EX-10.15.1



 








Exhibit 10.15.1




ITC Ind Dev-New Trk 03/01/03

Form Approved, AVP-Law



INDUSTRY TRACK CONTRACT




ARTICLES OF AGREEMENT



          THIS AGREEMENT is made and entered into as of the 27th day of
May, 2005, by and between UNION PACIFIC RAILROAD COMPANY, a Delaware
corporation, to be addressed at 1400 Douglas Street, Omaha, NE 68179 (hereinafter the “Railroad”),
and CXT, INC., a Delaware corporation, to be addressed at 2420 North Pioneer Lane, Spokane, WA
99216 (hereinafter the “Industry”).



RECITALS:





     The Industry desires the construction, maintenance and operation of a 5,135-foot Track A,
4,866-foot Track B, 647-foot Track C and 1,245-foot Track D (hereinafter “Track”) at or near
Milepost 146.0, Kearney Subdivision, in Grand Island, Buffalo County, Nebraska, as shown on the
attached drawing dated February 11, 2005, marked
Exhibit A, hereto attached and hereby made a part
hereof.



AGREEMENT:




          NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:



Article 1. RELATED AGREEMENT.




          This Agreement is made pursuant to the terms and conditions contained in the Agreement dated
January 21, 2005, between the Railroad and Industry (the “CXT Tie Agreement”).



Article 2. TRACK IDENTIFICATION MARKERS.




          For the purpose of this Agreement, the following segments of the Track shall be identified as
follows:



Track A




			
	Engineering Station 0+00 -

	 	the initial switch
connection or sometimes
referred to as the point of
switch.
	 
	 	 
	Engineering Station 1 +42 -

	 	the initial 13—foot
clearance point of the
track. It is the point on
the track where a rail car
either being moved or stored
on the track will not
interfere with the movement
of other rail cars on
adjacent main, branch or
lead trackage owned by the
Railroad.
	 
	 	 
	Engineering Station 51+35 -

	 	the end of Track A.
	 
	 	 
	Track C:
	 	 
	Engineering Station 0+00 -

	 	the initial switch connection.
	Engineering Station 1+36-

	 	the initial 13-foot clearance point
of the track.
	Engineering Station 6+47 -

	 	the end of Track C.






Article 3. PORTIONS OF TRACK TO BE CONSTRUCTED BY RAILROAD.




          The
Railroad will construct all track depicted on Exhibit A
as “Proposed R.R. Owned Track.”



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Article 4.
PORTIONS OF TRACK TO BE CONSTRUCTED BY INDUSTRY.




          A. The Industry, at its own expense and subject to the prior approval of the Railroad,
will perform all grading and install all necessary drainage facilities required in connection with
the construction of the Track to the standards and satisfaction of the Railroad, and arrange to
modify any overhead and/or underground utilities to meet Railroad specifications.



          B. The Industry, at its own expense, will construct all track depicted on Exhibit A as
“Proposed Ind. Owned Trackage.”



Article 5.
RIGHT-OF-WAY AND PRIVILEGE.




          The Industry shall procure any needed right-of-way, public authority or permission for
construction, maintenance and operation of the Track outside the limits of the Railroad’s
right-of-way. The Industry shall pay any fees or costs imposed by any public authority or person
for the privilege of constructing, maintaining and operating the Track.



Article 6.
GRANT OF RIGHT; USE AND OPERATION OF THE TRACK.




          A. During the term hereof and subject to the terms and conditions set forth in this
Agreement, Railroad hereby grants to Industry the right, at Industry’s sole cost and
responsibility, to construct, own, keep, maintain, repair and use Industry’s private section of
Track where located on and along Railroad’s right-of-way.



          B. The Railroad shall operate the Track subject to any applicable tariffs or rail
transportation contracts and the terms of this Agreement, but the Railroad shall not be obligated
to operate or maintain the Track (and the Industry shall not have any claim against the Railroad)
if the Railroad is prevented or hindered from doing so by the Industry’s breach or by acts of God,
public authority, strikes, riots, labor disputes, or other cause beyond its control. The Railroad
shall have the right to use the Track when not to the detriment of the Industry.



          C. The Industry shall bear the cost of any modifications to the Railroad’s tracks,
structures and communication facilities, other than track changes connected with the initial switch
connection, required by the construction, reconstruction or operation of the Track.



          D. The use and operation of the Track shall also be in accordance with the terms and
conditions set forth in Exhibit B, hereto attached and hereby made a part hereof.



Article 7.
OWNERSHIP OF THE TRACK.




