Loading...
HomeMy WebLinkAbout07.N- Public Works RESOLUTION(ID#2016) DOC ID: 2016 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Jim Smith M/CC Meeting Date: 10/15/2012 Prepared by: Michael Grubbs, (909)384- 5140 Dept: Public Works Ward(s): 6 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Approving Construction and Maintenance Agreement No. C13018 with the Burlington Northern Santa Fe Railway Company(BNSF) and the San Bernardino Associated Governments (SANBAG) for the Palm Avenue Grade Separation Project(SSO4-053). Financial Impact: There is no FY 2012-13 impact. This project is not expected to significantly increase the City s maintenance costs over and above the current costs associated with maintaining the existing roadway. Motion: Adopt the Resolution. Synopsis of Previous Council Action: 09/02/08 Resolution No. 2008-351 adopted approving a Baseline Agreement with the California Transportation Commission (CTC), the California Department of Transportation (CALTRANS) and the San Bernardino Associated Governments (SANBAG)for the Palm Avenue/BNSF grade separation project. 09/02/08 Resolution No. 2008-352 adopted approving a funding agreement for Palm Avenue/BNSF Grade Separation with the San Bernardino County Transportation Authority(SANBAG). 10/06/08 Resolution No. 2008-378 adopted approving a Cooperative Agreement No. C08202 with SANBAG to provide services related to Project Approval and Environmental Document (PA&ED), and Plans, Specification and Estimate (PS&E) for a Grade Separation at Palm Avenue over the BNSF Railroad. 05/17/11 Resolution No. 2011-108 adopted approving a Cooperative Agreement No. C11180 with the San Bernardino County Transportation Authority and the San Bernardino County Transportation Commission to provide Right-of-Way services for a Grade Separation at Palm Avenue over the BNSF Railroad. 07/17/12 Resolution No. 2012-200 adopted approving a Cooperative Agreement No. 12241 with the San Bernardino County Transportation Authority Resolution required to construct a Grade Separation at Palm Avenue and Burlington Northern Santa Fe Railway Company(BNSF). Backaround: On April 10, 2008, the California Transportation Commission (CTC) earmarked $9,390,000 in Proposition 1B Trade Corridor Improvement Funds (TCIF) for the Palm Avenue Grade O Separation over the BNSF Railroad tracks. The San Bernardino County Transportation Authority and the San Bernardino County Transportation Commission, also known as the San Updated: 10/11/2012 by Georgeann"Gigi"Hanna Packet Pg. 300 2016 Bernardino Associated Governments (SANBAG), is currently working on the project. This project is needed to reduce delays and congestion caused by high train volumes at the crossing. In future years, train traffic growth is expected and will result in additional delays and congestion. The TCIF funding opportunity recently became available as a component of Proposition 113; however, the funding is contingent upon the project's readiness and its timely delivery. Staff has been working with SANBAG to position this project as one of seven in the County to receive the first allocation of TCIF funding. Five agreements with SANBAG have previously been approved for this project as indicated in the following summary: 1. Project Baseline Agreement No. C09021 with various agencies including the CTC, Caltrans, and SANBAG. This Agreement committed the City to comply with the rules governing TCIF funding. 2. Funding Agreement with the San Bernardino County Transportation Authority. This Agreement committed the City to fund 14.6 percent of the total project cost, allowing SANBAG to obtain TCIF funding. 3. Cooperative Agreement No. C08202 with SANBAG for Preparation of Project Approval and Environmental Documents (PA&ED), and Plans, Specifications and Estimate (PS&E). 4. Cooperative Agreement No. C11180 with the San Bernardino County Transportation Authority and the San Bernardino County Transportation Commission to provide Right- of-Way services. 5. Cooperative Agreement No. 12241 with the San Bernardino County Transportation Authority Resolution required to construct a Grade Separation at Palm Avenue and Burlington Northern Santa Fe Railway Company(BNSF). SANBAG has submitted Construction and Maintenance Agreement No. C13018 that must be executed with BNSF, defining the terms and conditions for construction and maintenance of the new grade separation. The proposed Construction and Maintenance Agreement is attached and marked as Exhibit "A." The Construction and Maintenance Agreement defines specific requirements for coordination and construction within BNSF's right-of-way and the future maintenance responsibilities of the parties. Upon completion of the project, the City will assume maintenance responsibility for the bridge and appurtenant work, subject to certain requirements of BNSF as indicated in the Agreement. This project is being designed and constructed by SANBAG. Upon completion of construction, the City will assume maintenance of the new improvements. It is anticipated that minimal maintenance will be required for the bridge structure and the associated landscaping, which has incorporated a low-maintenance design to keep ongoing maintenance costs to a minimum. Accordingly, this project is not expected to significantly increase the City's current maintenance costs for the existing roadway. The earliest costs are expected to incur is FY 2013-14. Updated: 10/11/2012 by Georgeann"Gigi"Hanna Packet Pg. 301 2016 The plans, specifications and estimate phase, and the right-of-way phase are nearing completion and SANBAG is preparing to begin the construction phase. Construction is expected to commence in May/June of 2013 and take approximately 21 months to complete. An additional year will be required to complete construction close-out activities and to transfer the acquired right-of-way easements to the City. City Attorney Review: Supaortine Documents: Palm Avenue Grade Separation Vicinity Map (PDF) RESO Palm Ave Grade Separation C &M Agreement (PDF) Exhibit"A" -Palm Ave Grade Separation C&M Agreement (PDF) C Updated: 10/11/2012 by Georgeann"Gigi"Hanna Packet Pg. 302 r-------------------------------------------------------------------------------- -- ---- ,. I I AR City of San Bernardino, California D��,o Public Works Department/Engineering Division 1 O L CIP No. SSO4-053 d o THOMAS BROS MAP 545 -H-3, H-4 �U`�1►ED 1N�0ti o LL PALMAVENUE GRADE fn Ca SEPARATION Co Q Over the BNSF Railroad N O I PROJECT LOCATION I y I I d I � �quYUOFiS � •f��� � �\ � � F ,OMlR�.M F'4 �e'Mw .rrq •• y u \ C i n.i o 1�,mR u ' '� •r t, a wr : CL Mae A 0 N \i G IL I c y VICINITY MAP 1 � I I L---------------------------- ----------------------------------------------------------------- Backe# gr3tf3 7.N.Li._. 