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Home My WebLink About2009-362RESOLUTION NO. 2009-362 1 2 3 4 5 6 7 8 9 10 _, 11 12 13 14 15 16 17 18 19 20 21 23 24 2.5 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION OF A LICENSE AND AGREEMENT WITH BNSF RAILWAY COMPANY FOR ENCROACHMENT WITHIN THAT CERTAIN NORTH- SOUTH ALLEY, KNOWN AS WALKER PLACE, WEST OF "J" STREET, BETWEEN WEST RIALTO AVENUE AND WEST 2"D STREET IN THE CITY OF SAN BERNARDINO, FOR INSTALLATION AND OPERATION OF A GROUNDWATER MONITORING WELL. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the Mayor and Common Council of the City of San Bernardino hereby approves a License and Agreement with BNSF Railway Company for an encroachment within that certain north-south alley, known as Walker Place, located west of "J" Street, between West Rialto Avenue and West 2"d Street in the City of San Bernardino. SECTION 2. That the City Manager is hereby authorized and directed to execute on behalf of the City said License and Agreement, a copy of which is attached hereto and incorporated herein as Exhibit "A". SECTION 3. The authorization to execute the above referenced license and agreement is rescinded if the parties fail to execute it witl~ in ninety (90) days of the passage of this Resolution. /// ~~~ 26 27 28 A~~~~~st 29, 200 2009-362 li 2' 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING EXECUTION IOF A LICENSE AND AGREEMENT WITH BNSF RAILWAY COMPANY FOR ENCROACHMENT 'WITHIN THAT CERTAIN NORTH-SOUTH ALLEY, KNOWN AS WALKER PLACE, WEST OF "J" STREET, BETWEEN WEST RIALTO AVENUE AND WEST 2ND STREET IN THE CITY OF SAN BERNARDINO, FOR INSTALLATION AND OPERATION OF A GROUNDWATER MONITORING WELL. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a ~ oint regular meeting thereof held on the 7th day of December , 2009, by the following vote, to wit: Council Members: AYES NAPES ABSTAIN ABSENT ESTRADA x BAXTER x BRINKER SHORETT x KELLEY x x JOHNSON x MCCAMMACK x .~- City Clerk ~~_, The foregoing resolution is hereby approved this a day of December , 2009. Approved as to form: JAMES F. ENMAN City Atto ey . By: ~ 10/06/2009 2 ~~ atric J. Morris, f San Bernardino 2009-362 LICENSE AND AGREEMENT THIS LICENSE AND AGREEMENT is made and entered into this 7th day of December 2009, by and between BNSF Railway Company, A Delaware corporation, hereinafter referred to as "Licensee," and the CITY OF SAN BERNARDINO, a municipal corporation hereafter referred to as "City." WITNESSETH: V For and in consideration of the mutual promises and covenants herein contained, the parties hereto do hereby agree as follows: 1. City hereby gives permission, removable and terminable as hereinafter provided, to Licensee for encroachment of a groundwater monitoring well to be located in that certain north/south alley known as Walker Place, west of "J" Street, between West Rialto Avenue and West Second Street in the City of San Bernardino indicated schematically in Figure 1 of Attachment "1 ", attached hereto and made a part hereof, and more specifically described in Attachment " 2" and depicted on a plat as Attachment " 3 ", both attached hereto and made a part hereof, and in accordance with that letter dated October 5, 2009, from Environmental Resources Management, a consultant for and on behalf of Licensee, as set forth in said Attachment " 1 ", and subject to any requirements or conditions as may be imposed by the Director of Development Services of City. 2. Use of the encroachment area shall be for the right to construct, maintain, inspect, operate, protect, repair, replace and retain in place a groundwater monitoring well and appurtenances thereto, indicated schematically in Figure 2 of said Attachment «1» EXHIBIT "A" 1 of 7 2009.362 3. Licensee has obtained a Well Permit from the County of San Bernardino, Department of Public Health, Environmental Health Services, a copy of which is shown in Appendix "A" of said Attachment "1 ", for the purpose of installing said groundwater monitoring well. Licensee shall keep said permit in full force and effect during installation of said groundwater monitoring well. 4. City reserves the right to improve, widen, vacate or relocate any highway, street, alley or other public places, or portion