A00804-613295.pdf

Massachusetts Department Of Transportation Highway Division Proposal No. 613295-133722

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DOCUMENT A00804

RAILROAD GRADE CROSSING

APPLICATION AND LICENSE AGREEMENT

FOR PRIVATE GRADE CROSSING

Massachusetts Department Of Transportation Highway Division Proposal No. 613295-133722

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THIS PAGE INTENTIONALLY LEEFT BLANK

Proposal No. 613265-133722

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Applicant Contact Name & Title:

Telephone Number: Email Address:

Emergency Telephone Number:

State of Incorporation or

Name:

Telephone Number: Email Address:

APPLICATION FOR ROADWAY ON RAILROAD PROPERTY OR RAILROAD CROSSING

Genesee & Wyoming Railroad Services, Inc.

Real Estate Department, 13901 Sutton Park Dr., S, Suite 270, Jacksonville, FL 32224

Type of Entity:

*If other please explain:

Emergency Contact (in case of derailment or fallen/wire pole etc.):

Contact during Application Process:

Applicant Overnight Address:

Section 1 - Applicant Data

Incomplete or Inaccurate Information will delay application request

Applicant Mailing Address:

Complete Legal Name of Applicant to appear on License Agreement (Facility Owner):

Accounts Payable Address:

Corporation Partnership Sole Proprietor Individual

Municipality Developer Other*

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Railroad Name:

Estimated Start

Date

Nearest City: County: State:

Railroad Subdivision - if known

If Temporary, Estimate Time Needed:

Facility Type:

Section 2 - Location Data

REQUIRED: Latitude/Longitude (Convert to Decimal Format) (ex 12.3456789/-64.101112):

If use of existing crossing/roadway please provide agreement number:

Address of proposed worksite (city, state and zip code):

Section 4 - Crossing Specifications

Use of Facility

If Other or revision to existing facility please explain (Required):

Section 3 - Facility Type

US DOT/AAR Crossing Number - if available

Angle Crossing will Cross Tracks:

(90 degrees preferred)

Length of Crossing on Railroad Right-of-Way

Is Crossing/Road to be Permanent or Temporary?

Number of Property Owners Crossing/Roadway will serve:

Width of Crossing on Railroad Right-of-Way:

Number of Trips over Crossing/Roadway Per Day

Material to be Used:

Crossing Crossing & Roadway Parallel Roadway

New Crossing Existing Crossing Relocate New Roadway Existing Roadway Other

Individual Access Farm Access Commercial Access Construction Access Public Use

Pedestrian Underpass Pedestrian Overpass Residential Development

Other

Commercial Development

Permanent Es N

N b f

Temporary

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If so, where:

Existing Agreement

Will crossing/roadway be utilized by single or multiple parties? Please explain in detail:

Does applicant have another crossing in vicinity?

Material to be Used:

General Purpose of Crossing/Roadway:

Section 6 - Purpose of Crossing/Roadway

Length of Roadway on Railroad Right-of-Way:

If the land accessed by crossing/roadway will be subdivided, please explain in detail:

If Applicant holds any Existing Agreements List Agreement Numbers and attach copies of each existing Agreement:

Width of Roadway on Railroad Right-of-Way:

Distance from Center of Parallel Roadway to Nearest Track:

Section 5 - Roadway Specifications

Yes No

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Insurance Requirements prior to any construction project - Both the Utility Owner and the Contractor completing installation are required to provide proof of current Commercial General Liability Insurance. Prior to construction the Contractor is required to provide current proof of Railroad Protective Liability Insurance.

Materials and installations are to be in strict accordance with specifications of National Electrical Safety Code, AREMA, current edition, and requirements of the Railroad.

Plans for proposed installation of a new crossing shall be submitted to and approved by the Railroad on behalf of itself, its subsidiaries and affiliates and designated engineer before work can begin!! Material and installation are to be in strict accordance with Railway engineering specifications.

1. Applicant agrees to sign the Railroads standard Crossing or Roadway Agreement, which will provide that the applicant will perform all grading of approach roads and install culvers and gates to meet Railroad engineering standards.

IMPORTANT!

This section must be completed in full, signed and dated prior to submittal to the Real Estate Department for processing, Incomplete or Inaccurate Information will delay application request and may incur additional fees. Unsigned applications will be returned to the applicant for signature.

Section 7 - Insurance Requirements - US Roads

2. To reimburse railroad for any cost incurred by Railroad incident to the installation, maintenance and/or supervision necessitated by the installation, altering pole line if required and removing the crossing or roadway and gates if the crossing is temporary or if the Agreement is later cancelled.

Prior to Construction or any access within 50' of Railroad a current Certificate of Railroad Protective Liability insurance (RPL) which shows the specific Railroad as named Insured. If the Contractor does not carry a policy of Railroad Protective Liability insurance, this coverage can be secured through the railroad. An application and current Fee structure for this coverage is available upon request.

3. To furnish liability insurance as required by Railroad in which applicant will assume all liability for accidents or injuries that arise as a result of this application.

