C.3.2_HSR14-64_(UPRR_Env).pdf

IFB No.: HSR25-12 Fresno Station Early Works

Railroad Agreement

C.3.2 HSR14-64 (UPRR Env)

Revision(s) Date Description 0 12/10/2025 Initial Release

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Environmental Liability and Indemnity Agreement Between Union Pacific Railroad and the California High-Speed Rail Authority

Related to High-Speed Passenger Rail Development in California

This Environmental Liability and Indemnity Agreement Between Union Pacific Railroad and the California High-Speed Rail Authority Related to High-Speed Passenger Rail Development in California is entered this 23rd day of December, 2014 by and between Union Pacific Railroad Company (“UPRR”) and the California High-Speed Rail Authority (“CHSRA”) with respect to the following recitals:

RECITALS

A. UPRR owns, operates, maintains, and dispatches a significant network of critical freight rail routes in California that also host both intercity and commuter passenger rail service. UPRR plays a vital role for both the national and the state economies by maintaining and expanding its ability to move freight by rail; to serve the state’s ports and other shippers; and to relieve the state’s crowded highway network by facilitating the transportation of goods by rail rather than truck, thus reducing traffic congestion, air-pollutant emissions, greenhouse gas emissions, and energy consumption. UPRR operates on its own rights of way and under agreement on rights of way owned by other entities.

B. CHSRA is a state entity composed of nine members appointed by the Governor, the Senate Committee on Rules, and the Speaker of the Assembly. Under its organizing statutes, CHSRA directs the development and implementation of intercity high-speed rail service that is fully integrated with the state’s existing rail and bus network, consisting of interlinked conventional and high-speed rail lines and associated feeder buses. The intercity network in turn will be fully coordinated and connected with commuter rail lines and urban rail transit lines developed by local agencies.

C. In 2008, the Legislature and the people of California approved Proposition 1A, a $9.95 billion bond measure to initiate the construction of a high-speed train system that connects San Francisco Transbay Terminal to Los Angeles Union Station and Anaheim, and links the state’s major population centers, including Sacramento, the San Francisco Bay Area, the Central Valley, Los Angeles, the Inland Empire, Orange County, and San Diego (the “Project”). $9 billion of the Proposition 1A bond proceeds must be used for planning, engineering, and capital costs for the high-speed rail system. $950,000,000 of the Proposition 1A bond proceeds must be allocated to eligible recipients for capital improvements to intercity and commuter rail lines and urban systems that provide connectivity to the high-speed train system and its facilities, or that are part of the construction of the high-speed train system, or provide capacity enhancements and safety improvements. The federal government awarded $3.8 billion in grants under several federal grant cooperative agreements for the California High-Speed Train System. Proposition 1A bond proceeds will be used as federal grant matching funds.

D. The CHSRA Revised 2012 Business Plan and 2014 Business Plan (collectively, and as revised from time to time, the “Business Plan”) propose a route for the CHSRA system that will cross above or below or run adjacent to UPRR’s rights of way in some locations.

E. UPRR, CHSRA, and certain regional commuter rail operators executed a Memorandum of Understanding and Implementing Agreement Related to High-Speed Rail Development in California dated July 11, 2012 (the “MOU”).

F. UPRR and CHSRA executed an Insurance and Indemnity Agreement Related to High- Speed Rail Development in California dated November 15, 2013 (the “Insurance and Indemnity Agreement”).

G. In connection with the planning and implementation of the Project, CHSRA and its representatives and contractors will need to access property owned or operated by UPRR, and in certain cases to acquire from UPRR easements over property or fee simple ownership of property owned by UPRR, for purposes of developing, constructing, maintaining, and operating the Project.

H. The parties desire to enter into this agreement to set forth CHSRA’s and UPRR’s rights and obligations regarding Environmental Conditions and Hazardous Materials as defined herein, and it is the intent of the parties that the scope of this agreement is for the entire Project.

NOW, THEREFORE, the parties hereto agree as follows:

AGREEMENT

Article 1. Incorporation of Recitals.

The recitals set forth above are hereby incorporated into the terms of this agreement.

Article 2. Defined Terms.

2.1. “Acquired Permanent Easement Property” means any parcel of UPRR Property in connection with the Project on which UPRR grants a permanent, exclusive easement to CHSRA for the use of such UPRR Property pursuant and subject to the terms of an Easement Acquisition Agreement.

2.2. “Acquired Non-Exclusive Easement Property” means any parcel of UPRR Property in connection with the Project on which, by separate agreement, UPRR grants a non-exclusive easement to CHSRA for the use of such UPRR Property pursuant and subject to the terms of the agreement granting such non-exclusive easement. With respect to any easement for an aerial structure crossing over UPRR Property, “Acquired Non-Exclusive Easement Property” refers to those portions of the parcel occupied by footings or other permanent Project structures attached to the ground surface. “Acquired Non-Exclusive Easement Property” does not include Temporary Easement Properties.

2.3. “Acquired Property” means any Acquired Permanent Easement Property or Acquired Quitclaim Property.

