Common use of Maintenance Yard Clause in Contracts

Maintenance Yard. ACTA intends to provide to Contractor during the term of this Agreement one storage yard located in the southerly portion of the Rail Corridor in the location shown on Page 4 of the Map attached hereto as Exhibit 1 (to the extent actually provided by ACTA, the “Maintenance Yard”); such Maintenance Yard shall be used and operated by Contractor solely for purposes relating to this Agreement and the Rail Corridor, and Contractor shall not use the Maintenance Yard for the purpose of providing services or storage with respect to other customers or properties or for the other business interests of Contractor or its affiliates. With respect to the Maintenance Yard, the parties acknowledge that (a) the area shown on the Map consists of significantly more land than the area which will be made available to Contractor for such Maintenance Yard, and (b) such Maintenance Yard may consist of approximately four acres of land, the specific boundaries of which will be agreed upon by ACTA and Contractor, and an office building, parking lot, and indoor and outdoor storage areas. If ACTA elects to make the Maintenance Yard available to Contractor, ACTA will do so solely as an accommodation to Contractor in connection with this Agreement, and ACTA at all times reserves the right to modify, decrease or change the boundaries of such space or to move the location of the Maintenance Yard at its sole discretion. ACTA may decide not to make the Maintenance Yard available to Contractor for any reason. None of ACTA, POLA, POLB, BNSF or UP make any representation or warranty of any kind regarding the condition of the Maintenance Yard or the adequacy of the Maintenance Yard (or any property hereinafter designated as a Maintenance Yard) for Contractor’s purposes, and Contractor shall accept the Maintenance Yard in its “AS-IS, WHERE IS” condition, with all faults. Contractor shall be solely responsible for (i) providing any yards and facilities that Contractor may need in addition to the Maintenance Yard in connection with performing the Services, (ii) all maintenance, repair and replacement of the Maintenance Yard and all improvements and facilities thereon, (iii) payment of all utility costs and other costs and expenses relating to the use, operation, maintenance, repair and replacement of the Maintenance Yard and all improvements and facilities thereon; provided that, ACTA and Contractor shall each share on an equal basis the cost of providing security for the Maintenance Yard and the cost for janitorial services in connection with the cleaning of the office building located at the Maintenance Yard; provided further, that none of ACTA, POLA or POLB intend or are required to provide any such security services or janitorial services (all costs and expenses in this clause (iii) shall be included in the budgets for an Approved Maintenance Plan pursuant to the procedures set forth in Section 5.2 and reimbursed by ACTA in connection therewith, except to the extent such costs or expenses relate to or arise from damage, destruction, acts or omissions caused by Contractor or its employees, agents or Subcontractors), (iv) keeping the Maintenance Yard and all improvements and facilities thereon free of all contamination by Hazardous Substances as described in Section 16.2, (v) compliance with all applicable laws, rules, regulations and ordinances relating to the use, operation, maintenance and repair of the Maintenance Yard and all improvements and facilities thereon, and (vi) returning the Maintenance Yard to ACTA at the expiration or earlier termination of this Agreement in the same condition as existed on the date of this Agreement, reasonable wear and tear excepted, which obligation shall include turning over to ACTA any improvements or facilities constructed by Contractor during the term of this Agreement, or any improvements to any existing improvements or facilities, at no additional charge or cost to ACTA (the obligation in this clause (vi) shall survive the expiration or earlier termination of this Agreement). 11.7.1 If ACTA elects to make the Maintenance Yard available to Contractor, ACTA will have the right to subsequently terminate Contractor’s use of the Maintenance Yard by giving at least 120 days prior written notice of such termination to Contractor, which termination shall not limit Contractor’s duties and obligations under this Agreement; provided, that concurrently with such termination, ACTA, POLA and/or POLB shall provide Contractor with one or more replacement yards in the vicinity of the Rail Corridor which are functionally equivalent to the Maintenance Yard being taken out of service, which replacement yard(s) will be provided at no charge to Contractor and thereafter will be deemed to be a “Maintenance Yard” under this Agreement, and Contractor will be responsible for moving any equipment or materials to the new Maintenance Yard; provided that ACTA shall reimburse Contractor for all of Contractor’s reasonable costs, including labor costs, associated with moving any equipment or materials to the new Maintenance Yard.

