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<br />e <br /> <br />e <br /> <br />-4- <br />designate that portion of the Common Use Tracks to be used by <br />Grantee, and by Potential Common Users (as defined below) which <br />choose to connect to a westerly extension by Grantor, its successors <br />or assigns, of Future Lead Track. At the time of such designation, <br />Grantor, its successors or assigns, shall reimburse an allocated <br />percentage of the then fair market value of the Common Use Track, <br />based upon each Common Use Track user's contemplated percentage use <br />of the Common Use Track. Fair Market shall be defined as the then <br />depreciated value of improvements, with no value placed on the <br />easement itself, as determined by an appraisal by a qualified <br />industrial appraiser with railroad appraisal experience, to be <br />mutually selected by the parties. If the parties cannot agree on an <br />appraiser, the appraiser shall be designated by the presiding Judge <br />of the Harris County District Courts, acting in an administrative <br />and not a judicial capacity. The results of the appraisal shall be <br />binding on Grantor and Grantee, their successors and assigns, who <br />shall equally share in the cost of the appraisal. It is contemplated <br />by Grantor and Grantee that the Common Use Track will at that time, <br />or within a reasonable time thereafter, be conveyed by Grantee to <br />Southern Pacific Transportation Company, its successors or assigns, <br />for ownership and maintenance. In the event that Southern Pacific <br />Transportation Company, its successors or assigns, will not accept <br />the ownership and maintenance of said Common Use Track, Grantee and <br />Grantor, their successors or assigns, for the Potential Common Users <br />desiring to utilize said Common Use Tracks, agree to enter into a <br />joint use and maintenance agreement as to such Common Use Tracks. <br />Such joint use and maintenance agreement shall provide for the <br />