). a. LICENSEE agrees to construct and maintain the profile of both their roadway approaches to be level (0.0% grade) with the top -of -rail (or top -of -timber crossing planks off (lie track) elevation at the crossing for ininitnum distance of it feet front tite outside edge of the crossing planks, and then a -1.0% maximum (or -- 3 inches maximum) grade for a mininturn distance of 30 feet prior to changing in elevation, The LICENSEE agrees to maintain (lie profile of their roadway approaches to allow the roadway users to traverse the crossing without contacting or damaging the track or the timber crossing panels on the track(s). DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 JONEs LANG LASALLE:. October 6, 2023 Mrs. Antoinette Hardy City of Beaumont 801 Main Street Beaumont, TX 77701 Re: Beaumont, Texas; Tracking #21 W-11808 Dear Mr. Hardy: Jones Lang LaSalle Brokerage, Inc 4200 Buckingham Road, Suite 110 Fort Worth, Texas 76155-2685 Telephone 817-230-2600 Fax 817 306-8265 Enclosed please find one (1) fully executed Agreement for your file. A copy of the executed Agreement must be available upon request. If you need additional information please contact me at (817) 230-2651. Sincerely, Blake Jung Manager - Permits Enclosure cc: Phillip Heusler - BNSF Roadmaster — Phillip. Heusler(a�bnsf.com Tim Huya — BNSF Public Projects — Tim.HuyaCcDbnsf.com DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 AGREEMENT FOR PRIVATE CROSSING THIS AGREEMENT ("Agreement"), made this 3rd day of October, 2023, ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation (hereinafter called "Licensor") and CITY OF BEAUMONT (hereinafter whether one or more persons or corporations called the "Licensee"). NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, estates of third parties, including, without limitation, any leases, licenses, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct, maintain, and use in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process ("the Drawings and Specifications") a new at -grade crossing, thirty-two (32') feet wide ("Crossing"), across the rail corridor of Licensor at or near Licensor's station of Beaumont, County of Jefferson, State of Texas, Line Segment 7503, Mile Post 4.07, DOT No. 023193R at the location and in the manner shown upon the print No. 82706 dated September 17, 2021, marked "Exhibit A," attached hereto made a part hereof ("Premises") for the purposes specified in Section 3. For convenience, said Crossing, including crossing surface and all appurtenances thereto between the ends of railroad ties, cattle guards, farm gates or barriers, drainage facilities, traffic signs or devices, identification signs approved by Licensor, whistling posts, or other appurtenances, if any, are hereinafter collectively referred to as the "Crossing". Licensee must also adhere to the stipulations as set forth on the attached Exhibit "C". 2. 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. It is expressly stipulated that the Crossing is to be a strictly private one, to be solely used for the purpose set forth in Licensee's Application for Crossing attached hereto as Exhibit B and is not intended for and shall not be for public use. The Licensee, without expense to Licensor, will take any and all necessary action to preserve the private character of the Crossing and prevent its use as a public road. In the event Licensor determines that: (a) the Crossing is being used for a purpose or in a manner not set forth in Exhibit B, (b) there is a significant change in the volume or nature of traffic at the Crossing; or (c) the Licensee has in any way breached the terms or conditions of this Agreement, Licensor shall have the right to terminate this Agreement in accordance with Section 26. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises or the Crossing, Licensor shall not be liable to refund Licensee any compensation paid hereunder or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the Premises or the Crossing, or entering the Premises on behalf of Licensee, shall be deemed agents of Licensee for purposes of this Agreement. TERM 6. This Agreement shall commence on the Effective Date and shall continue for a period of Twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. Licensee agrees to pay to Licensor in advance: (a) Consideration payment in the amount of Seven Thousand and No/100 Dollars ($7,000). (b) Estimated cost of construction of the Crossing in the amount of Seventy -One Thousand Four Hundred Three ($717403). If actual construction costs exceed this estimate by more than one hundred dollars ($100.00), the excess costs (over $100) shall be paid by Licensee within thirty (30) days of the date billed. Form 432; Rev. 08/03/09 -1- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 8. Licensee agrees to pay to Licensor from time to time within thirty (30) days after bills are rendered therefor the entire cost of maintaining the Crossing, including, but not limited to the expense incurred by Licensor resulting from the necessity to remove and replace the Crossing in connection with resurfacing or maintaining Licensor's right of way and tracks including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the 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); 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 the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. 9. Licensee agrees to pay to Licensor the entire cost of constructing, installing, performing, maintaining, repairing, renewing, and replacing any cattle guards, farm gates or barriers, track drainage facilities, traffic signs or devices, whistle posts, stop signs or other appurtenances shown on Exhibit "A", or any such appurtenances or warning signs and devices that may subsequently be required to be upgraded by Licensor, by law, by change of volume and nature of vehicular traffic, or by any public authority having jurisdiction. The Licensee is also responsible for notifying Licensor in writing of any need for upgrading the vehicular traffic control devices or signs at or near the Crossing, since the Licensee is most knowledgeable concerning the volume and nature of the vehicular traffic. In addition, Licensee shall notify Licensor if any significant change in volume or nature of traffic at the crossing. COMPLIANCE WITH LAWS 10. (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 Crossing 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 Licensor's Internet Website "www.BNSFcontractor.