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Tax2014D-CS160314 AGREEMENT NO. 681-A CONSTRUCTION AGREEMENT AND CONTRACTOR'S RIGHT OF ENTRY THIS AGREEMENT("Agreement"), by and between DALLAS AREA RAPID TRANSIT ("DART"), a regional transportation authority created and existing pursuant to Chapter 452, Texas Transportation Code, and F&F CONCRETE, LLC, hereinafter called "Contractor", whose mailing address is 1222 Montclair Drive, Garland, Texas 75040. For the period not to extend beyond April 18, 2016, DART hereby permits Contractor to enter upon DART property ("Property") on a tract of right of way of the Cotton Belt Line located at Denton Tap Road South, Mile Post 608.35, (Latitude: 32°57'03.60"N, Longitude: 96°59'36.30"W) in Coppell, Dallas County, Texas, as may be necessary in connection with removal and replacement of damaged pavement with new concrete pavement, to be performed on the Property by Contractor under an agreement between Contractor and the City of Coppell, a Texas municipality, (the "Contract"), and for no other purpose. Contractor understands that this Contract and all work to be performed thereunder is subject to the terms and conditions contained in License Agreement No. 681, dated the 15th day of September, 1988, issued by St. Louis Southwestern Railway Corporation, predecessor to DART to the City of Coppell, which is incorporated herein by reference. 2. Contractor shall: (a) Perform that portion of the work on the Property in accordance with plans and specifications approved by DART and Fort Worth and Western Railroad (the "Railroad" whether one or more than one, if applicable) in such manner and at such times as shall not endanger or interfere with DART's or Railroad's operations nor with any improvements located on, above or below the Property. Contractor shall submit to DART and Railroad, for approval, all construction details, falsework and other incidentals not detailed in plans, insofar as they affect DART and Railroad. Contractor shall be responsible for any damages to the Property caused by Contractor's use or entry thereon (including without limitation, to improvements on, above or below the surface), and shall repair, restore or replace(at DART's discretion), damaged improvements on the Property. (b) Maintain, at Contractor's expense, flagger(s) who are representatives of the Railroad, qualified on the Railroad's operating and safety rules to protect DART's and the Railroad's interests while upon the Property. Contractor will not perform any work within 25 feet of any DART track(also referred to as"the foul zone")or perform any work in which an event could cause equipment, people or materials to enter into the foul zone unless flagger(s) are present. (c) Ensure, at Contractor's expense, that all personnel working under Contractor's control engaged in any activity that requires flagger(s), as described above, have within the last 365 days from the date the work is to be performed, attended a creditable Roadway Worker Protection course and have successfully passed all required examinations associated with that course and will provide proof of course completion upon request from DART or their representative. Railroad or DART shall determine whether or not the above mentioned Roadway Worker Protection course is creditable. (d) (A) Notify Railroad in writing at least fifteen (15)working days before commencing work on the Property and (B) notify DART and Railroad in writing within five (5) working days after such work is completed. (e) Keep all equipment, tools and materials stored at least twenty-five (25) feet from the Coppell—Denton Tap Road 1 of 4 Mile Post 608.35 Replace damaged pavements center line of any railroad track. Explosives or other highly inflammable substances or any hazardous materials shall not be stored on the Property without the prior written approval of DART. (f) Remove Contractor's tools, equipment and materials and all debris created by Contractor from the Property promptly upon completion of work, restoring the Property to the same state and condition as when Contractor entered thereon, (g) Reimburse DART and Railroad for all costs and expenses incurred by DART and/or Railroad in connection with said work, including without limitation the expense of furnishing such inspectors,watchmen and flagmen as DART or Railroad deem necessary, the installation and removal of falsework beneath tracks,and restoration of the Property to the same condition as when Contractor entered thereon, or to a condition satisfactory to DART. (h) Remove any lien against the Property arising from entry or performance of work hereunder by Contractor or an agent or subcontractor of Contractor. 3. Contractor agrees to release, defend and indemnify DART and Railroad,from and against all loss, damage, claims,costs, expenses, including attorney's fees,and liability for bodily injury to or death of any persons and loss of or damage to any property and loss of use thereof arising out of or in any way connected with Contractors entry on the Property or activity thereon, including entry or activity by Contractor's employees, subcontractors, agents or invitees. In the event any part of the provisions of this section are determined by any statutory enactment or judicial decision to be void or unenforceable, then this section shall not fail in its entirety but will be enforceable to the extent permitted by law. For the purposes of this section, the term "Railroad" shall include any other railroad company using the Property with DART's consent and any affiliate,subsidiary or lessor of DART. 4. Prior to entry on or start of work or occupancy of the Property, Contractor agrees to procure and maintain at its sole cost and expense, the following types and amounts of insurance with form of coverage and insurers satisfactory to DART: Commercial general and automobile