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HomeMy WebLinkAbout27- Development Services ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Date: May 28, 2009 Subject: Resolution approving the execution of Pipeline License agreements with the BNSF Railway Company, relative to proposed sewer relocation work at Spruce Street, and at 10th Street relative to the 1-215 widening. From: Valerie C. Ross, Director Dept: Development Services File No.: 15.03-111 Synopsis of Previous Council Action: MCC Date: June 1,2009 09-02-2008 - Resolution No. 2008-357 was adopted, approving the Fiscal Year 2008/2009 through 2012/2013 Capital Improvement Program. 03-16-2009 - Resolution No. 2009-51 was adopted, approving various Utility Agreements with the State of California, Department of Transportation for relocation of City sewer facilities due to the widening of the 1-215 and 1-210 Freeways. 05-04-2009 - Item was continued to the meeting of 5/18/2009. 05-18-2009 - Item was continued to the meeting of 6/1/2009. Recommended Motion: Adopt Resolution. ~(/.R~ Valerie C. Ross Contact person: LASZLO "Les" FOGASSY Phone: 5026 Supporting data attached: Staff Report, Maps, Reso. Ward: 1 FUNDING REQUIREMENTS: Amount: $7,850.00 (to be reimbursed by Caltrans) Source: (Acct. No.) 242-362-5504-7848 (Acct. Description) CIP Project SW-09-03 12-0 Finance: CO~I Notes: ~VlIf2I5i...j -# /1- . 1 2cJo9- /.:1 9 S/i/Oq~ N,~3 , I 5/10''>9 Agenda Item No. ~1 (p- f- 01 RrYLAc;t;/v1Wj PMtS CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution approving the execution of Pipeline License agreements with the BNSF Railway Company, relative to proposed sewer relocation work at Spruce Street, and at 10th Street relative to the 1-215 widening. BACKGROUND: To facilitate the widening of the 1-215 Freeway, the City sewers located at Spruce Street and at 10th Street, both within BNSF right of way will need to be relocated. This project is included in the City's Capital Improvement Program (CIP Project SW-09-03). On March 16, 2009, various Utility Agreements with Caltrans were approved, including the two areas under this action, which provides for reimbursement to the City by Caltrans for utility relocation costs incurred by the City relative to the 1-215 widening. Prior to commencing any work within BNSF right of way, the City will need to execute Pipeline License agreements for the two locations. The attached resolution authorizes the execution of license agreements for each of the locations. The project has been bid pursuant to the City's normal process for public works projects. Award of that contract will be scheduled separately. Although BNSF had initially forwarded their standard Pipeline License document, they subsequently modified the language to be applicable to California Law, as requested by the City Attorney's office. Instead of Texas law, as stated in the initial License, BNSF also requires the City to provide general liability insurance, as well as a Railroad Protective Liability Insurance policy. BNSF has accepted the City's self-insured certificate for general liability, and as an alternate to purchasing a separate Railroad Protective Liability Insurance Policy, will allow the City to participate in the railroad's blanket policy, as set forth in Section 21(D) of the License, at a cost of $1 ,000 per permit. All costs associated with this permit, including the $5,000 license fee, $850 processing fee and $2,000 blanket insurance participation fee (total of $7,850) will be reimbursed to the City by Caltrans under the Utility Agreement. FINANCIAL IMPACT: $5,000 license fee ($2,500 per location) plus processing fee of $600 and $250 for the 10th Street and Spruce Street permits, respectively, plus $2,000 ($1,000 per permit) for participation in BNSF's Blanket Insurance Policy, for a total of $7,850, all to be paid from 242-362-5504-7848 (CIP Project SW-09-03) and reimbursed to the City by Caltrans. 2 RECOMMENDED MOTION: Adopt Resolution. Attachments: . Map . Resolution 3 1 RESOLUTION NO. t((J)lPV 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 EXECUTION OF PIPELINE LICENSE AGREEMENTS WITH THE BNSF RAIL WAY COMPANY FOR SEWER RELOCATION WORK TO BE PERFORMED BY THE CITY 4 AT SPRUCE STREET AND AT 10TH STREET, RELATIVE TO THE 1-215 WIDENING. 5 6 7 8 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 9 directed to execute on behalf of the City, Pipeline License agreements with the BNSF Railway 10 Company ("BNSF"), for sewer relocation work to be performed by the City relative to the 1-215 11 Freeway widening, at Spruce Street, and at 1 Oth Street within BNSF right of way, attached hereto 12 as Exhibit "1" and Exhibit "2" respectively, and both made a part hereof. 13 14 if the parties to the agreements fail to execute them within ninety (90) days of the passage of this 15 16 17 18 19 20 SECTION 2. This authorization to execute the above-referenced agreements is rescinded resolution. //1 //1 21 22 23 24 25 26 27 28 1 ;;(1 (pI \ lot OS/28/2009 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF PIPELINE LICENSE AGREEMENTS WITH THE BNSF RAILWAY COMPANY FOR SEWER 1 RELOCATION WORK TO BE PERFORMED BY THE CITY AT SPRUCE STREET AND AT 10TH STREET, RELATIVE TO THE 1-215 WIDENING. 2 3 4 5 Common Council of the City of San Bernardino at a 6 7 8 9 10 11 12 13 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and meeting thereof , 20_, by the following vote, to wit: held on the day of ABSENT Council Members: .AYES ABSTAIN NAYS ESTRADA BAXTER BRINKER SHORETT 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 19 City Clerk The foregoing resolution is hereby approved this 20 21 22 23 24 25 26 27 28 day of ,20 PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to form: T.f~ SF. PENMAN, City Attorney OS/28/2009 2 Tracking #09-37945 PIPELINE LICENSE THIS LICENSE ("License"), made as of the _ day of . 2009 ("Effective Date'1 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, any leases, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maint<lin, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), one (1) Pipeline(s), twenty four (24) inches in diameter inside a thirty six (36) inch steel casing ("PIPELINE"), across or along the rail corridor of Licensor at or near the station of San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 80.68, as shown on the attached Drawing No. 1-46159, dated March 27, 2009, attached hereto as Exhibit UN and made a part hereof ("Premises"). 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 the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying sewage. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paid in advance, or for any damage Licensee sustains in connection therewith. Fonn 424; Rev. 04/26/05 -1 - EXHIBIT ~'1" Tracking #09-37945 5. Any contractors or subcontractors performing work on the PIPELINE 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 for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) licensee shall pay Licensor, prior to the Effective Date, the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500) as compensation for the use of the Premises. (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 or the presence, construction and maintenance of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of f1agger 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) flaggeris $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 flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefJts, 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 construction, maintenance, and use of the PIPELINE and the use of the Premises. Form 424; Rev. 04/26/05 -2 - Tracking #09-37945 (b) Prior to entering the 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://www.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 material and supply costs at current value where used. 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) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Dr., San Bernardino, CA 92401, telephone (909) 386-4060 or cell (928) 237-6860, at least five (5) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (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. 12. (a) Under no conditions shall Licensee be, permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or 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 Form 424; Rev. 04/26/05 -3 - Tracking #09.37945 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. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE 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 existence or use of present or future tracks, roadbed or property of licensor, or the safe operation and activities of. Licensor. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, 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 PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE 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 PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE 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 PIPELlNE(s). Form 424; Rev. 04/26/05 -4 - 15. Tracking #09-37945 (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 ~, consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineer.~ Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. 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 process. 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 furnish 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 on the 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 Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole cost and expense: (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; Form 424; Rev. 04/26/05 -5 - Tracking #09-37945 (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, 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 OF 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, (iii) LICENSEE'S OCCUPA nON 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. Form 424; Rev. 04/26/05 -6 - Tracking #09-37945 (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, NOYV AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, TH)\;r RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TR.(NSPORTER" WITH RESPECT TO THE PIPELINE 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, AND SHALL CAUSE ITS CONTRACTOR TO AGREE, 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 ("FELA") 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. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against 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 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 Form 424; Rev. 04/26/05 -7. Tracking #09-37945 DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. 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 liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate iimit of at least $10,000,000. Coverage must be purchased on a post 1998 ISO oc:urrence 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. This insurance shall name only the Licensor as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EF'FECTIVE DATE. If further maintenance of the PIPELINE 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 00 35 10 93 and include the following: Form 424; Rev. 04/26/05 -8 - Tracking #09-37945 . Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 ' 10 93) . Endorsed to include the Limited Seepage and Pollution Endorsement. . Endorsed to include Evacuation Expense Coverage Endorsement. + No other endorsements restricting coverage may be added. . The original policy must be provided to the Licensor prior to performing any work or services under this Agreement. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $1,000. jI( I elect to participate in Licensor's Blanket Policy; o I elect not to participate in licensor's Blanket Policy. 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 po/icy(ies) required above (excluding Workers Compensation, Contractor's Pollution Legal liability 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. Form 424; Rev. 04/26/05 -9 - Tracking #09-37945 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 policy(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. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a cur~nt Best's Guide .Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(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 Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, Form 424; Rev. 04/26/05 -10 - Tracking #09-37945 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. (b) Licensee shall give Licensor 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 to promptl~' respond to any r:elease 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. (c) In the event that Licensor has notice from Licensee or otherwise of a rel,ease or violation of Environmental Laws arising in any way with respect to the PIPELINE 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, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor 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 activities; 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 to 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. Form 424; Rev, 04/26/05 -11 - Tracking #09-37945 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 writind 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 AND CHARGES 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. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. 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 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 sole discretion. Form 424; Rev. 04/26/05 -12 - Tracking #09-37945 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 mail, 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 written notice of such change in address. If to Licensor. Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 AUn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. - AOB3 Fort Worth, TX 76131 AUn: Manager - Land Revenue Management If to licensee: City of San Bernardino 300 N. 0 Street, 3rd floor San Bernardino, CA 92418 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 PIPELINE and improvements are removed and 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 substantive laws of the State of California without regard to conflicts of law provisions. 