2.4. “Acquired Quitclaim Property” means any parcel of UPRR property for which, by separate agreement, UPRR quitclaims UPRR’s right, title, and interest in such parcel to CHSRA and CHSRA has accepted such quitclaim, whether such parcel was previously the subject of an easement granted by UPRR to CHSRA or otherwise. Any Acquired Permanent Easement Property quitclaimed to and accepted by CHSRA will, upon such quitclaim, become Acquired Quitclaim Property.

2.5. “Actual Knowledge” means, with respect to UPRR, the actual knowledge of the Director of Environmental Management-Site Remediation of UPRR based upon written documentation in the possession of UPRR, including but not limited to any Phase I and Phase II environmental site assessment reports, other environmental reports, and written correspondence with any governmental authority or third party concerning any Environmental Condition or Hazardous Materials in, on, or under a UPRR Property, with no implied duty of investigation or imputed knowledge due to his position or title.

2.6. “Additional Construction Investigation” means any additional Investigation conducted by or on behalf of CHSRA of an Environmental Condition or Hazardous Materials discovered, disturbed, Released, or Threatened to be Released during Construction Activities.

2.7. “Additional Investigation” means any additional Investigation conducted by or on behalf of CHSRA of an Environmental Condition or Hazardous Materials discovered, disturbed, Released, or Threatened to be Released during the property Investigation.

2.8. “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendment Reauthorization Act of 1986 (42 U.S.C. § 9601 et seq.).

2.9. “CHSRA” means the California High-Speed Rail Authority.

2.10. “CHSRA Representatives” means CHSRA employees, agents, representatives, contractors, or subcontractors of any tier.

2.11. “Claim” means any fine, penalty, judgment, award, settlement, claim, demand, liability, obligation, loss, damage, cost, and expense, including but not limited to all costs of Investigation and Remediation and reasonable attorney fees and costs (including all reasonable litigation costs incurred by UPRR, including without limitation costs of experts and consultants).

2.12. “Construction Activities” means demolition, excavation, trenching, utility relocation, grading, and construction activities undertaken by or on behalf of CHSRA on a UPRR Property for the Project, and maintenance, repair, and replacement by or on behalf of CHSRA of any CHSRA facilities on UPRR Property.

2.13. “Construction Disposal Work” means filling or sealing off any holes or excavations made in connection with such Construction Activities at the end of CHSRA’s work and/or disposing offsite any soil or other materials excavated by or on behalf of CHSRA during Construction Activities that were found to have an Environmental Condition or contain Hazardous Materials at levels precluding reuse under applicable Law.

2.14. “Easement Acquisition Agreement” means an agreement between UPRR and CHSRA for the acquisition of an Acquired Permanent Easement Property.

2.15. “Environment” means the soil, surface waters, groundwaters, land, stream sediments, surface or subsurface strata, ambient air, and any environmental medium.

2.16. “Environmental Condition” means any condition with respect to the soil, surface waters, groundwaters, land, stream sediments, surface or subsurface strata, ambient air, and any environmental medium, on or off UPRR Property, whether or not yet discovered, which could or does result in any Claims” including without limitation, any such condition resulting from CHSRA’s activities in connection with developing, constructing, maintaining, and operating the Project.

2.17. “Environmental Law” means any and all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any governmental authority regulating, relating to or imposing liability or standards of conduct concerning, any Hazardous Material or environmental protection or health and safety, as now or may at any time hereafter be in effect, including without limitation: CERCLA, the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et seq.), Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), the Clean Water Act (33 U.S.C. § 1321 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42 U.S.C.

§ 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2501 et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C. § 11001 et seq.), the Radon Gas and Indoor Air Quality Research Act of 1986 (42 U.S.C § 7401 et seq.), the National Environmental Policy Act (42 U.S.C. § 4321 et seq.), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code §§ 13020 et seq.); the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code §§ 25249.5 et seq.); the Hazardous Waste Control Act (Cal. Health & Safety Code §§ 25100 et seq.); the Hazardous Materials Release Response Plans & Inventory Act (Cal.

Health & Safety Code §§ 25500 et seq.); and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal. Health & Safety Code §§ 25300 et seq.); together, in each case, with any amendment thereto, and the regulations adopted and publications promulgated thereunder and all substitutions thereof.

2.18. “HSR” has the meaning set forth in the Recitals.

2.19. “Hazardous Material” means: (A) any solid, liquid, gaseous, or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste, and including waste materials to be recycled, reconditioned, or reclaimed; (B) those substances included within the definition of “hazardous material,” “pollutant,” “contaminant,” “hazardous substance,” “pollutants,” “waste water,” “storm-water,” “toxic substance,” “hazardous air pollutant,” “regulated substance,” “solid waste,” “insecticide,” “fungicide,” “rodenticide,” or “hazardous waste:” as defined in Environmental Law; (C) any material, waste, or substance, which is (1) petroleum product or byproduct, (2) asbestos, (3) flammable or explosive,

(4) polychlorinated biphenyls, (5) urea formaldehyde, or (6) radioactive; and (D) such other substances, materials, and wastes, which are or become regulated or classified as hazardous or toxic under federal, state, or local law.

2.20. “Inspection Disposal Work” means filling or sealing off all borings and/or test holes drilled or excavated by or on behalf of CHSRA or disposing offsite any soil or other materials excavated by or on behalf of CHSRA during such Investigations that were found to have an Environmental Condition or contain Hazardous Materials at levels precluding reuse under applicable Laws.