4. Applicant will be responsible for keeping gates closed, rail flange ways free of obstruction and vegetation, cut in all four quadrants. Application will attach a location sketch showing pertinent details and a North arrow.

Upon application approval, applicant agrees to reimburse Railroad for any cost incurred by Railroad incident to the installation, maintenance and/or supervision necessitated by the installation. Applicant further agrees to assume all liability for accidents or injuries that arise as a result of this installation.

General Liability insurance must meet the minimum requirements of $2M per occurrence and $6M aggregate per the terms of the written contract.

The General Liability certificate is required to show proof of CG2417 or its equivalent. (Contractual Liability Railroads) Evidence of Workers Compensation must be provided on certificate and meet the minimum requirements of $1M.

Certificate Holder naming (specified Railroad) **Specified Railroad names can be found at www.gwrr.com**

General Liability and Umbrella/Excess Liability provides additional insured status to the certificate holder and any other party(ies) specified in or required by written contract between the named insured and the certificate holder.

Where applicable and permitted by law, all policies include a blanket automatic waiver of subrogation endorsement that provides this feature in favor of the certificate holder and any other party(ies) specified in or required by written contract between the named insured and the certificate holder.

If Application is Approved:

Prior to application submittal, it is recommended that any questions concerning this application should be submitted to the Real Estate Department of Genesee & Wyoming Railroad Services, Inc. All questions or

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Date: Signature:

Phone Number: Printed Name:

Fax Number: Title:

# of Copies Amount Due

$1,000 Completed Road Crossing Application and processing fee.

1 $2,250

1 $1,750 $5,000

Please make check payable to the Railroad in question. W-9 information available upon request.

Completed Contractor's Access/Occupancy Application and Fee.

Description

This section must be completed in full, signed and dated prior to submittal to the Real Estate Department for processing, Incomplete or Inaccurate Information will delay application request and may incur additional fees. Unsigned applications will be returned to the applicant for signature.

General Liability and Umbrella/Excess Liability provides additional insured status to the certificate holder and any other party(ies) specified in or required by written contract between the named insured and the certificate holder.

Genesee & Wyoming Railroad Services, Inc.

Real Estate Department

13901 Sutton Park Dr., S., Suite 270 Jacksonville, FL 32224

In order for the application to be complete ALL required details pertinent to the proposed installation must be completed in full and submitted along with the following non-refundable fees:

Standard Application processing takes approximately 6-8 weeks. Incomplete application and plans not meeting engineering specifications will cause a delay in the processing of applications.

Current utility specifications and checklist can be found the in the application packet.

Mail the application for proposed project, in duplicate along with the applicable non-refundable fee(s) in U.S. Funds (Canadian Applicants please pay in Canadian Funds plus HST) to:

Engineer review fee, plans/drawings, no larger than 11 x 17. Larger drawings may incur additional engineering fees.

Contact Email Address:

Where applicable and permitted by law, all policies include a blanket automatic waiver of subrogation endorsement that provides this feature in favor of the certificate holder and any other party(ies) specified in or required by written contract between the named insured and the certificate holder.

Section 8 - Insurance requirements - Canadian Roads Insurance Requirements prior to any construction project - Both the Utility Owner and the Contractor completing installation are required to provide proof of current Commercial General Liability Insurance.

General Liability insurance must meet the minimum requirements of $2M per occurrence and $2M aggregate per the terms of the written contract.

Where applicable, the General Liability certificate is required to show proof of CG2417 or its equivalent.

(Contractual Liability Railroads) Evidence of Workers Compensation must be provided on certificate and meet the minimum requirments of $1M.

Certificate Holder naming (specified Railroad) **Specified Railroad names can be found at www.gwrr.com**

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Entering or working on the railroad right of way or any other railroad property without the permission of the railroad is trespassing and illegal. Violators risk the possibility of serious, even fatal injury and will be prosecuted.

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Form Approved: 10/2022 Private Grade Crossing License No. [AGREEMENT NUMBER]

LICENSE AGREEMENT FOR PRIVATE GRADE CROSSING

This Agreement (the “Agreement”) is made this day of , 20__ (“Effective Date”) by and between [RAILROAD NAME] (“LICENSOR”), whose address is [RAILROAD ADDRESS] and [USER NAME] (hereinafter “LICENSEE”), whose address is [LICENSEE ADDRESS].

WHEREAS, for valuable consideration as outlined herein, the receipt of which is hereby acknowledged, LICENSOR desires to grant to LICENSEE a license for a private grade crossing across LICENSOR’S rail line as specifically described herein and shown on Exhibit A attached hereto (the “Crossing”); and

WHEREAS, the parties have reached accord concerning the terms and conditions for LICENSEE’S [exclusive] use of the Crossing and desire to reduce them to writing.

NOW, therefore, for and in consideration of the premises and mutual covenants and agreements contained herein, the parties agree as follows:

1. CROSSING

Said Crossing to be located and described as follows:

[Exclusive] use of [existing/new] grade crossing for access to land [owned/leased] by LICENSEE, such use to include the necessary appurtenances and other related fixtures, equipment, marker posts, draining facilities or electric power for signals and cross arm, if any ( “Licensee’s Facilities”), as shown on LICENSEE’S Exhibit A attached hereto and made a part hereof.