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 11. (a) For the purpose of this Agreement, "cost' or "costs" "expense or expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. (b) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1 /2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less. RIGHT OF LICENSOR TO USE 12. Licensor excepts and reserves the right, 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 Form 432; Rev. 08/03/09 -2- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 (c) to use the Premises in any manner as the 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 13. Licensee, at its own expense, shall keep the rail flange ways of said Crossing clear of all snow, dirt, or any other obstructions whatsoever, which may accumulate by virtue of vehicles, equipment, or from machinery crossing thereover or otherwise, and shall remove and keep removed any vegetation along the rail corridor on each side of the crossing so that the motorists' line of sight to approaching trains is not impaired or obstructed by vegetation. 14. It is specifically understood that cables, pipelines, and other electric and/or fiber optic transmission lines may be on, about, along, or under the Premises and Licensee agrees that under no circumstances will Licensee dig in or disturb the surface of the Premises without the express written consent of Licensor. 15. Licensee shall construct and maintain, at its own expense, a roadway (to end of railroad ties) and related roadway drainage in a manner acceptable to Licensor, and safe for use by any vehicles or equipment. Prior to such construction or maintenance, ten (10) days advance notice must be given to Licensor's Roadmaster, Phillip Heusler, at 24125 Aldine Westfield Road, Spring, Texas 77373, telephone (713) 847-3390 (office) or Phillip. Heusler@BNSF.com. 16. Licensee agrees to keep any Crossing gates, farm gates or barriers (consisting of a bar, cable gate or chain between posts on both sides of the Railroad rail corridor and straddling the roadway), closed and securely fastened, except when being opened to allow access upon said rail corridor. 17. While this Agreement is personal to Licensee, it is recognized that there is a possibility of the Crossing being used by unauthorized persons, and said Licensee agrees that for the purposes of this agreement all persons using the Crossing shall be deemed the agents or invitees of the Licensee. 18. Licensee shall, at its sole cost and expense, perform all activities on and about the Crossing 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 ordered to cease using the Crossing at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Crossing to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Crossing. 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. 19. If at any time during the term of this Agreement, 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 Crossing, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the Crossing as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of new a Crossing. 20. Upon termination of this Agreement, Licensor may remove the Crossing and restore the rail corridor to the condition as of the Effective Date of this Agreement at Licensee's sole cost and expense and without incurring any liability to the Licensee. Licensee shall within twenty (20) days after bill is rendered therefor, reimburse Licensor for all costs and expenses, which Licensor may incur in connection therewith. LIABILITY 21. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): Form 432; Rev. 08/03/09 -3- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 (i) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 21(a), LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. 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 AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (C) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR 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 OR OTHERWISE. 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. (d) Upon written notice from Licensor, Licensee agrees 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 an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall 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 22. 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. Form 432; Rev. 08/03/09 -4- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 IN-RHRANC:F 23. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the following insurance coverage: 23.1 Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by Licensee. Coverage must be purchased on a post 2004 ISO occurrence 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 shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: ■ The definition of insured contract shall 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 Licensor. ■ Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle Brokerage, Inc. ■ Separation of insureds. ■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor. 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 Licensor's employees. No other endorsements limiting coverage may be included on the policy. 