2.21. “Insurance and Indemnity Agreement” has the meaning set forth in the Recitals.

2.22. “Investigation” means any surface environmental inspections, environmental testing, installation, operation, and removal of groundwater monitoring and treatment wells, or related activities conducted by or on behalf of CHSRA on UPRR Property with respect to Hazardous Materials on, or the Environmental Condition of, UPRR Property.

2.23. “Laws” means federal, state, and local governmental laws, rules, regulations, or ordinances, including Environmental Laws.

2.24. “MOU” has the meaning set forth in the Recitals.

2.25. “Project” has the meaning set forth in the Recitals.

2.26. “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, disposing, dispersing, seeping, migrating, or dumping into the Environment.

2.27. “Remediation” means any cleanup, containment, decontamination, removal, disposal, restoration, response action, corrective action, closure, and post-closure response as defined by Environmental Law of an Environmental Condition or Hazardous Materials discovered, disturbed, Released, or Threatened to be Released on UPRR Property.

2.28. “Returned Easement Property” means any Acquired Permanent Easement Property or Acquired Non-Exclusive Easement Property with respect to which, pursuant to the terms of an Easement Acquisition Agreement or other agreement between CHSRA and UPRR, CHSRA or UPRR has terminated CHSRA’s easement rights by transferring or returning to UPRR all of CHSRA’s right, title, and interest in such parcel, or such right, title, and interest have been transferred or returned to UPRR by operation of law upon extinguishment of the applicable easement, and UPRR has accepted such transfer or return pursuant to the Easement Acquisition Agreement or other applicable agreement.

2.29. “Strict Liability” means a legal obligation to pay damages imposed on UPRR and Related Persons by Environmental Law, without intention or fault and arising out of the actual, alleged, or threatened Environmental Condition or Release or Threat of Release of a Hazardous Material under this agreement.

2.30. “Temporary Easement Property” means any parcel of UPRR Property in connection with the Project on which, by separate agreement, UPRR grants a temporary easement to CHSRA for the use of such UPRR Property for access, laydown, or other purposes during Project construction.

2.31. “Threat of Release,” “Threatened to be Released,” or “Threatens a Release” means threat of a Release as defined by Environmental Laws, including judicial decisions applying Environmental Laws.

2.32. “UPRR” means Union Pacific Railroad Company.

2.33. “UPRR and Related Persons” means UPRR and its officers, agents, employees, affiliates (including but not limited to its parent, Union Pacific Corporation), representatives, assigns, and successors.

2.34. “UPRR Property” means property operated (for purposes of CERCLA) or owned, in fee or easement, by UPRR, including any Acquired Permanent Easement Property, Acquired Non-Exclusive Easement Property, and Temporary Easement Property, but not including Acquired Quitclaim Property once such property has been quitclaimed to and accepted by CHSRA.

Article 3. Environmental Liability Relating to Property Investigations.

3.1. Property Investigations.

If by an agreement, including an Invasive Environmental Right of Entry Agreement substantially in the form attached hereto as Exhibit A, UPRR authorizes CHSRA and CHSRA Representatives to enter upon and inspect UPRR Property for purposes of performing Investigations, then any such Investigations by or on behalf of CHSRA will be conducted in accordance with applicable standards customarily employed in the industry and in compliance with all applicable Laws and with the terms of the agreement authorizing CHSRA and CHSRA Representatives to conduct such Investigations. CHSRA is authorized to conduct a Phase 2 environmental site assessment of any UPRR Property that CHSRA proposes will become Acquired Property or Acquired Non-Exclusive Easement Property after giving written notice of such proposed Phase 2 environmental site assessment to UPRR.

3.2. Environmental Condition or Hazardous Materials Discovered or Disturbed During Property Investigations.

3.2.1. Prior to the date scheduled for CHSRA to commence conducting any property Investigation work on a UPRR Property that will involve invasive testing, UPRR will notify CHSRA in writing of any Environmental Condition or Hazardous Materials that UPRR has Actual Knowledge are present in, on, or under such UPRR Property. If during the course of any property Investigation described in Section 3.1, any Environmental Condition or Hazardous Materials are discovered, disturbed, Released, or Threatened to be Released in, on, or under the UPRR Property (including Environmental Condition or Hazardous Materials disclosed by UPRR), CHSRA will promptly provide written notice of such event to UPRR, including in reasonable detail the location, level, and nature of such Environmental Condition or Hazardous Materials and any laboratory reports or tests on such Environmental Condition or Hazardous Materials. If CHSRA or any CHSRA Representative discovers, disturbs, Releases, or Threatens a Release in, on, or under a UPRR Property an Environmental Condition or Hazardous Materials requiring immediate notification of government authorities, CHSRA must simultaneously notify

UPRR.