LICENSEE’S Facilities are subordinated to all matters of record. LICENSOR reserves the right to use the area three (3) feet below ground level of Licensee’s Facilities and to enter Licensee’s Facilities for construction and maintenance of LICENSOR’S rail line.

LICENSOR hereby grants to LICENSEE, insofar as it has the legal right and its present title hereby permits, the right to use said Crossing, over the rail line of the LICENSOR at milepost [MILEPOST], City of [CITY], County of [COUNTY], State of [STATE]. The Crossing shall be located in exact accordance with Exhibit A and no departure shall at any time be made therefrom except upon receipt of prior written approval of LICENSOR.

LICENSEE agrees that the continued use of the Crossing as provided herein shall be subject to LICENSEE’S compliance with the terms and conditions of this Agreement. Upon default LICENSOR, its successors or assigns, may, in its sole discretion, terminate this Agreement and order the removal of the Crossing.

2. PRIVATE USE

The use of the Crossing shall be private and no other use shall be made by anyone under, across, upon and/or over the Crossing herein described without obtaining the prior written permission of LICENSOR, except by LICENSEE, its officers, employees, agents and other persons having business or visiting with LICENSEE. LICENSOR shall, as it deems appropriate from time to time, have the ability to access and operate on its rail line over the Crossing. No lease, assignment of any type, transfer, or conveyance of real property is intended by this Agreement.

3. PAYMENT, FEE, MAINTENANCE FEES AND TAXES

Said Agreement and continued use of the Crossing is granted contingent upon payment to LICENSOR of $[DOLLAR AMOUNT] per year as the minimum annual fee (“Annual Fee”). LICENSEE shall have no right of refund for any cause whatsoever in regard to Annual Fee payments paid to LICENSOR, which amount shall be payable on an annual basis, and due in advance no later than each anniversary of the Effective Date.

[LICENSEE shall also pay LICENSOR a sum (TO BE DETERMINED BY USAGE) per year as a minimum maintenance fee (“Maintenance Fee”). LICENSEE shall have no right of refund for any cause whatsoever with respect to the Maintenance Fee payments made to LICENSOR except in the event LICENSOR terminates this Agreement without cause. The Maintenance Fee shall be payable on an annual basis, and due in advance no later than each anniversary of the Effective Date.] In the event this Agreement is terminated without cause by LICENSOR, LICENSOR shall refund to the LICENSEE the unearned portion of the Maintenance Fee paid in advance, prorated on a monthly basis. LICENSOR reserves the right to adjust the Annual Fee [and

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Maintenance Fee] on each anniversary date of this Agreement, or at such other times as conditions warrants. Billing or acceptance by LICENSOR of any Annual Fee [or Maintenance Fee] shall not imply a definite term or otherwise restrict either party from canceling this Agreement as herein provided.

At no time shall the Annual Fee [or Maintenance Fee be less than those fees payable as of the Effective Date of this Agreement.

LICENSEE, , SHALL ASSUME AND PAY ANY AND ALL TAXES AND ASSESSMENTS WHICH MAY BE LEVIED UPON THE LICENSEE’S FACILITIES, AND LICENSEE SHALL INDEMNIFY, DEFEND, AND HOLD LICENSOR, ITS PARENTS, AFFILIATES AND SUBSIDIARIES, AND THE RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS AND EMPLOYEES OF EACH (HEREINAFTER COLLECTIVELY THE “LICENSOR INDEMNITEES”)

HARMLESS THEREFROM.

This Agreement shall continue in force indefinitely from and after the Effective Date, subject, however, to the right of either party to terminate this Agreement at any time, upon giving the other party thirty (30) days’ notice in writing of its desire to terminate this Agreement. Notwithstanding the foregoing, in the event that the use as set forth in Section 1 above (1) materially changes, (2) terminates or (3) Licensee’s Facilities are removed, this Agreement shall automatically terminate.

Within thirty (30) days from the date of the termination notice, LICENSEE agrees at its own risk and expense to remove Licensee’s Facilities, or such portion thereof as LICENSOR shall require removed, and to restore the Crossing to a neat and safe condition as LICENSOR shall require and in a condition satisfactory to LICENSOR. If LICENSEE shall fail to do so within said time, LICENSOR shall have the right, but not the duty, to remove and restore the same, at the risk and expense of LICENSEE.

Said restoration shall include, but not be limited to, any and all harm, damage or injury done to LICENSOR’S property and/or to any other public or private property by acts or occurrences subject to Federal, State or local environmental enforcement or regulatory jurisdiction, and shall include necessary and appropriate testing and cleanup.

