3-BPAttach02 NSF Agreement.pdf

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Contract Number: BF- 20467134

GRADE CROSSING CONSTRUCTION AND MAINTENANCE AGREEMENT

BNSF File No.: BF- 20467134 Mile Post 506. 27

Line Segment 1004

U. S. DOT Number 670132H Subdivision

This Agreement (" Agreement"), is executed to be effective as of Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation (" BNSF") and the City of Wichita, KS, a political subdivision of the State of Kansas (" Agency").

RECITALS

WHEREAS, BNSF owns and operates a line of railroad in and through the City of Wichita, State of Kansas;

WHEREAS, in the interest of aiding vehicular travel and public safety, the Agency is undertaking a project to improve the existing 21st St at-grade crossing, located at BNSF Line Segment 1004 and Milepost 506.27, and designated by D. O.T. No. 670132H, by reconstructing and widening the roadway and adding pedestrian facilities within a new roadway easement across the BNSF right- of-way as indicated on the Exhibit A, attached hereto and incorporated herein; and

WHEREAS, the parties agree that the RAILROAD will receive no ascertainable benefit from the installation of advance warning signs, pavement marking stop bars or crossing signal equipment ( hereinafter collectively called, " Crossing Signal Equipment"); and

WHEREAS, the Agency also desires BNSF to install a new crossing surface at 21St St with a new concrete and rubber crossing surface; and

WHEREAS, the Agency is paying for the acquisition and installation of crossing signal equipment and the new crossing surface at 21St St; and

WHEREAS, the BNSF agrees to purchase and install, at AGENCY' S sole expense, the crossing signal equipment and the new crossing surface described in the scope of work herein, and upon the terms and conditions set forth below.

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Contract Number: BF- 20467134

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I — SCOPE OF WORK

1) The term " Project" as used herein includes any and all work related to the reconstruction and widening of 21St St by Agency and installation of crossing signals and new crossing surfaces at U. S. D. O. T No. 670132H, ( hereinafter referred to as the " Crossing") by BNSF, more particularly described on the Exhibit A, including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation.

ARTICLE II — RAILROAD OBLIGATIONS

In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows:

1) Upon Agency' s payment to BNSF of an administrative fee in the sum of Two Thousand Five Hundred and No/ 100 Dollars ($ 2, 500), together with the Temporary Construction License Fee in the sum of Seven Hundred and 00/ 100 Dollars ($ 700. 00), BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non- exclusive license hereinafter called, " Temporary Construction License") to enter upon and use the portion of BNSF' s right- of-way as is necessary to reconstruct and widen and thereafter maintain, the Crossing as described further on Exhibit A- 1, excepting and reserving BNSF' s rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following:

A. Operate, maintain, renew and/ or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right- of-way;

B. Construct, operate, maintain, renew and/ or relocate upon said right- of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate;

C. Otherwise use or operate the right- of-way as BNSF may from time to time deem appropriate.

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Contract Number: BF- 20467134

The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of ( i) substantial completion of the Crossing, or ( ii) 12 months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Agency in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary

Construction License is for construction of the Crossing only and shall not be used by Agency for any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Crossing for any other purpose than construction. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right- of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to Agency herein.

Upon Agency' s payment to BNSF of the additional sum of Seven Thousand Three Hundred and 00/ 100 Dollars ($ 7, 300. 00), such payment to be made within thirty ( 30) days of issuing the Notice to Proceed pursuant to Article Ill, Section 8 of this Agreement, and provided further that Agency is in compliance with the term and conditions of this Agreement, BNSF will grant to Agency, its successors and assigns, an easement ( hereinafter called, the " Easement") to enter upon and use that portion of BNSF' s right- of-way as is necessary to use and maintain the Crossing, substantially in the form of Exhibit B attached to this Agreement. If Agency fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF.

2) BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. BNSF' s estimated cost for the Project is Seven Hundred Seventy Thousand Three Hundred Fifty Eight and 00/ 100 Dollars ($ 770, 358. 00) (" Estimated Cost"). Any estimate provided by BNSF for the Project shall not be a limitation on the railroad work to be performed or the costs and expenses incurred, which Agency, to the full extent permitted by applicable law, shall reimburse to BNSF in full for all actual costs. In the event construction on the Project has not commenced within six ( 6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of Agency, which

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Contract Number: BF- 20467134 approval will not be unreasonably withheld. Construction of the Project must include the following railroad work by BNSF:

