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<br /> DRAINAGE STRUCTURE LICENSE Page 3 <br /> Licensor and Licensee, growing out of, incident to, or in any manner <br /> resulting from negligence of licensee in any manner whatsoever to include <br /> but not be limited to licensee's sole negligence and/or joint negligence, <br /> but in respect to joint negligence this indemnity shall only apply to that <br /> percentage of negligence actually attributable to licensee, its agents or <br /> employees. In addition, it is further agreed that this indemnity provision <br /> is not applicable in regard to negligence solely and directly caused by <br /> licensor, its agents or employees. <br /> 5. Waiver: To waive all right to question the validity of this <br /> Agreement or any of the terms or provisions hereof, or the right or power of <br /> Licensor to execute and enforce same. <br /> ARTICLE III <br /> It is mutually agreed by and between parties, as follows: <br /> 1. (a) Repairs and Relocation: Licensee will at all times <br /> maintain the Drainage Structure in a safe and secure manner, and in a <br /> condition satisfactory to Licensor. Licensor may request Licensee to make <br /> reasonable repairs as in the judgment of Licensor shall be deemed necessary <br /> to avoid interference with or danger in the use or operation of Licensor's <br /> railroad, or any of its present or future appurtenances, or telegraph, <br /> telephone, signal or other lines on Licensor's right of way, and in the <br /> event it is found necessary for Licensor to use its entire right of way, or <br /> any portion of it occupied by the Drainage Structure, Licensee shall at its <br /> sole expense, and within thirty (30) days after notice so to do, (or upon <br /> shorter notice in case of emergency), remove as much of the Drainage <br /> Structure as is located upon that portion of the right of way so required by <br /> Licensor. <br /> (b) If Licensee shall fail to perform any of its obligations <br /> contained in this agreement to the maintenance of safe conditions in and <br /> about said Drainage Structure on Licensor's property or to make any <br /> necessary repairs, or to relocate said Drainage Structure then Licensor may <br /> cause such condition to be made safe, or change of location to be made, or <br /> repairs to be made, Licensor acting as the agent of Licensee, and may <br /> perform such work as is necessary in the judgment of Licensor, and Licensee <br /> shall, on demand, promptly reimburse Licensor the whole cost thereof, plus <br /> ten (10%) per cent thereon as a charge for supervision, accounting, and use <br /> of tools; or Licensor may terminate this License by giving to Licensee not <br /> less than thirty (30) days' advance written notice of its intention so to <br /> do. <br />