Upon termination of this Agreement and use of the Crossing for any reason, all structures and alterations shall be removed from LICENSOR’S rail line and said property shall be returned to a physically and environmentally whole condition to the satisfaction of LICENSOR’S designated Officer or Representative, all at the sole cost and expense of LICENSEE. LICENSOR may, at LICENSOR’S sole discretion, during the removal of Licensee’s Facilities, require LICENSEE to conduct an environmental appraisal and report of the property formerly occupied by Licensee’s Facilities. All reports shall be prepared by a LICENSOR approved environmental consultant, to determine if any property has been environmentally impacted by Licensee’s use of the Crossing. All environmental reports, which are prepared subject to this clause, shall be immediately available to LICENSOR by LICENSEE, if so requested. This clause shall survive termination of this Agreement.

This Agreement and the rights granted herein may not be transferred, assigned or sublet to another party not a signatory hereto without the prior written approval of LICENSOR. Upon approval by LICENSOR, LICENSEE shall satisfy any applicable transfer of rights or assignment fees in effect at that time.

4. CONSTRUCTION

[NOTE: THESE CLAUSES ARE APPLICABLE ONLY IF CONSTRUCTION IS REQUIRED TO ESTABLISH LICENSEE’S FACILITIES. IF NOT APPLICABLE, DELETE AND KEEP REST OF SECTION 4 IN.] All materials and construction work required to construct, install or establish Licensee’s Facilities shall be furnished and performed by LICENSOR at the sole risk, cost and expense of LICENSEE. LICENSEE shall paint appropriate highway warning markings on approaches to the Crossing.

The Crossing shall also include adequate drainage facilities necessary or appropriate for the prevention of ponding and/or flooding or any other kind of water damage in the general area where Crossing is located. Said drainage facilities shall be installed, if necessary, by LICENSEE at its sole risk, cost and expense.

If required by LICENSOR, LICENSEE at its sole cost and expense, shall, upon completion of the construction and installation of said Licensee’s Facilities, furnish LICENSOR with a survey drawing, showing the final exact location of said Crossing and Licensee’s Facilities as constructed. The survey drawing shall indicate LICENSOR’S survey valuation station which said installation is located, and/or the position of Licensee’s Facilities in relation to the center line of the track and/or the centerline of the closest public street crossing said track(s). Said survey drawing shall be attached to this Agreement as Exhibit B and made a part hereof.

Licensee’s Facilities shall be installed to the satisfaction and approval of LICENSOR’S Engineer and all costs of LICENSOR’S Engineer and other technicians or professional consultants as may be required from time to time shall be borne by LICENSEE.]

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In the event LICENSEE shall at any time desire to make changes in the physical or operational characteristics of said Crossing or Licensee’s Facilities, LICENSEE shall first secure in writing, the consent and approval of LICENSOR. All renewals, changes or additional construction after Licensee’s Facilities have initially been constructed shall be authorized only after an additional CONTRACTOR RIGHT OF ENTRY AGREEMENT is approved and executed by LICENSOR. LICENSEE agrees that such changes shall be made at LICENSEE’S sole risk, cost and expense and subject to all the terms, covenants conditions and limitations of this Agreement.

Any construction work set forth in this Section 4 requires LICENSOR’s prior consent, which shall be obtained by LICENSEE providing LICENSOR’S Roadmaster [INSERT RR CONTACT NAME] at [INSERT PHONE NUMBER] or his designee, at least ninety (90) days prior notice.

Prior to beginning any construction to Licensee’s Facilities or the Crossing, LICENSEE shall also submit a one-time engineering observation fee of $1500.00 and a contractor right of entry fee of $1500.00, which will cover a separate agreement known as

CONTRACTOR RIGHT OF ENTRY AGREEMENT.

LICENSEE hereby agrees to reimburse LICENSOR for any and all expenses LICENSOR may incur or be subjected to, or in consequence of, the planning, negotiation, installation, construction, location, changing, alteration, relocation, operation or renewal of said Crossing and Licensee’s Facilities, within thirty (30) days after receipt of LICENSOR’S invoice for payment.

5. MAINTENANCE

LICENSEE shall at all times keep the Crossing and the flangeways in the Crossing free and clear of dirt, ice, snow, and debris, and shall in any event promptly, upon notice from LICENSOR, perform the above work (“Ordinary Course Maintenance Work”).

LICENSOR, for the purpose of protecting and safeguarding its property, traffic, employees or patrons, may at any time, with or without prior notice to LICENSEE, perform Ordinary Course Maintenance Work on the Crossing and the flangeways in the Crossing and thereafter, bill LICENSEE in accordance with the billing terms set forth herein for all such costs and expenses incurred by LICENSOR. LICENSEE shall be solely responsible for the cost of any delay in the movement of trains resulting from Licensee’s failure to perform the Ordinary Course Maintenance Work and shall promptly pay any invoices rendered by LICENSOR for such costs.

LICENSEE when performing any Ordinary Course Maintenance Work shall be responsible to ensure that people, equipment, and materials are kept a safe distance away from the tracks on the approach or any moving equipment on the tracks.

