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<br />5
<br />Easement Agreement
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<br /> Form 704CM; Rev. 04/20/2023
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<br />expense in consultation with Grantor, manage, remove, and/or dispose any such impacted soils offsite at an
<br />appropriately-licensed facility in accordance with Environmental Laws. Soil characterization and applicable
<br />disposal requirements, shall be in accordance with applicable federal, state, and local Environmental Laws or in
<br />consultation with an agency having the capacity and authority to make such a determination.
<br /> (b) All soils and materials to be removed from the Grantor’s property or right of way must be
<br />properly characterized, managed, transported, and disposed at an appropriately -licensed facility, at Grantee’s
<br />expense, in accordance with all Environmental Laws. G rantee shall be the “Generator” of any and all such
<br />materials and waste, as such term is defined in Environmental Laws.
<br /> (c) All fill materials to be imported to Grantor’s property shall be certified clean fill or from a
<br />BNSF-approved source.
<br /> 7.5 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or
<br />activities upon the Premises known to Grantee which create a risk of harm to persons, property or the environment
<br />and shall take all reasonable actions necessary to prevent injury to p ersons or property arising out of such
<br />conditions or activities; provided, however, that Grantee's reporting to Grantor shall not relieve Grantee of any
<br />obligation whatsoever imposed on it by this Easement Agreement. Grantee sha ll promptly respond to Grantor's
<br />request for information regarding said conditions or activities.
<br /> 7.6 Evidence of Compliance. Upon request by Grantor, Grantee agrees to furnish Grantor with proof
<br />satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with
<br />obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at
<br />its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon
<br />termination, Grantee shall remove the Improvements and res tore the Premises as provided in Section 9.
<br /> 7.7 Notwithstanding anything in this Section 7, the parties agree that Grantor has no duty or obligation
<br />to monitor Grantee’s use of the Premises to determine Grantee’s compliance with Environmental Laws, it being
<br />solely Grantee’s responsibility to ensure that Grantee’s use of the Premises is compliant. Neither the exercise
<br />nor the failure by Grantor to exercise any rights granted in this Section will alter the liability allocation provided by
<br />this Easement Agreement.
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<br /> 7.8 "Environmental Law(s)" shall mean any federal, state, local, or tribal law, statute, ordinance, code,
<br />rule, regulation, policy, common law, license, authorization, decision, order, or injunction which pertains to health,
<br />safety, any Hazardous Material, or the environment (including but not limited to ground, air, water, or noise
<br />pollution or contamination, and underground or above-ground tanks) and shall include, without limitation, CERCLA
<br />42 U.S.C. §9601 et seq.; the Resource Conservation and Recover y Act, 42 U.S.C. §6901 et seq., CERCLA; the
<br />Hazardous Materials Transportation Act, 49 U.S.C. §5101 et seq.; the Federal Water Pollution Control Act, 33
<br />U.S.C. §1251 et seq.; the Clean Air Act, 42 U.S.C. §7401 et seq.; the Toxic Substances Control Act, 15 U.S.C.
<br />§2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. §300f et seq.; the Emergency Planning and Community
<br />Right-to-Know Act, 42 U.S.C. 11001 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136
<br />to 136y; the Oil Pollution Act, 33 U.S.C. 2701 et seq.; and the Occupational Safety and Health Act, 29 U.S.C. 651
<br />et seq.; all as have been amended from time to time, and any other federal, state, local, or tribal environmental
<br />requirements, together with all rules, regulations, orders , and decrees now or hereafter promulgated under any of
<br />the foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the future.
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<br /> 7.9 "Hazardous Material(s)" shall include but shall not be limited to any substance, material, or waste
<br />that is regulated by any Environmental Law or otherwise regulated by any federal, state, local, or tribal
<br />governmental authority because of toxic, flammable, explosive, corrosive, reactive, radioactive or other properties
<br />that may be hazardous to human health or the environment, including without limitation asbestos and asbestos -
<br />containing materials, radon, petroleum and petroleum products, urea formaldehyde foam insulation, methane,
<br />lead-based paint, polychlorinated biphenyl compounds, hydrocarbons or like substances and their additives or
<br />constituents, pesticides, agricultural chemicals, and any other special, toxic, or hazardous (i) substances, (ii)
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