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WHEREAS, Owner and O'Brien are parties to that certain Mutual Driveway Easement
<br />Agreement dated as of November 2005 (the "Driveway Easement"), with respect to the
<br />Encroachment pursuant to which Owner and O'Brien set forth their respective rights and
<br />obligations with respect to the driveway and the Easement Area (as defined in the Driveway
<br />Easement); and
<br />WHEREAS, Owner has been advised by Northern that Northern is a natural gas
<br />transmission company and that Northern operates a high pressure underground natural gas
<br />pipeline through the Owned Premises; and
<br />WHEREAS, Owner and O'Brien have requested permission from Northern to maintain,
<br />use, and enjoy the Encroachment upon portions of Northern's Easement and in close proximity
<br />to Northern's Pipeline Facilities; and
<br />WHEREAS, Northern is willing to grant such permission upon the terms and conditions set
<br />forth as follows.
<br />NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
<br />hereinafter set forth, the parties hereto agree as follows:
<br />1. Northern hereby grants permission to Owner to maintain, operate and use upon the
<br />Owned Premises and upon and in close proximity to Northern's Pipeline Facilities, the said
<br />Encroachment, subject to the following conditions:
<br />A. Any future Owner (excluding the EDA) assumes all risks for damages, injuries, or
<br />loss to either property or persons, which may be incurred by Owner or its agents, invitees, or
<br />licensees present on or in the vicinity of the Easement and in any way associated with said
<br />Encroachment, unless caused by the negligence or willful misconduct of Northern, its agents or
<br />employees. Northern hereby acknowledges and agrees that the EDA did not construct and does
<br />not have any obligation to maintain or repair the Encroachment under the terms of the Driveway
<br />Easement and accordingly, notwithstanding anything to the contrary herein, so long as the EDA
<br />is the "Owner" of the Owned Premises, the EDA shall have no liability to Northern whatsoever
<br />in connection with the Encroachment unless caused by the gross negligence or willful
<br />misconduct of the EDA, its agents and employees.
<br />B. That the permission granted herein is limited exclusively to the proposed
<br />Encroachment within Northern's Easement. Owner shall not alter the grade or permit such
<br />alteration anywhere on the land upon which Northern has reserved its easement rights, without
<br />the prior express written consent of Northern, which consent shall not be unreasonably withheld.
<br />C. That Owner shall at all times conduct all its activities on said Easement in such a
<br />manner as not to materially interfere with or impede the operation of Northern's Pipeline
<br />Facilities and activities in any manner whatsoever.
<br />D. That Owner shall not plant any trees or shrubs within the confines of Northern's
<br />Easement without the prior express written consent of Northern, which consent shall not be
<br />unreasonably withheld.
<br />2. Any Owner (other than the EDA) agrees to indemnify, protect, and hold Northern, its
<br />pazent, affiliates, subsidiaries, and their directors, officers, employees, representatives, and
<br />agents harmless from and against any and all actions or causes of action, claims, demands,
<br />liabilities, loss, damage, injury, suit, proceeding, judgment, cost, or expense of whatever kind or
<br />nature, including but not limited to reasonable attorneys' fees, arising from or as a result of any
<br />incident, act, action, cause of action, negligence, transaction or omission of such Owner
<br />(excluding the EDA) in connection with, or incidental to the operation, maintenance, or use of
<br />the said Encroachment with and upon the Easement except where such loss, cost, liability, or
<br />expense was proximately caused by the negligence or willful misconduct of Northern or its
<br />agents or employees.
<br />3. All repair and maintenance work performed by Northern on its existing or additional
<br />Pipeline Facilities located on the Owned Premises shall be performed in a reasonable
<br />workmanlike manner and Northern shall restore the surface and grade of the Owned Premises
<br />where the work is performed.
<br />1840432v4
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