A.07.24_-_W912DW-16-Q-0015-0001.pdf

W68MD953233549

AMENDMENT OF SOLICITATION/MODIFICATION OF CONTRACT

Except as provided herein, all terms and conditions of the document referenced in Item 9A or 10A, as heretofore changed, remains unchanged and in full force and effect.

15A. NAME AND TITLE OF SIGNER (Type or print)

30-105-04EXCEPTION TO SF 30

APPROVED BY OIRM 11-84

STANDARD FORM 30 (Rev. 10-83) Prescribed by GSA

FAR (48 CFR) 53.243

The purpose of this Amendment 0001 dated 12 December 2015 to add information about the railroad crossing permits. All other terms and conditions remain unchanged. Accoordingly, this solicitation is amended as follow s:

1. CONTRACT ID CODE PAGE OF PAGES

J 1 12

16A. NAME AND TITLE OF CONTRACTING OFFICER (Type or print)

16C. DATE SIGNED

BY 23-Dec-2015

16B. UNITED STATES OF AMERICA15C. DATE SIGNED15B. CONTRACTOR/OFFEROR

(Signature of Contracting Officer)(Signature of person authorized to sign)

8. NAME AND ADDRESS OF CONTRACTOR (No., Street, County, State and Zip Code) X W912DW-16-Q-0015

X 9B. DATED (SEE ITEM 11)

16-Dec-2015

10B. DATED (SEE ITEM 13)

9A. AMENDMENT OF SOLICITATION NO.

11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS

X The above numbered solicitation is amended as set forth in Item 14. The hour and date specified for receipt of Offer is extended, X is not extended.

Offer must acknowledge receipt of this amendment prior to the hour and date specified in the solicitation or as amended by one of the following methods:

(a) By completing Items 8 and 15, and returning 1 copies of the amendment; (b) By acknowledging receipt of this amendment on each copy of the offer submitted;

or (c) By separate letter or telegram which includes a reference to the solicitation and amendment numbers. FAILURE OF YOUR ACKNOWLEDGMENT TO BE RECEIVED AT THE PLACE DESIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO THE HOUR AND DATE SPECIFIED MAY RESULT IN

REJECTION OF YOUR OFFER. If by virtue of this amendment you desire to change an offer already submitted, such change may be made by telegram or letter, provided each telegram or letter makes reference to the solicitation and this amendment, and is received prior to the opening hour and date specified.

12. ACCOUNTING AND APPROPRIATION DATA (If required)

13. THIS ITEM APPLIES ONLY TO MODIFICATIONS OF CONTRACTS/ORDERS.

IT MODIFIES THE CONTRACT/ORDER NO. AS DESCRIBED IN ITEM 14.

A. THIS CHANGE ORDER IS ISSUED PURSUANT TO: (Specify authority) THE CHANGES SET FORTH IN ITEM 14 ARE MADE IN THE

CONTRACT ORDER NO. IN ITEM 10A.

B. THE ABOVE NUMBERED CONTRACT/ORDER IS MODIFIED TO REFLECT THE ADMINISTRATIVE CHANGES (such as changes in paying office, appropriation date, etc.) SET FORTH IN ITEM 14, PURSUANT TO THE AUTHORITY OF FAR 43.103(B).

C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PURSUANT TO AUTHORITY OF:

D. OTHER (Specify type of modification and authority)

E. IMPORTANT: Contractor is not, is required to sign this document and return copies to the issuing office.

14. DESCRIPTION OF AMENDMENT/MODIFICATION (Organized by UCF section headings, including solicitation/contract subject matter where feasible.)

10A. MOD. OF CONTRACT/ORDER NO.

