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Home My WebLink About2012-251 1 RESOLUTION NO. 2012-251 2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A CONSTRUCTION AND MAINTENANCE AGREEMENT NO. C13018 WITH 3 BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY (BNSF) AND THE 4 SAN BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG) FOR CONSTRUCTION OF A GRADE SEPARATION AT PALM AVENUE OVER THE 5 BNSF RAILWAY (CIP PROJECT NO. SSO4-53). 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager is hereby authorized and directed to execute a 9 Construction and Maintenance Agreement No C13018 with the Burlington Northern Santa Fe 10 Railway Company (BNSF) and the San Bernardino Associated Governments (SANBAG) for 11 construction of a Grade Separation at Palm Avenue over the BNSF Railroad (CIP Project No. 12 SSO4-53), attached and incorporated herein as Exhibit"A". 13 14 SECTION 2. The authorization to execute the above-referenced Agreement is 15 rescinded if it is not executed within one hundred twenty (120) days of the passage of this 16 resolution. 17 /// 18 /// 19 /// 20 21 22 23 24 25 26 27 28 2012-251 1 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A CONSTRUCTION AND MAINTENANCE AGREEMENT NO. C13018 WITH 2 BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY (BNSF) AND THE SAN BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG) FOR 3 CONSTRUCTION OF A GRADE SEPARATION AT PALM AVENUE OVER THE 4 BNSF RAILWAY (CIP PROJECT NO. SSO4-53). 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a joint regular meeting 7 thereof, held on the 15th day of October , 2012, by the following vote, to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 MARQUEZ x 11 JENKINS x 12 VALDIVIA x 13 SHORETT x 14 KELLEY x 15 16 JOHNSON x 17 MCCAMMACK x 18 GeorgsyM , rty Clerk 20 4.* The foregoing Resolution is hereby approved this [ I. day of October , 2012. 21 22 23 'atrick . Morris, Mayor Ci • : an Bernardino 24 25 Approved as to form: JAMES F. PENMAN, 26 City Attorney 27 By: De- w 28 ' / " a 2012-251 CONSTRUCTION and MAINTENANCE AGREEMENT BNSF Agreement No. BF-10003191 SANBAG Agreement No.C13018 Palm Avenue Overhead U.S. D.O.T. No. 929074M C.P.U.C. No. 002-74.06-A This Agreement ("Agreement"), is executed to be effective as of this 15th day of OctnhPr , 2012 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), the CITY OF SAN BERNARDINO, a body corporate and politic of the State of California ("CITY"), and the SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as("SANBAG"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of San Bernardino, County of San Bernardino, State of California, hereinafter referred to as ("Rail Corridor"); WHEREAS, SANBAG and CITY desire to proceed with grade separating Palm Avenue and the Rail Corridor with the Palm Avenue Overhead crossing, by means of a three span, cast in place post- tensioned reinforced concrete box girder bridge, 402 feet long by 40 feet 5 inches wide, on concrete piers and abutments ("Structure"); WHEREAS, the existing Palm Avenue grade crossing, U.S. D.O.T. No. 026105N, C.P.U.C. Crossing No. 002-74.00, will be closed and removed upon completion of construction and the placing in service of said Structure; WHEREAS, SANBAG entered into Cooperative Agreement No. C08202 with the CITY dated October 06, 2008 which provides for SANBAG to obtain the environmental clearance and execute the design of the Palm Avenue grade separation project; WHEREAS, SANBAG entered into Cooperative Agreement No. C11180 with the CITY dated June 01, 2011 which provides for SANBAG to acquire right of way and administer funding for the Palm Avenue grade separation project; WHEREAS, SANBAG entered into Cooperative Agreement No. C12241 with the CITY dated July 11, 2012 which provides for SANBAG to advertise, construct, and administer funding for the Palm Avenue grade separation project; WHEREAS, pursuant to said Cooperative Agreements, upon completion and acceptance of the Structure by CITY, CITY will thereafter control and maintain the Structure at its sole cost and expense; WHEREAS, BNSF agrees to contribute a portion of the Project costs; WHEREAS, in order to construct the Project SANBAG must acquire certain rights-of-way from BNSF; WHEREAS, the parties desire to further define their respective rights and responsibilities associated with the construction and on going maintenance of the grade separated crossing. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Page 1 of 17 Palm Overhead —September 20,2012 C13018 2012-251 ARTICLE I—SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of the Structure, more particularly described on Exhibit A. attached hereto and incorporated herein, including but not limited to, any and all changes to telephone, telegraph, signal and electrical lines, other utilities and appurtenances, temporary and permanent track work, temporary detour road, fencing, grading, maintenance access roadways, alterations to or new construction of drainage facilities, slab bridge and fenced turnaround area, preliminary and construction engineering, right of way acquisition, construction management, and contract preparation. Additionally, temporary controls during construction must be in compliance with Section 8A-5, "Traffic Controls during Construction and Maintenance" of the Manual of Uniform Traffic Control Devices ("MUTCD"), U.S. Department of Transportation. ARTICLE II—BNSF OBLIGATIONS In consideration of the covenants of CITY and SANBAG set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. Upon SANBAG's payment to BNSF of an administrative fee in the sum of Two Thousand Dollars and No/100 dollars ($2,000.00), together with the sum of Thirty Four Thousand Six Hundred Forty Five and No/100 Dollars ($34,645.00), BNSF shall grant to SANBAG, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction License") to construct the Structure across or upon that portion of BNSF's Rail Corridor shown as three parcels on Exhibit A attached to this Agreement, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said Rail Corridor; (b) Construct, operate, maintain, renew and/or relocate upon said Rail Corridor, without limitation, such facilities as the BNSF may from time to time deem appropriate, provided such facilities do not materially interfere with SANBAG's construction of the Project; (c) Otherwise use or operate the Rail Corridor as BNSF may from time to time deem appropriate, provided such use or operations does not materially interfere with SANBAG's construction of the Project, and ; The term of the Temporary Construction License shall begin on the Notice to Commence Construction date as set forth hereinafter in Article III, Section 18 and ends on the earlier of(i) substantial completion of the Project, or (ii) thirty months (30) months following the Notice to Commence Construction. The Temporary Construction License and related rights given by BNSF to SANBAG in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for construction of the Project and shall not be used by SANBAG for any other purpose. SANBAG acknowledges and agrees that SANBAG shall not have the right, under the Temporary Construction License, to use the Structure. In the event SANBAG is evicted by anyone owning, or claiming title to or any interest in said Rail Corridor, BNSF will not be liable to SANBAG for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to SANBAG herein. Upon SANBAG's payment to BNSF of the additional sum of Thirty One Thousand Two Hundred Twenty Four and No/100 Dollars ($31,224.00), such payment to be made within thirty (30) days of the giving of the Notice to Proceed pursuant to Article III, Section 16 of this Agreement, and provided further that SANBAG is in compliance with the terms and conditions of this Agreement, BNSF will grant to SANBAG, its successors and assigns, a perpetual easement (hereinafter called, the "Easement") to enter upon and use that portion of BNSF's Rail Corridor as is necessary to use and maintain the Structure, Page 2 of 17 Palm Overhead —September 20,2012 C13018 2012-251 substantially in the form of Exhibit B attached to this Agreement. If SANBAG fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of SANBAG, which approval will not be unreasonably withheld. Construction of the Project will include the following principal elements of railroad work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Removal of the concrete crossing panels for the existing Palm Avenue grade crossing; (d) Removal of the existing Palm Avenue Signal Warning Devices; (e) Furnishing of flagging services necessary for the safety of BNSF's property and the operation of its trains during construction of the Project as set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof; (f) Furnishing of engineering and inspection as required in connection with the construction of the Project and; (g) Providing a contract project coordinator, at SANBAG's expense, to serve as a project manager for the Project. 3. BNSF will construct all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements or by contractor(s) if necessary. 4. SANBAG agrees to reimburse BNSF for work of an emergency nature caused by SANBAG or SANBAG's contractor in connection with the Project which is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of SANBAG and SANBAG agrees to fully reimburse BNSF for all such emergency work. 5. BNSF may charge SANBAG for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 6. During the construction of the Project, BNSF will send SANBAG progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. SANBAG must reimburse BNSF for completed force-account work within forty-five (45) calendar days from the date of SANBAG'S receipt of the invoice for such work. Upon completion of the Project, BNSF will send SANBAG a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this Section, SANBAG will verify such final costs. All undisputed costs set forth in the final invoice shall be paid within ninety (90) calendar days from the date of the final invoice. The Parties agree to take reasonable efforts to resolve any disputed cost in a timely manner. BNSF will assess a finance charge of 0.033% per day (12% per annum) on any unpaid sums or other charges due Page 3 of 17 Palm Overhead —September 20,2012 C13018 2012-251 under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date the payment is received by BNSF, not the date that payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any un-posted payments received by the month's end. Finance charges will be noted on invoices sent to SANBAG under this Section 6. For purposes of computing the time limits prescribed by Section 911.2 of the CALIFORNIA GOVERNMENT CODE for the presentment of a claim against SANBAG, the cause of action for failure to reimburse BNSF for the cost of the Railroad Work performed by it pursuant to this Agreement shall be deemed to have accrued one hundred eighty (180) days from the date of the final invoice. ARTICLE III—SANBAG OBLIGATIONS In consideration of the covenants of CITY and BNSF set forth herein and the faithful performance thereof, SAN BAG agrees as follows: 1. SANBAG shall furnish to BNSF and CITY plans and specifications for the Project together with calculations with the railroad clearances expressed in English Units. One complete reduced size 11" x 17" paper copy shall be submitted to BNSF's Director of Structural Engineering. A PDF copy of the plans and specifications should be sent to both BNSF's Manager Public Projects and BNSF's Director Structural Engineering. The PDF copy with a file size of two (2) megabytes or less should be sent via an email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD (Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF offices. The email and mailing addresses are included in Article V, Section 25. Sets of said plans shall be submitted to BNSF and CITY for approval prior to commencement of any construction. BNSF will give SANBAG final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and specifications meet BNSF standard specifications, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building code. 2. SANBAG must provide for and maintain minimum vertical and horizontal clearances, as required and approved by BNSF as part of the plans and specifications for the Project. 3. SANBAG must make any and all arrangements, in compliance with BNSF's Utility Accommodation Manual (http://www.bnsf.com/communities/fags/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project. 4. SANBAG must make application to the Public Utilities Commission of the State of California ("Commission") for an order authorizing construction of the Project and to furnish to the Commission plans of the proposed construction, approved by BNSF and CITY, together with a copy of this Agreement and to obtain all other required permits and approvals for the construction of the Project. 5. SANBAG must construct the Project as shown on the attached Exhibit A and do all work provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF herein. SANBAG must furnish all labor, materials, tools and equipment for the performance of SANBAG's work. The principal elements of SANBAG's work are as follows: (a) Preliminary and final Engineering; (b) Design and the Construction of the Structure; Page 4 of 17 Palm Overhead —September 20,2012 C13018 2012-251 (c) Providing of suitable drainage, both temporary and permanent including the relocation of drainage off of BNSF property and between Bent 3 and Abutment 4; (d) Construct a vehicle barrier between Cajon Boulevard and BNSF's southwesterly right of way line; (e) Construct a wrought iron fence along BNSF's northeasterly right of way line including. a BNSF maintenance access gate; (f) All other necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF's Rail Corridor; (g) Application of the D.O.T. Crossing Number 929074M and the C.P.U.C. Crossing No. 002- 74.06-A in conspicuous locations on the Structure; (h) Providing of pedestrian and/or trespasser control during construction; (i) Installation and maintenance of throw fences consisting of an 8 ftoot high fence with inward curved top and a 10 foot high vertical fence both mounted on concrete barriers on the outer edges of the Structure's deck; and (j) Job site cleanup within Project area including removal of all construction materials, concrete debris, surplus soil, refuse, disturbed contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF; 6. SANBAG will acquire all properties required to construct the Project. 7. SANBAG's Work must be performed by SANBAG or SANBAG's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. 8. SANBAG must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C. Additionally, SANBAG must require its contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 9. SANBAG or its contractor(s) shall submit one reduced size 11" x 17" paper copy, including calculations, expressed in English Units of the plans and specifications for proposed shoring, falsework, or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Director Structural Engineering. SANBAG or its contractor(s) shall submit a PDF copy of the plans and specifications for the proposed shoring, falsework, or cribbing to both BNSF's Manager Public Projects and BNSF's Director Structural Engineering. The PDF copy with a file size of two (2) megabytes or less should be sent via an email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD (Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF offices for approval. The email and mailing addresses are included in Article V, Section 25. The shoring, falsework or cribbing used by SANBAG's contractor shall comply with the BNSF Bridge Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein, and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. Falsework shall be designed according to the State of California, Department of Transportation FALSEWORK MANUAL available at this Web Site: http://www.dot.ca.gov/hq/esc/construction/manuals/OSCCompleteManuals/FalseworkManual.Pdf 10. SANBAG must include the following provisions in any contract with its contractor(s) performing work on said Project: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications companies may be Page 5 of 17 Palm Overhead —September 20,2012 C13018 2012-251 buried on BNSF's property or Rail Corridor. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF's Engineering Representative (909) 386- 4079, BNSF's Signal Representative (909) 386-4053 and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The contractor must also use all reasonable methods when working in the BNSF Rail Corridor or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) Failure to mark or identify these Lines will be sufficient cause for any BNSF Representative to stop construction at no cost to SANBAG or BNSF until these items are completed. (c) In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's Rail Corridor, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's Rail Corridor, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. (d) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements. 11. SANBAG must incorporate in each prime contract for construction of the Project, or the specifications therefore (i) the provisions set forth in Article III, Sections 7, 8, 9, 10, and 12; (ii) the provisions set forth in Article V, Sections 1, 2, 3, 4, 5, 6, 7, 14 and 15, and (iii) the provisions set forth in Exhibit C, Exhibit C-I, and Exhibit F, attached hereto and by reference made a part hereof. 