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Exhibit 10.4
RIGHT-OF-WAY ENTRY AGREEMENT
THIS RIGHT-OF-WAY ENTRY AGREEMENT ("Agreement") is made and entered into this
15th day of August, 2000 by and among (i) Norfolk Southern Railway Company
("Railroad"), a Virginia corporation, (ii) Thoroughbred Technology and
Telecommunications, Inc. ("T-Cubed"), a Virginia corporation, and (iii) North
American Infotech, LLC ("NAIT"), a Delaware limited liability company.
WHEREAS, contemporaneously herewith, NAIT and T-Cubed have entered into
a Fiber Optic Conduit Agreement, pursuant to which T-Cubed will install a
Conduit System in the Segment and NAIT will purchase the NAIT Ducts included
therein;
WHEREAS, as a result of the Fiber Optic Conduit Agreement, Railroad
will obtain the use of a continuous pair of dedicated Optical Fibers ("Dedicated
Fibers") in one of the Cables in the NAIT Ducts throughout the Segment for
railroad-related voice, data and SCADA communications and other unrestricted
T-Cubed purposes;
WHEREAS, during the term of the Fiber Optic Conduit Agreement, NAIT,
its employees, agents and contractors may from time to time require entry upon
and access to Railroad's property (the "Property") in order to inspect T-Cubed's
construction activities prior to their completion and for other purposes; and
WHEREAS, Railroad, T-Cubed and NAIT desire to provide for such entry
and access pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual promises, covenants,
undertakings and other consideration set forth in this Agreement, Railroad and
NAIT agree as follows:
ARTICLE 1
DEFINED TERMS
To the extent capitalized terms used herein have been defined in the
___________,2000 Fiber Optic Conduit Agreement ("Fiber Optic Conduit
Agreement"), between T-Cubed and NAIT, they shall have the meanings assigned to
them in those agreements, unless otherwise herein dictated by specification or
context. All other capitalized terms used herein shall have the meanings
assigned to them in this Agreement.
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ARTICLE 2
TERM
The term of this Agreement shall be coterminous with the term of the
Fiber Optic Conduit Agreement.
ARTICLE 3
RIGHT OF ENTRY
Railroad consents and agrees that NAIT, its employees, agents and duly
authorized contractors may enter upon the Property in order to conduct
inspections and other activities incidental to the Fiber Optic Conduit Agreement
(collectively, the "Work").
ARTICLE 4
CONDUCT OF THE WORK
Section 4.01. The Work shall be conducted at NAIT's sole expense and
shall be performed by NAIT with reasonable care and diligence under the
supervision of Railroad's personnel so as to avoid accident, damage or harm to
persons or property and delays to or interference with operations of Railroad.
Control and supervision of the Property shall remain with Railroad at all times
during the course of the Work. Railroad may in its sole discretion require NAIT,
its employees, contractors and agents to cease their activities on and vacate
the Property if they fail to comply with Railroad's directions for the safety
and protection of Railroad's personnel, property and operations. The Work shall
occur during daylight hours.
Section 4.02. NAIT covenants and agrees not to introduce, use,
generate, store or dispose of any hazardous substance on the Property in
violation of any applicable law or regulation. NAIT shall be responsible for any
migration or entry of contaminants into subsurface soils or groundwater caused
by or arising out of NAIT's activities on the Property.
Section 4.03. With the exception of public grade crossings, NAIT shall
not cross the tracks of Railroad with any vehicle unless it shall have received
in advance the permission of Railroad and executed such separate agreement as
shall be provided by Railroad.
Section 4.04. Except as provided in the Fiber Optic Conduit Agreement,
NAIT agrees to reimburse Railroad, within thirty (30) days after receipt of an
invoice therefor, for all reasonable expenses incurred by Railroad resulting
from the Work, including but not limited to materials and expenses for watchmen,
flagmen, inspectors, train crews, communications personnel, signalmen,
supervisors and such other personnel as Railroad deem necessary to engage in
connection with the Work.
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Section 4.05. Railroad's designee shall be given written notice not
less five (5) days before NAIT proposes to enter upon the Property. NAIT
understands that additional notice may be required if Railroad is to provide, at
the desired time, any flagging which Railroad may deem necessary under Article
4. Prior to entering upon the Property, NAIT shall meet with Railroad's designee
to receive any instructions Railroad may have concerning NAIT's activities on
the Property. Railroad's designees for each Segment are listed on EXHIBIT A to
this Agreement.
