HomeMy WebLinkAbout25-Development Services
ORlGlNAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Dept: Development Services
Subject: Public hearing, 4:00 p.m., and
Resolution creating Underground Utility
District No. 35 along portions of"H"
Street, between Kendall Drive and 40th
Street and along portions of Kendall Drive,
southeasterly of "H" Street.
Date: April 13, 2009
File No.: 8.09-35
Synopsis of Previous Council Action:
MCC Date: May 4, 2009
04-06-2009 - Authorization to Proceed was given and Resolution No. 2009-96 was adopted
setting a public hearing relative to the formation of Underground Utility District No. 35,
generally located along portions of "H" Street, between Kendall Drive and 40th Street and along
portions of Kendall Drive, southeasterly of "H" Street.
Recommended Motion:
I. That the public hearing relative to the formation of Underground Utility District No. 35,
generally located along portions "H" Street, between Kendall Drive and 40th Street and
along portions of Kendall Drive, southeasterly of"H" Street, be closed.; AND
2. Adopt Resolution.
~C:mr
Valerie C. Ross
Contact person: LASZLO "Les" FOGASSY
Phone: 5026
Supporting data attached: Staff Report, Maps, Reso. Ward: 4
FUNDING REQUIREMENTS: Amount:
None
Source: (Acct. No.)
(Acct. Description)
Council Notes:
A~/)
Finance:
2009-//-<1
Agenda Item No.
15"
~ ..I.f "0"
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Public hearing, 4:00 p.m., and Resolution creating Underground Utility District No. 35 along
portions of "H" Street, between Kendall Drive and 40th Street and along portions of Kendall
Drive, southeasterly of"H" Street.
BACKGROUND:
On March 5, 2009, the Underground Utility Coordination Committee recommended the approval
of a proposed underground utility district along portions of "H" Street, between Kendall Drive
and 40th Street and portions of Kendall Drive, southeasterly of "H" Street. This project is being
proposed to coincide with the proposed widening of this portion of "H" Street. The widening
project is proposed to be included in the 2009/2010 Five year Capital Improvement Program and
will require the relocation of utility poles, or the undergrounding of all overhead utilities to allow
the utility poles to be removed to facilitate the widening project. It was also recommended by the
committee to expand the proposed district to include the pole line along the northerly side of
Kendall Drive. All costs related to the undergrounding of utilities and appurtenant work will be
funded through Rule 20A funds for Southern California Edison's (SCE) portion of the work, and
by the respective utility companies that also have facilities on the poles, specifically Charter
Cable and Verizon. There will be no cost to the City or any affected property owners.
San Bernardino City Municipal Code 13.36 provides for the formation of Underground Utility
Districts, for the removal of overhead utilities, such as power, telephone and cable TV. The
funding for the electrical portion of the undergrounding of these utilities is typically funded by
Rule 20A Funds. These funds, which are mandated by the PUC (Public Utilities Commission),
are set aside by the various power companies for the purpose of undergrounding, and are then
allocated annually for use by various Cities and Counties within a power company's service area.
Other utilities, such as telephone and cable TV, are not governed by the PUC and therefore have
to provide their own funding. Any conversion costs required on private property within a district
are paid for by either Rule 20A funds, or the various utility companies.
Approximately $500,000 to $700,000 a year is allocated to the City to fund Rule 20A projects.
This is based on a formula of a ratio of existing overhead utilities to underground facilities, but
may be capped due to the availability of funds as a result of budgetary constraints by SCE. The
City's 2009 allocation was $532,624.
Although the City's recent and pending projects have used up most of the allocations that were
available, Rule 20A allows a City to mortgage future projects for up to four years of estimated
allocations. This project will be funded through mortgaged allocations and will not displace any
projects currently planned. The total estimated cost for this project is $1,800,000. There is one
other active existing project, which is 13th Street, between Arrowhead Avenue and Mt. View
Avenue. The 13th Street project, as well as this proposed projected, are scheduled to be
2
completed in 2013. The estimated amount of allocations available after completion of both
projects, including the mortgaging of future allocations, is $1,556,992.
On April 6, 2009, authorization was given to proceed with the formation of the proposed district
and Resolution No. 2009-96 was adopted setting a public hearing for May 4,2009. All affected
property owners and utility companies were given mailed notice of the hearing. At the close of
the hearing, the Resolution creating the district may be considered. If approved, affected property
owners and utility companies will be given notice ofthe creation of the district.
