Needles City Council
November 8, 2022

RESOLUTION 2022-77

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEEDLES, CALIFORNIA,

PROCLAIMING A LOCAL EMERGENCY PERSISTS, RE-RATIFYING THE PROCLAMATION OF A STATE OF EMERGENCY BY EXECUTIVE ORDER N-09-21, AND RE-AUTHORIZING

REMOTE TELECONFERENCE MEETINGS OF THE LEGISLATIVE BODIES OF THE CITY OF NEEDLES FOR THE PERIOD NOVEMBER 16, 2022 - DECEMBER 15, 2022, PURSUANT TO PROVISIONS OF THE RALPH M. BROWN ACT
WHEREAS, the City of Needles (the "City") is committed to preserving and nurturing public access and participation in meetings of the City Council; and WHEREAS, all meetings of the City's legislative bodies are open and public, as required by the Ralph M. Brown Act (Cal. Gov. Code §§ 54950 - 54963) (the "Brown Act"), so that any member of the public may attend, participate, and watch the City's legislative bodies conduct their business; and
WHEREAS, the Brown Act, Government Code section 54953(e), makes provisions for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
WHEREAS, a required condition is that a state of emergency is declared by the Governor pursuant to Government Code section 8625, proclaiming the existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions as described in Government Code section 8558; and
WHEREAS, a proclamation is made when there is an actual incident, threat of disaster, or extreme peril to the safety of persons and property within the jurisdictions that are within the City's boundaries, caused by natural, technological, or human-caused disasters; and WHEREAS, it is further required that state or local officials have imposed or recommended measures to promote social distancing, or, the legislative body meeting in person would present imminent risks to the health and safety of attendees; and WHEREAS, the City Council previously adopted Resolution 2022-69 on October 11, 2022, finding that the requisite conditions exist for the legislative bodies of the City to conduct remote teleconference meetings without compliance with Government Code section 54953(b)(3); and WHEREAS, as a condition of extending the use of the provisions found in Government Code section 54953(e), the City Council must reconsider the circumstances of the state of emergency that exists in the City, and the City Council has done so; and WHEREAS, emergency conditions persist in the City, specifically, on March 4, 2020, the Governor of the State of California proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; despite sustained efforts the virus continues to spread and is impacting nearly all sectors of California; and
WHEREAS, on June 9, 2021, the California Department of Public Health issued updated public health directives related to physical distancing and face coverings effective June 15, 2021, based on guidelines issued by the Centers for Disease Control and Prevention; and WHEREAS, the San Bernardino County Department of Health has recommended measures to promote social distancing. The current state and federal masking guidance recommend that vaccinated individuals wear face masks in public indoor settings. The state still requires unvaccinated individuals to wear masks indoors; and WHEREAS, the City Council does hereby find that the ongoing risk posed by the highly transmissible COVID-19 virus will continue to cause conditions of peril to the safety of persons within the City which are likely to be beyond the control of services, personnel, equipment, and facilities of the City, and the City Council desires to proclaim a local emergency and ratify the proclamation of state of emergency by the Governor of the State of California; and WHEREAS, as a consequence of the local emergency persisting, the City Council does hereby find that the legislative bodies of the City shall continue to conduct their meetings without compliance with Government Code section 54953(b)(3), as authorized by Government Code section 54953(e), and that such legislative bodies shall continue to comply with the requirements to provide the public with access to the meetings as prescribed in Government Code section 54953(e)(2); and
WHEREAS, all meeting agendas stating meeting dates, times and the manner in which the public may attend and offer public comment by call-in option or internet-based service option shall be posted, at a minimum, on the City's website and at the City's main office.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NEEDLES DOES HEREBY RESOLVE AS FOLLOWS:

Section 1. Recitals.

The recitals set forth above are true and correct and are incorporated into this Resolution by this reference.

Section 2. Affirmation that Local Emergency Persists.

The City Council hereby considers the conditions of the state of emergency in the City and proclaims that a local emergency persists throughout the City, and the ongoing risk posed by the highly transmissible COVID-19 virus has caused, and will continue to cause, conditions of peril to the safety of persons within the City; furthermore, the guidance of San Bernardino County Department of Health recommends physical distancing.

Section 3. Re-ratification of Governor's Proclamation of a State of Emergency.

The City Council hereby ratifies the Governor of the State of California's Proclamation of State of Emergency, effective as of its issuance date of March 4, 2020.

Section 4. Remote Teleconference Meetings.

The Mayor, the City Manager, and legislative bodies of the City are hereby authorized and directed to take all actions necessary to carry out the intent and purpose of this Resolution including conducting open and public meetings in accordance with Government Code section 54953(e) and other applicable provisions of the Brown Act Section 5. Effective Date.

This Resolution shall take effect immediately upon its adoption and shall be effective until the earlier of (i) December 15, 2022, or such time the City Council adopts a subsequent resolution in accordance with Government Code section 54953(e)(3) to extend the time during which the legislative bodies of the City may continue to teleconference without compliance with Government Code section 54953(b)(3).

Section 6. Certification.

The Clerk of the City Council shall certify as to the adoption of this Resolution and shall cause the same to be processed in the manner required by law.

PASSED, ADOPTED, AND APPROVED, this 8th day of November 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Mayor
ATTEST:

Dale Jones, City Clerk
APPROVED AS TO FORM:

John 0. Pinkney, City Attorney
City of Needles, California
Request for City Council Action
[gl CITY COUNCIL □ NPUA D Regular D Special
Meeting Date: November 8, 2022
Title: Upcoming Christmas Holiday
Background
Fiscal Impact
Council consideration of canceling the regular City Council/ NPUA meeting on Tuesday, December 27, 2022 due to a potential lack of quorum because of the Christmas Holiday.

Should the Council concur and cancel the meeting, an additional meeting can be held. There will be a meeting held on Tuesday December 13, 2022.

Recommendation Discretionary
Submitted By: City Clerk
City Management Review: ~ \ c¥ _ Date:

Approved: □ Not Approved: □ Tabled □ Other: □
Agenda Item:

City of Needles, California
Request for Council Action
[::gj CITY COUNCIL/NPUA □ Board of Public Utilities [::gj Regular □ Special Meeting Date: November 8, 2022
Title: California Energy Commission Calendar Year (CY) 2021 Power Content Label Reporting
Background: The Power Content Label program was established to provide "accurate, reliable, and simple-to-understand information on the sources of energy that are used to provide electric services" to California consumers.

Signed by Governor Brown in September 2016, AB 1110 (Ting, Chapter 656, Statues of 2016), requires that retail suppliers of electricity additionally disclose to consumers the greenhouse gas emissions intensity of the supplier's electric service products. This modification to the program will improve transparency for consumers and strengthen the Power Source Disclosure and the Power Content program's relevance to California's climate change activities.

The City of Needles CY 2020 Power Source Disclosure Report. Total retail sales in CY 2020 were 71,500 (MWh) of which 41.2% was supplied by the Parker-Davis Project and the remaining 58.8% was supplied unspecific power.

The City of Needles CY 2021 Power Source Disclosure Report. Total retail sales in CY 2021 were 79,161 (MWh) of which 37.2% was supplied by the Parker-Davis Project and the remaining 62.8% was supplied unspecific power.

Enclosed is the 2021 Power Content Label which breaks down the power supplied to the City into energy resources categories. Per the CEC program regulations, the Board is to approve both the annual report and power content label. The Board of Public Utilities approved the recommended action on November 1, 2022.

Fiscal Impact: None
Recommended Action: Move to accept the annual report to the California Energy Commission Power Content Label for the year ending December 31, 2021 Submitted By: Rainie Torrance, Assistant Utility Manager City Management Review:

Approved □ Not Approved: □ Tabled: □ Other:

Agenda Item:
1 2021 POWER CONTENT LABEL
2021 CA Utility Average
Biomass & Biowaste 0.0% 2.3%
593 456 Geothermal 0.0% 4.8%
1000
Eligible Hydroelectric 0.0% 1.0%
Solar 0.0% 14.2% ■ Western Area
800 Power Wind 0.0% 11.4%
Administrat ion Coal 0.0% 3.0%
600 City of Needles Large Hydroelectric 37.2% 9.2%
400 ■ 2021 CA Utility Natural Gas 0.0% 37.9%
Average Nuclear 0.0% .3%
200 Other 0.0% 0.2%
0 Unspecified Power2 62.8% 6.8%
TOTAL 100.0% 100.0%
Percentage of Retail Sales Covered by 0%
Retired Unbundled RECs3:
1 The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology.
2 Unspecified power is electricity that has been purchased through open market transactions and is not traceable to a specific generation source.
3 Renewable energy credits (RECs) are tracking instruments issued for renewable generation.

Unbundled renewable energy credits (RECs) represent renewable generation that was not delivered to serve retail sales. Unbundled RECs are not reflected in the power mix or GHG emissions intensities above.

For specific information about this
electricity portfolio, contact:

For general information about the
Power Content Label, visit:

For additional questions, please
contact the California Energy
Commission at:

City of Needles
(760)326-5700
http://www.enerqy.ca.gov/pcl/
Toll-free in California: 844-454-2906
Outside California: 916-653-0237
2021 POWER CONTENT LABEL
Ci of Needles
·t f di
Greenhouse Gas Emissions Intensity Electricity Electricity 2021 CA (lbs CO2e/MWh) Energy Resources Portfolio 1 Portfolio 2 Power Mix Name Name
Electricity Portfolio 1 Electricity Portfolio 2 2021 CA Utility Average 191 e enewa e 0.0 0 0.0 0 3.6% Name Name Biomass & Biowaste 0.0% 0.0% 2.3%
El bl R bl Ofc Ofc 3
0 0 456 Geothermal 0.0% 0.0% 4.8%
1000 Eligible Hydroelectric 0.0% 0.0% 1.0%
■ Electricity Portfolio Solar 0.0% 0.0% 14.2%
800 1 Name Wind 0.0% 0.0% 11.4%
600
Coal 0.0% 0.0% 3.0%
■ Electricity Portfolio Large Hydroelectric 0.0% 0.0% 9.2% 400 2 Name Natural Gas 0.0% 0.0% 37.9%
Nuclear 0.0% 0.0% 9.3%
200 ■ 2021 CA Utility Other 0.0% 0.0% 0.2%
Average Unspecified Power2 0.0% 0.0% 6.8%
0 TOTAL 100.0% 100.0% 100.0%
Percentage of Retail Sales Covered by Retired Unbundled RECs3: 0% 0% 1 The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology. 2 Unspecified power is electricity that has been purchased through open market transactions and is not traceable to a specific generation source.
3 Renewable energy credits (RECs) are tracking instruments issued for renewable generation. Unbundled renewable energy credits (RECs) represent renewable generation that was not delivered to serve retail sales. Unbundled RECs are not reflected in the power mix or GHG emissions intensities above.

For specific information about this electricity
portfolio, contact: City of Needles (760)326-5700 X140
For general information about the Power Content htti;i:LLwww.energJl.Ca.gov Li;ic1L Label, visit:

For additional questions, please contact the Toll-free in California: 844-454-2906 California Enerov Commission at: Outside California: 916-653-0237 2021 POWER CONTENT LABEL
Citv of Needles
www.cityofneedles.com
Greenhouse Gas Emissions Intensity Electricity Electricity Electricity 2021 CA (lbs C02e/MWh) Energy Resources Portfolio 1 Portfolio 2 Portfolio 3 Power Mix Name Name Name Electricity Portfolio 1 Electricity Portfolio 2 Electricity Portfolio 3 2021 CA Utility Eligible Renewable 1 0.0% 0.0% 0.0% 33.6% Name Name Name Average Biomass & Biowaste 0.0% 0.0% 0.0% 2.3% 0 0 0 456 Geothermal 0.0% 0.0% 0.0% 4.8%
1000 Eligible Hydroelectric 0.0% 0.0% 0.0% 1.0%
■ Electricity Portfolio 1 Name Solar 0.0% 0.0% 0.0% 14.2% 800 Wind 0.0% 0.0% 0.0% 11.4%
■ Electricity Portfolio 2 Name Coal 0.0% 0.0% 0.0% 3.0% 600 Large Hydroelectric 0.0% 0.0% 0.0% 9.2%
400 Natural Gas 0.0% 0.0% 0.0% 37.9% ■ Electricity Portfolio 3 Name Nuclear 0.0% 0.0% 0.0% 9.3%
200 Other 0.0% 0.0% 0.0% 0.2% ■ 2021 CA Utility Average Unspecified Power2 0.0% 0.0% 0.0% 6.8% 0 TOTAL 100.0% 100.0% 100.0% 100.0%
Percentage of Retail Sales Covered by Retired Unbundled RECs3: 0% 0% 0% 1 The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology. 2 Unspecified power is electricity that has been purchased through open market transactions and is not traceable to a specific generation source. 3 Renewable energy credits (RECs) are tracking instruments issued for renewable generation. Unbundled renewable energy credits (RECs) represent renewable generation that was not delivered to serve retail sales. Unbundled RE Cs are not reflected in the power mix or GHG emissions intensities above.

For specific information about this electricity portfolio, contact: City of Needles (760)326-5700 X140 For general information about the Power Content Label, visit: htt12://www.energ}'..ca.gov/12cl/ For additional questions, please contact the Toll-free in California: 844-454-2906 California Enerav Commission at: Outside California: 916-653-0237 2021 POWER CONTENT LABEL
Cit of Needles
·t f di
Greenhouse Gas Emissions Intensity Electricity Electricity Electricity Electricity 2021 CA (lbs CO2e/MWh) Energy Resources Portfolio 1 Portfolio 2 Portfolio 3 Portfolio 4 Power Mix Name Name Name Name Electricity Portfolio 1 Electricity Portfolio 2 Electricity Portfolio 3 Electricity Portfolio 4 2021 CA Utility Average Eligible Renewable 1 0.0% 0.0% 0.0% 0.0% 33.6% Name Name Name Name Biomass & Biowaste 0.0% 0.0% 0.0% 0.0% 2.3% 0 0 0 0 456 Geothermal 0.0% 0.0% 0.0% 0.0% 4.8%
1000 Eligible Hydroelectric 0.0% 0.0% 0.0% 0.0% 1.0%
■ Electricity Portfolio 1 Name Solar 0.0% 0.0% 0.0% 0.0% 14.2% 800 Wind 0.0% 0.0% 0.0% 0.0% 11.4%
■ Electricity Portfolio 2 Name Coal 0.0% 0.0% 0.0% 0.0% 3.0% 600 Large Hydroelectric 0.0% 0.0% 0.0% 0.0% 9.2% ■ Electricity Portfolio 3 Name Natural Gas 0.0% 0.0% 0.0% 0.0% 37.9% 400 ■ Electricity Portfolio 4 Name Nuclear 0.0% 0.0% 0.0% 0.0% 9.3% 200 Other 0.0% 0.0% 0.0% 0.0% 0.2%
0 ■ 2021 CA Utility Average Unspecified Power2 0.0% 0.0% 0.0% 0.0% 6.8% TOTAL 100.0% 100.0% 100.0% 100.0% 100.0%
Percentage of Retail Sales Covered by Retired Unbundled RECs3: 0% 0% 0% 0% 1 The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology. 2 Unspecified power is electricity that has been purchased through open market transactions and is not traceable to a specific generation source. 3 Renewable energy credits (RECs) are tracking instruments issued for renewable generation. Unbundled renewable energy credits (RE Cs) represent renewable generation that was not delivered to serve retail sales. Unbundled RECs are not reflected in the power mix or GHG emissions intensities above.

For specific information about this electricity portfolio, contact: City of Needles (760)326-5700 X140 For general information about the Power Content Label, visit: htti;i://www.energy:.ca.gov/i;icl/ For additional questions, please contact the California Energy Commission at:

Toll-free in California: 844-454-2906
Outside California: 916-653-0237
Name
0 1000
800
600
400
200
0 Name Name Average Biomass & Biowaste 0.0% 0.0% 0.0%
0 0 456 Geothermal 0.0% 0.0% 0.0%
Eligible Hydroelectric 0.0% 0.0% 0.0%
■ Electricity Portfolio 1 Name Solar 0.0% 0.0% 0.0%
Wind 0.0% 0.0% 0.0% ■ Electricity Portfolio 2 Name
Coal 0.0% 0.0% 0.0%
■ Electricity Portfolio 3 Name Large Hydroelectric 0.0% 0.0% 0.0% Natural Gas 0.0% 0.0% 0.0% ■ Electricity Portfolio 4 Name Nuclear 0.0% 0.0% 0.0%
■ Electricity Portfolio 5 Name Other 0.0% 0.0% 0.0%
■ 2021 CA Utility Average Unspecified Power 0.0% 0.0% 0.0% TOTAL 100.0% 100.0% 100.0%
Percentage of Retail Sales Covered by Retired Unbundled RECs3: 0% 0% 0% 'The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology. 2 Unspecified power is electricity that has been purchased through open market transactions and is not traceable to a specific generation source.

0.0% 0.0% 2.3%

0.0% 0.0% 4.8%

0.0% 0.0% 1.0%

0.0% 0.0% 14.2%

0.0% 0.0% 11.4%

0.0% 0.0% 3.0%

0.0% 0.0% 9.2%

0.0% 0.0% 37.9%

0.0% 0.0% 9.3%

0.0% 0.0% 0.2%

0.0% 0.0% 6.8%
100.0% 100.0% 100.0%
0% 0%
' Renewable energy credits (RECs) are tracking instruments issued for renewable generation. Unbundled renewable energy credits (RECs) represent renewable generation that was not delivered to serve retail sales. Unbundled RECs are not reflected in the power mix or GHG emissions intensities above.

