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EXHIBIT 10.91
CONSOLIDATED RAIL CORPORATION
LICENSE AGREEMENT FOR WIRE, PIPE AND CABLE TRANSVERSE
CROSSINGS AND LONGITUDINAL OCCUPATIONS
THIS AGREEMENT, made this 21st day of August, 1992, between
CONSOLIDATED RAIL CORPORATION, a Pennsylvania Corporation, party of the first
part (hereinafter called "Railroad") and CAMDEN XXXXX X.X., a Delaware Limited
Partnership, as party of the second part (hereinafter called "Licensee").
WITNESSETH, that said Railroad (which when used herein shall include any lessor,
successor or assignee of or operator over its railroad) insofar as it has the
legal right and its present title permits, and in consideration of the covenants
and conditions hereinafter stated on the part of Licensee to be kept and
performed, hereby permits, Licensee to construct, maintain, repair, alter,
renew, relocate and ultimately remove:
One (1) 12-inch steel steam pipe and one (1) 4-inch steel condensation
pipe through the lands and under and across and along the roadway and
tracks of the Xxxxxx Street Yard (off the Beesleys Point Secondary) of
Railroad, Line Code 10-9902, between Valuation Station 67+30 +/- and
Valuation Station 51+60 +/-, with a crossing under the tracks at
Valuation Station 51+60 +/-, together with two (2) manholes, all of
which is located between 120 feet north of and 1450 feet south of Mile
Post 1 (M.P. 0.98 - 1.27) in the City of Camden, Camden County, New
Jersey,
in accordance with construction plan no. 3108X001, Sheets 1, 2 and 3, Revised
July 28, 1992, submitted by Licensee to and approved by the Chief Engineer of
Railroad, incorporated herein by reference; also in accordance with current
issues of Railroad Specifications Nos. CE 4 and/or CE 8; and shown on Plan No.
C-3031, dated August 11, 1992, marked Exhibit "A", attached hereto and made a
part of this Agreement, all and any part thereof being hereafter referred to as
the "FACILITIES"; said license, however, shall be under and subject to the
following terms, covenants and conditions as hereinafter recited, which are
hereby accepted and agreed to, by Licensee, to wit:
PREPARED BY: /s/ M.R. LATCH
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M.R. Latch
Agreement Investigator
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1. The Licensee shall pay to Railroad upon the execution hereof, the
sum of Sixteen Thousand Three Hundred Forty Five Dollars ($16,345.00) as
reimbursement for the rights granted in this Agreement.
2. (a) The FACILITIES shall be located, constructed and maintained in
exact accordance with said construction plans and for the purpose as outlined in
Page 1. No departure shall be made at any time therefrom except upon permission
in writing granted by the Chief Engineer of Railroad, or his designee, provided,
however, that if any commission or other regulatory body duly constituted and
appointed in compliance with the laws of the State in which the crossing or
occupancy herein provided is situate, and having jurisdiction in the premises,
has by ruling or other general order determined and fixed the manner and means
of construction, maintenance, repair, alteration, renewal, relocation or removal
thereof, then said ruling or general order shall prevail for the crossing or
occupancy herein mentioned.
(b) The work of constructing, maintaining, repairing, altering,
renewing, relocating or removing the said FACILITIES shall be done under such
general conditions as will be satisfactory to and approved by the Chief Engineer
of Railroad, or his designee, and as will not interfere with the proper and safe
use, operation and enjoyment of the property of Railroad. Licensee, at its own
cost and expense, shall, when performing any work in connection with the
FACILITIES, furnish any necessary inspectors, flagmen or watchmen to see that
men, equipment and materials are kept a safe distance away from the tracks of
Railroad.
(c) In addition to, but not in limitation of any of the foregoing
provisions, if at any time Railroad should deem inspectors, flagmen or watchmen
desirable or necessary to protect its operations or property, or its employees,
patrons or Licensees during the work of construction, maintenance, repair,
alteration, renewal, relocation or removal of said FACILITIES, of Licensee,
Railroad shall have the right to place such inspectors, flagmen or watchmen at
the sole risk, cost and expense of Licensee, which covenants and agrees to bear
the full cost and expense thereof and to promptly reimburse Railroad upon
demand. The furnishing or failure to furnish inspectors, flagmen or watchmen by
Railroad, however, shall not release Licensee from any and all other liabilities
assumed by Licensee under the terms of this Agreement.