FINANCIAL IMPACT:
City's future allocation of Rule 20A funds will be diminished by approximately $1,800,000.
RECOMMENDATION:
Staff recommends that public hearing be closed and the attached resolution be adopted.
Attachments:
. Vicinity Map
. Boundary Map
. Resolution
3
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LOCATION OF
PROPOSED UNDERGROUND
UTlLlTlY DISTRICT NO. 35
o
VICINITY MAP
CITY OF SAN BERNARDINO
DEVELOPMENT SERVICES DEPARTMENT
REAL PROPERTY SECTION
Proposed Underground Utility District No.
35 - Portions of H Street, between
Kendall Drive and 40th Street and
portions of Kendall Drive, southeasterly
of H Street.
Created by: L05Z/0 F oqo55Y Date: 050209
~ indicates un-incorporated areas
~ within City's Sphere of Influence
1
RESOLUTION NO.
CC~fV
2 RESOLUTION OF THE CITY OF SAN BERNARDINO CREATING UNDERGROUl\D
3 UTILITY DISTRICT NO. 35 GENERALLY LOCATED ALONG PORTIONS OF "W
STREET, BETWEEN KENDALL DRIVE AND 40TII STREET AND ALONG PORTIONS
4 OF KENDALL DRIVE, SOUTHEASTERLY OF "H" STREET, IN THE CITY OF SAl\
BERNARDINO.
5
6
WHEREAS. a public hearing was held on May 4. 2009. at the hour of 4:00 p.m.. at
7 the Council Chambers. 300 North "D" Street. San Bernardino. California. to deternline
8 whether the public necessity. health. safety or welfare required the formation of Underground
9 Utility District No. 35. generally located along portions of "H" Street between Kendall Drive
10 and 40th Street and along portions of Kendall Drive. southeasterly of '"H"" Street. in the City of
11
San Bernardino. California; and
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
WHEREAS. notice of such hearing has been given to all affected property owners as
shown on the last equalized assessment roll and to all utilities concerned in the manner and for
the time required by law; and
WHEREAS. such hearing has been duly and regularly held and all persons interested
have been given an opportunity to be heard.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO, AS FOLLOWS:
SECTION 1. It is hereby found and determined pursuant to Chapter 13.36 of the San
Bernardino Municipal Code. that the public necessity. health. safety and welfare require the
formation of Underground Utility District No. 35. generally located along portions of"H" Street
between Kendall Drive and 40th Street and along portions of Kendall Drive. southeasterly of "H"
Street. in the City of San Bernardino. California. public streets which are extensively used bv
the general public and carry a heavy volume of vehicular traffic. in order to remove utility
27 poles. overhead wires and associated structures and to underground utilities along said
28 streets.
04/27/09
RESOLt:TlON OF THE CITY OF SAN BERNARDI:';O CREATING t:NDERGROl'i'W LTlLln
1 DISTRICT NO. 35 GENERALLY LOCATED ALONG PORTIONS OF "W STREET. BETWEE"
KENDALL DRIVE AND 40'" STREET AND ALONG PORTIONS OF KENDALL llRIVE.
2 SOt:THEASTERL Y OF "W STREET. IN THE CITY OF SAN BER:';ARDI:';O.
3
SECTION 2. An underground utility district to be known as Underground L'tility
4
District No. 35 is hereby established in that area generally located along portions of"H" Street
5
6 between Kendall Drive and 40th Street and along portions of Kendall Drive. southeasterly of "H"
7 Street. more particularly shown on Drawing No. 12616 by the Engineering Division.
8 Department of Development Services. City of San Bernardino. on file in the office of the City
9 Clerk. a copy of which is attached hereto as Exhibit "A" and made a part of this Resolution.
10
SECTION 3. All poles. overhead wires and associated overhead structures lying
11
12
13
within 80 feet east and west of the centerline of said "H" Street. between the centerlines of said
Kendall Drive and 40th Street. and lying within 50 feet northerly of the centerline of said Kendall
14 Drive. shall be removed and underground installations made in said underground utility
15 district within the following times:
16 a. Underground installation by utility companies and reconnections not later than
17
18
19
20
21
22
23
24
25
26
27
28
June 30. 2013.
b. Removal of poles. overhead wIres and other associated structures not later
than September 30.2013.
