NS RR Activity#1299740 - PCS Phosphate Company Inc Executed Agreement

DocuSign Envelope ID:903BAFB9-056A-4605-AA66-3E9CE1 F1 A252
NORFOLK SOLMHERN
One line,infinite possibilities.
Activity Number: 1299740
THIS AGREEMENT, made and entered into by and between NORFOLK SOUTHERN RAILWAY
COMPANY, a(n) VIRGINIA corporation, hereinafter styled "Railway"; and PCS PHOSPHATE
COMPANY, INC, a(n) DELAWARE corporation, hereinafter styled "Licensee":
WITNESSETH:
THAT the PARTIES HERETO agree as follows:
1. THAT, for and in consideration of the premises, payment of an initial fee of Five Hundred
and 00/100 DOLLARS ($ 500.00), and also an annual fee of Seven Thousand Five Hundred and
00/100 DOLLARS ($ 7,500.00), payable annually in advance during the continuance of this
Agreement, Railway hereby grants unto Licensee, insofar as Railway's title enables it so to do
and without warranty, the right to maintain, use and remove an existing private road crossing,
hereinafter called "Crossing," upon and across, at grade, the right of way or property and track
(whether more than one track) of Railway, located at Milepost WL-23.63, at or near AURORA,
BEAUFORT County, NORTH CAROLINA, NA), located substantially as shown on Exhibit A
attached hereto and made a part hereof.
2. Railway will, for the accommodation of and at the expense of Licensee, perform the work
of maintaining and removing the portion of the Crossing between the rails in said track and to the
outside ends of the crossties on each side thereof, and shall revise, relocate and reconstruct
signal facilities and other railway facilities in such manner as may be necessary to this project.
Licensee will pay to Railway, promptly upon bill rendered therefor, the actual expenditures
incurred by Railway in connection with the maintenance and removal of the Crossing including,
but not restricted to, the expenditures herein expressly described.
3. Licensee will, at the expense of Licensee, maintain and remove the Crossing (except the
portion to be maintained and removed by Railway as aforesaid), including all necessary drainage,
in all respects in accordance with the requirements of Railway looking to the safe and convenient
operation and maintenance of its line of railway.
4. No person other than Licensee, its agents, employees, patrons, or invitees, shall be
permitted to use the Crossing. Licensee hereby agrees that the Crossing shall be a private
crossing only for the use and convenience of Licensee, its agents, employees, patrons, or invitees
and shall not be, or be permitted to become, a highway for the use of the public. To the end of
preventing the use of the Crossing by the public, Licensee will, at its expense, construct and
maintain, at a point to be designated by the Superintendent of Railway or his duly authorized
representative, a signboard clearly indicating that the Crossing is for the private purposes of
Licensee.
5. In each instance when a vehicle approaches the Crossing, it shall stop and shall not
proceed over said track of Railway until the driver has ascertained that no train or other rail
equipment of Railway is approaching the Crossing. To that end, Licensee will, at Licensee's
expense, provide for the installation and maintenance of such information, caution, traffic signs
and barricades, including automatic warning devices, deemed necessary by Railway or required
by any authorized public authority. At Railway's option, such protective devices may be installed
and maintained by Railway at the expense of Licensee. Railway's failure to require protective
signs, barricades or automatic warning devices shall not affect Licensee's liability under the terms
of this Agreement.
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DocuSign Envelope ID:903BAFB9-056A-4605-AA66-3E9CE1 F1 A252
MAW�®
NORFOLK SOUTHERN
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6. Licensee accepts the privilege hereby granted with full cognizance of the risk of loss of
life, personal injury and property loss or damage that may be caused by railway operations at or
in the vicinity of the Crossing and by the construction, maintenance, use or removal of the
Crossing by the Licensee or others. The Licensee is willing to assume this risk and covenants
that the privilege hereby granted shall be used and enjoyed at the sole risk of the Licensee, and
that Railway shall not have any responsibility whatever for any such loss, injury or damage. To
that end, Licensee hereby agrees to indemnify and save harmless Railway, its officers, agents
and employees, from and against all liability, claims, loss, damage, expense (including attorneys'
fees) or costs for personal injuries (including death) and/or property damage to whomsoever or
whatsoever, occurring or arising in any manner from railway operations at or in the vicinity of the
Crossing and by the construction, maintenance, use or removal of the Crossing by the Licensee
or others. The indemnity obligations imposed upon the Licensee by this paragraph shall be
absolute and shall not be affected by the negligence, either primary or contributory, of the Railway
or its officers, agents and employees.
7. In order to contribute toward the safety of train and motor vehicle operations at the
Crossing, Licensee will, at all times during the life of this Agreement, keep the vegetation on its
property cut in such manner and to such extent as is necessary to permit a person approaching
the Crossing from either direction to see approaching trains before such person reaches a position
of danger on or near the Crossing. Licensee also will prevent the erection on its premises of any
structures that would interfere with the view of approaching trains or other rail equipment
operating on said track.