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. Form 424; Rev. 04/26/05 -13 - Law Department Approved Tracking #09-37945 INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters 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 written 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 written. BNSF RAILWAY COMPANY Staubach Global Services - RR, Inc., its Attorney in Fact 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 By: Ed Darter Title: Vice President - National Accounts CITY OF SAN BERNARDINO 300 N. 0 Street, 3rd floor San Bernardino, CA 92418 By: Title: Charles E. McNeely, City Manager Form 424; Rev. 04/26/05 -14 - TRACKING NO.09-37945 EXH I BIT II A II ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND CITY OF SAN BERNARDINO en N o en o If) SCALE: 1 IN.=100 FT. CALIFORNIA DIV. CAJON SUBDIV. L.S. 7600 @}'\,"SF"If;' CA-04 02 SECTION: TOWNSHIP: RANGE: l.J... L.l.I 0:: CL <t ::!E .' .----- --'4'~~~-:j 4<':2.:1 t 42:23-1, 3Z DESCRIPTION OF PIPELINE PIPELINE SHOWN BOLD CARRIER CASING CARRIER CASING PIPE PIPE PIPE PIPE SIZE: 24 " 36" LENGTH ON R/W: 55' 55' CONTENTS: SEWER WORKING PRESSURE: GRAVITY PIPE MA TER I AL : PVC STEEL BURY: BASE/RAIL TO TOP OF CASING 11.2' SPECIFICATION / GRADE: SDR-26 GR-B BURY: NATURAL GROUND 10.2 WALL THICKNESS: 0.923" 0.531" BURY: ROADWAY DITCHES 10.2 COA TI NG : SLIP WELD CATHODIC PROTECTION NO VENTS: NUMBER N/ A SIZE HE I GHT OF VENT ABOVE GROUND NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT SAN BERNARDINO COUNTY OFSAN BERNARDINO STATE OFCA JPG DRAWING NO. 1- 46159 Tracking #09-37946 PIPELINE 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"). NOW THEREFORE, in consideration 6f 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, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of. Licensee's application process (the "Drawings and Specifications"), one (1) Pipeline(s), sixteen (16) inches in diameter inside a twenty four (24) inch steel casing ("PIPELINE"), across or along the rail corridor of Licensor at or near the station of San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 80.10, as shown on the attached Drawing No. 1-46158, dated March 27, 2009, attached hereto as Exhibit "A" and made a part hereof ("Premises"). 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 the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying sewage. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paid in advance, or for any damage licensee sustains in connection therewith. Form 424; Rev. 04/26/05 -1 - EXHIBIT "2" Tracking #09-37946 5. Any contractors or subcontractors performing work on the PIPELINE 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 for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefore) for all costs and expenses incurred by licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the PIPELINE, 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 aI/laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the construction, maintenance, and use of the PIPELINE and the use of the Premises. Form 424; Rev. 04/26/05 -2 - Tracking #09-37946 (b) Prior to entering the 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://www.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 material and supply costs at current value where used. 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 OPERA liONS 11. (a) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Dr., San Bernardino, CA 92401, telephone (909) 386-4060 or cell (928) 237-6860, at least five (5) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (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. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or 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 Form 424; Rev. 04/26/05 -3 - Tracking #09-37946 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. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE 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 existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of licensor. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, 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 PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE 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 PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE 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 PIPELlNE(s). Form 424; Rev. 04/26/05 -4 - 15. Tracking #09-37946 (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 ~, consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the PIPELINE, licensor will provide Licensee any information that licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. 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 process. 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 furnish 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 on the 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 Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole cost and expense: (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; Form 424; Rev. 04/26/05 -5 - Tracking #09.37946 (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 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 OF 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. (in) 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. Form 424; Rev. 04/26/05 -6 - Tracking #09.37946 (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 PIPELINE 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. (e) 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 ("FELA") 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. (d) . Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against 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 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. Form 424; Rev. 04/26/05 -7 - Tracking #09-37946 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 liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. 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. This insurance shall name only the Licensor as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE 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 00 35 10 93 and include the following: Form 424; Rev. 04/26/05 -8 - Tracking #09-37946 · Endorsed to include the Pollution Exclusion Amendment (ISO form CG 2831 10 93) . Endorsed to include the Limited Seepage and Pollution Endorsement. . Endorsed to include Evacuation Expense Coverage Endorsement. . No other endorsements restricting coverage may be added. . The original policy must be provided to the Licensor prior to performing any work or services under this Agreement. In lieu of providing a Railroad Protective Liability Policy. Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $1,000. )f I elect to participate in Licensor's Blanket Policy; [J I elect not to participate in Licensor's Blanket Policy. 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, Contractor's Pollution Legal Liability 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. Form 424; Rev. 04/26/05 -9 - Tracking #09-37946 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 policy(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. 