1 RESOLUTION NO. a Z 2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A m CONSTRUCTION AND MAINTENANCE AGREEMENT NO. C13018 WITH 3 BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY (BNSF) AND THE m 4 SAN BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG) FOR a CONSTRUCTION OF A GRADE SEPARATION AT PALM AVENUE OVER THE v� 5 BNSF RAILWAY(CIP PROJECT NO. SSO4-53). o .; 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE c 7 CITY OF SAN BERNARDINO AS FOLLOWS: n v SECTION 1. The City Manager is hereby authorized and directed to execute a 8 c� d 9 Construction and Maintenance Agreement No C13018 with the Burlington Northern Santa Fe E 10 Railway Company (BNSF) and the San Bernardino Associated Governments (SANBAG) for a to 11 construction of a Grade Separation at Palm Avenue over the BNSF Railroad (CIP Project No. N 12 SSO4-53), attached and incorporated herein as Exhibit"A". c 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 d E m 16 resolution. m a 17 �a 18 o 19 CL 20 21 a c� 22 a 23 E cc 24 0 U) LU 25 26 E E 27 x 28 a Packet Pg.304" 7.N.b RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING A 1 CONSTRUCTION AND MAINTENANCE AGREEMENT NO. C13018 WITH y 2 BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY (BNSF) AND THE m SAN BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG) FOR °s 3 CONSTRUCTION OF A GRADE SEPARATION AT PALM AVENUE OVER THE 4 BNSF RAILWAY (CIP PROJECT NO. SSO4-53). a 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor c 6 and Common Council of the City of San Bernardino at a meeting o d 7 thereof,held on the_day of 2012, by the following vote, to wit: v m 8 9 Council Members: AYES NAYS ABSTAIN ABSENT a E 10 MARQUEZ a 11 JENKINS 0 N_ 12 VALDIVIA c 13 = SHORETT N W 14 Of 15 KELLEY E 16 JOHNSON rn 17 MCCAMMACK a �a 18 C 0 19 Georgeann Hanna, City Clerk 20 ° The foregoing Resolution is hereby approved this day of 2012. d 21 0 22 a 23 Patrick J. Morris, Mayor E City of San Bernardino a 24 0 Approved as to form: w 25 JAMES F. PENMAN, 26 City Attorney o� 27 By: x 28 Packet Pg.305 7.N.c EXHIBIT "A" a7 c CONSTRUCTION and MAINTENANCE AGREEMENT N BNSF Agreement No. BF-10003191 0 SANBAG Agreement No.C13018 v Palm Avenue Overhead LL N U.S. D.O.T. No. 929074M z z C.P.U.C.No.002-74.06-A 03 0 a This Agreement ("Agreement"), is executed to be effective as of this day of m , 2012 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a a Delaware corporation ("BNSF"), the CITY OF SAN BERNARDINO, a body corporate and rn politic of the State of California ("CITY"), and the SAN BERNARDINO ASSOCIATED o GOVERNMENTS, a body corporate and politic of the State of California, hereinafter referred to as("SANBAG"). a m N RECITALS: 'a m WHEREAS, BNSF owns and operates a line of railroad in and through the City of San Bernardino, 0 County of San Bernardino, State of California,hereinafter referred to as("Rail Corridor"); a WHEREAS, SANBAG and CITY desire to proceed with grade separating Palm Avenue and the Rail E Corridor with the Palm Avenue Overhead crossing, by means of a three span, cast in place post- ri tensioned reinforced concrete box girder bridge,402 feet long by 40 feet 5 inches wide, on concrete piers and abutments ("Structure"); 0 N 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 m Structure; E d m WHEREAS, SANBAG entered into Cooperative Agreement No. C08202 with the CITY dated October 06, Q 2008 which provides for SANBAG to obtain the environmental clearance and execute the design of the Palm Avenue grade separation project; otS WHEREAS, SANBAG entered into Cooperative Agreement No. C11180 with the CITY dated June 01, c) 2011 which provides for SANBAG to acquire right of way and administer funding for the Palm Avenue o grade separation project; R WHEREAS, SANBAG entered into Cooperative Agreement No. C12241 with the CITY dated July 11, n 2012 which provides for SANBAG to advertise, construct, and administer funding for the Palm Avenue v grade separation project; a R WHEREAS, pursuant to said Cooperative Agreements, upon completion and acceptance of the Structure O m by CITY, CITY will thereafter control and maintain the Structure at its sole cost and expense; Q WHEREAS, BNSF agrees to contribute a portion of the Project costs; E m a WHEREAS, in order to construct the Project SANBAG must acquire certain rights-of-way from BNSF; Q 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. L X NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained L.U. herein,the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: c 0 E z U Page 1 of 17 Palm Overhead -September 20,2012 a C13018 PacketPg. 306 7.N.c c O ARTICLE I—SCOPE OF WORK 1. The term "Project" as used herein includes any and all work related to the construction of the a Structure, more particularly described on g hibit A,attached hereto and incorporated herein, including but c not limited to, any and all changes to telephone, telegraph, signal and electrical lines, other utilities and V appurtenances, temporary and permanent track work, temporary detour road, fencing, grading, y 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 M 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 4 Uniform Traffic Control Devices("MUTCD"), U.S. Department of Transportation. m z U) ARTICLE II—BNSF OBLIGATIONS o m In consideration of the covenants of CITY and SANBAG set forth herein and the faithful performance thereof, BNSF agrees as follows: CL N 1. Upon SANBAG's payment to BNSF of an administrative fee in the sum of Two Thousand Dollars ry v 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 Q portion of BNSF's Rail Corridor shown as three parcels on Exhibit A attached to this Agreement, E excepting and reserving BNSF's rights, and the rights of any others who have obtained, or may obtain, a permission or authority from BNSF,to do the following: " (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, N wires, pipelines and other facilities of like character upon, over or under the surface of said Rail Corridor; m E (b) Construct, operate, maintain, renew and/or relocate upon said Rail Corridor, without m limitation, such facilities as the BNSF may from time to time deem appropriate, provided Q 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 °d appropriate, provided such use or operations does not materially interfere with U c SANBAG's construction of the Project, and ; o m The term of the Temporary Construction License shall begin on the Notice to Commence o Construction date as set forth hereinafter in Article III, Section 18 and ends on the earlier of(j)substantial m completion of the Project, or (jj) thirty months (30) months following the Notice to Commence m 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 a acknowledges and agrees that SANBAG shall not have the right, under the Temporary Construction E License, to use the Structure. In the event SANBAG is evicted by anyone owning, or claiming title to or m any interest in said Rail Corridor, BNSF will not be liable to SANBAG for any damages, losses or any p_ 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. C Upon SANBAG's payment to BNSF of the additional sum of Thirty One Thousand Two Hundred a Twenty Four and No/100 Dollars ($31,224.00), such payment to be made within thirty (30) days of the K giving of the Notice to Proceed pursuant to Article III, Section 16 of this Agreement, and provided further t!! 