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A. The foregoing grant of right is subject and subordinate to the prior and continuing right
<br />and obligation of the Railroad to use and maintain its entire property including the right and power of
<br />Railroad to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks,
<br />roadways, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along
<br />or across any or all parts of its property, all or any of which may be freely done at any time or times by
<br />Railroad without liability to Contractor or to any other party for compensation or damages.
<br />B. The foregoing grant is also subject to all outstanding superior rights (whether recorded or
<br />unrecorded and including those in favor of licensees and lessees of Railroad's property, and others) and
<br />the right of Railroad to renew and extend the same, and is made without covenant of title or for quiet
<br />enjoyment.
<br />Section 3. NO INTERFERENCE WITH OPERATIONS OF RAILROAD AND ITS TENANTS.
<br />A. Contractor shall conduct its operations so as not to interfere with the continuous and
<br />uninterrupted use and operation of the railroad tracks and property of Railroad, including without
<br />limitation, the operations of Railroad's lessees, licensees or others, unless specifically authorized in
<br />advance by the Railroad Representative. Nothing shall be done or permitted to be done by Contractor at
<br />any time that would in any manner impair the safety of such operations. When not in use, Contractor's
<br />machinery and materials shall be kept at least fifty (50) feet from the centerline of Railroad's nearest
<br />track, and there shall be no vehicular crossings of Railroads tracks except at existing open public
<br />crossings.
<br />B. Operations of Railroad and work performed by Railroad personnel and delays in the work
<br />to be performed by Contractor caused by such railroad operations and work are expected by Contractor,
<br />and Contractor agrees that Railroad shall have no liability to Contractor, or any other person or entity for
<br />any such delays. The Contractor shall coordinate its activities with those of Railroad and third parties so
<br />as to avoid interference with railroad operations. The safe operation of Railroad train movements and
<br />other activities by Railroad takes precedence over any work to be performed by Contractor.
<br />Section 4. LIENS.
<br />Contractor shall pay in full all persons who perform labor or provide materials for the work to be
<br />performed by Contractor. Contractor shall not create, permit or suffer any mechanic's or materialmen's
<br />liens of any kind or nature to be created or enforced against any property of Railroad for any such work
<br />performed. Contractor shall indemnify and hold harmless Railroad from and against any and all liens,
<br />claims, demands, costs or expenses of whatsoever nature in any way connected with or growing out of
<br />such work done, labor performed, or materials furnished. If Contractor fails to promptly cause any lien to
<br />be released of record, Railroad may, at its election, discharge the lien or claim of lien at Contractor's
<br />expense.
<br />Section 5. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
<br />A. Fiber optic cable systems may be buried on Railroad's property. Protection of the fiber
<br />optic cable systems is of extreme importance since any break could disrupt service to users resulting in
<br />business interruption and loss of revenue and profits. Contractor shall telephone Railroad during normal
<br />business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except holidays) at
<br />1-800-336-9193 (also a 24-hour, 7 -day number for emergency calls) to determine if fiber optic cable is
<br />buried anywhere on Railroad's property to be used by Contractor. If it is, Contractor will telephone the
<br />telecommunications company(ies) involved, make arrangements for a cable locator and, if applicable, for
<br />relocation or other protection of the fiber optic cable. Contractor shall not commence any work until all
<br />such protection or relocation (if applicable) has been accomplished.
<br />b. In addition to other indemnity provisions in this Agreement, Contractor shall indemnify,
<br />defend and hold Railroad harmless from and against all costs, liability and expense whatsoever
<br />(including, without limitation, attorneys' fees, court costs and expenses) arising out of any act or omission
<br />Ex. B
<br />Subsidence Agreement TMC -UP
<br />DEC -1781676-9
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