HomeMy WebLinkAbout18-Development Services
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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Subject: Resolution approving License Agreement
No. 09-37471 with the Burlington Northern Santa Fe
(BNSF) Railway for maintenance of temporary
shoring under the Mt. Vernon Viaduct between 2nd
Street and 4th Street (BR#54C0066).
Dept: Development Services
Date: February 26, 2009
File: SS04-12
MCC Date: April 6, 2009
Synopsis of Previous Council Action:
06/07/04 Resolution No. 2004-154 adopted awarding contract to Yeager Skanska, Inc. for
installation of temporary support for the Mt. Vernon Bridge over the BNSF RR.
10/06/08 Resolution No. 2008-382 adopted awarding contract to Skanska USA Civil for
installation of additional temporary support for the Mt. Vernon Bridge over the
BNSF Railroad (BR#54C0066).
Recommended Motion:
Adopt Resolution.
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Valerie C. Ross
Contact Person: Robert Eisenbeisz, City Engineer
Phone: 5203
Supporting data attached: Staff Report,
License
Reso,
Ward(s): 1,3
FUNDING REQUIREMENTS:
Amount: None
Source: (Acct. No.) None
Acct. Description: None
Finance:
Council Notes:
Agenda Item No. I {,
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CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION
STAFF REPORT
Subiect:
Resolution approving License Agreement No, 09-37471 with the Burlington Northern Santa Fe
(BNSF) Railway for maintenance of temporary shoring under the Mt. Vernon Viaduct between
2nd Street and 4th Street (BR#54C0066).
Back2round:
On June 3, 2004, Caltrans issued a report, which resulted from an in-depth "fracture critical"
steel inspection on the Mount Vernon Bridge. During the inspection, Caltrans Inspectors
determined that various steel members were cracked. These cracks occurred at one span,
towards the north end of the bridge in the southbound lanes and toward the south of the bridge in
the northbound lanes.
Caltrans recommended immediate closure of the entire bridge. The City concurred and
completed the closure on June 4, 2004. During the closure, shoring was installed under terms of
an emergency contract with Yeager Skanska (now called Skanska USA Civil),
On September 21, 2004, the Mayor executed a License Agreement with the BNSF railroad for
maintenance of the shoring. Installation of the shoring was completed on October 4, 2004 and
the bridge was reopened to traffic, except that large trucks were prohibited from using the bridge.
Under terms of the License Agreement, the City has performed annual inspection and
maintenance of the shoring,
On May 16, 2008, the City was notified of a follow up inspection by Caltrans inspectors that
revealed cracks previously not found in two additional girders. The cracks were found in span 6
adjacent to bent 7 near the south end of the bridge. Staff immediately engaged Morris
Engineering, Inc, to prepare design plans for shoring the location of the newly discovered cracks. '
A contract was awarded to Skanska on October 6, 2008 to install additional shoring to support
the bridge at the location of the newly discovered cracks, That work was completed in
November of 2008.
In late 2008, it was noted that the License Agreement requires that the City engage a contractor
to construct the permanent replacement bridge within 30 months of the execution of the License.
BNSF has indicated a willingness to execute a new License Agreement (See attached Exhibit
"A") with the City to allow the shoring to remain until December 31, 20 II.
Based on the current schedule, construction of the Mt. Vernon Bridge will begin in October of
2010 and be completed by October of2012.
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CITY OF SAN BERN~INO REQUEST FOR COUNCIL ACTION
STAFF REPORT (Continued)
Financial ImDact:
BNSF has agreed to waive all fees associated with this License Agreement. Therefore, there will
be no financial impact.
Funding is available in Account No. 129-367-5504-7121 to cover the cost of annual inspection
and maintenance of the shoring.
Recommendation:
Adopt Resolution.
Attachments:
Resolution
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RESOLUTION NO.