LICENSEE shall also be responsible for maintaining the structural integrity of the Crossing and the flangeways, including but not limited to the condition of the asphalt at the Crossing and any gravel for grading purposes (“Structural Maintenance Work”), provided, that any Structural Maintenance Work requires the prior written consent of LICENSOR and LICENSOR reserves the right to perform the Structural Maintenance Work in its sole discretion at LICENSEE’s sole cost and expense.

Any Structural Maintenance Work requires LICENSOR’s prior consent, which shall be obtained by LICENSEE providing LICENSOR’S Roadmaster [INSERT RR CONTACT NAME] at [INSERT PHONE NUMBER] or his designee, at least ninety (90) days prior notice.

LICENSEE agrees that any installation, maintenance, renewal or removal obligation of LICENSEE referenced in this Agreement covers only the requirements and/or specifications of installation, maintenance, renewal or removal. Any said reference shall not be construed as LICENSOR’S permission or authority for LICENSEE to enter LICENSOR’S property without first obtaining a CONTRACTOR RIGHT OF ENTRY AGREEMENT from LICENSOR, and fulfilling the requirements contained therein.

6. MAINTENANCE OF RIGHT OF WAY

In the event LICENSOR shall be required, or may desire at any time, or from time to time, to change the grade or location of any of its tracks or facilities, or to remove, construct or add to any of its tracks or facilities, then LICENSOR shall, at the sole cost and expense of LICENSEE, make such adjustments or relocations in the Crossing and Licensee’s Facilities which may, in the opinion of LICENSOR, be necessary and bill LICENSEE for such costs and expenses in accordance with the terms of Section 8 on BILLING hereof. In the event any of the work provided for in this section requires the adjustment or relocation of Licensee’s Facilities not located on LICENSOR’S property, then LICENSEE, shall, at its sole cost and expense, promptly make all required adjustments and relocations to Licensee’s Facilities so affected.

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LICENSOR shall have the paramount right at all times to use its track(s), right-of-way and property at the Crossing. LICENSEE shall exercise the greatest care in the use of the Crossing and shall require all others permitted under Section 2 hereunder to use the Crossing to also exercise the greatest care in the use of the Crossing and yield at all times to trains operating over it.

7. CROSSING PROTECTION

Sole responsibility for protecting the Crossing from the standpoint of safety and policing the Crossing shall rest exclusively on LICENSEE at all times and under all circumstances. LICENSEE shall erect, maintain, and renew appropriate signs, or notices, satisfactory to LICENSOR setting forth the fact that the Crossing is private and shall take whatever further steps as deemed necessary to prevent unauthorized persons from entering upon or using the Crossing for any purposes whatsoever.

LICENSOR may at any time install, maintain and renew railroad – highway grade crossing signs, and LICENSEE shall pay all costs and expenses of the installation, maintenance and renewal thereof in accordance with the terms of Section 8 herein.

LICENSEE shall, at its sole risk, cost and expense, erect, maintain, repair and renew appropriate lock-type gates on both sides of the Crossing satisfactory to LICENSOR, which shall be suitably situated and kept closed and locked at all times when the Crossing is not in actual use.

If deemed necessary by LICENSOR or any Federal, State, or Municipal authority or other governing body, to install automatic warning devices at the Crossing, said automatic warning devices shall be installed, maintained and ultimately removed by LICENSOR at the sole cost and expense of LICENSEE.

In addition to the foregoing, but not in limitation thereof, if at any time LICENSOR should deem crossing flagmen or watchmen desirable or necessary to properly protect its operation near the Crossing, LICENSOR may place flagmen or watchmen at the Crossing and bill LICENSEE for all costs and expenses incurred in placing such flagmen or watchmen. The furnishing or failure to furnish flagmen or watchmen by LICENSOR shall not release LICENSEE from any and all other liabilities assumed by LICENSEE under this Agreement.

8. BILLING

All costs and expenses in connection with the construction, adjustment, alteration, relocation and removal of the Crossing shall be borne by LICENSEE, and in the event of work being performed or material furnished by LICENSOR under the stipulated right to perform such work of construction, adjustment, alteration, relocation or removal under any section here of, LICENSEE shall pay LICENSOR the actual cost of material plus the current applicable overhead percentages for storage, handling, transportation, purchasing and other related materials management expenses and the actual cost of labor plus the current applicable overhead percentage as developed and published by the Accounting Department of Railroad for fringe benefits, payroll taxes, administration, supervision, use of tools, machinery and other equipment, supplies, employers liability insurance, public liability insurance, and other insurance, taxes and all other direct expenses. The aforementioned material and labor overhead charges shall be applied at rate which is effective at the time of the performance of any work by LICENSOR on the Crossing.

LICENSEE shall pay all bills rendered pursuant to this Agreement within thirty (30) days of presentation by LICENSOR.