Said dates. however. may be extended by the City Engineer to facilitate coordination with
the various property owners and utility companies.
SECTION 4. The City Clerk is hereby directed to mail. or cause to be mailed. a
copy of this Resolution and a copy of Chapter 13.36 of the San Bernardino Municipal Code. to
all affected property owners as shown on the last equalized assessment roll and to all affected
utilities within ten (10) days after the adoption of this Resolution.
04/27/09
2
RESOLUTION OF THE CITY OF SAN BERNARDINO CREATING UNDERGROUND l'TlLlTY
1 DISTRICT NO. 35 GENERALLY LOCATED ALONG PORTIONS OF "H" STREET. BETWEEN
KENDALL DRIVE AND 40TII STREET AND ALONG PORTIONS OF KENDALL DRIVE.
2 SOUTHEASTERLY OF ,oW STREET, IN THE CITY OF SAN BERNARDINO.
3
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
4
Common Council of the City of San Bernardino at a
5
6
meeting thereof
. 20 by the following vote. to wit:
held on the
day of
7
Council Members: AYES NAYS ABSTAIN ABSENT
8
ESTRADA
9
10 BAXTER
11 BRINKER
12 SHORETT
13 KELLEY
14
JOHNSON
15
MCCAMMACK
16
17
18
19
20
21
22
23
24
25
26
27
28
City Clerk
.20
day of
The foregoing resolution is hereby approved this
PATRICK J. MORRIS. Mayor
City of San Bernardino
Ap roved as to form:
~
NMAN. City Attorney
04/27/09
,
~
CITY OF SAN BERc"lARDINO
UNDERGROUND UTILITY DISTRICT NO. 35
--=- -,-- C/L- 40th-r~~- STREE; - - _:: _ _ _ _ _ _ _ _ _ __
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, CITY OF S.\\ BER\.\RDI\O :
i OFn:UW\W\T SFRvrCES I
i RE.\L PROPERTY SECnO\
UNDERGROUND UTILITY DISTRICT NO.35 . PORTIONS OF H
STREET. BETWEEN KENDALL DRIVE AND 40TH STREET AND
PORTIONS OF KENDALL DRIVE, SOUTHEASTERLY OF H STREET
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Date: March 16,2009
Subject: Authorization to Proceed -
Underground Utility District No. 35 -
Portions of"H" Street between Kendall
Drive and 40th Street and portions of
Kendall Drive, southeasterly of "H" Street,
and Resolution Setting a Public Hearing for
May 4,2009, at 4:00 P.M.
From: Valerie C. Ross, Director
Dept: Development Services
File No.: 8.09-35
Synopsis of Previous Council Action:
MCC Date: April 6, 2009
NONE
Recommended Motion:
I. That the Director of Development Services and the City Clerk be authorized to proceed
with the formation of Underground Utility District No. 35 for portions of"H" Street,
between Kendall Drive and 40th Street and portions of Kendall Drive, southeasterly of
"H" Street, pursuant to San Bernardino Municipal Code Section 13.36.
2. Adopt Resolution.
~iI. 7?#v
Valerie C. Ross
Contact person: LASZLO "Les" FOGASSY
Phone: 5026
Supporting data attached: Staff Report, Maps, Reso. Ward: 4
FUNDING REQUIREMENTS: Amount:
None
Source: (Ace!. No.)
(Ace!. Description)
Finance:
Council Notes:
S?/VA-;.--~
~/, /o{ -#/7
I }
Agenda Item No.
:;LS"
e.:; - if - oC[
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Authorization to Proceed - Underground Utility District No. 35 - Portions of"H" Street, between
Kendall Drive and 40th Street and portions of Kendall Drive, southeasterly of "H" Street, and
Resolution Setting a Public Hearing for May 4,2009, at 4:00 P.M.