For specific information about this electricity portfolio, contact:

For general information about the Power Content Label, visit:

For additional questions, please contact the California Energy Commission at:

City of Needles (760)326-5700 X140
http://www.energy.ca.gov/pcl/
Toll-free in California: 844-454-2906
Outside California: 9 16-653-0237
0 1000
800
600
400
zoo
Biomass & Biowaste
456 Geothermal 0.0% 0.0% 0.0%
Eligible Hydroelectric 0.0% 0.0% 0.0% ■ Electricity Portfolio 1 Name Solar 0.0% 0.0% 0.0% ■ Electricity Portfolio 2 Name Wind 0.0% 0.0% 0.0%
■ Electricity Portfolio 3 Name Coal 0.0% 0.0% 0.0%
■ Electricity Portfolio 4 Name Large Hydroelectric 0.0% 0.0% 0.0% Natural Gas 0.0% 0.0% 0.0% a Electricity Portfolio 5 Name Nuclear 0.0% 0.0% 0.0% ■ Electricity Portfolio 6 Name Other 0.0% 0.0% 0.0%
• 2021 CA Utility Average Unspecified Power 0.0% 0.0% 0.0% TOTAL 100.0% 100.0% 100.0%
Percentage of Retail Sales Covered by Retired Unbundled RECs3: 0% 0% 0% 1 The eligible renewable percentage above does not reflect RPS compliance, which is determined using a different methodology. 2 unspecified power Is electricity that has been purchased through open market transactions and is not traceable to a specific generation source.

0.0% 0.0% 0.0% 4.8%

0.0% 0.0% 0.0% 1.0%

0.0% 0.0% 0.0% 14.2%

0.0% 0.0% 0.0% 11.4%

0.0% 0.0% 0.0% 3.0%

0.0% 0.0% 0.0% 9.2%

0.0% 0.0% 0.0% 37.9%

0.0% 0.0% 0.0% 9.3%

0.0% 0.0% 0.0% 0.2%

0.0% 0.0% 0.0% 6.8%
100.0% 100.0% 100.0% 100.0%
0% 0% 0%
'Renewable energy credits (RECs) are tracking instruments issued for renewable generation. Unbundled renewable energy credits (RECs) represent renewable generation that was not delivered to serve retail sales. Unbundled RECs are not reflected in the power mix or GHG emissions intensities above.

For specific information about this electricity portfolio, contact:

For general information about the Power Content Label, visit For additional questions, please contact the California Energy Commission at:

City of Needles (760)326-5700 X140
http'./A-vww energy ca govlpcJI
Toll-free in Calrromia: 844-454-2906
Outside Calrromia: 916-653--0237
Request for Council Action
City of Needles, California
♦---------------------------------------------------------• ~ CITY COUNCIL O UTILITY BOARD O NPUA ~ Regular D Special Meeting Date:

Title:

Background:

Fiscal Impact:

November 8, 2022
Approve the Barrier for Underpass Agreement and Easement Agreement with BNSF Railway Company for the K Street Barrier project.

The K Street underpass is currently closed due to oversize vehicles hitting the bridge. In an effort to reopen the roadway, BNSF and City agreed upon an option to protect the bridge structure by installing vertical barriers in advance of the bridge structure to alert oversized vehicles of the height requirement.

The City designed and awarded a construction project to Phillips Excavating, Inc in January 2021 for the K Street Barrier project. After award of the project, it was determined by BNSF that an easement and agreement was necessary for the City to work in the BNSF right of way.

The Agreement and Easement documents have been drafted and approved by both parties. The cost associated with the easement dedication from BNSF to the City is $7,500 with an administration fee of $2,000. Additionally, it may be necessary for BNSF to provide flaggers during construction at an additional cost of $1600 per day depending on BNSF requirements for a flagging operation. The cost for two (2) days of flaggers have been added to the total cost of the Agreement for an amount of $3200 and will only be expended if required by BNSF during construction.

A total not to exceed $12,700 for the easement dedication, administration fee, and flagging is to be funded by General Fund Reserves. ~
""""'~= <-L---t-- Sylvia Miledi
Recommendation: Approve the Barrier for Underpass Agreement and Easement Agreement with BNSF Railway Company for the K Street Barrier project and authorize staff to execute said agreement.

Submitted By: Kathy Raasch, Projects Manager
City Management Review: /74ZJ;,{,/£ /!~ _i/.(,,1e: (T _,~" /J/z/ZoZZ ♦---------- --- ---- --- --------------------------- ---- ---- -• Approved: D Not Approved: D Tabled: 0 Other:O

BARRIER FOR UNDERPASS AGREEMENT

CITY OF NEEDLES
OCT 18 2022
ENGINEERING BY:~
BNSF File No. BF10018098
K Street
U.S. D.O.T. No. 026007X
LS 7200
MP 578.34
Needles Subdivision
This Agreement ("Agreement"), is executed to be effective as of _______ _ ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), and the City of Needles, a political subdivision of the State of California ("Agency").

RECITALS:

WHEREAS, BNSF owns and operates a line of railroad in and through the City Needles, State of California;
WHEREAS, Agency desires to improve the existing K Street underpass crossing by constructing a vertical barrier to prevent oversized vehicles from accessing the K Street underpass and designated as Template to be used for Public Project underpass type of work., D.O.T. No . . 026007X; and
WHEREAS, The existing underpass has been closed where upon completion of construction and the placing in service of said underpass will be open to traffic.

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1) SCOPE OF WORK

1. The term "Project" as used herein includes any and all work related to the construction of the proposed K Street barrier (hereinafter referred to as the "Structure"), more particularly described on the Exhibit A, which is attached hereto and incorporated herein, Including, but not limited to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary and permanent track work, fencing, grading, alterations to or new construction of drainage facilities, preliminary and construction engineering and contract preparation. During construction of the Structure, vehicular traffic will be excluded from the use of N K Street between the intersection of Front Street & N K Street and 102 N K Street. Additionally, temporary controls during construction must comply with Section 8A-08, "Temporary Traffic Control Zones" of the Manual of Uniform Traffic Control Devices ("MUTCD"), U.S. Department of Transportation.
2) BNSF OBLIGATIONS
In consideration of the covenants of Agency set forth herein and the faithful performance thereof, BNSF agrees as follows:

1. Upon Agency's payment to BNSF of an administrative fee in the sum of Two Thousand and No/100 Dollars ($2,000), together with the Temporary Construction License Fee in the sum of Seven Thousand Five Hundred and No/100 Dollars ($7,500), BNSF hereby grants to Agency, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction License") to construct the Structure across or upon the portion of BNSF's right-of-way described further on Exhibit A-1, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following:
(a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said right-of-way;
(a) Construct, operate, maintain, renew and/or relocate upon said right-of-way, without limitation, such facilities as the BNSF may from time to time deem appropriate, provided such facilities do not materially interfere with the Agency's use of the Structure:
(b) Otherwise use or operate the right-of-way as BNSF may from time to time deem appropriate, provided such use or operations does not materially interfere with the Agency's use of the Structure; and
(c) Require the Agency or its contractor to execute a Temporary Construction Crossing Agreement, for any temporary crossing requested to aid in the construction of this Project.

The term of the Temporary Construction License begins on the Effective Date and ends on the earlier of (i) substantial completion of the Structure, or (ii) Six (6) months following the Effective Date. The Temporary Construction License and related rights given by BNSF to Agency in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for construction of the Structure only and shall not be used by Agency for any other purpose. Agency acknowledges and agrees that Agency shall not have the right, under the Temporary Construction License, to use the Structure for any other purpose than construction. In the event Agency is evicted by anyone owning, or claiming title to or any interest in said right-of-way, BNSF will not be liable to Agency for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent lo the dale of this Agreement, will not impair or interfere with the rights granted to Agency herein.

Upon Agency's payment lo BNSF of the additional sum of Seven Thousand Five Hundred and No/100 Dollars ($7,500), such paymentlo be made within thirty (30) days of issuing the Notice to Proceed pursuant to Article 111, Section 16 of this Agreement, and provided further that Agency is in compliance with the term and conditions of this Agreement, BNSF will grant to Agency, its successors and assigns, an easement (hereinafter called, the "Easement") to enter upon and use that portion of BNSF's right-of-way as is necessary lo use and maintain the Structure, substantially in the form of Exhibit B attached to this Agreement. If Agency fails to pay BNSF within the thirty day lime period set forth in the preceding sentence, BNSF may slop construction of the Project until full payment is received by BNSF.
3) AGENCY OBLIGATIONS
In consideration of the covenants of BNSF set forth herein and the faithful performance thereof, Agency agrees as follows:

1. Agency must furnish to BNSF plans and specifications for the Project. Four sets of said plans (reduced size 11" x 17"), together with two copies of calculations, and two copies of specifications in English Units, must be submitted to BNSF for approval prior to commencement of any construction. BNSF will give Agency final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and specifications meet the subjective standards of BNSF, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building codes.

2. Agency must make any required application and obtain all required permits and approvals for the construction of the Project.

3. Agency must provide for and maintain minimum vertical and horizontal clearances, as required in Exhibit C and as approved by BNSF as part of the plans and specifications for the Project.

4. Agency must acquire all rights of way necessary for the construction of the Project.

5. Agency must make any and all arrangements, in compliance with BNSF's Utility Accommodation Manual (http://www.bnsf.com/communities/fags/pdf/utillty.pd0, for the installation or relocation of wire lines, pipe lines and other facllltles owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project..

6. Agency must construct the Project as shown on the attached Exhibit A and do all work ("Agency's Work") provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF hereunder. Agency must furnish all labor, materials, tools and equipment for the performance of Agency's Work. The principal elements of Agency's Work are as follows:
(a) Construction of the Structure;
(b) All necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF's right-of-way;
(c) Provide suitable drainage, both temporary and permanent; (d) Construction and removal of a temporary pedestrian roadway detour crossing of the tracks, including chain link fence chute;
(e) Provide appropriate pedestrian control during construction; (d) Job site cleanup including removal of all construction materials, concrete debris, surplus soil, refuse, contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF;

7. Agency must apply and maintain said D.O.T. Crossing number 026007X in a conspicuous location on the Structure.

8. Agency's Work must be performed by Agency or Agency's contractor in a manner that will not endanger or interfere with the sate and timely operations of BNSF and its facilities.

9. For any future inspection or maintenance, either routine or otherwise, performed by subcontractors on behalf of the Agency, Agency shall require the subcontractors to comply with the provisions of the attached Exhibit C and execute the agreement attached hereto as Exhibit C-1. Prior to performing any future maintenance with its own personnel, Agency shall: comply with all of BNSF's applicable safety rules and regulations; require any Agency employee performing maintenance to complete the safety training program at the BNSF's Internet Website "www.BNSFContractor.com"; notify BNSF when, pursuant to the requirements of Exhibit C, a flagger Is required to be present; procure, and have approved by BNSF's Risk Management Department, Railroad Protective Liability insurance.

10. Agency must require Its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, Agency must require its contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks.

11. Agency or its contractor(s) must submit four (4) copies of any plans (including two sets of calculations in English Units) for proposed shoring, falsework or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring, falsework or cribbing used by Agency's contractor shall comply with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit F and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. If necessary, Agency must submit for approval two (2) copies of a professionally engineered demolition plan, as set forth in Exhibit G, with applicable calculations to BNSF's Manager of Public Projects.

12. Agency must include the following provisions in any contract with its provider(s) performing work on said Project:
(a) The Provider is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications companies may be buried on BNSF's property or right-of-way. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The Provider will be responsible for contacting BNSF and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Provider must also mark all Lines shown on the plans or marked In the field in order to verify their locations. The Provider must also use all reasonable methods when working in the BNSF right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist.
{b) The Provider will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Provider must cooperate fully with any telecommunications company(ies) in performing such rearrangements. (c) Failure to mark or identify these Lines will be sufficient cause for BNSF to stop construction at no cost to the Agency or BNSF until these items are completed. (d) In addition to the liability terms contained elsewhere in this Agreement, the Provider hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Provider, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Provider, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's right-of-way, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's right-of-way, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies). THE LIABILITY ASSUMED BY

CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT

THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM

WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF,

ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE

EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE

INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF,

13. Agency must require compliance with the obligations set forth in this agreement, including Exhibit C and Exhibit C-1, and incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Article Ill and IV; and (ii) the provisions set forth in Exhibit C, Exhibit C-I, and Exhibit F attached hereto and by reference made a part hereof.

14. Except as otherwise provided below in this Section 13, all construction work performed hereunder by Agency for the Project will be pursuant to a contract or contracts to be let by Agency, and all such contracts must include the following:
(a) All work performed under such contract or contracts within the limits of BNSF's rightof-way must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval;
(c) No work will be commenced within BNSF's right-of-way until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF an agreement in the form of Exhibit C-1, and (ii) delivered to and secured BNSF's approval of the required insurance; and
(d) To facilitate scheduling for the Project, Agency shall have its contractor give BNSF's representative Two (2) weeks advance notice of the proposed times and dates for work windows. BNSF and Agency's contractor will establish mutually agreeable work windows for the Project. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows.

Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor's expenses for the Project. (e) The plans and specifications for the Project must be in compliance with the BNSF Requirements for construction of Grade Separation Projects set forth on Exhibit F, attached to this Agreement and incorporated herein.

15. Agency must advise the appropriate BNSF Manager of Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. Additionally, Agency must notify BNSF's Manager of Public Projects, in writing, of the date on which Agency and/or its Contractor will meet with BNSF for the purpose of making final inspection of the Project.

16. TO THE FULLEST EXTENT PERMITTED BY LAW, AGENCY HEREBY

RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS

AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL

REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES

AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,

FINES, PENAL TIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,

SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT

LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR

DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE

EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY

ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF AGENCY, ITS CONTRACTORS,

SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE

CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY

THE AGENCY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (Ill) THE

SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF AGENCY, ITS

CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR

ABOUT THE CONSTRUCTION SITE, (IV) AGENCY'S BREACH OF THE TEMPORARY

CONSTRUCTION LICENSE OR EASEMENT GRANTED TO AGENCY PURSUANT TO

ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO

AGENCY PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR

EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) AGENCY'S

OCCUPATION AND USE OF BNSF'S PROPERTY OR RIGHT-OF-WAY, INCLUDING,

WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY

AGENCY, OR (VII) AN ACT OR OMISSION OF AGENCY OR ITS OFFICERS, AGENTS,

INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR

INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY AGENCY WILL NOT BE

AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION,

INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE

NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE,

EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.

17. Agency must give BNSF's Manager of Public Projects written notice to proceed ("Notice to Proceed") with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from Agency.
4) JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:

1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's written approval prior to the commencement of any such changes or modifications from the Manager of Public Projects.

2. The work hereunder must be done in accordance with the Bridge Requirements set forth on Exhibit F and the detailed plans and specifications approved by BNSF.

3. Agency must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.

4. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Agency (or any of its contractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Agency (or any of its contractors), in BNSF's opinion, prosecutes the Project work in a manner that is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Agency fails to pay BNSF for the Temporary Construction License or the Easement pursuant to Article 11, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by Agency or its contractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF.

BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following Individual in writing;

5. Agency must supervise and inspect the operations of all Agency contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by Agency personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating right-of-way). Construction of the Project will not proceed until Agency corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify for appropriate corrective action.

6. Pursuant to this section and Article 11, Section 6 herein, Agency must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes), less BNSF's Share as set forth in Article IV, Section 6 herein. BNSF's Share must be paid upon completion of the Project.

7. All expenses detailed in statements sent to Agency pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement.

8. The parties mutually agree that neither construction activities for the Project, nor future maintenance of the Structure once completed, will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center (telephone number: 800 832-5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period.

9. Subject to the restrictions Imposed by Article IV, Section 9 above, the construction of the Project will not commence until Agency gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference D.O. T.

Crossing No. 026007Xand must state the time that construction activities will begin.

10. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in Exhibit F, BNSF and Agency agree to the following terms upon completion of construction of the Project:
(a) BNSF will, at its sole cost and expense, accept, own, and maintain its roadbed, track, any access gates installed pursuant to the Project, railroad drainage, and all other railroad facilities.
(b) Agency will own and maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify Agency prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, BNSF will notify Agency at Its earliest opportunity. Agency must fully reimburse BNSF for the costs of maintenance performed by BNSF pursuant to this subsection (b).
(c) Agency must, at Agency's sole cost and expense, keep the Structure painted and free from graffiti.
(d) Agency must apply and maintain vertical clearance signs which consistently and accurately describe the minimum actual vertical clearance from the bottom of the Structure to the top of any pavement. All signage shall meet the requirements of the current edition of the MUTCD (Manual on Uniform Traffic Control Devices) (e) If at such time either clearance bar is damaged so that it no longer protects the underpass from vehicle strikes, the Roadmaster and Manager Public Projects shall be notified and the roadway will be closed after 30 days if the damage is not repaired within that time.
(a) Agency must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto. {b) It is expressly understood by Agency and BNSF that any right to install utilities will be governed by a separate permit or license agreement between the parties hereto. {c) Agency must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals. (i) If Agency (including its contractors and agents) or BNSF, on behalf of Agency, performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then Agency or its contractors and/or agents must procure and maintain the following insurance coverage, which may be changed from time to time:

Railroad Protective Liability insurance naming only BNSF as the Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 12 04 and include the following:
• Endorsed to include the Pollution Exclusion Amendment • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to BNSF prior to performing any work or services under this Agreement
• Definition of "Physical Damage to Property" shall be endorsed to read:
"means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations.

As used in this paragraph, "BNSF" means "Burlington Northern Santa Fe, LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.

In lieu of providing a Railroad Protective Liability Policy, Agency may participate in BNSF's Blanket Railroad Protective Liability Insurance Policy if available to Agency or its contractors. The limits of coverage are the same as above.

11. Agency hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from Agency property to BNSF tracks for maintenance purposes.

12. Agency must provide one set of as built plans (prepared in English Units) to BNSF, as well as one set of digital plans containing as built CAD drawings of the Structure and identifying the software used for the CAD drawings. The "as built plans" must comply with the Bridge Requirements set forth on Exhibit F and depict all information in BNSF engineering stationing and mile post pluses. The "as built plans" must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown.

13. Subject to the restrictions imposed by Article IV, Section 9 above and in accordance with the requirements of Article Ill, Section 9 above, Agency must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's right-of-way for INSPECTiON OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if flagging is required. If the construction work hereunder is contracted, Agency must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, as the same may be revised from time to time. Agency will be responsible for its contractor(s) compliance with such obligations.