          A. The Railroad shall own the portion of Track A from the point of switch to the 13-foot
clearance point and the portion of Track C from the point of switch to the 13-foot clearance point
(hereinafter “Railroad-owned Track”).



          B. The Industry shall own the portion of Track A from the 13-foot clearance point to the
end of the track, all of Track B, the portion of Track C from the 13-foot clearance point to the
end of the track, and all of Track D (hereinafter “Industry-owned Track”).



Article 8.
MAINTENANCE OF THE TRACK STRUCTURE (RAIL, TIES, BALLAST, OTHER TRACK MATERIAL).




          A. The Railroad, at its expense, shall maintain the track structure for the portion of
Railroad-owned Track.



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ITC Ind Dev-New Trk 03/01/03

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          B. The Industry, at its expense, shall maintain the track structure for the portion of
Industry-owned Track.



Article 9.
MAINTENANCE OF RIGHT-OF-WAY AND TRACK APPURTENANCES.




          A. The Railroad, at its expense, shall maintain the right-of-way and track
appurtenances for the portion of Railroad-owned Track.



          B. The Industry, at its expense, shall perform the following maintenance of the right-
of-way and track appurtenances for the portion of Industry-owned Track:




     1. Remove snow, ice, sand and other substances and maintain drainage
and grading as needed to permit safe operation over the Track.




     2. Maintain all appurtenances to the Track (other than an automatic signal
system), including without limitation, gates, fences, bridges, undertrack
unloading pits,
loading or unloading devices and warning signs above, below or beside the Track.



Article 10.
INDUSTRY TO GIVE NOTICE; FLAGGING.




          The Industry shall comply with the flagging provisions contained in Section 1(j) of Exhibit B
prior to entering Railroad’s right-of-way for the purpose of performing any construction or
maintenance of the Track as set forth in this Agreement.



Article 11.
CONSTRUCTION, MAINTENANCE AND REPAIRS BY
INDUSTRY TO CONFORM TO RAILROAD STANDARDS.




          A. Track construction, maintenance and repair work performed by the Industry shall
conform to the Railroad’s standards. If, in the judgment of the Railroad, any portion of the
Track is non-conforming and/or unsafe for railroad operations, the Railroad shall not be obligated to
operate over the
Track.



          B. The Railroad, at the Industry’s expense, shall have the right, but not be required,
to make repairs on the Industry-owned Track when requested by the Industry or when necessary
to operate the Track safely.



Article 12.
NON-DISCLOSURE; CONFIDENTIALITY.




          Except to the extent that disclosure of information contained in this Agreement is required
by law, the contents of this Agreement shall not be disclosed or released by any party without the
written consent of all other parties to this Agreement.



Article 13.
TERM.




          This Agreement shall take effect as of the date of this Agreement and shall continue in full
force and effect until terminated as herein provided.



Article 14.
CONSENT OF THE RAILROAD TO CERTAIN FACILITIES OR OPERATIONS.




          The Railroad hereby consents to the construction, maintenance and operation by the Industry
of three private road crossings as shown on Exhibit A; subject to the terms, provisions and
conditions set forth in this Agreement and to any prior regulatory approval that may be needed.




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ITC Ind Dev-New Trk 03/01/03

Form Approved, AVP-Law



Article 15. INSURANCE




          The Industry shall, at its sole cost and expense, procure and maintain during the term of this
Agreement insurance coverage as set forth in Exhibit C, attached hereto and by this reference
incorporated herein.



          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate
as of the date first herein written.



	 	 	 	 	 
	 	 	UNION PACIFIC RAILROAD COMPANY
	 
	 	 	 	 
	 

	 	By.
	 	/s/ Steven J. McLaws
 

General Director — Industrial Development
	 
	 	 	 	 
	Witness:	 	CXT, INC.
	 
	 	 	 	 
	/s/
David L. Voltz

	 	By
	 	/s/ Stan L. Hasselbusch
 

	 	 	Printed Name Stan L.
Hassellbusch
	 

	 	Title
	 	CEO






Article 16.



The terms of the CXT Tie Agreement shall prevail over any conflicting terms herein, e.g. Industry’s
right to remove its property would be governed by Section 2.9 of the Tie Agreement and not Section
7 of Exhibit B hereto.





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	ITC Ind Dev-New Trk 03/01/03

Form Approved, AVP-Law
	 	EXHIBIT B






Section 1. SAFETY.