thereof, over and within which this Agreement is granted, including the widening, change of grade, construction or reconstruction of such highway, street, alley or other public places or portion thereof, for the purpose of any public improvements. If notice is given by City to Licensee that work is to be done pursuant to the rights reserved herein, which notice shall specify the general nature of the work in the area in which the same is to be performed, Licensee shall at its expense, do all things reasonably necessary to protect, disconnect, relocate or remove its property during the progress of such work at the required time in order to accommodate such work. All such things to be done and work to be performed by Licensee shall be at the sole cost and expense of the Licensee. In the event that City shall hereafter construct, install, reconstruct or repair any bridge or artificial support in, on, over or underlying any highway, street, alley or other public place or improvement in which the Licensee's property is located pursuant to this Agreement, and in the event that the cost of such work as may reasonably be required is increased in order to provide for the installation, maintenance or operation of Licensee's property in, on, over or under the area covered by such project, then Licensee shall pay to City the full amount of such increase of cost, upon completion of such construction, installation or repair. Any damage done directly or indirectly to any public street, highway, alley or other public place or improvement by 2 of 7 2009-362 the Licensee, in exercising directly or indirectly any right, power or privilege under this Agreement, or in performing any duty under or pursuant to the provisions of this Agreement, shall be promptly repaired by Licensee at its sole cost and expense, to the reasonable satisfaction of City. 5. Licensee shall, as and for the consideration for the granting of this License, pay to the City of San Bernardino, the sum of $625.00, due upon execution of this License Agreement, and shall be subject to the payment of an annual license fee of $150.00, which shall come due on the first day of January of each subsequent year. 6. Licensee hereby acknowledges the title and paramount interest of City to the public right-of--way and agrees never to assail or resist said title or interest and to observe present or future set-back requirements relating thereto while this Agreement is in force and effect. 7. City and Licensee each reserves the right to terminate this License and Agreement at any time for any reason by giving the other party at least thirty (3 0) days written notice of such termination, except that City may, at its election, terminate said permission forthwith at any time if Licensee shall fail to comply with any of the provisions of this Agreement. Waiver by the City of any breach of any term or provision herein shall not be deemed a waiver of any subsequent breach of the same or any other term or provision of this Agreement. 8. Licensee agrees to install, use and maintain said encroachment as required by this Agreement. Said encroachment shall be maintained at all times in a safe, neat, sightly and good physical condition. City shall be the sole judge of the quality of maintenance, and upon written notice by City, through its Director of Development Services, stating in general terms how and in what manner the maintenance is required, 3 of 7 2009-362 Licensee shall be required to perform such required maintenance. If Licensee fails to do so, then City shall have the right to perform this maintenance, the cost of which shall be borne by Licensee, or alternatively, City may, at its election, terminate this Agreement. Licensee further agrees to install, use and maintain said encroachment in conformity with applicable Federal, State, and local laws, rules and regulations. Licensee shall, at its own responsibility and expense, obtain and keep in effect all licenses, bonds and permits necessary for the installation and existence of said encroachment. 