14. In the event that BNSF shall deem it necessary or desirable in the future, in the performance of its duty as a common carrier, to raise or lower the grade or change the alignment of its tracks or to lay additional track or tracks or to build other facilities in connection with the operation of its railroad, BNSF shall, at its expense, have full right to make such changes or additions, provided such changes or additions do not change or alter the Structure herein proposed to be constructed and provided further, however, that should it become necessary or desirable in the future to change, alter, widen or reconstruct the Structure to accommodate railroad projects, the cost of such work, including any cost incidental to alteration of railroad or highway facilities made necessary by the alteration of the Structure shall be the sole responsibility of Agency.

15. Agency may, at Agency's sole expense, alter or reconstruct the highway components of the Structure if necessary or desirable, due to traffic conditions or pedestrian or other recreational traffic, provided, however, that any such alteration or reconstruction must receive BNSF's prior written approval as evidenced by either a supplement to this Agreement, or execution of a new agreement that provides for the termination of this Agreement. Furthermore, any alteration or reconstruction of the highway components of the Structure will be covered by a Commission Order.

16. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open lo inspection and audit by the agents and authorized representatives of the parties hereto, as well as the State of California and the Federal Highway Administration, for a period of one (1) year from the date of the final BNSF invoice under this Agreement.

17. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the pa1ties hereto. Notwithstanding the preceding sentence, neither party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party.

18. In the event construction of the Project does not commence within 12 months of the Effective Date, this Agreement will become null and void.

19. Neither termination nor expiration of this Agreement 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.

20. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision oflhis Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable.

21. This Agreement (including exhibits and other documents, manuals, etc. Incorporated herein) is the full and complete agreement between BNSF and Agency with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto.

22. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses:

BNSF: BNSF's Manager of Public Projects
Agency: City of Needles
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written.

BNSF RAILWAY COMPANY
By: ------------
Printed Name: _________ _
Title: ____________ _
WITNESS:

AGENCY

CITY OF NEEDLES
By: -----------
Printed Name: _________ _
Title: ___________ _
WITNESS:

Exhibit A
[Insert drawing of the Project and/or Structure]
RELOCATE------........._---.

STOP BAR .........._
(BY OTHERS) ~
,.,,
~----PROTECT EX. ~TOP BAR
f.J.J
~ /;j
~

SALVAGE
SIGN
EX. CLEARANCE

TO OWNER
1 RELOCATE "ARTWORK"
SIGN

RELOCATE STOP SIGN

TOP OF SIGN TO BE

BELOW CLEARANCE BAR
STRUCTURE NO. 1
(NORTH)
4'
817THIRO STREET
NEEDLES, CA 92363
(760) 326-2i13
STRUCTURE NO. 2
(SOUTH)

REMOVE & RESTORE
/EX.FENCE AS NEEDED
4'
~ POST ANO f:"OUNOATION ~1 1.t: POST ANO FOUNDATION #2
SPAN"A"
I I !MST ARM 'c:6

I SIGN I
I "E" STRUCnJIW. \
OFFSET
TUBING MAST "G" I
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I
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I \ I I I I I
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I

SINGLE MAST ELEVATION VIEW
(\.OOKING AHEAD IN THE DIRECTION OF TRAFFIC)
NOTES
--- 1. USE SAME DIAMETER PIPE FOR POST. ELBOW ANO MAST ARM.

2. AU. DIAMETERS ARE QUT.TO-OUT UNLESS OTHERWISE
NOTED. STRUCTURE DIMENSIONS 3. STATIONS ANO OFFSETS PROV!OEO ARE AT THE CENTERLINE POST ANO FOUNDATION. ·u,T POST ANO ELBOW MAST AAM H:tlir~~ BASE PLATE ELEVATION 1 El..EVATION2
STRUCTURE DIRECTION SPAN "A" HEIGHT HEIGHT MAST ARM PIPE SIGN OFFSET HE1GHT ABOVE A, SEE "STEEL DETAILS" SHEET FOR STEEL DETAILS. "C' DIAMETER WALL THICKNESS WAU TMICKNESS T.8.0.BY T,8.0. BY NO. OF TRAVEL (FT.-IN.) .. ,. ,~J~.} (FT.-IN.) "E"(IN.) "F,' (IN.) "Fi(IN.) "G"(FT.-IN.) ASPHALT ASP!<AI.T SURVEYOR SURVEYOR .S. CONTRACTOR TO CONFIRM SURVEYED FOUNDATION (FT.,.IN.) "H,"(FT.,•m .) "H::i' (FT.-IN.J ELEVATIONS WITH ENGINEER PRIOR TO CONSTRUCTING 1 (NORTH) SOUTH 53'-8' .... . .... 51'-0" 16" 0,37S" 0.375" ..... ,.,,. .... FOUNDATIONS. 2(SOUTH) NORlH 39·,G· . .,,. 6'-0" 36'-10' 16" 0.375" 0..375" 4'-8" ,.,,. ,.,,. -- -- 5 • .a.LL $ff.EL MEMBERS TO BE HOT DIPPED GALVANIZED. [~- )1;~ ., ::}PROJEC--:-•
~ """'"'
■ o r
.... ~ UC1SOUTl-l•CODWE.ST "" "'"' ..... ., ~ ... K STREET UNDERPASS I st(;Na:t _;;=i :,o.o,;.J(X)t WE:ITVALLE'!' OTY, 1Jt~ M\20 N.U. ■■=
• (801) '5~
_,c,TE
817 THIRD STREET CLEARANCE BAR '!:::'!.~=:'" ... OCT08ER2tl2D ..... NEEDLES, CA 92363
E eQi~ ~ EAST 1CO SOUTH (760) 326--2113 [~~- ~~- )[ _,.:EVATION LAYOUT )(;;] HEBER CJTY. UTAH l<IIXl2 ~ 1'3'J~ ·j : NEEDLES, CALIFORNIA
PLATE-a·
STRUCTlJAAL
TUBING•"£•
BOLT CIRCLE. ""R6
BA.SEPLATE•-PPOST BASE PLATE

6. CIA. HOLE FOR ELECTRICAL CONDUIT
T•VOIA.HOLES
5/iS- DIA. N.C. TAPPED HOLE
FORAiTACHMENTOF

GROUNDING CONDUCTOR

HANDHOLE AND COVER DETAILS
"""'Af SEE wa.0 OETAJ!. "Cl
DRILL ANO TAP FOR 114" DIA. x 3W RH BRASS MACHINE SCREWS Tx 7/S'Fl.ATBAAFRAME
PROVIDE 10 GA. COVER
- • - ft.POS'TORW.A$TARM
WELD DETAIL "A"
(AT SASE Pl.ATE)
WELD DETAIL "B"
(AT OPTIONAL. SHOP $PUCE)
U41$0\JTl-44000WEST WES"l'VALLEVOTY. Vfili1 Ml20
{101) :I!,~

PREHEAT
PERAWS
REOUlREMENTS
MEAST100SOV'TH
HEBERCITY, UTAM 140:Jl
I
1" x 31&' BACKING
~ RING

FIELD SPLICE DETAIL
STRUC1'1JAAL
TUBING
SPLICE: PLATE
WELD DETAIL "C"
(AT AELD SPLICE)

PREHEAT
PERAWS
45• REQUIREMENTS
(05)~ , 1--1---+---+------ ------11
PLATE "K"(2)
1"U81NG• "E"
BOLT CIRCLE•"l.."

SECTION A-A
"M". "N" DIA. MSHTO
M 164BOLTS
T(TYP.)
HORIZONTAL • - AXIS
Q __
SEEOETAIL "O"

MAST ARM END DETAIL
(FOR CANTILEVER ANO BUTTERFl Y STRUCTURES)
DETAIL "D"

THREADED INSMT,
FlUSH wmt OUTSIDE Of STRUCTURAL TU9!NG

STRUCTURAL
TUBING
ct; POST OR MAST ARM
I

OPTIONAL SHOP SPLICE DETAIL
i. POST OR MAST ARM
I

TEE DETAIL
NOTES

1. USE BOLTS CONFORMING TO ASTM A 325 Al SPLICE PLATE.

2. USE Nl/TS CONFORMING TO MSHTO M 291 GRADE OH OR
MSHTO M 292 GRADE 2H.

3. USE DIRECT-TENSION INDICATOR WASHERS CONFORMING TO ASTM F-SISSI ON BOL 1"S USED AT SPLICE Pl.ATES. 4, GA.L.VANIZE Nl/TS, BOLTS ANO WASHERS ~OROlNG TO
AASHTOM232.
&H TI-IIRO STREET
NEEDLES, CA 92363
(760)326-2113
K STREET UNDERPASS r~~-,u
l~==s===s===C=L=EA=RA==N=C=E=B=A=R======<·
"""""'-
[""""''''"'"""NEEDLES, CALIFORNIA ][ NETmu>STEEL DETAILS t POST & FOUNDATION
.,.-.,r DIA. BOlTS WITH HEAVY HEX

NUTS, LEVELING NUT ANO WASHERS
(SEEANCttOR BOLT OETAIL)
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817 THIRD STREET
NEEDLES. CA 92363
(760) 326-2113
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K STREET UNDERPASS

CLEARANCE BAR

NEEDLES, CALIFORNIA

1.75"
SHAFT
CWI..ETER EMSEDMENT I NUMBE~ vF I CEPTH BARS OAASILE "'W"' (IN,) T(FT.) "AA" .. .- ,.- ,. I ,. I .. l --F~UNDATION & SIGN
_ DETAILS

EASEMENT AGREEMENT

FOR K STREET UNDERPASS CLEARANCE BAR
(Underpass Agreement)
THIS EASEMENT AGREEMENT FOR ("Easement
Agreement") is made and entered into as of the __ day of ____ 20_ ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and CITY OF NEEDLES a Municipal Corporation ("Grantee").

A. Grantor owns or controls certain real property situated at or near the vicinity of K Street and Front, County of San Bernardino, State of California, at Mile Post [Project# _____ __,, as described or depicted on Exhibit "A-1" attached hereto and made a part hereof (the "Premises").

B. Grantor and Grantee have entered into that certain Underpass Agreement dated as of _______________ concerning improvements
on or near the Premises (the "Underpass
Agreement").

C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below).

D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement.

NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Section 1 Granting of Easement.

1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the UNDERPASS Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the UNDERPASS Agreement.

1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"). Granter may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the UNDERPASS Agreement.

1.3 Reservations by Granter. Granter excepts and reserves the right, to be exercised by Granter and any other parties who may obtain written permission or authority from Granter:
(a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power,
communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises.
(b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and ( c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose.

Section 2 Term of Easement.

The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. [If this is a temporary easement replace the preceding sentence with the following: The term of this Easement, unless sooner terminated under provisions of this Easement Agreement, shall expire on the date that is _______ .after the Effective Date.]
Section 3 No Warranty of Any Conditions of the Premises.

Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein.

GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY,

WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY

PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS

MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY

OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE

CONFORMITY OF ANY SUCH
PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO

GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES

RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY

OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON

OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAUL TS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements.

Section 4 Nature of Grantor's Interest in the Premises.

GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder.

Section 5 Improvements.

Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire.

Section 6 Taxes and Recording Fees.

Grantee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasigovernmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses.

Section 7 Environmental.

7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws 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, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws.

7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor'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 Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation.

7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination.

7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee 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 Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement.

Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities.
7 .5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7.

Should Grantee not comply fully with the above-stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9.

Section 8 Default and Termination.

8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs.

Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement.

8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement.

8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, 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 the Premises are restored as required by Section 9.

8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the UNDERPASS Agreement, at law or in equity.

Section 9 Surrender of Premises.

9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following:
(d) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Granter directs at Grantor's sole discretion;
(e) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises;
(f) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and
(g) leave the Premises in the condition which existed as of the Effective Date.

9.2 Limited License for Entry. If this Easement Agreement is terminated, Granter may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Granter. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Granter upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered.

Section 10 Liens.

Grantee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Granter is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Granter to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement.

Section 11 Tax Exchange.

Grantor may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in orderforGrantor to affect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with a Notice of Assignment, attached as Exhibit C, and Grantee shall execute an acknowledgement of receipt of such notice.

Section 12 Notices.

Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the UNDERPASS Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee.

Section 13 Recordation.

It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. [IF LEGAL DESCRIPTION IS NOT AVAILABLE USE THE FOLLOWING IN PLACE OF THE PRIOR SENTENCE: As of the Effective Date, a legal description of the Premises is not available. Grantee and Gran/or shall work together in good faith to establish the legal description for the Premises. Once Gran tor and Grantee have approved the legal description, Gran tor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement'?.] The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within_ days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee.

Section 14 Miscellaneous.

14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of [Texas] without regard to conflicts of law provisions.

14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and
provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises.

14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled.

14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

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

14.6 Time is of the essence for the performance of this Easement Agreement.

Section 15 Administrative Fee.

15.1 Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Granter, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $2,000.00 over and above the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check.
[Signature page follows]
Witness the execution of this Easement Agreement as of the date first set forth above.

GRANTOR:

BNSF RAILWAY COMPANY, a Delaware
Corporation
By: ________ Name: _______ _
Title:

GRANTEE:

CITY OF NEEDLES, a Municipal Corporation
By: ________ Name: _________ _
Title:

EXHIBIT "A-1"
Premises
EXHIBIT "A"

LEGAL DESCRIPTION

EASEMENT
A portion of the Northeast 1/4 of the Southeast 1/4 of Section 30, Township 9 North, Range 23 East, San Bernardino Meridian, in the County of San Bernardino, State of California, described as follows:

Commencing at the Point of Intersection of the Burlington Northern and Santa Fe Railway Company's Main Track Centerline and the East line of said Northeast J/4 of the Southeast 1/4; thence North 59°58'00" West, 311.51 feet along said Burlington Northern and Santa Fe Railway Company's Main Track Centerline to a line perpendicular with said Centerline; thence North 30°02'00" East, 53.4! feet along said perpendicular line to the true Point of Beginning; thence North 69°13'02" West, 56.00 feet; thence North 23°04'05" East, 3.00 feet; thence South 69°13'02" East, 56.00 feet; thence South 23°04'05" West, 3.00 feet to the point of beginning.

Containing 168 sq. ft.

Affecting: APN 018509113
See Sheet 2 (Exhibit "B") for a plat depicting the above-described property.

This real property has been described by me, or under my direction, in conformance with the Professional Land Surveyor's Act.

Ronald A. Musser, L.S. 4230, Exp. 6-30-24
I
L1
L2
L3
L4

LINE TABLE

BEARING LENGTH
N89iJ'02"E 58,00'
N23'04'05"E 3.00'
see,J'o2·E 58.00'
S23'04'05"W 3.00'
~ ---------
ivlAP 804-35-82
PTN. PJ.\E. NO. 3
ISSS\I
EXISTING CENlERLINE

EXISTING RIGHT-OF-WAY

EXISTING PROPERTY LINE

PROPOSED EASEMENT LINE

EASEMENT AREA
P.O.B.

P.O.C.

POINT OF BEGINNING

POINT OF COMMENCING
TKE ENGINEERING, INC.
2305 CHICAGO AVENUE
RIVERSIDE, CA 92507
(951} 680-0440
~

53.41'
I P.O.C.

N
SCALE: 1"=-40'
J.N.: 168-19

EXHIBIT 'B'

RIGHT -OF-WAY

EASEMENT DEED
APN 018509113
EXHIBIT "A"

LEGAL DESCRIPTION

EASEMENT
A portion of the Northeast 1/4 of the Southeast 1/4 of Section 30, Township 9 North, Range 23 East, San Bernardino Meridian, in the County of San Bernardino, State of California, described as follows:

Commencing at the Point of Intersection of the Burlington Northern and Santa Fe Railway Company's Main Track Centerline and the East line of said Northeast 1/4 of the Southeast 1/4; thence North 59°58'00" West, 309.66 feet along said Burlington Northern and Santa Fe Railway Company's Main Track Centerline to a line perpendicular with said Centerline; thence South 30°02'00" West, 59.59 feet along said perpendicular line to the true Point of Beginning; thence South 30°02'00" West, 3.00 feet; thence North 59°58'00" East, 42.36 feet; thence North 30°02'00" East, 3.00 feet; thence South 59°58'00" East, 42.36 feet to the point of beginning.

Containing 127 sq. ft.

Affecting: APN 0 18509113
See Sheet 2 (Exhibit "B") for a plat depicting the above-described property.

This real property has been described by me, or under my direction, in conformance with the Professional Land Surveyor's Act.
15° zz
Ronald A. Musser, L.S. 4230, Exp. 6-30-24

LINE TABLE
I BEARING l.£NG1H
L1 SJD'02'00"W J.00'
L2 N59'58'00"W 42.38'
LJ NJ0'02'00"E J.00'
L4 S59'58'00"E 42.38'
~
rJ "' S30"02'00"W
'
~ L3
.......
~ ' '
~
~ "'s Ji\,~~,.
............

LEGEND
--- -- EXISTING CENlERUNE
- - - - EXISTING RIGHT-OF-WAY
- - - - EXISTING PROPERTY LINE

PROPOSED EASEMENT LINE
IS s s Si EASEMENT AREA
P.0.8. POINT OF BEGINNING
P.O.C. POINT OF COMMENCING
TI<E ENGINEERING, INC.
2305 CHICAGO A VENUE
RIVERSIDE, CA 92507
(951) 680-0440
' '
JvlJ.\P BO4-05-B2
p-rN. P J.\R. NO. o
,t.,S..9:S:
'9oo ;,,
~0..9
·6'6"
P.O.C. \',
\
\
~
~ '\
' '
~
N
SCALE: 1"==40'
J.N.; 168-19

EXHIBIT 'B'

RIGHT-OF-WAY

EASEMENT DEED
APN 018509113
EXHIBIT "B-1"
Memorandum of Easement
THIS MEMORANDUM OF EASEMENT is hereby executed this __ day of ____ ,20_, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Granter"). whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth Texas 76131, and CITY OF NEEDLES. a City Municipality ("Grantee"). whose address for purposes of this instrument is 817 Third Street, Needles, 92363, which terms "Granter" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties.