BACKGROUND:
On March 5, 2009, the Underground Utility Coordination Committee recommended the approval
of a proposed underground utility district along portions of "H" Street, between Kendall Drive
and 40th Street and portions of Kendall Drive, southeasterly of "H" Street. This project is being
proposed to coincide with the proposed widening of this portion of "H" Street. The widening
project is proposed to be included in the 2009/20 I 0 Five year Capital Improvement Program and
will require the relocation of utility poles, or the undergrounding of all overhead utilities to allow
the utility poles to be removed to facilitate the widening project. It was also recommended by the
committee to expand the proposed district to include the pole line along the northerly side of
Kendall Drive. All costs related to the undergrounding of utilities and appurtenant work will be
funded through Rule 20A funds for Southern California Edison's portion of the work, and by the
respective utility companies that also have facilities on the poles, specifically Charter Cable and
Verizon. There will be no cost to the City or any affected property owners.
San Bernardino City Municipal Code 13.36 provides for the formation of Underground Utility
Districts, for the removal of overhead utilities, such as power, telephone and cable TV. The
funding for the electrical portion of the undergrounding of these utilities is typically funded by
Rule 20A Funds. These funds, which are mandated by the PUC (Public Utilities Commission),
are set aside by the various power companies for the purpose of undergrounding, and are then
allocated annually for use by various Cities and Counties within a power company's service area.
Other utilities, such as telephone and cable TV, are not governed by the PUC and therefore have
to provide their own funding. Any conversion costs required on private property within a district
are paid for by either Rule 20A funds, or the various utility companies.
Approximately $500,000 to $700,000 a year is allocated to the City to fund Rule 20A projects.
This is based on a formula of a ratio of existing overhead utilities to underground facilities, but
may be capped due to the availability of funds as a result of budgetary constraints by SCE. The
City's 2009 allocation was $532,624.
Although the City's recent and pending projects have used up most of the allocations that were
available, Rule 20A allows a City to mortgage future projects for up to four years of estimated
allocations. This project will be funded through mortgaged allocations and will not displace any
projects currently planned. The total estimated cost for this project is $1,800,000. A summary of
the current Rule 20A balance and future allocations available to the City is shown below. Since
future allocations are unknown, the projection was based on the current year's allocation.
Encumbrances are shown for an existing project (13th Street) and this proposed project, both of
which are scheduled to be completed by or around 2013.
2
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Staff Report (Continued)
Allocation!
Usage Balance
Current balance (includes 2009 allocation)
2010 allocation
2011 allocation
2012 allocation
2013 allocation
$ 532,624
$ 532,624
$ 532,624
$ 532,624
$ 96,000
$ 628,624
$1,161,248
$1,693,872
$2,226,496
Encumbrances covering the above period
including previously approved projects and
this proposed project:
13th Street (phase I - Arrowhead to Mt. View)
($1,000,000) $1,226,496
($1,800,000) ($ 573,504)
H Street project (proposed)
This remaining negative balance at the end of2013 represents a little over I year of mortgaging.
However, with 4 years of mortgaging allowed, there would be an estimated amount of
$1,556,992 available for new projects. This estimate is based on the current year's allocation,
which could increase, or be reduced, from year to year.
If authorization to proceed is given, approval of the attached resolution will set a public hearing
for May 4, 2009. All affected utilities will be given mailed notice of the hearing. Although
property owners will not bear any costs, affected owners will also be given mailed notice of the
proposed district.
FINANCIAL IMP ACT:
City's future allocation of Rule 20A funds will be diminished by approximately $1,800,000.
RECOMMENDATION:
Staff recommends that authorization to proceed with Underground Utility District No. 35 be
given and that the attached resolution setting a public hearing be adopted.
Attachments:
. Vicinity Map
. Boundary Map
. Resolution
Ref'Iacew1e"f fcure
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LOCA TION OF
PROPOSED UNDERGROUND
UTlUTlY DISTRICT NO. 35
o
VICINITY MAP
CITY OF SAN BERNARDINO
DEVELOPMENT SERVICES DEPARTMENT
REAL PROPERTY SECTION
Proposed Underground Utility District No.
35 - Portions of H Street, between
Kendall Drive and 40th Street and
portions of Kendall Drive, southeasterly
of H Street.
~ indicates un-incorporated areas
~ within City"s Sphere of Influence
Created by: Lo~>Zio F oqo::'/::'/y Date: 0>02-(:17
CITY OF SAN BERNARDINO
UNDERGROUND UTILITY DISTRICT NO. 35
- -,-- C/L-40th-----r-;,~- STREET - - - - - - - - - - - - - --
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DISTRICT BOUNDARY SHOWN THUS: - - - --
ASSESSOR'S PARCEL NUMBERS SHOWN THUS: ~
Pre~redby
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Date~_-z#t;"
DRAWING NO.12616
SHEET -..:L OF .1
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C~c.edby: :::
RevLaedby
".