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 !3etter, 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)/broker(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 alf 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 Oil Pollution Act, the Hazardous Materials Transportation Act, Form 424; Rev. 04/26/05 -10 - Tracking #09-37946 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. (b) licensee shall give Licensor 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 to 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. (c) 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 PIPELINE 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, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) licensee shall promptly report to Licensor 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 activities; 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 to 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. Form 424; Rev. 04/26/05 -11 - Tracking #09-37946 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 AND CHARGES 27. Licensee shall promptly pay and discharge any and all liens arrslng 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. Licensee shall pay when due any taxes. assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. 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 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 sole discretion. Form 424; Rev. 04/26/05 -12 - Tracking #09-37946 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 mail, 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 written notice of such change in address. If to Licensor: Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suit~ 100 Fort Worth, TX 76131-2800 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. - AOB3 Fort Worth, TX 76131 Attn: Manager - Land Revenue Management If to Licensee: City of San Bernardino 300 North D St., 3rd floor San Bernardino, CA 92418 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 PIPELINE and improvements are removed and 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 substantive laws of the State of California without regard to conflicts of law provisions. 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. Form 424; Rev. 04/26/05 -13 - Law Department Approved Tracking #09-37946 INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters 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 written 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 written. BNSF RAILWAY COMPANY Staubach Global Services - RR, Inc., its Attorney in Fact 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 By: Ed Darter Title: Vice President - National Accounts CITY OF SAN BERNARDINO 300 North D St., 3rd floor San Bernardino. CA 92418 By: Title: Charles E. McNeely, CIty Manager JAM S . PENMAN, City Attorney Form 424; Rev. 04/26/05 -14 - TRACK ING NO. 09-3 7946 EXH I BIT II A II ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND SCALE: 1 IN.=100 FT. CALIFORNIA DIV. CAJON SUBDIV. loS. 7600 DATE 03/27/2009 ,\~SF @j. ~~ SECTION: CA-04 TOWNSHIP: S-02A RANGE: MERIDIAN: 04 01S 04W SSM Q) N o (Tl o If'l lJ.. W a: 0- <( :::! CITY OF SAN BERNARDINO ..........-....-.-..---..----.-.--........ ...........................--..-.---..-til'lr.-.-...- ~.l ,~.. '*' ::r ;~ l- V) :J: . l- S? i ~.,. t::J; ........ "II''''' ... -t. I :--- Z r- I I ~ "011 ~. III ~t ~ .;jj: -lI- PROPERTY LINE ~~ ....-._-_.._..._-_._.._._..__..--...Pcl~----"'1r-_...._.. 011 -: N~4'5 ......~, .' MP 80.10 ~CA-04 _~II' ~il1Ol9 I . 900..- ._ ES 7491'99 ___ _....?_:.Ql.~_'"._._. .. ._....._~_.._----,II......_-~..~ .~". _.......II..jM...If--- -........ --~-_~__...._ TO BARSTOW ..---.......---::-..=...-.....-..--=..::.---..-........ 25::- ---==-=:::-~::::' ....-~-::I ~ _:;;=.._:=~~:::::::-...~ _-:...:=-..::.....==:~:...~.....::.:.:: :..::~~-;.::..O......--=~.:~ct..lze...:;. .Ib": ~~oero~ .~"'_ - ...;:;;::_ ~~::-;.s-~-:;::::::::.:.3~ou-::..::n: ~= - ----:--=f:r. -"' ---------------, __'~1... 'oft' - .J!.l ,If' ~. ~.. ~r . -A r ~ .. J,,,, f..:':"~:~'Jl1I.:r:~__ 1.4, TO SAN BERNARDINO_........jut....."'............ ............. ..-.. '.._ ~..._.....__ ....-...~!tf..tt~..llil.~.'L'IlJ..ll .::::L_.__.______~__.__. ;" l. ~.I..irii3.. ui'iff,-:~lr-...- -.........-...-.- 1U!. e5~ .. -.......----.....--"i:54:r .~l:;i.-...._....--.-.._--'".... Go. n.. .~; ..... .~....___......_..I~_..____.._.._...."'_...... _~~....__.._~~ n3 ~~ :~..__..._....._...~:"...._.._..._........ _..__........___:;_~~~~.~~ INE ~~..;; .i IE\. ,...~"") L 13 1". ti;'Jt .'tI ~ /WI 14 It . .......................--.......-...-..........--::J ...........-.......-.....-....-......................... 11 I~ t~ IlL.._ ...-.--..-............_.........._..._...~5:,.:J. .___........__..........._..___.._,~ .8 DESCRIPTION OF PIPELINE PIPELINE SHOWN BOLD _...__~__r.__.___._...__.__........._ ilS III ij~H~ fI) CARRIER CASING CARRIER CASING PIPE PIPE PIPE PIPE SIZE: 16" 24" LENGTH ON R/IV: 50' 50' CONTENTS: SEWER WORKING PRESSURE: GRAVITY PIPE MATERIAL: PVC STEEL BURY: BASE/RAIL TO TOP OF CASING 7.6' SPECIFICATION 1 GRADE: SDR-26 GR-B BURY: NATURAL GROUND 7 ' WALL THICKNESS~ 0.615" 0.375" BURY: ROADWAY DITCHES 7 ' COA TING: SLIP WELD CATHODIC PROTECTION NO VENTS: NUMBER N/ A SIZE HE I GHT OF VENT ABOVE GROUND NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT SAN BERNARDINO COUNTY OF SAN BERNARDINO STATE OFCA JPG DRAWING NO. 1- 46158 ~ _ ..~_.__"_ ,..' , ........" _ __ __ .._.._._._,,___.^_.._~_.~___' .~___._ _~~.'_.m 6/1/09" Item No. 27 Item Histor~ Backup distributed on 5/4/09, Item No. 14 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Date: April 21, 2009 Subject: Resolution approving the execution of Pipeline License agreements with the BNSF Railway Company, relative to proposed sewer relocation work at Spruce Street, and at 10th Street relative to the 1-215 widening. From: Valerie C. Ross, Director Dept: Development Services File No.: 15.03-111 Synopsis of Previous Council Action: 09-02-2008 - Resolution No. 2008-357 was adopted, approving the Fiscal Year 2008/2009 through 2012/2013 Capital Improvement Program. MCC Date: May 4, 2009 03-16-2009 - Resolution No. 2009-51 was adopted, approving various Utility Agreements with the State of California, Department of Transportation for relocation of City sewer facilities due to the widening of the 1-215 and 1-210 Freeways. Recommended Motion: Adopt Resolution. " /1 i ! 