WHEREAS Granter owns or controls certain real property situated in City of Needles, San Bernardino County, CA as described on Exhibit "A-1" attached hereto and incorporated herein by reference (the "Premises");
WITNESS ETH:

WHEREAS Granter owns or controls certain real property situated in City of Needles, San Bernardino County, CA as described on Exhibit "A-1" attached hereto and incorporated herein by reference (the "Premises");
WHEREAS, Granter and Grantee entered into an Easement Agreement, dated (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Granter to Grantee over and across the Premises (the "Easement"); and WHEREAS Granter and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record.

WHEREAS, For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Granter does grant unto Grantee and Grantee does hereby accept from Granter the Easement over and across the Premises.

The term of the Easement, unless sooner terminated under provIsIons of the Easement Agreement, shall be perpetual. Provisions regulating the use and purposes to which the Easement shall be limited, are set forth in detail in the Easement Agreement and Granter and Grantee agree to abide by the terms of the Easement Agreement.

All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control.
[Signature page follows]
IN WITNESS WHEREOF, Granter and Grantee have executed this Memorandum of Easement to as of the date and year first above written.

GRANTOR:

BNSF RAILWAY COMPANY, a Delaware corporation
By:

Name: _____________ _
Title:

Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, ana not the truthfulness, accuracy, or validity of that document.

STA TE OF CALIFORNIA
COUNTY OF _____ _
On--------~ 20_, before me,~~~~=~~~~~~~~-' Notary Public, personally Date Name And TIUa Of Ollie.er (e.g. "Jana Doe. Notary Public") appeared __________________ , who proved to me on the basis of satisfactory Name(s) of Slgner(s)
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies ), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Place Notary Saal Above Signature of Notary Public
GRANTEE:

CITY OF NEEDLES, a Charter City
By:

Name: __ _,_R"'ic"'k,_D=a~ni~e~ls'-------
Title: City Manager
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, ana not the truthfulness, accuracy, or validity of that document.

STA TE OF CALIFORNIA
COUNTY OF _____ _
On--------~ 20_, before me,....,,.----,~~=,--,----,-,--,,--=----,~~~ Notary Public, personally Date Name And Tltle Of Officer (e.g. "Jane Doe, Notary Publcj appeared ---------,-------------' who proved to me on the basis of satisfactory Name(s) of Slgner(s)
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies ), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Place Notary Seal Above Signature of Notary Public
EXHIBIT "C"

CONTRACTOR REQUIREMENTS

1.01 General:

1.01 .01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during the construction of the K Street Underpass Clearance Bar project.
• 1.01 .02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit "C-1 " Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit "C-1 ". Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519.
• 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01 .04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing:

1.01.05 The Cntractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement.

1.01.06 The Contractor must notify (Agency) at __________ .and Railway's Manager Public Projects, telephone number ,___L,_ ______ .at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railway's file __

1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans.

1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway.

Contractor Safety Orientation

1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.BNSFContractor.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project.

Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative.

Railway Requirements

1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by the Agency.

1.03.02 The Contractor must notify the Railway's Division Engineer at ( _ _ ). ___________ and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property.

1.03.03 The Contractor must abide by the following temporary clearances during construction:
15'-0"
21'-6"
27'-0"
28'-0"
30'-0"
34'-0"
Horizontally from centerline of nearest track
Vertically above top of rail
Vertically above top of rail for electric wires carrying less than 750 volts Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts Vertically above top of rail for electric wires carrying more than 20,000 volts

1.03.04 Upon completion of construction, the following clearances shall be maintained:
[Note to Drafter: The vertical clearance should mirror the final negotiated design clearance] 25'-0" Horizontally from centerline of nearest track
23'-0" 6" Vertically above top of rail

1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to the (Agency) and must not be undertaken until approved in writing by the Railway, and until the (Agency) has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval.

1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell-tales or protective devices will be borne by the Agency.

1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by (Agency) for approval before work is undertaken and this work must not be undertaken until approved by the Railway.

1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor.

1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1 (800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue.

1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway Contractor Roadway Worker on Track Safety Program and Safety Action Plan:

1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.BNSFContractor.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. [Note to Drafter: when appropriate insert e-RailSafe language as follows:

1.04.02 Contractor shall have a background investigation performed on all of its ay's representative.
employees, subcontractors and agents who will be performing any services for Railroad under this Agreement which are determined by Railroad in its sole discretion a) to be on Railroad's property, orb) that require access to Railroad Critical Infrastructure, Railroad Critical Information Systems, Railroad's Employees, Hazardous Materials on Railroad's property or is being transported by or otherwise in the custody of Railroad, or Freight in Transit involving Railroad.

The required background screening shall at a minimum meet the rail industry background screening criteria defined by the e-RAILSAFE Program as outlined at www.eVerifile.com, in addition to any other applicable regulatory requirements.

Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railroad's designee. Contractor shall be subject to periodic audit to ensure compliance.

Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e-RAILSAFE Program standards. Railroad shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railroad's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railroad's operations, assets or personnel.

Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization.

Railway Flagger Services:

1.05.01 The Contractor must give Railway's Roadmaster (telephone _________ _, a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements.

1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twentyfive (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions:

1.05.02a When, upon inspection by Railway's Representative, other conditions warrant.

1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement.

1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.

1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity.

1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable.

1.05.03 Flagging services will be performed by qualified Railway flaggers.

1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative.

1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day.

1.05.03c The cost of flagger services provided by the Railway will be borne by (Agency). The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services.

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.

1.05.03d The average train traffic on this route is ______ freight trains per 24-hour period at a timetable speed ________ trains at
a timetable speed of ______________ MPH.

Contractor General Safety Requirements

1.06.01 Work in the proximity of railway track(s) is potentially hazardous were movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. MPH and ___ passenger

1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes.

If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s).

1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track.

1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified.

A minimum of two employees must be present at all times.

1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management.

Future access to the Railway's Property by that employee will be denied.

1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1 (800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site.

1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property.

1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.BNSFContractor.com, however, a partial list of the requirements include:
a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats; c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railway's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE - Should there be a discrepancy between the information contained on the web site and the information in
this paragraph, the web site will govern.)

1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK.

MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET

OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION

CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE.

1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications)

1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations.

1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means.

Excavation:

1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits.

Before commencing excavation, the Contractor must contact BNSF's Field Engineering Representative( ____________________________ ). All
underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating.

1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions.

1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel.

1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible.

Hazardous Waste, Substances and Material Reporting:

1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately: notify the Railway's Resource Operations Center at 1 (800) 832-5452, of such discovery: take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release.

Personal Injury Reporting

1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury

NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in cannectian with rail equipment accident/incident. highway rail grade crossing accident ar autamobile accident. ensure that apprapriate inf rmatian is abtained. farms campleted and that data entry persannel are aware that injuries relate ta that specific event.)
Injured Persan Type:

D Passenger an train (C) D Nan-employee (N)
(i.e. emp of another rai!tvad or, non-BNSf emp involved in vehicle accident includin9 company vehicles)
D Cantractar/safety sensitive (F) D Cantractar/nan-safety sensitive (G) D Valunteer/safety sensitive (H) D Valunteer/ather nan-safety sensitive (I) D Nan-trespasser □) -to include highway users invalved in highway rail grade crassing accidents wha did nat ga araund ar thraugh gates
D Trespasser (E) -ta include highway users invalved in highway rail grade crassing accidents wha went araund ar thraugh gates
D Nan-trespasser (J) - Off railroad praperty
If train invalved. Train 10:

Transmit attached inf rmatian ta Accident/Incident Reporting Center by:

Fax l-817-352-7595 ar by Phane l-800-697-6736 or email to: [email protected] Officer Providing lnf rmatian:
(Name) (Emplayee Na .) (Phane #)
REPORT PREPARED Ta COMPLY WITH FEDERAL ACCIDENT REPORTING REIIUIREMENTS ANO PRDTECTED FRUM OISCLaSURE PURSUANT Ta 49 U.S.C. 20903 ANO 83 U.S.C. 490

NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REDUIRED □ BE COLLECTED PURSUANTTO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY ANO IT IS NOT INTENDED □ PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.

I. Accident City/St: 2. Oate: Time: ----- ---------- County: 3. Temperature: 4. Weather:
------------- (if non BNSF location)
Mile Past/ Line Segment:

5. Driver's License No (and state) or other 10: SSN (required):

6. Name (last, first. mi):

7. Address: City: ----- St: lip: ------

8. Oat, of Birth: and/or Age: Gender: --- (if available) Phone Number: Employer: ----------- --------
9~ 10~~ ----------------------- --~~~~- (i.e .. Laceration. etc.) (i.e .. Hand. etc.) II. Description of Accident (To include location. action, result. etc.):

12. Treatment:
□ First Aid Only
D Required Medical Treatment
------------------------------ □ Other Medical Treatment

13. Or. Name:

14. Or. Address:

Street:

15. Hospital Name:

16. Hospital Address:

Street:

17. Diagnosis:

Oate:

City: -------- St: lip: -----
City: -------- St: ----- lip: -----

REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 \J,S,C. 20903 AND 83 \J.S.C. 490 EXHIBIT "C-1"
Agreement Between

BNSF RAILWAY COMPANY
and the CONTRACTOR
Railway File: ________ _____ _ _
Agency Project:

PHILLIPS EXCAVATION, INC. (hereinafter called "Contractor"), has entered into an agreement (hereinafter called "Agreement") dated February 8, 2021, with CITY OF NEEDLES, a Municipal Corporation, for the performance of certain work in connection with the following project: K Street Underpass Clearance Bar project. Performance of such work will necessarily require Contractor to enter BNSF RAILWAY COMPANY (hereinafter called "Railway") right of way and property (hereinafter called "Railway Property"). The Agreement provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for CITY OF NEEDLES (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor.

Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Agreement, has agreed and does hereby agree with Railway as follows:
1) RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's property or right-of-way. THE LIABILITY

ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE

DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY

THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE

EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY.
r **Note to Drafter: In]
Arizona, California, Idaho, Illinois, Louisiana, Minnesota, Mississippi, Nebraska, New Mexico, and Wyoming check with the Law Department or appropriate local counsel to ensure that the indemnity language is enforceable.

In California and Wyoming, replace the word "GROSS" in the last sentence with the word "SOLE" In California replace the word "INTENTIONAL" in the last sentence with the word "WILLFUL".

THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS,

SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S

LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED.

Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits.

In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law.

THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY'S ACTS OF NEGLIGENCE.

It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. 2) TERM
This Agreement is effective from the date of the Agreement until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder.
3) INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage:

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 but in no event less than the amount otherwise carried by the Contractor.

Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limit 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 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. ♦ Waver of subrogation in favor of and acceptable to Railway. ♦ Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railway.

It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees.

No other endorsements limiting coverage as respects obligations undec this Agreement may be included on the policy with regard to the work being performed under this agreement.

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
The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Railway. ♦ Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds.
♦ The policy shall be primary and non-contributing with respect to any insurance carried by Railway.

B. Workers Compensation and Employers Liability insurance including coverage for, but not limited to:
♦ Contractor'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.

This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance:
♦ Waiver of subrogation in favor of and acceptable to Railway.

A. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railway prior to performing any work or services under this Agreement
♦ Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations.

In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) in Railway's Blanket Railroad Protective Liability Insurance Policy.

Other Requirements:

Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages.

Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway.

In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railway for all claims and suits. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under Contractor's care, custody or control.

Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above.

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

Prior to commencing services, Contractor shall furnish to Railway an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. The certificate should be directed to the following address:

BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free: 877-576-2378
Fax number: 817-840-7487
Email: [email protected]
www.certfocus.com
Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration.

Any insurance policy shall be written by a reputable insurance company acceptable to Railway 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.

If coverage is purchased on a "claims made" basis, Contractor hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation or termination of this Agreement. Annually Contractor agrees to provide evidence of such coverage as required hereunder.

Contractor represents that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement.

Not more frequently than once every five years, Railway 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 Contractor, Contractor shall require that the subcontractor shall provide and maintain insurance coverage(s) as set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Railway to the same extent and under the same terms and conditions as Contractor is required to release, defend and indemnify Railway herein.

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

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

In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will make available any required policy covering such claim or lawsuit.

These insurance provisions are intended to be a separate and distinct obligation on the part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work covered hereunder is performed.

For purposes of this section, Railway shall mean "Burlington Northern Santa Fe LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. 4) SALES AND OTHER TAXES
In the event applicable sales taxes of a state or political subdivision of a state of the United States are levied or assessed in connection with and directly related to any amounts invoiced by Contractor to Railway ("Sales Taxes"), Railway shall be responsible for paying only the Sales Taxes that Contractor separately states on the invoice or other billing documents provided to Railway; provided, however, that (i) nothing herein shall preclude Railway from claiming whatever Sales Tax exemptions are applicable to amounts Contractor bills Railway, (ii) Contractor shall be responsible for all sales, use, excise, consumption, services and other taxes which may accrue on all services, materials, equipment, supplies or fixtures that Contractor and its subcontractors use or consume in the performance of this Agreement, (iii) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails to separately state on the invoice or other billing documents provided to Railway or fails to collect at the time of payment by Railway of invoiced amounts (except where Railway claims a Sales Tax exemption), and (iv) Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest thereon) if Contractor fails to issue separate invoices for each state in which Contractor delivers goods, provides services or, if applicable, transfers intangible rights to Railway. 1)
Upon request, Contractor shall provide Railway satisfactory evidence that all taxes (together with any penalties, fines or interest thereon) that Contractor is responsible to pay under this Agreement have been paid. If a written claim is made against Contractor for Sales Taxes with respect to which Railway may be liable for under this Agreement, Contractor shall promptly notify Railway of such claim and provide Railway copies of all correspondence received from the taxing authority. Railway shall have the right to contest, protest, or claim a refund, in Railway's own name, any Sales Taxes paid by Railway to Contractor or for which Railway might otherwise be responsible for under this Agreement; provided, however, that if Railway is not permitted by law to contest any such Sales Tax in its own name, Contractor shall, if requested by Railway at Railway's sole cost and expense, contest in Contractor's own name the validity, applicability or amount of such Sales Tax and allow Railway to control and conduct such contest.

Railway retains the right to withhold from payments made under this Agreement amounts required to be withheld under tax laws of any jurisdiction. If Contractor is claiming a withholding exemption or a reduction in the withholding rate of any jurisdiction on any payments under this Agreement, before any payments are made (and in each succeeding period or year as required by law), Contractor agrees to furnish to Railway a properly completed exemption form prescribed by such jurisdiction. Contractor shall be responsible for any taxes, interest or penalties assessed against Railway with respect to withholding taxes that Railway does not withhold from payments to Contractor.

EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Agreement, and the Contractor Requirements set forth on Exhibit "C" attached to the Agreement and this Agreement, including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site.

Contractor shall execute a Temporary Construction Crossing Agreement or Private Crossing Agreement (http://www.bnsf.com/communities/faqs/permits-real-estate/), for any temporary crossing requested to aid in the construction of this Project, if approved by BNSF. 2) TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay.

For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period.

Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s).

Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors.

The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. The rate then in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of train delay pursuant to this agreement.

Contractor and its subcontractors must give Railway's representative: ('-_ __)), ______ _ ( ) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project.

Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains.

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized officer the day and year first above written.

PHILLIPS EXCAVATION, INC.

By: ___________ _
Printed Name: ___ .....,_M'-"e::c.,l""o=-dyL-!-P_,_hc:..:.i l,.,_,lip,,_.,s"-_ Title: _ __,P'-'r:...::e=s.:..::id=e=n,_,_t ________ _
Contact Person: Melody Phillips
Address: 8 0 5 E . B r o a d w a y
City: Needles State: CA Zip: 9 2 3 6 3
E-mail: [email protected]
Fax: _____________ _
Phone: 760-326-2527
BNSF Railway Company
By: ___________ _
Name: _ ____________ _
Title: Manager Public Projects
Accepted and effective this ___ day of 20_ .

EXHIBITD
[Cost K Street Underpass Clearance Bar]

NOT REQUIRED
Exhibit E
[Public Projects Manager's letterhead]
Date: ________ _
Mr./Ms. Rick Daniels, City Manager
C"'-'-"ity,._,,,_o,._f '-"N,,_ee:,:;d,,,I,,_e"'-s ______ ...J.[Name of Agency Here] 8"'-1.,_,7'-T-'-'h""i~rd'--'S""t"-'re,,_,e,.,t _____ __J[Address for Agency] Needles, CA 92363
Re: Final Approval of Plans and Specifications dated October, 2020, drafted by Epic Engineering (hereinafter called, the "Plans and Specifications") Dear Mr. Daniels:

This letter serves as BNSF RAILWAY COMPANY's ("BNSF") final written approval of the Plans and Specifications covering the construction of K Street Underpass Clearance Bar. This final written approval is given to CITY OF NEEDLES ("Agency") pursuant to Article 111, Section 1 of that certain Underpass Agreement between BNSF and Agency, dated _____ , 20_, which this Exhibit E is attached to and made a part thereof.

If the Plans and Specifications are revised by Agency subsequent to the date set forth above, this letter shall no longer serve as final written approval of the Plans and Specifications and Agency must resubmit said Plans and Specifications to BNSF for final written approval.

It is understood that the approvals contained in this letter do not cover, the approvals of plans and specifications for any falsework, shoring, and demolition that may be subsequently submitted to BNSF by CITY or its contractor for approval.

BNSF has not reviewed the design details or calculations for structural integrity or engineering accuracy.

BNSF accepts no responsibility for errors or omissions in the design of the project.

Regards,
[Public Projects Manager's Name]
City of Needles, California
Request for City Council Action
~---------------------------------------------------------~ Meeting Date:

Title:

Background:

Fiscal Impact:
□ CITY COUNCIL iZI NPUA iZI Regular □ Board of Public Utilities 11/08/2022
Authorize the City Manager or his designee to execute the First Amendment to the Master Purchase, License and Services Agreement with Landis & Gyr ("Landis") to remove the installation of electric meters from the scope of work; and execute an Installation Agreement with Wellington Energy, Inc. ("WEI") to install residential meters as part of the Advanced Metering Infrastructure (AMI) project.

The City/NPUA solicited proposals to design, license and install the AMI system.