9. LIABILITY

LICENSOR INDEMNITEES SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE TO THE CROSSING AT ANY TIME WHILE THIS AGREEMENT IS IN EFFECT. IN ADDITION, LICENSEE AND ALL OTHERS PERMITTED

HEREUNDER TO USE THE CROSSING EXPRESSLY ASSUMES ALL RISKS OF PERSONAL INJURY,

INCLUDING DEATH, OR PROPERTY DAMAGE, INCLUDING WITHOUT LIMITATION FROM THE

FOLLOWING CAUSES, ALL OF WHICH LICENESSE AND OTHERS PERMITTED HEREUNDER TO USE THE CROSSING ARE AWARE CONSTITUTE ACTUAL POTENTIAL HAZARDS TO ANY PERSON PRESENT ON OR NEAR THE CROSSING AND/OR THE LICENSOR’S PROPERTY: (A) BEING STRUCK BY A LOCOMOTIVE, FREIGHT CAR, MOTOR VEHICLE OR ANY OF LICENSOR’S EQUIPMENT; (B) SLIPPING AND FALLING FROM MOVING OR STATIONARY LOCOMOTIVES, CABOOSES, FREIGHT CARS OR ANY OF LICENSOR’S EQUIPMENT; (C) SLIPPING AND FALLING BECAUSE OF POOR FOOTING CONDITIONS; (D) BEING STRUCK

BY FALLING OR FLYING OBJECTS; (E) BEING INJURED AS A RESULT OF DEFECTIVELY USED,

MANUFACTURED OR MAINTAINED ROLLING STOCK OR ANY OF THE LICENSOR’S EQUIPMENT.

LICENSEE SHALL INFORM ALL OTHERS PERMITTED HEREUNDER TO USE THE CROSSING THAT SUCH

USERS ASSUME THE AFOREMENTIONED RISKS.

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LICENSEE HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR

INDEMNITEES FROM ANY AND ALL ACTIONS AT LAW, CLAIMS, DEMANDS, LOSSES, DAMAGES, SUITS, FINES, PENALTIES AND LIABILITIES OF EVERY KIND, FOR DEATH, BODILY INJURY, PERSONAL INJURY OR PROPERTY DAMAGE, ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY RESULTING FROM LICENSEE’S ACTIVITIES PERMITTED HEREUNDER, INCLUDING BUT NOT LIMITED TO ITS USE OF THE CROSSING OR LICENSEE’S FACILITIES AND THE EXISTENCE OF LICENSEE’S FACILITIES BY LICENSEE, ITS PERMITTEES, INVITEES OR ANY OTHER PERSON REGARDLESS OF ANY NEGLIGENCE ON THE PART

OF THE LICENSOR INDEMNITEES. THE INDEMNITIES PROVIDED IN THIS AGREEMENT ARE

SPECIFICALLY MEANT TO INCLUDE INDEMNITY OF THE LICENSOR INDEMNITEES FOR THEIR OWN ORDINARY NEGLIGENCE, EVEN IF THE INJURY OR DAMAGE IS CAUSED ENTIRELY BY THE ORDINARY

NEGLIGENCE OF THE LICENSOR INDEMNITEES AND THERE IS NO NEGLIGENCE ON THE PART OF

LICENSEE.

THE PARTIES ACKNOWLEDGE THAT THE USE OF LICENSOR’S PREMISES IS FOR THE SOLE

CONVENIENCE OF LICENSEE AND THAT THE LICENSOR INDEMNITEES SHALL HAVE NO DUTY TO

LICENSEE, ITS OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS TO PROVIDE A REASONABLY SAFE PLACE IN WHICH TO WORK, TO PROVIDE ADEQUATE OR SAFE METHODS AND EQUIPMENT FOR THEIR WORK OR TO INSPECT OR MAINTAIN LICENSEE’S FACILITIES FOR SAID SAFE METHODS AND WORK

EQUIPMENT NOR TO GIVE ANY WARNINGS OR OTHER NOTICES TO LICENSEE’S EMPLOYEES OR

INVITEES REGARDING SAFETY EITHER OF LICENSEE’S FACILITIES AND RELATED WORKPLACE OR LICENSOR’S PROXIMATE RAILROAD OPERATIONS AND THAT ALL SUCH DUTIES SHALL BE ASSUMED BY LICENSEE WHO FURTHER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR

INDEMNITEES FROM ANY AND ALL CLAIMS ALLEGING ANY FAILURE TO PERFORM SAID DUTIES.

LICENSEE’S INDEMNITY OBLIGATIONS OF THIS SECTION 9 SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS AVAILABLE

UNDER WORKERS’ OR WORKMEN’S COMPENSATION ACTS, DISABILITY ACTS OR OTHER EMPLOYEE

BENEFIT ACTS.

WITHOUT PREJUDICE TO THE LICENSOR INDEMNITEES’s LIMIT OF LIABILITY ABOVE, IN NO EVENT SHALL THE LICENSOR INDEMNITEES BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO COST OF CAPITAL, DECLINE IN MARKET VALUE, BUSINESS INTERRUPTION EXPENSES, ATTORNEYS’ FEES AND LOST SALES) OF ANY KIND ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER THE

LICENSOR INDEMNITEES KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE POSSIBILITY OF

SUCH DAMAGES.