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RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING LICENSE
2 AGREEMENT NO. 09-37471 WITH THE BURLINGTON NORTHERN SANTA FE
(BNSF) RAILWAY FOR MAINTENANCE OF TEMPORARY SHORING UNDER THE
3 MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH STREET (BRI#54C0066).
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WHEREAS, on September 21, 2004, the Mayor executed a License Agreement with
BNSF for the maintenance of temporary shoring under the Mt. Vernon Viaduct between 2nd
Street and 4th Street (Br #54C0066), and
WHEREAS, said License Agreement had a 30-month term after execution, subsequent
WHEREAS, the City is approximately 2-1/2 years away from completing environmental
clearance, final design and right-of-way acquisition for removal of the shoring and construction
of a replacement bridge; and
WHEREAS, BNSF is agreeable to a new License Agreement to allow the shoring to
remain until December 31, 201 1, subject to adequate inspection and maintenance by the City.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager is hereby authorized and directed to execute the attached
License Agreement on behalf of the City marked as Exhibit "A" and made a part hereof.
SECTION 2. Said License Agreement shall expire on December 31, 20 II, unless earlier
terminated as provided therein.
SECTION 4. The authorization to execute the above referenced Agreement is rescinded
if it is not executed within ninety (90) days of the passage of this resolution.
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RESOLUTION. . . APPROVING LICENSE AGREEMENT NO. 09-37471 WITH
1 THE BURLINGTON NORTHERN SANTA FE (BNSF) RAIL WAY FOR
2 MAINTENANCE OF TEMPORARY SHORING UNDER THE MT. VERNON VIADUCT
BETWEEN 2ND STREET AND 4TH STREET (BR#54C0066).
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1 HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof, held
day of
,2009, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
BAXTER
BRINKER
SHORETT
KELLEY
JOHNSON
MC CAMMACK
Rachel Clark, City Clerk
The foregoing resolution is hereby approved this day of ,2009.
Patrick J. Morris, Mayor
City of San Bernardino
22 Approved as to form:
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25 By:
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JAMES F. PENMAN,
City Attomey
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EXHIBIT" A"
L_1lepmlment AppnlVed
09-37471
LICENSE
THIS LICENSE ("License"), made as of the _ day of , 2009 rEffective
Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and
CITY OF SAN BERNARDINO, a city municipality ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
1, Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, 11I'/ relies, Hcenses,
easements, Hens or other encumbrances, and upon the terms and concIIUon8 set forth
below, to use the area of Licensor's property shown on the attached Drawing no. 1.
45557, dated January 15, 2009, and revised on February 8, 2009 attached hereto,
marked Exhibit "A", and made a part hereof, situated at or near San Bernardino, County
of San Bernardino, State of California, Line Segment 7800, MHe Post 78.53 ("Premises")
for the purposes specified in Section 3 below.
2. Licensee shall not disturb any improvements of Licensor or Licensor's existing iessees,
licensees, ellement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
3.
Licensee shall use Premises exclUSively for maintaining the City and its contractors to
install and maintain the temporary shoring and support structures on the BNSF property
for the Mt. Vernon Bridge. Ucensee shall not use the Premises for any other purpose
whatsoever. Licensee shall not use or store hazardous substances, as defined by the
Comprehenslve Environmental Response, Compensation, and LIability Act, as amended
("CERCLA") or petroleum or oil as defined by applicable Environmental Laws on the
Premises.
4. . In case of the eviction of Licensee by anyone owning. or claiming IiUe to or any Interest
in the Premises, Licensor shall not be liable to. refund Licensee any compensation paid
hereunder or for any damage Licensee sustains in connection therewith. '
5. Any contractors or subcontractors performing work on the Premises, or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Ucensee for
purposes of this License.
TERM
6. This License shall commence on the Effective Date and shall continue until December
31, 2011, subject to prior termination as hereinafter described.
COMPENSATION
7.
(a)
licensor wiil waive the fees for this license.