     (a) Clearances/Impairments. The Industry shall not permit or maintain any building,
platform, fence, gate,
vehicle, or other structure, obstruction or material of any kind, closer to the Track then the
standard clearances of the
Railroad without the prior written consent of the Railroad. The standard clearances of the
Railroad are (i) horizontally,
nine (9) feet from the centerline of the Track, and (ii) vertically, twenty-three (23)
feet above the top of the rail of the
Track. For any portion of the Track that is curved, the standard horizontal clearance shall be
increased one and one-half
inches for each degree of curvature. All doors, windows and gates shall be of the sliding type
or open away from the
Track if opening them toward the Track would impair clearances. Any moveable appliance,
including, but not limited to,
dock plates and loading or unloading spouts or equipment, that impairs the standard clearances
only when in use, shall
be securely stored or fastened by the Industry when not in use so as to not impair such
clearances. If greater clearances
are required by the National Electrical Safety Code or by statute, regulation or other
competent public authority, the
Industry shall comply therewith and shall obtain any necessary public authority and Railroad
consent to impair clearances
before creating an impairment. Any structure, material or other obstruction (whether in use or
not) which is closer to the
Track than the Railroad’s standard clearances or applicable public authority, whichever
distance is greater, shall be
considered an impairment, whether or not consented to or permitted by the Railroad or public
authority.



     (b) Facilities. The Industry shall not construct, locate, maintain or permit the
construction or erection of
any pits, loadout facilities, buildings, private crossings, beams, pipes, wires, or other
obstructions or installations of any
kind or character (hereinafter “Facilities”) over or under the Track without the prior written
consent of the Railroad.



     (c) Walkways. The Industry, at its expense, shall provide and maintain a Clear and
safe pathway for
Railroad employees along both sides of the Track beyond the clearance point. If walkways are
required by statute or
regulation, the Industry, at its expense, shall ensure that walkways are built and maintained
to conform with such statute
or regulation.



     (d) Industry to Train and Oversee Employees. The Industry shall have a non-delegable
duty and
responsibility to train and oversee its employees and agents as to proper and safe working
practices while performing
any work in connection with this Agreement, or any work associated with the Railroad serving
the Industry over the Track.



     (e) Intraplant Switching. The Industry shall not perform, permit or cause intraplant
switching without the
prior written consent of the Railroad. Intraplant switching means the movement of rail cars on
the Track by the Industry
by any method and includes the Industry’s capacity to move rail cars, whether before, during
or after any such
movement.



     (f) Standards. The Industry shall comply with all applicable ordinances, regulations,
statutes, rules,
decisions and orders including, but not limited to, safety, zoning, air and water quality,
noise, hazardous substances and
hazardous wastes (hereinafter “Standards”) issued by any federal, state or local governmental
body or agency
(hereinafter “Authority”). If the Industry is not in full compliance with any Standards issued
by any authorized Authority,
the Railroad, after notifying the Industry of its noncompliance and the Industry’s failure
within twenty days of such notice
to correct such noncompliance, may elect to take whatever action is necessary to bring the
Track and any Railroad
property into compliance with such Standards; PROVIDED, HOWEVER, that if Industry’s failure to
comply with Standards
interferes with, obstructs or endangers Railroad mainline or yard operations in any way,
Railroad may initiate compliance
action immediately. The Industry shall reimburse the Railroad for all costs (including, but
not limited to, consulting,
engineering, clean-up, disposal, legal costs and attorneys’ fees, fines and penalties)
incurred by the Railroad in
complying with, abating a violation of, or defending any claim of violation of such Standards.
A waiver by the Railroad of
the breach by the Industry of any covenant or condition of this Agreement shall not impair the
right of the Railroad to avail
itself of any remedy for any subsequent breach thereof.



     (g) Railcars Containing Hazardous Materials. If the Industry uses the Track for the
purpose of shipping,
receiving or storing railcars containing hazardous materials, as defined by the Department of
Transportation (the “DOT”).
The Industry will comply with and abide by all DOT regulations as set out in 49 Code of
Federal Regulations, Parts
100-199, inclusive, as amended from time to time, and provisions contained in applicable
Circular’s of the Bureau of
Explosives, Association of American Railroads, including any and all amendments and
supplements thereto. The term
“Standards” defined in Section 1 (f) shall include (but is not limited to) regulations
referenced in this subsection (g).



     (h) Telecommunications and Fiber Optic Cable Systems. Telecommunications and Fiber
optic cable systems may be buried on the Railroad’s property. Industry shall telephone the
Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through
Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to
determine if telecommunications or fiber optic cable are buried anywhere on the Railroad’s
premises to be used by the Industry. If it is, Industry will telephone the telecommunication
company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other
protection of the cable and will commence no work on Railroad’s property until all such protection
or relocation has been accomplished.