2. AMENDMENT/MODIFICATION NO. 5. PROJECT NO.(If applicable)

6. ISSUED BY

3. EFFECTIVE DATE

23-Dec-2015

CODE

USA ENGINEER DISTRICT, SEATTLE

ATTN: CECT-NWS

4735 EAST MARGINAL WAY SOUTH, BLDG. 1202

SEATTLE WA 98134-2388

W912DW 7. ADMINISTERED BY (If other than item 6)

4. REQUISITION/PURCHASE REQ. NO.

CODE

See Item 6

FACILITY CODECODE

EMAIL:TEL:

W912DW-16-Q-0015

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

SUMMARY OF CHANGES

SECTION SF 1449 - CONTINUATION SHEET

The following have been added by full text:

ITEM(S) 0001, 0002 - TEMPORARY CROSSING PERMIT

AGREEMENT FOR TEMPORARY PRIVATE CROSSING

THIS AGREEMENT ("Agreement"), made this __________ day of ___________________ 2015, ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation (hereinafter called "Licensor") and PEND OREILLE VALLEY RAILROAD, a Washington State Municipal Entity, it's lessee, (herein called "Licensor") and the UNITED STATES OF AMERICA, ACTING BY AND THROUGH THE U.S. ARMY CORPS OF ENGINEERS (hereinafter whether one or more persons or corporations called the "Licensee").

NOW, THEREFORE, In consideration of the mutual covenants contained herein, the parties agree to the following:

GENERAL

1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, Interests, estates of third parties, including, without limitation, any leases, licenses, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to use in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process ("the Drawings and Specifications") a temporary at-grade crossing, sixteen (16') feet wide ("Crossing"), across the rail corridor of Licensor at or near Licensor's station of Priest River, County of Bonner, State of Idaho, Line Segment 0037, Mile Post 1422.99, at the location and in the manner shown upon the print No. 63887, dated May 13, 2015, marked "Exhibit A," attached hereto made a part hereof (“Premises") for the purposes specified In Section 3. For convenience, said Crossing, including crossing surface and all appurtenances thereto between the ends of railroad ties, cattle guards, farm gates or barriers, drainage facilities, traffic signs or devices, identification signs approved by Licensor, whistling posts, or other appurtenances, if any, are hereinafter collectively referred to as the "Crossing".

2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements.

3. It is expressly stipulated that the Crossing Is to be a strictly private one for access to Government owned property for bank protection only, to be solely used for the purpose set forth in Licensee's Application for Crossing attached hereto as Exhibit B and is not Intended for and shall not be for public use. The Licensee, without expense to Licensor, will take any and all necessary action to preserve the private character of the Crossing and prevent its use as a public road. In the event Licensor determines that:

(a) the Crossing is being used for a purpose or in a manner not set forth in Exhibit B;

(b) there is a significant change in the volume or nature of traffic at the Crossing; or

(c) the Licensee has in any way breached the terms or conditions of this Agreement, Licensor shall have the right to terminate this Agreement In accordance with Section 26.

4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises or the Crossing, Licensor shall not be liable to refund Licensee any compensation paid hereunder or for any damage Licensee sustains in connection therewith.

5. Any contractors or subcontractors performing work on the Premises or the Crossing, or entering the Premises on behalf of Licensee, shall be deemed agents of Licensee for purposes of this Agreement.

TERM

6. This Agreement shall commence on January 1, 2016 and shall continue for a period of thirty {30) months through June 30th, 2018, subject to prior termination as hereinafter described.

COMPENSATION

7. Licensee agrees to pay to Licensor in advance:

(a) Consideration payment in the amount of Three Thousand and No/100 Dollars ($3,000); and.

(b) Estimated cost of construction and removal of the Crossing in the amount of Three Thousand ($3,000) payable to the Pend Oreille Valley Railroad. If actual construction costs exceed this estimate by more than one hundred dollars ($100.00), the excess costs (over $100) shall be paid by Licensee in an amount not to exceed $500.00 within thirty (30) days of the date billed.

8. Subject to congressional appropriations being available for this purpose, the Licensee agrees to pay to

Licensor from time to time within thirty (30) days after bills are rendered therefor the entire cost of maintaining the Crossing, including, but not limited to the expense Incurred by Licensor resulting from the necessity to remove and replace the Crossing in connection with resurfacing or maintaining Licensor's right of way and tracks Including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. Flagging costs shall include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable);

railway and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph.