A. Procurement of materials, equipment and supplies necessary for the railroad work;

B. Preliminary engineering, design, and contract preparation;

C. Furnishing of flagging services during construction of the Project as required and set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof;

D. Furnishing engineering and inspection as required in connection with the construction of the Project;

E. Removal and disposal of the existing crossing surfaces from the Crossing;

F. Installation of two 104- foot concrete crossing surfaces for the two tracks complete with new rail, ties, ballast, fasteners, along with appropriate surfacing, to carry the improved roadway and sidewalks;

G. Installation of Crossing Signal Equipment and Crossing Signal Control House as shown on Exhibit A;

H. Make such changes in the alignment, location and elevation of its telephone, telegraph, signal and/ or wire lines and appurtenances along, over or under the tracks, both temporary and permanent, as may become necessary by reason of the construction of the Project.

3) BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements.

4) To the extent permitted by applicable law, Agency agrees to reimburse BNSF for work of an emergency nature caused by Agency or Agency' s contractor in connection with the Project which BNSF deems is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of Agency and Agency agrees, to the full extent permitted by applicable law, to fully reimburse BNSF for all such emergency work.

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Contract Number: BF- 20467134

5) BNSF may charge Agency for insurance expenses, including self- insurance expenses, when such expenses cover the cost of Employer' s Liability ( including, without limitation, liability under the Federal Employer' s Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF' s employees, if any.

6) During the construction of the Project, BNSF will send Agency progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement.

Agency must reimburse BNSF for completed force- account work within thirty( 30) days of the date of the invoice for such work. Upon completion of the Project, BNSF will send Agency a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this section and Article

IV, Section 7 herein, Agency must pay the final invoice within ninety ( 90) days of the date of the final invoice. BNSF will assess a finance charge of . 033% per day ( 12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date payment is received by BNSF, not the date payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any unposted payments received by the month' s end. Finance charges will be noted on invoices sent to Agency under this section.

ARTICLE III — AGENCY OBLIGATIONS

In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows:

1) Agency must furnish to BNSF plans and specifications for the Project. Said plans reduced size 11" x 17"), showing the plan and profile of the roadway work on BNSF right- of-way and marked as Exhibit A, attached hereto and made a part hereof, must be submitted to BNSF for the development of railroad cost estimates.

2) Agency must make any required application and obtain all required permits and approvals for the construction of the Project.

3) Agency must acquire all rights of way necessary for the construction of the Project.

4) Agency must make any and all arrangements, in compliance with BNSF' s Utility Accommodation Manual ( http://www. bnsf.com/ communities/ fags/ pdf/utilitv. pdf), for sA/SF'

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Contract Number: BF- 20467134 the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project.

5) Agency must construct the Project as shown on the attached Exhibit A and do all work Agency' s Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency' s Work. The principal elements of Agency' s Work are as follows:

A. Design and Reconstruction/ Construction of 21St St;

B. Installation of a pavement marking stop bar in accordance with the Manual on Uniform Traffic Control Devices ( hereinafter called, " MUTCD");

C. Installation of advance warning signs in accordance with the MUTCD;

D. Perform all necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF' s right- of-way;

E. Provide suitable drainage, both temporary and permanent;

F. Provide all barricades, lights, flagmen or traffic control devices necessary for preventing vehicular traffic from using a portion of the Crossing, during the installation of the concrete crossing surfaces, and also during the installation of the Crossing Signal Equipment.

G. Construct asphalt/ concrete roadway surface on approaches to each track;

H. Provide and place six ( 6) to twelve ( 12) inch wide section of asphalt between roadway concrete headers ( and sidewalks) and the new concrete crossing surfaces, including that portion of 21St St located between the Main Track and Industry Track;

I. Job site cleanup including removal of all construction materials, concrete debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF;

6) The Agency will approve the location of the signals and signal bungalow prior to the installation by BNSF.

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Contract Number: BF- 20467134

7) The Agency must have advanced railroad crossing signs and standard pavement markings in place at the crossing shown on Exhibit A ( if the same are required by the MUTCD) prior to the acceptance of this Project by the Agency.

8) The Agency must give BNSF' s Manager Public Projects written notice to proceed Notice to Proceed") with the railroad portion of the work after receipt of necessary funds for the Project. BNSF will not begin the railroad work ( including, without limitation, procurement of supplies, equipment or materials) until written Notice to Proceed is received from Agency.

9) The Agency' s Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities.