Exhibit B
Page 1 of 5













 





			
	ITC Ind Dev-New Trk 03/01/03

Form Approved, AVP-Law
	 	EXHIBIT B






     (i) Fire Precautions. Industry shall not permit, place, pile, store, or stack any
flammable material within ten (10) feet of centerline of the Track. Industry shall remove or
otherwise control vegetation adjacent to the Track so that it does not constitute a fire hazard.
Industry shall ensure that suitable firefighting equipment is available and in working order.



     (j) Notice and Flagging. Prior to entering Railroad’s right of way or other
property for the purpose of
performing any maintenance, repair, or reconstruction of the Track as set forth in this Agreement,
and/or constructing additional track segments connecting to the Track, the Industry and/or its
contractors are required to first notify the Railroad’s local Manager of Track Maintenance at
least ten (10) working days in advance of such work so that the Railroad can determine if flagging
and/or other protection is needed. If Railroad deems that flagging and/or other protection is
needed, no work of any kind shall be performed, and no person,
equipment, machinery, tool(s),
material(s), vehicles(s), or thing(s) shall be located, operated, placed, or stored within 25 feet
of the Track or any other track of Railroad at any time, for any reason, unless and until a
Railroad flagman is provided to watch for trains. If flagging or other special protective or
safety measures are performed by the Railroad, such services will be provided at Industry’s
expense with the understanding that if the Railroad provides any flagging or other services, the
Industry shall not be relieved of any of its responsibilities or liabilities set forth herein.
Industry shall promptly pay to Railroad all charges connected with such services within 30 days
after presentation of a bill. The rate of pay per hour for each flagman will be the prevailing
hourly rate in effect for an eight hour day for the class of flagman used during regularly
assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the
time the work is performed. In addition to the cost of such labor, a composite charge for
vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and Unemployment
Compensation, supplemental pension, Employer’s Liability and Property Damage and Administration
will be included, computed on actual payroll. The composite charge will be the prevailing
composite charge in effect on the day that the flagging is provided. One and one-half times the
current hourly rate is paid for overtime, Saturdays and Sundays; two and one-half times current
hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement
between the Railroad and its employees, and may be retroactive as a result of negotiations or a
ruling of an authorized Governmental Agency. Additional charges on labor are also subject to
change. If the wage rate or additional charges are changed, the Industry shall pay on the basis of
the new rates and charges. Reimbursement to the Railroad will be required covering the full eight
hour day during which any flagman is furnished, unless the flagman can be assigned to other
Railroad work during a portion of such day, in which event reimbursement will not be required for
the portion of the day during which the flagman is engaged in other Railroad work. Reimbursement
will also be required for any day not actually worked by said flagman following the flagman
assignment to work on the project for which the Railroad is required to pay the flagman and which
could not reasonably be avoided by the Railroad by assignment of such flagman to other work, even
though the Industry and/or Industry’s contractors may not be working during such time. When it
becomes necessary for the Railroad to bulletin and assign an employee to a flagging position in
compliance with union collective bargaining agreements, the Industry or Industry’s contractors
must provide the Railroad a minimum of five (5) days notice prior to the cessation of the need for
a flagman. If five (5) days notice of cessation is not given, the Industry will still be required
to pay flagging charges for the five (5) day notice period required by union agreement to be given
to the employee, even though flagging is not required for that period. An additional ten (10) days
notice must then be given to the Railroad if flagging services are needed again after such five
(5) day cessation notice has been given Railroad.



Section 2. LIABILITY.




     (a) For purposes of this Section, the following definitions shall apply:




     (1) “Railroad”: the Railroad and its officers, agents and employees.




     (2) “Industry”: the Industry and its officers, agents and employees.




     (3) “Party”: the Railroad or the Industry.




     (4)
“Third Person”: any individual, corporation or entity other than the Railroad or
the Industry.




     (5) “Loss” means loss of or damage to the property of any Third Person or Party and/or
injury to
or death of any Third Person or Party. “Loss” shall also include, without limitation,
the following associated
expenses incurred by a Party: costs, expenses, the cost of defending litigation,
attorneys’ fees, expert witness
fees, court costs, the amounts paid in settlement, the amount of the judgment, and
pre-judgment and
post-judgment interest and expenses arising from analysis and cleanup of any incident
involving the release of
hazardous substances or hazardous wastes.



Exhibit B
Page 2 of 5














 





			
	ITC Ind Dev-New Trk 03/01/03

Form Approved, AVP-Law
	 	EXHIBIT B






     (b) Except as otherwise specifically provided in this Agreement, all Loss related to
the construction, operation, maintenance, use, presence or removal of the Track shall be allocated
as follows:




     (1) The Railroad shall indemnify Industry from and against Loss arising from or
growing out of the
negligent acts or omissions of the Railroad.