CITY OF SAN BERNARDINO
DEVELOPMENT SERVICES
REAL PROPERTY SECTION
UNDERGROUND UTILITY DISTRICT NO.35 - PORTIONS OF H
STREET, BETWEEN KENDALL DRIVE AND 40TH STREET AND
PORTIONS OF KENDALL DRIVE, SOUTHEASTERLY OF H STREET
1
RESOLUTION NO.
2 RESOLl'TIO:\' OF THE CITY OF SAN BERNARDINO SETTING A PlBLlC
3 HEARING FOR MAY .t, 2009, AT .t:00 P."'I. RELATIVE TO THE FORMATION OF
U:\'DERGROUND UTILITY DISTRICT NO. 35, GENERALLY LOCATED ALO:\(;
4 PORTIONS OF "H" STREET, BETWEEN KENDALL DRIVE AND .tOIH STREET AND
PORTIONS OF KENDALL DRIVE, SOUTHEASTERLY OF "H" STREET.
5
6
7 Bernardino provides for the establishment of an underground utility district within said City upon
WHEREAS. Chapter 13.36 of the San Bernardino Municipal Code of the City of San
8 a Ilnding by the 1\layor and Common Council after a public hearing that the public necessity.
9 health. safety or \\e1fare requires the underground installation of utilities within said district: and
10
11
WHEREAS, the Underground Utility Coordination Committee of said City has
recommended the fiJrmatiOl1' of an underground utility district to include the real property
12
13 described in this resolution.
14 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
15
16 SECTION 1. Notice is hereby given that a public hearing will be held before the Mayor
17 and Common Council of the City of San Bernardino on May 4. ~009. at the hour of 4:00 p.m.. in
18 the Council Chambers. City Hall. 300 North "D" Street. San Bernardino. California. to determine
19
whether the public necessity. health. safety or welfare requires the !i)l'mation of Underground
20
Utility District No. 35. generally located along portions of "I-I" Street. between Kendall Drive
21
22 and ..lOth Street and portions of Kendall Dri\e.. southeasterly of "1[" Street. more particularly
23 sho\\n on Driming No. 1~616. on file in the oniee of the City Clerk. a rcduccd copy ofwhieh
24 is attachcd heretu as Exhibit "X' and made a part of this description.
25
26
27
28
SECTION 2. The City Clerk is hercby directed to notifY. or cause to be notified. all
afkcted propcrty owners as shuwn on the last equalized assessment roll and all affected utility
03l16/~009
4 - {rO '1
oUt"
~ f
RESOLL'TION OF TIlE CITY OF SAN BERNARDINO SETTING A PUBLIC HEARING FOR MAY -I.
2009. AT -1:00 P.~1. RELATIVE TO THE FORMATION OF UNDERGROLND UTILITY DISTRICT :\0.
1 35. GENERALLY LOCATED ALONG PORTIONS OF "H" STREET. BETWEEi'> KENDALL DRIVE A.'I1l
-10'11 STREET AND PORTIONS OF KENDALL DRIVE. SOUTHEASTERLY OF "H" STREET.
2
3 companies by mailing a copy of this resolution to them at least ten (10) days prior to the date 01
4
5
6
said hearing.
I I IEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a
meeting thereof
8 held on the
9
10 Council "-!embers:
11 ESTRADA
12 BAXTER
13 BRINKER
14
SHORETT
15
KELLEY
16
17 JOHNSON
18 MCCAMMACK
day of
.20
. by the follmving vote. to it:
ABSENT
ABSTAIN
NAYS
AYES
19
20
21
22
23
24
25
26
27
28
City Clerk
.20_
day of
The foregoing resolution is hereby approved this
PA TRICK J. MORRIS. Mayor
City of San Bernardino
Approved as to form
liES F PFNl'vlAN
03il82009
2
CITY OF SAN BERNARDINO
UNDERGROUND UTILITY DISTRICT NO. 35
- - -,-CIL-40Ih-r"'TI- STREET- - - - - - - - - - - - - --
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DRAWING NO.12616
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EXHIBIT "j #- /1
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LEGEND:
DISTRICT BOUNDARY SHOWN lHUS, - - - - -
ASSESSOR'S PARCEL NUMBERS SHOWN THUS: ~
Checked by:
".
