BERNAL INVESTMENT VALLEY AVENUE EXTENSION

~ ~ lights that City deems necessary to protect the public. BIC may at its sole expense provide street lighting not deemed necessary by the City, by arranging for the power company to hold the City harmless from the cost thereof, and by paying the actual power cost for said street lighting so ordered. 2. Due Diligence. Section 5, "Due Diligence," of the Agreement is amended to include the following: Time is of the essence in the performance of this Agreement. BIC shall complete the Improvements within one (1) year from the later of a) the date of completion of UPRR's shoofly track; b) the City's receipt of permits to complete the BIC Channel Relocation Improvements, the completion by City of plans for the BIC Channel Relocation Improvements and the City and BIC agreeing on the allocation of the cost to construct the BIC Channel Relocation Improvements; or c) relocation of the MCI line. The City shall extend the time for completion of the Improvements for one year, upon reasonable cause being shown by BIC. Any such extension may be granted without notice to BIC's surety. Any extension so granted shall not relieve the surety's liability on the bond to secure the faithful performance of this Agreement. 3. Ownership. Section 6, "Ownership," of the Agreement is amended in its entirety to read as follows: Following construction of the Underpass Project and acceptance of the Roadway Improvements and BIC Channel Relocation Improvements by the City, the ownership of the Roadway Improvements and BIC Channel Relocation Improvements shall pass to the City, and BIC shall have the right to utilize the Roadway Improvements in the same manner as other members of the public. City hereby agrees that the Roadway Improvements can and will be accepted separately from the BIC Channel Relocation Improvements. The ownership of the Railroad Improvements shall be subject to the terms and conditions of the New Public Road Crossing Agreement and in accordance therewith City shall, upon acceptance and at no expense to BIC, assume maintenance responsibilities for the Improvements, provided that BIC continues to be responsible for defect work as provided in Section 3.g. above. No conveyance by BIC of any of the Improvements shall affect title to the real estate underlying such Improvements. Use of any of the Railroad Improvements shall, at all times prior to the final acceptance by the City, or UPRR as set forth in the New Public Crossing Agreement, be at the sole and exclusive risk of BIC. Use of any of the Roadway Improvements shall, at all times prior to the City Engineer's determination to open the streets to public use, be at the sole and exclusive risk of BIC. 4. Indemnity. Section 7, "Indemnity," of the Agreement is amended in its entirety as follows to address both indemnification and insurance requirements: FIRST AMENDMENT TO VALLEY AVENUE EXTENSION UNDERPASS AGREEMENT Page 5 of 8