20210426 Private Road Crossing Agreement #CARR210112469

Form Approved 9i2020
Private Grade Crossing License No,CARR210112469
LICENSE AGREEMENT FOR PRIVATE GRADE CROSSING
This Agreement(the"Agreement") is made this / day of 14Prz=1- , 2021 ("Effective
Date") by and between Chesapeake & Albemarle Railroad Co., Inc., a division of North Carolina &
Virginia Railroad, LLC ("LICENSOR"), whose address is CIO Genesee &Wyoming Railroad Services,
Inc., 13901 Sutton Park Dr. South, Suite 160, Jacksonville, FL 32224 and APVA, LLC (hereinafter
"LICENSEE"), whose address is 417 Caratoke Highway, Unit D, Moyock, NC 27958.
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 new grade crossing for access to land owned by LICENSEE, such use to include the
necessary appurtenances and other related fixtures, equipment, marker posts, draining facilities or electric
power for signals & 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 29.3542, Main
Subdivision, City of Moyock, County of Currituck, State of North Carolina. 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
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Fonn Approved 9/2020
Private Grade Crossing License No-CARR2 101 1 2469
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
$1,500.00 per year as the minimum annual fee ("Annual Fee"), paid in advance. 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 $800.00 per year as a minimum annual maintenance fee
("Maintenance Fee") paid in advance. 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 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
NDEMNITEES") 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.
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Form Approved%2020
Private Grade Crossing License No.CARR210112469
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
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 LICENSER'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 home by LICENSEE.
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 terns,
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 Representative Roadmaster, Calton Ford, at
252.326.3206 or his designee, at least ninety (90) days prior notice.
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Form Approved 9:2020
Private Grade Crossing License No.CARR210112469
Prior to beginning any construction to Licensee's Facilities or the Crossing, LICENSEE shall also submit
a one-time engineering observation fee of$1,750.00 and a contractor right of entry fee of$1,750.00,
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 Representative Roadmaster, Calton Ford at 252.326.3206 or his
designee, at least ninety(90) days prior notice.
LICENSEE agrees that any installation, maintenance, renewing or removal obligations of LICENSEE
referenced in this Agreement, covers only the requirements and/or specifications of installation,
maintenance, renewing 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
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Form Approved 9,2020
Private Grade Crossing License No.CARR210112469
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.
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 home 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
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Fenn Approved W2020
Private Grade Crossing License No.CARR210112469
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.
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 LICENSER'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.
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Form Approved 9:2020
Private Grade Crossing License No.CARR210112469
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.
IL 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.
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 North Carolina.
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 Currituck County, North Carolina. There shall be a single
arbitrator experienced in railroad matters and transportation law. The arbitrator shall apply North
Carolina 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.
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Form Approved 9.2020
Private Grade Crossing License No.CARR210112469
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.
(Signature Page Follows)
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Form Approved 9r2020
Private Grade Crossing License No CARR210112469
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 26th day of
April 2021.
WITNESS LICENSOR
Chesapeake & Albemarle Railroad Co., Inc., a division of
North Carolina & Virginia Railroad, LLC
_ Mary Cole by: James E. Irvin
its: President
Signed: )
WITNESS LICENSEE
APVA, LLC
by: :INS-fin! 01
its: ^Ae..,
Signed:
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Form Approved 9/2020
Private Grade Crossing License No.CARR210112469
EXHIBIT A
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APVA. LLC
Private Road Crossing Agreement ACARR210112469
24'wide road crossing
Moyock.Currltuck County,North Carolina
Latitude 36.465790,Longitude-76.118584
Main Subdivision-Milepost 29.3542
March 30,2021
Page 10 of 13

Form Approved 9/2020
Private Grade Crossing License No.CARR210112469
EXHIBIT B
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Page I l of 13

Form Approved 9r2020
Private Grade Crossing License No.CARR210Y 12469
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
ofinsurance:
(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.
(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.
(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.
(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:
(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.
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Farm Approved 9Y2020
Private Grade Crossing License No,CARR210112469
(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:
Chesapeake&Albemarle Railroad Co., Inc., a division of North Carolina & Virginia Railroad, LLC
CIO 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.
(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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