The Council awarded the contract to Landis with WEI as a sub-contractor.

Landis has recently informed the City that it is not eligible to register with the Department of Industrial Relations ("DIR") which is required for prevailing wage work. Landis has requested that the City remove the installation of the Meters from the scope of work in the Agreement and instead, contract directly with Landis' subcontractor, Wellington, for the installation of the Meters. Additionally, the City has experienced an urgent situation that threatens local health, safety, and welfare of ratepayers. During the public comment period of the City Council meeting on October 11, 2022, members of the public expressed concern regarding overcharges on utility services that resulted from reliance on a manual meter reading system. Because of the overcharges, residents are not able to pay for life sustaining utility services. It is imperative, therefore, that the City move to an automated meter reading system, such as the system being implemented by Landis. This transition to automated metering needs to be accomplished expeditiously for the provision of essential services as permitted by section 1109 of the City's Charter. The City/NPUA will be contracting directly with WEI as a general contractor for the residential electrical meter installation. By directly contracting with WEI, the City/NPUA is saving approximately $80,037.30 on the residential meter installation with the price dropping from $352,000 to $262,463.

Additionally, the Landis' scope of work is being reduced another $50,700 for the commercial meter installation which will be installed by the City/NPUA at a later date.

The new project cost for the for the electric portion of the work is $1,959,321.70 to be allocated against the electric asset replacement fund. This amount represents a savings of $130,737.30 from the original contract amount of $2,090.059.

A'((L Sylvia Miledi
~---------------------------------------------------------~ Approved: 0 Not Approved: 0 Tabled: 0 Other:O
AGENDA ITEM: _lL
Recommendation: Authorize the City Manager or his designee to execute the First Amendment to the Master Purchase, License and Services Agreement with Landis to remove the installation of electric meters from the scope of work for Landis under the original Agreement; and execute an Installation Agreement in substantially the same form after City Attorney review with WEI for the AMI project in the amount of $262,462.70 plus the cost of required bonding.

Submitted By: Kathy Raasch, Projects Manager
City Management Review: \< « Date:

FIRST AMENDMENT TO THE

MASTER PURCHASE, LICENSE AND SERVICES AGREEMENT
This First Amendment ("First Amendment") to the Master Purchase, License and Services Agreement dated October 18, 2021 ("Original Agreement") by and between Landis+Gyr Technology, Inc. ("Landis+Gyr") and City of Needles ("Customer") is effective as of November _, 2022 ("Effective Date"). Capitalized terms herein not defined shall have the meanings ascribed to such terms in the Original Agreement.

BACKGROUND
A. WHEREAS, the patties hereby desire to amend the Original Agreement to exclude among other items: (a) electric meter installation services; (b) pricing schedule line items; and (c) scope of services.

B. NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained in this First Amendment and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound by this First Amendment, agree as follows:

AGREED TERMS

1. Exhibit A - Project Delivery Services Overview. Table I - Summary of Roles in Exhibit A of the Original Agreement is hereby amended as set fotth in Schedule I hereto attached.

2. Gridstream RF Solution Pricing. The Products and Services Pricing Table in Exhibit A of the Original Agreement is hereby amended as set fo1th in Schedule 2 hereto attached.

3. Pricing Clarification. The Installation clarification (page 21) line item 38 is removed in its entirety from the Original Agreement.

4. Deployment Project Statement of Work. Section D 1.2 Scope in Exhibit A of the Original Agreement is amended as follows, "All water meter equipment installation will be completed by a 3'd party installation contractor (hencefo1th referred to as "Installer") that will be contracted by and be the responsibility of Landis+Gyr; All electric meter equipment installation will be completed by a 3,<l patty installation contractor (hencefo1th referred to as "Installer") that will be contracted by and be the responsibility of Customer."

5. Deployment Project Statement of Work. Section D I .4 Key Assumptions in Exhibit A of the Original Agreement is amended as follows, "Landis+Gyr is responsible for installation of all water endpoints; Customer is responsible for installation of all network equipment and electric endpoints."

6. Deployment Project Statement of Work. Table 5. Planning Stage Activities in Section D 3.2 in Exhibit A of the Original Agreement is hereby amended as set fo1th in Schedule 3 hereto attached.

7. Deployment Project Statement of Work. Table 6. Execution and Control Stage Deliverables in Section D 3 .3 in Exhibit A of the Original Agreement is hereby amended as set fo1th in Schedule 4 hereto attached.

8. Deployment Project Statement of Work. Table 7. Execution and Control Stage Activities in Section D 3 .3 in Exhibit A of the Original Agreement is hereby amended as set fmth in Schedule 5 hereto attached.

9. Landis+Gyr's Liability. Based on the fact that electrical meter installation is the responsibility of Landis+Gyr under the Original Agreement and that Customer is retaining or unde1taking such services as an accommodation to Landis+Gyr, Landis+Gyr agrees that its obligations under the Original Agreement shall not be limited or reduced as a result of entering into this First Amendment, except as specifically provided herein to the contrary. Landis+Gyr shall be responsible for all aspects of the installation of electric meters as if Landis+Gyr or its subcontractor and agent had done so as originally contemplated. Likewise, Landis+Gyr shall not have the right to asse1t any claims or defenses against Customer at any time with respect to any matter including, but not limited, to warranty claims for electric meters as a result of the Customer's retaining or unde1taking the installation services as provided herein.

10. Amendment. All other terms of the Original Agreement not otherwise amended or supplemented by this First Amendment shall remain unchanged and in full force and effect.

11. Counterparts. This First Amendment may be executed in one or more counterpaits, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

12. Entire Original Agreement. This First Amendment and the Original Agreement set forth the entire understanding of the pmties and supersede any and all oral or written agreements or understandings between the pmties as to the subject matter of the Original Agreement as amended by this First Amendment. In the event of a conflict between the Original Agreement and this First Amendment, the terms of this First Amendment shall prevail.

IN WITNESS WHEREOF, each of the pmties hereto has executed its duly authorized representative to execute this First Amendment as of the Effective Date.

CITY OF NEEDLES
Signature: ___________ _
Name:

Title:

ATTEST:

Dale Jones, City Clerk
APPROVED AS TO FORM:

SBEMP LLP
John 0. Pinkney
City Attorney
LANDIS+GYR TECHNOLOGY, INC
Signature: _____________ _
Name: _______________ _
Title: ----------------
LANDIS+GYR TECHNOLOGY, INC
Signature: _____________ _
Name: _______________ _
Title: ----------------
SCHEDULE 1 - Table 1 - Summary of Roles in Exhibit A
Services Landis+Gyr Customer
Project Management Supp01t ✓
System Design ✓
Training ✓
Installation (network) ✓
Installation ( electric endpoints) ✓
Installation (water endpoints) ✓
Field Engineering ( on-site field installation ✓
supp01t)
Standard Integration Services ( as described To be determined ifrequired below). If custom interfaces are
required, a separate SOW will be
mutually agreed upon for an additional
fee.

System Administration/Daily ✓
Operations/Database Administration
WAN Backhaul Communications ✓
SCHEDULE 2 - Products and Services Pricing Table in Exhibit A Item Quantity Unit Price Extended
Price
Network Equipment
Network Gateway, IO-Foot Default Power Cable, I Series 5 Radio, I Cellular Modem, Utility Pole Mount 6 $4,700.00 $28,200.00 RF Router and Kit with 20-Foot Cable 12 $1,600.00 $19,200.00 Electric Meters with Communications Modules .

RF FOCUS AXe-SD !Form 2S) 2,500 $133.00 $332,500.00
RF S4x (Forms 5S, 6S, 8/9S, I 2S, l 6S) 150 $297.50 $44,625.00 Water Meters with Communications Modules
RF Mesh Wall-Mount Water Module 1,944 $115.00 $223,560.00 5/8 x 3/4" Multi-Jet Meter w/Plastic Bottom w/Encoder
Register w/Bare Wire 1,719 $80.95 $139,153.05
I" 98 $267.00 $26,166.00
1-1/2" 41 $1,364.00 $55,924.00
2" 79 $1,342.00 $106,018.00
3"(retrofit) I $115.00 $115.00
4"(retrofit) 3 $115.00 $345.00
6"(retrofit) 2 $115.00 $230.00
I0"(retrofit) I $115.00 $] 15.00
Installation Services
Water Meter (2" and Less) with Integrated Interpreter 1,937 $232.00 $449,384.00 Register Installation
Pit Module (on Meters> 3") Installation 7 $118.00 $826.00 Project Delivery Services
AMI Project Delivery Services I $96,000.00 $96,000.00
Installation Project Delivery Services I $37,000.00 $37,000.00 Training .

Online Training Imolementing 2-Wav Water I $300.00 $300.00 Securitv On-line Training (8 Training Credits) I $400.00 $400.00 Network Deployment 3-Day Classroom Training (Includes
Tech Studio TraininP) I $1,700.00 $1,700.00
Command Center Annlication 3 Dav Classroom Training I $1,700.00 $1,700.00 40 Training Credits (ootional for on-line trainini,) I $2,000.00 $2,000.00 RF Tools
Tech Studio Software License (per user) I $1, I 00.00 $1,100.00 Tech Studio Communications Adapter (per user) I $750.00 $750.00 Total $1,567,311.05
SCHEDULE 3 - Table 5. Planning Stage Activities
L +G Resource Services Provided Customer Responsibility Customer Resource Program Manager Develops schedule, Coordinates with Landis+Gyr Project Manager/ / Landis+Gyr established weekly PM, attends weekly meetings Customer Project Project Team status update meetin" Team
Leads project kickoff Confirms agenda, provides
meeting resources
Manages materials Coordinates testing and
flows, including PCA validation of PCA meters and
meter deliverv annroves for nroduction
Contributes to Develops Gateway, Router,
Gateway, Router, and electric meter deployment
electric meter, plan; reviews and approves the
deployment plan. deployment plan. Contributes
Develops water to water module deployment
module deployment plan.
plan.

Technical Conducts Product Coordinates internal PCA Project Manager Implementation Configuration testing, approves, and places Meter Shop Engineer Approval (PCA) materials orders
review on meters
Technical Leads workshops on Provides input to workshops Project Manager Implementation IT network System Admin/
Manager configuration, AMI Admin
integration planning,
test planning
Field Service Rep Assist in training for Paiticipates in site surveys Field Operations site surveys with Landis+Gyr Field Service
Ren
Training Conducts Command Attends Command Center, Field Operations, Center, Network Network Deployment, and Head End
Deployment, and Implementing 2-way Water Operations
Implementing 2-way training
Water training
Deployment Conduct training for Attend training for site surveys Field Operations Manager site surveys for entire deployment area
Network Design Develops final design Confirms acceptance of the Project Manager Engineer from site surveys final design; orders additional hardware as needed
SCHEDULE 4 - Table 6. Execution and Control Stage Deliverables Deliverables Lead Support
Hosted or On-Premise Command Center Landis+Gyr Customer instance and initial login credentials
System Commissioning of Command Center Landis+Gyr Customer Commissioning of network equipment, Landis+Gyr Customer electric meters, and water endpoints and
ensuring "Normal" status in Command
Center
Integration scope and plan, including: Landis+Gyr Customer Documentation from integration workshop,
including finalized integration scope,
standard integration diagram, and sample
test nlan
Integration implementation, including Landis+Gyr Customer functional Command Center extracts and/or
Multisneak/CIM web service calls
Coordination of meter and module deliveries Landis+Gyr Customer to align with installation schedule
Onsite Water pre-deployment workshop and Landis+Gyr Customer limited field support for initial Water module
installations
Testing and acceptance of the system Customer Landis+Gyr Installs and commissions Network Customer Landis+Gyr
Equipment for full deployment area
Conducts full deployment of water endpoint Landis+Gyr Customer installation services
Conducts full deployment of electric Customer Landis+Gyr endpoint installation services
SCHEDULE 5 - Table 7. Execution and Control Stage Activities L+G Resource Services Provided Customer Responsibility Customer Resource
Project Manager Manages project schedule and Manages electric endpoint Project material deliveries to supp01t Installer, provides day to day Manager installation schedule. Manages management of installation water endpoint Installer, resources, and completes
provides day to day tasks with the Installer as
management of installation needed to facilitate day to
resources, and completes tasks day installation work
with the Installer as needed to
facilitate day to day
installation work.

Technical Supports Field Tools Install Field Tools System/AMI Implementation installation Admin
Manager Configures Command Center Conducts security token and and assists Customer with system key process
security tokens and system
kevs
Leads IT network Pa1ticipates in IT network
configuration configuration
Implements standard Implements any needed
integration to Customer's changes to MOMS
MOMS
Assists in testing and Leads testing effott and
acceptance of the system, identifies issues as they arise resolves technical issues as
thev arise
Solution Architect Leads on premise Command Assists in system access and System/AMI Center installation and procuring server Admin
configuration ( self-hosted specifications
onlv)
Technical Leads RF Network Installs field infrastructure Field Implementation Commissioning Effott and devices prior to Operations / Manager, Field • Verifies network Commissioning AM!Admin Service Rep, settings and • Network and
Deployment communications backhaul installation
Manager • Ensures meter/water • Electric/Water
endpoints registration endpoints to provide
and function basis for system
• Verifies network field commissioning
installation
Conducts onsite Water pre- Provide technicians who
deployment workshop and have completed
limited field supp01t for initial Implementing 2-way Water Water module installations training
Installs Water endpoints. Installs Electric endpoints
Ensures installed endpoints are and provides feedback to "Normal" and communicating Landis+Gyr on installs
in Command Center.

Provides suppott to SAT and Executes SAT, produces test resolves defects repott, and accepts defect
resolutions
Installation Agreement
Contractor: Wellington Energy, Inc. ("Contractor")
WORK: Endpoint Installation Services as set forth in Exhibit A: Statement of Work PROJECT: City of Needles AMI Endpoint Installation Project ("Project") OWNER: City of Needles, CA ("Owner")
SUBCONTRACT PRICE: Unit Prices as set forth in Exhibit A: Statement of Work ("Subcontract Price") RETAINED PERCENTAGE: None
PERFORMANCE BONDS: Required _X_ Not Required __
(The above terms are incorporated by reference and are more fully explained below.) NOW THEREFORE, the parties hereto, for good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound, Owner and Contractor hereby agree as follows:
1 Agreements and Documents.

1.1 Type of Agreement. This Agreement is a master agreement which provides the general provisions governing the services set forth in Work Orders to this Agreement. Neither party hereto, by reason of entering into this Agreement or otherwise, is obligated to enter into any Work Order.

1.2 Work Orders and Projects. Any specific services to be performed by Contractor shall be agreed upon by means of the parties entering into a signed document for such services (a "Work Order").

Upon entering into a Work Order, a "Project" under this Agreement shall exist. In the event of any conflict or inconsistency between any term or condition of this Installation Agreement and any Work Order or Statement of Work applicable to a specific Project, the Project-specific terms and conditions shall apply.
2 Services.

2.1 Performance of Services. Contractor shall perform the services specified in each Work Order pursuant to the provisions thereof and the provisions of this Agreement. Fmther, Contractor shall provide to Owner any deliverables specified in a Work Order as part of such services. Time is of the essence with respect to all services and deliverables.

2.2 Contractor's Personnel. Contractor shall supply the personnel required to perform the services under a Work Order at Contractor's expense. Contractor shall only utilize reasonably competent and reliable personnel in connection with the supply of services. References herein and in a Work Order to Contractor's personnel, employees, and/or agents shall be deemed to include the personnel, employees, and/or agents of Contractor's subcontractors. Except as may otherwise be specified in a Work Order, Contractor is responsible at Contractor's expense for the transportation, training, pay and benefits, and all other expenses of Contractor's personnel for supply of services.

Contractor shall be fully responsible and liable to Owner for the compliance of Contractor's employees, agents, and other personnel with Contractor's obligations under this Agreement.

Contractor's personnel utilized in connection with the services shall wear and carry the uniforms, markings, identification, and related items as may be reasonably specified by Owner or as set forth in a Work Order. To the extent allowable under applicable laws, Contractor shall cany out criminal reasonable background checks, drug and alcohol tests, and driving record checks on all of Contractor's personnel involved in any services. Unless prohibited by federal or state law, no person who tests positive for any illegal (under local law where the Work is being performed, not under federal or another state's law) drug may be employed by Contractor or any of its subcontractors. Owner, for reasonable cause, or by mutual consent, may request the removal of any of Contractor's personnel from the performance of any of the services at any time, whereupon Contractor shall promptly remove such personnel.

2.3 Supply of Materials and Equipment. Except as may otherwise be specified in a Work Order, Contractor shall supply at Contractor's expense all materials, tools, and equipment necessary for the supply of services, and all transportation, shipping, maintenance and other expenses related thereto, and shall keep such items in good condition and repair. Vehicles utilized by Contractor in connection with the supply of services shall have such reasonable markings and identification as may be specified in a Work Order or as requested by Owner.

2.4 Care of Material and Equipment. Contractor shall exercise proper care, consistent with the Work Order, in handling, storing, and utilizing all materials, tools, and equipment necessary for the supply of services under a Work Order, including such items of Owner, Owner's Subcontractors, or Owner's customers which Contractor handles, stores, or utilizes in connection with its pe1formance of services.

2.5 Care of Location and Facilities. At all Owner premises where Contractor pe1forms services pursuant to a Work Order, Contractor shall keep such premises in a reasonably clean and orderly fashion and reasonably free from accumulation of waste materials or rubbish caused by its services., and after completion of the services Contractor shall reasonably clean and repair such premises to its pre-existing condition.

2.6 Compliance with Rules. Contractor shall comply with all of Owner's lawful and reasonable rules, policies, standards, and procedures (including without limitation workplace rules) that are provided to Contractor prior to the execution of a Work Order in connection with Contractor's performance of the services. In addition, if a Project requires Contractor's personnel to be at the location of any other party (including without limitation, any customers of Owner), then Contractor shall comply with the lawful and reasonable rules, policies, standards, and procedures (including without limitation work place rules) of such third party while located there.