3. If Licensee desires or is required, as herein provided, to revise,
renew, add to or alter in any manner whatsoever the aforementioned FACILITIES,
it shall submit plans to Railroad and obtain the written approval of the Chief
Engineer of Railroad thereto before any work or alteration of the structure is
performed and the term and
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conditions of this Agreement with respect to the original construction shall
apply thereto. In that event, Railroad reserves the right to assess additional
charges.
4. (a) Licensee shall at all times be obligated to promptly maintain,
repair and renew said FACILITIES; and shall, upon notice in writing from
Railroad and requiring it so to do, promptly make such repairs and renewals
thereto as may be required by Railroad; or Railroad, for the purpose of
protecting and safeguarding its property, traffic, patrons or employees from
damage or injury, may with or without notice to Licensee at any time make such
repairs and renewals thereto and furnish such material therefor as it deems
adequate and necessary, all at the sole cost and expense of Licensee.
(b) In the event of an emergency, Licensee will take immediate
steps to perform any necessary repairs, and in the event Licensee fails so to
do, Railroad will perform said necessary repairs at the sole cost and expense of
Licensee.
5. (a) The supervision over the location of the construction work and
inspection of the FACILITIES and the approval of the material used in
construction, maintenance, repair, alteration, renewal, relocation and removal
of the aforesaid FACILITIES covered by this Agreement shall be within the
jurisdictional rights of Railroad.
(b) The right of supervision over the location of the construction
work and inspection of the FACILITIES from time to time thereafter by Railroad,
shall extend for an appropriate distance on each side of the property of
Railroad as the method of construction and materials used may have an important
bearing upon the strength and stability of the FACILITIES over, under, upon or
in the property of Railroad.
6. Licensee shall comply with all Federal, State and local laws, and
assume all cost and expense and responsibility in connection therewith, without
any liability whatsoever on the part of Railroad.
7. (a) It is understood between the parties hereto that the operations
of Railroad at or near said FACILITIES involve some risk, and Licensee as part
of the consideration for this license hereby releases and waives any right to
ask for or demand damages for or account of loss of or injury to the FACILITIES
(and contents thereof) of Licensee that are over, under, upon or in the property
and facilities of Railroad including the loss of or interference with service or
use thereof and whether attributable to the fault, failure or negligence of
Railroad or otherwise.
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(b) And Licensee also covenants and agrees to and shall at all
times indemnify, protect and save harmless Railroad from and against all cost or
expense resulting from any and all losses, damages, detriments, suits, claims,
demands, costs and charges which the said Railroad may directly or indirectly
suffer, sustain or be subjected to by reason or on account of the construction,
placement, attachment, presence, use, maintenance, repair, alteration, renewal,
relocation or removal of said FACILITIES in, on, about or from the premises of
Railroad whether such losses and damages be suffered or sustained by Railroad
directly or by its employees, patrons or licensees, or be suffered or sustained
by other persons or corporations, including Licensee, its employees and agents
who may seek to hold Railroad liable therefor, and whether attributable to the
fault, failure or negligence of Railroad or otherwise, except when proved by
Licensee to be due directly to the sole negligence of Railroad.
(c) If a claim or action is brought against either party and for
which the other party may be responsible hereunder in whole or in part, such
other party shall be notified and permitted to participate in the handling or
defense of such matter.
8. All cost and expenses in connection with the construction,
maintenance, repair, alteration, renewal, relocation and removal of said
FACILITIES shall be borne by Licensee, and in the event of work being performed
or material furnished by Railroad under the stipulated right to perform such
work of construction, maintenance, repair, alteration, renewal, relocation or
removal under any section hereof, Licensee agrees to pay to Railroad the actual
cost of material plus the current applicable overhead percentages for storage,
handling, transportation, purchasing and other related material management
expenses and the actual cost of labor plus the current applicable overhead
percentages 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 indirect expenses.