3.2.2. As between CHSRA and UPRR, CHSRA will be solely responsible, and at its sole cost, for any (i) Investigation; (ii) Inspection Disposal Work; (iii) Additional Investigation; and (iv) any delay in or increased cost because of such Investigation, Inspection Disposal Work, or Additional Investigation or any delay or increased costs of the Project as the result of the presence of such Environmental Condition or Hazardous Materials. In addition, as between CHSRA and UPRR, CHSRA will be solely responsible, and at its sole cost, for any Remediation and any delay or increased costs of the Project, to the extent the Remediation is required by Environmental Law, or the delay or increased costs are incurred, as the result of

(a) any Release or Threatened Release of Hazardous Materials caused by CHSRA or CHSRA Representatives; or (b) any actions or omissions by CHSRA or CHSRA Representatives that worsen such Environmental Conditions or Hazardous Materials. As used in this agreement, the phrase “worsen such Environmental Conditions or Hazardous Materials” refers to any disturbance which mobilizes or physically or chemically alters such Environmental Conditions or Hazardous Materials in a manner that causes or contributes to increased costs, duration or likelihood of Remediation, increased risk of a Claim against UPRR, or reduced value of the property. Prior to undertaking any of the work described in clauses (i), (ii), and (iii) or any Remediation for which it has responsibility pursuant to this Article 3.2, CHSRA must provide UPRR reasonable advance notice of the dates when such Investigation, Inspection Disposal Work, Additional Investigation, or Remediation will be conducted, so that UPRR and/or its consultants have the opportunity to be present. CHSRA must conduct all Investigation, Inspection Disposal Work, Additional Investigation, and Remediation for which it has responsibility pursuant to this Article 3.2 in accordance with a work plan, provided in advance to UPRR, designed to ensure safety and compliance with generally accepted environmental engineering standards and all applicable Laws and to avoid, to the extent reasonably possible, disruptions to UPRR’s operations. UPRR will review and approve any work plan prior to any Investigation, Inspection Disposal Work, Additional Investigation, and Remediation on UPRR Property, which approval will not be unreasonably withheld or delayed.

Article 4. Environmental Liability Relating to Construction Activities, Maintenance, or Operations.

4.1. Construction Activities, Maintenance, or Operations.

If, by separate agreement, UPRR authorizes CHSRA and CHSRA Representatives to enter upon and perform Construction Activities, maintenance, or operations on UPRR Properties in connection with the Project, any such Construction Activity, maintenance, or operations must be conducted in accordance with applicable standards customarily employed in the applicable industry and in compliance with all applicable Laws and with the terms of the UPRR agreement authorizing CHSRA and CHSRA Representatives to conduct such Construction Activities. Such Construction Activities, maintenance, or operations must also fully comply with all terms of applicable construction and maintenance agreements.

4.2. Environmental Conditions and Hazardous Materials Discovered or Disturbed During Construction Activities, Maintenance, or Operations.

4.2.1. Prior to the date scheduled for CHSRA to commence any Construction Activities, maintenance, or operations work on a UPRR Property, UPRR will notify CHSRA in writing of any Environmental Condition or Hazardous Materials that UPRR has Actual Knowledge are present in, on, or under such UPRR Property. If during the course of any Construction Activities, maintenance, or operations described in Section 4.1, any Environmental Condition or Hazardous Materials are discovered, disturbed, Released, or Threatened to be Released in, on, or under a UPRR Property (including Environmental Condition or Hazardous Materials disclosed by UPRR), CHSRA will promptly provide written notice of such event to UPRR, including in reasonable detail the location, level, and nature of such Environmental Condition or Hazardous Materials and any laboratory reports or tests on such Environmental Condition or Hazardous Materials. If CHSRA or any CHSRA Representative discovers, disturbs, Releases, or Threatens a Release in, on, or under a UPRR Property of an Environmental Condition or Hazardous Materials requiring immediate notification of government authorities, CHSRA must simultaneously notify UPRR. As between CHSRA and UPRR, CHSRA will be solely responsible, and at its sole cost, for (i) Investigation; (ii) Construction Disposal Work;

(iii) Additional Construction Investigation; and (iv) any delay in or increased cost because of such Investigation, Construction Disposal Work, or Additional Construction Investigation or any delay in or increased cost of CHSRA’s Construction Activities or the Project as the result of the presence of such Environmental Condition or Hazardous Materials.

4.2.2. In addition, as between CHSRA and UPRR, CHSRA will be solely responsible, and at its sole cost, for any Remediation and any delay or increased costs of CHSRA’s Construction Activities or Project to the extent the Remediation is required by Environmental Law, or delays or increased costs are incurred, as the result of (a) any Release or Threatened Release of Hazardous Materials caused by CHSRA or CHSRA Representatives; or

(b) any actions or omissions by CHSRA or CHSRA Representatives that worsen such Environmental Conditions or Hazardous Materials (as this phrase is defined in Section 3.2.2.).

Prior to undertaking any of the work described in clauses (i), (ii), and (iii) or any Remediation for which it has responsibility pursuant to this Article 4.2, CHSRA must provide UPRR reasonable advance notice of the dates when such Investigation, Construction Disposal Work, Additional Construction Investigation, and Remediation will be conducted, so that UPRR and/or its consultants have the opportunity to be present. CHSRA must conduct all Investigation, Construction Disposal Work, Additional Construction Investigation, and Remediation for which it has responsibility pursuant to this Article 4.2 in accordance with a work plan, provided in advance to UPRR, designed to ensure safety and compliance with generally accepted environmental engineering standards and all applicable Laws and to avoid, to the extent reasonably possible, disruptions to UPRR’s operations. UPRR will review and approve any work plan prior to any Investigation, Construction Disposal Work, Additional Construction Investigation, and Remediation on UPRR Property, which approval will not be unreasonably withheld or delayed.