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Form 423; Rev. 04126105
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Law ~nt Approved
09-37471
(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefor) for an coats and expenses Incurred by Licensor in connection with
Licensee's use of the Premises, includInQ but not RmIt8d to the furnishing of
Licensor's Flagman and any vehicle rental costs incurred. The cost of f1egger
services provided by the Railway, when deemed nec:euary by the Railway's
representative, wiD be borne by the Licensee. The esIImatad COlt for one (1)
f1agger Is $800.00 for an eight (8) hour basic day with time and one-half or
double time for overtime, rest days and holidays. The esIlmated cost for each
f1agger Includes vacation allowance, paid holidays, Ralway anct lnlmp/oyment
insurance, public liabHlly and property damage insurance, health and welfare
benefits, transportation, meals, lodging and sUpeMslon. NegoIi8tJons for
Railway labor or collective bargaining agreements and rate changes authorized
by appropriate Federal authorities may Increase ectual or estimated flagging
rates. The flagging rate In effect at the time of performance by the Contractor
hereunder win be used to calculate the actual costs of flagging ptA'8Uant to this
paragraph.
(c) All invoices are due thirty (30) days after the date of invoice. In the event that
Licensee shall fall to pay any monies due to Licensor within thirty (30) days after
the invoice date, then Licensee shaH pay Interest on such lIJ1paid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual
rate equal to (i) the greater of (a) for the period January 1 through June 30, the
prime rate last published In The wan StIHt Journal In the preceding December
plus two and one-half percent (2 112%), and for the period July 1 through
December 31, the prime rate last published In The Wall Street Journal in the
preceding June plus two and one-half percent (2 112%), or (b) tWetve percent
(12%), or (N) the maximum rate permlUed by law, whichever is less.
COMPLIANCE WITH LAWS
8. (a) Licensee shall observe and comPlY with any and aU Jaws, statutes, regulations,
ordinances, orders, covenants, restrictions, or decisions of any court of
competent jurisdiction ("Legal Requirements") relating to the use of the
Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with an Licensor's applicable safety rules and ~atlons. Prior to
commencing any work on the Premises, Licensee shall complete and shan
require its contractor to complete the safety-training program at the following
Internet Website "http://contrac:tororientation.com''.This training must be
completed no more than one year In advance of LIcensee's entry on the
Premises.
DEFINITION OF COST AND EXPENSE
9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but
Is not Umited to, actual labor and material costs including an assignable additives, and
material and supply costs at current value where used.
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Fonn 423; Rev. 04I26I0C5
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Law Deparlmenl Approved
09-37471
RIGHT OF LICENSOR TO USE
10. Licensor excepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe.
power, communication lines and appurtenances and other fael/Hies Dr structures
of like character upon, over, under or across the Premises:
(b) to construct, malntain, renew, use, operate, change, modify and relocate any
tracks or additional facillies or structures upon, over, under or across the
Premises; or
(c) to use the Premises in any manner as the Licensor In Its sole dis<;retion deems
appropriate, provided licensor uses all commerClaly reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
11. (a) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Drive, San
Bernardino, California, 92408, telephone (909) 386-4060 (Office) or (928) 237-
6860 (Cell), at least five (5) business days prior to entering the Premises and
prior to entering the Premises for any subsequent maintenance thereon [rt
applicable). After complellon of use of the Premises for the purpose specified In
Section 3, Licensee shall notify Licensor in writing that such use has been
completed.
(b) In performing the work described in Section 3, Licensee shell use only public
roadways to cross from one side of Licensor's tracks to the other.
12. (a) Under no conditions shall licensee be permitted to conduct any tests,
investigations or any other activily using mechanized equipment and/or
machinery, or place Dr store any mechanized equipment, tools or other
materials, within twenty-five (25) feal of the centarlne of any railroac:t track on the
Premises unless Licensee has obtained prior written approval from Licensor.
Licensee shall, at its sole cost and expense, perform all activitias on and about
the Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe
nature thereof, it being solely Licensee's responsibility to ensure that Licensee'.
use of the Premises is safe. Neither the exercise nor the faOure by Licensor to
exercise any rights granted in this Section will alter the Dab/lily allocation
provided by this License.