23.2 Business Automobile Insurance. This insurance shall 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, which shall be indicated on the certificate of insurance: ■ Waiver of subrogation in favor of and acceptable to Licensor. ■ Additional insured endorsement in favor of and acceptable to Licensor. ■ Separation of insureds. ■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor. 23.3 Workers' Compensation and Employers' Liability Insurance. This insurance shall include coverage for, but not limited to: ■ Licensee's statutory liability under the workers' compensation laws of the state(s) in which the services are to be performed. If optional under state laws, the insurance must cover all employees anyway. ■ 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 Licensor. 23.4 Railroad Protective Liability Insurance. This insurance shall name only Licensor as the Insured with coverage of at least $2, 000, 000 per occurrence and $6, 000, 000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction. If further maintenance is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 12 03 and include the following: ■ Endorsed to include the Pollution Exclusion Amendment. Form 432; Rev. 08/03/09 -5- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 ■ 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 Licensor prior to performing any work or services under this License. ■ Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured's care, custody and control arising out of the acts or omissions of the contractor named on the Declarations." Other Requirements: 23.4.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages. 23.4.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, Licensee's insurers, through the terms of the policy or a policy endorsement, must waive their right of subrogation against Licensor for all claims and suits, and the certificate of insurance must reflect the waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers must also waive their right of subrogation against Licensor for loss of Licensee's owned or leased property, or property under Licensee's care, custody, or control. 23.4.3 Licensee is allowed to self -insure with prior written consent of Licensor with exception of Railroad Protective Liability coverage. If granted by Licensor, any self -insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this License, be covered by Licensee's insurance will be covered as if Licensee elected not to include a self - insured retention or other financial responsibility for claims. 23.4.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. Licensee shall notify Licensor in writing at least 30 days prior to any cancellation, non -renewal, substitution, or material alteration. In the event of a claim or lawsuit involving Licensor arising out of this License, Licensee will make available any required policy covering such claim or lawsuit. 23.4.5 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor 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. 23.4.6 If coverage is purchased on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of three years after expiration or termination of this License. Annually, Licensee agrees to provide evidence of such coverage as required hereunder. 23.4.7 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this License. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. 23.4.8 Not more frequently than once every five years, Licensor 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. 23.4.9 If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Form 432; Rev. 08/03/09 -6- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 23.4.10 Failure to provide evidence as required by this Section 23 shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this Section shall not operate as a waiver of Licensee's obligations hereunder. 23.4.11 The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. 23.4.12 These insurance provisions are intended to be a separate and distinct obligation on the part of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable. 23.4.13 For purposes of this Section 23, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 24. (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. (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 Premises which occurred or may occur during the term of this Agreement, 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 Agreement. Licensee shall promptly respond to Licensor's request for information regarding said conditions or activities. 191=11AI11111111111 25. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this Agreement by operation of law, Licensor may, at its option, terminate this Agreement by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor 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 25 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. TERMINATION 26. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License 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 License and all rights of Licensee shall absolutely cease. Form 432; Rev. 08/03/09 -7- DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Law Department Approved Tracking No. 21 W 11808 27. 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, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 28. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this Agreement or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. NOTICES 29. 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 Brokerage, Inc., 2650 Lou Menk Dr. - MOB2 Fort Worth, TX 76131 BNSF Railway Company with a copy to: 2650 Lou Menk Dr. Fort Worth, TX 76131 City of Beaumont If to Licensee: 801 Main Street Beaumont, TX 77701 SURVIVAL 30. 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 Premises are restored to its condition as of the Effective Date. RECORDATION 31. It is understood and agreed that this Agreement shall not be placed on public record. APPLICABLE LAW 32. 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. SEVERABILITY 33. 