     (2) The Industry shall indemnify Railroad from and against Loss arising from or
growing out of the
negligent acts or omissions of the Industry or arising from:




     (i) any impairment of the Track by Industry as described in Section 1(a);




     (ii) the Industry’s failure to construct or adequately maintain pathways or
walkways as required by Section 1(c);




     (iii) intraplant switching as defined by Section 1(e);




     (iv) the Industry’s failure to comply with Standards, as required by Section
1(f); or




     (v) any explosion or leakage or evaporation of hazardous substances or
hazardous wastes shipped, received or stored by Industry resulting from Industry’s
failure to comply with DOT and other applicable regulations as set forth in
Sections 1(f) and 1(g) of Exhibit B.




     (vi) any damage to Industry’s cargo or commodity stored in railcars on the
Track resulting from any act or event beyond the control of Railroad including,
without limitation, any Act of God and specifically including water damage from
whatever source including drainage runoff and leakage.




     (3) Subsection 2(b)(2), subparagraphs (i) through (v), apply regardless of whether the
Railroad
had notice of, consented to, or permitted the aforesaid impairments, failures,
non-compliance with Standards,
wastes or substances, and whether or not the Railroad or a Third Person contributes to
cause the Loss.




     (4) Except as otherwise more specifically provided in this Agreement, Railroad and
Industry shall
pay equal parts of the Loss that arises out of the joint or concurring negligence of
the Railroad and the Industry,
whether or not the acts or omissions of a Third Person contribute to cause the Loss;
PROVIDED, however, that
nothing in this Agreement shall be construed as impairing the right of either party to
seek contribution or
indemnification from a Third Person.




     (5) Industry expressly and specifically assumes potential liability under this
subsection (b) for
claims or actions brought by Industry’s own employees. Industry waives any immunity
it may have under
worker’s compensation or industrial insurance acts to indemnify Railroad under this
subsection (b). Industry
acknowledges that this waiver was mutually negotiated by the parties hereto.




     (6) No court or jury findings in any employee’s suit pursuant to any worker’s
compensation act or
the Federal Employer’s Liability Act against a party to this Agreement may be relied
upon or used by Industry in
any attempt to assert liability against Railroad.



Section 3.
REARRANGEMENT OF TRACK; ADDITIONAL TRACKAGE.




          (a) The Railroad may rearrange or reconstruct the Track or modify its elevation in order to
develop or
change nearby Railroad property or tracks, provided that the Industry shall continue to have
similar trackage without
additional cost to the Industry. If, however, the change in the Track, or its appurtenances,
is required by or as a result of
any law, ordinance, regulation, or other contingency over which the Railroad has no control,
the Industry shall bear the
cost of the change.



          (b) All references in this Agreement to Track shall apply to the Track as constructed, even if
it differs or
varies from its depiction on Exhibit A. References in this Agreement to Track shall also apply
to rearrangements,
reconstructions, extensions or additions to the Track.



Section 4.
PAYMENT OF BILLS; ASSIGNABLE COSTS.




          (a) Bills for expenses properly chargeable to the Industry pursuant to this Agreement shall
be paid by the Industry within thirty days after presentation by the Railroad except as otherwise
provided. Bills not paid within thirty days shall be subject to interest at the then current rate
charged by the Railroad.



Exhibit B
Page 3 of 5













 





			
	ITC Ind Dev-New Trk 03/01/03

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	 	EXHIBIT B






     (b) “Cost” or “expense” for the purpose of this Agreement shall be all assignable costs and
expenses including all current Railroad cost additives. Material shall be charged at its current
value when and where used. Assignable costs are any costs incurred by the Railroad that are
directly or Indirectly attributable to the construction, maintenance or operation of the Track that
the Railroad has not specifically agreed to pay under the terms of this Agreement.



Section 5. GOVERNMENTAL RESTRICTIONS.




          This Agreement is made subject to all applicable laws, rules and regulations of the United
States Government or any state, municipal, or local governmental authority now or hereafter in
effect.



Section 6. TERMINATION.




     (a)
This Agreement shall terminate automatically upon termination of the CXT Tie
Agreement for any
reason.

     (b)
Industry may terminate this Agreement upon thirty (30) days’ written notice to
Railroad.