liability insurance with contractual liability endorsement and products and completed operations hazards included, which shall provide coverage for combined single limits of not less than$2,000,000,as further outlined below. This insurance shall be primary and non-contributory. All insurance coverage's required by this Agreement shall provide the following as a minimum standard' (a) Commercial General Liability With Contractual Liability Endorsement. -Per occurrence limit of at least$2,000,000. -DART,Railroad and all affiliated companies and organizations are named as additional insureds without any qualifications or restrictions. -DART must have 30 days notice of cancellation or modification. (b) Commercial Automobile Liability Policy -Combined single limit of at least$2,000,000. -DART and Railroad are named as additional insureds without any qualifications or restrictions. Coppell—Denton Tap Road 2 of 4 Mile Post 608.35 Replace damaged pavements -DART must have 30 days notice of cancellation or modification. (c) Workers'Compensation Insurance -Providing Statutory Benefits under the Workers' Compensation Act of the State of Texas and/or any other State or Federal Law or Laws applicable to the Contractor's employees performing the work under this Agreement. -Employer's Liability Insurance with limits of liability of not less than $500,000 each accident, $500,000 each employee for disease and $500,000 policy limit for disease. -Endorsed with a Waiver of Subrogation Endorsement, waiving the carrier's right of recovery under subrogation or otherwise from DART and the Railroad. (d) Contractor agrees to furnish DART Certificates of Insurance and copies of Endorsements for Additional Insured, Waiver of Subrogation and Contractual Liability Railroads (or, as and when DART may direct, copies of the actual insurance policies) as evidence of the coverage's outlined in (a), (b) and (e) above, and this section (d). Approval will be expedited if all required coverage's and the following endorsements are included on the Certificates: -Endorsement showing DART and its affiliate companies and organizations named as additional insureds. The certificate must specify that the endorsement is applicable to the General Liability and Auto Liability Policies. -Contractual liability endorsement. -Endorsement removing exclusions from contractual liability coverage for operations within 50 feet of a railroad or the purchase of a Railroad Protective Liability Policy with limits of no less than $2,000,000 per occurrence and$6,000,000 aggregate. -Endorsement removing exclusions for XCU hazards. -Waiver of subrogation endorsement specific to Workers' Compensation. 5. All policies should contain a cross liability endorsement reading as follows: "It is agreed that the inclusion of more than one person, corporation,organization,firm or entity as insured under this policy shall not in any way affect the rights of any such person, corporation, organization, firm or entity with respect to any claim, demand, suit or judgment made, brought or recovered by or in favor of any other insured. This policy shall protect each person, corporation, organization, firm or entity in the same manner as though a separate policy had been issued to each; provided that this endorsement shall not operate to increase the company's limits of liability as set forth elsewhere in this policy," 6. The permission herein given shall not be assigned by Contractor without the prior written consent of DART, except in the case of subcontractors of Contractor who shall be deemed agents of Contractor and subject to the terms of this Agreement. 7. No vehicular crossing over DART's track shall be installed or used by Contractor without prior Copper—Denton Tap Road 3 of 4 Mite Post 608 35 Replace damaged pavements written permission of DART. 8. No work shall be done between the hours of 6:00 p.m. and 6:00 a.m., nor on Saturdays, Sundays or legal holidays without prior written permission of DART and Railroad. 9. At DART's or Railroad's request,Contractor shall remove from the Property any employee of Contractor or any subcontractor who fails to conform to the instructions of DART or Railroad In connection with entry or work on the Property, and any right of Contractor to enter upon the Property shall be suspended until such request of DART or Railroad is met. Contractor shall indemnify,defend and hold DART and Railroad harmless against any claim arising from the removal of any such employee from the Property. 10. Company-issued photo identification is required of all contractors and subcontractors working on the Property. 11. Notification of Railroad shall be by telephone to: Robert Fuller,Director of Track,at 817.821.2342 Notification of DART for all other purposes,shall be by telephone to: Nelda Villacana, at 214.749.3694 12. The parties may execute this Agreement in multiple originals and when taken together, those originals constitute a whole that shall be effective on the date last signed. DALLAS AREA RAPID TRANSIT 1" By t 1 t I t r. MAUREEN MCCOLE Vice President,Commuter Rail &Railroad Management Date Signed: 7 F&F CONCRETE, LLC. gy /t flhft'r,1lc /a/".(7-47 Printed Name: f 4fiefilis,``c frd0A,�' Title: i4-'-/ Date Signed: - -lg.' a Coppell—Denton Tap Road 4 of 4 Mile Post 608.35 Replace damaged pavements 4 5. ( .. .. TAX 20140 - DENTON TAP PAVEMENT REHABILITATION - STA 10+00-20+00 ^�7g�n 9 p �`J[g'y�.Noi Z U (7 V z IA 'p o NW 0 fl, a:Q liit id 11 4;1 rf1.�[alir, w m 444> :1[111/1 3i F1'� U : z ta IXa3 it.,A LI ,.-° . ♦ J Ix N K 1331-15 SRL 33S i 133HS 33S Q o' w o 00+51 3NI1HJ1VIN 00+0Z 3NIlHJIVIN +L o8 = 1 'g' ' i I W a I' k 1 I _ -...I .I _.. Z I 1 o I-- 2 2 i I j I o I°I , ,1 ; 1 , N I I { t 1 \�� O i ( \. 1 m , s Z. !' 1 t { i j I 44,� © I naa -1 I Y I i 1A a 8 i ':`_ * I W �. 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