2016-01-26_REVISION - C1982056 (2)

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standard rate of $13.74 per train mile shall apply. If TMC or a third party on TMC's behalf transports any equipment on Railroad's tracks, any such charge would be direct billed to TMC as a Project cost; j. Expenses incurred by Railroad in the use of outside engineering or consulting firms to perform work and/or to review/monitor TMC's work regarding prediction of subsidence, survey work or other professional engineering services; and k. Any other expenses incurred in repair of track, roadway crossing panels or approaches, signal and/or communication facilities or any other equipment or facilities to the extent attributable to the subsidence. The standard additive rates set forth above shall be subject to upward or downward adjustment based on industry standards and practices, and the parties acknowledge and agree that any such adjustment to standard additive rates may be made retroactively. During the Term, Railroad shall be solely responsible for the costs and making of all repairs to the Energy Spur, except to the extent such repairs are necessitated by subsidence caused or exacerbated by the Project. TMC shall be responsible for the cost of all repairs made by Railroad to the extent necessitated by subsidence caused or exacerbated by the Project, all in accordance with this Agreement. In connection with any such repairs made by Railroad, which are to be at the sole cost and expense of TMC as set forth in this Agreement, Railroad shall prepare and submit to TMC an itemized bill/invoice using Railroad's standard and customary billing form and processes for any such work done by Railroad, in terms of labor, rental equipment and materials associated with such work, and TMC shall have thirty (30) days after receipt of each said bill/invoice to either challenge same or to reimburse Railroad for the amount so specified. All repairs shall be done in an efficient and workmanlike manner by Railroad. TMC shall not be obligated to make or pay for any repairs to Railroad's Energy Spur to the extent due to the sole negligence or gross negligence or willful misconduct of Railroad or its agents, employees or invitees. In accordance with Section 4(k) below, the parties shall inspect on an annual basis the portion of the Energy Spur affected by the Project for a period of two (2) years after expiration of the Term, and TMC will reimburse Railroad for any and all repairs that may be required to return any such section of the Energy Spur to its original or an otherwise acceptable profile. Except as otherwise expressly stated in this Agreement, upon expiration of the Term, all obligations to repair the Energy Spur, including all liability for such repairs, will be borne by Railroad at its sole cost, risk and expense, except to the extent the repairs can be shown to be necessitated by additional subsidence caused or exacerbated by the Project. 4. Responsibilities. a. In connection with the Project, TMC shall take a proactive approach with respect to any subsidence impacts and shall make advance preparations to mediate such impacts (e.g., pre -humping/ pre -ballasting) prior to undermining a section of the Energy Spur by a particular Longwall Panel in the Wolf Creek Seam. In furtherance of such 3 Subsidence Agreement TMC -UP DEC -1781676-9