Maintenance Yard. ACTA intends to may (but shall not be obligated to) provide to Contractor during the term of this Agreement one storage yard located in the southerly portion of the Rail Corridor in the location shown on Page 4 of the Map attached hereto as Exhibit 1 A (to the extent actually provided by ACTA, the “Maintenance Yard”); such Maintenance Yard shall be used and operated by Contractor solely for purposes relating to this Agreement and the Rail Corridor, and Contractor shall not use the Maintenance Yard for the purpose of providing services or storage with respect to other customers or properties or for the other business interests of Contractor or its affiliates. With respect to the Maintenance Yard, the parties acknowledge that (a) the area shown on the Map consists of significantly more land than the area which will be made available to Contractor for such Maintenance Yard, and (b) such Maintenance Yard may consist of approximately four acres of land, the specific boundaries of which will be agreed upon by ACTA and Contractor, and an office building, parking lot, and indoor and outdoor storage areas. If ACTA elects to make the Maintenance Yard available to Contractor, ACTA will do so solely as an accommodation to Contractor in connection with this Agreement, and ACTA at all times reserves the right to modify, decrease or change the boundaries of such space or to move the location of the Maintenance Yard at its sole discretion. ACTA may decide not to make the Maintenance Yard available to Contractor for any reason. None of ACTA, POLA, POLB, BNSF or UP make any representation or warranty of any kind regarding the condition of the Maintenance Yard or the adequacy of the Maintenance Yard (or any property hereinafter designated as a Maintenance Yard) for Contractor’s purposes, and Contractor shall accept the Maintenance Yard in its “AS-IS, WHERE IS” condition, with all faults. Contractor shall be solely responsible for for (i) providing any yards and facilities that Contractor may need in addition to the Maintenance Yard in connection with performing the Services, (ii) all maintenance, repair and replacement of the Maintenance Yard and all improvements and facilities thereon, (iii) payment of all utility costs and other costs and expenses relating to the use, operation, maintenance, repair and replacement of the Maintenance Yard and all improvements and facilities thereon; provided that, ACTA and Contractor shall each share on an equal basis the cost of providing security for the Maintenance Yard and the cost for janitorial services in connection with the cleaning of the office building located at the Maintenance Yard; provided further, that none of ACTA, POLA or POLB intend or are required to provide any such security services or janitorial services (all costs and expenses in this clause (iii) shall be included in the budgets for an Approved Maintenance Plan pursuant to the procedures set forth in Section 5.2 and reimbursed by ACTA in connection therewith, except to the extent such costs or expenses relate to or arise from damage, destruction, acts or omissions caused by Contractor or its employees, agents or Subcontractors), (iv) keeping the Maintenance Yard and all improvements and facilities thereon free of all contamination by Hazardous Substances as described in Section 16.2, (v) compliance with all applicable laws, rules, regulations and ordinances relating to the use, operation, maintenance and repair of the Maintenance Yard and all improvements and facilities thereon, and (vi) returning the Maintenance Yard to ACTA at the expiration or earlier termination of this Agreement in the same condition as existed on the date of this Agreement, reasonable wear and tear excepted, which obligation shall include turning over to ACTA any improvements or facilities constructed by Contractor during the term of this Agreement, or any improvements to any existing improvements or facilities, at no additional charge or cost to ACTA (the obligation in this clause (vi) shall survive the expiration or earlier termination of this Agreement). 11.7.1 If ACTA elects to make the Maintenance Yard available to Contractor, ACTA will have the right to subsequently terminate Contractor’s use of the Maintenance Yard by giving at least 120 days prior written notice of such termination to Contractor, which termination shall not limit Contractor’s duties and obligations under this Agreement; provided, that concurrently with such termination, ACTA, POLA and/or POLB shall may provide Contractor with one or more replacement yards in the vicinity of the Rail Corridor which are functionally equivalent to the Maintenance Yard being taken out of service, which replacement yard(s) will be provided at no charge to Contractor and thereafter will be deemed to be a “Maintenance Yard” under this Agreement, and Contractor will be responsible for moving any equipment or materials to the new Maintenance Yard; provided that ACTA shall reimburse Contractor for all of Contractor’s reasonable costs, including labor costs, associated with moving any equipment or materials to the new Maintenance Yard.. ARTICLE 12 PROHIBITION AGAINST LIENS; PAYMENT OF TAXES AND ASSESSMENTS