Revlsedby:
Dale-
SHEET ..L OF .1
CITY OF SAN BERNARDINO
DEVELOPMENT SERVICES
REAL PROPERTY SECTION
UNDERGROUND UTILITY DISTRICT NC
STREET, BETWEEN KENDALL DRIVE A
PORTIONS OF KENDALL DRIVE, SOUTI
EXHIBIT "A"
Law Department Approved
09-37471
LICENSE
THIS LICENSE ("License"), made as of the _ day of , 2009 ("Effective
Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and
CITY OF SAN BERNARDINO, a city municipality ("Licensee'l
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, any leases, licenses,
easements, liens or other encumbrances, and upon the terms and conditions 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 6, 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 7600, Mile 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 lessees,
licensees, easement 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. licensee shall not use the Premises for any other purpose
whatsoever. Licensee shall not use or store hazardous substances, as defined by the
Comprehensive 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 title 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 licensee 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.
COMPENSA rlON
7.
(a)
Licensor will waive lhe fees for this license.
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Form 423; Rev. 04/26105
Law Department Approved
09-37471
(b) licensee agrees to reimburse licensor (within thirty (30) days after receipt of
bills therefor) for all costs and expenses incurred by licensor in connection with
licensee's use of the Premises, including but not limited to the furnishing of
licensor's Flagman and any vehicle rental costs incurred. The cost of flagger
services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the licensee. The estimated cost 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 estimated cost for each
f1agger includes vacation allowance, paid holidays, Railway and unemployment
insurance, public liability and property damage insurance, health and welfare
benefits, transportation, meals, lodging and supervision. 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.
(c) All invoices are due thirty (30) days after the date of invoice. In the event that
licensee shall fail to pay any monies due to licensor within thirty (30) days after
the invoice date, then licensee shall pay interest on such unpaid 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 Wall Street Journal in the preceding December
plus two and one-half percent (2 1/2%), 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 1/2%), or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS
8.
(a)
licensee shall observe and comply with any and all laws, 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 10 entering lhe Premises, licensee shall and shall cause its contractor to
comply with all licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, licensee shall complete and shall
require its contractor to complete the safety-training program at the following
Internet Website "http://contractororientation.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 limited to, actual labor and material costs including all assignable additives, and
malerial and supply costs at current value where used.
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Form 423; Rev. 04/26105
Law Departmenl 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 facilities or structures
of like character upon, over, under or across the Premises:
(b) to construct, maintain, renew, use, operate, change, modify and relocate any
tracks or additional facilities or structures upon, over, under or across the
Premises; or
(c) to use the Premises in any manner as the Licensor In its sole discretion deems
appropriate, provided Licensor uses all commercially 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)
12.
Licensee shall notify Licensor's Roadmaster at 740 Camegie 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 (if
applicable). After completion 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 shall use only public
roadways to cross from one side of Licensor's tracks to the other.
(a)
Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment andtor
machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the
Premises unless Licensee has obtained prior written approval from Licensor.
Licensee shall, at its sole cost and expense, perform all activities 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's
use of the Premises is safe. Neither the exercise nor the failure by Licensor to
exercise any rights granted in this Section will alter the liability allocation
provided by this License.
-.3-
Form 423; Rev. 04126/D5
Law Department Approved
()9..37~71
(b) Licensee shall, at its sole cost 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 Mt. Vernon Bridge In such a
manner and of such material that It will not at any time be a source of danger to
or interference with the present or future tracks, roadbed and property of
Licensor, or the safe operation of its railroad. If at any time Licensee shall, In the
judgment of Licensor, fail to perform properly its obligations under this
paragraph, Licensor may, at its option, itself perform such work as it deems
necessary for the safe operation of its railroad, and in such event Licensee
agrees to pay, within fifteen (15) days after bill shall have been rendered
therefor, the cost so incurred by Licensor, but failure on the part of Licensor to
perform the obligations of Licensee shall not release Licensee from liability
hereunder for loss or damage occasioned thereby.
13. During the construction and any subsequent maintenance performed on the temporary
shoring and support structures on the BNSF property for the Mt. Vernon Bridge,
Licensee shall perform such work in a manner to preclude damage to the property of
Licensor, and preclude interference with the operation of its railroad. The construction
of the temporary shoring and support structures on the BNSF property for the MI.
