1. In this Agreement, the term “Shipper” refers jointly to the Driver and the Transportation Company, who shall be jointly and severally liable for the obligations of the Shipper hereunder.
2. Shipper’s use of Facility shall be non-exclusive, only for the purpose stated in this Agreement, and subject and subordinate to the prior and continuing right and obligation of Owner to use and maintain its entire property. In no event shall the Facility be used by Shipper for the transportation or storage of hazardous materials, as defined by any agreements between Owner and Shipper, or applicable governmental laws, rules, regulations and orders, unless expressly agreed to in writing by Owner.
3. Due to the potentially dangerous nature of the Owner’s railroad operations, Shipper shall comply with all applicable governmental laws, rules, regulations and orders in its use of the Facility, including governmental laws, regulations, standards and permit requirements relating to environmental pollution or contamination or to occupational health and safety, and shall conduct its operations in a manner that is free from safety and health hazards. Shipper shall ensure that its employees or contractors are competent, adequately trained in all safety and health aspects of Shipper’s operations, suitably dressed and equipped, and not under the influence of any alcoholic beverage, illegal drug, or any substance that may impair the safe performance of their work. Shipper shall strictly observe the rules, regulations or directions of Owner or its authorized representatives. Shipper shall be solely responsible for the safety of its use of the Facility, both as concerns Shipper’s property and employees or contractors, the property of Shipper, and the property and employees of Owner and other users of the Facility. Owner shall have no responsibility for Shipper’s operations, employees or contractors. Shipper’s employees and contractors shall in no event be deemed to be employees of Owner. Shipper shall promptly notify Owner of any OSHA reportable injuries to any person during Shipper’s use of the Facility.
4. Shipper shall not cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of Owner, its lessees, licensees or others. Nothing shall be done or permitted by Shipper that would impair the safety thereof. When not in use Shipper’s vehicles and equipment shall be kept at least 10 feet from the centerline of Owner’s nearest track and shall be removed from the Facility when the loading or unloading is completed, and there shall be no vehicular crossings of Owner’s tracks except at existing open public crossings.
5. Shipper shall be responsible for the repair or replacement of any damaged or destroyed property of Owner or other users of the Facility, including disturbance of the alignment and surface, interlocking or other facilities which Owner maintains, when such damage or destruction arises in any manner out of the Shipper’s use of the Facility.
6. Shipper shall not release, dispose of or place any materials (including hazardous materials) or debris within the Facility, and shall be responsible for removing and properly disposing of any such materials or debris. Notwithstanding anything in this Agreement to the contrary, Shipper shall have no liability or responsibility for the condition of the Facility or the underlying property except as may be caused by Shipper.
7. TO THE EXTENT PERMITTED BY LAW, SHIPPER RELEASES AND WAIVES ANY CLAIMS IT MAY HAVE AGAINST OWNER OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (“RELEASED PERSONS”) FOR DAMAGE TO PROPERTY OR INJURY SUSTAINED BY SHIPPER AS THE RESULT OF ANY ACT OR OMISSION OF THE RELEASED PERSON IN ANY WAY CONNECTED WITH ANY LOSS COVERED BY INSURANCE, WHETHER REQUIRED HEREIN OR NOT, OR WHICH SHOULD HAVE BEEN COVERED BY INSURANCE REQUIRED HEREIN, INCLUDING THE DEDUCTIBLE OR UNINSURED PORTION THEREOF, MAINTAINED OR REQURIED TO BE MAINTAINED BY SHIPPER PURSUANT TO THIS AGREEMENT. THE WAIVER OF CLAIMS CONTAINED IN THIS SECTION WILL APPLY EVEN IF THE LOSS IS CAUSED IN WHOLE OR IN PART BY THE ORDINARY NEGLIGENCE OR STRICT LIABILITY OF THE RELEASED PERSONS BUT WILL NOT APPLY TO THE EXTENT A LOSS OR DAMAGE IS CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE RELEASED PERSONS.
8. TO THE EXTENT PERMITTED BY LAW, SHIPPER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS OWNER AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AGAINST ANY CLAIM BY ANY THIRD PARTY FOR INJURY TO ANY PERSON OR DAMAGE TO OR LOSS OF ANY PROPERTY OCCURRING IN OR AROUND THE FACILITIES AND ARISING FROM (A) THE USE OR OCCUPANCY BY SHIPPER OF THE FACILITIES, OR (B) ANY BREACH BY SHIPPER OF THIS AGREEMENT, OR (C) ANY OTHER ACT OR OMISSION OR NEGLIGENCE OF SHIPPER OR ITS OFFICERS, DIRECTORS, EMPLOYEES CONTRACTORS OR AGENTS.
9. Shipper shall at all times during its entry, use and occupancy of the Facility keep and maintain in full force and effect (a) commercial general liability insurance coverage of $2,000,000 on ISO form CG 00 01, or equivalent, for (i) bodily injury and death, property damage and personal injury; and (ii) contractual liability; (b) business automobile and/or trucker’s liability insurance coverage, including coverage for owned, hired and non-owned automobile liability, on ISO form CA 00 01, or equivalent, with an inclusive limit of not less than $2,000,000 for any one occurrence in respect of the use or operation of motor vehicles owned, leased or controlled by Shipper; and (c) worker’s compensation insurance coverage meeting the statutory requirements of the State of Minnesota covering all of Shipper’s employees, including employee’s liability limits of not less than $500,000. This insurance shall name Owner as an additional insured, and include a waiver of subrogation by insurer as to Owner. Evidence of such insurance coverage on an ACCORD form has been or will be provided to Owner prior to or upon entry to the Facility.