It is to be understood that the aforementioned material and labor overhead
charges are to be applied at the rates which are effective at the time of the
performance of any work by employees of Railroad on the said FACILITIES.
Licensee agrees to pay such bills within thirty (30) days of the presentation
thereof by Railroad.
9. Licensee shall, at its sole cost and expense, upon request in
writing of Railroad, promptly change the location of said FACILITIES covered by
this Agreement, where located over, upon or in the property and facilities of
Railroad, to another location, to permit and accommodate changes of grade
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or alignment and improvement in or additions to the facilities of Railroad upon
land now or hereafter owned or used by Railroad to the intent that said
construction shall at all times comply with the terms and conditions of this
Agreement with respect to the original construction; or in the event of the
lease, sale or disposal of the premises or any part thereof encumbered by this
license, then said Licensee shall make such adjustments or relocations in its
FACILITIES as are over, upon or in the property and facilities of Railroad as
may be required by said Railroad or its grantee; and if Licensee shall fail or
refuse to comply therewith, then the duly authorized agents of Railroad may make
such repairs or adjustments or changes in location and provide necessary
material therefor.
10. Upon termination of this Agreement or upon the removal or
abandonment of the FACILITIES covered hereby, all the rights, title and interest
of Licensee hereunder shall cease and determine, and this instrument shall
thereupon become and be null and void, without any liability on the part of
either party to the other party except only as to any liability accrued prior
thereto, and Licensee shall remove its said FACILITIES and appurtenances from
Railroad property, and right of way and all property of Railroad shall be
restored in good condition and to the satisfaction of Railroad. If Licensee
fails or refuses to remove its FACILITIES and appurtenances under the foregoing
conditions, Railroad shall be privileged to do so at the cost and expense of
Licensee, and Railroad shall not be liable in any manner to Licensee for said
removal.
11. In the event the FACILITIES consist of an underground occupation,
Licensee will be responsible for any settlement caused to the roadbed, right of
way and/or tracks, facilities and appurtenances of Railroad arising from or as a
result of the installation of the said FACILITIES for a period of one (1) year
subsequent to the date of completion of the installation, and Licensee agrees to
pay to Railroad on demand the full cost and expense therefor.
12. In the event the said FACILITIES consist of electrical power or
communication wires and/or appurtenances, Licensee shall at all times be
obligated promptly to remedy any inductive interference growing out of or
resulting from the presence of its FACILITIES; and if Licensee should fail so to
do, then Railroad may do so, and Licensee agrees to pay to Railroad on demand
the full cost and expense therefor.
13. As part of the consideration of the within Agreement, Licensee
covenants and agrees that no assessments, taxes or charges of any kind shall be
made against Railroad or its property by reason of the
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construction of said FACILITIES of Licensee, and Licensee further covenants and
agrees to pay to Railroad promptly upon bills rendered therefor the full amount
of any assessments, taxes or charges of any kind which may be levied, charged,
assessed or imposed against Railroad or its property by reason of the
construction and maintenance of said FACILITIES of Licensee.
14. The rights conferred hereby shall be the privilege of Licensee
only, and no assignment or transfer hereof shall be made, or other use be
permitted than for the purpose stated on Page 1 without the consent and
agreement in writing of Railroad being first had and obtained.
15. This Agreement shall be terminable upon mutual consent of the
parties hereto, provided that this Agreement may be terminated by Railroad upon
the violation of any of the terms, covenants and conditions of this Agreement on
the part of Licensee.
16. This Agreement shall take effect as of the First day of September,
1992, subject to the provisions of Article "18".
17. Anything herein contained to the contrary notwithstanding, there
shall be no obligation on the part of Railroad to continue operation of the line
of railroad in the vicinity of the FACILITIES to prevent the termination of
Licensee's occupation rights at any crossing or occupation covered hereunder on
account of an abandonment of line or service by Railroad; nor shall there be
any obligation upon Railroad to perfect its title in order to continue in
existence the said occupation rights after such abandonment of line or service.