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Form 423; Rev. 04I2lW5
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Law Oep8rtment Approved
011-37471
(b) Licensee shaH, at its sole coat and expense and subject to the supervision of
LIcensor's Roadmaster, locate, construct and maintain the temporary shoring
and support structures on the BNSF property for the MI. Vernon Bridge In such a
manner and of such materlallhat II win not at any time be a source of danger to
or Interference with the present 01' future tracks, roadbed and property of
Licensor, 01' the safe operation of its railroad. If at any tima LIcensee shall, In the
judgment of Licensor, fail to perform properly its obl'lglIIions under this
paragraph, Licensor may, at Ita option, itself perform such work as it deems
necessary for the safe operation of its railroad, and in such event Licensee
agraes to pay, within fifteen (15) days after bin shal have bHn renclered
therefor, the coat so Incurred by licensor, but failure on tha part of Licensor to
perform the obligations of L1C81lllH shal not rBIell8ll Licensee from (lablDIy
hereunder for loss or damage occasioned thereby.
13. During the construction and any subsequent mainlen8/lce performed on the temporary
shoring and support structures on the BNSF property fOl' the Ml Vernon Bridge,
Licensee shaN perfonn such work in a manner to preclude damage to the property of
Licensor, and preclude interference with the operation of its railroad. The construclion
of the temporary shoring and support structures on the BNSF property for the Ml
Vernon Bridge shall be complated within one (1) year of the Effective Dale. Upon
completion of the construclion of the temporary shoring and support structures on the
BNSF properly for the Mt. Vernon BrIdge and after performing 8/lY subsequent
maintenance thereon, Licensee shall, at Licensee's own coat and expense. restore
Licensor's premises to their tonner stale 88 of the Effective Date of this license.
14. If at any time during the term of this License, Licensor shaM desire the use of its raB
corridor in such a m8lVler as would, in Licensor's reasonable opinion, be interfered with
by the temporary shoring and support structures on the BNSF property for the MI.
Vernon Bridge, Licensee shal, at its sole expense, Within thirty (30) days after receiving
written notice from licensor to such effect, make such changes In the temporary shoring
and support structures on the BNSF property for the Ml Vernon Bridge 88 in the sole
discretion of LIcensor may be necessary to avoid interference with the proposed use of
Licensor's rail corridor, including, without limitation, the relocation of the exleUng or tha
construction of a new temporary shoring and support structures on the BNSF property
for the MI. Vernon Bridge.
15. (a) Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the
ground to datermine whether pipelines or other structures exist below the
surface, Drovided. however. thetln lieu of the foregoing, the Licensee shaH have
the righlto use suitable detection equipment or other generally accepted Industry
practice C!.g., consulting With the Underground Services AssocIation) to
datermine the existence or location of pipelines and other subsurface structures
prior to drillng. or excavating with mechanized equipment. Upon Licensee's
written request, which shall be made thirty (30) business days In advance of
Licensee's requested entry on the Premises, Licensor will provide Ucensee any
information that LIcensor's Engineering Department has in its posseSSion
concerning the existence and approximate location of Licensor's underground
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Form 423; Rev. 0412Ml5
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09-37471
(b)
utiHtles and pipelines on the Premises. Prior to conducting 8I1Y such boring work,
the Licensee wll review aU such matelial. Licensor does not warrant the
accuracy or completeness of information relating to subeurface concIItIons and
Licensee's operations will be subject at sll Urnes to the liability provisions herein.
For all bores greater than 28-1nch diameter, and at a depth less than 10.0 feet
below bottom of rail, a soli investigation will need to be performed by the
Licensee and reviewed by Licensor prior to . construction. This study. is to
determine if granular material Is present, and to prevent subeldence during the
inatallatlon procesc. If the investigation determines in Licensor's reasonable
opinion that granular material is present, Licensor may select a new location for
Licensee's use, or may require Liceneee to fumilh for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any suchl1lll'ledial plan in writing, Licensee shaH, at
its sole coat and expense, cerry out the approved plan In accordance with all
terms thereof and hereof.