Section 4.06. NAIT agrees to give Railroad a complete copy of the
results of any tests or analyses made on or about the Property and any related
reports and recommendations. NAIT further agrees to keep said tests, analyses
and reports confidential and not to disclose them to any other party, including
any governmental authority, unless NAIT has received express written
authorization to do so from Railroad.
ARTICLE 5
ASSIGNMENT OR TRANSFER
This Agreement shall not be assigned or transferred without written
approval of Railroad and T-Cubed.
ARTICLE 6
INDEMNIFICATION
NAIT agrees to investigate and, at Railroad's election, defend with
counsel approved by Railroad, indemnify and hold Railroad harmless from and
against any and all losses, damages, liability, claims, demands, detriments,
costs, charges and expenses (including attorney's fees and court costs) arising
out of NAIT's or its employees', contractors' or agents' entry upon, occupancy
of, or work on or about, the Property, irrespective of any negligence of
Railroad, its employees, contractors or agents. NAIT agrees that each and all of
its indemnity commitments herein shall extend to T-Cubed and Railroad's parent,
subsidiaries, affiliates and its and their directors, officers, employees and
agents.
ARTICLE 7
INSURANCE
Section 7.01. Required Insurance Policies. Prior to entering upon the
Property, NAIT agrees to furnish evidence that NAIT and/or its contractor
maintain the following insurance coverages:
A. Workers' Compensation Insurance in satisfaction of statutory
requirements of the state where the property covered by this
agreement is located. Also, Employers'
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Liability Insurance having limits of not less than $500,000
each accident, $500,000 per disease - policy limit, and
$500,000 per disease - each employee.
B. Comprehensive General Liability Insurance having a combined
single limit of not less than $2,000,000 per occurrence for
all loss, damage, cost and expense, including attorneys' fees,
arising out of bodily injury liability and property damage
liability during the policy period. Such policy shall be
endorsed to name Railroad and T-Cubed as additional insureds
and shall include a severability of interests provision. In
addition, NAIT's policy shall include contractual liability
insurance coverage applicable to the indemnity provisions of
this Agreement.
C. Automobile Liability Insurance having a combined single limit
of not less than $500,000 per occurrence. Said policy shall
name Railroad and T-Cubed as additional insureds and shall
include a severability of interests provision.
Section 7.02. Insurance - Other. All insurance described above shall be
maintained until work contemplated hereunder has been completed. Prior to
entering upon the property, NAIT shall forward copies of the certificates of
insurance indicating the above-noted coverages to: Director, Risk Management,
Norfolk Southern Corporation, Three Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000-0000. The furnishing by NAIT of such insurance and the acceptance of the
same by Railroad and T-Cubed is not intended to and shall not reduce, limit,
affect or modify the primary obligations and liabilities of NAIT under the other
provisions of this Agreement.
ARTICLE 8
MISCELLANEOUS
If any of the foregoing provisions is held to be unlawful or
unenforceable, the parties intend that only the specific words found to be
unlawful or unenforceable are severed and deleted from this Agreement and that
the balance of the agreement remain a binding enforceable agreement to the
fullest extent permitted by law. This Agreement may be executed in several
counterparts, including facsimile counterparts, and all executed counterparts
shall constitute one and the same Agreement.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the date and year first above written.
WITNESS: NORFOLK SOUTHERN
RAILWAY COMPANY
By: By:
--------------------------- ------------------------------
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------ ---------------------------
WITNESS: THOROUGHBRED TECHNOLOGY
AND TELECOMMUNICATIONS, INC.
By: By:
--------------------------- ------------------------------
Name: Name:
------------------------- ----------------------------
Title: Title:
WITNESS: NORTH AMERICAN INFOTECH, LLC
By: By:
--------------------------- ------------------------------
Name: Name:
------------------------- ----------------------------
Title: Title:
------------------------ ---------------------------
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EXHIBIT A
RAILROAD'S DESIGNEES
Location Site Contact Phone # Pager #
-------- ------------ ------- -------
Memphis-Chattanooga X.X. Xxxxx (000) 000-0000 (office) (000) 000-0000
Segment (000) 000-0000 (cell)
Atlanta-Chattanooga Xxxxxx Xxxxxxx (000) 000-0000 (office) (000) 000-0000
Segment (Chattanooga to (000) 000-0000 (cell)
Tiftonia)
Atlanta-Chattanooga Xxxxx Xxxxx (000) 000-0000 (office) (000) 000-0000 (pin 999-
Segment (Austell to (000) 000-0000 (cell) 2288)
Brement to Green)
Atlanta-Chattanooga Xxxxx Xxxxxx (000) 000-0000 (office) (000) 000-0000 (pin 066-
Segment (Green to Rome (000) 000-0000 (cell) 6983)
to Krannert)
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