|
ARTICLE 11.
<br />Licensee undertakes and agrees:
<br />1. Specifications: To install said Crossing according to the specifications of the American Railway Engineering
<br />Association Part 5, Pipelines. The Crossing shall be laid and maintained at the sole cost of Licensee, and in a manner and with
<br />material satisfactory to Liccnsor's Chief Engineer, with its top at (cast five and one-half (51/2) feet beneath the base of the rail under
<br />t rack, and at least three (3) feet below the surface of the ground elsewhere, so it will not interfere with the safe operation of said
<br />oad or cause damage to Licensor's property. Said pipe line shall be encased in a larger pipe where it passes under any railroad
<br />t , and for at least twenty-five (25) feet on each side of the center line of any such track.
<br />2. Present Occupants: To make appropriate arrangements with any person or legal entity occupying the premises
<br />affected hereby pursuant to a lease or other permission granted by Licensor, so that Licensee's said Crossing will not unreasonably
<br />interfere with the use of the subject property, or create undue hardship on the person or legal entity occupying the premises.
<br />3. Liability: Licensor shall not be liable for any damage to said Crossing or the contents thereof, howsoever such damage
<br />shall be caused, whether by the negligence of Licensor, its agents, employees, or otherwise.
<br />Licensee assumes the risk of, and shall protect, indemnify and hold harmless Licensor from and against all liability for or
<br />on account of injury to or death of any and all persons or damage to property, including livestock killed or injured, resulting from
<br />or incident to the construction, maintenance, use, operation, relocation, reconstruction or existence of said Crossing on Licensor's
<br />premises, or the removal thereof from said premises, or to the restoration of or failure to restore said premises to their prior or
<br />other condition as herein provided, whether such injury, death or damage shall be caused or contributed to by the negligence of
<br />Licensor, its agents, employees or otherwise, and Licensee will protect, indemnify and hold harmless Licensor and any others
<br />legally using its right of way, from all claims, demands, suits or actions growing out of any such loss, injury or demands, including
<br />investigation costs, court costs, and attorneys' fees resulting or in any manner arising from the risks herein assumed by Licensee.
<br />Licensee further agrees to immediately investigate any such claims, demands, or suits and shall defend, settle, and/or otherwise
<br />dispose of the same at its sole cost and expense. In the event Licensee settles any such claims, demands, or suits, it shall obtain a
<br />release which includes Licensor.
<br />Licensee shall not have or make against Licensor any claim or demand for or on account of any damage Licensee may
<br />suffer or sustain because of any failure of Licensor's title to the right of way and lands occupied by said Crossing or any part
<br />thereof.
<br />4. Waiver: To waive all right to question the validity of this License or any of the terms or provisions hereof, or the right
<br />or power of Licensor to execute and enforce the same.
<br />C.
<br />ARTICLE 111.
<br />It is mutually agreed by and between the parties, as follows:
<br />1.(a) Repairs and Relocation: Licensee will at all times maintain the Crossing in a safe and secure manner, and in a
<br />condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Crossing, or any part thereof, or to
<br />make reasonable repairs as in the judgement of Licensor shall be deemed necessary to avoid interference with or danger in the use
<br />or operation of Licensors railroad, or any of its present or future appurtenances, or telegraph, telephone, signal or other lines on
<br />l.iccnsor s right of way, and in the event it is found necessary for Licensor to use its entire right of way, or any portion of it occupied
<br />by the Crossing, Licensee shall at its sole expense, and within thirty (30) days after notice so to do, (or upon shorter notice in case of
<br />emergency), remove said Crossing, or as much of the Crossing 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 contained in this agreement to the maintenance of safe
<br />conditions in and about said Crossing or as to the protection of wires from electrical interference on Licensor's property or. to make
<br />any necessary repairs, or to relocate said Crossing, then Licensor may cause such condition to be made safe, or change of location
<br />to be made, or repairs to be made, or Crossing to be removed from Licensors property, Licensor acting as the agent of Licensee.
<br />and may perform such work as is necessary in the judgement of Licensor, and Licensee shall, on demand, promptly reimburse
<br />Licensor the whole cost thereof, plus ten (10%) per cent thereon as a charge for supervision, accounting, and use of tools; or
<br />Licensor may terminate this License by giving to Licensee not less than ten (10) days' advance written notice of its intention so to
<br />do.
<br />2. Termination: Licensor may terminate this License upon ten (10) days' written notice if Licensee fails to keep any of
<br />Licensee's covenants herein contained, or if the right of way is required for other purposes by Licensor, and no reimbursement
<br />shall be made for Licensee's expenses incurred in the removal of this crossing or the consideration paid for this License. No
<br />termination or expiration shall affect the rights and liabilities, if any, of the parties hereto then existing.
<br />3. Restoration: Upon the termination of this agreement, whether in accordance with the provisions of Paragraph I of
<br />Article 1, or Paragraph 2 or 4 of Article 111, or otherwise, Licensee shall promptly remove said Crossing from Licensor's right of
<br />way, and restore said right of way to its prior condition, or to a condition satisfactory to Licensor. If Licensee shall fail to remove
<br />said Crossing within thirty (30) days after the termination of this agreement, Licensor may remove the same, and charge the
<br />expense therefor to the Licensee on the basis provided in Paragraph 1(b) of Article Ill.
<br />-2-
|