18. This Agreement will not become valid until the method of
installation and all related matters have been approved by the Chief Engineer -
Design and Construction of Railroad or his duly designated representative.
19. Automobile mileage charges incurred by aforementioned Railroad
inspectors, flagmen or watchmen in connection with the installation,
maintenance, etc., of said FACILITIES will be based on allowances approved by
the United States Government in effect at the time the expenses are incurred.
20. This Agreement shall not be deemed or construed as transferring to
Licensee any interest in the land of Railroad or any right in the nature of an
interest in land, irrespective or any expenditure by Licensee for the
FACILITIES.
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irrespective or any expenditure by Licensee for the FACILITIES.
The terms of this Agreement shall be binding and effective upon all the parties
hereto, and unless and until terminated, as hereinbefore provided, this
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their successors and assigns, subject, however, to the provisions of Article
"14" of this Agreement.
IN WITNESS WHEREOF, the said parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
WITNESS: CONSOLIDATED RAIL
CORPORATION
/s/ XXX X. XXXXXX BY: /s/ X.X. XXXXXX
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X.X. Xxxxxx
Chief Engineer
Design and Construction
WITNESS: CAMDEN XXXXX X.X.
/s/ XXXXX XXXXXX BY: Cogen Technologies Camden GP
------------------------------- Limited Partnership, its
general partner
BY: Cogen Technologies Camden,
Inc., its general partner
By /s/ R XXXX XXXXXX XX.
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Name: R Xxxx XxXxxx Xx.
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Title: Vice President
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ACKNOWLEDGMENT
Commonwealth of PENNSYLVANIA )
: ss.:
County of PHILADELPHIA )
On this 17th day of September, 1992, before me a Notary Public, the undersigned
officer, personally appeared X.X. Xxxxxx, who acknowledged himself to be the
Chief Engineer Design & Construction of Consolidated Rail Corporation, a
corporation, and that he as such, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing the name of
the corporation by himself as Chief Engineer Design & Construction.
The full and actual consideration paid or to be paid for the transfer of title
to realty evidenced by the within Agreement, as such consideration is defined in
the License Agreement for Wire, Pipe and Cable Transverse Crossings and
Longitudinal Occupations, Page 2, Paragraph 1, is $16,345.00.
Signature /s/ XXXXXXX XXXXX XXXXXXX
Notarial Seal --------------------------
Xxxxxxx Xxxxx Xxxxxxx, Notary Public
Philadelphia, Philadelphia County Printed Xxxxxxx Xxxxx Xxxxxxx
My Commission Expires May 2, 1996 ---------------------------
Notary Public
Member, Pennsylvania Association of Notaries
My commission expires: 0-0-00
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XXXXX XX XXXXX )
: ss.:
COUNTY OF XXXXXX )
BE IT REMEMBERED, that on this 14th day of September, 1992, in the County and
State aforesaid, before me, the subscriber, a Notary Public of Xxxxxx County,
Texas authorized to take acknowledgments and proofs in said County and State,
personally appeared R. Xxxx XxXxxx, Xx. who, I am satisfied is the person who
signed the within instrument as Vice President of Cogen Technologies Camden,
Inc., the corporation named therein, and he thereupon acknowledged that the
within instrument signed by the corporation is the voluntary act and deed of the
corporation, made by virtue of authority from its Board of Directors, as a
general partner on behalf of Cogen Technologies Camden GP Limited Partnership, a
Delaware limited partnership, as a general partner on behalf of CAMDEN XXXXX
X.X., a Delaware limited partnership the partnership which executed the within
instrument.
Signature /s/ XXXXX X. XXX
XXXXX X. XXX -------------------------
NOTARY PUBLIC, STATE OF TEXAS
[SEAL] MY COMMISSION EXPIRES Printed Xxxxx X. Xxx
MAY 21, 1995 --------------------------
Notary Public
My commission expires: 5-21-95
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