|
Contractor's ROE ExB 7/30/01
<br />Form Approved, AVP-Law
<br />C. The Contractor shall have proper first aid supplies available on the job site so that prompt first aid services may be
<br />provided to any person injured on the job site. The Contractor shall promptl~~ notify the Railroad of any U.S. Occupational
<br />Safety and Health Administration reportable injuries. The Contractor shall have a nondelegable duty to control its employees
<br />while they are on the job site or any other property of the Railroad, and to be certain they do not use, be under the influence of,
<br />or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work.
<br />D. If and when requested by the Railroad, the Contractor shall deliver to the Railroad a copy of the Contractor's safety
<br />plan for conducting the work (the "Safety Plan"). Railroad shall have the right, but not the obligation, to require the Contractor
<br />to correct any deficiencies in the Safety Plan. The terms of this agreement shall control if there are any inconsistencies between
<br />this 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
<br />Railroad, its affiliates, and its and their officers, agents and employees ("Indemnified Parties") from and against any and all loss,
<br />damage, injury, liability, claim, demand, cost or expense (including, without limitation, attorney's, consultant's and expert's fees,
<br />and court costs), fine or penalty (collectively, "Loss") incurred by any person (including, without limitation, any Indemnified
<br />Party, the Contractor, or any employee of the Contractor or of any Indemnified Party) arising out of or in any manner connected
<br />with (i) any work performed by the Contractor, or (ii) any act or omission of the Contractor, its officers, agents or employees, or
<br />(iii) any breach 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 Indemnfied 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
<br />industrial insurance acts to indemnify the Railroad under this Section 8. Contractor acknowledges that this waiver was
<br />mutually negotiated 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
<br />against the Railroad.
<br />E. The provisions of this Section 8 shall survive the completion of any work performed by the Contractor or the
<br />termination or expiration of this agreement. In no event shall this Section 8 or any other provision of this agreement be deemed
<br />to limit any 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
<br />the Contractor shall, as soon as possible and at Contractor's sole expense, restore such fence and other property to the same
<br />condition as the same were in before such fence was taken down or such other property was moved or disturbed. The
<br />Contractor shall remove all of Contractor's tools, equipment, rubbish and other materials from Railroad's property promptly
<br />upon complefion of the work, restoring Railroad's property to the same state and condition as when Contractor entered thereon.
<br />Section 10. WAIVER OF DEFAULT.
<br />Waiver by the P.ailroad 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. MODIFICATION -ENTIRE AGREEMENT.
<br />No modification of this agreement shall be effective unless made in writing and signed by the Contractor and the
<br />Railroad. This agreement and the exhibits attached hereto and made a part hereof constitute the entire understanding between
<br />the Contractor and the Railroad and cancel and supersede any prior negotiations, understandings or agreements, whether
<br />written or oral, with respect to the work to be performed by the Contractor.
<br />C:ATEMP\2151-3SCitq of San Leandro, CA-Alvarado5tdo~ Page ~ El~llblt ~+
<br />
|