10) For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to comply with the provisions of the attached Exhibit C and execute the agreement attached hereto as Exhibit C- 1. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF' s applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF' s Internet Website " www. bnsfcontractor. com";

notify BNSF when, pursuant to the requirements of Exhibit C, a flagger is required to be present; procure, and have approved by BNSF' s Risk Management Department, Railroad Protective Liability insurance.

11) Agency must require its contractor( s) to notify BNSF' s Roadmaster at least thirty

30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor( s) to notify BNSF' s Manager of Public Projects thirty ( 30) calendar days prior to commencing work on BNSF property or near BNSF tracks.

12) Agency must include the following provisions in any contract with its contractor( s) performing work on said Project:

A. The contractor is placed on notice that fiber optic, communication and other cable lines and systems ( collectively, the " Lines") owned by various telecommunications companies may be buried on BNSF' s property or right- of-way. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The contractor will be responsible for contacting BNSF and the telecommunications companies and notifying them of any work that snsr•

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Contract Number: BF- 20467134 may damage these Lines or facilities and/ or interfere with their service. The contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The contractor must also use all reasonable methods when working in the BNSF right- of-way or on BNSF property to determine if any other Lines ( fiber optic, cable, communication or otherwise) may exist.

B. Failure to mark or identify these Lines will be sufficient cause for BNSF' s engineering representative Case McAdam at case. mcadam@bnsf. com to stop construction at no cost to the Agency or BNSF until these items are completed.

C. The contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The contractor must cooperate fully with any telecommunications company( ies) in performing such rearrangements.

D. In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever ( including, without limitation, attorney' s fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of contractor, its subcontractors, agents and/ or employees that cause or in any way or degree contribute to ( 1) any damage to or destruction of any Lines by contractor, and/ or its subcontractors, agents and/ or employees, on BNSF' s property or within BNSF' s right- of-way, ( 2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/ or its contractor, agents and/ or employees, on BNSF' s property or within BNSF' s right- of-way, and/ or ( 3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company( ies). THE LIABILITY ASSUMED BY CONTRACTOR

WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE

DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM

WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF

BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO

THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE

INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF BNSF.

13) Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C- 1, and incorporate in each prime contract for construction of the Project, or the specifications therefor ( i) the provisions set forth in Article III and IV; and ( ii) the provisions set forth in Exhibit C and Exhibit C- 1, attached hereto and by reference made a part hereof.

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Contract Number: BF- 20467134

14) Except as otherwise provided below in this Section 13, all construction work performed hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following:

A. All work performed under such contract or contracts within the limits of BNSF' s right-of-way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF;

B. Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF' s approval;

C. No work will be commenced within BNSF' s right- of-way until each of the prime contractors employed in connection with said work must have ( i) executed and delivered to BNSF an agreement in the form of Exhibit C- I, and ( ii) delivered to and secured BNSF' s approval of the required insurance; and

D. If it is in Agency' s best interest, Agency may direct that the construction of the Project be done by day labor under the direction and control of Agency, or if at any time, in the opinion of Agency, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, Agency may terminate its contract with the contractor and take control over the work and proceed to complete the same by day labor or by employing another contractor( s) provided;

however, that any contractor( s) replacing the original contractor( s) must comply with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, Agency will, at its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C- 1.

E. To facilitate scheduling for the Project, Agency shall have its contractor give BNSF' s Roadmaster 30 days advance notice of the proposed times and dates for work windows. BNSF and Agency' s contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor' s expenses for the Project.

15) Agency must advise the appropriate BNSF Manager Public Projects, in writing, of the completion date of the Project within thirty ( 30) days after such completion date.

Additionally, Agency must notify BNSF' s Manager Public Projects, in writing, of the date on which Agency and/ or its contractor will meet with BNSF for the purpose of making final inspection of the Project.

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16) TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY

RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS

AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL

REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES

AND AGENTS 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 AND ATTORNEYS' FEES) OF ANY NATURE, KIND

OR DESCRIPTION OF ANY PERSON ( INCLUDING, WITHOUT LIMITATION, THE

EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR

INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO ( IN WHOLE

OR IN PART) ( I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS

CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR

ABOUT THE CONSTRUCTION SITE, ( II) THE PERFORMANCE, OR FAILURE TO

PERFORM BY THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS,

EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS

AGREEMENT, ( Ill) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF

AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR

AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, ( IV) AGENCY' S

BREACH OF THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT

GRANTED TO AGENCY PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V)

ANY RIGHTS OR INTERESTS GRANTED TO AGENCY PURSUANT TO THE

TEMPORARY CONSTRUCTION LICENSE OR EASEMENT DISCUSSED IN

ARTICLE II OF THIS AGREEMENT, (VI) AGENCY' S OCCUPATION AND USE OF

BNSF' S PROPERTY OR RIGHT-OF-WAY, INCLUDING, WITHOUT LIMITATION,

SUBSEQUENT MAINTENANCE OF THE CROSSING BY AGENCY, OR ( VII) AN

ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS, INVITEES,

EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY

EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE

CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE

AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION,

INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE

NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR

OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE

PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR GROSS

NEGLIGENCE OF BNSF.