16. Any open hole, boring or well conatructed upon Premises by Licensee shaN be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. FoUowing completion of that pOrtIon of the work, .. holes or borings
constructed on the Premises by Licensee shall be:
(a) filled In to surrounding ground level with compacted bentonite grout; or
(b)
oth8fWise secured or retired in accordance with any applcable Legal
Requirement. No excaveted materials may remain on the Premises for more
than ten (10) days, but must be properly OlSposed of by Licensee In accordance
with applicable Legal Requirements.
17. Upon completion of Licensee's work on the Premises or upon termination of this
License, whichever shall occur first, licensee sha,l, at its sole cost and expense:
(a) remove all of Its equipment from the Premises;
(b) remove the temporary shoring and support structures on the BNSF property for
the Mt. Vemon Bridge at the licensor's sole discretion;
(c) report and restore any damage to the Premises arising from. growing out of, or
connected with licensee's use of the Premises;
(d) remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and .
(e) leave the Premises in the condition which existed as of the Effective Date of this
License.
18. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License
at all times while on the Premises.
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Flinn 423; RllV. 04J28/06
Law Depe_t Approved
09-37471
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L1ASILITY
it. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND
LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS,
ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
"INDEMNITEES") FOR, FROII AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS,
CAUSES ~F ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES
(INCLUDING, WITHOUT L1MITAOON, COURT COSTS, ATTORNEYS' FEES
AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND
GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE
(COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION
OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF,
RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(I) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS
ENVIRONMENTAL PROVISIONS,
(II) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE,
(III) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(Iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR
(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S
OFFICERS, AGENTS, INVlTEES, EMPLOYEES, OR CONTRACTORS,
OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF
THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL
OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO
THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 1t(a), LICENSEE SHALL
NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS
WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR
OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR",
"ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE
TEMPORARY SHORING AND SUPPORT STRUCTURES ON THE BNSF
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Form 423; Rev. 04I2IIIIlIi
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law Dep8Ilment Appfoved
08-37471
PROPERTY FOR THE MT. VERNON BRIDGE FOR THE PURPOSES OF
CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL
INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM
ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE
INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE
PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY
WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A
COMMON CARRIER FOR PURPOSES Of ENVIRONMENTAL LAWS AND
EXPRESSLY. AGREES TO INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO
r:VENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL
CONDITION OF THE PREMISES.
Ie) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER
AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED
NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD
HARMLESS THE INDEMNlTEE8 AGAINST AND ASSUME THE DEFENSE OF
ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY
INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS'
LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY
OF ITS AGENTS, INVlTEES, OR CONTRACTORS CLAIM OR ALLEGE THAT
THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS
INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA
CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY
FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT
NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION
ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR
FEDERAL STATUTE.
Ie) Upon written notice from Licensor, Licensee agrees to assume the detente of
any lawsuit or other proceecIing brought again8l any Indemnitee by any entity,
relating to any matter covered by this License for which Licensee has an
obligation to assume liability for and/or save and hold harmless any Indemnitee.
Licensee shan pay al coets incident to such defense, including, but nollimited to.
attorneys' fees, investigators' fees. litigation end appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
PERSONAL PROPERTY WAIVER
20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
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Form 423: Rev. 04126106
Law Deperlmenl Approved
lJll.37471
c:; INSURANCE
21. Licensee 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 JiabiNty with a combined single Omit of a minimum of $2,000,000
each occurrence and an aggregate limit of at least $ 4,000,000. Coverage must
be purchased on a post 1998 ISO occurrence or equivalent and Include
coverage for, but not limited to, the following:
. Bodily Injury and Property Damage
. PllI80nallnjury and Advertising Injury
. Fire legal nability
. Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
The employee and worklll8 compensation related exclusions In the above
policy shaa not apply with respect to claims related to railroad employeu.