2.7 Compliance with Laws.

2. 7. I Contractor shall comply with all applicable laws and regulations in connection with Contractor's performance of the services, including, but not limited to, the then current editions of the National Electrical Code, the National Electric Safety Code, the Electric Codes of the states in which Contractor performs services, the rules and regulations of the Occupational Safety and Health Act of 1970 (OSHA), and state OSHA rules and regulations. At Contractor's expense, Contractor is responsible for obtaining and maintaining all applicable licenses for itself and its personnel in connection with the services. Contractor will comply in all respects with all applicable immigration laws that may impact Contractor's obligations under this Installation Agreement, including the Immigration Reform and Control Act of 1986 and Form 1-9 requirements. Without limiting the generality of the foregoing, Contractor will perform all required employment eligibility and verification checks and maintain all required employment records.

2. 7 .2 Contractor shall obtain all necessary licenses and permits required to perform the Work and comply with all statutes, ordinances, rules, regulations and orders of any Governmental Body having jurisdiction over the Work or the performance thereof, including, but not limited to, those relating to safety, hazardous communication standards, environmental 2 laws, wages, discrimination and equal employment opportunity. Contractor shall promptly correct any conditions violating such statutes, ordinances, rules, regulations or orders committed by Contractor or its privies; and Contractor shall receive and respond to, and shall defend, indemnify and save harmless Owner, and its respective privies from and against any loss, liability or expense, including reasonable attorneys' fees and expenses, arising from any violations, citations, assessments, fines or penalties resulting therefrom.

Owner shall have the right to reasonably inspect and obtain copies of all written licenses, permits or approvals, issued by any Governmental Body to Contractor that are applicable to the performance of the Installation Agreement.

2.7.3 Contractor shall conduct all Work under this Installation Agreement in a reasonably economically, socially and environmentally responsible manner. Contractor shall ensure that its employees, agents and representatives perform the Work in accordance with Owner's Code of Conduct, if such Code of Conduct is provided to Contractor prior to the issuance of a Work Order

2.7.4 The specifications, codes, and standards referenced in the Installation Agreement (including addenda and amendments) shall govern in all cases where references thereto are made. In case of conflict between the referenced specifications, codes, standards, or the Work Order and the Installation Agreement, the Work Order shall apply only with regards to the specific subject matter therein. In all but the latter cases, Contractor shall notify Owner of conflicts between referenced specification, codes, or standards and the Installation Agreement.

2.7.5 Reference in this Installation Agreement, or any exhibit, or Statement of Work, to the standards of any technical society, organization or association, or to any national, state or local codes or standards (including those of any Governmental Body), means the latest standard or code adopted, as amended from time to time, unless specifically stated otherwise.

2. 7 .6 Contractor warrants that it has not transferred, nor will it, transfer anything of value to any employee, agent or other representative of Owner, where such was or is made with the intent and/or understanding of obtaining favorable treatment with respect to the Installation Agreement and/or the Work.

2.7.7 Contractor shall promptly notify Owner if(i) Contractor is served with notice of violation of any Applicable Law, or is engaged in a settlement agreement, permit, or license relating to its Work hereunder, (ii) of near misses or injury occurring during the course of performing its obligations under the Installation Agreement, (iii) proceedings are commenced to revoke any certifications, permits or licenses which relate to such Work, (iv) ce1tifications, permits, licenses, or other authorizations by a Governmental Body relating to such Work are revoked, (v) litigation is commenced against Contractor which could affect such Work, or (vi) Contractor becomes aware that its equipment or facilities related to such Work are not in compliance with Applicable Laws (collectively, "Sanctions"). Contractor shall provide copies of any documents evidencing such Sanctions.

Contractor will keep Owner reasonably informed on a regular basis of the progress made and resolution of such Sanctions, whether resulting in a requirement by Contractor to pay fines, modify operations, or comply with said Sanctions in any other manner. Nothing in this Paragraph 2.7.7 shall require Contractor to violate any confidentiality obligation(s) it may have to any patty involved in any of the Sanctions.

2.7.8 If Owner determines that Contractor is failing to comply with any Applicable Laws and other legal requirements under the Installation Agreement, or observes unsafe work practices and/or conditions on the part of Contractor or its employees or agents, Owner 3 may (i) advise Contractor of such and direct Contractor to stop petforming the Work after Owner gives Contractor written notice of specific practices and/or conditions and Contractor is given a reasonable opportunity to cure said practice(s) and/or condition(s), and (ii) in the event Owner reasonably determines that said practice(s) and/or condition(s) were not so cured after giving Contractor written notice thereof, Contractor shall cause all such Work to stop. Contractor shall bear all additional costs including those that affect the Installation Schedule or the Project Schedule which may result from Work stopped in accordance with this Section 2. In the event that such work stoppage is ultimately deemed by Owner and Contractor to have been unreasonable and/or unnecessary, Owner shall bear the additional cost of such work stoppage and shall afford Contractor a reasonable extension in the Installation Schedule or the Project Schedule for completion of the Work.

2.7.9 Prevailing Wages. To the extent applicable, Contractor shall be solely responsible for compliance with all California Prevailing Wages laws relating to any labor provided by it under this Agreement. Contractor shall indemnify, defend and hold harmless Owner from any claim, demand or action in which it is alleged that Contractor did not pay prevailing wages. This indemnity obligation shall not be subject to the liability limitation in this Agreement

2.8 Reports and Accounting Information.

2.8. l Contractor shall furnish to Owner reasonable rep01ts as specified in the applicable Scope of Work.

2.8.2 Contractor shall maintain reasonably accurate and satisfact01y records and books of account in accordance with generally accepted accounting principles to evidence compliance with this Installation Agreement. Contractor's records and books shall present all costs and expenses utilized either directly or indirectly in computing any charges to Owner. Upon thirty (30) days prior written notice, Contractor shall provide Owner, Owner and their representative(s) reasonable access to Contractor's records and books (including but not limited to Contractor's electronic data files) related to its performance of this Agreement, for verification of Contractor's compliance with the Installation Agreement.

For any work performed on a unit price or time and material basis, the records and books of account of Contractor, in either electronic or paper format as kept by Contractor in its ordinary course of business, shall be made reasonably available upon written request during the te1m of the Installation Agreement, and for a period of thirty-six (3 6) months after the completion of all Work under the Installation Agreement ( or any longer period required by applicable laws).

2.9 Marks and Public Announcements. Contractor agrees not to use Owner's name, any of Owner's customer's names, or any of Owner's Contractor's names, or the names of their respective affiliates, the names of any of their respective personnel, or any of their respective trademarks, service marks, and trade names without the prior written approval of Owner and, if applicable, Owner. Fmther, Contractor shall make no public announcement with regards to this Agreement, any Work Order, any Project, or any of the matters related thereto without the prior written approval of Owner.

Notwithstanding anything in this Agreement to the contrary, Contractor may divulge Owner's identity without Owner's prior written approval when reasonably necessmy to facilitate Contractor's performance of the Work.

2.10 No Exclusivity. This Agreement does not establish any exclusive relationship between Owner and Contractor and does not grant any exclusive rights or priority to Contractor to supply services or deliverables to Owner. The entering into of any Work Order does not give Contractor the right to perform any other services for Owner or the right to enter into any other Work Order. 4 2.11 Insurance.

2.11 . I Contractor shall purchase and maintain such insurance as shall protect Contractor and Owner, including Owner's employees or agents, as their interests may appear, from claims which may in any way arise out of or be in any manner connected with the performance of the Installation Agreement, whether such claims arise out of the act or failure to act of Contractor, Owner, or of the direct or indirect delegate, appointee or employee of either. Contractor shall provide evidence of all such insurance at the request of Owner. Such insurance shall be as specified below, and all insurance companies shall be rated A-7 or better by A.M. Best rating services in amounts not less than:

2.11.2 Worker's Compensation at statutoty limits for the state of hire or operations including other state's insurance and voluntary compensation and provide waiver of subrogation.

2.11.3 Employer's Liability, as follows: Bodily Injury Limits by Accident at one million dollars ($1,000,000) per accident; Bodily Injmy Limits by Disease at one million dollars ($1,000,000) policy limit and Bodily Injury by Disease at one million dollars ($1,000,000) per employee.

2.11.4 Commercial General Liability, including Products and Completed Operations and Prope1ty Damage Liability on an occurrence form, with no explosion, collapse or underground (XCU) exclusions and providing products/completed operations, premises/operations, personal injury and a sudden and accidental pollution endorsement, with limits of not less than five million dollars ($5,000,000) which can be achieved with a combination of General Liability and Umbrella Limits. Umbrella or Excess must be form following or include, via blanket endorsement of Owner as additional insureds on a primary/noncontributory basis and provide waiver of subrogation.

2.11.5 Automobile Liability, with a combined single limit of not less than one million dollars ($1,000,000), including, but not limited to, coverage for: owned vehicles, non-owned vehicles and hired vehicles. Include Owner as additional insureds, via blanket endorsement, on a primary/non-contributory basis and provide waiver of subrogation. Such limit may be satisfied via a combination of primary and umbrella/excess liability coverage.

2.11.6 All dollar amounts of coverage set forth above shall be per occurrence and in the aggregate.

The policies described herein shall (i) be endorsed, via blanket endorsements, to show that Contractor's insurers waive subrogation against Owner, its affiliates, directors, officers, employees and insurers, (ii) be written so that the insurance is primary and noncontributo1y, (iii) not expire, te1minate or otherwise be discontinued except upon not less than thirty (30) days prior written notice to Owner, (iv) contain Additional Insured Status, via blanket endorsement, for Owner, and their employees and agents, on Commercial General Liability and Automobile Liability, and applicable Umbrella/Excess Liability.

2.11. 7 Contractor shall be exclusively responsible for any and all deductibles as it may pertain to insurance coverage on the Project.

2.11.8 As a condition of payment for the Work, Contractor shall furnish a ce1tificate, reasonably satisfactory to Owner, from each insurance company showing the required insurance to be in force and stating that the insurance will not be canceled or changed except upon at least ten (I 0) days written notice thereof to Owner or as otherwise required by the Contract Documents.
5 3 Compensation and Payment Pmvisions

3.1 General Compensation Strnctue. Each Work Order shall set forth the fees, expense reimbursements, if any, and other compensation, if any, to be provided in connection with a Project, and any paiticular payment terms related thereto.

3.2 Invoices and Payment. Except as may otherwise be explicitly stated in a Work Order, the following payment provisions will apply. Contractor shall issue and invoice for all services on a monthly basis in arrears. Invoices are to be emailed KRaasch@c ityofneedles.com with a copy sent to the Project Manager. All payments hereunder are due within thirty (30) days of receipt of invoice and shall be made in United States dollars. The fees, compensation, and reimbursements specified in a Work Order are the sole and exclusive compensation due to Contractor from Owner thereunder.

Owner shall pay to Contractor for the satisfactory performance and completion of the Work and all the duties, obligations and responsibilities of Contractor under this Installation Agreement in accordance with the Unit Prices set forth in Exhibit A, based on actual quantities determined in accordance with the Contract Documents, subject to additions and deductions as herein provided.

All Unit Prices set forth in Exhibit A shall be deemed to include all costs of Contractor's performance of the Work as defined by the Statement of Work. In the event of a dispute between Owner and Contractor relating to or arising from this Agreement or Contractor's performance of the Work, Owner shall pay to Contractor all undisputed amounts and retain only the disputed amount(s). In the event that any properly submitted invoice remains unpaid for more than fortyfive (45) days, for any reason, Contractor may suspend all Work until such time as all outstanding invoices have been paid.

3.3 Expenses. Expenses of Contractor are only reimbursable by Owner if authorized in a Work Order.

If so authorized, expenses are only reimbursable (a) if the expenses are authorized by Owner in writing in advance, (b) if they are customary and reasonable in amount, and ( c) if Contractor submits a repo1t of the expenses, along with copies of receipts for each expense, to Owner within fo1ty-five (45) calendar days of incurring the expense. Except for costs and expenses specifically assumed by a party under this Agreement or a Work Order, each party hereto shall pay its own expenses incident to this Agreement or a Work Order.
4 Term.

4.1 Basic Term. This Agreement shall commence on the November _ , 2022 ("Effective Date") and shall remain in effect unless terminated as provided in Section 4.2.

4.2 Early Termination Events.

4.2.1 This Agreement may be terminated at any time by the mutual written consent of Owner and Contractor.

4.2.2 Termination Without Cause. Owner may terminate this Agreement in whole or in pait at any time without cause upon thirty (30) calendar days' written notice to Conh·actor. If the Agreement is thus terminated by Owner for reasons other than Contractor's failure to perform its obligations, Owner shall pay Contractor a prorated amount based on the services satisfactorily completed and accepted prior to the effective date of termination.

Such payment shall be Contractor's exclusive remedy for termination without cause.

4.2.3 This Agreement may be terminated by either patty upon its written notice of termination to the other party based on a Default by the other paity. A patty shall be deemed to be in "Default" of this Agreement if such patty has breached or othe1wise failed to observe an obligation imposed upon such party by this Agreement, and such breach has continued unremedied for a period of at least thitty (30) days following the other party's written notice 6 to such party that such breach or failure occurred if capable of cure, or immediately if not capable of cure.

4.2.4 This Agreement may be terminated by either party upon its written notice of termination to the other party based on the Bankruptcy of the other party. A party shall be deemed to be in "Bankruptcy" for purposes of this Agreement (i) if such party shall be the subject to a bankruptcy filing, (ii) upon the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, or other similar agent for such party, or (iii) upon the institution of similar proceedings to any of the foregoing with respect to such party.

4.2.5 Reserved.

4.3 Project Terminations. In the event that there is a Default with respect to a Work Order under this Agreement, then the non-defaulting party may (at its election and discretion) terminate that Work Order without terminating this Agreement and other Work Orders and may exercise its remedies with respect to such Default; provided however, a party shall be deemed to be in "Default" of a Work Order if such party has breached or otherwise failed to observe an obligation imposed upon such party by such Work Order, and such breach has continued unremedied for a period of at least thirty (30) days following the other party's written notice to such party that such breach or failure occurred if capable of cure, or immediately if not capable of cure.

4.4 Other Remedies. Except as othe1wise expressly provided in this Agreement, each party's right to terminate this Agreement or a Work Order shall be in addition to any and all rights and remedies as shall be available to it at law or in equity.

4.5 Obligations Upon Termination. Any provision of this Agreement or a Work Order which by its ve1y nature or context is intended to survive any termination, cancellation, or expiration thereof, specifically including without limitation the provisions of Sections 4.4, 4.5, 5, 6, 7, and 8 of this Agreement, shall so survive such termination.
5 Non-Disclosure Obligations.

5.1 Each party hereto or any of its affiliates (a "Discloser") may disclose to another party hereto or any of its affiliates (a "Recipient") Confidential Information (as defined below) of Discloser.

Recipient acknowledges that the Confidential Information of Discloser constitutes valuable assets and trade secrets of Discloser and its affiliates, has not been published and is protected by civil and criminal law and that the use and disclosure thereof must be carefully and continuously controlled.

Accordingly, during the term of this Agreement and at all times thereafter, Recipient, agrees that:

5. I . I It will use the Confidential Information of Discloser only for the purpose of fulfilling its obligations under and as otherwise permitted under this Agreement;

5.1.2 It will hold the Confidential Information of Discloser in strict confidence and will use commercially reasonable best efforts (as defined in Paragraph 5.2 of this Agreement) to protect the Confidential Information of Discloser from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement;

5.1.3 It will not sell, lease, assign, transfer, distribute, license, disclose or otherwise make available any Confidential Information of Discloser, or the benefit thereof, to others, except as authorized by this Agreement;
5 .1.4 It will not remove or permit to be removed from any item em bodying Confidential Information of Discloser any notice placed thereon indicating the confidential nature and/or the proprietaty right of Discloser or other parties in such items; 7 5.1.5 It will honor, reproduce and include the copyright notice, trademark notice, and other proprietaty notices (in the form specified by Discloser) on all copies, in any form, including pattial copies and excerpts, of the Confidential Information of Discloser;

5.1.6 It will (A) limit access to the Confidential Information of Discloser to those of its employees who have a need to use the Confidential Information in connection with their employment by Recipient, and to any third parties which are explicitly pennitted (and only to the extent so permitted) by this Agreement, (B) prohibit access to the Confidential Information of Discloser by any other third patty, without the prior written consent of Discloser and (C) require the foregoing permitted persons to execute nondisclosure agreements to the saine effect as this Section 5.1 in all material respects; and

5.1.7 In the event Recipient becomes aware that any person or entity (including, but not limited to, any employee of Recipient) is taking, threatens to take, or has taken any action which would violate any of the foregoing provisions were that person or entity a patty to this Agreement, Recipient shall promptly and fully advise Discloser (with written confirmation as soon as practicable thereafter) of all facts known to Recipient concerning such action or threatened action. Recipient shall not in any way aid, abet or encourage any such action or threatened action. Recipient agrees to use reasonable effotts to prevent such action or threatened action, including, but not limited to, assigning any cause of action it may have related to the violation of the foregoing provisions to Discloser, and Recipient agrees to do all reasonable things and cooperate in all reasonable ways as may be requested by Discloser.

5.2 Commercially Reasonable Best Efforts. "Commercially reasonable best efforts" obligations of a Recipient as provided in this Section 5 shall include, but not be limited to, employing procedures with respect to the Confidential Information of Discloser which are no less restrictive than the strictest procedures established or employed by Recipient to protect Recipient's own confidential information, trade secrets or know-how.

5.3 Reguired Disclosures. Recipient may disclose Confidential Information that is disclosed pursuant to a requirement of a court or government agency or in connection with judicial proceedings between or among the parties or involving one of the patties. provided, however, that prior to any such disclosure, Recipient shall have given Discloser notice of any proposed disclosure and a reasonable opportunity to interpose an objection or obtain a protective order requiring that the Confidential Information to be disclosed be used only for the purposes for which the order was issued.

5.4 Return. Upon the earlier of termination or expiration of this Agreement or demand by Discloser, Recipient shall promptly return to Discloser all Confidential Information of Discloser and shall promptly deliver a certificate of officer of Recipient cettifying that all such Confidential Information has been returned.