ARTICLE IV- JOINT OBLIGATIONS

IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:

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1) All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF' s approval prior to the commencement of any such changes or modifications.

2) The work hereunder must be done in accordance with the Exhibit A and the detailed plans and specifications approved by BNSF.

3) Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF' s failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.

4) BNSF will have the right to stop construction work on the Project if any of the following events take place: ( i) Agency ( or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; ( ii) Agency ( or any of its contractors), in BNSF' s opinion, prosecutes the Project work in a manner that is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; ( iii) the insurance described in the attached Exhibit C- 1 is canceled during the course of the Project; or ( iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF' s Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of ( i) this Agreement, ( ii) the Temporary Construction License, or ( iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF' s right to stop the work is snsr

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Contract Number: BF- 20467134 in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing:

Shawn Mellies

455 N Main, 71h Floor Wichita, KS 67202 smelllies@wichita. gov

5) Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction ( within or adjacent to its operating right- of- way). Construction of the Project will not proceed until Agency corrects the situation to BNSF' s reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify Shawn Mellies for appropriate corrective action.

6) Pursuant to this section and Article II, Section 6 herein, Agency must, out of funds made available to it for the construction of the Project, reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement ( including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes).

7) All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U. S. Code, Title 23 Code of Federal Regulations, and the Federal- Aid Policy Guide, U. S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF' s preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement.

8) The construction of the Project will not commence until Agency gives BNSF' s Manager Public Projects thirty ( 30) days prior written notice of such commencement. The commencement notice will reference BNSF' s file number BF- 20467134 and D. O. T.

Crossing No. 670132H and must state the time that construction activities will begin.

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9) In addition to the terms and conditions set forth elsewhere in this Agreement, BNSF and the Agency agree to the following terms upon completion of construction of the Project:

A. Agency will own and be fully responsible for repairs, maintenance, future construction or reconstruction of the 215' St roadway, including the portion of roadway located between the tracks.

B. Agency will maintain the elevation of the 215' St roadway approaches to match the elevation on the railroad track crossing surfaces and to be no more than three ( 3) inches above or six ( 6) inches below top- of-rail elevation at a distance measured thirty ( 30) feet from the nearest rail.

C. Agency will maintain the advanced railroad crossing warning signs and pavement markings and agrees, to the extent permitted by applicable law, to hold harmless and indemnify BNSF for any claims, damages or losses, in whole or in part, caused by or due to the Agency' s failure to maintain the advanced warning signs and markings or other requirements of the MUTCD.

D. Agency will do nothing and permit nothing to be done in the maintenance of the 215' St roadway, which will interfere with or endanger facilities of BNSF.

E. It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto.

F. BNSF will, at its sole cost and expense, operate and maintain the Crossing Signal Equipment, Crossing Signal Control House, and the new crossing surfaces, from end- of- tie to end- of- tie, in proper condition.

G. Notwithstanding the preceding provision, if any regulations, ordinances, acts, rules or other laws subsequently passed or amended by the Agency or any other governmental or legislative authority increase the Agency' s portion of maintenance cost under this Agreement, BNSF will receive the benefit of any such regulations, ordinances, acts, rules or other laws and the Agency' s increased portion of maintenance costs will be incorporated into and made a part of this Agreement.

H. If a railway or highway improvement project necessitates rearrangement, relocation, or alteration of the Crossing Signal Equipment, Crossing Signal House, or the new crossing surface installed hereunder, the costs for such s sr

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Contract Number: BF-20467134 rearrangement, relocation or alteration will be the responsibility of the party requesting such changes.

If any of the Crossing Signal Equipment is partially or wholly destroyed, then such repair and/ or replacement costs must be distributed among the parties as follows:

i) In the event the BNSF' s sole negligence destroys or damages the Crossing Signal Equipment and/ or the Crossing Signal House, BNSF must, at its sole cost and expense, replace or repair such Crossing Signal Equipment and/ or Crossing Signal House.

ii) In the event the Crossing Signal Equipment is damaged or destroyed by any other cause, Agency, to the extent permitted by applicable law, must reimburse BNSF for the costs to replace or repair such Crossing Signal Equipment and/ or Crossing Signal House.