Maintenance Yard. ACTA intends to may (but shall not be obligated to) provide to Contractor during the term of this Agreement one storage yard located in the southerly portion of the Rail Corridor in the location shown on Page 4 of the Map attached hereto as Exhibit 1 (to the extent actually provided by ACTA, the “Maintenance Yard”); such Maintenance Yard shall be used and operated by Contractor solely for purposes relating to this Agreement and the Rail Corridor, and Contractor shall not use the Maintenance Yard for the purpose of providing services or storage with respect to other customers or properties or for the other business interests of Contractor or its affiliates. With respect to the Maintenance Yard, the parties acknowledge that (a) the area shown on the Map consists of significantly more land than the area which will be made available to Contractor for such Maintenance Yard, and (b) such Maintenance Yard may consist of approximately four acres of land, the specific boundaries of which will be agreed upon by ACTA and Contractor, and an office building, parking lot, and indoor and outdoor storage areas. If ACTA elects to make the Maintenance Yard available to Contractor, ACTA will do so solely as an accommodation to Contractor in connection with this Agreement, and ACTA at all times reserves the right to modify, decrease or change the boundaries of such space or to move the location of the Maintenance Yard at its sole discretion. ACTA may decide not to make the Maintenance Yard available to Contractor for any reason. None of ACTA, POLA, POLB, BNSF or UP make any representation or warranty of any kind regarding the condition of the Maintenance Yard or the adequacy of the Maintenance Yard (or any property hereinafter designated as a Maintenance Yard) for Contractor’s purposes, and Contractor shall accept the Maintenance Yard in its “AS-IS, WHERE IS” condition, with all faults. Contractor shall be solely responsible for for (i) providing any yards and facilities that Contractor may need in addition to the Maintenance Yard in connection with performing the Services, (ii) all maintenance, repair and replacement of the Maintenance Yard and all improvements and facilities thereon, (iii) payment of all utility costs and other costs and expenses relating to the use, operation, maintenance, repair and replacement of the Maintenance Yard and all improvements and facilities thereon; provided that, ACTA and Contractor shall each share on an equal basis the cost of providing security for the Maintenance Yard and the cost for janitorial services in connection with the cleaning of the office building located at the Maintenance Yard; provided further, that none of ACTA, POLA or POLB intend or are required to provide any such security services or janitorial services (all costs and expenses in this clause (iii) shall be included in the budgets for an Approved Maintenance Plan pursuant to the procedures set forth in Section 5.2 and reimbursed by ACTA in connection therewith, except to the extent such costs or expenses relate to or arise from damage, destruction, acts or omissions caused by Contractor or its employees, agents or Subcontractors), (iv) keeping the Maintenance Yard and all improvements and facilities thereon free of all contamination by Hazardous Substances as described in Section 16.2, (v) compliance with all applicable laws, rules, regulations and ordinances relating to the use, operation, maintenance and repair of the Maintenance Yard and all improvements and facilities thereon, and (vi) returning the Maintenance Yard to ACTA at the expiration or earlier termination of this Agreement in the same condition as existed on the date of this Agreement, reasonable wear and tear excepted, which obligation shall include turning over to ACTA any improvements or facilities constructed by Contractor during the term of this Agreement, or any improvements to any existing improvements or facilities, at no additional charge or cost to ACTA (the obligation in this clause (vi) shall survive the expiration or earlier termination of this Agreement). 11.7.1 If ACTA elects to make the Maintenance Yard available to Contractor, ACTA will have the right to subsequently terminate Contractor’s use of the Maintenance Yard by giving at least 120 days prior written notice of such termination to Contractor, which termination shall not limit Contractor’s duties and obligations under this Agreement; provided, that concurrently with such termination, ACTA, POLA and/or POLB shall may provide Contractor with one or more replacement yards in the vicinity of the Rail Corridor which are functionally equivalent to the Maintenance Yard being taken out of service, which replacement yard(s) will be provided at no charge to Contractor and thereafter will be deemed to be a “Maintenance Yard” under this Agreement, and Contractor will be responsible for moving any equipment or materials to the new Maintenance Yard; provided that ACTA shall reimburse Contractor for all of Contractor’s reasonable costs, including labor costs, associated with moving any equipment or materials to the new Maintenance Yard.