5.5 Confidential Information. For purposes hereof, "Confidential Information" means all information relating to the business or affairs of a Discloser and its affiliates, Subcontractors, and customers considered proprietary or confidential by Discloser or its affiliates, whether received by Recipient directly or indirectly and in any form whatsoever whether in writing, oral, machine readable form or through access to Discloser's, its affiliate's, or their respective customers' or Subcontractors' premises, including without limitation technical or nontechnical data, software (whether in object or source code form), formulae, tools, patterns, plans, compilations, programs, devices, methods, techniques, drawings, processes, financial data, lists of actual or potential customers or Subcontractors, marketing plans and business strategies, and also means and includes the terms and conditions of this Agreement. Information need not be marked "Confidential" to be considered Confidential Information. Notwithstanding the foregoing, Confidential Information 8 shall not include (i) information that becomes generally available to the public other than as a result of unauthorized disclosure by Recipient; and (ii) information that was available to Recipient on a non-confidential basis prior to receipt. Parties acknowledges that Owner is a public agency subject to the requirements of the California Public Records Act Cal. Gov. Code section 6250 et seq. and, as such, may be required to disclose information/documents determined to be public records. 6 Property Rights.

6.1 Neither party grants to the other any license or right to use, execute, reproduce, display, perform, distribute externally, sell, copy, or prepare derivative works of any of the party's technology, software code, documentation, specifications, designs, manuals, flow charts, manuals, displays, and other materials of the party and its subcontractors, affiliates, and customers whether in machine or human readable fotm.
7 Warranties.

7.1 Authority and Ability. Each party hereto represents to the other party hereto that it (a) has all rights necessary to enter into and to fulfill its obligations under this Agreement and each Work Order, and (b) has no knowledge of any adverse claim against or adversely affecting such rights. 7 .2 Services and Deliverables. Contractor warrants to Owner that all services and deliverables shall conform in all material respects to the specifications and requirements set forth or incorporated in the Work Order relating thereto. Contractor warrants that all services shall be performed with reasonable care, skill, and diligence and in a professional and workman-like manner, consistent with industry standards. Contractor warrants that all goods, equipment, and materials which it supplies in connection with the services shall be of reasonably good quality and shall be reasonably free from defects in materials and workmanship ("Conformities"). Contractor shall promptly correct any unreasonable non-Conformities with the warranties set fotth in this Section at no additional cost or expense to Owner. The warranty period shall be twelve (12) months from date of shipment.

7.3 Assignment of Third-Party Warranties. To the extent that such warranties are assignable, with respect to any goods, equipment, and materials supplied by Contractor in connection with the services, Contractor shall assign to Owner (or at Owner's request, to Owner's customers) any and all applicable manufacturer's or installer's warranties of third patties.

7.4 Indemnity. Contractor and Owner agree to indemnify and defend the other, its respective affiliates and customers, and its respective affiliates' and customers' employees, agents, and contractors (collectively, the "Indemnified Parties") against, and hold the Indemnified Patties harmless from, any and all liabilities, costs, damages, claims, causes of action,judgments, and expenses (including without limitation reasonable attorney's fees) suffered or incurred by any of the Indemnified Parties that arise out of, relate to, or result from (i) any personal injury or death, (ii) any property damage, (iii) any breach of this Agreement, if caused in whole or in part by the other or its respective employees, contractors, or agents, or (iv) a claim that any of the services or deliverables provided by Contractor infringe a patent, trademark or copyright, or misappropriate a trade secret, of a third patty. Notwithstanding anything in this Agreement or any Work Order to the contrary, Contractor's liability under this Agreement is limited to the amount actually paid by Owner to Contractor under this Agreement.

7.5 Excluded Liabilities. EXCEPT WITH RESPECT TO OBLIGATIONS UNDER SECTIONS 5 AND 7.4 HEREOF, NEITHER PARTY HERETO SHALL HAVE ANY LIABILITY TO

THE OTHER PARTY HERETO FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL,

OR SPECIAL DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH 9 DAMAGES), INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM

LOSS OF USE, LOSS OR CORRUPTION OF DATA, LOSS OF REVENUE, LOSS OF

PROFIT, LOSS OR DAMAGE TO GOODWILL, LOSS OF SA VIN GS (REAL OR

ANTICIPATE), OR LOSS OF BUSINESS, WHETHER ARISING OUT OF OR WITH

RESPECT TO THE PERFORMANCE OF THE SERVICES, THIS AGREEMENT, A

WORK ORDER, OR ANY OTHER MEANS OR EVENT, AND REGARDLESS OF THE

FORM OF ACTION UPON WHICH A CLAIM FOR SUCH DAMAGES MAY BE BASED,

WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. OWNER SHALL NO LIABILITY TO CONTRACTOR FOR PUNITIVE OR EXEMPLARY DAMAGES.

THESE LIMITATIONS SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8 Miscellaneous

8.1 Agreement.

8.1.l This Agreement, including any exhibits, schedules, and appendices hereto and including any Work Orders issued hereunder ( collectively, this "Agreement"), constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior oral or written agreements, commitments, or understandings with respect to the matters provided for herein. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and to their respective permitted assigns and successors.

8.1.2 It is the explicit intention of the parties hereto that no person or entity other than the parties hereto and their permitted assigns and successors is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties hereto, and that the covenants, unde1takings, and agreements set fotth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto and their permitted assigns and successors.

8.1.3 In the event of any conflict between the main body of this Agreement and a Work Order, the main body of this Agreement shall control and govern over any Work Order.

8.2 Amendment. No amendment, modification, waiver, or discharge of this Agreement (including without limitation any amendment, modification, waiver, or discharge under any Work Order), shall be valid or binding unless set fotth in a writing signed by both patties.

8.3 Waive,·. Neither the waiver by any of the patties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure of any of the patties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder.

8.4 Assignment and Subcontracting. Contractor acknowledges that Owner has entered into this Agreement based on the patticular qualities and abilities of Contractor. Contractor shall not assign this Installation Agreement, or any monies due or to become due hereunder, or subcontract any part of the Work, without the prior written consent of Owner. Any delegation of the Work through subcontracting shall not relieve Contractor of its responsibilities under this Installation Agreement nor result in extra cost or liability to Owner.

8.5 Equitable Relief. Each of the patties hereto acknowledges and agrees that irreparable loss and damage will be suffered (i) by the other party hereto if such party should breach or violate any of the covenants and agreements contained in Sections 2.6, 5, and 6 hereof, and the patties therefore IO
agree and consent that, in addition to any other remedies available to them, each party hereto shall be entitled to an injunction and other equitable relief to prevent a breach or contemplated breach by the other party hereto with respect to those provisions of this Agreement.

8.6 Force Majem·e. Each party is excused from performance of this Agreement and shall not be liable for any delay in whole or in part caused by the occurrence of any contingency beyond the reasonable control of such party. These contingencies include, without limitation, war, sabotage, insurrection, riot or other act of civil disobedience, act of public enemy, failure or delay in transportation, act of government or any agency or subdivision thereof affecting the terms of this Agreement or otherwise, judicial action, labor dispute, epidemics, pandemic-related disruptions (including but not limited to COVID-19-related governmental orders and/or actions, and COVID19-related supply chain delays), accident, fire, explosion, flood, severe weather or other act of God, sh011age of labor, or hardware failure. The parties acknowledge and agree that this Paragraph 8.6 shall apply regardless of any lack of physical damage and/or harm. Notwithstanding the foregoing, force majeure cannot be used to excuse or delay any payment obligation under this Agreement.

8. 7 Governing Law and Forum Selection. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of California (but not including the choice of law rules thereof) and any applicable federal laws of the USA. The patties hereto hereby irrevocably consent to the sole and exclusive jurisdiction and venue of any federal court in the State of California, USA.

8.8 Independent Contractors. The relationship between Contractor and Owner under this Agreement is that of independent contractors only. Nothing in this Agreement shall be construed so as to constitute Contractor and Owner as partners or joint venturers, or either party hereto as the employee or agent of the other party hereto, or in any other manner other than as independent contractors. Neither patty shall have any power or authority to bind the other patty in any transaction with a third party, and neither party shall hold itself out to third parties as having any such power or authority.

8.9 Non-exclusive. Reserved.

8.10 Personal Data and Information. Contractor agrees to abide by the Personal Data and lnfonnation Requirements as set forth in Exhibit B attached hereto.

8.11 Notices. Notices, other than routine communications having no legal effect, shall be in writing and shall be sent by certified United States mail (return receipt requested), by guaranteed overnight delivery, by courier, or by confirmed facsimile addressed to the addresses set forth below:

For Owner: City of Needles
817 3,a Street
Needles, CA 92363
Attn: Rainie Torrance
Facsimile No:

For Contractor: Wellington Energy, Inc.

I 77 Thorn Hill Road
WatTendale, PA 30022 15086
Attn: President, CEO
Facsimile No:
11 8.12 Severability. If any part of any provision of this Agreement or any other agreement, document or writing given pursuant to or in connection with this Agreement shall be invalid or unenforceable under applicable law, said part shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or the remaining provisions of said agreement.

8.13 Signatnres. This Agreement may be signed by the parties in counterparts, with a copy of a signature having the same force and effect as an original, and multiple counterparts, when taken together, shall form a binding contract between the patties. This Agreement may be signed electronically using a commercially reasonable electronic signature service that complies with applicable laws regarding electronic signatures.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on their behalf by their authorized representatives as of the Effective Date.

CITY OF NEEDLES
Signature: ___________ _
Name:

Title:

ATTEST:

Dale Jones, City Clerk
APPROVED AS TO FORM:

SBEMPLLP
John 0. Pinkney
City Attorney
WELLINGTON ENERGY, INC.

Signature: _____________ _
Name: ----------------
Title: ----------------
12 Exhibit A
Statement of Work for Installation
13 Exhibit B
DATA SECURITY; PERSONAL INFORMATION REQUIREMENTS

1.1. Personal Information. The Paities acknowledge that in performing its obligations hereunder, the Contractor may obtain or have access to, or otherwise store, process or transmit, certain personally identifiable infmmation of Owner, its employees, contractors, customers, suppliers, and/or other persons, which information may include without limitation name, address, email address, phone numbers, financial account information, employee ID number, interval consumption, register reads (monthly consumption), alarms, flags and events originating from meters, customer account number, other account information and/or account activity information, other information or data that can be used for identity theft (including that which is not personally identifiable) and other sensitive personally identifiable information regarding such persons (collectively, "Personal Information"). Notwithstanding anything to the contrary, all Personal Information is and shall remain the sole and exclusive property of Owner and shall be deemed Owner's Confidential Information regardless of whether it is marked as such. Additionally, any account passwords issued to Contractor or its agents for purposes of accessing Owner's systems shall be protected as Confidential Information for all purposes.

1.2. Applicable Privacy and Data Security Laws. For purposes of this Article 5, "Applicable Privacy and Data Security Laws" shall mean: (a) all privacy, security, data protection, direct marketing, consumer protection and workplace privacy laws, rules and regulations of any applicable jurisdiction (including, without limitation, the U.S. and each state of the U.S.).

1.3. Limited Use. Contractor agrees that (i) at all times during the Term and thereafter, it will comply with all Applicable Privacy and Data Security Laws in relation to Personal Information by complying with the security measures documented in a Cyber Security Plan (to the extent applicable, (ii) Personal Information will not be utilized by Contractor, its contractors or agents for any purpose other than for the purpose of rendering the applicable Work under the Agreement ( and not, for example and without limitation, to otherwise market to or contact such individuals) and shall be accessible by Contractor's personnel performing Work under this Work Order and other Contractor personnel on a need-to-know basis only, and (iii) Contractor shall treat all Personal Information as Confidential Information subject to Contractor's other obligations pursuant to the Agreement.

1.4. Security Measures. Contractor shall:

1. maintain reasonable, up to date, industry standard anti-virus software on Contractor's computers used in performance of the Services,
ii. change default security settings as specified by customer requirements or as stipulated by work order, change login passwords as specified by customer requirements or as stipulated by work order, and promptly install security updates and patches when same come reasonably available to Contractor
iii. prohibit Contractor Employees, from bringing, transporting or transmitting Personal Information to their homes, personal computers, e-mail accounts, devices or media, except to the extent that said Personal Information may reside on employee laptops or other computing devices such as but not limited to iPads and/or smartphones that said employees may bring home with them during non-working hours, In Commercial Confidence (Wellington Energy/
City of Needles)
14 1.5. Requests for Personal Information. If Contractor should receive any legal request or process in any form seeking disclosure of, or if Contractor should be advised by counsel of any obligation to disclose Personal Information, Contractor shall provide Owner with prompt written notice of such request or advice so that Owner may seek a protective order or pursue other appropriate remedies to protect the confidentiality of such information. Contractor agrees to furnish only that portion of the information which is legally required to be furnished (in Contractor's counsel's sole opinion) and, in consultation with Owner, to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished.

1.6. Notification of Security Breach and Incident Response. Without limitation of the foregoing, Contractor shall advise Owner promptly in the event that it learns that (i) there has been or is likely to have been unauthorized access to or misuse of, or any security breach relating to or affecting Personal Infotmation, or (ii) any Contractor Employee who has had access to Personal Information has misused such Personal Information, in each case, in a manner that would be a violation by Contractor of the terms of this Agreement, and Contractor shall, at its own expense (if such incident affected Personal Information that had been under the responsibility of Contractor or Contractor Employees) cooperate with Owner in Owner's efforts of: (i) investigating and responding to the foregoing, (ii) notifying customers or other affected individuals as required by law, and (iii) seeking injunctive or other equitable relief against any such person or persons who have violated or attempted to violate the security of Personal Information.

1.7. Disposal. As soon as reasonably possible after any Personal Information (or a pottion thereof) is no longer needed by Contractor to fulfill its obligations hereunder, and in any event upon termination of this Agreement, as applicable, for any reason: (a) such Personal Information in Contractor's possession or control shall be returned to Owner by Contractor, or at Owner's request destroyed (including without limitation, with respect to any hard copy, cross-shredded), (b) all electronic copies of the Personal Information in Contractor's possession or control shall be deleted in a manner that makes the Personal Information non-readable and non-retrievable, and (c) Contractor will cettify to Owner, in writing, that Contractor has complied with its obligations under this item 1.7. Upon disposal under any circumstances, unencrypted personal identifying information contained in print or electronic media is required to be shredded, destroyed, or modified so that it is unreadable.

1.8. Owner Laptop Return. Contractor shall return the Owner provided laptop(s), if any, to Owner within (ten) 10 business days within of Contractor Employee off-boarding.

In Commercial Confidence (Wellington Energy/
City of Needles)
15 Exhibit A: Statement of Work
Electric Endpoint Installation for the City of
Needles
Version: 1.0
Date: 10/27/2022
City of Needles Rev:1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 2 Table of Contents

1. Project Overview ................................................................................................................................... 4

1.1 Purpose ......................................................................................................................................... 4

1.2 Scope ............................................................................................................................................. 4

1.3 Key Assumptions ........................................................................................................................... 4

1.4 Critical Success Factors ................................................................................................................. 5

2. Project Requirements and Responsibilities .......................................................................................... 5

2.1 Overview ....................................................................................................................................... 5

2.2 Project and Safety Management .................................................................................................. 6

2.3 Tools/ Materials/ Uniforms/ Vehicles ........................................................................................ 6

2.4 Drug Screen and Background Check ............................................................................................. 6

2.5 Training ......................................................................................................................................... 7

2.6 Reporting ....................................................................................................................................... 7

2.7 Invoicing ........................................................................................................................................ 7

2.8 Installation Support Services ......................................................................................................... 8

2.9 Claims Management ..................................................................................................................... 8

3. Endpoint Exchange Requirements and Responsibilities ....................................................................... 9

3.1 Electric Endpoint Exchange Process .............................................................................................. 9

3.2 Quality Assurance ....................................................................................................................... 10

3.3 Work Order Management System (WOMS) ............................................................................... 10

3.4 Installation Attempts .................................................................................................................. 11

4. Scope and Change Management Process ........................................................................................... 11

5. Pricing .................................................................................................................................................. 12

5.1 Pricing Clarifications .................................................................................................................... 12 City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 3

1. Project Overview

1.1 Purpose
This Statement of Work (SOW) defines a business transaction between Wellington Energy, Inc. ("Installer," or "WEI") and City of Needles in which the former will provide installation services (the "Work") related to a specific City of Needles (or "Utility") service offering or a customized service.

This document establishes the Scope of the Work to be performed; defines the context of the work; describes specific tasks, activities, and deliverables; and identifies responsibilities for both parties.

This SOW is subject to any terms and conditions in the corresponding Installation Agreement ("Agreement") between Wellington Energy, Inc. and City of Needles and is made a part thereof. To the extent that there are any conflicts or inconsistencies between this SOW and the Agreement, the provisions of the Agreement shall govern and control unless alternate provisions are expressly provided herein. This SOW supersedes any prior City of Needles proposal, written or oral.

1.2 Scope
Installer shall exchange 2,950 electric meters within the scope of this effort.

The installation will take place over the course of about four months, beginning in or around November 9, 2022. Installer should provide for remote involvement in project planning processes prior to the beginning of deployment to align on exact start dates, exchange processes, project processes, and integration of its WOMS to the Utility CIS. The Utility has a completion date requirement of March 10, 2023, and Wellington Energy, Inc. should target completion in advance of this deadline.

These services shall be accomplished according to the specifications contained in the documents listed here in order of precedence in the event of inconsistent or contradictory terms, conditions, or provisions among them:
• This Statement of Work
Table 1. Metering Devices
The following table provides a breakdown of the electric endpoints to be exchanged:

MeterType . Quantity
Single Phase Residential Electric Meters 2,950
Total 2,950

1.3 Key Assumptions
The provisions of this Statement of Work are based on the following assumptions. If these assumptions are not valid, both the cost and schedule of this project may be impacted. • All meter route planning will be coordinated with Utility City of Needles Rev: 1
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 .

