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NS File: CX1113040
<br />THIS AGREEMENT, dated as of the day of , 20 is made and entered into by and
<br />between
<br />NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia corporation, whose mailing address is
<br />650 West Peachtree Street NW Atlanta, Georgia 30308 (hereinafter called “RAILWAY”); and
<br />THE CITY OF SOUTH BEND, INDIANA, an Indiana Municipality, by and through its Board of Public
<br />Works, whose mailing address is 227 West Jefferson Boulevard, South Bend, Indiana 46601 (hereinafter called
<br />"LICENSEE”).
<br />RECITALS
<br />WHEREAS, LICENSEE, at its own cost and expense, has found it necessary to reconstruct the existing Olive
<br />Street (DOT# 522741D) vehicular at-grade crossing including the addition of a pedestrian crossing (the “Facilities”),
<br />in the vicinity of RAILWAY Milepost PY-0.99, at or near South Bend, St, Joseph County, Indiana (the “Premises”),
<br />located substantially as shown upon print of Drawing marked Exhibit A; and
<br />WHEREAS, RAILWAY is willing to permit LICENSEE to enter upon RAILWAY’s right of way for
<br />installation, construction, maintenance, operation and removal of the Facilities upon the terms and conditions of this
<br />Agreement; and in accordance with the plans and specifications marked Exhibit B; and
<br />WHEREAS, RAILWAY is willing, at LICENSEE’s sole expense, to make modifications to RAILWAY’s
<br />right of way and/or appurtenances rendered necessary by LICENSEE’s installation, construction, maintenance,
<br />operation and removal of its Facilities in accordance with the force account estimate marked Exhibit D.
<br />NOW THEREFORE, for and in consideration of the premises and mutual covenants contained in this
<br />Agreement, the parties agree as follows:
<br />I.LICENSEE’S FACILITIES
<br />1.Right-of-Entry. RAILWAY, insofar as its rights and title enables it to do so and subject to its rights
<br />to operate and maintain its RAILWAY and RAILWAY appurtenances along, in, and over its right-of-way, grants
<br />LICENSEE, its agents and/or contractors, without compensation, the right to enter upon the Premises, for the purpose
<br />of installation, construction, maintenance, operation and removal of the Facilities, provided that, prior to entry upon
<br />lands of RAILWAY, any agent and/or contractor of LICENSEE must execute and deliver to RAILWAY a standard
<br />contractor right-of-entry agreement in a form approved by RAILWAY in its sole discretion, together with any
<br />certificate(s) of insurance required therein. Furthermore, any crossing of RAILWAY tracks by LICENSEE or any of
<br />its agents and/or contractors must be addressed by a standard temporary crossing agreement in a form approved by
<br />RAILWAY in its sole discretion.
<br />2.Use and Condition of the Premises. The Premises shall be used by LICENSEE only for the
<br />installation, construction, maintenance, operation and removal of the Facilities and for no other purpose without the
<br />prior written consent of RAILWAY, which consent may be withheld by RAILWAY in its sole discretion. LICENSEE
<br />accepts the Premises in their current "as is" condition, as suited for the installation and operation of the Facilities, and
<br />without the benefit of any improvements to be constructed by RAILWAY except insofar as contemplated by Section
<br />II of this Agreement.
<br />3.Construction and Maintenance of the Facilities. LICENSEE shall construct and maintain the
<br />Facilities, at its expense, in such a manner as will not interfere with the operations of RAILWAY or endanger persons
<br />or property of RAILWAY, and in accordance with (a) plans and specifications (if any) shown on said print(s) marked
<br />as Exhibit B and any other specifications prescribed by RAILWAY, (b) applicable governmental regulations or laws,
<br />and (c) applicable specifications adopted by the American RAILWAY Engineering and Maintenance of Way
<br />Association when not in conflict with plans, specifications or regulations mentioned in (a) and
<br />23rd November 21
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