Vernon Bridge shall be completed within one (1) year of the Effective Date. Upon
completion of the construction of the temporary shoring and support structures on the
BNSF property for the MI. Vernon Bridge and after performing any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore
Licensor's premises to their former state as of the Effective Date of this License.
14. If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the temporary shoring and support structures on the BNSF property for the Mt.
Vernon Bridge, Licensee shall, 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 MI. Vernon Bridge as 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 existing or the
construction of a new temporary shoring and support structures on the BNSF property
for the Mt. 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 determine whether pipelines or other structures exist below the
surface, provided, however, that in lieu of the foregoing, the Licensee shall have
the right to use suitable detection equipment or other generally accepted industry
practice @.g", consulling with the Underground Services Association) to
determine the existence or location of pipelines and other subsurface structures
prior to drilling or excavating with mechanized equipmenl. 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 Licensee any
information that Licensor's Engineering Department has in its possession
concerning the existence and approximate location of Licensor's underground
-~.
Form 423; Rev. 04/26105
Law Department Approved
09-37471
utilities and pipelines on the Premises. Prior to conducting any such boring work,
the Licensee will review all such material. Licensor does not warrant the
accuracy or completeness of information relating to subsurface conditions and
Licensee's operations will be subject at all times to the liability provisions herein.
(b) For all bores greater than 26-inch diameter, and at a depth less than 10.0 feet
below bottom of rail, a soil 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 subsidence during the
installation procest. 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 Licensee to fumish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.
16. Any open hole, boring or well constructed upon Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings
constructed on the Premises by Licensee shall be:
(a) filled in to surrounding ground level with compacted bentonite grout; or
(b) otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on the Premises for more
than ten (10) days, but must be properly disposed 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 shall, 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. Vernon Bridge at the Licensor's sole discrelion;
(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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Form 423; Rev. 04/26105
Law Department Approved
LIABILITY
09-37471
19. (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, FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS,
CAUSES 'JF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, 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,
(ill) 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, INVITEES, 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 19(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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Form423;Rev.04n~
law Department Approved
09-37471
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
eVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL
CONDITION OF THE PREMISES.
(c) 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 INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF
ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY
INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS'
LIABILITY ACT (nFELAn) WHENEVER EMPLOYEES OF LICENSEE OR ANY
OF ITS AGENTS, INVITEES, 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.
(c) Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit or other proceeding brought against any Indemnitee by any enlily,
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 shall pay all costs incident to such defense. including, but not limited to,
attorneys' fees, investigators' fees, litigation and 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. 04/26105
Law Depar1menl Approved
09-37471
INSURANCE
~1. Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreementlhe 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 $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
. 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 employee and workers compensation related exclusions in the above
policy shall not apply with respect to claims related to railroad employees.
. 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.
. Any exclusions related to the explosion, collapse and underground hazards
shall be removed.
No other endorsements limiting coverage may be included on the policy.
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
C. Workers Compensation and Employers Liability Insurance. This insurance
shall inclUde coverage for, but not limited to:
. Licensee'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.
D. Railroad Protective Liability Insurance. If further maintenance of the temporary
shoring and support structures on the BNSF property for the Mt. Vernon Bridge
is needed at a later date, an additional Railroad Protective Liability Insurance
Policy shall be required. The policy shall be issued on a standard ISO form CG
00351093 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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Form 423; Rev. 04/26105
Law Department Approved
09-37471
· 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 this 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 shall reflect that no
exclusion exists.
Licensee agrees to waive Its right of recovery against Licensor for all claims and suits
against Licensor. In addition, Its insurers, through 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.
Licensee's insurance policies through policy endorsement, must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of Interest endorsement and Shall 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 self-insure without the prior written consent of licensor. If
granted by licensor, any deductible, self-insured retention or other financial
responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any
and all licensor liabilities that would otherwise, in accordance with the provisions of this
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
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments. The poIicy(ies)
shall 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, substitution or material alteration. This cancellation provision shall be indicated
on the certificate 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.
.9.
Form 423; Rev. 04126105
law Department Approved
09-37471
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor 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 selVice 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 Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor 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 Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth
herein, naming Licensor as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemnify Licensor herein.