12. Except as otherwise provided below in this Section 12, all construction work performed hereunder by SANBAG for the Project will be pursuant to a contract or contracts to be let by SANBAG, and all such contracts must include the following: (a) All work performed under such contract or contracts within the limits of BNSF's Rail Corridor must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; (c) No work will be commenced within BNSF's Rail Corridor until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF a letter agreement in the form of Exhibit C-I, and (ii) delivered to and secured BNSF's approval of the required insurance; and (d) If it is in SANBAG's best interest, SANBAG may direct that the construction of the Project be done by da labor under the direction an. •I • • :► :: • . - -, •- Page 6 of 17 Palm Overhead —September 20,2012 C13018 2012-251 opinion of SANBAG, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, SANBAG may terminate its contract with the contractor and take control over the work and proceed to complete the same by day labor or by employing another contractor(s) provided; however, that any contractor(s) replacing the original contractor(s) must comply with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, SANBAG will, at its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C-1. (e) To facilitate scheduling for the Project, SANBAG shall have its contractor give BNSF's Project Engineer at telephone number 909 386 4079 eight (8) weeks advance notice of the proposed times and dates for work windows. BNSF and SANBAG's contractor will establish mutually agreeable work windows for the Project. SANBAG shall inform its contractor that any request for work windows with less than eight (8) weeks advance notice will have a reduced probability of approval. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor's expenses for the Project. (f) The plans and specifications for the Project must be in compliance with the Bridge Requirements set forth in said Exhibit F, attached to this Agreement and incorporated herein. 13. SANBAG must advise BNSF's Manager of Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. Additionally, SANBAG must notify BNSF's Manager of Public Projects, in writing, of the date on which SANBAG, and/or CITY and/or SANBAG's Contractor will meet with BNSF for the purpose of making final inspection of the Project. 14. SANBAG, shall quit claim to City, within sixty (60) days after SAN BAG'S notification of the completion date the Project, as provided for in Article III, Section 13 above, all of its right title and interest in the perpetual easement granted to SANBAG by BNSF pursuant to the provisions in Article II, Section 1 of this Agreement. 15. TO THE FULLEST EXTENT PERMITTED BY LAW, SANBAG HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS 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 AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF SANBAG, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY SANBAG, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF SANBAG, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) SANBAG'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE GRANTED TO SANBAG PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO SANBAG PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) SANBAG'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR, OR (VII) AN ACT OR OMISSION OF SANBAG OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY SANBAG WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS • • ' • • : • ` • • = ► k •F BNSF ITS AGENTS Page 7 of 17 Palm Overhead —September 20,2012 C13018 2012-251 SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. 16. SANBAG must give BNSF's Manager of Public Projects written notice to proceed ("Notice to Proceed") with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from SANBAG. The Notice to Proceed must reference BNSF's Agreement No. BF-10003191. 17. SANBAG must perform all necessary work to obtain the permanent closure and vacation of Palm Avenue across BNSF's right-of-way and must barricade the road approaches prior to completion of the Project. BNSF will cooperate with SANBAG to achieve the closure and vacation of Palm Avenue and will remove the crossing surface within its right-of-way. 18. SAN BAG must give BNSF's Manager of Public Projects written notice to commence construction ("Notice to Commence Construction") when the Contractor has satisfied the requirements set forth hereinafter in Article III, Section 12 (c) and will enter BNSF Rail Corridor to begin construction. The Notice to Commence Construction must reference BNSF's Agreement No. BF10003191. ARTICLE IV-CITY OBLIGATIONS IN CONSIDERATION of the covenants of BNSF and SANBAG herein contained and the faithful performance thereof, CITY agrees: 1. To permit SAN BAG to act as the responsible lead agency to design and construct the Project. 2. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions set forth in Exhibit F, BNSF and CITY agree as follows: (a) Upon completion of construction of the Project, CITY will, own and maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify CITY prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, BNSF will notify CITY at its earliest opportunity. CITY must fully reimburse BNSF for the reasonable costs of maintenance performed by BNSF pursuant to this subsection (a); (b) CITY must, at CITY's sole cost and expense, keep the Structure free from graffiti. (c) CITY must maintain D.O.T. Crossing Number 929074M and C.P.U.C. Crossing No. 002- 74.06-A in legible condition in the conspicuous locations on the Structure where applied by SANBAG during construction; (d) It is understood by CITY that the right to install utilities is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, footings and/or run through the deck of the Structure. Under no circumstances will utilities be allowed to hang from the Structure. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities; (e) Upon request from BNSF, CITY shall remove all trash and debris associated with the Structure from BNSF's property; Page 8 of 17 Palm Overhead —September 20,2012 C13018 2012-251 (f) CITY must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto; (g) CITY must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals; (h) CITY hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from City property to BNSF tracks for maintenance purposes; (i) CITY must, at CITY's sole cost and expense, maintain the throw fences consisting of an 8 foot high fence with inward curved top and a 10 foot high vertical fence both mounted on concrete barriers on the outer edges of the Structure's deck; and (j) If CITY (including its contractors and agents) or BNSF, on behalf of CITY, performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then CITY or its contractors and/or agents must procure and maintain the following insurance coverage, and other the insurance requirements as contained in Exhibit C-1, which may be changed from time to time: Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 12 04 and include the following: • Endorsed to include the Pollution Exclusion Amendment • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railroad prior to performing any work or services under this Agreement • Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations. As used in this paragraph, "Railroad" means "Burlington Northern Santa Fe, LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. In lieu of providing a Railroad Protective Liability Policy, CITY may participate in BNSF's Blanket Railroad Protective Liability Insurance Policy if available to CITY or its contractors. The limits of coverage are the same as above. 3. Subject to the restrictions imposed by Article V, Section 14 below, CITY must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's Rail Corridor for INSPECTION OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if flagging is required. CITY must procure and maintain the insurance coverage required by Exhibit C-1 and comply with the obligations set forth in Exhibit C and Exhibit F, as the same may be revised from time to time. If the construction work hereunder is contracted, CITY must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, and Exhibit F, as the same may be revised from time to time. CITY will be responsiblC fur itb ccnitiectur(s) compliance witli such obliyalu is. Page 9 of 17 Palm Overhead —September 20,2012 C13018 2012-251 4. TO THE FULLEST EXTENT PERMITTED BY LAW, CITY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS 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 AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (IV) CITY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR, INCLUDING WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY CITY, OR (V)AN ACT OR OMISSION OF CITY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY CITY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS, ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. ARTICLE V—JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. BNSF will notify SANBAG of potential impacts to Project at the time said impacts are known subject to the provisions of Article II, Item 4. 2. The work hereunder must be performed in accordance with the Bridge Requirements set forth in Exhibit F and the detailed plans and specifications approved by BNSF. 3. SANBAG must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. At BNSF's discretion, any work that would affect train operations shall be scheduled at night. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF shall have the right to request any SANBAG employee, or CITY employee, who enters :► ' :_• _• • ••• _1. .- _ - • 1- 's Ill.- -a - a-. - . . I _ - ties • 11. so. Page 10 of 17 Palm Overhead —September 20,2012 C13018 2012-251 and/or they adversely affected BNSF's operations or facilities, be removed from the Rail Corridor. In the event SANBAG or CITY elects not to honor such request, BNSF may stop work within its Rail Corridor until the matter has been fully resolved to BNSF's satisfaction. The party whose employee has been asked to leave the Rail Corridor will indemnify BNSF and the other parties against any claims arising from such removal. 5. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Contractor (or any of its subcontractors), in BNSF's opinion, prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or(iv) SANBAG fails to pay BNSF for the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by SANBAG, Contractor or its subcontractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Garry Cohoe SANBAG Director of Project Delivery 1170 W. 3rd Street, 2nd Floor San Bernardino, CA 92410 Phone number: (909) 884-8276 Fax number(909) 388-2002 Email: gcohoeCa�sanbaq.ca.gov 6. SANBAG's or CITY's employees, agents, contractors, representatives and invitees shall wear Personal Protective Equipment ("PPE") when on the BNSF's Rail Corridor during construction of the Project or performing subsequent maintenance after completion of construction. The PPE shall meet applicable OSHA and ANSI specifications. Current BNSF PPE requirements are listed on the web site,www.contractororientation.com. A partial list of BNSF's PPE requirements include; a) safety glasses: permanently affixed side shields; no yellow lenses, b) hard hats with high visibility orange cover, c) safety shoes: hardened toe, above-the-ankle lace-up with a defined heel and d), high visibility retro-reflective orange vests are required as specified by BNSF's representative in charge of the Project. PPE requirements as defined on the web site, will be amended from time to time, and shall take precedence over the Partial list of requirements outlined in this Section 6 of Article V. Hearing protection, fall protection and respirators will be worn as required by State and Federal regulations. 7. SANBAG must supervise and inspect the operations of all SANBAG contractors to assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is not being performed by SANBAG personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating Rail Corridor). Construction of the Project will not proceed until SANBAG corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify SANBAG'S Director of Project Delivery for appropriate corrective action. 8. BNSF shall contribute the amount of Six Hundred Eighty Nine Thousand Seven Hundred Ten and No/100 Dollars ($689,710.00) toward the cost of the Projectst(hereinafter referred to as"BNSF's Share"). BNSF's Share is based on the costs for preliminary engineering, right-of-way, and construction within the following limits: (a) Where a grade crossing is eliminated by grade separation, the structure and approaches -• _'r-: • r-s i •• • - h-•r- ' - h' h . • • -v- •--n •n r -• if Page 11 of 17 Palm Overhead —September 20,2012 C13018 2012-251 there were no railroad present, for the number of lanes on the existing highway and in accordance with the current design standards of the appropriate state highway agency; and (b) Where another facility, such as a highway or waterway, requiring a bridge structure is located within the limits of a grade separation project, the estimated cost of a theoretical structure and approaches as described in 23 CFR 646.210(c)(1) to eliminate the railroad-highway grade crossing without considering the presence of the waterway or other highway. The total cost of constructing the Project is estimated to be Twenty Four Million Four Hundred Seventy Eight Thousand and No/100 Dollars ($24,478,000.00), more particularly described on Exhibit G attached hereto and incorporated herein. 9. BNSF will make payment in full of BNSF's Share to SANBAG upon receipt of a detailed invoice of the Project's final costs, together with written advice of the Project's date of completion as provided for hereinabove in Article III Section 13. ok 10. SANBAG agrees to furnish BNSF's Manager Public Projects monthly Project Progress Reports that detail work completed, percentage of Project completeness, an updated projection of the Project's final cost, and the Project's estimated completion date for BNSF's use in budgeting BNSF's Share. 11. Pursuant to this Section and Article II, Section 6 herein, SANBAG must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement. 12. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. 13. All expenses detailed in statements sent to SANBAG pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement and the issuance of Notice to Proceed as more particularly described in Article III, Section 16. 14. The parties mutually agree that no construction activities for the Project, nor future maintenance of the Structure once completed, that would interfere with operations of the Rail Corridor will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center(telephone number: 800 832-5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period. 15. Subject to the restrictions imposed by Article V, Section 14 above, the construction of the Project will not commence until SANBAG gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's Agreement No. BF-10003191 and must state the time that construction activities will begin. 16. Within 90 days of the conclusion of the Project and final acceptance by BNSF, SANBAG must provide BNSF with a complete electronic set of the bridge plans with the railroad clearances (prepared in English Units). BNSF will also accept a marked up paper copy of the bridge plans labeled "As Built". The marked up copy of those plans will reflect any and all deviations from the original plans that occurred during construction. The electronic set of bridge plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. The "As Built" plans shall show actual measured "as constructed" clearances as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. The As Built plans must comply with the Bridge Requirements set forth on Exhibit F and depict all Page 12 of 17 Palm Overhead —September 20,2012 C13018 2012-251 information in BNSF engineering stationing and mile post pluses. The As Built plans must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown. It is understood that BNSF prefers to receive the"As Built" plans in an electronic format. 17. In the event that BNSF shall deem it necessary or desirable in the future, in the performance of its duty as a common carrier, to raise or lower the grade or change the alignment of its tracks or to lay additional track or tracks or to build other facilities in connection with the operation of its railroad, BNSF shall, at its expense, have full right to make such changes or additions, provided such changes or additions do not change or alter the Structure herein proposed to be constructed and provided further, however, that should it become necessary or desirable in the future to change, alter, widen or reconstruct the Structure to accommodate railroad Projects, the cost of such work, including any cost incidental to alteration of railroad or highway facilities made necessary by the alteration of the Structure shall be the sole responsibility of CITY. 18. In the event CITY shall deem it necessary or desirable in the future, due to traffic conditions, to alter or reconstruct the Structure, it shall have full right to do so, subject to BNSF's approval of the plans and specifications therefore and to the Commission's jurisdiction; provided, however, that such alteration or reconstruction shall not encroach further upon or occupy the surface of BNSF's right of way herein provided to a greater extent than is contemplated by the plans and specifications to be approved by BNSF as provided in Article III, Section 1 hereof, without the prior written consent of BNSF, and execution of a supplement to this Agreement or the completion of a separate agreement. 19. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto and the Federal Highway Administration, for a period of three (3)years from the date of the final BNSF invoice under this Agreement. 20. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, no party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other parties. 21. In the event construction of the Project does not commence within three (3) years of the Effective Date, this Agreement will become null and void. 22. Neither termination nor expiration of this Agreement will release any party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 23. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 24. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein), together with previously acquired and recorded property rights if any, is the full and complete agreement between BNSF, CITY, and SANBAG with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 25. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager of Public Projects 740 E. Carnegie Drive San Bernardino, CA 92408 Email: Melvin.Thomas • bnsf.com Page 13 of 17 Palm Overhead —September 20,2012 C13018 2012-251 Director Structural Engineering 4515 Kansas Avenue Kansas City, KS 66106 Email: Byron.Burns(c�bnsf.com BNSF's Project Engineer 740 E. Carnegie Drive San Bernardino, CA 92408 Email: Greg.Rousseauc bnsf.com SANBAG: Garry Cohoe SANBAG Director of Project Delivery 1170 W. 3rd Street, 2nd Floor, San Bernardino, CA 92410 Phone number: (909) 884-8276 Fax number(909) 388-2002 Email: gcohoeCa�sanbag.ca.gov CITY: City of San Bernardino Attention: Robert Eisenbeisz Deputy Director/City Engineer 300 North D Street San Bernardino, CA 92418 Fax No: (909) 384-5573 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. Signature pages to follow. Page 14 of 17 Palm Overhead —September 20,2012 C13018 2012-251 BNSF RAILWAY COMPANY Printed Nacre: a rd C. Sexhus Title: c • -siden - gineenng WITNESS: Page 15 of 17 Palm Overhead —September 20,2012 C13018 2012-251 CITY OF SAN ERNARDINO By VA( YkkiVA61411 Andrea Travis- iller Acting City Manager Date: I APPROVED AS TO FORM: By: 4,,Ye ��, --- � . 431'44 �� : James F. Penman �. � 4- `!n,__ City Attorney � `�' Date: 1%---2 /49/1--° i2 Ci--%-4 / A. reje.SX' . Page 16 of 17 Palm Overhead —September 20,2012 C13018 2012-251 • SAN BERNARDINO ASSOCIATED GOVERNMENTS By: Janice Rutherford President- Board of Directors Date: Iv _ IL APPRO`A AS TO FORT By: 4' L Eileen Mole'an eic ert General Counsel Date: l 0/3/L2-- CONCURRENCE: BY: Contract Administrator Page 17 of 17 Palm Overhead —September 20,2012 C13018 in -z w Z ► V< _ NO G U Lp. L a L O O= 13 < OL • C > C • ,I 0_ ►� , N O Z o-c O•L•C O^• '` -- --• ii OJa j i E E On>e o�•;{� �oN P� O me • �- v, ~ - W CW .----- AO)T O • L < C �� - (!j LL& L, Cn N z - Y In L J U E • E • _• c�L O crinw r env b . 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' . 7.- ■ -. ■—tat•-■ •gr01.004 i I R , Mrd - , miel. ,I-o •434 1, ..i.0 ,---,-.-.^----- r 1 • 1 63 ' • -- \ ‘ 7 4- 0 Po In (s4 1 E'''A- co ' z .- ' t / __ ce <in 0-0 oz \ ■ •I , __ La_i >CW1.4•-••40 uji-,-..V/l•-• 1 0 8 Z N in cow --v■ 1 i ., . Ix•-• / / 1 ttl I / t4 it LLI CC in _10 z •, i-au.0 La cro•-• z S..,,,, i 01/1-"C•-• c•-.) /- La. 4 -/ 2A 0 -- r z *A 0 w :4 1 2012-251 EXHIBIT B To Construction and Maintenance Agreement • Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 1 2012-251 EASEMENT AGREEMENT FOR PALM AVENUE OVERHEAD (C&M Agreement) THIS EASEMENT AGREEMENT FOR PALM AVENUE OVERHEAD ("Easement Agreement") is made and entered into as of the day of 2012 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of San Bernardino, County of San Bernardino, State of California, at Mile Post 74+0340.05, as described or depicted on Exhibit "A-1" attached hereto and made a part hereof(the"Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of concerning improvements on or near the Premises (the"C&M Agreement"). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose(as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 2 �4: 2012-251 • Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. The term of the Temporary Easement for parcel APN 0266-011- 13, shall begin on the Notice to Commence Construction date as set forth hereinafter in Article III, Section 18 and Section 12 (c) of the Construction and Maintenance Agreement and ends, unless sooner terminated under provisions of this Easement Agreement, on the earlier of (i) substantial completion of the Project, or (ii) Thirty (30) months following the Notice to Commence Construction. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire. Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 3 2012-251 Section 6 Taxes and Recording Fees. Grantee 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 Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws 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, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act(collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor'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 Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee 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 Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above- stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9. Section 8 Default and Termination. 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail Exhibit B Easement Agreement Form 704Overpass;Rev. 8/17/11 4 2012-251 corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, 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 the Premises are restored as required by Section 9. 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 10 Liens. Grantee 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 Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with Exhibit B Easement Agreement Form 704Overpass;Rev. 8/17/11 5 2012-251 a•Notice of Assignment, attached as Exhibit "C-1", and Grantee shall execute an acknowledgement of receipt • . of such notice. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of California without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. ADMINISTRATIVE FEE 15. Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of$2,000.00 over and above the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check. Exhibit B Easement Agreement Form 704Overpass;Rev. 8/17/11 6 2012-251 Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Mark D. Ude Title: AVP-Corporate Real Estate Development GRANTEE: SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California By: Name: Janice Rutherford Title: President- Board of Directors Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 7 2012-251 • • EXHIBIT "A-1" To Easement Agreement Premises 2012-251 • Coast Surveying,Inc. June 11.2012 EXHIBIT"A-1" LEGAL DESCRIPTION AERIAL EASEMENT APN 0266-011-13 THAT PORTION OF GOVERNMENT LOT 37, RANCHO MUSCUPIABE, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLINE OF PALM AVENUE (64 FEET WIDE) AND THE NORTHEASTERLY RIGHT OF WAY LINE OF THE B.N.S.F. RAILROAD (150 FEET WIDE) (FORMERLY A.T. & S.F. R.R.) AS SHOWN ON A MAP FILED IN BOOK 84, PAGE 28 OF RECORDS OF SURVEY, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE NORTH 38°54'04" WEST 211.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH 51°05'32" WEST 150.00 FEET TO THE SOUTHWESTERLY RIGHT OF WAY LINE OF SAID RAILROAD; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 38°54'04" WEST 60.50 FEET; THENCE LEAVING SAID SOUTHWESTERLY LINE NORTH 51°05'32" EAST 150.00 FEET TO SAID NORTHEASTERLY RIGHT OF WAY LINE; THENCE ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH 38°54'04" EAST 60.50 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 9,075 SQUARE FEET, MORE OR LESS. SAID EASEMENT SHALL NOT EXCEED BELOW A LEVEL PLANE LOWER THAN 1713.7 FEET. THE LEVEL PLANE ELEVATION DESCRIBED ABOVE IS EXPRESSED IN TERMS OF THE NORTH AMERICAN VERTICAL DATUM OF 1988. THIS ELEVATION IS BASED ON THE CITY OF SAN BERNARDINO BENCH MARK "HI-I" WITH A PUBLISHED ELEVATION OF 1705.55 FEET ABOVE MEAN SEA LEVEL. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. DATED THIS 11T" DAY OF JUNE, 2012. LAND 0EL- �+�_ . �f' G■ LY146a— aT(4.:ma. c., o # xj u', L.S. 5108 GWEN-VERA DEL CASTILLO, PLS 5108 '-)� p� OF C At V�`. 1 JN 108078 APN 0266-011-13 Aerial 2012-251 \ "TN. OIOV -_07 37 \ \ \ 1O./ MD. 7/23 ho H.S. 0420 • r \ 4 O + + 4.0,. c36 O 0 + + T.P.T .B. \ + + + + J + + + + + + +++ ++ J 44 \ + ® e Q\ ` 0 ,c).,b,, . \,,\, siz- Oil \ LEGEND: c' P.O.C. F."+ '' AERIAL EASEMENT T \ + + AREA = +1- 9,075 SQ. FT. S Oil \ 1 y � A BENCH MARK: '`� 2 s \ O ELEVATIONS ARE BASED ON CITY OF SAN �4, \ X66' BERNARDINO BENCH MARK "HI-I", A 3 " <2 O STANDARD BRASS DISK STAMPED "T-1445-1989", 'A� piy /\ SET VERTICALLY IN THE NORTHERLY FACE OF THE -9,P \ sc� /� NORTHEAST COLUMN OF THE PALM AVENUE 0'2 \ .p� OVER-PASS OF 1-215, 4.9 FT. ABOVE THE GROUND. p • ' ELEV. = 1705.55 FEET (NAVD 88) / / ...p \ \ 6 gip.Cpl 0 \ 1 + + + + + + + + + + + i,�\o Gp ' + + +AERIAL EASEMENT + + + �,,�\) Q\ g� O,L \��p� c�. BOG LEVEL PLANE (BOTTOM �Q'. �. c� \ OF PROPOSED BRIDGE) Q�' �GF G' ELEV. = 1713.7' p ' 5 \ C:O TOP OF RAIL ELEV. = 1688.6' BEARING D I STANCE \ 1 S51° 05' 32" W 150. 00' AERIAL EASEMENT (TYPICAL SECTION) 2 N38° 54' 04"W 60. 50' 3 N51° 05' 32" E 150. 00' NOT TO SCALE VIEW NORTHWESTERLY 4 S38° 54' 04" E 60. 50' 5 N38° 54' 04" W 211. 63' JOB #: 108-078 DATE: 6-11-12 EXHIBIT „B" COAST SURVEYING, INC. SCALE: 1"=100' BNSF RAILROAD 15031 PARKWAY LOOP, SUITE 8 SHEET 1 OF 1 AP 0266-011-13 TUSTIN, CA 92780-6527 (714) 918-6266 2012-251 Coast Surveying,Inc. March 23,2012 EXHIBIT"A-1" LEGAL DESCRIPTION FOUNDATION EASEMENT APN 0266-011-13 THAT PORTION OF GOVERNMENT LOT 37, RANCHO MUSCUPIABE, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLINE OF PALM AVENUE (64 FEET WIDE) AND THE NORTHEASTERLY RIGHT OF WAY LINE OF THE B.N.S.F. RAILROAD (150 FEET WIDE) (FORMERLY A.T. & S.F. R•R.) AS SHOWN ON A MAP FILED IN BOOK 84, PAGE 28 OF RECORDS OF SURVEY, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 38°54'04" WEST 138.62 FEET ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE; THENCE LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH 51°05'32" WEST 150.00 FEET TO THE SOUTHWESTERLY RIGHT OF WAY LINE OF SAID RAILROAD; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 38°54'04" WEST 16.25 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE NORTH 38°54'04" WEST 28.00 FEET; THENCE LEAVING SAID SOUTHWESTERLY RIGHT OF WAY LINE NORTH 51°05'56" EAST 7.50 FEET; THENCE SOUTH 38°54'04" EAST 7.75 FEET; THENCE NORTH 51°05'32" EAST 4.50 FEET;THENCE SOUTH 38°54'28" EAST 12.50 FEET; THENCE SOUTH 51°05'32" WEST 4.50 FEET; THENCE SOUTH 38°54'04" EAST 7.75 FEET; THENCE SOUTH 51°05'56" WEST 7.50 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 266 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. LAND DATED THIS 11TH DAY OF JUNE, 2012. DEL Aell4e--cx-“Cetha' -e -(--* 0 , GWEN-VERA DEL CASTILLO, PLS 5108 L.S. 5108 LS. QF C to-A JN 108078 2012-251 PIN. GO V.o LOT 37 \ , nQ[�1C�n0o \�o o �MsCMP ° oC 0 1 \ • / M.E. 7/233 \ ‹0\) \ R.3. o a o \ r0 I4. 00 \ J<v n.© O � 1� \ o o 4. C,� © ��m �P�O <„, .• \ Cj.Co /�S . \ c,‘ C, P.O.C. /]• BEARING DISTANCE O/` 1 N38• 54' 04' W 211. 63' S 2 S51° 05' 32" W 150. 00' -72 -7,3 4 \3 N38° 54' 04' W 16. 25' Cr, \ O 4 N38° 54' 04" W 28. 00' -P 5 N51° 05' 56"E 7. 50' -7 6, 6 S38° 54' 04" E 7. 75' 4i,L O>> 7 N51° 05' 32" E 4. 50' O 'L� 8 S38° 54' 28' E 12. 50' '� �ki 9 S51° 05' 32' W 4. 50' \ 'A.p 10 S38° 54' 04' E 7. 75' 11 S51° 05' 56" W 7. 50' / // \ \O 66 ` // // / O-7 \ \ c0.1/ / / BO h O, / �/ G / P `< � \ / \G / )O / O / / O / O / or CK`L , Ft / c5'6 ,- y cL. c c.,- CY // \tJCD/ // / / / JOB #: 108-078 DATE:3-23-1 2 EXHIBIT B COAST SURVEYING, INC. SCALE: 1"=100' BNSF RAILROAD 15031 PARKWAY LOOP, SUITE 8 SHEET 1 OF 1 AP 0266-011-13 TUSTIN. CA 92780-6527 (714) 918-6266 2012-251 EXHIBIT "B-1" To Easement Agreement MEMORANDUM OF EASEMENT 2012-251 MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2012, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("Grantee"), whose address for purposes of this instrument is 1170 W. 3`d. Street, San Bernardino, California 92410-1715, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in County, as described on Exhibit "A-1" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated , 2012 (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. Page 1 of 2 2012-251 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to ' as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Mark D. Ude Title: AVP-Corporate Real Estate Development STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of , 2012, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: GRANTEE: SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, By: Name: Janice Rutherford Title: President- Board of Directors STATE OF CALIFORNIA § COUNTY OF SAN BERNARDINO § This instrument was acknowledged before me on the day of , 2012, by (name)as (title) of , a Notary Public (Seal) My appointment expires: Page 2 of 2 2012-251 EXHIBIT "C" To Construction and Maintenance Agreement CONTRACTOR REQUIREMENTS PALM AVENUE OVERHEAD 1.01 General: • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG") removal of the existing at-grade crossing at Palm Avenue, DOT # 026105N, CPUC # 002-74.00 through the construction of a new grade separated overhead crossing, USDOT No. 929074M, CPUC # 002B-74.06-A BNSF's Milepost 74.06, and Line Segment 7600 on BNSF's Cajon Subdivision. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit C-1 Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit C-1. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) SANBAG fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of(i) the Exhibit C-1 Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: Palm Ave Overhead May 25,2012 Page 1 of 10 2012-251 Garry Cohoe SANBAG Director of Project Delivery 1170 W. 3rd Street, 2nd Floor San Bernardino, CA 92410 Phone number: (909) 884-8276 Fax number(909) 388-2002 Email: gcohoe @sanbag.ca.gov • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under the Exhibit C-1 Agreement. • 1.01.06 The Contractor must notify SANBAG'S Director of Project Delivery (909-884-8276) and Railway's Manager Public Projects, telephone number 909-386-4472 at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railway's file BF-10003191. • 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. Palm Ave Overhead May 25,2012 Page 2 of 10 2012-251 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by SANBAG. • 1.03.02 The Contractor must notify the Railway's Division Engineer at 909-386-4504 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15'-0" Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts 1.03.04 Upon completion of construction, the following clearances shall be maintained: • 72'-0" Northeasterly from centerline of track, Main 1, to face of column Bent 3 and 39'-11" Southwesterly Horizontally from centerline of track, Main 3,to face of crash wall for Bent 2. • 25'-0"Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to SANBAG and must not be undertaken until approved in writing by the Railway, and until the AUTHORITY has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell=tales or protective devices will be borne by SANBAG. Palm Ave Overhead May 25,2012 Page 3 of 10 2012-251 .• 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by SANBAG for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his 'equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan: • 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. • 1.04.02 Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services for Railway under the Exhibit C-1 Agreement which are determined by Railway in its sole discretion a) to be on Railway's property, or b) that require access to Railway Critical Infrastructure, Railway Critical Information Systems, Railway's Employees, Hazardous Materials on Railway's property or is being transported by or otherwise in the custody of Railway, or Freight in Transit involving Railway. The required background screening shall at a minimum meet the rail industry background screening criteria Palm Ave Overhead May 25,2012 Page 4 of 10 2012-251 defined by the e-RAILSAFE Program as outlined at http://www.e-railsafe.com, in addition to any other . applicable regulatory requirements. Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railway's designee. Contractor shall be subject to periodic audit to ensure compliance. Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e-RAILSAFE Program standards. Railway shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railway's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railway's operations, assets or personnel. Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization. • 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (telephone 909-386-4061) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. Palm Ave Overhead May 25,2012 Page 5of10 2012-251 •, 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by SANBAG. The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 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, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. 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. • 1.05.03d The average daily train traffic on this route is 84 freight trains and 2 passenger trains. Train timetable speeds are: Westward: 50 MPH Passenger, 35 MPH Freight Eastward: 79 MPH Passenger, 55 MPH Freight Eastward: 70 MPH, Qualifying Freight 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Palm Ave Overhead May 25,2012 Page 6 of 10 2012-251 ,Pr.operty and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railway's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information contained on the web site and the information in this paragraph, the web site will govern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See interne Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the Palm Ave Overhead May 25,2012 Page 7 of 10 2012-251 desired clearance by visual means. 1.07 Excavation: • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Field Engineering Representative (909-386-4079). All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting: • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under the Exhibit C-1 Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b)take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. Palm Ave Overhead May 25,2012 Page 8 of 10 2012-251 ASrArV.SiF YEE PERSONAL INJURY DATA COLLECTION RA IL WAY NON-EMPLOYEE injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile accident, ensure that appropriate information is obtained,forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: Passenger on train (C) Non-employee (N) 0..e.,emp of another railroad ar,non-9NSFemp involved in vehicle accident,including company vehicles) Contractor/safety sensitive (F) Contractor/non-safety sensitive (G) Volunteer/safety sensitive (H) n Volunteer/other non-safety sensitive (I) Non-trespasser (D) - to include highway users involved in highway rail grade crossing accidents who did not go around or through gates Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates Non-trespasser(J)-Off Railway Property If train involved,Train ID: Transmit attached information to Accident/Incident Reporting Center by: Fax I-817-352-7595 or by Phone 1-800-D97-B73G ar email to: Accident-Reportinq.CenterNBNSF.cam Officer Providing Information: (Name) (Employee No.) (Phone#) REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C.20903 AND 83 U.S.C.490 Palm Ave Overhead May 25,2012 Page 9 of 10 2012-251 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABIITY I.Accident City/St: 2:Date: Time:: County: 3.Temperature: 4.Weather: (if non BNSF location) Mile Post/Line Segment 5.Driver's License No.