7) {I.. Vi ( ,-.:;:~ Valerie C. Ross Contact person: LASZLO "Les" FOGASSY Phone: 5026 Supporting data attached: Staff Report, Maps, Reso. Ward: 1 FUNDING REQUIREMENTS: Amount: $5,000.00 (to be reimbursed by Caltrans) Source: (Acct. No.) 242-362-5504-7848 (Acct. Description) CIP Project SW-09-03 Finance: Council Notes: fJILt/I'O-U&Uj -# /~ 5/'//1J? fJfP,J/;;rvt~1 '1-# ;;3,' s-/;t'ltJf Agenda Item No. )1 ft III {)q CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution approving the execution of Pipeline License agreements with the BNSF Railway Company, relative to proposed sewer relocation work at Spruce Street, and at 10th Street relative to the 1-215 widening. BACKGROUND: To facilitate the widening of the 1-215 Freeway, the City sewers located at Spruce Street and at 10th Street, both within BNSF right of way will need to be relocated. This project is included in the City's Capital Improvement Program (CIP Project SW-09-03). On March 16,2009, various Utility Agreements with Caltrans were approved, including the two areas under this action, which provides for reimbursement to the City by Caltrans for utility relocation costs incurred by the City relative to the 1-215 widening. Prior to commencing any work within BNSF right of way, the City will need to execute Pipeline License agreements for the two locations. The attached resolution authorizes the execution of license agreements for each of the locations. Upon approval and execution of the permits, the project will be bid pursuant to the City's normal process for bidding and awarding Public Works projects, which will commence shortly after approval of the permits. To meet Caltrans' schedule for the freeway widening project, the sewer work will need to be completed by October 1,2009. FINANCIAL IMP ACT: $5,000 license fee ($2,500 per location) to be paid from 242-362-5504-7848 (CIP Project SW- 09-03) and reimbursed to the City by Caltrans. RECOMMENDED MOTION: Adopt Resolution. Attachments: . Map . Resolution 2 No Scale 5th St. SEWER RELOCA nON WORK TO BE COMPLETED VICINITY MAP CITY OF SAN BERNARDINO DEVELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION Sewer relocation in BNSF Right of Way pursuant to the 1-215 Freeway Widening ~ indicates un-incorporated areas ~ within City's Sphere of Influence Created by: Lo::::>z/o F oqo::::>::::>y Date: 04--01-09 1 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 EXECUTION OF PIPELINE LICENSE AGREEMENTS WITH THE BNSF RAILWAY COMPANY FOR SEWER RELOCATION WORK TO BE PERFORMED BY THE CITY 4 AT SPRUCE STREET AND AT 10TH STREET, RELATIVE TO THE 1-215 WIDENING. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. That the City Manager of the City of San Bernardino is hereby authorized 8 and directed to execute on behalf of the City, Pipeline License agreements with the BNSF 9 10 11 Railway Company ("BNSF"), for sewer relocation work to be performed by the City relative to the 1-215 Freeway widening, at Spruce Street, and at I Olh Street within BNSF right of way, 12 attached hereto as Exhibit 'T' and Exhibit "2" respectively, and both made a part hereof. 13 14 SECTION 2. This resolution is rescinded if the parties to the agreement fail to execute it within ninety (90) days of the passage of this resolution. 15 16 / / / 17 / II 18 19 20 21 22 23 24 25 26 27 28 04/08/2009 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF PIPELINE LICENSE AGREEMENTS WITH THE BNSF RAILWAY COMPANY FOR SEWER 1 RELOCATION WORK TO BE PERFORMED BY THE CITY AT SPRUCE STREET AND AT 1011I STREET, RELATIVE TO THE 1-215 WIDENING. 2 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 4 5 Common Council of the City of San Bernardino at a meeting thereof 6 held on the day of , 20_, by the following vote, to it: 7 8 Council Members: AYES 9 ESTRADA 10 BAXTER 11 BRINKER NAYS ABSTAIN ABSENT 12 13 14 KELLEY 15 16 17 SHORETT JOHNSON MCCAMMACK 18 19 20 21 22 23 24 25 26 27 28 City Clerk The foregoing resolution is hereby approved this .. day of. .20 PATRICK J. !\fORRIS. T\Iayor City of San Bernardino A pproved as to form JAMES F. PENMAN 04/08/2009 :2 EXHIBIT "1" Law Department Approved Tracking #09-37945 PIPELINE 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"). 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, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), one (1) Pipeline(s), twenty four (24) inches in diameter inside a thirty six (36) inch steel casing ("PIPELINE"), across or along the rail corridor of Licensor at or near the station of San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 80.68, as shown on the attached Drawing No. 1-46159, dated March 27, 2009, attached hereto as Exhibit "A" and made a part hereof ("Premises") . 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 the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying sewage. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paid in advance, or for any damage Licensee sustains in connection therewith. Form 424; Rev. 04/26/05 -1 - Law Department Approved Tracking #09-37945 5. Any contractors or subcontractors performing work on the PIPELINE 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 for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500) as compensation for the use of the Premises. (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 or the presence, construction and maintenance of the PIPELINE, 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) flagger 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 flagger 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 construction, maintenance, and use of the PIPELINE and the use of the Premises. Form 424: Rev. ')4/26/05 2 - Law Department Approved Tracking #09-37945 (b) Prior to entering the 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://www.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 material and supply costs at current value where used. 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) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Dr., San Bernardino, CA 92401, telephone (909) 386-4060 or cell (928) 237-6860, at least five (5) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (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. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or 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 Form 424; Rev 04/2filO5 .'3. Law Department Approved Tracking #09-37945 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. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE in such a manner and of such material that it will not 3t any time 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. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, 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 PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE 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 PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE 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 PIPELlNE(s). Form 424; Rev. 04/26/05 -4 - Law Department Approved 15. Tracking #09-37945 (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 (~, consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. 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 process. 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 furnish 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 on the 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 Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole cost and expense: (3) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; Form 424; Rev. 04/26/05 -5 - Law Department Approved Tracking #09-37945 (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, 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 OF 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, (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, 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. hrm 424; Rev. 04/26,05 6 - Law Department Approved Tracking #09-37945 (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, 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 PIPELINE 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. (e) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE, 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 ("FELAn) 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. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against 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 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 Form 424; Rev. 04/26/05 .7 - Law Department Approved Tracking #09-37945 DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. 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 liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. 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. This insurance shall name only the Licensor as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE 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 00 35 1093 and include the following: Form 424; Rev 04/26/05 .8 - Law Department Approved Tracking #09-37945 . Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 1093) . Endorsed to include the Limited Seepage and Pollution Endorsement. . Endorsed to include Evacuation Expense Coverage Endorsement. . No other endorsements restricting coverage may be added. . The original policy must be provided to the Licensor prior to performing any work or services under this Agreement. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $1,000. CJ I elect to participate in Licensor's Blanket Policy; CJ I elect not to participate in Licensor's Blanket Policy. 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, Contractor's Pollution Legal Liability 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. i:',)rm 424, Rev. 04/26/05 9 - Law Department Approved Tracking #09-37945 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 policy(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. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or '-'lith a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(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 Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, Form 424; Rev 04/26/05 -10 Law Department Approved Tracking #09-37945 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. (b) Licensee shall give Licensor 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 to 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. (c) 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 PIPELINE 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, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor 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 activities; 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 to 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. Form 424; Rev. 04/26/C5 - i 1 - Law Department Approved Tracking #09-37945 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 AND CHARGES 27. Licensee shall promptly pay and discharge any and all liens anslng 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. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. 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 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 sole discretion Fcrm 424; Rev 04/26105 12 - Law Department Approved Tracking #09-37945 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 mail, 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 written notice of such change in address. If to Licensor: Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. - AOB3 Fort Worth, TX 76131 Attn: Manager - Land Revenue Management If to Licensee: City of San Bernardino 300 N. 0 Street, 3rd floor San Bernardino, CA 92418 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 PIPELINE and improvements are removed and 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 substantive laws of the State of Texas without regard to conflicts of law provisions. 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. F,xrn 424; Rev. 04/2t3105 13 - Law Department Approved Tracking #09-37945 INTEGRA TION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters 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 written 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 written. BNSF RAILWAY COMPANY Staubach Global Services - RR, Inc., its Attorney in Fact 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 By: Ed Darter Title: Vice President - National Accounts CITY OF SAN BERNARDINO 300 N. D Street, 3rd floor San Bernardino, CA 92418 By: Title: LORI SASSOO~L . \cting City \lanagcr Approved as for form: JA\IES F. PE~I\rAN. City Attorney Form 424; Rev 04/26105 .14 - TRACK[NG NO.09-37945 EXH I BIT II A 1/ ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND CITY OF SAN BERNARDINO SCALE: 1 IN.=100 FT. ..."s,.'\> SECTION: 04 CALIFORNIA DIV. ~ TOWNSHIP: 015 CAJON SUBDIV. L.S. 7600 02 RANGE: 04W .QAI~.Q~/2]!4QQ9., MER fD fAN: S8M I -. r-.--' -:1. ...~~~~~.~;~..,,~.;~.~._..."'.."'..:.::::::: ! I "-;. ~p I. ~ r .._::r:~.:.::~._.J. ..~..~lg~....J.".,..."..."",_"L,,,...,,...,,....,,l,...,.,,,,..,,,,,,,,".J."",,,...,,......... 'I I I, qi I ~ "i r-<mOr---TI' .....,..". ~ ,..., It I II I ;f~::' ~~ 'I " 55";.: 0 ~t ' ,. . .,... ..." r", ~ ..' ! ?,i I Z5 ..~~ :11:1,;11: '~!;::~I ;;;;;1:.>- MP 80.68 1,") ~,J'II"/ ,I ,if II '~II, -~N- J I 'j ~ . "" ES 4222 42 ~ ltl~" ,1111 fJ;~ ".... ",.."~ .../.,,,. """""'," ",~ ",,,.,,, , t ""."""'''''''''''r''''''"'''''''''''''''''' ",,,,,. '''''r''''1 ,'h,,,,,... """'''J '",', j '" ..,., + ".. . .". '''.,....""."..,~I,'" ........'1......... .,..",.." ,II, ",.., " .'---;--- -.-..-L-_____.L._.J -- -- -.).O~.~:, .:- 9.0' ,!//I _" I 5~) I I I .' (,. l.t,. ,-,fi.J ." , , ,~,.=-..=''''..,......""."'"",....~L,.,...~....".....,, ,.....",,,,,...........,, ."..."..........",..", '"'''''11''''''''''''' . 1'1.:' 55' Hut "\ ~.I'" "1',.::.::::,.::,:;:::::.;::::::.. SPRUCE ST. ,:j1,) _"J ",. 1.<. ",::;J&:rzl'lf:.2I~lli;~::i~'u~':::. .. ","""II/';'V1'''i' I .~I. I.. .l:..,L. ~'l! i.'~;;~;'j,.l j ,'I ;1' :;~'J. ~ ! (i j jEsmt b CLD'SI!t84 ',~::Q ,,:::;' 'i)l ~ I'" .:I';., J:i"~,1 ! 1 ,:~;i.~'!l"llll' ~ I ~li ~ .\",.:.!'"r.I" !II ..-.. _'MI...l .....,,"""~.......,IJ.". ....."......,~. ....t., ...,.... .....~..~..............tl"'"'"1 ,"",lIJ,w, oIll!~. Wi: 1'1' 'I . . .' ". ..... .,. ICD 'I""""'" ,....",,,,,,,,......,,..,",,,,,,,,,,,,,,,.,,,, '0'"""....",..."..,.. ,....""""...."",,,,,,,'..,,,..,,,"',,......,, 'I.. . r-r r'"~ '~r::!n: I: ,:(,c.-r-:--t--r--.T-- ....;:: : DESCRIPTION OF PIPELINE PIPELINE SHOWN BOLD CARRIER PIPE CASING P [PE 36 " STEEL ~E3 0.531" WELD SIZE: CONTEN-:-S: PIPE MATERIAL: SPEC IFf CATION / GRADE: WALL THICKNESS: COA Tf NG: 24 " SEWER PVC SDR-26 0.923" SLIP Ct1RRIER PIPE LENGTH ON R/W: 55' NORK I NG PRESSU:iE: GRAVITY BURY: BASE/RAIL TO TOP OF CASING BURY: NATURAL GROUND BURY: ROADWAY DITCHES CATHODIC PROTECTION CASlNG PIPE 55' 1 1 . ?' 