     (c) Railroad may terminate this Agreement by sending thirty (30) days’ written notice to
Industry’s last
known address:




     (1) if Industry does not use the Track in an active and substantial way for a
continuous period of
six (6) months; PROVIDED, HOWEVER, that Industry has the option after receipt of such
notice to pay an
annual fee towards the cost of maintaining the switch connection up to the clearance
point. The Railroad’s
notice of termination for lack of use shall state the current amount of the annual fee
and how frequently it may
be adjusted. Industry may accept the option by payment of the annual fee before the
termination becomes
effective on the thirtieth day after notice was mailed; or




     (2) if continued operation of Track (including but not limited to the switch
connection itself)
becomes impracticable due to abandonment or embargo of rail lines, or if the continued
presence of the Track
would interfere with Railroad operations (including but not limited to, line changes,
construction of new lines, or
railroad installation of facilities). In the event Railroad terminates this Agreement
pursuant to this subparagraph,
Railroad shall attempt to provide Industry a substitute switch connection if such a
switch connection would be
reasonably practicable, could be made safely, and would furnish sufficient business to
justify the cost of
construction and maintenance.



     (d) Termination of this Agreement for any reason shall not affect any of the rights or
obligations that the
parties hereto may have accrued, or liabilities, accrued or otherwise, which may have arisen prior thereto.



Section 7. SURRENDER UPON TERMINATION.




          Upon termination of this Agreement howsoever, the Industry shall vacate and surrender the
quiet and peaceable possession of any right-of-way or other property owned by the Railroad upon
which the Track is located. The Railroad shall have the right to remove the portion of the Track
it owns. Not later than the last day of the term of this Agreement, the Industry, at its sole cost
and expense, shall (a) remove from the Railroad’s right-of-way or other property all (i) portions
of the Track owned by the Industry, (ii) obstructions,
(iii) contamination caused by or arising
from the use of the Track for purposes of the Industry, Facilities (as defined in Section 1(b))
and other property not belonging to the Railroad or a third party, located thereon and (b) restore
the Railroad’s right-of-way to as good a condition as the same was in before the date of this
Agreement. If the Industry fails to perform such removal and restoration, or if the work performed
by the Industry is not satisfactory to the Railroad, the Railroad may perform the work at
Industry’s expense. Any portion of the Track owned by Industry and not removed as provided herein
may, at Railroad’s election, be deemed abandoned and Railroad, at Industry’s sole cost and
expense, may remove such portion(s) of the Track from Railroad’s property and dispose of same and
restore Railroad’s property. If Railroad performs such track removal and/or disposal, the Industry
agrees to reimburse the Railroad, within thirty (30) days of its receipt of billing from the
Railroad, for all costs and expenses incurred by Railroad (less any resulting salvage value) in
connection therewith.


Exhibit B
Page 4 of 5













 





			
	ITC Ind Dev-New Trk 03/01/03

Form Approved, AVP-Law
	 	EXHIBIT B






Section 8. NOTICES.




     (a) Any notice, consent or approval that either party hereto desires or is required to give to
the other party
under this Agreement shall be in writing. The notice, consent or approval shall be deemed to
have been given to the
Industry by serving the Industry personally or by mailing the same, postage prepaid, to the
Industry at the last address
known to the Railroad. Notice may be given to the Railroad by mailing the same, postage
prepaid to Union Pacific
Railroad Company, Attention: Real Estate Department, 1400 Douglas Street, Omaha, Nebraska
68179.



     (b) Notices involving a notice of default or termination shall be by certified mail, return
receipt requested,
and such notice shall be deemed given on the date deposited with the United States Postal Service.



Section 9.
ASSIGNMENT; USE BY THIRD PARTIES.




          The Industry shall not assign this Agreement or permit use of the Track by anyone other than
the Industry without the prior written consent of the Railroad. The Industry shall notify the
Railroad in writing of any assignment to an affiliate prior to the effective date of the
assignment. For any departure from the terms of this Section, the Railroad may terminate this
Agreement. The Railroad shall not unreasonably withhold its consent to an assignment of this
Agreement.



Section 10.
SUCCESSORS AND ASSIGNS.




          Subject to the provisions of Section 9, the rights and obligations contained in this
Agreement shall pass to and be binding upon the heirs, executors, administrators, successors and
assigns of the parties to this Agreement.