(and state)or other ID: SSN(required): G.Name(last,first,mi): 7.Address: City: St: Zip: 8 Date of Birth: and/or Age: Gender: (If available) Phone Number: Employer: 9.Injury: 10.Body Part: (i.e.laceration,etc.) (i.e.Hand,etc.) 11.Description of Accident(To include location,action,result,etc.) 12.Treatment: ❑ First Aid Only ❑ Required Medical Treatment ❑ Other Medical Treatment 13.Dr.Name: Date: 14:Dr.Address: Street; City: St: Zip: 15:Hospital Name: 10:Hospital Address: Street; City: St: Zip: 17:Diagnosis: REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTIING REDUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C.20903 AND 83 U.S.C.490 Palm Ave Overhead May 25,2012 Page 10 of 10 2012-251 EXHIBIT "C-1" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSF RAILWAY COMPANY Attention: Manager Public Projects Railway File: BF-10003191 Agency Project: Palm Avenue Overhead-USDOT No. 929074M Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated , 201_, with SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG") for the performance of certain work in connection with the following project: Removal of the existing at-grade crossing at Palm Avenue, DOT # 026105N, CPUC # 002-74.00 through the construction of a new grade separated overhead crossing, USDOT No. 929074M, CPUC # 002B-74.06-A BNSF's Milepost 74.06, and Line Segment 7600 on BNSF's Cajon Subdivision. Performance of such work will necessarily require Contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for SANBAG (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's Property. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED Exhibit C-1 Palm Avenue Overhead-May 25,2012 Page 1 of 8 2012-251 • BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT,WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages,judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY'S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 2 of 8 2012-251 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 but in no event less than the amount otherwise carried by the Contractor. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limit 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 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. • Waver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway. • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy with regard to the work being performed under this agreement. 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 The policy shall also contain the following endorsements or language,which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway. • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 3 of 8 2012-251 C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ Contractor'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. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. D. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the following: • Endorsed to include the Pollution Exclusion Amendment ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railway prior to performing any work or services under this Agreement ♦ Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) in Railway's Blanket Railroad Protective Liability Insurance Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages. Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railway for all claims and suits. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under Contractor's care, custody, or control. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above, Exhibit C—I Palm Avenue Overhead-May 25,2012 Page 4 of 8 2012-251 Contractor is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, self-insured retention or other financial responsibility for claims shall be covered directly by Contractor in lieu of insurance. Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor's insurance will be covered as if Contractor elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to commencing the Work, Contractor shall furnish to Railway an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. The certificate should be directed to the following addresses: BNSF Railway Company Manager Public Projects 740 East Carnegie Drive San Bernardino, CA 92408 Phone: 909-386-4472 Fax: 909-386-4479 Melvin.Thomas(&,,bnsf.com AND BNSF Railway Company c/o CertFocus P.O. Box 140528 Kansas City, MO 64114 Toll Free: 877-576-2378 Fax number: 817-840-7487 Email: BNSF(a,certfocus.com www.certfocus.com Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non- renewal, substitution, or material alteration. Any insurance policy must be written by a reputable insurance company acceptable to Railway or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide. If coverage is purchased on a "claims made" basis, Contractor hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation or termination of this contract. Annually, Contractor agrees to provide evidence of such coverage as required hereunder. Contractor represents that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. Not more frequently than once every five years, Railway 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. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 5 of 8 2012-251 If any portion of the operation is to be subcontracted by Contractor, Contractor shall require that the subcontractor shall provide and maintain the insurance coverage(s) set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend, and indemnify Railway to the same extent and under the same terms and conditions as Contractor is required to release, defend, and indemnify Railway herein. Failure to provide evidence as required by this section shall entitle, but not require, Railway to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage. In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will make available any required policy covering such claim or lawsuit. These insurance provisions are intended to be a separate and distinct obligation on the part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work covered hereunder is performed. For purposes of this section, Railway means "Burlington Northern Santa Fe LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, , including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 6 of 8 2012-251 For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT. Contractor and its subcontractors must give Railway's representative (BNSF Project Engineer, 909-386-4079) eight (8) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 7 of 8 2012-251 Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which, upon execution by Railway, will constitute an Agreement between us. Contractor' BNSF Railway Company By: By: Printed Name: Name: Manager Public Projects Title: Accepted and effective this day of 20_. Contact Person: Address: City: State: Zip: Fax: Phone: E-mail: Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 8 of 8 2012-251 EXHIBIT D Flagging $360,000.00 Inspection $100,000.00 Signal $140,000.00 Track $150,000.00 TOTAL ESTIMATED COST RAILROAD WORK $750,000.00 2012-251 • Exhibit E Melvin Thomas BNSF Railway Company Manager Public Projects RA/L PVA Y 740 East Carnegie Drive San Bernardino,CA 92408 (909)386-4472(office) (909)831-8199(cell) (909)386-4479(fax) Melvin.ThomasCfbnsf.com Date: Mr. Garry Cohoe Director of Project Delivery San Bernardino Associated Governments 1170 W. 3rd Street, 2nd Floor San Bernardino, CA 92410 Re: Final Approval of Plans and Specifications dated by (consultant) (hereinafter called, the "Plans and Specifications") Dear Mr. Cohoe: This letter serves as BNSF RAILWAY COMPANY'S ("BNSF") final written approval of that portion of the Plans and Specifications covering the Project's concept for the construction of the Palm Avenue Overhead, U.S. D.O.T. No. 929074M involving the vertical clearances from top of rail to the bridge soffit and the horizontal clearances from center line of the tracks to face of the columns, piers, and/or abutments which ever be the case that will be constructed on or adjacent to BNSF's Rail Corridor. This final written approval is given to SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG") pursuant to Article III, Section 1 of that certain Construction and maintenance Agreement between BNSF, CITY OF SAN BERNARDINO, and SANBAG, which this Exhibit E is attached to and made a part thereof. If the Plans and Specifications are revised by SANBAG subsequent to the date set forth above, this letter shall no longer serve as final written approval of the Plans and Specifications and SANBAG must resubmit said Plans and Specifications to BNSF for final written approval. It is understood that the approvals contained in this letter do not cover, the approvals of plans and specifications for any falsework, shoring, and demolition that may be subsequently submitted to BNSF by SANBAG or its contractor for approval. BNSF has not reviewed the design details or calculations for structural integrity or engineering accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project. Respectfully, Melvin Thomas Manager Public Projects. _ BNSF Railway 2012-251 Exhibit F BNSF Bridge Requirements BRIDGE DESIGN,PLANS&SPECIFICATIONS: Except for the design of temporary falsework and shoring, BNSF review of the Structure plans will be limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks.BNSF will not review structural design calculations for the permanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. SANBAG shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6 inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the permanent Structure,SANBAG will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure.The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. . For the permanent Structure, AUTHORITY will submit plans showing the least vertical clearance from top of paving to bottom the deck of the proposed Structure. Prior to beginning construction of the permanent Structure,the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. The general policy of BNSF with regard to bridge and related crash wall construction is to follow the current recommendations of the American Railway Engineering and Maintenance-of- Way Association(AREMA)Current AREMA recommended practice in Manual for Railway Engineering Chapter 8 (Art.2.1.5.1). Prior to issuing any invitation to bid on construction of the Structure, SANBAG should conduct a pre-bid meeting where prospective Contractors have the opportunity to communicate with BNSF personnel regarding site specific train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the Project. BRIDGE CONSTRUCTION: After awarding the bid,but prior to the Contractor entering BNSF's railroad corridor or property, SANBAG should conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. SANBAG shall reimburse BNSF for all costs of supplemental inspection services. Form 0105 Rev. 4/07/08 Page 1 of 2 Palm Avenue Overhead,San Bernardino CA. 2012-251 ! Within 90 days of the conclusion of the Project and final acceptance by BNSF and CITY, SANBAG will provide BNSF with a complete electronic set of the bridge plans. BNSF will also accept a marked up paper copy of the bridge plans labeled"As Built". The marked up paper copy of the plans will reflect any and all deviations from the original plans that occurred during construction. The electronic set of the bridge plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. The "As Built" plans shall show actual measured "as constructed" clearances shall be shown as well as depth, size and location of all foundation components. The 'plans shall show dimensioned locations of existing and relocated utilities. It is understood that BNSF prefers to receive the"As Built"plans in an electronic format. BRIDGE MAINTENANCE: CITY will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes,erosion control,surface drainage,fencing,deck drains,landscaping,paint,walkways,handrails, lighting,and other improvements associated with the Project. Fencing and other pedestrian access controls within BNSF's rail corridor and incorporated into the Project shall be designed and maintained by SANBAG through construction. Trespasser control shall be the responsibility of SANBAG through construction. Graffiti removal will be the responsibility of CITY. BRIDGE INSPECTION: CITY will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, CITY will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary CITY will embargo weights or provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement,there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. It is expressly understood by SANBAG and CITY that the right to install utilities is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed closer to the abutments,piers, piles, footings and/or run through the deck of the Structure. Under no circumstances will utilities be allowed to hang from the Structure. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities. Page 2 of 2 Palm Avenue Overhead,Placentia CA. Form 0105 Rev. 4/14/05 2012-251 • Exhibit G Palm Avenue Overhead— Total Project Cost Construction Civil Items: $ 7,294,864 Structures Items: $ 4,353,940 Railroad Items: $ 750,000 Construction Support: $ 2,112,321 Right of Way ROW Acquisition: $ 5,476,619 ROW Utilities: $ 1,271,420 ROW Support: $ 200,000 Design: $ 3,000,000 Other Project Support: $ 18,836 TOTAL $24,478,000 2012-251 CONSTRUCTION and MAINTENANCE AGREEMENT BNSF Agreement No. BF-10003191 SANBAG Agreement No.C13018 Palm Avenue Overhead U.S. D.O.T. No. 929074M C.P.U.C. No. 002-74.06-A This Agreement ("Agreement"), is executed to be effective as of this 15th day of DCtnhar , 2012 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"), the CITY OF SAN BERNARDINO, a body corporate and politic of the State of California ("CITY"), and the SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG"). RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of San Bernardino, County of San Bernardino, State of California, hereinafter referred to as ("Rail Corridor"); WHEREAS, SANBAG and CITY desire to proceed with grade separating Palm Avenue and the Rail Corridor with the Palm Avenue Overhead crossing, by means of a three span, cast in place post- tensioned reinforced concrete box girder bridge, 402 feet long by 40 feet 5 inches wide, on concrete piers and abutments ("Structure"); WHEREAS, the existing Palm Avenue grade crossing, U.S. D.O.T. No. 026105N, C.P.U.C. Crossing No. 002-74.00, will be closed and removed upon completion of construction and the placing in service of said Structure; WHEREAS, SANBAG entered into Cooperative Agreement No. C08202 with the CITY dated October 06, 2008 which provides for SANBAG to obtain the environmental clearance and execute the design of the Palm Avenue grade separation project; WHEREAS, SANBAG entered into Cooperative Agreement No. C11180 with the CITY dated June 01, 2011 which provides for SANBAG to acquire right of way and administer funding for the Palm Avenue grade separation project; WHEREAS, SANBAG entered into Cooperative Agreement No. C12241 with the CITY dated July 11, 2012 which provides for SANBAG to advertise, construct, and administer funding for the Palm Avenue grade separation project; WHEREAS, pursuant to said Cooperative Agreements, upon completion and acceptance of the Structure by CITY, CITY will thereafter control and maintain the Structure at its sole cost and expense; WHEREAS, BNSF agrees to contribute a portion of the Project costs; WHEREAS, in order to construct the Project SANBAG must acquire certain rights-of-way from BNSF; WHEREAS, the parties desire to further define their respective rights and responsibilities associated with the construction and on going maintenance of the grade separated crossing. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Page 1 of 17 Palm Overhead —September 20,2012 C13018 2012-251 ARTICLE I—SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of the Structure, more particularly described on Exhibit A, attached hereto and incorporated herein, including but not limited to, any and all changes to telephone, telegraph, signal and electrical lines, other utilities and appurtenances, temporary and permanent track work, temporary detour road, fencing, grading, maintenance access roadways, alterations to or new construction of drainage facilities, slab bridge and fenced turnaround area, preliminary and construction engineering, right of way acquisition, construction management, and contract preparation. Additionally, temporary controls during construction must be in compliance with Section 8A-5, "Traffic Controls during Construction and Maintenance" of the Manual of Uniform Traffic Control Devices ("MUTCD"), U.S. Department of Transportation. ARTICLE II—BNSF OBLIGATIONS In consideration of the covenants of CITY and SANBAG set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. Upon SANBAG's payment to BNSF of an administrative fee in the sum of Two Thousand Dollars and No/100 dollars ($2,000.00), together with the sum of Thirty Four Thousand Six Hundred Forty Five and No/100 Dollars ($34,645.00), BNSF shall grant to SANBAG, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction License") to construct the Structure across or upon that portion of BNSF's Rail Corridor shown as three parcels on Exhibit A attached to this Agreement, excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said Rail Corridor; (b) Construct, operate, maintain, renew and/or relocate upon said Rail Corridor, without limitation, such facilities as the BNSF may from time to time deem appropriate, provided such facilities do not materially interfere with SANBAG's construction of the Project; (c) Otherwise use or operate the Rail Corridor as BNSF may from time to time deem appropriate, provided such use or operations does not materially interfere with SANBAG's construction of the Project, and ; The term of the Temporary Construction License shall begin on the Notice to Commence Construction date as set forth hereinafter in Article III, Section 18 and ends on the earlier of(i)substantial completion of the Project, or (ii) thirty months (30) months following the Notice to Commence Construction. The Temporary Construction License and related rights given by BNSF to SANBAG in this provision are without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words herein contained. The Temporary Construction License is for construction of the Project and shall not be used by SANBAG for any other purpose. SANBAG acknowledges and agrees that SANBAG shall not have the right, under the Temporary Construction License, to use the Structure. In the event SANBAG is evicted by anyone owning, or claiming title to or any interest in said Rail Corridor, BNSF will not be liable to SANBAG for any damages, losses or any expenses of any nature whatsoever. The granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere with the rights granted to SANBAG herein. Upon SANBAG's payment to BNSF of the additional sum of Thirty One Thousand Two Hundred Twenty Four and No/100 Dollars ($31,224.00), such payment to be made within thirty (30) days of the giving of the Notice to Proceed pursuant to Article III, Section 16 of this Agreement, and provided further that SANBAG is in compliance with the terms and conditions of this Agreement, BNSF will grant to SANBAG, its successors and assigns, a perpetual easement (hereinafter called, the "Easement") to enter upon and use that portion of BNSF's Rail Corridor as is necessary to use and maintain the Structure, Page 2 of 17 Palm Overhead —September 20,2012 C13018 2012-251 substantially in the form of Exhibit B attached to this Agreement. If SANBAG fails to pay BNSF within the thirty day time period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit D attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of SANBAG, which approval will not be unreasonably withheld. Construction of the Project will include the following principal elements of railroad work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the railroad work; (b) Preliminary engineering, design, and contract preparation; (c) Removal of the concrete crossing panels for the existing Palm Avenue grade crossing; (d) Removal of the existing Palm Avenue Signal Warning Devices; (e) Furnishing of flagging services necessary for the safety of BNSF's property and the operation of its trains during construction of the Project as set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof; (f) Furnishing of engineering and inspection as required in connection with the construction of the Project and; (g) Providing a contract project coordinator, at SANBAG's expense, to serve as a project manager for the Project. 3. BNSF will construct all railroad work set forth in Article II, Section 2 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements or by contractor(s) if necessary. 4. SANBAG agrees to reimburse BNSF for work of an emergency nature caused by SANBAG or SANBAG's contractor in connection with the Project which is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF without prior approval of SANBAG and SANBAG agrees to fully reimburse BNSF for all such emergency work. 5. BNSF may charge SANBAG for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability (including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 6. During the construction of the Project, BNSF will send SANBAG progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. SANBAG must reimburse BNSF for completed force-account work within forty-five (45) calendar days from the date of SAN BAG'S receipt of the invoice for such work. Upon completion of the Project, BNSF will send SANBAG a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this Section, SANBAG will verify such final costs. All undisputed costs set forth in the final invoice shall be paid within ninety (90) calendar days from the date of the final invoice. The Parties agree to take reasonable efforts to resolve any disputed cost in a timely manner. BNSF will assess a finance charge of 0.033% per day (12% per annum) on any unpaid sums or other charges due Page 3 of 17 Palm Overhead —September 20,2012 C13018 2012-251 under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date the payment is received by BNSF, not the date that payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any un-posted payments received by the month's end. Finance charges will be noted on invoices sent to SANBAG under this Section 6. For purposes of computing the time limits prescribed by Section 911.2 of the CALIFORNIA GOVERNMENT CODE for the presentment of a claim against SANBAG. the cause of action for failure to reimburse BNSF for the cost of the Railroad Work performed by it pursuant to this Agreement shall be deemed to have accrued one hundred eighty (180) days from the date of the final invoice. ARTICLE III—SANBAG OBLIGATIONS In consideration of the covenants of CITY and BNSF set forth herein and the faithful performance thereof, SANBAG agrees as follows: 1. SANBAG shall furnish to BNSF and CITY plans and specifications for the Project together with calculations with the railroad clearances expressed in English Units. One complete reduced size 11" x 17" paper copy shall be submitted to BNSF's Director of Structural Engineering. A PDF copy of the plans and specifications should be sent to both BNSF's Manager Public Projects and BNSF's Director Structural Engineering. The PDF copy with a file size of two (2) megabytes or less should be sent via an email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD (Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF offices. The email and mailing addresses are included in Article V, Section 25. Sets of said plans shall be submitted to BNSF and CITY for approval prior to commencement of any construction. BNSF will give SANBAG final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and specifications meet BNSF standard specifications, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building code. 2. SANBAG must provide for and maintain minimum vertical and horizontal clearances, as required and approved by BNSF as part of the plans and specifications for the Project. 3. SANBAG must make any and all arrangements, in compliance with BNSF's Utility Accommodation Manual (http://www.bnsf.com/communities/fags/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Project. 4. SANBAG must make application to the Public Utilities Commission of the State of California ("Commission") for an order authorizing construction of the Project and to furnish to the Commission plans of the proposed construction, approved by BNSF and CITY, together with a copy of this Agreement and to obtain all other required permits and approvals for the construction of the Project. 5. SANBAG must construct the Project as shown on the attached Exhibit A and do all work provided for in the plans and specifications for the Project, except railroad work that will be performed by BNSF herein. SANBAG must furnish all labor, materials, tools and equipment for the performance of SANBAG's work. The principal elements of SANBAG's work are as follows: (a) Preliminary and final Engineering; b Desi•n and the Construction of the Structure; Page 4 of 17 Palm Overhead —September 20,2012 C13018 2012-251 (c) Providing of suitable drainage, both temporary and permanent including the relocation of drainage off of BNSF property and between Bent 3 and Abutment 4; (d) Construct a vehicle barrier between Cajon Boulevard and BNSF's southwesterly right of way line; (e) Construct a wrought iron fence along BNSF's northeasterly right of way line including, a BNSF maintenance access gate; (f) All other necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on BNSF's Rail Corridor; (g) Application of the D.O.T. Crossing Number 929074M and the C.P.U.C. Crossing No. 002- 74.06-A in conspicuous locations on the Structure; (h) Providing of pedestrian and/or trespasser control during construction; (i) Installation and maintenance of throw fences consisting of an 8 ftoot high fence with inward curved top and a 10 foot high vertical fence both mounted on concrete barriers on the outer edges of the Structure's deck; and (j) Job site cleanup within Project area including removal of all construction materials, concrete debris, surplus soil, refuse, disturbed contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF; 6. SAN BAG will acquire all properties required to construct the Project. 7. SANBAG's Work must be performed by SANBAG or SANBAG's contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. 8. SANBAG must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C. Additionally, SANBAG must require its contractor(s) to notify BNSF's Manager of Public Projects thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 9. SANBAG or its contractor(s) shall submit one reduced size 11" x 17" paper copy, including calculations, expressed in English Units of the plans and specifications for proposed shoring, falsework, or cribbing to be used over, under, or adjacent to BNSF's tracks to BNSF's Director Structural Engineering. SANBAG or its contractor(s) shall submit a PDF copy of the plans and specifications for the proposed shoring, falsework, or cribbing to both BNSF's Manager Public Projects and BNSF's Director Structural Engineering. The PDF copy with a file size of two (2) megabytes or less should be sent via an email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD (Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF offices for approval. The email and mailing addresses are included in Article V, Section 25. The shoring, falsework or cribbing used by SANBAG's contractor shall comply with the BNSF Bridge Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein, and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. Falsework shall be designed according to the State of California, Department of Transportation FALSEWORK MANUAL available at this Web Site: http://www.dot.ca.gov/ha/esc/construction/manuals/OSCCompleteManuals/FalseworkManual.pdf 10. SANBAG must include the following provisions in any contract with its contractor(s) performing work on said Project: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications companies may be Page 5 of 17 Palm Overhead —September 20,2012 C13018 2012-251 buried on BNSF's property or Rail Corridor. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF's Engineering Representative (909) 386- 4079, BNSF's Signal Representative (909) 386-4053 and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The contractor must also use all reasonable methods when working in the BNSF Rail Corridor or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) Failure to mark or identify these Lines will be sufficient cause for any BNSF Representative to stop construction at no cost to SAN BAG or BNSF until these items are completed. (c) In addition to the liability terms contained elsewhere in this Agreement, the contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by Contractor, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's Rail Corridor, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's Rail Corridor, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. (d) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements. 11. SANBAG must incorporate in each prime contract for construction of the Project, or the specifications therefore (i) the provisions set forth in Article III, Sections 7, 8, 9, 10, and 12; (ii) the provisions set forth in Article V, Sections 1, 2, 3, 4, 5, 6, 7, 14 and 15, and (iii) the provisions set forth in Exhibit C, Exhibit C-I, and Exhibit F, attached hereto and by reference made a part hereof. 12. Except as otherwise provided below in this Section 12, all construction work performed hereunder by SANBAG for the Project will be pursuant to a contract or contracts to be let by SANBAG, and all such contracts must include the following: (a) All work performed under such contract or contracts within the limits of BNSF's Rail Corridor must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; (c) No work will be commenced within BNSF's Rail Corridor until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF a letter agreement in the form of Exhibit C-I, and (ii) delivered to and secured BNSF's approval of the required insurance; and (d) If it is in SANBAG's best interest, SAN BAG may direct that the construction of the Project be done by da labor under the direction an. •• • • :► :_ • • - -• •••-, Page 6 of 17 Palm Overhead —September 20,2012 C13018 2012-251 opinion of SANBAG, the contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, SAN BAG may terminate its contract with the contractor and take control over the work and proceed to complete the same by day labor or by employing another contractor(s) provided; however, that any contractor(s) replacing the original contractor(s) must comply with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, SANBAG will, at its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C-1. (e) To facilitate scheduling for the Project, SANBAG shall have its contractor give BNSF's Project Engineer at telephone number 909 386 4079 eight (8) weeks advance notice of the proposed times and dates for work windows. BNSF and SANBAG's contractor will establish mutually agreeable work windows for the Project. SANBAG shall inform its contractor that any request for work windows with less than eight (8) weeks advance notice will have a reduced probability of approval. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the contractor's expenses for the Project. (f) The plans and specifications for the Project must be in compliance with the Bridge Requirements set forth in said Exhibit F, attached to this Agreement and incorporated herein. 13. SANBAG must advise BNSF's Manager of Public Projects, in writing, of the completion date of the Project within thirty (30) days after such completion date. Additionally, SANBAG must notify BNSF's Manager of Public Projects, in writing, of the date on which SANBAG, and/or CITY and/or SANBAG's Contractor will meet with BNSF for the purpose of making final inspection of the Project. 14. SANBAG, shall quit claim to City, within sixty (60) days after SANBAG'S notification of the completion date the Project, as provided for in Article III, Section 13 above, all of its right title and interest in the perpetual easement granted to SAN BAG by BNSF pursuant to the provisions in Article II, Section 1 of this Agreement. 15. TO THE FULLEST EXTENT PERMITTED BY LAW, SANBAG HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS 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 AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF SANBAG, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY SANBAG, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF SANBAG, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) SANBAG'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE GRANTED TO SANBAG PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO SANBAG PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) SANBAG'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR, OR (VII) AN ACT OR OMISSION OF SANBAG OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY SANBAG WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONFn BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, Page 7 of 17 Palm Overhead —September 20,2012 C13018 2012-251 SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. 16. SAN BAG must give BNSF's Manager of Public Projects written notice to proceed ("Notice to Proceed") with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written notice to proceed is received from SANBAG. The Notice to Proceed must reference BNSF's Agreement No. BF-10003191. 17. SANBAG must perform all necessary work to obtain the permanent closure and vacation of Palm Avenue across BNSF's right-of-way and must barricade the road approaches prior to completion of the Project. BNSF will cooperate with SANBAG to achieve the closure and vacation of Palm Avenue and will remove the crossing surface within its right-of-way. 18. SANBAG must give BNSF's Manager of Public Projects written notice to commence construction ("Notice to Commence Construction") when the Contractor has satisfied the requirements set forth hereinafter in Article III, Section 12 (c) and will enter BNSF Rail Corridor to begin construction. The Notice to Commence Construction must reference BNSF's Agreement No. BF10003191. ARTICLE IV-CITY OBLIGATIONS IN CONSIDERATION of the covenants of BNSF and SANBAG herein contained and the faithful performance thereof, CITY agrees: 1. To permit SAN BAG to act as the responsible lead agency to design and construct the Project. 2. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions set forth in Exhibit F, BNSF and CITY agree as follows: (a) Upon completion of construction of the Project, CITY will, own and maintain, at its sole cost and expense, the Structure, the highway approaches, and appurtenances thereto, lighting, drainage and any access roadways to BNSF gates installed pursuant to this Agreement. BNSF may, at its option, perform maintenance on the Structure in order to avoid conflicts with train operations. BNSF will notify CITY prior to performing any such maintenance on the Structure. In the event such maintenance involves emergency repairs, BNSF will notify CITY at its earliest opportunity. CITY must fully reimburse BNSF for the reasonable costs of maintenance performed by BNSF pursuant to this subsection (a); (b) CITY must, at CITY's sole cost and expense, keep the Structure free from graffiti. (c) CITY must maintain D.O.T. Crossing Number 929074M and C.P.U.C. Crossing No. 002- 74.06-A in legible condition in the conspicuous locations on the Structure where applied by SANBAG during construction; (d) It is understood by CITY that the right to install utilities is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, footings and/or run through the deck of the Structure. Under no circumstances will utilities be allowed to hang from the Structure. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities; (e) Upon request from BNSF, CITY shall remove all trash and debris associated with the Structure from BNSF's property; Page 8 of 17 Palm Overhead —September 20,2012 C13018 2012-251 (f) CITY must provide BNSF with any and all necessary permits and maintain roadway traffic controls, at no cost to BNSF, whenever requested by BNSF to allow BNSF to inspect the Structure or to make emergency repairs thereto; (g) CITY must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals; (h) CITY hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access from City property to BNSF tracks for maintenance purposes; (i) CITY must, at CITY's sole cost and expense, maintain the throw fences consisting of an 8 foot high fence with inward curved top and a 10 foot high vertical fence both mounted on concrete barriers on the outer edges of the Structure's deck; and (j) If CITY (including its contractors and agents) or BNSF, on behalf of CITY, performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then CITY or its contractors and/or agents must procure and maintain the following insurance coverage, and other the insurance requirements as contained in Exhibit C-1, which may be changed from time to time: Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 12 04 and include the following: • Endorsed to include the Pollution Exclusion Amendment • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railroad prior to performing any work or services under this Agreement • Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations. As used in this paragraph, "Railroad" means "Burlington Northern Santa Fe, LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. In lieu of providing a Railroad Protective Liability Policy, CITY may participate in BNSF's Blanket Railroad Protective Liability Insurance Policy if available to CITY or its contractors. The limits of coverage are the same as above. 3. Subject to the restrictions imposed by Article V, Section 14 below, CITY must notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's Rail Corridor for INSPECTION OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will determine if flagging is required. CITY must procure and maintain the insurance coverage required by Exhibit C-1 and comply with the obligations set forth in Exhibit C and Exhibit F, as the same may be revised from time to time. If the construction work hereunder is contracted, CITY must require its prime contractor(s) to comply with the obligations set forth in Exhibit C and Exhibit C-1, and Exhibit F, as the same may be revised from time to time. CITY will be - •• '• - • • • • • • '. - „' • •• '•. '• . Page 9 of 17 Palm Overhead —September 20,2012 C13018 2012-251 4. TO THE FULLEST EXTENT PERMITTED BY LAW, CITY HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS 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 AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (IV) CITY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR, INCLUDING WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY CITY, OR (V)AN ACT OR OMISSION OF CITY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY CITY WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS, ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. ARTICLE V-JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. BNSF will notify SANBAG of potential impacts to Project at the time said impacts are known subject to the provisions of Article II, Item 4. 2. The work hereunder must be performed in accordance with the Bridge Requirements set forth in Exhibit F and the detailed plans and specifications approved by BNSF. 3. SANBAG must require its contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. At BNSF's discretion, any work that would affect train operations shall be scheduled at night. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF shall have the right to request any SANBAG employee, or CITY employee, who enters BNSF's Rail Corridor and because of their incompetence, neglect of duty, unsafe conduct or misconduct Page 10 of 17 Palm Overhead —September 20,2012 C13018 2012-251 and/or they adversely affected BNSF's operations or facilities, be removed from the Rail Corridor. In the event SANBAG or CITY elects not to honor such request, BNSF may stop work within its Rail Corridor until the matter has been fully resolved to BNSF's satisfaction. The party whose employee has been asked to leave the Rail Corridor will indemnify BNSF and the other parties against any claims arising from such removal. 5. BNSF will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor(or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Contractor (or any of its subcontractors), in BNSF's opinion, prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or(iv) SANBAG fails to pay BNSF for the Easement pursuant to Article II, Section 1 of this Agreement. The work stoppage will continue until all necessary actions are taken by SANBAG, Contractor or its subcontractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until additional insurance has been delivered to and accepted by BNSF. In the event of a breach of (i) this Agreement, (ii) the Temporary Construction License, or (iii) the Easement, BNSF may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Garry Cohoe SAN BAG Director of Project Delivery 1170 W. 3rd Street, 2"d Floor San Bernardino, CA 92410 Phone number: (909) 884-8276 Fax number(909) 388-2002 Email: gcohoesanbag.ca.gov 6. SANBAG's or CITY's employees, agents, contractors, representatives and invitees shall wear Personal Protective Equipment ("PPE") when on the BNSF's Rail Corridor during construction of the Project or performing subsequent maintenance after completion of construction. The PPE shall meet applicable OSHA and ANSI specifications. Current BNSF PPE requirements are listed on the web site,www.contractororientation.com. A partial list of BNSF's PPE requirements include; a) safety glasses: permanently affixed side shields; no yellow lenses, b) hard hats with high visibility orange cover, c) safety shoes: hardened toe, above-the-ankle lace-up with a defined heel and d), high visibility retro-reflective orange vests are required as specified by BNSF's representative in charge of the Project. PPE requirements as defined on the web site, will be amended from time to time, and shall take precedence over the Partial list of requirements outlined in this Section 6 of Article V. Hearing protection, fall protection and respirators will be worn as required by State and Federal regulations. 7. SANBAG must supervise and inspect the operations of all SANBAG contractors to assure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is not being performed by SANBAG personnel at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating Rail Corridor). Construction of the Project will not proceed until SANBAG corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify SANBAG'S Director of Project Delivery for appropriate corrective action. 8. BNSF shall contribute the amount of Six Hundred Eighty Nine Thousand Seven Hundred Ten and No/100 Dollars ($689,710.00) toward the cost of the Projectst(hereinafter referred to as "BNSF's Share"). BNSF's Share is based on the costs for preliminary engineering, right-of-way, and construction within the following limits: (a) Where a grade crossing is eliminated by grade separation, the structure and approaches required to transition to a theoretical highway profile which would have been constructed if Page 11 of 17 Palm Overhead —September 20,2012 C13018 2012-251 there were no railroad present, for the number of lanes on the existing highway and in accordance with the current design standards of the appropriate state highway agency; and (b) Where another facility, such as a highway or waterway, requiring a bridge structure is located within the limits of a grade separation project, the estimated cost of a theoretical structure and approaches as described in 23 CFR 646.210(c)(1) to eliminate the railroad-highway grade crossing without considering the presence of the waterway or other highway. The total cost of constructing the Project is estimated to be Twenty Four Million Four Hundred Seventy Eight Thousand and No/100 Dollars ($24,478,000.00), more particularly described on Exhibit G attached hereto and incorporated herein. 9. BNSF will make payment in full of BNSF's Share to SANBAG upon receipt of a detailed invoice of the Project's final costs, together with written advice of the Project's date of completion as provided for hereinabove in Article III Section 13. ok 10. SANBAG agrees to furnish BNSF's Manager Public Projects monthly Project Progress Reports that detail work completed, percentage of Project completeness, an updated projection of the Project's final cost, and the Project's estimated completion date for BNSF's use in budgeting BNSF's Share. 11. Pursuant to this Section and Article II, Section 6 herein, SANBAG must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement. 12. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. 13. All expenses detailed in statements sent to SANBAG pursuant to Article II, Section 6 herein will comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project even though such work may have preceded the date of this Agreement and the issuance of Notice to Proceed as more particularly described in Article III, Section 16. 14. The parties mutually agree that no construction activities for the Project, nor future maintenance of the Structure once completed, that would interfere with operations of the Rail Corridor will be permitted during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior notification to BNSF's Network Operations Center(telephone number: 800 832-5452). The parties hereto mutually understand and agree that trains cannot be subjected to delay during this time period. 15. Subject to the restrictions imposed by Article V, Section 14 above, the construction of the Project will not commence until SANBAG gives BNSF's Manager of Public Projects thirty (30) days prior written notice of such commencement. The commencement notice will reference BNSF's Agreement No. BF-10003191 and must state the time that construction activities will begin. 16. Within 90 days of the conclusion of the Project and final acceptance by BNSF, SANBAG must provide BNSF with a complete electronic set of the bridge plans with the railroad clearances (prepared in English Units). BNSF will also accept a marked up paper copy of the bridge plans labeled "As Built". The marked up copy of those plans will reflect any and all deviations from the original plans that occurred during construction. The electronic set of bridge plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. The "As Built" plans shall show actual measured "as constructed" clearances as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. The As Built plans must comply with the Bridge Requirements set forth on Exhibit F and depict all Page 12 of 17 Palm Overhead —September 20,2012 C13018 2012-251 information in BNSF engineering stationing and mile post pluses. The As Built plans must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown. It is understood that BNSF prefers to receive the"As Built" plans in an electronic format. 17. In the event that BNSF shall deem it necessary or desirable in the future, in the performance of its duty as a common carrier, to raise or lower the grade or change the alignment of its tracks or to lay additional track or tracks or to build other facilities in connection with the operation of its railroad, BNSF shall, at its expense, have full right to make such changes or additions, provided such changes or additions do not change or alter the Structure herein proposed to be constructed and provided further, however, that should it become necessary or desirable in the future to change, alter, widen or reconstruct the Structure to accommodate railroad Projects, the cost of such work, including any cost incidental to alteration of railroad or highway facilities made necessary by the alteration of the Structure shall be the sole responsibility of CITY. 18. In the event CITY shall deem it necessary or desirable in the future, due to traffic conditions, to alter or reconstruct the Structure, it shall have full right to do so, subject to BNSF's approval of the plans and specifications therefore and to the Commission's jurisdiction; provided, however, that such alteration or reconstruction shall not encroach further upon or occupy the surface of BNSF's right of way herein provided to a greater extent than is contemplated by the plans and specifications to be approved by BNSF as provided in Article III, Section 1 hereof, without the prior written consent of BNSF, and execution of a supplement to this Agreement or the completion of a separate agreement. 19. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto and the Federal Highway Administration, for a period of three (3) years from the date of the final BNSF invoice under this Agreement. 20. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, no party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other parties. 21. In the event construction of the Project does not commence within three (3) years of the Effective Date, this Agreement will become null and void. 22. Neither termination nor expiration of this Agreement will release any party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 23. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 24. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein), together with previously acquired and recorded property rights if any, is the full and complete agreement between BNSF, CITY, and SANBAG with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 25. Any notice provided for herein or concerning this Agreement must be in writing and will be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: BNSF's Manager of Public Projects 740 E. Carnegie Drive San Bernardino, CA 92408 Email: Melvin.Thomasabnsf.com Page 13 of 17 Palm Overhead —September 20,2012 C13018 2012-251 Director Structural Engineering 4515 Kansas Avenue Kansas City, KS 66106 Email: Byron.Burnsabnsf.com BNSF's Project Engineer 740 E. Carnegie Drive San Bernardino, CA 92408 Email: Greg.Rousseau anbnsf.com SANBAG: Garry Cohoe SAN BAG Director of Project Delivery 1170 W. 3`d Street, 2nd Floor, San Bernardino, CA 92410 Phone number: (909) 884-8276 Fax number(909) 388-2002 Email: gcohoe asanbag.ca.gov CITY: City of San Bernardino Attention: Robert Eisenbeisz Deputy Director/City Engineer 300 North D Street San Bernardino, CA 92418 Fax No: (909) 384-5573 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. Signature pages to follow. Page 14 of 17 Palm Overhead —September 20,2012 C13018 2012-251 BNSF RAILWAY COMPANY By: Printed Name: Sanford C. Sexhus Title: Vice President Engineering WITNESS: Page 15 of 17 Palm Overhead —September 20,2012 C13018 2012-251 CITY OF SAN BERNARDINO By Andrea Travis-Miller Acting City Manager Date: APPROVED AS TO FORM: By: i,,Y ,, -- , .ci4"u�®ee:•° ; 4,4°,4efe- James F. Penman City Attorney f ".2 Date: /o Lo /z- / tgO /1" r"5/ Page 16 of 17 Palm Overhead —September 20,2012 C13018 2012-251 SAN BERNARDINO ASSOCIATED GOVERNMENTS By: C vF� 2l-A- t- cam,. Janice Rutherford President- Board of Directors Date: 1 v I ) �- APPRO`� AS TO FORT By: I' 1L Eileen Mo'r an eic ert General Counsel Date: l 0/3/ `— CONCURRENCE: BY: 1 ,;le Htll 4‘.......1 Contract Administrator Page 17 of 17 Palm Overhead —September 20,2012 C13018 • ' ro Ln 1 .- La z . „L-,01 UM „0-,G2 t-- < .- La -. -I /- Za w 71 . o< L.) 0 i 'i'''X 0 0 0 L PI L c'm 6 - tn -„ v gx "o- PI < L •0' e c • c gIv c.)VI >0..._. >0.- > 4- br 0 w z 2 0;c oLc 0. . , . x . 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' In ,,, Sji L) • 1- khl ' I ,t, 1 ' * ': ;-"'_I •-•>- •• CI..""Z 2 0 ro w \ 0..zow 3 WM V) \ ', I r• - ,, w w ti 1 -4„, „ - i -0 ,, -. =,-).-- z otn-I.<- _Nt i 1 I ' ix 0 _I < I <oi. -i •0 _, ' , I .. s. . . z• La ;V _, ... 1 2012-251 EXHIBIT B To Construction and Maintenance Agreement Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 1 2012-251 EASEMENT AGREEMENT FOR PALM AVENUE OVERHEAD (C&M Agreement) THIS EASEMENT AGREEMENT FOR PALM AVENUE OVERHEAD ("Easement Agreement") is made and entered into as of the day of 2012 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("Grantee"). A. Grantor owns or controls certain real property situated at or near the vicinity of San Bernardino, County of San Bernardino, State of California, at Mile Post 74+0340.05, as described or depicted on Exhibit "A-1" attached hereto and made a part hereof(the "Premises"). B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement dated as of concerning improvements on or near the Premises (the"C&M Agreement"). C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the Easement Purpose (as defined below). D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set forth in this Easement Agreement. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement. Any improvements to be constructed in connection with the Easement Purpose are referred to herein as "Improvements" and shall be constructed, located, configured and maintained by Grantee in strict accordance with the terms of this Easement Agreement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto Grantee a non-exclusive easement ("Easement") over the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or administrative decisions and orders, including Environmental Laws (defined below) and zoning laws (collectively, "Laws"),. Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Grantor. Grantor excepts and reserves the right, to be exercised by Grantor and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Grantee for the Easement Purpose. Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 2 2012-251 Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement Agreement, shall be perpetual. The term of the Temporary Easement for parcel APN 0266-011- 13, shall begin on the Notice to Commence Construction date as set forth hereinafter in Article III, Section 18 and Section 12 (c) of the Construction and Maintenance Agreement and ends, unless sooner terminated under provisions of this Easement Agreement, on the earlier of (i) substantial completion of the Project, or (ii) Thirty (30) months following the Notice to Commence Construction. Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. Grantee acknowledges that this Easement Agreement does not contain any implied warranties that Grantee or Grantee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND GRANTEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund Grantee any compensation paid hereunder. Section 5 Improvements. Grantee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Grantor, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by Grantee will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), Grantee will be responsible at Grantee's sole risk to locate and make any adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. Grantee must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. Grantee must also use all reasonable methods when working on or near Grantor property to determine if any Other Improvements (fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises, said work of cutting and removal to be done at such times and with such frequency as to comply with Grantee and local laws and regulations and abate any and all hazard of fire. Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 3 2012-251 Section 6 Taxes and Recording Fees. Grantee 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 Grantor or the Premises that are attributable to the Improvements. Grantee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of Grantee's failure to do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and local environmental Laws 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, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act(collectively referred to as the "Environmental Laws"). Grantee shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. Grantee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. Grantee shall give Grantor immediate notice to Grantor'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 Grantee's use of the Premises. Grantee shall use its best efforts to promptly respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release. In the event that Grantor has notice from Grantee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or activities upon the Premises known to Grantee 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 Grantee's reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed on it by this Easement Agreement. Grantee shall promptly respond to Grantor's request for information regarding said conditions or activities. 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee not comply fully with the above- stated obligations of this Section 7, notwithstanding anything contained in any other provision hereof, Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in Section 9. Section 8 Default and Termination. 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of such work as Grantor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Grantor, or anyone or anything present on the rail Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 4 2012-251 , corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement Agreement. 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement Agreement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, 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 the Premises are restored as required by Section 9. 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Grantor may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement Agreement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement Agreement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Grantor. The terms of this limited license include all of Grantee's obligations under this Easement Agreement. Termination will not release Grantee from any liability or obligation under this Easement Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 10 Liens. Grantee 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 Grantee on the Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve Grantee of any obligation or liability under this Section 10 or any other section of this Easement Agreement. Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide Grantee with Exhibit B Easement Agreement Form 704Overpass;Rev. 8/17/11 5 2012-251 a Notice of Assignment, attached as Exhibit "C-1", and Grantee shall execute an acknowledgement of receipt of such notice. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Grantor under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to Grantee. Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement Agreement. Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B-1" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within days of the Effective Date, Grantor shall have the right to terminate this Easement Agreement upon notice to Grantee. Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement Agreement shall be decided according to the substantive Laws of the State of California without regard to conflicts of law provisions. 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of Grantee herein contained shall be the joint and several covenants and agreements of such parties. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. 14.3 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.4 If any provision of this Easement Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee with respect to all matters relating to Grantee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Grantee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or Grantee's obligation to defend and hold Grantor harmless in any prior written agreement between the parties. 14.6 Time is of the essence for the performance of this Easement Agreement. ADMINISTRATIVE FEE 15. Grantee acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of$2,000.00 over and above the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check. Exhibit B Easement Agreement Form 704Overpass; Rev. 8/17/11 6 2012-251 Witness the execution of this Easement Agreement as of the date first set forth above. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Mark D. Ude Title: AVP-Corporate Real Estate Development GRANTEE: SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California By: Name: Janice Rutherford Title: President- Board of Directors Exhibit B Easement Agreement Form 7040verpass;Rev. 8/17/11 7 2012-251 EXHIBIT "A-1" To Easement Agreement Premises 2012-251 Coast Surveying.Inc. June 1 1.2012 EXHIBIT"A-1" LEGAL DESCRIPTION AERIAL EASEMENT APN 0266-011-13 THAT PORTION OF GOVERNMENT LOT 37, RANCHO MUSCUPIABE, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLINE OF PALM AVENUE (64 FEET WIDE) AND THE NORTHEASTERLY RIGHT OF WAY LINE OF THE B.N.S.F. RAILROAD (150 FEET WIDE) (FORMERLY A.T. & S.F. R.R.) AS SHOWN ON A MAP FILED IN BOOK 84, PAGE 28 OF RECORDS OF SURVEY, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE NORTH 38°54'04"WEST 211.63 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH 51°05'32" WEST 150.00 FEET TO THE SOUTHWESTERLY RIGHT OF WAY LINE OF SAID RAILROAD; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 38°54'04" WEST 60.50 FEET; THENCE LEAVING SAID SOUTHWESTERLY LINE NORTH 51°05'32" EAST 150.00 FEET TO SAID NORTHEASTERLY RIGHT OF WAY LINE; THENCE ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH 38°54'04" EAST 60.50 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 9,075 SQUARE FEET, MORE OR LESS. SAID EASEMENT SHALL NOT EXCEED BELOW A LEVEL PLANE LOWER THAN 1713.7 FEET. THE LEVEL PLANE ELEVATION DESCRIBED ABOVE IS EXPRESSED IN TERMS OF THE NORTH AMERICAN VERTICAL DATUM OF 1988. THIS ELEVATION IS BASED ON THE CITY OF SAN BERNARDINO BENCH MARK "HI-I" WITH A PUBLISHED ELEVATION OF 1705.55 FEET ABOVE MEAN SEA LEVEL. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. DATED THIS 11TH DAY OF JUNE, 2012. - t,AAND S'4, Itily6 of 48-a,- aTra_ica, off1� u2.., L.S. 5108 '''r ; r' . GWEN-VERA DEL CASTILLO, PLS 5108 9' F o : OF CAS-S 1 JN 108078 APN 0266-011-13 Aerial 2012-251 IP°TIMo 60V - 07 37 \ . ,60 0 IMI USC�M�7��I°Q o E \ 1O IJVIJo o U/CS3 �o R.S. 0420 • r + + + T.P.O.8. \ + + + + F + + + + + + + + + + + �,O' + + + + 4 \ + + O e° Q, \ SPA 0. \ L. LEGEND: P.O.C. i_'+' AERIAL EASEMENT Y/ + + AREA = +1- 9,075 SQ. FT. TS \ � A BENCH MARK: '� 2 \ S O ELEVATIONS ARE BASED ON CITY OF SAN 92 \ �(5'G BERNARDINO BENCH MARK "HI-I", A 3 " 0<<\ STANDARD BRASS DISK STAMPED "T-1445-1989", 'p2 �iy \o�\ SET VERTICALLY IN THE NORTHERLY FACE OF THE '9,p \ \A,/,,s, /' NORTHEAST COLUMN OF THE PALM AVENUE O/,� \ ''P OVER-PASS OF 1-215, 4.9 FT. ABOVE THE GROUND. p ' ELEV. = 1705.55 FEET (NAVD 88) / r p \ 0 / I \ 1� O / o FO C \ \ 1O + + + + /�\ GP + + +AERIAL EASEMENT + * + + + + + + + + + + + + //�JF.O e '\ O0 LEVEL PLANE (BOTTOM Cam. O• cF \ OF PROPOSED BRIDGE) Q�`' F G' 9 ELEV. = 1713.7' Off'' 'AO ' S. \ TOP OF RAIL ELEV. = 1688.6' BEARING D I STANCE \ 1 S51° 05' 32" W 150. 00' AERIAL EASEMENT 2 N38° 54' 04"W 60. 50' (TYPICAL SECTION) 3 N51° 05' 32" E 150. 00' NOT TO SCALE VIEW NORTHWESTERLY 4 S38° 54' 04" E 60. 50' 5 N38° 54' 04" W 211. 63' JOB #: 108-078 DATE: 6-11-12 EXHIBIT B COAST SURVEYING. INC. SCALE: 1"=100' BNSF RAILROAD 15031 PARKWAY LOOP, SUITE 8 SHEET 1 OF 1 AP 0266-011 -13 TUSTIN, CA 92780-6527 (714) 918-6266 2012-251 Coast Surveying,Inc. March 23,2012 EXHIBIT"A-1" LEGAL DESCRIPTION FOUNDATION EASEMENT APN 0266-011-13 THAT PORTION OF GOVERNMENT LOT 37, RANCHO MUSCUPIABE, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLINE OF PALM AVENUE (64 FEET WIDE) AND THE NORTHEASTERLY RIGHT OF WAY LINE OF THE B.N.S.F. RAILROAD (150 FEET WIDE) (FORMERLY A.T. & S.F. R.R.) AS SHOWN ON A MAP FILED IN BOOK 84, PAGE 28 OF RECORDS OF SURVEY, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE NORTH 38°54'04" WEST 138.62 FEET ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE; THENCE LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH 51°05'32" WEST 150.00 FEET TO THE SOUTHWESTERLY RIGHT OF WAY LINE OF SAID RAILROAD; THENCE ALONG SAID SOUTHWESTERLY LINE NORTH 38°54'04" WEST 16.25 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE NORTH 38°54'04" WEST 28.00 FEET; THENCE LEAVING SAID SOUTHWESTERLY RIGHT OF WAY LINE NORTH 51°05'56" EAST 7.50 FEET; THENCE SOUTH 38°54'04" EAST 7.75 FEET; THENCE NORTH 51°05'32" EAST 4.50 FEET;THENCE SOUTH 38°54'28" EAST 12.50 FEET; THENCE SOUTH 51°05'32" WEST 4.50 FEET; THENCE SOUTH 38°54'04" EAST 7.75 FEET; THENCE SOUTH 51°05'56" WEST 7.50 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 266 SQUARE FEET, MORE OR LESS. ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. LAN1 DATED THIS 11TH DAY OF JUNE, 2012. Sy DEL c,,G'PL )bke'714e-e-X- cee-,m6A 5 r o ,i L.S. 5108 Q GWEN-VERA DEL CASTILLO, PLS 5108 ��?�' Op CAL\ 1 JN 108078 2012-251 pTLL 00VD LOOT 37 \ \ \66 ,6 RANCHO AZ �lJVll 7/23 o � o ho N.S. E34/29 o 4 -0 ¢R. ` J44 4. OO O .- © 41000, O 0 $OrfAtie \ , \ 0 \.> "t% .0 \ '\.\\--- R) \i S 5Q , P.O.C. 1 \ BEARING DISTANCE 0■ , 1 N38° 54' 04'W 211. 63' S 2 S51° 05' 32"W 150. 00' 94, 14 3 N38° 54' 04" W 16. 25' 0 4 N38° 54' 04" W 28. 00' �'A 5 N51° 05' 56' E 7. 50' �9 ` X66' 6 S38° 54' 04" E 7. 75' �0,, NA,p1/4s, p� 7 N51° 05' 32' E 4. 50' 0 8 S38° 54' 28' E 12. 50' ` te` /u, 9 S51° 05' 32' W 4. 50' \ •P,P 10 538° 54' 04' E 7. 75' 11 S51° 05' 56' W 7. 50' �/ / �� pp /�� / C9 \K\ / ,O i./iO / �' ` h0 1 p, \ r c0 'Po \ i L/ 05 O / or' �`L i �,0� Q-G' GO / �.■C Q" (i5. S- / ‘..\\\ / S. �/ VV. \ JOB #: 108-078 DATE:3-23-12 EXHIBIT B COAST SURVEYING, INC. SCALE: 1"=100' BNSF RAILROAD 15031 PARKWAY LOOP, SUITE B SHEET 1 OF 1 AP 0266-011-13 TUSTIN, CA 92780-6527 (714) 918-6266 2012-251 EXHIBIT "B-1" To Easement Agreement MEMORANDUM OF EASEMENT 2012-251 MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT is hereby executed this day of , 2012, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("Grantee"), whose address for purposes of this instrument is 1170 W. 3rd. Street, San Bernardino, California 92410-1715, which terms "Grantor" and "Grantee" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Grantor owns or controls certain real property situated in County, as described on Exhibit "A-1" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated , 2012 (the "Easement Agreement") which set forth, among other things, the terms of an easement granted by Grantor to Grantee over and across the Premises (the "Easement"); and WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement Agreement, shall be perpetual. All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement Agreement and, to the extent there may be any conflict or inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement Agreement shall control. Page 1 of2 2012-251 IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to as of the date and year first above written. GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: Mark D. Ude Title: AVP-Corporate Real Estate Development STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on the day of , 2012, by (name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public (Seal) My appointment expires: GRANTEE: SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, By: Name: Janice Rutherford Title: President- Board of Directors STATE OF CALIFORNIA § COUNTY OF SAN BERNARDINO § This instrument was acknowledged before me on the day of , 2012, by (name) as (title) of , a Notary Public (Seal) My appointment expires: Page 2 of 2 2012-251 EXHIBIT "C" To Construction and Maintenance Agreement CONTRACTOR REQUIREMENTS PALM AVENUE OVERHEAD 1.01 General: • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG") removal of the existing at-grade crossing at Palm Avenue, DOT # 026105N, CPUC # 002-74.00 through the construction of a new grade separated overhead crossing, USDOT No. 929074M, CPUC # 002B-74.06-A BNSF's Milepost 74.06, and Line Segment 7600 on BNSF's Cajon Subdivision. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit C-1 Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit C-1. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) SANBAG fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of(i) the Exhibit C-1 Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: Palm Ave Overhead May 25,2012 Page 1 of 10 2012-251 • Garry Cohoe SANBAG Director of Project Delivery 1170 W. 3rd Street, 2nd Floor San Bernardino, CA 92410 Phone number: (909) 884-8276 Fax number(909) 388-2002 Email: gcohoe sanbag.ca.gov • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under the Exhibit C-1 Agreement. • 1.01.06 The Contractor must notify SANBAG'S Director of Project Delivery (909-884-8276) and Railway's Manager Public Projects, telephone number 909-386-4472 at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railway's file BF-10003191. • 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF-UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. Palm Ave Overhead May 25,2012 Page 2 of 10 2012-251 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.contractororientation.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by SANBAG. • 1.03.02 The Contractor must notify the Railway's Division Engineer at 909-386-4504 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15'-0" Horizontally from centerline of nearest track • 21'-6" Vertically above top of rail • 27'-0" Vertically above top of rail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts 1.03.04 Upon completion of construction, the following clearances shall be maintained: • 72'-0" Northeasterly from centerline of track, Main 1, to face of column Bent 3 and 39'-11" Southwesterly Horizontally from centerline of track, Main 3, to face of crash wall for Bent 2. • 25'-0" Vertically above top of rail • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to SANBAG and must not be undertaken until approved in writing by the Railway, and until the AUTHORITY has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell-tales or protective devices will be borne by SANBAG. Palm Ave Overhead May 25,2012 Page 3 of 10 2012-251 • 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by SANBAG for approval before work is undertaken and this work must not be undertaken until approved by the Railway. • 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his 'equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. • 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan: • 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.contractororientation.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work,the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. • 1.04.02 Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services for Railway under the Exhibit C-1 Agreement which are determined by Railway in its sole discretion a) to be on Railway's property, or b) that require access to Railway Critical Infrastructure, Railway Critical Information Systems, Railway's Employees, Hazardous Materials on Railway's property or is being transported by or otherwise in the custody of Railway, or Freight in Transit involving Railway. The required background screening shall at a minimum meet the rail industry background screening criteria Palm Ave Overhead May 25,2012 Page 4 of 10 2012-251 defined by the e-RAILSAFE Program as outlined at http://www.e-railsafe.com, in addition to any other applicable regulatory requirements. Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railway's designee. Contractor shall be subject to periodic audit to ensure compliance. Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e-RAILSAFE Program standards. Railway shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railway's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railway's operations, assets or personnel. Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization. • 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (telephone 909-386-4061) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25-feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. Palm Ave Overhead May 25,2012 Page 5 of 10 2012-251 • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight(8) hour basic day. • 1.05.03c The cost of flagger services provided by the Railway will be borne by SANBAG. The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 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, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. 