10.2 10.2 _~(J__ liEN rs: NUMBER N / A S [ZE HE I GH T OF VENT ABOVE GROUND--=- NOTE: CASING TO BE JACKED OR DRY BORED ONLY AT SAN BERNARDINO COUNTY DF SAN BERN/~RD r I\JO STATE OF CA Ji~G niHWTNr; ~1l1 1-llh1C;Q 01 N o 01 o l11 LL W 0:: 0.. <t :::i!; Law Department Approved EXHIBIT "2" Tracking #09-37946 PIPELINE 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"). 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, use rights, easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), one (1) Pipeline(s), sixteen (16) inches in diameter inside a twenty four (24) inch steel casing ("PIPELINE"), across or along the rail corridor of Licensor at or near the station of San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 80.10, as shown on the attached Drawing No. 1-46158, dated March 27, 2009, attached hereto as Exhibit "N and made a part hereof ("Premises"). 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 the Premises solely for construction and maintenance of a PIPELINE in accordance with the Drawings and Specifications carrying sewage. Licensee shall not use the PIPELINE to carry any other commodity or use the Premises for any other purpose. Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body through the PIPELINE on Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in such compliance. Should Licensee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall remove the PIPELINE and restore Licensor's property as herein elsewhere provided. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paid in advance, or for any damage Licensee sustains in connection therewith. Form 424; Rev. 04/26/05 -1 - Law Department Approved Tracking #09-37946 5. Any contractors or subcontractors performing work on the PIPELINE 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 for a period of twenty-five (25) years, subject to prior termination as hereinafter described. COMPENSA TJON 7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500) as compensation for the use of the Premises. (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefore) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the PIPELINE, 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) flagger 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 flagger 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 construction, maintenance, and use of the PIPELINE and the use of the Premises. Form 424; Rev. 04/26/05 -2 - Law Department Approved Tracking #09-37946 (b) Prior to entering the 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://www.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 material and supply costs at current value where used. 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) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Dr., San Bernardino, CA 92401, telephone (909) 386-4060 or cell (928) 237-6860, at least five (5) business days prior to installation of the PIPELINE and prior to entering the Premises for any subsequent maintenance thereon. (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. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or 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 Form 424; Re'l. 04126;05 -3 - Law Department Approved Tracking #09-37946 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. (b) Licensee shall, at its sole cost and expense, construct and maintain the PIPELINE 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 existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. Licensor may direct one of its field engineers to observe or inspect the construction and/or maintenance of the PIPELINE at any time for compliance with the Drawings and Specifications. If ordered at any time to halt construction or maintenance of the PIPELINE by Licensor's personnel due to non-compliance with the same or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to observe or inspect, or to halt work on, the PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE is constructed in strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise nor the failure by Licensor to exercise any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, upon receipt of an invoice for the same. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 13. During the construction and any subsequent maintenance performed on the PIPELINE, 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 PIPELINE shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the PIPELINE 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 PIPELINE, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the PIPELINE 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 PIPELlNE(s). Form 424; Rev 04/26105 -4 - Law Department Approved 15. Tracking #09-37946 (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 (~, consulting with the Underground Services Association) to determine the existence or Jocation of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested construction of the PIPELINE, Licensor will provide Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed PIPELINE. 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 process. 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 furnish 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 on the 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 Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon termination of this License, Licensee shall, at its sole cost and expense: (a) remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE with a method satisfactory to Licensor; (b) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's Lise of the Premises; FGrm 424: Rev. 04/26/05 -5 - Law Department Approved Tracking #09-37946 (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervisions shall retain/maintain a fully executed copy of this License at all times while on the Premises. LIABILITY 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 (COLLECTIVEL Y, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENAL TIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, 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, 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. Form 424; Rev. 04/26/05 -6 - Law Department Approved Tracking #09-37946 (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 PIPELINE 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 ("FELA") 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. (d) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against 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 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. Form 424; Rev. 04/26/05 -7 - Law Department Approved Tracking #09-37946 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 liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. 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. This insurance shall name only the Licensor as the Insured with coverage of at least $5,000,000 per occurrence and S 10,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the PIPELINE 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 00 35 10 93 and include the following: Form 424; Rev. lH/26J05 -8 - Law Department Approved Tracking #09-37946 . Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) . Endorsed to include the Limited Seepage and Pollution Endorsement. . Endorsed to include Evacuation Expense Coverage Endorsement. . No other endorsements restricting coverage may be added. . The original policy must be provided to the Licensor prior to performing any work or services under this Agreement. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $1,000. o I elect to participate in Licensor's Blanket Policy; o I elect not to participate in Licensor's Blanket Policy. 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, Contractor's Pollution Legal Liability 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. Form 424; i-(ev. 04/26/05 -9 - Law Department Approved Tracking #09-37946 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 policy(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. 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 beUer, 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)/broker(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 Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, Form 424; Rev. 04/26/05 -10- Law Department Approved Tracking #09-37946 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. (b) Licensee shall give Licensor 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 ot the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice ot all measures undertaken on behalt ot Licensee to investigate, remedlate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation ot Environmental Laws arising in any way with respect to the PIPELINE 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, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-ot-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk ot harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that 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. AL TERA TIONS 23. Licensee may not make any alterations to 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. Form 424; Rev. G4/26/05 -11 - Law Department Approved Tracking #09-37946 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 AND CHARGES 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. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements. 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 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 sole discretion. Form 424; Rev. 04/26/05 -12 - Law Department Approved Tracking #09-37946 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 mail, 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 written notice of such change in address. If to Licensor: Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. - AOB3 Fort Worth, TX 76131 Attn: Manager - Land Revenue Management If to Licensee: City of San Bernardino 300 North 0 St., 3rd floor San Bernardino, CA 92418 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 PIPELINE and improvements are removed and 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 substantive laws of the State of Texas without regard to conflicts of law provisions. 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. Form 424: Rev_ 04/26/05 -13 - Law Department Approved Tracking #09-37946 INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters 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 written 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 written. BNSF RAILWAY COMPANY Staubach Global Services - RR, Inc., its Attorney in Fact 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131-2800 By: Ed Darter Title: Vice President - National Accounts CITY OF SAN BERNARDINO 300 North D S1., 3rd floor San Bernardino, CA 92418 By: Title: LORI SASSOON. Adll1g City \Ianaga . \pproved as for form: l\\IES F. PL'\\L\N. City Attorney Form 424; :~av. 04/?6/C5 -14 - TRACKING NO.09-37946 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND CITY OF SAN BERNARDINO ro N o m o t.n SCALE: 1 IN.=100 FT. CALIFORNIA Drv. CAJON SUBDIV. DA TE 03/27/2009 L. S. 7600 -,\~SF @1>)"SECTION: CA-04 TOWNSHIP: S-02A RANGE: MERIDIAN: 04 015 04W SSM . LL LU 0:: 0.... <r .::;;: .. ,......, .,...._"......"..".... ... ...,.'''...._....~._......::~r.--...''.......Ii """ JiiiiiiiiW--.l: ~ J" ; ii' h :;i: :,,111 .~I:~ .... h. J . 't{J~ -It!, !i;l~ l!'~ ~; t'. '::11"", PROPERTY LINE ~ ",,~!if ,Ii'!:! "";!!li'111 :':;; 11"'"'' ~~"'~~:'1;"" ......... ..... """"'" '''''~~I~~.~ .......... "1{ ";;:!.,::. , I~Nl/lh~~IIJ ~,.._ ES 7491.99~._....._. ..............$.:.Q):.6. . . '''''''..''''''''''''''''''''"..",.,'".."..""..,''',."'''''''',,....~,,., "'''~''''''''!IJ,.. ~..."~'''''~~..."...'''".....". 90 II 'I ....".",,,....,,, -"..,....~,..."..,~..,"'"..".."."',."..,,".. TO BARSTOW - - - - - I ~ .... - ,- ='.=" E" 'il~'~":L'" ~'.. 1":- :.. ., ~ ,~",,--, "':" .:.->..~'l"".. .. ...., ~= "::,: .J' ." _ _ :.L:.- .. ..:. .:.." '"'' :". "',' , .... "..: ",,: '.,,~ ,:" ... .:. ..~,,: 25': ."':" :::::"::: :::. ..-...::: L:~'''''' .." :1. -""':::,:'-;;'''::::'~~::~''"''':''::::'',~ '::.:: ::,:'::~:,::...."":~;: .. ::..-..:::::: .. ".... ..: " 'jIf'" ..,'.... "'-, ."'" "', ","' ",,"" "".l..il..~..= ..~. '="'W"'A' ,= ...!/.:!!L.,!C.-"".."" '......... -,~,,,",,,11b..,,,,,.,: '-"'~ 'c..."". 'W' ,_ ~ .. """"""'''_ "" '..c."""..",..,J..""..,~, ....,.,"""'""...=...1!.LHfJ,,jl:'t....=..,~.._Jr._ ,~. =. .o;1:m!.. ~ .""". _~~~I'~"~~t"~.' 251_.~. '---" ."~"'~.'~ll~l'~'~..~'~.~.,'~..~ ~.I'J.. ..,1 - .l..tt I. ~.A. .' ~l, .~. .. '~. ..~., ~ :.. ....:fl.141.1 -/'1 ) " ~O SAN BERNARDINO ......\"..... ..,,, ..." . --1!'~ \llr."L"~j;I,'~:I.I;i:i'I....I",,I'J,; t..::::,I!."...".... ..".,.."....................."...." ". '''.."..."... .... ..".."..'. .. .. ".. .., Y" .. . ...... "f" '.,11,'1'. ,1',,1,' 'I, " ,.'.,..,.... ,...... ....... , . '....I "'h" ~,~'''I' . .... 'I""'.I,'J'I'" '.. ..............., i~ li",I"J 11....,'..),"", (1','I,r . : i.II,''';...11~,..::,'.,i,:.. ..........", , .. :;:::1;,[' '" ".. ''''' ~,,, I 11'.. " , ',. . I . , :'1 !r,'~ ~ ill. :1';, . :;r' ,f f .,. f rib . , i' II " , " Ir~ Q, I' I., '. , .. a "....."..........,~, i ;,. ::( ..J:~:I..... .....w ...... . fl.. . ..............,~.~g~,~,,~.!..~..w IN E I I' J.~:'.. . Ii ';;:h""}j i :~I '\ I~I I /~, I :, ! ,ii , ""'\'" ..... ..... ",j:(!f ,!; .::".,:rJ" .... :1,.............................; r ........",..,.. 1. ",i' ~ \'1, :I, RI'"1 , 'v I I~, .~I. ... ft ~j} ~ ,:"''''\, ! i ~,! I' ni, '...,1' ........, . ,.", ~"'''''' ~~"...~..,....., "., '.,......... ut., ijit"..._.N..'~N........... ......." ..I...... ,... ............... ~ .,. .. ...I~ l.~ I ! Ij~l. J I:h DESCRIPTION OF PIPELINE PIPELINE SHOWN BOLD CARRIER CASING CARRIER CASPJG PIPE PIPE PIPE PIPE SIZE: i 6 II 2.q 1/ LENGTH IN R/W: 50' 50' '::ONTENTS: SEWER WORKiNG PRESSURE: GRAVITY PIPE MATERIAL: PVC STFEL BURY: BASE/RAIL TO TOP OF CASING. 7.6/ SPECIFICATlCN / GRADE: SDR-26 GR-B BURY: NATURAL GROW.JD 7 . WALL THICKNESS: 0.615" 0.375" BURY: ,'iOAOWAY DITCHES 7 ' COATING: SLIP WELD CATHODIC PROTECTION ~O V~N~S: NUMBER N/.lI SIZE-=- ;-JE!GHT OF VE,\H ABOVE GROUND--=- NOTE: CASiNG TO BE JACKED GR CRY BORED ONLY AT SAN BERNARDINO COU~TY CFSAN BERNARDINO STATE OFCA ,;PG DRAWING I'JO. 1- '16158