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consistent with those approved on the Bernal Avenue Underpass regarding width of ballast trough, as recommended by Office of the Chief Engineer, WPRR, Omaha), for which the City has received authority from the Commission and for which a construction contract has been awarded by the City. To facilitate the prompt and efficient design of the bridge structure in light of previous approval of the Bernal Avenue Underpass, WPRR agrees to a departure from its current policy requiring steel bridge structures in this instance only and this approval is not considered a precedent for any future structures. 3. Railroad Cooperation. a. Subject to the terms and conditions of said amended or substitute PUC Application being consistent with the provisions of this Memorandum of Understanding, railroads will promptly advise the PUC that they have no objection to an Order, valid for a term of six years, approving the City's Application to Modify Decision 85-08-037 as shown in Exhibit A attached hereto and made a part hereof. b. SPTCo shall remove at its own cost two of the five yard tracks at the proposed Busch Road public crossing during the time of construction of the proposed Busch Road public crossing. SPTCo at its own option and own cost may add an approximately equal amount of trackage at the southerly end of the east leg of the Radum Wye. City plans to build the proposed Busch Road crossing as a sixty foot (601) road, but ultimately plans to widen that crossing to one hundred feet (1001). The track removal and modification by SPTCo shall permit such future widening without necessitating further switch modifications. The easements conveyed by SPTCo for the proposed Busch Road crossing shall be one hundred feet (100' ) in width. C. Acceptable materials to be used at vehicular crossings of the railroad shall include asphaltic concrete or rubber. If SPTCo selects rubber crossing surface, then SPTCo shall be responsible for the difference in cost between asphaltic concrete and rubber. 4. Construction and Maintenance Agreement. At a later date, Parties will enter into a Construction and Maintenance Agreement (or agreements), in a form customarily utilized for construction of new public crossings. It is understood that the Construction and Maintenance Agreement shall contain a provision in which the City agrees to release, defend, indemnify and hold the railroads harmless from any claims by users or occupiers or any third persons for injuries or damages resulting from any negligent design for portions designed by City, its agents, contractors or subcontractgrs. Each party shall agree to indemnify and hold the others harmless from claims resulting from its own negligent construction or maintenance of subject improvements. - 2 -