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 E upon and use that portion of BNSF's Rail Corridor as is necessary to use and maintain the Structure, m Page 2 of 17 a Palm Overhead —September 20,2012 C13018 PacketPg. 307 7.N.c c substantially in the form of Exhibit B attached to this Agreement. If SANBAG fails to pay BNSF within the thirty daytime period set forth in the preceding sentence, BNSF may stop construction of the Project until full payment is received by BNSF. w c 2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the U construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit N D attached hereto and made a part hereof. In the event construction on the Project has not commenced Z within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise m the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part 06 of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on a Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written m approval of SANBAG, which approval will not be unreasonably withheld. Construction of the Project will a include the following principal elements of railroad work by BNSF: rn c (a) Procurement of materials, equipment and supplies necessary for the railroad work; 0 L m (b) Preliminary engineering,design, and contract preparation; m (c) Removal of the concrete crossing panels for the existing Palm Avenue grade crossing; d n L (d) Removal of the existing Palm Avenue Signal Warning Devices; m (e) Furnishing of flagging services necessary for the safety of BNSF's property and the Q operation of its trains during construction of the Project as set forth in further detail on E Exhibit C, attached to this Agreement and made a part hereof; a (f) Furnishing of engineering and inspection as required in connection with the construction of �O the Project and; N (g) Providing a contract project coordinator, at SANBAG's expense, to serve as a project d manager for the Project. E d P 3. BNSF will construct all railroad work set forth in Article II, Section 2 above on an actual cost rn basis,when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such Q work with its own employees working under applicable collective bargaining agreements or by contractor(s) if necessary. 06 U 4. SANBAG agrees to reimburse BNSF for work of an emergency nature caused by SANBAG or o 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 a performed by BNSF without prior approval of SANBAG and SANBAG agrees to fully reimburse BNSF for m all such emergency work. 1n v 5. BNSF may charge SANBAG for insurance expenses, including self-insurance expenses, when E 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. E m o_ 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 Q 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 x Exhibit D. Pursuant to this Section, SANBAG will verify such final costs. All undisputed costs set forth in w 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 m assess a finance charge of 0.033% per day (12% per annum) on any unpaid sums or other charges due L U Page 3 of 17 Palm Overhead -September 20,2012 Q C13018 Packet Pg. 308 7.N.c 06 G under this Agreement which are past its credit terms. The finance charge continues to accrue daily until .0 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 a the month and will be reduced by amounts in dispute and any un-posted payments received by the o month's end. Finance charges will be noted on invoices sent to SANBAG under this Section 6. For U purposes of computing the time limits prescribed by Section 911.2 of the CALIFORNIA u- GOVERNMENT CODE for the presentment of a claim against SANBAG, the cause of action for z failure to reimburse BNSF for the cost of the Railroad Work performed by It pursuant to this m Agreement shall be deemed to have accrued one hundred eighty (180) days from the date of the 06 final Invoice. 0 a In Z ARTICLE III-SANBAG OBLIGATIONS U)) c In consideration of the covenants of CITY and BNSF set forth herein and the faithful performance thereof, -° SANBAG agrees as follows: CL 1. SANBAG shall furnish to BNSF and CITY plans and specifications for the Project together with rn calculations with the railroad clearances expressed in English Units- One complete reduced size 11" x 17" paper copy shall be submitted to BNSFs Director of Structural Engineering. A PDF copy of the plans a and specifications should be sent to both BNSFs Manager Public Projects and BNSFs Director Structural 0 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 a (Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF E offices. The email and mailing addresses are included in Article V, Section 25. Sets of said plans shall a 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 forth of Exhibit E, m attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and N 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, a laws,statutes or local ordinances and/or building code. 2 06 2. SANBAG must provide for and maintain minimum vertical and horizontal clearances, as required v and approved by BNSF as part of the plans and specifications for the Project. o 3. SANBAG must make any and all arrangements, in compliance with BNSF's Utility Accommodation Manual (http7//WWW.bnst.com/communitiestfags/"`P-dt/utility.odt), for the installation or m relocation of wire lines, pipe lines and other facilities owned by private persons, companies,corporations, W 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 d ("Commission") for an order authorizing construction of the Project and to fumish to the Commission a plans of the proposed construction, approved by BNSF and CITY,together with a copy of this Agreement E and to obtain all other required permits and approvals for the construction of the Project. a 5. SANBAG must construct the Project as shown on the attached Exhibit A and do all work provided Q 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 a work. The principal elements of SANBAG's work are as follows: L x W (a) Preliminary and final Engineering; m (b) Design and the Construction of the Structure; u Page 4 of 17 m Palm Overhead -September 20,2012 Q C13018 PacketPg. 309 7.N.c 06 c 0 (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; N c (d) Construct a vehicle barrier between Cajon Boulevard and BNSF's southwesterly right of way U line; LL 1n Z (e) Construct a wrought iron fence along BNSFs northeasterly right of way line including a CO BNSF maintenance access gate; 06 0 (f) All other necessary grading and paving, including backfill of excavations and restoration of Q no disturbed vegetation on BNSFs Rail Corridor; Z Q rn (g) Application of the D.O.T. Crossing Number 929074M and the C.P.U.C. Crossing No. 002- o 74.06-A in conspicuous locations on the Structure; R (h) Providing of pedestrian and/or trespasser control during construction; m rn (i) Installation and maintenance of throw fences consisting of an 8 ftoot high fence with inward a curved top and a 10 foot high vertical fence both mounted on concrete barriers on the outer m edges of the Structure's deck; and O m (1) Job site cleanup within Project area including removal of all construction materials,concrete a debris, surplus soil, refuse, disturbed contaminated soils, asphalt debris, litter and other E waste materials to the satisfaction of BNSF; 6 a 6. SANBAG will acquire all properties required to construct the Project. 