Article 5. Environmental Liability Relating to Acquired Property and Temporary Easement Property.

5.1. Acquired Property.

5.1.1. With respect to the purchase of any Acquired Property, the parties agree to negotiate in good faith the purchase price and enter into an Easement Acquisition Agreement for such proposed Acquired Property prior to any Investigation of such Acquired Property. Within a reasonable time after submittal by CHSRA of a proposed purchase price for a proposed Acquired Property, UPRR will respond to CHSRA with its proposed purchase price. The parties thereafter will endeavor to agree on the purchase price and execute an Easement Acquisition Agreement within a reasonable time after receipt of UPRR’s proposed purchase price. Following agreement of the parties on the purchase price and execution of an Easement Acquisition Agreement, CHSRA may elect to conduct an Investigation of the proposed Acquired Property before closing the transaction and may, in its sole discretion and without liability to UPRR, elect not to acquire a proposed Acquired Property pursuant to the Easement Acquisition Agreement based on the results of such Investigation. If any Investigation conducted by CHSRA for the proposed purchase of an Acquired Property (including the purchase of a permanent easement) reveals an Environmental Condition or Hazardous Material, the parties agree to negotiate in good faith an adjustment to the purchase price of such Acquired Property to reflect the reasonable anticipated costs and liabilities associated with such Environmental Condition or Hazardous Material, provided, however, no price adjustment will be made for Environmental Conditions or Hazardous Materials, if any, present on the Acquired Property to the extent UPRR retains responsibility therefore under Section 7.4. The aggregate amount of any such purchase price adjustments for remediation of an Acquired Property may not exceed the purchase price of the Acquired Property negotiated and agreed on prior to Investigation. Notwithstanding the foregoing, Sections 5.1.1 and 5.1.2 do not apply to transfers by UPRR to CHSRA of the fee interest related to an Acquired Permanent Easement Property pursuant to the terms of the Easement Acquisition Agreement or easement deed for such easement.

5.1.2. If the parties do not agree on a remediation adjustment to the purchase price of an Acquired Property pursuant to Subsection 5.1.1, either party may request non-binding confidential mediation. Within thirty (30) days from receipt of such request, the parties will select a mutually acceptable mediation service. Each party may provide the mediation service with a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with the mediation service and with one another in selecting a neutral mediator and in scheduling the mediation proceedings. The parties covenant that they will use commercially reasonable efforts in participating in the mediation. The parties agree that the mediator’s fees and expenses and the costs incidental to the mediation will be shared equally between the parties. The mediation and all information regarding Environmental Conditions and Hazardous Materials presented to the mediator by either party shall be confidential and shall not be disclosed to the other party or to any other person without the written agreement of both parties, except as otherwise required by law. If mediation does not result in a mutually acceptable price adjustment, each of UPRR and CHSRA expressly reserves the right, in their respective sole discretion and without liability to the other, to terminate the Easement Acquisition Agreement for the affected property.

5.1.3. Upon closing, as between UPRR and CHSRA and subject to Section 7.4,

(i) CHSRA assumes all liability for any Environmental Conditions or Hazardous Materials existing at, on, in or under the Acquired Property at the time of closing, and (ii) the Acquired Property is conveyed by UPRR to CHSRA “as is, where is,” without warranties of any kind either express or implied, including as to any Environmental Conditions or Hazardous Materials.

The purchase price adjustment provided in this Section 5.1 shall constitute a full and final settlement between CHSRA and UPRR, including UPRR Related Persons regarding any Claims in connection with any effects on the Acquired Property or the value of the Acquired Property of any Environmental Conditions and Hazardous Materials existing on the Acquired Property as of the closing, irrespective of whether UPRR or a third party caused such Environmental Condition, Release, or Threat of Release, either in whole or in part.

5.1.4. For any Environmental Condition or Hazardous Materials on, in, or under an Acquired Property as of the closing that is also present on, in, or under a contiguous UPRR Property that is not an Acquired Property, each party will be responsible for that part of the Environmental Condition or Hazardous Materials existing on, in, or under its own property as of the closing of the Acquired Property, provided that in no event shall UPRR and Related Persons be responsible for any delay in or increased cost of CHSRA’s Project or the operation thereof as the result of the presence of such Environmental Condition or Hazardous Materials.

5.1.5. Nothing in this agreement shall be deemed to be a waiver of any rights CHSRA or the State may have to condemn any property in accordance with applicable law.

Each party reserves all rights and defenses that it may have in relation to any eminent domain action involving property that UPRR owns or on which it has rights to operate.

5.2. Acquired Non-Exclusive Easement Property.

The provisions of Articles 3 and 4 apply to any proposed or actually obtained Acquired Non-Exclusive Easement Property. There shall be no adjustment in the price agreed upon by UPRR and CHSRA for an Acquired Non-Exclusive Easement Property due to the discovery after the grant of such easement of any Environmental Condition or Hazardous Materials, provided that the foregoing shall not restrict the parties, in negotiating the easement acquisition price, from agreeing to take into account any pre-existing Environmental Condition or Hazardous Materials known to exist at, on, in, or under the proposed Acquired Non-Exclusive Easement Property prior to agreement on such price. Upon CHSRA’s acceptance of the grant of an Acquired Non- Exclusive Easement Property, as between UPRR and CHSRA, subject to Section 7.4, (i) CHSRA assumes responsibility for Remediation required by Environmental Law of any Environmental Conditions or Hazardous Materials existing at, on, or in the Acquired Non-Exclusive Easement Property at the time of closing, and (ii) the Acquired Non-Exclusive Easement Property will be deemed conveyed by UPRR to CHSRA “as is, where is,” without warranties of any kind either express or implied, including as to any Environmental Conditions or Hazardous Materials.