9. Upon termination of this Agreement, Licensee agrees to immediately remove said encroachment from the public right-of--way and to restore the public right-of- way to the satisfaction of the Director of Development Services. Licensee shall obtain and comply with any Federal, State and local permits required, prior to the removal and closure of the groundwater monitoring well. If Licensee fails to exercise its duties under this paragraph, City shall have the right to remove said encroachment and to restore the premises at no cost or liability to the City. Licensee covenants and agrees to reimburse City for such cost of removal and/or restoration, including permit fees. 10. City shall in no way be responsible for any loss or damage caused by said encroachment or for any property belonging to or leased by Licensee, its officers, servants, agents or employees, that may be stolen, destroyed or in any way damaged during the installation, use or maintenance of said encroachment. 11. Licensee shall exercise its privileges under this license at its own risk. Licensee shall indemnify, defend and hold harmless City, its elective and appointive boards, commissions, officers, agents and employees from any costs, claims, damages, injuries, and liability resulting from, arising out of, or in any way connected with, the City's approval of this License and Agreement, or the construction, installation, use or 4 of 7 2009-362 maintenance of said encroachment, the occupation or use of the public areas of said encroachment, both during and after the installation thereof, and including but not limited to any costs, claims, damages, injuries, and liability resulting from the conduct of Licensee or the employees, invitees, guests or agents of Licensee related to said encroachment. 12. The City acknowledges that the Licensee is insured under Burlington Northern Santa Fe Corporation's Excess Property and Liability Policies. The self-insured retention is in keeping with its net worth and cash flows and is consistent with that of other corporations of similar operations and size. Adequate reserves are maintained for claims within its retention. A letter of self insurance will be provided in lieu of a certificate of insurance. 13. This license is personal to Licensee. It is nonassignable, except with the prior written consent of the City, and any attempt to assign this license without such consent will terminate the license privileges granted to Licensee under this Agreement. The City shall not unreasonably withhold consent. A reorganization of the Licensee's business entity form, or a transfer of less than one-half of the assets of Licensee, shall not be deemed an assignment for the purposes of this license if the resulting or successor entity shall as a matter of law be liable for Licensee's accrued and future obligations under this Agreement. Licensee shall be entitled to transfer this license to a purchaser of more than one-half of Licensee's interest provided that the purchaser shall be bound by Licensee's accrued and future obligations under this License. 14. Licensee agrees that should any action.. whether real or asserted; at law or in equity, arise out of the terms of this Agreement, or by Licensee's operations on the premises, venue for that action shall lie in San Bernardino County, California. 5 of 7 2009-362 15. Licensee hereby certifies that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, marital status, national origin, disability, or any other category prohibited by law. Licensee's hiring practices and employee policies shall comply with all applicable Federal, State and local laws. Such action shall include, but not be limited to, the following: recruitment and recruitment advertising, employment, upgrading and promotion. 16. The prevailing party in any legal action to enforce or interpret any provision(s) of this Agreement shall be entitled to recover from the losing party all attorney's fees, court costs and necessary disbursements in connection with that action. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as attorney's fees for the purposes of this Agreement. /// /// 6 of 7 2009-362 LICENSE AND AGREEMENT for encroachment of a groundwater monitoring well within Walker Place in the City of San Bernardino, CA . 