0 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 BNSFs Roadmaster at least thirty(30) calendar v days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C. Additionally, SANBAG must require its contractor(s) to notify BNSFs Manager of Public Projects thirty (30) calendar Q days prior to commencing work on BNSF property or near BNSF tracks. 2 06 9. SANBAG or its contractor(s) shall submit one reduced size 11" x 17" paper copy, including U calculations, expressed in English Units of the plans and specifications for proposed shoring,falsework, o or cribbing to be used aver, under, or adjacent to BNSFs tracks to BNSFs 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 rn email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD v (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, O 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 Q promulgated by state and federal agencies, departments, commissions and other legislative bodies. E m a Falsework shall be designed according to the State of California, Department of Transportation FALSEWORK MANUAL available at this Web Site: 4 http//www dot ca gov/hq/esc/construction/manuals/OSCComl2leteManuals/FalseworkManual pdf a 10. SANBAG must include the following provisions in any contract with its contractor(s) performing X work on said Project: w (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 E U Page 5 of 17 Palm Overhead -September 2C,2012 Q C13018 Packet Pg. 310 7.N.c 06 C buried on BNSF's property or Rail Corridor. The locations of these Lines have been 0_ included on the plans based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF's Engineering Representative (909) 386- 2 4079, BNSFs, Signal Representative (909) 386-4053 and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or t0 interfere with their service. The contractor must also mark all Lines shown on the plans or LL marked in the field in order to verify their locations. The contractor must also use all z reasonable methods when working in the BNSF Rail Corridor or on BNSF property to m determine i any other Lines (fiber optic, cable,communication or otherwise) may exist. 06 0 (b) Failure to mark or identify these Lines will be sufficient cause for any BNSF Representative m to stop construction at no cost to SANBAG or BNSF until these items are completed. z a) (c) In addition to the liability terms contained elsewhere in this Agreement, the contractor c hereby indemndies, 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 a Contractor, its subcontractors, agents and/or employees that cause or in any way or degree n 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 0 telecommunications company, and/or its contractor, agents and/or employees, on BNSFs property or within BNSFs Rail Corridor, and/or (3) any claim or cause of action for alleged Q loss of profits or revenue by, or loss of service by a customer or user of such E telecommunication company(ies).THE LIABILITY ASSUMED BY CONTRACTOR WILL a NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED m BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS,SERVANTS, N EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE PROXIMATELY CAUSED -- BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. m (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. 4 E 11. SANBAG must incorporate in each prime contract for construction of the Project, or the „y specifications therefore (i) the provisions set forth in Article III, Sections 7, 8, 9, 10, and 12; (ii) the U provisions set forth in Article V, Sections 1, 2, 3, 4, 5, 6, 7, 14 and 15, and (iii) the provisions set forth in c Exhibit C, Exhibit C-1 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 m by SANBAG for the Project will be pursuant to a contract or contracts to be let by SANBAG, and all such h contracts must include the following: R (a) All work performed under such contract or contracts within the limits of BNSF's Rail Corridor 0 must be performed in a good and workmanlike manner in accordance with plans and 0 specifications approved by BNSF; a E (b) Changes or modifications during construction that affect safety or BNSF operations must be a subject to BNSF's approval; (c) No work will be commenced within BNSF's Rail Corridor until each of the prime contractors Q employed in connection with said work must have (i) executed and delivered to BNSF a a letter agreement in the form of Exhibit -1, and(ii)delivered to and secured BNSF's approval x of the required insurance;and w (d) If it is in SANBAG's best interest, SANBAG may direct that the construction of the Project be m done by day labor under the direction and control of SANBAG, or if at any time, in the E U Page 6 of 17 m Palm Overhead —September 20,2012 Q C13018 Packet Pg. 311 7.N.c c opinion of SANBAG,the contractor has failed to prosecute with diligence the work specified 0_ in and by the terms of said contract, SANBAG may terminate its contract with the contractor 0 2 and take control over the work and proceed to complete the same by day labor or by ti 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, o 0 provided further, that if such construction is performed by day labor, SANBAG will, at its LL expense, procure and maintain on behalf of BNSF the insurance required by Exhibit -1. z M (e) To facilitate scheduling for the Project, SANBAG shall have its contractor give BNSF's as Project Engineer at telephone number 909 386 4079 eight(8) weeks advance notice of the a 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 G 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 c 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 E costs and expenses resulting from a change in work windows shall be accounted for in the a contractor's expenses for the Project. m 0 m (f) The plans and specifications for the Project must be in compliance with the Bridge R Requirements set forth in said Exhibit F, attached to this Agreement and incorporated t7 herein. a 13. SANBAG must advise BNSFs Manager of Public Projects, in writing, of the completion date of E the Project within thirty (30) days after such completion date. Additionally, SANBAG must notify BNSF's a 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. 0 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 SANBAG by BNSF pursuant to the provisions in Article II, Section 1 E of this Agreement. 