9. Subject to congressional appropriations being available for this purpose, the Licensee agrees to pay to

Licensor the entire cost of constructing, installing, performing, maintaining, repairing, renewing, and replacing any cattle guards, farm gates or barriers, track drainage facilities, traffic signs or devices, whistle posts, stop signs or other appurtenances shown on Exhibit "A", or any such appurtenances or warning signs and devices that may subsequently be required to be upgraded by Licensor, by law, by change of volume and nature of vehicular traffic, or by any public authority having jurisdiction. The Licensee is also responsible for notifying Licensor in writing of any need for upgrading the vehicular traffic control devices or signs at or near the Crossing, since the Licensee is most knowledgeable concerning the volume and nature of the vehicular traffic. In addition, Licensee shall notify Licensor if any significant change in volume or nature of traffic at the crossing.

COMPLIANCE WITH LAWS

10. (a) Licensee shall observe and comply with any and all applicable laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the construction, maintenance, and use of the Crossing and the use of the Premises.

(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior lo commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety training program at the Licensor's Internet Website "contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises.

DEFINITION OF COST AND EXPENSE

11. (a) For the purpose of this Agreement, cost' or "costs" "expense or expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used.

(b) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fall to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its Invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal In the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum rate permitted by law, whichever is less.

RIGHT OF LICENSOR TO USE

12. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor:

(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises;

(b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or

(c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above.

LICENSEE'S OPERATIONS

13. Licensee, at its own expense, shall keep the rail flange ways of said Crossing clear of all snow, dirt, or any other obstructions whatsoever, which may accumulate by virtue of vehicles, equipment, or from machinery crossing thereover or otherwise, and shall remove and keep removed any vegetation along the rail corridor on each side of the crossing so that the motorists' line of sight to approaching trains is not impaired or obstructed by vegetation.

14. It is specifically understood that cables, pipelines, and other electric and/or fiber optic transmission lines may be on, about, along, or under the Premises and Licensee agrees that under no circumstances will Licensee dig in or disturb the surface of the Premises without the express written consent of Licensor.

15. Licensee shall construct and maintain, at its own expense, a roadway (to end of railroad ties) and related roadway drainage in a manner acceptable to Licensor, and safe for use by any vehicles or equipment.

Prior to such construction or maintenance, ten (10) days advance notice must be given to Licensor's Roadmaster, Jefferey Chicks, telephone (509) 536-2305 (cell) or Jeffrey.Chicks@bnsf.com.

16. Licensee agrees to keep any Crossing gates, farm gates or barriers (consisting of a bar, cable gate or chain between posts on both sides of the Railroad rail corridor and straddling the roadway), closed and securely fastened, except when being opened to allow access upon said rail corridor.

17. Intentionally deleted

18. Licensee shall, at its sole cost and expense, perform all activities on and about the Crossing in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of licensor, or the safe operation and activities of Licensor. If ordered to cease using the Crossing at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Crossing to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Crossing. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this Agreement.

19. If at any time during the term of this Agreement, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Crossing, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, coordinate with Pend Oreille Valley Railroad to make such changes in the Crossing as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of new a Crossing.

Alternatively, the Licensee may cease operations.

20. Upon termination of this Agreement, Pend Oreille Valley Railroad will remove the Crossing and restore the rail corridor to the condition as of the Effective Date of this Agreement without incurring any liability to the Licensee.

LIABILITY

21. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING WITHOUT LIMITATION

THE FEDERAL TORT CLAIMS ACT, AND SUBJECT TO THE ANTI-DEFICIENCY ACT, 31

USC 1341, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE,

INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED

COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,

OFFICERS, !RECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,

"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,

FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS,

DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT

COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND

REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR

OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION

OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF,

RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):

(i) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL

PROVISIONS,

(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT,

(iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,

(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR

CONTRIBUTED BY, OR

(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR

INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR

EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE

ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE.

THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO

INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE

EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL

MISCONDUCT. OF AN INDEMNITEE.

(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE

LIMITATION IN SECTION 21(a), LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR

TO, NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED

ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN

"OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE

PREMISES FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE

WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND

ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE

FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY T H I S

A GREEMENT SHALL NOT CREATE ANY ENVIRONMENTAL RESPONSIBILITY FOR LICENSOR

BEYOND THAT REQUIRED BY EXISTING STA1"E ANO FEDERAL LAW.