17. All official notices relative to this Agreement shall be in writing and addressed to the following representatives of Licensee and City: Licensee City BNSF Railway Company Mr. Matt Graham, Manager Environmental Remediation 740 East Carnegie Drive San Bernardino, CA 92408-3571 Ph: (909) 386-4081 Ms. Valerie C. Ross, Director Development Services Department City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Ph: (909) 384-5357 Fax: (909) 384-5155 IN WITNESS, the parties have executed this Agreement on date first written above. CITY OF SAN BERNARDINO BNSF RAILWAY COMPANY ager (Print name) : (~ ~,~ ; G,~ „v~, ~ Director -Acquisition & Development Approved as to form: tom' `° ~`'` JA ES PENMAN, City Attorney 7 of 7 2009-362 ATTACHMENT "1" 05 October 2009 Via Electronic Mail Mr. Les Fogassy Engineer, Real Property Manager City of San Bernardino -Development Services Department Public Works Division 300 North D Street, 3rd Floor San Bernardino, California 92418 Subject: Permit for Permanent Encroachment Installation of Groundwater Monitoring Well Walker Place (Alley) between W. Rialto Ave. and W. 2nd St. San Bernardino, California Dear Mr. Fogassy: Thank you for the clarifications you provided during our telephone conversation on 1 October 2009. ERM-West, Inc. (ERM), on behalf of BNSF Railway Company (BNSF), is pleased to submit this letter containing the information you requested during that conversation. The information is intended to support the issuance of a permanent- encroachmentpermit, by the City of San Bernardino, for the purpose of installing a groundwater monitoring well in Walker Place (alley), connecting West Rialto Avenue to the south with West 2nd Street to the north. A map showing the approximate location for the proposed monitoring well is attached as Figure 1. The scope of work that is planned for this project is part of an evaluation of groundwater quality associated with historic operations at BNSF's former diesel maintenance facilities that were previously located northwest of the intended drilling location. The work is required by, and has been approved by, the California Regional Water Quality Control Board, Santa Ana Region (RWQCB). To assess the potential presence of groundwater quality impacts from the former diesel shops, the RWQCB is requiring BNSF to install a groundwater monitoring point in the alley at the approximate location shown on Figure 1. The groundwater monitoring point will consist of three nested monitoring wells constructed similarly to that depicted on Figure 2, T~picnl Proposed Nested Well. ERM has secured a permit for Environmental Resources Management 2875 Michelle Drive Suite 200 Irvine, CA 92606 (949) 623-4700 (949) 623-4711 (fax) ~::, +; :;- ,__ EIZM 2009-362 05 October 2009 Via Electronic Mail NIr. Les Fogassy Engineer, Real Property Manager City of San Bernardino -Development Services Department Public Works Division 300 North D Street, 3rd Floor San Bernardino, California 92418 Subject: Permit for Permanent Encroachment Installation of Groundwater Monitoring Well Walker Place (Alley) between W. Rialto Ave. and W. 2nd St. San Bernardino, California Dear Mr. Fogassy: Thank you for the clarifications you provided during our telephone conversation on 1 October 2009. ERM-West, Inc. (ERM), on behalf of BNSF Railway Company (BNSF), is pleased to submit this letter containing the information you requested during that conversation. The information is intended to support the issuance of a permanent encroachment permit, by the City of San Bernardino, for the purpose of installing a groundwater monitoring well in Walker Place (alley), connecting West Rialto Avenue to the south with West 2nd Street to the north. A map showing the approximate location for the proposed monitoring well is attached as Figure 1. The scope of work that is planned for this project is part of an evaluation of groundwater quality associated with historic operations at BNSF's former diesel maintenance facilities that were previously located northwest of the intended drilling location. The work is required by, and has been approved by, the California Regional Water Quality Control Board, Santa Ana Region (RWQCB). To assess the potential presence of groundwater quality impacts from the former diesel shops, the RWQCB is requiring BNSF to install a groundwater monitoring point in the alley at the approximate location shown on Figure 1. The