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. • 1.05.03d The average daily train traffic on this route is 84 freight trains and 2 passenger trains. Train timetable speeds are: Westward: 50 MPH Passenger, 35 MPH Freight Eastward: 79 MPH Passenger, 55 MPH Freight Eastward: 70 MPH, Qualifying Freight 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the designated places of safety. Persons or equipment entering flag/work limits that were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Palm Ave Overhead May 25,2012 Page 6 of 10 2012-251 , Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.contractororientation.com, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railway's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE — Should there be a discrepancy between the information contained on the web site and the information in this paragraph,the web site will govern.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all Federal, State and Local regulations. • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below - 15 feet; 200 to 350 KV - 20 feet; 350 to 500 KV - 25 feet; 500 to 750 KV - 35 feet; and 750 to 1000 KV - 45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the Palm Ave Overhead May 25,2012 Page 7 of 10 2012-251 desired clearance by visual means. 1.07 Excavation: • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Field Engineering Representative (909-386-4079). All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location of underground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel. • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting: • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under the Exhibit C-1 Agreement, Contractor must immediately: (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary to protect its employees, subcontractors, agents and/or third parties: and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7.595 and d to the Railway's Project Representative no later than the close of shift on the date of the injury. Palm Ave Overhead May 25,2012 Page 8 of 10 2012-251 B 0V. F RA AC WA NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION (If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile accident, ensure that appropriate information is obtained,forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: Passenger on train (C) Non-employee (N) ,emp of another railroad or,non-9NSf emp involved in vehicle accident including company vehicles) Contractor/safety sensitive (F) Contractor/non-safety sensitive (G) Volunteer/safety sensitive (H) Volunteer/other non-safety sensitive (I) Non-trespasser (0) - to include highway users involved in highway rail grade crossing accidents who did not go around or through gates Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates Non-trespasser(J)-Off Railway Property If train involved,Train ID: Transmit attached information to Accident/Incident Reporting Center by: Fax 1-817-352-7595 or by Phone 1-80D-697-8736 or email to: Accident-Reporting.CenterNBNSF.com Officer Providing Information: (Name) (Employee No.) (Phone#) REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C.20903 AND 83 U.S.C.490 Palm Ave Overhead May 25,2012 Page 9 of 10 2012-251 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REDUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABIITY I.Accident City/St: 2:Date: Time:: County: 3.Temperature: 4.Weather: (if non BNSF location) Mile Post/Line Segment 5.Driver's License No.(and state)or other ID: SSN(required): G.Name(last,first,mi): 7.Address: City: St: Zip: B Date of Birth: and/or Age: Gender: (If available) Phone Number: Employer: 9.Injury: 10.Body Part: (i.e.laceration,etc.) (i.e.Hand,etc.) 11.Description of Accident(To include location,action,result,etc.) 12.Treatment: ❑ First Aid Only ❑ Required Medical Treatment ❑ Other Medical Treatment 13.Dr.Name: Date: 14:Dr.Address: Street; City: St: Zip: 15:Hospital Name: 16:Hospital Address: Street; City: St: Zip: 17:Diagnosis: REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTIING REDUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C.20903 AND 83 U.S.C.490 Palm Ave Overhead May 25,2012 Page 10 of 10 2012-251 EXHIBIT "C-1" Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSF RAILWAY COMPANY Attention: Manager Public Projects Railway File: BF-10003191 Agency Project,: Palm Avenue Overhead-USDOT No. 929074M Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated , 201_, with SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG") for the performance of certain work in connection with the following project: Removal of the existing at-grade crossing at Palm Avenue, DOT # 026105N, CPUC # 002-74.00 through the construction of a new grade separated overhead crossing, USDOT No. 929074M, CPUC # 002B-74.06-A BNSF's Milepost 74.06, and Line Segment 7600 on BNSF's Cajon Subdivision. Performance of such work will necessarily require Contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for SANBAG (i) executes and delivers to Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting permission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's Property. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 1 of 8 2012-251 BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT,WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions of law or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages,judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY'S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. Section 3. INSURANCE Contractor shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 2 of 8 2012-251 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 but in no event less than the amount otherwise carried by the Contractor. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limit 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 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. ♦ Waver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway. • Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. It is agreed that the workers' compensation and employers' liability related exclusions in the Commercial General Liability insurance policy(s) required herein are intended to apply to employees of the policy holder and shall not apply to Railway employees. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy with regard to the work being performed under this agreement. 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 The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. • Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds. • The policy shall be primary and non-contributing with respect to any insurance carried by Railway. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 3 of 8 2012-251 C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: • Contractor'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. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: • Waiver of subrogation in favor of and acceptable to Railway. D. Railroad Protective Liability insurance naming only the Railway as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the following: • Endorsed to include the Pollution Exclusion Amendment • Endorsed to include the Limited Seepage and Pollution Endorsement. ♦ Endorsed to remove any exclusion for punitive damages. ♦ No other endorsements restricting coverage may be added. ♦ The original policy must be provided to the Railway prior to performing any work or services under this Agreement ♦ Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental loss of or damage to all property owned by any named insured and all property in any named insured' care, custody, and control arising out of the acts or omissions of the contractor named on the Declarations. In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) in Railway's Blanket Railroad Protective Liability Insurance Policy. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages. Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railway for all claims and suits. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under Contractor's care, custody, or control. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced abcw Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 4 of 8 2012-251 Contractor is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, self-insured retention or other financial responsibility for claims shall be covered directly by Contractor in lieu of insurance. •Any and all Railway liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Contractor's insurance will be covered as if Contractor elected not to include a deductible, self-insured retention or other financial responsibility for claims. Prior to commencing the Work, Contractor shall furnish to Railway an acceptable certificate(s) of insurance from an authorized representative evidencing the required coverage(s), endorsements, and amendments. The certificate should be directed to the following addresses: BNSF Railway Company Manager Public Projects 740 East Carnegie Drive San Bernardino, CA 92408 Phone: 909-386-4472 Fax: 909-386-4479 Melvin.Thomas @bnsf.com AND BNSF Railway Company c/o Cert Focus P.O. Box 140528 Kansas City, MO 64114 Toll Free: 877-576-2378 Fax number: 817-840-7487 Email: BNSF(a,certfocus.com www.certfocus.com Contractor shall notify Railway in writing at least 30 days prior to any cancellation, non- renewal, substitution, or material alteration. Any insurance policy must be written by a reputable insurance company acceptable to Railway or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide. If coverage is purchased on a "claims made" basis, Contractor hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation or termination of this contract. Annually, Contractor agrees to provide evidence of such coverage as required hereunder. Contractor represents that this Agreement has been thoroughly reviewed by Contractor's insurance agent(s)/broker(s), who have been instructed by Contractor to procure the insurance coverage required by this Agreement. Not more frequently than once every five years, Railway 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. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 5 of 8 2012-251 If any portion of the operation is to be subcontracted by Contractor, Contractor shall require that the subcontractor shall provide and maintain the insurance coverage(s) set forth herein, naming Railway as an additional insured, and shall require that the subcontractor shall release, defend, and indemnify Railway to the same extent and under the same terms and conditions as Contractor is required to release, defend, and indemnify Railway herein. Failure to provide evidence as required by this section shall entitle, but not require, Railway to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railway shall not be limited by the amount of the required insurance coverage. In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor will make available any required policy covering such claim or lawsuit. These insurance provisions are intended to be a separate and distinct obligation on the part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work covered hereunder is performed. For purposes of this section, Railway means "Burlington Northern Santa Fe LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each. Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit "C" attached to the Contract and this Agreement, , including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 6 of 8 2012-251 For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT. Contractor and its subcontractors must give Railway's representative (BNSF Project Engineer, 909-386-4079) eight (8) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 7 of 8 2012-251 Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which, upon execution by Railway, will constitute an Agreement between us. Contractor' BNSF Railway Company By: By: Printed Name: Name: Manager Public Projects Title: Accepted and effective this day of 20_. Contact Person: Address: City: State: Zip: Fax: Phone: E-mail: Exhibit C—1 Palm Avenue Overhead-May 25,2012 Page 8 of 8 2012-251 EXHIBIT D Flagging $360,000.00 Inspection $100,000.00 Signal $140,000.00 Track $150,000.00 TOTAL ESTIMATED COST RAILROAD WORK $750,000.00 2012-251 Exhibit E BNSAF" Melvin Thomas BNSF Railway Company Manager Public Projects RA/L PYA Y 740 East Carnegie Drive San Bernardino,CA 92408 (909)386-4472(office) (909)831-8199(cell) (909)386-4479(fax) Melvin.ThomasCfbnsf.com Date: Mr. Garry Cohoe Director of Project Delivery San Bernardino Associated Governments 1170 W. 3rd Street, 2nd Floor San Bernardino, CA 92410 Re: Final Approval of Plans and Specifications dated by (consultant) (hereinafter called,the "Plans and Specifications") Dear Mr. Cohoe: This letter serves as BNSF RAILWAY COMPANY'S ("BNSF") final written approval of that portion of the Plans and Specifications covering the Project's concept for the construction of the Palm Avenue Overhead, U.S. D.O.T. No. 929074M involving the vertical clearances from top of rail to the bridge soffit and the horizontal clearances from center line of the tracks to face of the columns, piers, and/or abutments which ever be the case that will be constructed on or adjacent to BNSF's Rail Corridor. This final written approval is given to SAN BERNARDINO ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as ("SANBAG") pursuant to Article III, Section 1 of that certain Construction and maintenance Agreement between BNSF, CITY OF SAN BERNARDINO, and SANBAG, which this Exhibit E is attached to and made a part thereof. If the Plans and Specifications are revised by SANBAG subsequent to the date set forth above, this letter shall no longer serve as final written approval of the Plans and Specifications and SANBAG must resubmit said Plans and Specifications to BNSF for final written approval. It is understood that the approvals contained in this letter do not cover, the approvals of plans and specifications for any falsework, shoring, and demolition that may be subsequently submitted to BNSF by SANBAG or its contractor for approval. BNSF has not reviewed the design details or calculations for structural integrity or engineering accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project. Respectfully, Melvin Thomas Manager Public Projects__ BNSF Railway 2012-251 Exhibit F BNSF Bridge Requirements BRIDGE DESIGN,PLANS&SPECIFICATIONS: Except for the design of temporary falsework and shoring,BNSF review of the Structure plans will be limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks.BNSF will not review structural design calculations for the permanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. SANBAG shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6 inches measured vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the permanent Structure, SANBAG will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure.The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. . For the permanent Structure, AUTHORITY will submit plans showing the least vertical clearance from top of paving to bottom the deck of the proposed Structure. Prior to beginning construction of the permanent Structure,the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. The general policy of BNSF with regard to bridge and related crash wall construction is to follow the current recommendations of the American Railway Engineering and Maintenance-of- Way Association(AREMA)Current AREMA recommended practice in Manual for Railway Engineering Chapter 8 (Art.2.1.5.1). Prior to issuing any invitation to bid on construction of the Structure, SANBAG should conduct a pre-bid meeting where prospective Contractors have the opportunity to communicate with BNSF personnel regarding site specific train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the Project. BRIDGE CONSTRUCTION: After awarding the bid,but prior to the Contractor entering BNSF's railroad corridor or property, SANBAG should conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. SANBAG shall reimburse BNSF for all costs of supplemental inspection services. Form 0105 Rev. 4/07/08 Page 1 of 2 Palm Avenue Overhead,San Bernardino CA. 2012-251 • SANBAG will provide Within 90 days of the conclusion of the Project and final acceptance by BNSF and CITY, BNSF with a complete electronic set of the bridge plans. BNSF will also accept a marked up paper copy of the bridge plans labeled"As Built". The marked up paper copy of the plans will reflect any and all deviations from the original plans that occurred during construction. The electronic set of the bridge plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. The "As Built" plans shall show actual measured "as constructed" clearances shall be shown as well as depth, size and location of all foundation components. The 'plans shall show dimensioned locations of existing and relocated utilities. It is understood that BNSF prefers to receive the"As Built"plans in an electronic format. BRIDGE MAINTENANCE: CITY will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes,erosion control,surface drainage, fencing,deck drains,landscaping,paint,walkways,handrails, lighting,and other improvements associated with the Project. Fencing and other pedestrian access controls within BNSF's rail corridor and incorporated into the Project shall be designed and maintained by SANBAG through construction. Trespasser control shall be the responsibility of SANBAG through construction. Graffiti removal will be the responsibility of CITY. BRIDGE INSPECTION: CITY will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, CITY will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary CITY will embargo weights or provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement,there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. It is expressly understood by SANBAG and CITY that the right to install utilities is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, footings and/or run through the deck of the Structure. Under no circumstances will utilities be allowed to hang from the Structure. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities. Page 2 of 2 Palm Avenue Overhead,Placentia CA. Form 0105 Rev. 4/14/05 2012-251 Exhibit G Palm Avenue Overhead— Total Project Cost Construction Civil Items: $ 7,294,864 Structures Items: $ 4,353,940 Railroad Items: $ 750,000 Construction Support: $ 2,112,321 Right of Way ROW Acquisition: $ 5,476,619 ROW Utilities: $ 1,271,420 ROW Support: $ 200,000 Design: $ 3,000,000 Other Project Support: $ 18,836 TOTAL $24,478,000