15. TO THE FULLEST EXTENT PERMITTED BY LAW, SANBAG HEREBY RELEASES, Q INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, od SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, 0 LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, c 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 m DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE (n OR IN PART) (1) 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, 0 SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF SANBAG, ITS a CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE E CONSTRUCTION SITE, (IV)SANBAG'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE a GRANTED TO SANBAG PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO SANBAG PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE a 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 E INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE w 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 W OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, E U Page 7 of 17 m Palm Overhead -September 20,2012 Q c1301a PacketPg. 312 7.N.c ot7 c SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE PROXIMATELY CAUSED 4 BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. U 16. SANBAG must give BNSF's Manager of Public Projects written notice to proceed("Notice to 0 Proceed")with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the U 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 z No. BF-10003191. cc ai 17. SANBAG must perform all necessary work to obtain the permanent closure and vacation of Palm G Avenue across BNSF's right-of-way and must barricade the road approaches prior to completion of the co Project. BNSF will cooperate with SANBAG to achieve the closure and vacation of Palm Avenue and will z remove the crossing surface within its right-of-way. 1n C 18. SANBAG must give BNSF's Manager of Public Projects written notice to commence construction d— ("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 c to Commence Construction must reference BNSF's Agreement No. BF10003191. m A L ARTICLE IV-CITY OBLIGATIONS t, m IN CONSIDERATION of the covenants of BNSF and SANBAG herein contained and the faithful Q performance thereof,CITY agrees: E m 1. To permit SANBAG to act as the responsible lead agency to design and construct the Project. a 2. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not N limited to,the terms and conditions set forth in Exhibit F,BNSF and CITY agree as follows: c (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 Q with train operations. BNSF will notify CITY prior to performing any such maintenance on 2 the Structure. In the event such maintenance involves emergency repairs, BNSF will notify c'd CITY at its earliest opportunity. CITY must fully reimburse BNSF for the reasonable costs of U maintenance performed by BNSF pursuant to this subsection(a); o (b) CITY must,at CITY's sole cost and expense, keep the Structure free from graffiti. m CL (c) CITY must maintain D.O.T. Crossing Number 929074M and C.P.U.C. Crossing No. 002- m 74.06-A in legible condition in the conspicuous locations on the Structure where applied by SANBAG during construction; E C7 (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 E BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, a 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 4 Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities; z (e) Upon request from BNSF, CITY shall remove all trash and debris associated with the w Structure from BNSF's property; d E z U Page 8 of 17 m Palm Overhead -September 20,2012 Q C13018 Packet Pg. 313 7.N.c •a c (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 U Structure or to make emergency repairs thereto; C (g) CITY must keep the Structure and surrounding areas clean and free from birds, pigeons, U scavengers,vermin,creatures and other animals; N Z (h) CITY hereby grants to BNSF, at no cost or expense to BNSF, a permanent right of access m from City property to BNSF tracks for maintenance purposes; oe (7 (i) CITY must, at CITY's sole cost and expense, maintain the throw fences consisting of an 8 m foot high fence with inward curved top and a 10 foot high vertical fence both mounted on Z concrete barriers on the outer edges of the Structure's deck;and W c (j) If CITY (including its contractors and agents) or BNSF, on behalf of CITY, performs (i) °— afterations 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 CL 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 v its contractors and/or agents must procure and maintain the following insurance coverage, m and other the insurance requirements as contained in Exhibit C-1, which may be changed O from time to time: Q Railroad Protective Liability insurance naming only the Railroad as the Insured E with coverage of at least $5,000,000 per occurrence and $10,000,000 in the a aggregate. The policy shall be issued on a standard ISO forth CG 00 35 12 04 and include the following: ° 0 N • Endorsed to include the Pollution Exclusion Amendment • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to remove any exclusion for punitive damages. E • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. a • 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: °s "means direct and accidental loss of or damage to all property owned by any c named insured and all property in any named insured' care, custody, and o control arising out of the acts or omissions of the contractor named on the Declarations. m CL W As used in this paragraph, "Railroad" means "Burlington Northern Santa Fe, d LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns m and affiliates of each. m In lieu of providing a Railroad Protective Liability Policy, CITY may participate in Q BNSF's Blanket Railroad Protective Liability Insurance Policy if available to CITY E or its contractors. The limits of coverage are the same as above. @ a 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 a for INSPECTION OR MAINTENANCE purposes, and the BNSF Manager of Public Projects will « determine I flagging is required. CITY must procure and maintain the insurance coverage :L2 required by Exhibit C-1 and comply with the obligations set forth in Exhibit and Exhibit F, as the w 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 m Exhibit C-1. and Exhibit F, as the same may be revised from time to time. CITY will be E responsible for its contractor(s)compliance with such obligations. U Page 9 of 17 m Palm Overhead —September 20,2012 Q C13013 Packet Pg. 314 7.N.c 06 C 0 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 0 CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES LL OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT z LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR la DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES 06 OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, a RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART) (1)THE USE, OCCUPANCY In OR PRESENCE OF CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR z AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (II) THE PERFORMANCE, OR FAILURE TO PERFORM BY THE CITY, ITS CONTRACTORS, SUBCONTRACTORS, o EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, _ (111) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF CITY, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE m a SITE, (IV) CITY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR, INCLUDING WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE m BY CITY, OR (V)AN ACT OR OMISSION OF CITY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED tj 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, Q THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR E CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, a EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS, ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. o 0 N ARTICLE V-JOINT OBLIGATIONS c 0 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 G and each portion must be promptly commenced by the party obligated hereunder to perform the same 2 and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any ,e changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior c) to the commencement of any such changes or modifications. BNSF will notify SANBAG of potential c impacts to Project at the time said impacts are known subject to the provisions of Article II, Item 4. - .m 2. The work hereunder must be performed in accordance with the Bridge Requirements set forth in m Exhibit F and the detailed plans and specifications approved by BNSF. v) v 3. SANBAG must require its contractor(s) to reasonably adhere to the Project's construction m schedule for all Project work. At BNSF's discretion, any work that would affect train operations shall be 0 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 Q will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. E Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the a 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 E costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. ru 4. BNSF shall have the right to request any SANBAG employee, or CITY employee, who enters m BNSF's Rail Corridor and because of their incompetence, neglect of duty, unsafe conduct or misconduct E U Page 10 of 17 m Palm Overhead —September 20,2012 Q C13018 Packet Pg.315 7.N.c c 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 3 until the matter has been fully resolved to BNSF's satisfaction. The party whose employee has been y asked to leave the Rail Corridor will indemnify BNSF and the other parties against any claims arising from o such removal. U LL 5. BNSF will have the right to stop construction work on the Project if any of the following events fn Z take place: (i)Contractor(or any of its subcontractors) performs the Project work in a manner contrary to m the plans and specifications approved by BNSF; (ii) Contractor (or any of its subcontractors), in BNSF's xs opinion, prosecutes the Project work in a manner which is hazardous to BNSF property, facilities or the a safe and expeditious movement of railroad traffic; (iii)the insurance described in the attached Exhibit C-1 m is canceled during the course of the Project;or(iv)SANBAG fails to pay BNSF for the Easement pursuant a to Article 11, 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 c 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 2 may immediately terminate the Temporary Construction License or the Easement. Any such work a stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop y the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for v 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: 0 v Garry Cohce Q SANBAG Director of Project Delivery E 1170 W.3rtl Street, 2n° Floor a San Bernardino, CA 92410 .. Phone number: (909)884-8276 Fax number(909)388-2002 N Email: acohoe @sanbac.ca.00v c 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 o 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 Q site,www.contractororientation.com. A partial list of BNSF's PPE requirements include; a) safety glasses: 2 permanently affixed side shields; no yellow lenses, b) hard hats with high visibility orange cover,c)safety Ca shoes: hardened toe, above-the-ankle lace-up with a defined heel and d), high visibility retro-reflective u orange vests are required as specified by BNSF's representative in charge of the Project. PPE r_ requirements as defined on the web site, will be amended from time to time, and shall take precedence g 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. m rn 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 m safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is C9 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 Q not proceed until SANBAG corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the E situation is not being corrected in an expeditious manner, BNSF will immediately notify SANBAG'S a Director of Project Delivery for appropriate corrective action. 8. BNSF shall contribute the amount of Six Hundred Eighty Nine Thousand Seven Hundred Ten and a. Noll 00 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 x following limits: w (a) Where a grade crossing is eliminated by grade separation, the structure and approaches m required to transition to a theoretical highway profile which would have been constructed 'rf E u Page 11 of 17 A Palm Overhead —September 20,2012 Q C1301 B PacketPg. 316 7.N.c C there were no railroad present, for the number of lanes on the existing highway and in .0 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 o within the limits of a grade separation project, the estimated cost of a theoretical structure U and approaches as described in 23 CFR 646.210(c)(1) to eliminate the railroad-highway u_ grade crossing without considering the presence of the waterway or other highway. z m The total cost of constructing the Project is estimated to be Twenty Four Million Four Hundred Seventy of Eight Thousand and No/100 Dollars ($24,478,000.00), more particularly described on Exhibit G attached Q hereto and incorporated herein. Z 9. BNSF will make payment in full of BNSF's Share to SANBAG upon receipt of a detailed invoice of U) the Project's final costs, together with written advice of the Project's date of completion as provided for o hereinabove in Article III Section 13.ok 10. SANBAG agrees to furnish BNSF's Manager Public Projects monthly Project Progress Reports o that detail work completed, percentage of Project completeness, an updated projection of the Projects rn final cost, and the Project's estimated completion date for BNSF's use in budgeting BNSF's Share. m 11. Pursuant to this Section and Article II, Section 6 herein, SANBAG must reimburse BNSF in full for 0 the actual costs of all work performed by BNSF under this Agreement. i a 12. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its E actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation a 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 o 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 v 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 Q even though such work may have preceded the date of this Agreement and the issuance of Notice to g Proceed as more particularly described in Article III,Section 16. ca U 14. The parties mutually agree that no construction activities for the Project, nor future maintenance r_ of the Structure once completed, that would interfere with operations of the Rail Corridor will be permitted g 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 m mutually understand and agree that trains cannot be subjected to delay during this time period. rn CD 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 O 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. a E 16. Within 90 days of the conclusion of the Project and final acceptance by BNSF, SANBAG must a provide BNSF with a complete electronic set of the bridge plans with the railroad clearances (prepared in Enallsh Units). BNSF will also accept a marked up paper copy of the bridge plans labeled "As Built". Q 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 a format (preferred) or AutoCAD '.dwg format. Electronic plans are to be submitted in the original format x used for CAD plan preparation and not converted to another format prior to submission. The "As Built" w 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. m The As Built plans must comply with the Bridge Requirements set forth on Exhibit F and depict all E U Page 12 of 17 m Palm Overhead —September 20,2012 Q C13018 Packet Pg. 317 7.N.c 06 c 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 i facilities must be shown. It is understood that BNSF prefers to receive the"As Built" plans in an electronic N format. 0 U 17. In the event that BNSF shall deem it necessary or desirable in the future, in the performance of its U- duty as a common carrier, to raise or lower the grade or change the alignment of its tracks or to lay Z additional track or tracks or to build other facilities in connection with the operation of its railroad, BNSF to shall, at its expense, have full right to make such changes or additions, provided such changes or 06 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 CO the Structure to accommodate railroad Projects, the cost of such work, including any cost incidental to Z alteration of railroad or highway facilities made necessary by the alteration of the Structure shall be the U) sole responsibility of CITY. o 18. In the event CITY shall deem it necessary or desirable in the future, due to traffic conditions, to after or reconstruct the Structure, it shall have full right to do so, subject to BNSF's approval of the plans d 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 A BNSF as provided in Article 111, Section 1 hereof,without the prior written consent of BNSF,and execution c9 of a supplement to this Agreement or the completion of a separate agreement. Q 19. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or E the costs or expenses for labor and material connected with the construction will at all reasonable times a 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. 0 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 E may assign any of its rights or obligations hereunder without the prior written consent of the other parties. rn 21. In the event construction of the Project does not commence within three(3) years of the Effective Q Date,this Agreement will become null and void. E 06 22. Neither termination nor expiration of this Agreement will release any party from any liability or U obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or o events happening prior to the date of termination or expiration. m 23. To the maximum extent possible, each provision of this Agreement will be interpreted in such a m manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited rn 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 4 between BNSF, CITY, and SANBAG with respect to the subject matter herein and supersedes any and all E other prior agreements between the parties hereto. ri 25. Any notice provided for herein or concerning this Agreement must be in writing and will be Q deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the _ following addresses: a t X BNSF: BNSF's Manager of Public Projects w 740 E. Carnegie Drive San Bernardino,CA 92408 Email: Melvin.Thomas@bnsf.com E U Page 13 of 17 m Palm Overhead —September 20,2012 Q C13018 Packet Pg.318 7.N.c 0a c 0 Director Structural Engineering 4515 Kansas Avenue Kansas City, KS 66106 0 Email: Byron.Burns @bnsf.com v LL BNSF's Project Engineer z 740 E. Camegie Drive m San Bernardino,CA 92408 06 Email: Greg Rousseau0bnsf.com a m SANBAG: Garry Cohoe Z SANBAG Director of Project Delivery y 1170 W.3b Street,2� Floor, San Bernardino, CA 92410 C Phone number: (909)884-8276 2 Fax number(909)388-2002 Email:QcQhoe0sanbaO ca cov M. CITY: City of San Bernardino Attention: Robert Eisenbeisz m Deputy Director/City Engineer (9 300 North D Street San Bernardino,CA 92418 Q Fax No: (909)384-5573 E R EL 0 0 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. c m E 0 FD Signature pages to follow. 0 Q 06 U c 0 ry a m m d v ra C7 m Q E m a Q x w c m E t U Page 14 of 17 16 Palm Overhead -September 20,2012 Q C13018 Packet Pg. 319 7.N.c od c 0 0 BNSF RAILWAY COMPANY v LL N z By: m Printed Name: Sanford C. Sexhus 06 Title: Vice President Engineering a m z cn Q WITNESS: c a m m m a E m a 0 N C d E d d m Q U c 0 m CL m rn d m d Q E m a s x w c m E s U Page 15 of 17 6 Palm overhead —September 20,2012 Q C13018 Packet Pg. 320 CITY OF SAN BERNARDINO By Andrea Travls•Mfller Acting City Manager Date: APPROVED AS TO FORM: By: James F. Penman {l City Attorney Date: �/ �/ f / &/ R�(art twemf pae*ef P, 3 (/V)1 Zt .I '/ Pape 16 of 17 �" -Tt✓ * ` ` Palm Overhead —September 2d,2012 / C13018 �Ol 15112- 7.N.c 0 0 SAN BERNARDINO ASSOCIATED GOVERNMENTS N C By: 0 Janice Rutherford w President-Board of Directors Y) z M 06 Date: t7 m z APPROVED AS TO FORM: y C 0 By: Eileen Monaghan Teichert m CL General Counsel rn 0 v m d Q CONCURRENCE: E o. BY: Jeffery Hill N Contract Administrator c m E m d m Q 03 U c 0 m m v v m d E m a a a s w u c m E z U Page 17 of i m Overhwd —Septem Q C13018 Packet Pg. 322 r .�wN.c yov,-i, 1`g._ �k w LL z a) l ) rn d •c g ! s �M •„ i � 2 i PS�� G 1w A- btRG y�4 U � J i _._. www w� wiauwln w1 a � ff gg Y Mini _ r o— D i3 • c 3n x ! 3 kk„�� 9 • t� '� i � � g uT r z 8 I E m i Packe.. 23,; 7 N r. •. CO Gg 31 eiesi i V� ca cn lit C is a 'i ]� _ .. .law.✓ a S 'r i � Yn � Ik E J 1t V F� g� O 1 I yiS N s y~ i �4 S4�M1 i YOtl NDt I1SN iic�a w q C two CD e 5y ^ .f.- 311N3�V If1YdN ,/. u4 l " 59tis PacketPg.324 7.N.c EXHIBIT B .2 C To Construction and Maintenance Agreement g U N C O U W to Z m ai t7 Q m Z Q to c O R t0 a d U) 0 v m U m Q E m a m c v E N Q) .. rn xs U c 0 `m CL m to N v m U v Q E R a Xx W C v E t V Exhibit B Easement Agreement Fonn 7Mverpass;Rev. 8/17/11 1 Q Packet Pg. 325 7.N.c oa EASEMENT AGREEMENT c FOR PALM AVENUE OVERHEAD (C&M Agreement) 3 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 0 BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and SAN BERNARDINO ASSOCIATED LL GOVERNMENTS,a body corporate and politic of the State of California, hereinafter referred to as("Grantee'). z M A. Grantor owns or controls certain real property situated at or near the vicinity of San Bernardino, County 06 of San Bernardino, State of California, at Mile Post 74+0340.05, as described or depicted on Exhibit "A-1" a attached hereto and made a part hereof(the 'Premises"). m Z B. Grantor and Grantee have entered into that certain Construction and Maintenance Agreement y dated as of concerning improvements on or near the Premises c (the"C&M Agreement'). CZ C. Grantee has requested that Grantor grant to Grantee an easement over the Premises for the m Easement Purpose(as defined below). rn v D. Grantor has agreed to grant Grantee such easement, subject to the terms and conditions set m forth in this Easement Agreement. 