(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND

SHALL CAUSE ITS CONTRACTOR TO AGREE, REGARDLESS OF ANY NEGLIGENCE OR

ALLEGED NEGLIGENCE OF ANY INDEMNITEE,TO INDEMNIFY, AND HOLD HARMLESS THE

INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED

AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL

EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF

ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE

EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO

EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED

VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING

BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION

ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION

AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.

PERSONAL PROPERTY WAIVER

22. TO THE EXTENT PERMITTED BY LAW, ALL PERSONAL PROPERTY INCLUDING, BUT NOT

LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE

AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY

DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUEIN WHOLE OR IN PART TO THE

NEGLIGENCE OF ANY INDEMNITEE.

INSURANCE

Licensee elects to self-insure its common law and assumed liability under this agreement for bodily Injury and/or property damage to third parties in connection with accidents arising out of the Licensee's or their agents operations.

23. Any contractors working for Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following Insurance coverage for Licensor:

A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and Include coverage for, but not limited to, the following:

Bodily Injury and Property Damage Personal Injury and Advertising Injury Fire legal liability Products and completed operations

This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance:

The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees.

The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property

Any exclusions related to the explosion, collapse and underground hazards shall be removed.

No other endorsements limiting coverage may be included on the policy. It is agreed that the

B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following:

Bodily injury and property damage Any and all vehicles owned, used or hired

C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to:

Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway.

Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee.

D. Railroad Protective Liability Insurance for any construction activities by Licensee or its contractor within the Premises. This Insurance shall name only the Licensor as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction. If further maintenance is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following:

Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 1O 93) Endorsed to include the Limited Seepage and Pollution Endorsement.

Endorsed to include Evacuation Expense Coverage Endorsement.

No other endorsements restricting coverage may be added.

The original policy must be provided to the licensor prior to performing any work or services under this Agreement

Other Requirements:

Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists.

Licensee's Contractor agrees to waive i ts right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement.

Licensee's Contractor further waives its right of recovery, and its Insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under i t s care, custody or control.

Licensee's Contractor's insurance policies through policy endorsement must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies.

All policy (ies) required above (excluding Workers Compensation and if applicable, Railroad Protective} shall include a severability of interest endorsement and shall name Licensor and Jones Lang LaSalle Brokerage, Inc.

as an additional insured with respect to work performed under this agreement. Severability of interest and naming Licensor, including Pend Oreille Valley Railroad and Jones Lang LaSalle Brokerage, Inc., as additional insured shall be indicated on the certificate of insurance.

Licensee's Contractor is not allowed to self-Insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee's Contractor in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's Contractor's insurance will be covered as If Licensee's Contractor elected not to Include a deductible, self-insured retention, or other financial responsibility for claims.

Prior to commencing the Work, Licensee contractor shall furnish to Licensor an acceptable certificate (s} of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit.

Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided.

Licensee Contractor will have this License thoroughly reviewed by Licensee's Contractor's Insurance agent(s)/broker(s), who have been instructed by Licensee Contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.

Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad Industry and underwriting practices in the insurance Industry.

If any portion of the operation is to be subcontracted by Licensee's Contractor, Licensee's Contractor shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release. defend end indemnify Licensor to the same extent and under the same terms and conditions as Licensee's Contractor is required to release, defend and indemnify Licensor herein.

Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder.

Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder.

The fact that insurance (including, without limitation, self-Insurance} is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage.

For purposes of this section, Licensor shall mean "Bur1ington Northern Santa Fe Corporation", "BNSF Railway Company and Pend Oreille Valley Railroad and the subsidiaries, successors, assigns and affiliates of each.

Pend Oreille Valley Railroad shall be solely responsible for obtaining the requisite insurance coverage specified above for Pend Oreille Valley Railroad, including without limitation Licensee's Contractor naming of Pend Oreille Valley Railroad as an additional insured. In no event shall BNSF Railway Company have any liability whatsoever to Pend Oreille Valley Railroad for Licensee's Contractor's failure to obtain and maintain such coverage.

