|
<br /> Contractor's ROE ExB 7/30/D 1
<br /> Form Approved, AVP-Law
<br /> D. If and when requested by the hLulI'oad, the Contractor shall deliver to the Raih 1 a copy of the Contractor's safety plan
<br /> for ,::onducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require the Contractor to correct
<br /> any deficiencies in the Safety Plan. The terms of this agreement shall control if there are any inconsistencies between this
<br /> agreement and the Safety Plan.
<br /> Section 8. INDEMNITY.
<br /> A. To the extent not prohibited by applicable statute, the Contractor shall indemnify, defend and hold harmless the Railroad,
<br /> its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss, damage,
<br /> injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees, and court
<br /> costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, any Indemnified Party, the
<br /> Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected with (i) any
<br /> work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or (ill) any breach
<br /> of this agreement by the Contractor.
<br /> B. The right to indemnity under this Section 8 shall accrue upon occurrence of the event giving rise to the Loss, and shall
<br /> apply regardless of any negligence or strict liability of any Indemnified Party, except where the Loss is caused by the sole active
<br /> negligence of an Indemnified Party as established by the final judgment of a court of competent jurisdiction. The sole active
<br /> negligence of any Indemnified Party shall not bar the recovery of any other Indemnified Party.
<br /> C. The Contractor expressly and specifically assumes potential liability under this Section 8 for claims or actions brought
<br /> by the Contractor's own employees. The Contractor waives any immunity it may have under worker's compensation or industrial
<br /> insurance acts to indemnify the Railroad under this Section 8. Contractor acknowledges that this waiver was mutually negotiated
<br /> by the parties hereto.
<br /> D. No court or jury findings in any employee's suit pursuant to any worker's compensation act or the Federal Employers'
<br /> liability Act against a party to this agreement may be relied upon or used. by the Contractor in any attempt to assert liability against
<br /> the Railroad.
<br /> E. The provisions of this Section 8 shall survive the completion of any work performed by the Contractor or the termination
<br /> or expiration of this agreement. In no event shall this Section 8 or any other provision of this agreement be deemed to limit any
<br /> liability the Contractor may have to any Indemnified Party by statute or under common law.
<br /> Section 9. RESTORATION OF PROPERTY.
<br /> In the event the Railroad authorizes the Contractor to take down any fence of the Railroad or in any manner move or
<br /> disturb any of the other property of the Railroad in connection with the work to be performed by Contractor, then in that event the
<br /> Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same condition
<br /> as the same were in before such fence was taken down or such other property was moved or disturbed. The Contractor shall
<br /> remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly upon completion of
<br /> the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon.
<br /> Section 10. WANER OF DEFAULT.
<br /> Waiver by the Railroad of any breach or default of any condition, covenant or agreement herein contained to be kept,
<br /> observed and performed by the Contractor shall in no way impair the right of the Railroad to avail itself of any remedy for any
<br /> subsequent breach or default.
<br /> Section 11. MODIF1CATION - ENTIRE AGREEMENT.
<br /> No modification of this agreement shall be effective unless made in writing and signed by the Contractor and the Railroad.
<br /> This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between the
<br /> Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether written
<br /> or oral, with respect to the work to be performed by the Contractor.
<br /> Section 12. ASSIGNMENT - SUBCONTRACTING.
<br /> The Contractor shall not assign or subcontract this agreement, or any interest therein, without the written consent of the
<br /> Railroad. The Contractor shall be responsible for the acts and omissions of all subcontractors, and shall require all subcontractors
<br /> to maintain the insurance coverage required to be maintained by the Contractor as provided in this agreement, and to indemnify
<br /> the Contractor and the Railroad to the same extent as the Railroad is indemnified by the Contractor under this agreement.
<br /> Page 3 Exhibit B
<br /> .
<br />
|