Notwithstanding the foregoing, with respect to Acquired Non-Exclusive Easement Property, CHSRA’s responsibility for Remediation includes those portions of the parcel occupied by footings or other permanent Project structures attached to the ground surface, together with an additional ten (10) foot buffer zone surrounding the footing or other structure.

5.3. Temporary Easement Properties.

For any Temporary Easement Property as between CHSRA and UPRR, CHSRA will be solely responsible, and at its sole cost, for any Remediation and any delay or increased costs of CHSRA’s Construction Activities or Project to the extent the Remediation is required by Environmental Law, or delays or increased costs are incurred, as a result of (a) any Release or Threatened Threat of Release of Hazardous Materials caused by CHSRA or CHSRA Representatives; or (b) any actions or omissions by CHSRA or CHSRA Representatives that worsen such Environmental Conditions or Hazardous Materials (as this phrase is defined in Section 3.2.2).

Article 6. CHSRA’s Obligations.

6.1 CHSRA will comply, and will cause each CHSRA Representative to comply, with each and every applicable federal, state, county, and municipal statute, ordinance, rule, regulation, code, order, requirement, directive, binding written interpretation, and binding written policy of a federal, state, county, or municipal authority, pertaining to an Environmental Condition or Hazardous Materials issued by any governmental authorities with respect to, or which otherwise pertains to or affects any portion of UPRR Property or the use of UPRR Property, as the same have been or may be amended, modified, or supplemented from time to time, including but not limited to Environmental Law.

6.2 Mutual Notification; Cooperation.

If during the Investigation, Inspection Disposal Work, Additional Investigation, Construction Activities, Construction Disposal Work, Additional Construction Investigation, Remediation, maintenance, operation, or after the effective date of an easement, any Environmental Condition or Hazardous Materials are discovered, disturbed, Released, or Threatened to be Released in, on, or under a UPRR Property, the party learning of such Environmental Condition or Hazardous Material will promptly provide written notice of such matter to the other party, including providing in reasonable detail, to the extent then known, the location, level, and nature of such Environmental Condition or Hazardous Materials and any laboratory reports or tests on such Environmental Condition or Hazardous Materials.

6.3 Investigation, Evaluation, Selection, and Implementation of Corrective, Remedial, or Other Actions.

Between UPRR and CHSRA, the scope of evaluation, selection, and implementation of corrective, remedial, or other actions of any Environmental Condition or Hazardous Materials discovered on UPRR Property for which CHSRA has responsibility under this agreement will be subject to UPRR’s approval, which approval shall not be unreasonably withheld, conditioned, or delayed. UPRR and CHSRA will jointly conduct any negotiations with any governmental authority or third party concerning any Investigation, evaluation, selection, and implementation of any such corrective, remedial, or other actions on UPRR Property, provided that neither UPRR nor CHSRA will enter into any settlement or agreement with any governmental authority or third party regarding such actions on UPRR Property subject to this agreement without the other’s approval, provided further that any deed restriction or other limitation on the future use of

UPRR Property will be at the sole discretion of UPRR. UPRR and CHSRA will jointly plan and design any such corrective, remedial, or other actions, provided that UPRR will approve any such study, plan, or report before it is submitted to the governmental authority.

6.4 Except for the use of Hazardous Materials in the ordinary course of construction and operation of the Project in compliance with Environmental Law, CHSRA will not (a) Release any Hazardous Materials, or (b) use or permit the use by a CHSRA Representative of UPRR Property for the generation, treatment, storage, disposal, manufacture, production, or recycling of any Hazardous Materials. In no event will CHSRA or a CHSRA Representative (a) install or use on UPRR Property any underground storage tanks, (b) store any Hazardous Material within one hundred (100) feet of the center line of any UPRR track, or (c) create an Environmental Condition that could or does result in a Claim against UPRR.

6.5 In the event of an Environmental Condition, Release, or Threat of Release of a Hazardous Material on UPRR Property arising out of a Hazardous Material use by CHSRA or a CHSRA Representative, CHSRA will furnish to UPRR copies of all permits, identification numbers, and notices issued by governmental agencies in connection herewith, together with such other information on the Environmental Condition or Hazardous Material use as may be requested by UPRR. If requested by UPRR, CHSRA will cause to be performed an environmental assessment of the Environmental Condition, Release, or Threat of Release of a Hazardous Material on UPRR Property caused or contributed to by CHSRA or a CHSRA Representative and will furnish to UPRR a copy of such report, at CHSRA’s sole cost and expense.

6.6 CHSRA will not cause an environmental report covering invasive environmental testing on UPRR Property to be prepared without prior approval or authorization by UPRR. If after receiving approval from UPRR, CHSRA causes such environmental report to be prepared regarding UPRR Property, CHSRA will deliver a copy of such environmental report within five

(5) business days to UPRR.