8. (a) Prior to entry on Railway's property or use of the Crossing, Licensee shall procure
and maintain during the life of this Agreement a policy of Commercial General Liability Insurance
with a combined single limit of not less than $2,000,000 per occurrence for injury to or death of
persons and damage to or loss or destruction of property. Such policy shall be endorsed to provide
contractual liability coverage for liability assumed under this Agreement and shall be of a form
that does not deny coverage for operations conducted within 50 feet of any railroad hazard. In
addition, said policy shall be endorsed to name Railway as an additional insured and shall include
a severability of interests' provision.As evidence of said insurance, a certificate of insurance shall
be furnished to and approved by the Risk Manager, Norfolk Southern Corporation, 650 West
Peachtree Street NW Atlanta, GA 30308 prior to entry on Railway's property or use of the
Crossing. The certificate of insurance shall state that thirty (30) days advance written notice will
be given to Railway of any material change in, or cancellation of such insurance.
(b) The insurance coverage required herein shall in no way limit Licensee's liability
under this Agreement.
9. It is specifically understood that the Crossing shall not be permitted to become a public
grade crossing without the written consent of Railway and unless arrangements satisfactory to
the Railway are made for the installation and maintenance of protective devices, without cost or
expense to Railway. If the Crossing should at any time in the future become a public grade
crossing, Licensee shall bear, or shall cause such public authority as may assume responsibility
for said public grade crossing to bear, the cost of furnishing, installing and maintaining automatic
signals, or such other protective devices deemed necessary by Railway to protect said public
grade crossing.
10. Licensee shall not assign this Agreement without the written consent of Railway.
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DocuSign Envelope ID:903BAFB9-056A-4605-AA66-3E9CE1F1A252
NORFOLK SOUTHERN
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11. The word "Railway" as used herein shall include any other company whose property at
the aforesaid location may be leased or operated by Railway. Said term also shall include
Railway's officers, agents and employees, and any parent company, subsidiary or affiliate of
Railway and their officers, agents and employees.
12. Either party hereto may terminate this Agreement at any time hereafter by serving upon
the other thirty (30) days' written notice of election so to do. If Licensee shall violate any of its
covenants herein, Railway may terminate this Agreement forthwith by written notice to Licensee
of its election so to do. At or before the expiration of the time limited by any notice to Licensee of
Railway's election to terminate this Agreement, Licensee will discontinue use of the Crossing and
will restore said right of way or property to the condition existing prior to the use of the Crossing
thereupon or to such condition reasonably acceptable to Railway; or, in default thereof, in addition
to any other legal remedy it may have, Railway may close the Crossing and restore the condition
of said right of way or property at the sole cost and expense of Licensee.
13. Any notice given pursuant to this Agreement shall be in writing and sent by certified mail,
return receipt requested, by hand delivery or by reputable overnight courier to:
(a) Railway: c/o Director Real Estate, Norfolk Southern Corporation, 650 W Peachtree
St NW, Atlanta, GA 30308, or at such other address as Railway may designate in writing
to Licensee.
(b) Licensee: PCS PHOSPHATE COMPANY, INC, 1530 NC HIGHWAY 306 S .
AURORA, NC, 27806, or at such other address as Licensee may designate in writing to
Railway.
Any notice sent in the manner set forth above shall be deemed delivered three (3)days after said
notice is deposited in the mail if sent by certified mail (return receipt requested), or upon receipt
if sent by hand delivery or reputable overnight courier. Any change of notice address by either
party shall be delivered to the other party by the manner of notice required hereby.
14. This Agreement shall take effect as of 11�11 �i � 2—Z
15. Signature, the parties agree that if an authorized officer of a party fully signs this
Agreement in the appropriate location(s) below and then returns that signature to the other party
via electronic means with a pdf or similar scanned copy of that signature, then that scanned
signature shall serve as that party's signature for the Agreement, and, upon full execution of the
Agreement by all parties, shall create a legally binding Agreement.
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DocuSign Envelope ID:903BAFB9-056A-4605-AA66-3E9CE1F1A252
NORFOLK SOUTHERN
One line,infinite possibilities.
IN WITNESS WHEREOF, the part'es hereto have execut d this Agreement in duplicate, each
part being an original, as of the l0 9 day of je�il r i , 2M
Witness: NORFOLK SOUTHERN RAILWAY
COMPANY
DoeuSigned by:
Signature: ' "
ECFR I FBD73C464...
A to Railway Name: Solomon Jackson
Title: Real Estate Director
Date: 5/19/2022
Witness: PCS PHOSPHATE COMPANY, INC
DocuSigned by:
Signature: (R k6d
I DSF98238769449A...
As to Licensee Name: Lance Moody
Title: Superintendent
Date: 5/5/2022
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DocuSign Envelope ID:903BAFB9-056A-4605-AA66-3E9CE1F1A252
ar AyIW
NORFOLK SOUTHERN
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Exhibit A
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NORFOLK SOUTHERN RAILWAY COMPANY
_Real Estate Department
Landlord: ' NORFOLK SOUTHERN RAILWAY COMPANY
GPS: 35.29996900,-76.83777200
Location: North Carolina, Beaufort County,Aurora
Tenant: PCS Phosphate Company,Inc.
Maps: V 10 ; Map 39 Milepost:WL 23.63 _
_Activity No: 1299740 Exhibit"A"
Date: 5/05/2022 ' Not to Scale
N
Wes. E -r
S NORFOLK SOUTHERN
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