10. INSURANCE

LICENSEE, at its expense, shall obtain the insurance described in Exhibit C attached hereto and made a part hereof.

11. GENERAL

This Agreement is intended for the sole benefit of the parties hereto. Nothing in this Agreement is intended or may be construed to give any person, firm, corporation, or other entity, other than the parties hereto and their respective officers, agents, employees, parent corporation, subsidiaries, affiliates, successors, and permitted assigns, any right or benefit pursuant to any provision or term of this Agreement, and all provisions and terms of this Agreement are and will be for the sole and exclusive benefit of the parties to this Agreement.

Any waiver at any time by one party of a breach hereof by the other party will extend only to the particular breach so waived and will not impair or affect the existence of any provision, condition, obligation, or requirement of this Agreement or the right of either party hereto thereafter to avail itself of any rights under this Agreement with respect to a subsequent breach. No provision of this Agreement shall be waived by any act or knowledge of the parties hereto, but only by a written instrument signed by the party waiving a right hereunder.

No provision of this Agreement shall be modified without the written concurrence of the parties hereto. This Agreement includes exhibits appended hereto and represents the entire understanding of the parties hereto, and to that extent supersedes any prior understandings, written or oral.

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The terms of this Agreement have been arrived at after mutual negotiation and, therefore, it is the intention of the Parties that its terms not be construed against any of the Parties by reason of the fact that it was prepared by one of the Parties.

This Agreement will be construed in accordance with the laws of the state of [INSERT STATE WHERE THE CROSSING

IS LOCATED].

Any dispute arising between the parties hereto with respect to any of the provisions hereof which cannot be settled by the parties themselves within thirty (30) calendar days of either party giving the other notice of the dispute shall be settled under the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will be held in Duval County, Florida.

There shall be a single arbitrator experienced in railroad matters and transportation law. The arbitrator shall apply [INSERT SAME STATE AS ABOVE] law to resolve legal matters in dispute. The decision of the arbitrator shall be final and conclusive upon the parties hereto and shall be enforceable in a court of competent jurisdiction.

If any part of this Agreement is determined to be invalid, illegal or unenforceable, such determination shall not affect the validity, legality or enforceability of any other part of this Agreement and the remaining parts of this Agreement shall be enforced as if such invalid, illegal or unenforceable part were not contained herein.

The parties shall not disclose the terms of this Agreement to a third party (a) other than as required by law so long as such party required to disclose the terms of this Agreement under applicable law provides the other party with prior written notice of such requirement, or (b) as otherwise agreed in writing between the parties. Notwithstanding the foregoing, the parties may disclose the terms and conditions of the Agreement to (1) a parent, subsidiary or affiliated company; or (2) to their lawyers and consultants, including but not limited to its auditors, provided that all such parties agree to maintain the confidentiality of such information in accordance with the terms of this provision. If any party violates this paragraph, any adversely affected party may cancel this Agreement without penalty and exercise any available remedies under applicable law.

This Agreement may be executed in any number of counterparts, each of which may be deemed an original for any purpose.

(The Remainder of this Page Left Blank Intentionally.)

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THIS AGREEMENT IS hereby declared to be binding upon the parties hereto.

IN WITNESS WHEREOF, the undersigned have hereunto agreed to the terms above this __________ day of _______________20__.

LICENSOR

[RAILROAD NAME]

by: .

its: .

Signed: .

LICENSEE

[LICENSEE NAME]

by:

its:

Signed:

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EXHIBT A

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EXHIBIT B

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EXHIBIT C

(a) LICENSEE shall, at its own cost and expense, prior to entry onto LICENSEE’s Facilities, procure and thereafter maintain throughout the term of this Agreement the following types and minimum amounts of insurance:

(i) LICENSEE shall maintain Public Liability or Commercial General Liability Insurance (“CGL”), including Contractual Liability Coverage and CG 24 17 “Contractual Liability

– Railroads” endorsement, covering all liabilities assumed by LICENSEE under this Agreement, without exception or restriction of any kind, with a combined single limit of not less than Two Million Dollars ($2,000,000) for Bodily Injury and/or Property Damage Liability per occurrence, and an aggregate limit of not less than Six Million Dollars ($6,000,000) per annual policy period.

Such insurance policy shall be endorsed to provide a Waiver of Subrogation in favor of the LICENSOR INDEMNITEES and shall name the LICENSOR INDEMNITEES as Additional Insureds. An Umbrella or Excess policy may be utilized to satisfy the required limits of liability under this section but must “follow form” and afford no less coverage than the primary policy.

[NOTE: USE THE ABOVE CGL REQUIREMENT IF LICENSEE IS A

CORPORATION/BUSINESS ENTITY. IF LICENSEE IS A PRIVATE HOME OWNER, USE

THE FOLLOWING ALTERNATIVE LANGUAGE:

(i) LICENSEE shall maintain Commercial General Liability Insurance (“CGL”) or Homeowner’s Insurance Coverage, covering all liabilities assumed by LICENSEE under this Agreement, without exception or restriction of any kind, with a combined single limit of not less than Five Hundred Thousand Dollars ($500,000) for Bodily Injury and/or Property Damage Liability per occurrence. Such insurance policy shall be endorsed to provide a Waiver of Subrogation in favor of the LICENSOR INDEMNITEES and shall name the LICENSOR INDEMNITEES as Additional Insureds. An Umbrella or Excess policy may be utilized to satisfy the required limits of liability under this section but must “follow form” and afford no less coverage than the primary policy.]