Page
4 • Utility will provide all keys and access codes at the beginning of the project • No electric endpoint exchanges will take place during the Utility billing window; assume billing window duration is 3 days
• All installation work will take place Monday through Friday 7 AM to 5PM unless agreed upon in advance with the Utility
• If Utility's safety processes are more stringent than Installer's, then Installer will adopt Utility's policies
• For electric meter exchanges, Wellington's pricing includes deployment of experienced electric meter exchange technicians organized in accordance with the revised 3/3/2004 IBEW Metering Agreement executed on January 26th, 2005. Associated labor wages and fringe benefits are based on the Sample Project Labor Agreement between Wellington Energy, Inc. and the International Brotherhood of Electrical Workers, AFL-CIO Local Union 47 for a previously bid SDG&E AMI Project in Spring 2021. Per this agreement, pricing has assumed the use of:
o Meter Service Technicians to exchange electric meters for single-phase, self-contained electrical services on or near 240 volts or less
o Journeymen Linemen or other qualified electrical workers (QEW) to exchange electric meters for poly-phase electric meters
• Installer will not warranty meters, other materials provided by City of Needles, or meter read transmission rates.
• Utility will perform proactive outreach to customers in advance of meter installation work.

Specifics will be further discussed by the City of Needles, and installer but may include mailers, email notifications, and/or outbound auto-dialer calls to customers. • Pricing assumes installations on tribal land will not require any additional coordination and/or resources in comparison to installation work on non-tribal land.

1.4 Critical Success Factors
Critical success factors for the Electric Endpoint Installation for the City of Needles are listed below to ensure expectations are managed properly between the Installer and City of Needles. • Development and active management of a mutually agreeable implementation schedule • Mutual adherence to the content and proactive management of any change regarding this statement of work.
• Deployment of metering endpoints in a contiguous manner

2. Project Requirements and Responsibilities

2.1 Overview
This section pertains to project responsibilities related to both the Electric Endpoint Exchange Scope.

City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 5

2.2 Project and Safety Management
• Company must have a California State Contractor's "A" or "C-10" License prior to initiating work.
• Installer shall provide a full-time supervisor to manage the project resources, interface with the Utility, and the Utility customers
• Installer shall have on-site, designated safety representative (who may also act as full-time site project manager) who has demonstrated experience managing safety on projects with similar scope, including: work site audits, safety meeting management, conducting incident investigations, managing drug and alcohol policy and testing. • Installer is responsible for incorporating estimated installation downtime (as commercially reasonable) due to inclement weather into its schedule and rates. • Due to short duration of the installation project, Installer and City of Needles agree that any work stoppages which may occur will be supported in good faith by both parties and continue to maintain completion targets as specified in this SOW. • Installer will submit a Safety Management Plan and Emergency Response Plan for approval by City of Needles.
• Installer will submit a Deployment Schedule for approval by City of Needles and the Utility. • Installer shall deploy an installer with sufficient experience to not only work independently, but also be able engage with the Utility, and report out on progress in a professional way

2.3 Tools/ Materials/ Uniforms/ Vehicles
• Installer shall provide all tools and equipment as required to support the electric endpoint exchange tasks except as noted below for meter rings, seals, locks and tension clips • Installer shall provide all required PPE for their employees, including but not limited to, gloves, hard hats, eyewear, fire-retardant clothing, dog sticks etc., and perform ongoing inspection and replacement as needed
• Installer will ensure each installer has a working cell phone, radio device or cellular enabled hand-held device for two-way communication with Installer and City of Needles personnel • Installer will provide company ID badge to installers with company and employee name • Installer will provide uniforms to installers that clearly identify the Installer company name • Installer will provide vehicles, leased or owned by the Installer, that are in good working order and appearance, and are clearly labeled with Installer company signage. • Utility will provide all meter rings, seals, locks and tension clips. • Installer will procure, manage inventory, and distribute post-installation door hangers.

2.4 Drug Screen and Background Check
• Installer must complete a criminal history background check at its expense on all employees before starting work. At a minimum, background checks must include:

City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 6 o Motor vehicle record (MVR) check
o Nationwide criminal background check
o Sexual offender background check
o 7-panel drug test
• No Installer employee, subcontractor or subcontractor employee who has a felony criminal history, is under indictment, has criminal charges pending, fails drug screening, or has a MVR that indicates unsafe driving habits shall be allowed to perform services related to this SOW or Agreement

2.5 Training
• Installer is responsible for completing all standard safety and installation training with its installers before beginning work
• Installer will submit a Training Plan for approval by City of Needles and the Utility.

2.6 Reporting
Installer will submit a monthly status report that includes:
• Deployment Progress against Targets
• Future Deployment Schedule
• Safety Incidents
• Customer Claims Review and Metrics
• Supplies Inventory Review
• Meter/Module Installs Remaining
• Installation Audits

2.7 Invoicing
Installer will provide evidence of work completed with each invoice submitted to City of Needles that may be used to verify work completion. Invoices shall be submitted only against specific line items in the City of Needles Purchase Order to the Installer and described using the exact language in the appropriate purchase order line item.

For Unit-Based Invoicing, the following items shall be provided as evidence of completion with each invoice:
• Dates installed
• Quantity of Endpoints Deployed, by type
• Installation Rate, by type
• Total quantity and cost for period
• Evidence of installation (WOMS data preferred)
City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 7 -
• Evidence of completed photo audits
For Time and Materials-based invoicing the following items shall be provided as evidence of completion with each invoice:
• Validation that pre-approval took place for Time and Materials work; All Time and Materials work must be pre-approved by City of Needles
• Timesheet information, by employee
• Time-based Pay Rate, by employee
• Description of work completed
• Total quantity and cost for period
• Evidence of work completed (WOMS data preferred)
Installer will provide weekly invoices for services performed the previous week.

City of Needles will pay invoices within 30 days of receipt from Installer.

2.8 Installation Support Services
• Utility will provide all warehousing facilities and conduct all cross-dock/ inventory management activities
• Utility will provide all call center infrastructure and conduct all call center activities including but not limited to setting appointments, and receiving/ processing customer claims • Utility will provide a dumpster for collection of old meters and manage disposal of collected meters; Installer will dispose of old meters in Utility-provided dumpster at Utility's discretion.
• Installer will dispose of small construction waste collected from the electric meter exchanges in Utility-provided dumpsters.

2.9 Claims Management
• Installer and the Utility agree to act in good faith to define responsibility and compensation for customer claims or lost/ damaged meters in its possession • Installer is expected to pay compensation for valid customer claims that result from a meter installation were the installer did not follow the work practices defined by the Electric Meter Installation Procedure attached to this SOW. For the avoidance of doubt, captured pictures shall provide rebuttable evidence of the found and left condition. • Utility will receive customer claims and conduct an initial investigation to assess validity of such claims; each month the Utility and Installer will meet to discuss claims and arrive at a consensus on responsibility for resolution
City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 8

3. Endpoint Exchange Requirements and Responsibilities

3.1 Electric Endpoint Exchange Process
• Installer will submit an Electric Meter Installation Procedure for approval by City of Needles in advance of commencing the installation work
• Utility will filter all violence code customers from installation list • Utility will provide meter premise location data for installations, including GPS coordinates • Utility will provide a list of non-reading meters to Installer as part of sweep activities, and flag for repair
• Installer will follow Meter Exchange Requirements defined in the Electric Meter Installation Procedure - The requirements will include:
o Attempt to notify the owner of the installation upon arrival on property o Conduct a visual inspection that inspects for evidence of tampering, or unsafe condition. When encountered, the Installer will follow the steps defined the Electric Meter Exchange Requirements.
o Record old meter data in WOMS (i.e., old meter number, kWh reading) o Take picture of old meter while still in service, close-up, with meter reading and old serial number clearly visible
o Verify meter serial numbers and forms to ensure installer is exchanging like for like meters
o Visually inspect the meter base and socket, wiring, and wiring to the meter, including testing meter jaw tension, and for evidence of tampering or unsafe conditions. When evidence of tampering or unsafe conditions are encountered, the Installer will follow the steps defined the Meter Exchange Requirements. o Install new meter, confirm the meter is properly installed, energized, functioning, before leaving the site; installer is responsible for expenses related to remedying meters that were incorrectly installed in accordance with the Electric Meter Installation Procedure.
o Sites that have obvious situations that will prohibit installs such as: owner refusal or hazardous situation: will not be revisited unless the situation is addressed. o Take picture of newly installed meter, close-up, with meter reading and serial number clearly visible
o Place door hanger on customer door as notification that the meter has been replaced
o Return all removed meters to Installer's space located at the Utility provided warehouse for the Utility to dispose of at Utility discretion.

City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 9

3.2 Quality Assurance
• Conduct QA of installed modules in accordance with specified audit schedule below and provide audit results to City of Needles on a weekly basis:
o New hire (first 80 hours of an employee's work) audits include:
• For all completed installations:
• 100% picture review of the found and left installation images for proper installation
• 20% field audit of completed installations
o Ongoing audits include:
• For all completed installations:
• 20% picture review of the found and left installation images for proper installation
• 1% field audit
o As needed, individual field technician remedial audits (in addition to ongoing audit percentages) include:
• For all completed installations:
• 100% picture review of the found and left installation images for proper installation
• 5% field audit of completed installations
• Investigate and address work order exceptions
• Implement action plans to resolve and prevent recurrence of non-conforming work • Warrant and resolve all non-conforming services as described in the Agreement. The pictures obligated by this SOW shall create a rebuttable presumption that Supplier has satisfied all requirements described in this SOW.
• Installer will submit a Quality Management Plan for approval by City of Needles.

3.3 Work Order Management System (WOMS)
• Installer will provide its WOMS {Work Order Management System) to manage installations and collect installation data. Installation data should include at a minimum:
o Old Meter Number
o Old Meter KWH Reading
o New Meter Number
o New KWH Reading
o Read Date
o GPS Location
• Installer will lead efforts with the Utility to implement file-based integrations required to upload required data to complete installation from the Utility's systems and download installation data after exchange to the Utility's systems.

City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 10 • All data is exchanged using a secure FTP site
• Installer will equip all installers with a cellular-enabled hand-held device(s) that will:
o Capture all data needed for billing the against the removed meter and identifying the new meter as well as all data identified
o Allow record keeping of all safety and installation audits, associated to individual installers and specific service locations
• Installer will provide a download of each day's installations within one full business day of exchange
• Installer will provide read-only access of WOMS to up to five (5) City of Needles employees to view photos, perform data validation, and track progress

3.4 Installation Attempts
• Installer technician will be expected to make a reasonable attempt to access each endpoint; some endpoints may be considered unable to be completed (UTC) and returned to the Utility (RTU) for installation
o For purposes of customer appointments for installation and access to premises, Installer shall complete up to two attempts to install each assigned meter as follows:

Installer shall make one in-person attempt to each assigned meter location o If the in-person attempt is unsuccessful, the second attempt will be arranged via an appointment. The installer shall notify the Utility who will make an appointment and confirm the appointment with the Installer. Appointments will be during normal business hours only.
o If Utility is unable to arrange an appointment within two calendar weeks from the date it is notified by the Installer about the need for an appointment, or if customer is not present at the time of a scheduled appointment, the meter will be considered UTC and returned to the utility (RTU) for installation
o Unsuccessful appointment attempts (ex. customer refusal or customer locked gate, etc. during a scheduled appointment) will be charged at a T&M rate, including drive time

4. Scope and Change Management Process
The Installer is expected to conduct work according to the scope and requirements of this document, and invoice according to agreed-upon pricing. Specifically, any of the changes described below must be agreed-upon in advance by both City of Needles and the Installer prior to becoming active in this project.
• Scheduling Changes: changes which will alter the approved project schedule. • Financial Changes: changes which will alter agreed-upon pricing. • Scope Changes: additions, or reductions in work scope, changes in work requirements City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 11 As changes are agreed upon, City of Needles will update contract documents as necessary and seek formal written agreement from the Installer.

5. Pricing
li°r.T::Irn.llllTJ • .,. - -Ir:'. ■ __;_ • - 1,. tt Fil l'l'iTil l!mi!l'oT'l ~ ... - ....-1111.:.1
$/unit
(Amount due
for each
Type of Exchange Quantity* endpoint
completed up
to the listed
quantity)
Single Phase Residential
Electric Meter
2951 $88.94
*Estimated quantities
fi ti~thl-i~- -:;.\..~ &T".i-F'ii-~
Type of Work
Electric meter seal
Electric meter ring
Electric meter blank {clear plastic)
Door Hanger
1:r, 111[.~'ll:t:1 (:+."'ft(tu · I , ..... mu, .1,:,i:- 1 -i~l"--•r: ·: •"To,I Type of Technician
Meter Service Technician {240 volts or less)

5.1 Pricing Clarifications
General Clarifications
$/unit
(charge for each
endpoint Extended$ completed that are
in addition to the
listed quantity)
$56.26 $262,462.70
$/unit Notes
Costs+ 5% Material cost
Costs+ 5% Material cost
Costs+ 5% Material cost
$0.85 Material cost
$/hour Notes
$ 168.84 Hourly rate for 2022
• For electric meter exchanges, gas module retrofits, and gas meter exchanges, Wellington's proposal includes deployment of experienced electric meter exchange technicians organized in accordance with the revised 3/3/2004 IBEW Metering Agreement executed on January 26th, 2005. This project is subject to California prevailing wage laws. Associated labor wages and fringe benefits are based on the Sample Project Labor Agreement between Wellington Energy, Inc. and the International Brotherhood of Electrical Workers, AFL-CIO City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 12 Local Union 47 for a previously bid SDG&E AMI Project in Spring 2021. Per this agreement, pricing has assumed the use of:
o Meter Service Technicians to exchange electric meters for single-phase, selfcontained electrical services on or near 240 volts or less o Journeymen Linemen or other qualified electrical workers (QEW) to exchange electric meters for poly-phase electric meters
• Pricing excludes any impacts from the Affordable Care Act (i.e., Cadillac tax). • Pricing only includes existing Federal and State taxes as applicable as of the date of this RFP response.
• Pricing includes wireless broadband connectivity to WE l's field devices. • Schedule and pricing assume accounts that require more than one visit to access and complete the electric meter exchange amount to less than 10% of the accounts. • Schedule and pricing assume accounts that require an appointment to complete the electric meter exchange amount to less than 2% of the accounts.
• Schedule assumes no more than 0.5% of the accounts are returned to the utility incomplete. • Pricing assumes a mutually agreeable schedule by read office/city is established, as continuity of the workforce and proximity of operating areas to various warehouse depots are important pricing metrics.
• Pricing assumes that all inventory is available for installation in route sequence without skipping accounts due to reasons beyond WEl's control.
• Associated hourly rates will be invoiced for cases where WEI field technicians standby for electric found unsafe or hazardous conditions, lights out repair conditions, or other Utility required found conditions.
• All pricing assumes the electric meter services are located on the exterior of the customer's premise.
• Pricing does not include the disposal of hazardous materials as related to meter or module exchange services.
• Pricing and the deployment plan assume the existing billing cycles are designed to evenly balance the labor hours to read the meters across each calendar month. • Pricing and daily meter installation efficiencies assume the utility meter reader routes are designed so that a meter reader can visit and read 110 or more metered services in an eighthour work day. • Pricing assumes City of Needles and utility information referenced in the RFP is provided in a timely manner to avoid work stoppage.

Safety and Quality Control Clarifications
• Pricing assumes NFPA 70E Safety standards for WEI PPE requirements. In summary, WEI requires base 8 PPE for single-phase and poly-phase services that are 240 volts or less to ground. Base 12 PPE is required for single-phase or poly-phase services that are greater than 240 volts to ground.
• WEI systems, safety procedures, and PPE requirements are designed to be adaptive in the event that the City Of Needles requires additional safety protection based on corporate -- --
City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 13 safety policies or analysis (e.g., arc fault study). Pricing assumes some costs for the use of additional PPE for a small percentage (1% or less) of the services (e.g., blast suit).

Electric Meter Exchange Clarifications
• Pricing assumes all electric meter exchangers are single phase self-contained meters that are 240 volts or less to ground.
• Pricing includes capturing one (1) dial read per electric meter exchange. • Pricing assumes any required bypass jumpers, seals, rings, keys, etc. are furnished by others. • Pricing excludes turning off a customer's main breaker. • Pricing includes line side voltage checks and for back feed on booted or potentially booted meters.
• For single-phase, self-contained meters that are 240 volts or less to ground and are a class 320 service, WEl's pricing includes using existing meter socket bypass provisions or line side disconnect. If bypass provisions or a line side disconnect are not available or functioning, the account will be returned to the utility.
• For single-phase or poly-phase self-contained meters that are greater than 240 volts to ground, WEl's pricing includes using existing meters socket bypass, isolation, or line side disconnect provisions. If bypass provisions, isolation, or a line side disconnect are not available or not functioning, the account will be returned to the utility. • Pricing assumes new and old electric meters/modules do not require field probing, programming, or commissioning.
• Verification that the new meter is operating properly will be confirmed by visually verifying a zero read and meter voltage, if available, on the meter's display. • Pricing assumes new meters will display pertinent incorrect voltage error messages to determine correct meter socket and meter combination within 10 seconds of the meter installation.
• Pricing assumes no more than two (2) pictures captured as part of a meter exchange with no found exceptions or hazards.
• Unit pricing includes the removal of the standard locking ring with a padlock style seal. Unit pricing does not include the removal and installation of a barrel locking ring or barrel lock.

Inventory Management, Meter Disposal, and Customer Notification Clarifications • Pricing assumes inventory receipt, management, warehousing facilities are provided by others.
• Pricing assumes WEI will package removed meters using the used new meter boxes and pallets. With the exception of writing the removal date of the meters packaged on a pallet, no catalogued storage or sorting of meters is included in pricing. • Pricing assumes all disposal of removed meters, small construction waste, and spoils are completed by others.
• Pricing assumes any hazardous waste disposal is completed by others. Hazardous waste handling procedures are excluded.

City of Needles Rev: 1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 14 • The Door Hanger Media Unit Pricing assumes purchasing door hangers in 1,000 count blocks and a minimum of 5,000 units printed on 4.25" x 11", 7 pt., glossy stock door hanger, 4/0 full color front printing with a blank back.

Proposed Installation Schedule
N N
r;i N
,J > u 0
0 2
Cumulative 1371 2951
Monthly Totals 1371 1580
Elec. Single Phase 1371 1580
City of Needles Rev:1 Page
Wellington Energy, Inc. Confidential Proprietary Date: 10/27 /22 15