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LICENSEE shall furnish the plans and descriptions for any such conveyance. It is understood,however,that <br /> the foregoing right of entry is a permissive use only,and this Section is not intended to convey or obligate RAILWAY <br /> to convey any interest in its land. <br /> II. SCOPE OF RAILROAD WORK, AND MAINTENANCE AND OWNERSHIP OF PROJECT <br /> IMPROVEMENTS <br /> 1. Scope of Work. The scope of the work by RAILWAY shall include any necessary, design, <br /> construction, and construction-related activities including, but not limited to, inspection, flagging, and <br /> superintendence, within and along RAILWAY property ("Railroad Work") necessary to facilitate LICENSEE's <br /> installation,construction,maintenance,operation and removal of the Facilities. <br /> 2. Performance of the Railroad Work. The RAILWAY shall perform the Railroad Work in <br /> accordance with the force account estimate,attached as Exhibit D and herein incorporated by reference,including <br /> any future amendments thereto,and all applicable state and federal laws. <br /> (a) All Railroad Work performed by the RAILWAY and consistent with the force account <br /> estimate will be deemed reimbursable project expenses,and shall be at no cost to the RAILWAY. <br /> (b) RAILWAY shall accomplish the Railroad Work by the following: (i) railroad force <br /> account; (ii) existing continuing contracts at reasonable costs; (iii) contracting with the lowest responsible <br /> bidder based on appropriate solicitation; or (iv) contract without competitive bidding for minor work at <br /> reasonable costs. <br /> 3. Maintenance and Ownership of the Railroad Work. Upon completion of the Railroad Work, the <br /> RAILWAY shall own and, at its own cost and expense, maintain any improvements constructed by RAILWAY as <br /> part of the Railroad Work until such time as RAILWAY deems such maintenance to no longer be necessary. <br /> 4. Commencement of the Railroad Work. Execution of this Agreement constitutes LICENSEE's <br /> issuance of a notice to proceed to RAILWAY to perform the Railroad Work("Notice to Proceed"). RAILWAY shall <br /> make commercially reasonable efforts to commence the Railroad Work as soon as possible, in RAILWAY's sole <br /> discretion. <br /> 5. Reimbursement by LICENSEE. <br /> (a) RAILWAY shall furnish,or cause to be furnished,at the expense of the LICENSEE all the <br /> labor costs, overhead and indirect construction costs, materials and supplies, contracted services, <br /> transportation,equipment, and other related costs and items required to perform and complete the Railroad <br /> Work. In addition, RAILWAY shall furnish, at the expense of LICENSEE, the protection of rail traffic <br /> occasioned by or made necessary by entry by LICENSEE and/or its contractors or any subcontractor(s) <br /> pursuant to this Agreement. <br /> (b) Except as otherwise provided in this Agreement, LICENSEE shall reimburse the <br /> RAILWAY for the actual cost of the work performed by it,which is estimated to be Six Hundred Thousand, <br /> Five Hundred and Six Dollars and Zero Cents($600,506.00). It is agreed that progress payments will be <br /> made by LICENSEE to the RAILWAY for the total amount of work done as shown on monthly statements. <br /> LICENSEE shall pay each RAILWAY statement within forty-five(45)days of receipt. Upon receipt of the <br /> final bill,RAILWAY shall be reimbursed in such amounts as are proper and eligible for final payment,and <br /> the RAILWAY Project shall be submitted to LICENSEE for final audit. <br /> -6- <br />