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. Form 432; Rev. 08/03/09 -8- DocuSign Envelope ID: 3ADF6326-0536-41 F2-953E-9A6E7C67CC64 Law M".11pailn,"')ent Appr,ow-A Tracking No,-21W-1 18108 MISCELLANEOUS 315. In 'the event that Licensee consists of two or more parties,, all 'the colvenant,s and agreements of Licensee hereir coriltaiiied all be the joint and several covenants -and calgreements of such parties. 381. Lice risor's, Representative., Jones Lang LaSalle Brokerage, Inc., is, acting as, representati've for BNSF Railway Company. Jones Lang LaSalle Global Services — R,R, 'Inc. is acting as representative for NSF Railway Company. IN WITNESS 'WHEREOF, this License has been, duly executed, in duplicate, by the parties hereto, as of the day, and year first above written. BNS,F RAILWAY COMPANY 1 Jones, Lang LaSalle Birokerage1 1nc.,, its Attorney in Fact, 2650 Lou -Meek Dr. - MOB2 Fort Worth, TX 76131 DocuSigned by: By.* Title.: Patricia Villeqas, Vice President . . .................... . . . ..... . .. -..—a . ............. CITY OF BEAU MONT' 801 lain Street Beaumont, TX 777011 By�.- . ........ TitleMana�[r Form 432,, Rev. 08/03019 DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 TRACKING NO. 21W-11808 u') C) SCALE: 1 IN = 100 FT RED RIVER.DIV. SILSBEE SUBDIV. L.S. 7503 DATE: 9/17/2021 I c!f-%E:K1m- HREMIbEb R I G H T 0 F WAY L I N E TRACK EXHIBIT "All ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AN D CITY OF BEAUMONT SURVEY: LLIAMS, A � raim 137008 DESCRIPTION: A NEW 32'WIDE PRIVATE CROSSING SHOWN HATCHED. DOT # - BEAUMONT COUNTY OF JEFFERSON STATE OF TX JNC REVISION 1 DRAWING NO. 82706 DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 EXH I BIT II II Id: 21W-11808 Application for Private Crossing Most recent submittal date: 08/23/2021 16:40 UTC Rail Permitting.com Applicant Name: Antoinette Hardy Title: Real Property Coordinator Company: City of Beaumont Phone: 409-880-3725 Email: Antoinette. Hardy@ Beaumonttexas.gov Applicant Details Legal name of company /municipality who will occupy the property: CITY OF BEAUMONT State in which incorporated: Texas Name of owners or partners if not incorporated: Name of contact for ownership entity: ANTOINETTE HARDY Phone Number: 4098803725 Ext: Email: antoinette.hardy@beaumonttexas.gov Mailing address: 801 MAIN STREET BEAUMONT, Texas 77701 Application Details Construction Start Date: 08/23/2021 Construction End Date: 02/23/2022 Is this applicant a condemning authority? Yes Is this project within public right of way? No Is this applicant a railroad shipper? No Is this project requested by railroad? No Is this project in conjunction with a track or track expansion Project? No Is this project associated with a public road crossing/widening or a grade separation project? No Location Details Name of nearest town on RR: Beaumont County: Jefferson State: Texas Name of nearest roadway crossing RR: E LUCAS ST DOT Number: 023668F DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 Id: 21W-11808 Application for Private Crossing PLSS: RR milepost: Latitude: 30.12237 Longitude:-94.13663 Private Crossing Does crossing already exist? No Width of crossing: KI Time period crossing will be required: 25 years The crossing is being used for: Commercial Number of vehicle crossing a day: 1-5 Type of user vehicle: Auto, Pickup Are there other private crossing in the vicinity? No Distance to nearest public crossing: 800-830 feet Do you own or lease the land on either side of the track? Own DocuSign Envelope ID: 3ADF632B-0536-41 F2-953E-9A6E7CB7CC64 BNSF Railway Company RA IL WA Y EXHIBIT "C" 2600 Lou Menk Drive Fort Worth, Texas 76131 Re: Request submitted to be permitted for a new at -grade crossing, thirty-two (32') feet wide ("Crossing"), across the rail corridor of Licensor at or near Licensor's station of Beaumont, County of Jefferson, State of Texas, Line Segment 7503, Mile Post 4.07, DOT No. 023193R. The above referenced request is hereby approved under the following conditions: 1) LICENSEE agrees to install, construct, and maintain appropriate safety measures on their roadway approaches to this commercial crossing to warn roadway users of approaching trains. a. Since the LICENSEE has not requested the installation of active warning devices such as flasher lights and gates, BNSF will continue to use the existing PRIVATE CROSSING sign and STOP sign attached to the same support post on each side of the crossing. b. Since the LICENSEE has not requested the installation of "whistle signs and posts" along the track, trains will have no instructions to routinely sound the train horns when approaching this commercial crossing. 2) The LICENSEE may contact and request BNSF to install flasher lights and gates as a safety measure to warn roadway users of approaching trains. a. The total amount of the crossing signal cost estimate would be paid in advance by the LICENSEE. b. Annual crossing signal maintenance costs and any necessary signal equipment replacement costs would be paid by the LICENSEE. 3) The LICENSEE may contact and request BNSF to install "whistle signs and posts" along the track to instruct trains to routinely sound the train horns when approaching this commercial crossing. a. The total amount of the whistle signs and posts cost estimate would be paid in advance by the LICENSEE. 4) LICENSEE agrees to construct and maintain their roadway approaches across the full width of BNSF right of way up to the edge of the crossing panels on the track, including the area between any future additional track(s). a. LICENSEE agrees to construct and maintain the profile of both their roadway approaches to be level (0.0% grade) with the top -of -rail (or top -of -timber crossing planks on the track) elevation at the crossing for minimum distance of 4 feet from the outside edge of the crossing planks, and then a -1.0% maximum (or — 3 inches maximum) grade for a minimum distance of 30 feet prior to changing in elevation. The LICENSEE agrees to maintain the profile of their roadway approaches to allow the roadway users to traverse the crossing without contacting or damaging the track or the timber crossing panels on the track(s).