(ii) LICENSEE shall maintain Commercial Automobile Insurance for all owned, non-owned and hired vehicles with a combined single limit of not less than One Million Dollars ($1,000,000) for Bodily Injury and/or Property Damage Liability per occurrence. Such insurance policy shall be endorsed to provide a Waiver of Subrogation in favor of the LICENSOR INDEMNITEES and shall name the LICENSOR INDEMNITEES as Additional Insureds. [NOTE: IF LICENSEE IS

A CORPORATION/BUSINESS ENTITY, KEEP THIS REQUIREMENT. IF LICENSEE IS A

PRIVATE HOMEOWNER, THIS REQUIREMENT CAN BE DELETED]:

(iii) LICENSEE shall maintain Statutory Workers’ Compensation and Employers’ Liability Insurance for its employees (if any) with minimum limits of not less than One Million Dollars ($1,000,000) for Bodily Injury by Accident, Each Accident; One Million Dollars ($1,000,000) for Bodily Injury by Disease, Policy Limit; One Million Dollars ($1,000,000) for Bodily Injury by Disease, Each Employee. Such insurance policy shall be endorsed to provide a Waiver of Subrogation in favor of the LICENSOR INDEMNITEES. [NOTE: IF LICENSEE IS

A CORPORATION/BUSINESS ENTITY, KEEP THIS REQUIREMENT. IF LICENSEE IS A

PRIVATE HOMEOWNER, THIS REQUIREMENT CAN BE DELETED]:

(iv) Prior to construction within 50’ of the railroad tracks, LICENSEE shall purchase Railroad Protective Liability Insurance naming the LICENSOR INDEMNITEES as the named insureds with limits of Two Million Dollars ($2,000,000) each occurrence and Six Million Dollars ($6,000,000) aggregate limit. The policy shall be issued on a standard ISO form CG 00 35 12 03 or, if available, obtain such coverage from LICENSOR.

(b) The following general insurance requirements shall apply:

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(i) The specified insurance policies must be affected under standard form policies underwritten by insurers licensed in the state where work is to be performed, and carry a minimum Best’s rating of “A-” and size “Class VII” or better. LICENSOR reserves the right to reject as inadequate any insurance coverage provided by an insurer that is rated less than the ratings specified in this section.

(ii) All coverages shall be primary and non-contributory to any insurance coverages maintained by the LICENSOR INDEMNITEES.

(iii) All insurance policies shall be endorsed to provide LICENSOR with thirty (30) days prior written notice of cancellation, non-renewal or material changes.

(iv) LICENSEE shall provide LICENSOR with certificates of insurance evidencing the insurance coverages, terms and conditions required prior to commencement of any activities on or about the Property. Said certificates should reference this Contractor Right of Entry License Agreement by agreement date and description and shall be furnished to LICENSOR at the following address, or to such other address as LICENSOR may hereafter specify:

[INSERT LICENSOR NAME]

C/O Genesee & Wyoming Railroad Services, Inc.

13901 Sutton Park Drive South, Suite 270 Jacksonville, FL 32224

(v) If any policies providing the required coverages are written on a Claims-Made basis, the following shall apply:

(1) The retroactive date shall be prior to the commencement of the work;

(2) LICENSEE shall maintain such policies on a continuous basis;

(3) If there is a change in insurer or policies are canceled or not renewed, LICENSEE shall purchase an extended reporting period of not less than three (3) years after the contract completion date; and

(4) LICENSEE shall arrange for adequate time for reporting of any loss under this Agreement.

(c) LICENSOR may require LICENSEE to purchase additional insurance if LICENSOR reasonably determines that the amount of insurance then being maintained by LICENSEE is insufficient in light of all relevant factors. If LICENSEE is required to purchase additional insurance, LICENSOR will notify LICENSEE. Failure of LICENSEE to comply within thirty (30) days shall be considered a default subject to termination of the Agreement.

(d) Furnishing of insurance by LICENSEE shall not limit the LICENSEE’s liability under this Agreement, but shall be additional security therefor.

(e) The above indicated insurance coverages shall be enforceable by any legitimate claimant after the termination or cancellation of this Agreement, or any amendment hereto, whether by expiration of time, by operation of law or otherwise, so long as the basis of the claim against the insurance company occurred during the period of time when the Agreement was in effect and the insurance was in force.

(f) Failure to provide the required insurance coverages or endorsements (including contractual liability endorsement) or adequate reporting time shall be at LICENSEE’s sole risk.

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(g) If contractors are utilized, LICENSEE agrees to require all such contractors to comply with the insurance requirements of this Exhibit C.

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