J. If the Crossing Signal Equipment and/or Crossing Signal House installed hereunder cannot, through age, be maintained, or by virtue of its obsolescence, requires replacement, the cost of installation of the new crossing signal equipment and/ or new crossing signal house will be negotiated by the parties hereto on the basis of the current Federal Aid Railroad Signal Program participation and applicable Agency at the time of such replacement is warranted.

10) Agency must notify and obtain prior authorization from BNSF' s Manager of Public Projects before entering BNSF' s right- of-way for Inspection and Maintenance purposes and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor( s) to comply with the obligations set forth in Exhibit C and Exhibit C- 1, as the same may be revised from time to time. Agency, to the extent permitted by applicable law, will be responsible for its contractor(s) compliance with such obligations.

11) Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of Kansas and the Federal Highway Administration, for a period of one ( 1) year from the date of the final BNSF invoice under this Agreement.

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12) The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.

13) In the event construction of the Project does not commence within 6 months of the Effective Date, this Agreement will become null and void.

14) Neither termination nor expiration of this Agreement 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.

15) To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.

16) This Agreement ( including exhibits and other documents, manuals, etc.

incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.

17) Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses:

BNSF: BNSF's Manager Public Projects - Kansas

4515 Kansas Ave

Kansas City, KS 66106

Agency: Shawn Mellies

455 N Main, 7th Floor

Wichita, KS 67202

SIGNATURE PAGE FOLLOWS

snsAC.

SAIL WAY

Contract Number: BF- 20467134

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written.

BNSF RAILWAY COMPANY

By:

Printed Name:

Title:

AGENCY

City of Wichita, KS

WITNESS:

By:

Printed Name:

Title:

APPROVED AS TO FORM

By 4- • - 7<. N4. 2--t, 1 4, Jennifer Magana, City Attorney and Director of Law

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COPYRIGHT 2025& JS/ RAILWAY COMPANY. ALL RIGHTS RESERVED.

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EASEMENT AGREEMENT

FOR AT GRADE CROSSING

C& M Agreement)

THIS EASEMENT AGREEMENT FOR AT GRADE CROSSING (" Easement Agreement") is made and entered into as of the day of 2026 (" Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation (" Grantor"), and CITY OF WICHITA, KS, a political subdivision of the State of Kansas (" Grantee").

A. Grantor owns or controls certain real property situated at or near the vicinity of Wichita, County of Sedgwick, State of Kansas, at Railroad Line Segment 1004- 4 ( 7400) Mile Post 209. 72, Agency Project # BF- 20467134, as described or depicted on Exhibit" A" attached hereto and made a part hereof( the " Premises").

B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of concerning improvements on or near the Premises the" C& M Agreement").

C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose ( as defined below).

D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement and in the C& M Agreement incorporated herein as if fully set forth in this instrument which terms shall be in full force and effect for purposes of this Easement even if the C& M Agreement is, for whatever reason, no longer in effect.

NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Section 1 Granting of Easement.

1. 1 Easement Purpose. The " Easement Purpose" shall be for the purposes set forth in the C& M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as" Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C& M Agreement.

1. 2 Grant. Grantor does hereby grant unto Grantee a non- exclusive easement (" Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws( defined below) and zoning laws ( collectively, " Laws"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C& M Agreement.

1. 3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor:

a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character ( collectively, " Lines") upon, over, under or across the Premises;

b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and

Easement Agreement Form 704CM; Rev. 04/ 20/ 2023

c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose.

Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual.

Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor' s ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY

REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR

CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS

MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR

WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS

INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE' S

CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY,

MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON

OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED

USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE

PREMISES IN AN" AS IS, WHERE IS" AND" WITH ALL FAULTS" CONDITION, INCLUDING ENVIRONMENTAL

CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR' S RIGHTS, INTERESTS AND TITLE TO

THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor' s rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee' s Contractors ( as hereinafter defined) can successfully construct or operate the Improvements.

Section 4 Nature of Grantor' s Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE

TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE

THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder.

Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre- existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre- existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities ( collectively, Other Improvements"), Grantee will be responsible at Grantee' s sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner( s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/ or interfere with their service and obtain the owner' s written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations.

Grantee must also use all…