. The definition of insured contract shall be amended to remove any exclusion
or other Omllation for any work being done within 50 feet of railroad property.
. Any exclusions related to the explosion, COllapse and'underground hazards
shall be removed.
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No other endorsements limiting coverage may be Included on the poOcy.
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 fimited to the following:
. BOdily injury and property damage
. Any and all vehicles owned, used or hired
C. Workers Compensation and Employers LIability insurance. This insurance
shall include coverage for, but not Dmited to:
· Ucensee's statutory liability under the worker's compensation laws of the
stateCs) in which the work Is to be performed. If optional under Slate law, the
insurance must cover all employees anyway.
· Employers' Liability (Part B) with Omits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
D.
Railroad Proteclive liability Insurance. If further mainlanance of the temporary
shoring and support structures on the BNSF property for the Mt. Vernon Bridge
is needed at a lalar date, an additional Railroad Protective Liability Insurance
Policy shall be required. The policy shall be Issued on a standard ISO form CG
00 35 10 93 and Include the following:
· Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
1093)
. Endorsed to Include the Limited Seepage and Pollution Endorsement.
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-8-
Form 423; RIlV, 04128105
Law Depaltment Approved
00.37471
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. Endorsed to include Evacuation Expense Coverage Endorsement.
. No other endorsements restricting coverage may be added.
· The original polley must be provided to the Licensor prior to performing any
work or services under thle Agreement
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages and certificates of insurance shal reflect that no
exclusion exists.
Licensee agrees to waive Its right of recovery against LlcenlOrfor all claims and suits
against Licensor. In addition, its Insurers, thfough policy endorsement, waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right. of
recovery, and its insurers also waive their right of subrogation against Licensor for loss
of its owned or leased property or property under its care, custody, or control.
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Licensee's insurance policies through polcy endorsement, must include wording which
states that the policy shall be primary and non-contrlbuting with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All poHcy[l8s) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of interest endorsement and shaI name
Licensor and Staubach Global Services - RR, Inc. as an additional insured with respect
to work performed under this agreement. Severability of interest and naming Licensor
and Staubach Global Services - RR, Inc. as additional insureds shall be indicated on the
certificate of insurance.
Licensee Is not allowed to salf-insure without the prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibility for claims shaI be covered directly by Licensee In lieu of insurance. Any
and all Licensor liabilities that would othelWise, in accordance with the provisions of thle
Agreement, be covered by Licensee's insurance will be covered as if Licensee elected
not to Include a deductible, self.insured retention. or other financial responsibility for
claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable
certilicete(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments. The po/icy(ies)
shali contain a provision that obligates the insurance company(ies) issuing such
policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-
renewal, ,substiMion or material alteration. This cancellation proviSion shaH be Indicated
on the certiflcate of Insurance. In the event of a claim or lawsuit involving Railroad
arising out of this agreement, Licensee will make available any required policy covering
such claim or lawsuit.
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-9.
Form 423; Rev. 04126105
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Law 0eparIment ApprO'l8d
09-37471
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Besrs Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) In which the service is to be provided.
Licensee represents that this License has been thoroughly reviewed by Licensee's
insurance agent(s)lbroker(s), who have been Instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expanse shall be in
addition to all policy limits for coverages ref8renc:ecl above.
Not more frequently than once every five years, Licensor may reasonably modify the
required Insurance coverage to reIIect then-current risk management practices In the
rallroed industry and underwriting practices in the Insurance Industry.
If any portion of the operation Is to be subcontracted by Licensee, Licensee shall require
that the subcontreclor shall provlcle and maintain insurance coverages as set forth
herein, naming Licensor as an addlUonal ,Insured, and shaH require thet the
subcontractor shall release, defend and Indemnify Licensor to the same extent and
under the same terms and condlttons as Licensee is required to release, defend and
indemnify Licensor herein.