ENVIRONMENTAL

24. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, Including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws”). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises.

(b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-

5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or Inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation.

(c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental

Laws arising in any way with respect to the Premises which occurred or may occur during the term of this Agreement, Licensor may require Licensee, at Licensee's sole risk and expense, to Jake timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way If required by law.

(d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever Imposed on it by this Agreement. Licensee shall promptly respond to Licensor's request for information regarding said conditions or activities.

DEFAULT

25. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this Agreement by operation of law, Licensor may, at its option, terminate this Agreement by serving thirty (30) days' notice in writing upon Licensee. Provided that prior to termination the Licensee shall be given the opportunity to cure any default within fourteen (14) days or if said default cannot be cured with said period this License shall not be terminated if the Licensee has initiated action to cure the default within a reasonable period of time. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 25 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity.

TERMINATION

26. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of an agreed Mutual Termination Letter. Upon expiration of the time specified in such notice, which period shall not exceed 30 days unless otherwise agreed, this License and all rights of Licensee shall absolutely cease.

27. If Licensee fails to surrender to Licensor the Premises, upon any termination of this Agreement, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered.

Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination.

ASSIGNMENT

28. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this Agreement or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sore discretion.

NOTICES

29. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested. or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty {30) days' advance written notice of such change in address.

If to Licensor: Jones Lang LaSalle Brokerage, Inc., 4300 Amon Carter Blvd, Suite 100 Fort Worth, TX 76155 Attn: Licenses/Permits with a copy to: BNSF Railway Company

2301 Lou Menk Dr. - GOB-3W Fort Worth, TX 76131 Attn: Senior Manager Real Estate with a copy to: Pend Oreille Valley Railroad

1981 Black Road Usk, WA 99180 Attn: Kelly Driver

If to Licensee: U.S. Army Corps of Engineers

ATIN: CENWS-RE RO

4735 E. Marginal Way, S.

Seattle, WA 93134

SURVIVAL

30. Neither termination nor expiration will release either party from any liability or obligation under this

Agreement, whether of Indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the Premises are restored to its condition as of the Effective Date.

RECORDATION

31. It is understood and agreed that this Agreement shall not be placed on public record.

APPLICABLE LAW

32. To the extent permitted by federal law, all questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.

SEVERABILITY

33. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or Invalidity, and this shall not invalidate the remainder of such provision or any other provision of this Agreement.

INTEGRATION

34. This Agreement is the full and complete agreement between Licensee and Licensor with respect to all matters relating to Licensee's use of the Crossing, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Crossing as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties.

MISCELLANEOUS

35. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties.

36. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof.

37. Licensee shall not convey, transfer, lease or otherwise grant a right of access and/or use of any interest in all or a portion of Licensee's property which is accessed by the Crossing, but not to include contractors working for the Licensee.

38. The licensee's obligation to pay or reimburse any money under this agreement Is subject to the availability of funds appropriated for this purpose to the Department of the Army, and nothing in this License shall be interpreted to require obligations or payments by the Licensee in violation of the Anti-Deficiency Act, 31 U.S.C. Sec 1341.

39. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway Company.

Jones Lang LaSalle Global Services - RR, Inc. is acting as representative for BNSF Railway Company.

IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written.

BNSF RAILWAY COMPANY

Jones Lang LaSalle Brokerage, Inc., Its Attorney in Fact 4300 Amon Carter Blvd, Suite 100 Fort Worth, TX 76155

By:____________________________________

Ed Darter Title: Sr. Vice President – National Accounts

PEND OREILLE VALLEY RAILROAD

1981 Black Road Usk, WA. 99180

By: ____________________________________

Title:___________________________________

U.S. ARMY CORPS OF ENGINEERS

4735 E. Marginal Way, S.

Seattle, WA 93134

By: ____________________________________

Patricia Fatherree Title: Chief Realty Operations Branch

Real Estate Contracting Officer

The following have been linked or unlinked:

Text Item TEMPORARY CROSSING PERMIT applies to CLIN(s) 0002.

Text Item TEMPORARY CROSSING PERMIT applies to CLIN(s) 0001.

(End of Summary of Changes)