groundwater monitoring point will consist of three nested monitoring wells constructed similarly to that depicted on Figure 2, Typicril Prvposecl Nested vti'ell. ER~t has secured a permit for Environmental Resources Management 2875 Michelle Drive Suite 200 Irvine, CA 92606 (949) 623-4700 (949) 623-4711 (fax) ERM . ~ ~ 2009-362 Mr. Fogassy 05 October 2009 Page 2 constructing the nested groundwater monitoring well from the County of San Bernardino Department of Public Health, Environmental Health Services (SBCDHS). A copy to the permit is attached as Appendix A Based on our telephone conversation, it is my understanding that upon receipt of this letter, your offices will develop a license agreement, as part of the permit process, for BNSF's review and signing. On behalf of BNSF, ERM thanks you in advance for your help by developing such document in a timely manner so that the required presentation of the permit request to the City council can be made during its scheduled meeting on 16 November 2009. Please contact me at (949) 623-4700 if you have any questions regarding the information contained herein. Sincerely, Stewart A. Emhof Program Director SAE/ 0100686 Attachments: Figures Appendix A cc: Matt Graham, BNSF 2009-362 Figures 2009-362 West 2"d Street -~ ~ L 0 100 ~--- _ - -- Approx. feet Figure 1 Site Location Map Walker Piace (alley) San Bernardino, California West Rialto Avenue 0 Approximate Location Proposed Monitoring Well 2009-362 NOT TO SCALE ~~-~ (Flush-Mounted, 12-Inch Diameter agp~A,q ~i~ STEII, VAtLT Cover) ;,;..~ t.. ~;., s `~~ ~~~ ` ` ` i OONp~tE 1zr caetraFx. ~ Bunuwsc c~a zrscH. eow~c ~~ ~~~ ~ e~,ran~ srta-r er~rrawtfs~x -+row-~ eerroMrrE Pa.u:ra 1 dD' - FILT@e PACK sow scH. eo ~c o.a~~oTe aoaeio~e euantwa~ c~a z~sat, mws ~w+u~w a~x e~ranf scour 8erra~rEar~ Hrow~~ eerroNrtE aa~re Furst mat f,1 SIUCA ZiMD acH. eo ~ o.ar aum~ euwcwial c~s~+o zee. ~o~ ~uansFx e~NroNrESwour ~rrat~sr~. fnoia~ ea~ti~ Pa.tFrs - Fx~~ac A 81UGA 91{pD - SC~BI 9CH. ~ PMC - 0.~'SLOT~ THREJID®BVO CAP NESTED MONiTORINO WELL Figure 2 ryo~c~p~,oassdN~s~d Weir iU19~~it~ G~urh~t~r/nYre~strga~ov~ BNSFF~ci/i1~ San Bema~+lno, Ca/~~nil~ exit c~av 2009-362 Appendix A Copy of SBCDHS Well Construction Permit • :10/'02/2009 I4: 06 5628639534 2009-362 CgcCq~ DRILLING INC DD JMOT ILL K /~ ' r~.rnit MNr~r ~~ V~~.; ram ~ t~P G o a'o 0 3 - 2 ~s sN cwt~- d ~n Awn~tdl~ _ DlAR'rMlNT 01` DtMUG lrEA1.TM ~naoNlr~Kt~t.I~urN aEl~s ~y „ass WELL PERMIT ~rlu/- 7~ PACE 02/07 3 7~!! 7'a ao,rorrlu ~ I}abs O ~ ~~ w~ ~+~ aneu-t s ~- "' ~._Z. = ~~ crgr caoa. y ~. ~ N ~. c,q, l3~ ~~+.~ ap 9 y/ d c~- ap ~ Tikphons Number t'pI'r).,~ ' ~ j 2 WH1. 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" OOia vMd ~anNt.INOD • Mesh 2004 ~ ~=? 1 • 2009-362 ATTACHMENT " 2" DESCRIPTION OF ENCROACHMENT AREA BNSF GROUNDWATER MONITORING WELL A PORTION OF THAT CERTAIN NORTH-SOUTH, 18-FOOT ALLEY (KNOWN AS WALKER PLACE), AS DELINEATED ON THE MAP OF CARTER'S SUB-DIVISION, AS PER PLAT RECORDED IN BOOK 3 OF MAPS, PAGE 79, RECORDS OF THE COUNTY RECORDER OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA, LYING BETWEEN WEST RIALTO AVENUE (SHOWN AS FIRST STREET ON THE MAP OF SAID CARTER'S SUB-DIVISION) AND SECOND STREET, AND WESTERLY AND ADJACENT TO LOTS 1 THROUGH 12, BLOCK 4, MORE SPECIFICALLY DESCRIBED AS FOLLOWS: A 3-FOOT DIAMETER, CIRCULAR PORTION OF SAID ALLEY, THE CENTER OF WHICH IS APPROXIMATELY 210 FEET SOUTH OF THE CENTERLINE OF SECOND STREET, HAVING AHALF-WIDTH OF 41.25 FEET, AND ADJACENT TO AND WEST OF LOT 4 OF SAID BLOCK 4, THE SAID CENTER OF SAID CIRCULAR PORTION BEING APPROXIMATELY 5 FEET WESTERLY FROM A POINT ON THE WEST LINE OF SAID LOT 4, AS MEASURED AT RIGHT ANGLES, SAID POINT BEING A DISTANCE OF 25 FEET NORTHERLY THEREON FROM THE SOUTHWEST CORNER OF SAID LOT 4. 2009-362 rr.~ t ~ R~ i 7 r . w /, ~: t ~~~ e,..~ ATTACHMENT " 3" DEPICTION OF ENCROACHMENT AREA BNSF GROUNDWATER MONITORING WELL ~ .,-€ i ~/. f ~";`~ :Approximate location of proposed monitoring well j (diameter of circular construction area is 3' ±] ', ~.,. F (} /t `° _` Modified Assessor's Map Book 0138, Page 31 San Bernardino County '' ~j S` 1 APN D138-311-12-0000 r, ~ _ ~' ,~ 2~, ± _.. Location of Proposed Monitoring V11ell 1~Ualker Place San Bernardino, California