Article 7. Indemnities and Assumption of Liability.

7.1 Indemnity by CHSRA.

To the fullest extent not otherwise prohibited by law, CHSRA covenants and agrees that it will indemnify, defend, and hold harmless UPRR and Related Persons from and against any and all Claims, to the extent arising from (a) any Environmental Condition caused, or Hazardous Materials Released, or Threatened to be Released, by or on behalf of CHSRA, (b) any actions or omissions by or on behalf of CHSRA that worsen any Environmental Conditions or Hazardous Materials on UPRR Property (as this phrase is defined in Section 3.2.2), (c) any work, operations, or activities by or on behalf of CHSRA under this agreement involving any Hazardous Materials, or (d) the failure by CHSRA to comply with its obligations under this agreement, including but not limited to CHSRA’s obligations set forth in the first sentence of Section 7.2 below. To the fullest extent not otherwise prohibited by law, CHSRA’s obligation to indemnify, defend, and hold harmless UPRR and Related Persons will extend to and include Claims with respect to or arising from the negligence, fault, or Strict Liability of UPRR and

Related Persons, or the negligence, fault, or Strict Liability of a third person, whether in whole or in part.

7.2 Assumption of Liability and Release by CHSRA.

Except as otherwise provided in Section 7.4, upon closing the purchase of any Acquired Property from UPRR, CHSRA assumes all liability for the Acquired Property to the extent arising from any Environmental Conditions or Hazardous Materials existing at, on, in, or under the Acquired Property at the time of closing. In addition, except as provided in Section 7.4, CHSRA releases UPRR and Related Persons from and against all Claims of any manner to the extent arising from any Environmental Conditions or Hazardous Materials existing at, on, in, or under the Acquired Property and at, on, or in the Acquired Non-Exclusive Easement Property, and Temporary Easement Property at the time of closing on the Acquired Property or execution of an easement agreement, respectively, and for any Hazardous Material used on the Acquired Property, Acquired Non-Exclusive Easement Property and Temporary Easement Property (or any property in proximity to the Acquired Property, Acquired Non-Exclusive Easement Property and Temporary Easement Property) by or on behalf of CHSRA during the term of this agreement, or if longer, during CHSRA’s occupancy of the Acquired Property, Acquired Non- Exclusive Easement Property and Temporary Easement Property, regardless of UPRR’s knowledge of or consent to such use by or on behalf of CHSRA, and including, without limitation, the cost and expense of clean-up, restoration, containment, remediation, decontamination, removal, investigation, monitoring, closure, or post-closure. Except as provided in Section 7.4, in no event will UPRR and Related Persons be responsible or liable to CHSRA for (a) the Environmental Condition of Acquired Property or Hazardous Materials that are discovered, disturbed, Released, or Threatened to be Released at, on, or under Acquired Property by or on behalf of, CHSRA, or (b) the Environmental Condition of Acquired Non- Exclusive Easement Property and Temporary Easement Property caused by, or Hazardous Materials that are Released, or Threatened to be Released, by or on behalf of, CHSRA. With respect to the Acquired Property, the parties agree that the purchase price adjustment provided in Section 5.1 shall constitute a full and final settlement between CHSRA and UPRR, including UPRR Related Persons, of any Claims in connection with any effects on the Acquired Property or the value of the Acquired Property of any Environmental Conditions and Hazardous Materials existing at, on, in or under the Acquired Property at the time of closing, irrespective of whether UPRR or a third party caused such Environmental Condition, Release, or Threat of Release, either in whole or in part.

7.3 CHSRA waives any and all assertions, regardless of whether such assertions are based on Strict Liability, negligence, or otherwise, that UPRR or any Related Person is an “owner,” “operator,” “arranger,” “transporter,” or other class of “responsible person” with respect to any Environmental Conditions or Hazardous Materials existing at, on, in, or under the Acquired Property, Acquired Non-Exclusive Easement Property, and Temporary Easement Property at the time of closing on the Acquired Quitclaim Property or execution of an easement agreement, respectively. CHSRA further agrees that the access or use of UPRR Property or Acquired Quitclaim Property as provided for in this agreement will not in any way subject UPRR and Related Persons to assertions that UPRR and any Related Person is other than a common carrier for purposes of Environmental Laws.

7.4 Prior Investigation/Remediation Orders to UPRR.

Notwithstanding anything to the contrary contained in Articles 3, 4, 5, 6, and 7 herein, UPRR will continue to be responsible for actions or costs in connection with an Environmental Condition or Hazardous Materials pursuant to a prior investigation order or directive or remediation order or directive issued by a governmental authority to UPRR, prior to UPRR’s transfer of such right, title, and interest in any Acquired Property or Acquired Non-Exclusive Easement Property, except to the extent that the Environmental Condition or Hazardous Materials has been worsened by the actions of CHSRA (as this phrase is defined in Section 3.2.2).