Failure to provide evidence as required by this section shaft entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certifrcate that does not
comply with this section shal not operate as a waiver of Licensee's obligations
hereunder.
The fact that Insurance (including, without fimitatlon, self-insurance) Is obtained by
Licensee shall nol be deemed to release or diminish the lIablllly of Licensee including,
without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required Insurance
coverage.
For purposes of this section, Licensor shaH mean "Burlington Northern Santa Fe
Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
ENVIRONMENTAL
22. (a) Licensee shaD strictly comply with all federal, state and local environmental laws
and regulations In its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the au Polutlon Act, the Hazardous Materials Transportation Act,
CERCLA (coIectively referred to as the "Environmental Laws1. Licensee shall
not maintain a treatment, storage, transfer or dispoSal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. licensee
shall not release or suffer the release of 011 or hazardous substances, as defined
by Environmental Laws on or about the Premises.
-10-
Form 423; Rev. 04126105
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law Depertment Approwd
09-37471
(b)
Licensee shaU give Licensor immediale notice to Ucen8Ol'S RellOlll'Ce
Operations Center at (800) 832-5452 of any reIe88e of hazardous substances on
or from Ihe Premises, violation of Environmental Laws, or inspection or inquiry by
govemmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensae shaD use the best efforts
to promptly respond to any release on or from the Premises. Licensee alllo shaD
give Licensor Immediate notice of all m888lH8 undertaken on behalf of
LIcensee to investigate, remediale, respond 10 or otherwise cure such release or
violation.
(e) In the event that Licensor has notice from Licensee or otherwise of a relsase or
violation of Environmental Laws arising in any way with respect to lhe temporary
shoring and support structures on the BNSF property for lhe Ml. Vernon BrIdge
which occurred or may occur during the, term of this License, Llcenaor may
require Licensee, at Licensee's s_ risk and expense, to take IImeIy measures
to investigate, remedlale, respond to or otherwise cure such re/eese or violation
affecting Ihe Premises or Licensor's right-of-way.
(d) Licensee Shall promptly report 10 Licensor in wriling any conditions or activities
upon Ihe Premises known 10 Licensee which create a risk of harm to persons,
property or the environment and shall take whatever action is nec:essaryto
prevent Injury to persons or property arising out of such conditions or activities;
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on il by this License. Ucensee
shaH promptly respond to Licensor's requesl for informalion regarding said
conditions or actlvilies.
ALTERATIONS
23. Licensee may not make any alterations of the Premises or permanently affix anything to
the Premises or any buildings or other structures adjacent to Ihe Premises withoul
Licensor's prior written consent.
NO WARRANTIES
24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
-11-
Form 423; Rev. 0412Ml5
law Dep8l1lnenl Approved
08-37471
o QUIET ENJOYMENT
25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR
UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
DEFAULT
26. If default shaH be made in any of the covenants or agreements of Licensee contained in
this document, or In case of any alllgnment or transfer of this license by operation of
law, licensor may, at its option, terminate this license by serving five (5) days' notice In
writing upon licensee. Any W8Iwr by licensor of any defauH or defaults shaH not
constiMe a waiver of the right to terminate this license for any subsequent default or
defaults, nor shell any such waiver In any way affect licensor's ability 10 enforce any
Section of this license. The remedy set forth in this Section 28 shall be in addition 10,
and not in limitation of, any other remedies that licensor may have at law or in equity.
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LIENS
27. licensee shaH promptly pay and discharge any and aR IIena anslOg out of any
construction, alterations or repairs done, suffered or permitted to be done by licensee
on Premises. licensor Is hereby authorized to post any notices or take any other action
upon or with respect to Premises that is or may be permitted by law 10 prevent the
attachment of any such liens to Premises; provided, however, that failure of licensor to
take any such action shall not relieve licensee of any obligation or liabllty under this
Section 27 or any other Section of this license.