Exhibit B
Page 5 of 5















 





	 	 	 
	 

	 	Exhibit C
	 

	 	Page 1 of 5










	LBFOST




	ACORD(Tm) CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY) 01/11/05

PRODUCER
The HDH Group, Inc. P&C US Steel Tower, Suite 1100 600 Grant Street Pittsburgh, PA 15219-2804
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE

INSURED
L.B. Foster Company CXT, Inc.
415 Holiday Drive Pittsburgh, PA 1S220
COVERAGES




	insurer* St. Paul Travelers 25658 INSURER B: INSURER C: INSURER D: INSURER E ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
TYPE OF INSURANCE
GENERAL LIABILITY
COMMERCIAL GENERAL LIABILITY
OCCUR
CLAIMS MADE
GEN-L AGGREGATE LIMIT APPLES PER:
POLICY NUMBER
POLICY EFFECTIVE
date (mm/dd/yyyy)
POLICY EXPIRATION DATE (MM/DD/YYYY)
LIMITS




	EACH OCCURRENCE $ $ MED EXP (Any one person) $ PERSONAL SAW INJURY $ GENERAL AGGREGATE $ PRODUCTS — COMP/OP AGG $
POLICY
AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS
PHYSICAL DAMAGE
IS SELF-INSURED
GARAGE LIABILITY ANY AUTO
EXCESS/UMBRELLA LIABILITY
OCCURCLAIMS MADE
DEDUCTIBLE RETENTION $
WORKERS COMPENSATION AND EMPLOYERS’ LIABILITY
ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below
8100308B464TIL05 CAP200D8675COF05
01/01/05 01/01/03
01/01/06 01/01/06




	COMBINED SINGLE LIMIT (Ea accident] $1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (WraccMBit) $ PROPERTY DAMAGE (Per accident) $ AUTO ONLY — EA ACCIDENT $ OTHER
THAN            EA ACC $ AUTO ONLY: AGG $ EACH OCCURRENCE $ AGGREGATE $ $ $ $ E.L EACH ACCIDENT $ E.L DISEASE • EA EMPLOYEE ! E.L. DISEASE -POLICY LIMIT $ OTHER
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS
The above referenced policy Includes a Workers’ Compensation & Employee exclusion which applies only to LB Foster’s employees. The above referenced policy does not Include a railroad exclusion or explosion, collapse and underground
hazard exclusion. Severability of Interest is See Attached Descriptions)
CERTIFICATE HOLDER
Union Pacific Railroad
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATETHEREOF.THEISSUINS1NSURERWIU.ENOEAVORTOHAIL 30 DAY WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR
LIABILITY OF ANY KIND UFON THE INSURER, ITS AGENTS OR
REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
Exhibit C Page 2 of 5
IMPORTANT
If the certificate holder Is an ADDITIONAL INSURED, the pollcy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements).
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or
alter the coverage afforded by the policies listed thereon.
Included in the policy form.
DESCRIPTIONS (Continued from Page 1)
Exhibit C Page 3 of 5





	ACORD 25 (2001/08) 1 of 3

	 	#M104846
	 	LF0
	 	© ACORD CORPORATION 1988






 









 





	 	 	 
	 

	 	Exhibit C
	 

	 	Page 2 of 5










IMPORTANT



If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be
endorsed. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).



If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,
certain policies may require an endorsement. A statement on this certificate does
not confer rights to the certificate holder in lieu of such endorsement(s).




DISCLAIMER



The Certificate of Insurance on the reverse side of this form does not
constitute a contract between the issuing insurer(s), authorized representative
or producer, and the certificate holder, nor does it affirmatively or negatively
amend, extend or alter the coverage afforded by the policies listed thereon.







	 	 	 	 	 
	ACORD 25-S (2001/08)

	 	2 of 3
	 	#M104846






 









 





	 	 	 
	 

	 	Exhibit C
	 

	 	Page 3 of 5





 





DESCRIPTIONS (Continued from Page 1)







Included in the policy form.







	 	 	 	 	 
	AMS 25.3 (2001/08)

	 	3 of 3
	 	#M104846






 









 





	 	 	 
	 

	 	Exhibit C
	 

	 	Page 4 of 5










	PRODUCER            THIS CERTIFICATE IS ISSUED AS A MATTER
OF INFORMATION ONLY AND CONFERS
Marsh USA Inc. no rights upon the certificate holder
other than those provided in the
Six PPG Place, Suite 300 policy. this certificate does not amend,
extend or alter the coverage
Pittsburgh, PA 15222 afforded by the policies
described herein.
Attn:Myles Rooney (412)552-5160 COMPANIES AFFORDING COVERAGE




	COMPANY
051823-ALL-05/06 L.B. A            STEADFAST INSURANCE COMPANY




	INSURED            COMPANY
L. B. FOSTER COMPANY            B            ZURICH INSURANCE COMPANY
ATTN: David Russo
PO Box 2806 COMPANY
Pittsburgh, PA 15230 C            SENTRY INSURANCE COMPANY




	COMPANY




	THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED
NAMED HEREIN FOR THE POLICY PERIOD INDICATED.




	PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE
TERMS, CONDITIONS AND EXCLUSIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN
REDUCED BY PAID CLAIMS.




	CO            TYPE OF INSURANCE            POLICY
NUMBER            POLICY EFFECTIVE            POLICY EXPIRATION
LTR            TYPE OF INSURANCE            POLICY
NUMBER            DATE (MM/DD/YY) DATE (MM/DD/YY)
LIMITS




	GENERAL LIABILITY            GENERAL AGGREGATE $ 2,000,000
A            X COMMERCIAL GENERAL LIABILITYSCO 3872553-03 01/01/05 01/01/06
PRODUCTS — COMP/OP AGG $ 2,000,000
CLAIMS MADE [X | OCCUR            PERSONAL 4 ADV
INJURY $ 1,000,000
OWNER’S 4 CONTRACTOR’S PROT            EACH OCCURRENCE
$ 1,000,000
X DEDUCTIBLE —  $ 250,000/occUr. fire damage (Any
one fire) $ 300.000
X $1,000,000 Ded. Aggregate            med exp (Any one
person) $ 10,000
AUTOMOBILE LIABILITY

COMBINED SINGLE LIMIT $
ANY AUTO
ALL OWNED AUTOS            BODILY INJURY
SCHEDULED AUTOS
HIRED AUTOS            BODILY INJURY
NONOWNED AUTOS (Per accident)




	PROPERTY DAMAGE $




	GARAGE LIABILITY            AUTO ONLY-EA
ACCIDENT $
ANY AUTO            OTHER THAN AUTO
ONLY:
EACH
ACCIDENT $
AGGREGATE $
EXCESS LIABILITY            EACH OCCURRENCE
$ 10,000,000




	B            X uMBRELLA FORM            AUC 9378203-01 01/01/05 01/01/06
AGGREGATE___$
10,000,000




	I OTHER THAN UMBRELLA FORM
$WORKERS COMPENSATION AND
1
X WC STATU- OTH-
EMPLOYERS’ LIABILITY
TORY LIMITS |_I3_
C 90-14714-01 (AOS)) 01/01/05 01/01/06 EL EACH ACCIDENT
Si 1,000,000




	C            THE PROPRIETOR/ [X] |NCL 90-14714-02 (MA & OR)
01/01/05 01/01/06 EL DISEASE-POLICY LIMIT
$        I,000,000
PARTNERS/EXECUTIVE
OFFICERS ARE:
EXCLEL DISEASE-EACH EMPLOYEE $1,000,000
OTHER




	DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
Union Pacific Railroad Is named Additional Insured but only with regard to those sums that L. B.
Foster Company becomes legally obligated to pay as damages because of bodily injury or property
damage to which this general liability policy applies. Includes a Waiver of Subrogation where
permitted by law. The exclusions for railroads (except where the Job Site is more than fifty feet
(50’) from any railroad including but not limited to tracks, bridges, trestles, roadbeds,
terminals, underpasses or crossings), and explosion, collapse and underground hazard shall be
removed.




	SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE TOE EXPIRATION DATE THEREOF,
THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO TOE
Union Pacific Railroad            CERTIFICATE HOLDER NAMED HEREIN. BUT FAILURE TO
MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR
1416 Dodge Street
Omaha, NE 68179 liability of any kind upon the insurer
affording coverage. its agents or representatives, or the




	ISSUER OF THIS CERTIFICATE,
MARSH USA INC.
by /s/ R Scott Holder,





 









 






	 	 	 
	 

	 	Exhibit C
	 

	 	Page 5 of 5










	ADDITIONAL INFORMATIN            CLE-00117812-10
PRODUCER




	Marsh USA Inc. COMPANIS AFFORDING COVERAGE
Six PPG Place, Suite 300 company
Pittsburgh, PA 15222 E
Attn: Myles Rooney (412) 552-5160




	COMPANY
F
051823-ALL-05/06 L.B.




	INSURED COMPANY
L. B, FOSTER COMPANY
ATTN: David Russo            G
PO Box 2806
Pittsburgh, PA 15230




	COMPANY
H




	TEXT




	The Workers Compensation policy contains an Alternate Employer Endorsement in favor of the Union Pacific Railroad.
The General Liability Policy Includes an endorsement providing Severability of Interest. The Umbrella Policy
follows forms.




	CERTIFICATE HOLDER




	Union Pacific Railroad 1416 Dodge Street Omaha, NE 8179




	MARSH USA INC. BY






 










 











 









 













 









 













 









 













 









 













Note: — T.O. for ZTS
Tracks # 011019, and 012 have been relocated