7.5 No Waiver or Limitation.

Nothing in Section 7.1 is intended to or will constitute a waiver of any claims, rights, or remedies by UPRR or any of its Related Persons against CHSRA or any other person or entity under this agreement or under applicable Law. Any limitations of the indemnity rights of UPRR or any of its Related Persons set forth above does not serve and will not be construed as any limitation, or constitute a waiver, of any claims, rights, or remedies of UPRR or any of its Related Persons. As among UPRR (and its Related Persons) and CHSRA only, to the extent it may lawfully do so, CHSRA waives any and all defenses under worker’s compensation Laws, industrial insurance Laws, the Government Claims Act (Cal. Govt. Code §810 et seq.), statutory immunities, and procedural defenses to so indemnify, defend, and hold harmless UPRR and its Related Persons.

7.6 Cooperation.

Each party will cooperate fully with and in the defense of all Claims. UPRR retains the right, in its sole discretion, to defend any Claim or civil proceeding brought against UPRR and Related Persons and to appoint independent and separate defense counsel, at CHSRA’s expense pursuant to its obligations under this Article 7, for the defense of any Claim made against UPRR or its Related Persons for which CHSRA is required to indemnify UPRR under this agreement.

UPRR will notify CHSRA prior to appointing separate defense counsel. An election to appoint defense counsel will not affect CHSRA’s obligation to indemnify, defend, and hold harmless UPRR and its Related Persons from and against all Claims to the extent set forth in this agreement. CHSRA must keep UPRR and Related Persons informed as to the material status of such Claim or civil proceeding. CHSRA may not settle any Claim or civil proceeding against

UPRR and Related Persons without UPRR and such Related Person’s written consent, which consent will not be unreasonably delayed or withheld.

7.7 Termination of Easement

Notwithstanding anything to the contrary in this agreement, upon transfer or return to UPRR of a Returned Easement Property, CHSRA shall no longer have any responsibility under this agreement for Remediation of Environmental Conditions or Hazardous Materials existing at, on, in or under the Returned Easement Property, other than with respect to (a) any Release or Threatened Release of Hazardous Materials on such Returned Easement Property caused by CHSRA, CHSRA Representatives, or third parties during the ownership of such Returned Easement Property by CHSRA; or (b) any actions or omissions by CHSRA or CHSRA Representatives or actions of third parties during the ownership of such Returned Easement Property by CHSRA that worsen Environmental Conditions or Hazardous Materials (as this phrase is defined in Section 3.2.2) that existed on such Returned Easement Property prior to the date CHSRA acquired a right to use or occupy such property, or (c) any Remediation required by Environmental Law of any Environmental Condition or Hazardous Material discovered, Released or Threatened to be Released in, on, or under the Acquired Permanent Easement Property or Acquired Non-Exclusive Easement Property during any Investigation or Additional Investigation.Notwithstanding anything to the contrary contained herein, CHSRA will continue to be responsible for actions or costs in connection with an Environmental Condition or Hazardous Materials pursuant to an investigation order or directive or remediation order or directive issued by a governmental authority to CHSRA with respect to such Returned Easement Property.

7.8 Future UPRR Actions.

Notwithstanding anything to the contrary in this agreement, this agreement shall not govern or apply to any new Environmental Condition caused or created by UPRR or UPRR Related Persons or Hazardous Materials newly Released by or on behalf of UPRR or UPRR Related Persons on an Acquired Property, Acquired Non-Exclusive Easement Property or Temporary Easement Property after the date such property or easement was acquired by CHSRA; responsibility for any such matter shall be governed by applicable law without reference to this agreement.

7.9 Survival.

The terms of Article 7 will survive any termination of this agreement and remain in full force and effect thereafter.

Article 8. Remedies.

The parties acknowledge that there will be irreparable harm and that there will be no adequate remedy at law for a breach of the terms of this agreement. Therefore, the parties agree that the harmed party will have the right to enforce this agreement through specific performance, injunctive relief, and by any other means available at law or in equity.

Article 9. Confidentiality.

9.1 Confidentiality.

Except to the extent required by applicable Laws, CHSRA and CHSRA Representatives will maintain in confidence all information, reports, and evaluations generated in connection with any Environmental Condition or Hazardous Materials discovered, disturbed, Released, or Threatened to be Released on, in, or under any UPRR Property during the course of any Investigation Inspection Disposal Work, Additional Investigation, Construction Activities, Construction Disposal Work, Additional Construction Investigation, Remediation, maintenance, operation, or after the effective date of an easement, and will not make any public disclosure with respect to the foregoing, except for such disclosure (a) to other CHSRA Representatives who need to know the location, level, and nature of such Environmental Condition or Hazardous Materials in connection with performing work, including any Investigation or remediation, related to the Project, (b) as are required under applicable Laws, (c) in response to a subpoena or other legal process, and (d) as may be necessary in the enforcement or defense of any rights a party may have in any dispute resolution proceedings between the parties. The foregoing restrictions do not apply to (i) information or reports in CHSRA’s possession or control before the date of the relevant activity on UPRR Property, (ii) information or reports that are or become generally available to the public other than as a result of an unauthorized disclosure by CHSRA or CHSRA Representatives, (iii) information or reports independently developed by or on behalf of CHSRA without reference to information obtained from activities on UPRR Property, or

(iv) information or reports that become available to CHSRA from a source that is not, to CHSRA’s knowledge, bound by a duty of confidentiality to UPRR.

9.2 Public Records Act.

CHSRA is subject to the California Public Records Act (“PRA”).