Failure to provide evidence as required by this section shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does not
comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability 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 shall mean "Burlington Northern Santa Fe
Corporation', "BNSF Railway Company' and the subsidiaries, successors, assigns and
affiliates of each.
ENVIRONMENTAL
22.
(a)
Licensee shall 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 ConselVation and Recovery Act, as amended (ReRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). 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 oil or hazardous substances, as defined
by Environmental Laws on or about the Premises.
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Form 423; Rev. 04126105
Law Department Approved
09-37471
(b) Licensee shall give LicensOf' immediate notice to Licensor'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 Licensee's use of the Premises. Licensee shall use the best efforts
10 promptly respond to any release on or from the Premises. Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or
violation.
(cl In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the temporary
shoring and support structures on the BNSF property for the Mt. Vernon Bridge
which occurred or may occur during the. term of this License, Licensor may
require Licensee, at Licensee's sole risk and expense, to take timely measures
to investigate, remedlate, respond to or otherwise cure such release or violation
affecting the Premises or Licensor's right-of-way.
(d) Licensee shall promptly report to LicensOf' in writing any conditions or activities
upon the Premises known to Licensee 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 activilies;
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever Imposed on it by this License. Licensee
shall promptly respond to Licensor's request for information regarding said
conditions or activities.
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 the Premises without
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.
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Form 423; Rev. 04/26105
Law Depar1menl Approved
09-37"71
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 shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment 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 waiver by Licensor of any default or defaults shall not
constitute a waiver of the right to terminate this License for any subsequent default or
defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any
Section of this License. The remedy set forth in this Section 26 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have at law or in equity.
LIENS
27. Licensee 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 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 to 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 liability under this
Section 27 or any other Section of this License.
TERMINATION
26. 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 Termination Letter 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 until
the Premises are surrendered. Termination shall not release Licensee from any liability
or obligation, whether of indemnity or otherwise, 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, shall 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 soie discretion.
-12-
Form 423; Rev. 04126105
Law Department Approved
09-37471
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 Slates mall, certified, return receipt requested, or (Ii)
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 wrillen notice of such change in address.
If to Licensor:
Staubach Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131
Alln: Licenses/Permits
with a copy to:
BNSF Railway Company
2500 Lou Menk Dr. - AOB3
Fort Worth, TX 76131
Alln: Senior Manager Real Estate
City of San Bernardino
300 North "0" Street
San Bernardino, CA 92418-0001
If to Licensee:
SURVIVAL
32. Neither termination nor expiration will release either party from any liability or obligation
under this License, 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 when the Premises are restored to its condition as of the Effective Date.
RECORDATION
33. It is understood and agreed that this License shall not be placed on publiC record.
APPLICABLE LAW
34. All questions concerning the interpretation or application of provisions of this License
shall be decided according to the laws of the State of Texas.
SEVERABILITY
35. To the maximum extent possible, each provision of this License shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
License shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such prOVision Or any other provision of this License.
-13-
Form 423; Rev. 04126105
law Department Appmved
09-37471
INTEGRATION
36. This License is the full and complete agreement between Licensor and Licensee with
respect to all mailers relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Premises as described herein. However, nothing herein is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior wrillen agreement between the parties.
MISCELLANEOUS
37. In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements 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 Global Services - RR, Inc. is acting as representative for BNSF Railway
Company.
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties
hereto as of the day and year first above wrillen.
BNSF RAILWAY COMPANY
Staubach Global Services - RR, Inc.,
its Attorney in Fact
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131
By:
Ed Darter,
Title: Vice President - National Accounts
CITY OF SAN BERNARDINO
300 North "0" Street
San Bernardino, CA 92418-0001
By:
Tille:
-14-
Form 423; Rev. 04126105
TRACKING NO.09-37471
EXH I BIT II A II
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY OF SAN BERNARDINO
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L.S. 7600
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A PARCEL OF LAND FOR TEMPORARY OCCUPANCY
CONT AlNING A TOTAL OF 53.912 SO. FT.
(1.237 A.C.l MORE OR LESS SHOWN SHAOEO
TO MAlNT AlN TEMPORARY SHORING SUPPORTS.
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AT SAN BERNARDINO
COUNTY OF SAN BERNARD I NO
STATE OF CA
AFV
DRAWING NO. 1-45557