TERMINATION
28. This license may be terminated by licensor. at any time, by serving thirty (30) days'
written notice of termination upon licensee. This license may be terminated by
licensee upon execution of licensor's Mutual Termlnation leller Agreement then in
effect. Upon expiration of the time specified in such notice, this license and all rights of
licensee shall absolutely cease.
29. If Licensee fails to surrender to licensor the Premises, upon any termination of this
License, all liabilities and obligations of licensee hereunder shall continue In effect unlit
the Premises are surrendered. Termination shall not release licensee from any liability
or obligation, whether of indemnity or othelWise, resulting frOm any events happening
prior to the date of termination.
ASSIGNMENT
30. Neither licensee, nor the heirs, legal representatives, successors or assigns of
licensee, nor any subsequent assignee, shaR assign or transfer this license or any
interest herein, without the prior written consent and approval of licensor, which may be
withheld in licensor's sole discretion.
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Form 423; Rev. 04126105
Law Depertment Approved
09-37471
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NOTICES
31. Any notice required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States maY, certified, return receipt requested, or (U)
deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party
no less than thirty (30) days' advance wrilten notice of such change in address.
If to Licensor:
Staubach Globe! Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, 1)( 78131
Altn: LlcensesIPermits
with a copy to:
BNSF Railway Company
2500 Lou Menk Dr. - AOB3
Fort Worth, 1)( 78131
Altn: Senior Manager Real Estate
City of San Bernardino
300 North "0- Street
San Bernardino, CA 92418-0001
If to Licensee:
o SURVIVAL
32. Neither termination nor expiration will release either party from any liability or obligation
under this License, whether of incIemnity or otherwise, resulling from any acts,
omissions or events happening prior to the date of terminallon or expirallon. or, if later,
the date when the Premises are restored to ils condition as of the Effective Date.
RECORDATION
33. Ills understood and agreed that Ihis License shall nol be placed on public record.
APPLICABLE LAW
34. All questions concerning the interpretation or applicalion of proviSions of this License
shall be decided according to the laws of the State ofTexas.
SEVERABILITY
35. To the maximum extent possible, each provision of this License shall be interpreted In
such manner es to be effective and valid under applicable law, but if any provision of this
License shan be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to lhe extent of such prohibition or invalidity, and this shall not
invalidate Ihe remainder of such provision or any other provision of this License.
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-13-
Form 423; Rev. 04126105
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I
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law Department ApplOVlld
INTEGRATION
09-37471
36. This license Is the full and. complete agreement between Licensor and Lk:ensee with
respeclto al matters relating to LIcensee's use of the Premises, and aupersedes any
and an other agreemenla between the parties hereto relating to Licensee's use of the
Premises as described herein. HOW8Y8l', nothing herein Is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
MISCELLANEOUS
37. In the event that Licensee consists of two or more parties, all the covenanla aild
agreements of Licensee herein contained shall be the Joint and several covenants and
agreemenla of such parties.
38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of licensor to enforce that provision for any subsequent breach thereof.
Staubach Globel Services - RR, 100. is acling as representative for BNSF Railway
Company.
IN WITNESS WHEREOF, this License has been duly executed, In dUp/k:ate, by the parties
hereto as of the day and year first above written.
BNSF RAILWAY COMPANY
Staubach Global Services - RR, Inc.,
its Attorney in Fact
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 78131
By:
Ed Darter,
Title: Vice President - National Accounts
CITY OF SAN BERNARDINO
300 NOl1h "0" Street
San Bernardino, CA 92418-0001
By:
Title:
-14-
Form 423; Rev. 04I2llI05
TRACKING NO.09-37471
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EXHIBIT "AII
ATTACHED TD CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AHD
CITY OF SAN BERNARDINO
o
SCALE: 1 IN. = Z!lO.... n.
CALIFORNIA OIV.
SAN BERNARDINO SUBDIV, loS. 7600
OATE 0111512009
REVISED DATE 0210612009 I __
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AT SAN BERNARDINO
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STATE OF CA
AFV
DRAWING NO. 1-45557