0 m a NOW,THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein,the E mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of a which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. ° N 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. a Q 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 ces all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature v whether or not of record, if any, relating to the Premises and subject to all with all applicable federal, state and o 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 m any alterations or improvements or perform any maintenance or repair activities within the Premises except in m accordance with the terms and conditions of the C&M Agreement. d v 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: 0 m (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and a relocate any existing pipe, power, communication, cable, or utility lines and £ appurtenances and other facilities or structures of like character (collectively, "Lines") a upon,over, under or across the Premises; Q (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 a X W (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 E interference with the use of the Premises by Grantee for the Easement Purpose. E U Exhibit 6 Easement Agreement Form 7040verpass;Rev. 8/17/11 .�. 2 Q PacketPg. 326 7.N.c w c Section 2 Tenn of Easement. The term of the Easement, unless sooner terminated under provisions of 4 this Easement Agreement, shall be perpetual. The term of the Temporary Easement for parcel APN 0266-011- 3 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 C provisions of this Easement Agreement, on the earlier of (i) substantial completion of the Project, or (ii) Thirty 0 (30)months following the Notice to Commence Construction. LL Z Section 3 No Warranty of Any Conditions of the Premises. Grantee acknowledges that Grantor has m made no representation whatsoever to Grantee concerning the state or condition of the Premises, or any as personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. Q Grantee has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to Co 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 2 OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO 2 ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE'S o CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, ti 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 a inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its E 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 o Contractors (as hereinafter defined)can successfully construct or operate the Improvements. 0 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 N anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the m affected rail corridor,Grantor shall not be liable to refund Grantee any compensation paid hereunder. d w 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 v authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, o or future alteration of the Improvements shall be made and maintained in such manner, form and extent as will 2 provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such m fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of o the Grantor, the Grantee shall construct and maintain such culverts or drains as may be requisite to preserve Cn such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing m 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 tj 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 E adjustments necessary to such Other Improvements. Grantee must contact the owner(s) of the Other a 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 a 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 s property to determine if any Other Improvements (fiber optic,cable, communication or otherwise)may exist.The x Grantee agrees to keep the above-described premises free and clear from combustible materials and to cut and w 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 r N local laws and regulations and abate any and all hazard of fire. E s U Exhibit B Easement Agreement Form 7040verpass;Rev. 8/17/11 :6 3 Q PacketPg. 327 7.N.c 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- o 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 N 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 c 0 become obligated to do so, Grantee shall be liable for all costs, expenses and judgments to or against Grantor, y LL including all of Grantor's legal fees and expenses. Z m Section 7 Environmental. °d O 7.1 Compliance with Environmental Laws. Grantee shall strictly comply with all federal, state and pap local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Q Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials m Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) c and the Toxic Substances Control Act(collectively referred to as the"Environmental Laws"). Grantee shall not maintain a 'Rreatment," "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 m release of 'hazardous waste" or "hazardous substances", as "hazardous waste" and 'hazardous substances" y may now or in the future be defined by any Environmental Laws. v to 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 Q Environmental Laws with respect to Grantee's use of the Premises. Grantee shall use its best efforts to promptly E respond to any release on or from the Premises. Grantee also shall give Grantor immediate notice of all a measures undertaken on behalf of Grantee to Investigate, remediate, respond to or otherwise cure such release or violation. 'o r 0 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 d Agreement, Grantor may require Grantee, at Grantee's sole risk and expense, to take timely measures to E investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during 0 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. Q Determination of soils contamination and applicable disposal procedures thereof,will be made only by an agency Z having the capacity and authority to make such a determination. at1 V 7.4 Preventative Measures. Grantee shall promptly report to Grantor in writing any conditions or c 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 N Grantor's request for information regarding said conditions or activities. 4) m 7.5 Evidence of Compliance. Grantee agrees periodically to furnish Grantor with proof satisfactory 0 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 Q may, at its option, terminate this Easement Agreement by serving five (5) days' notice of termination upon E Grantee. Upon termination, Grantee shall remove the Improvements and restore the Premises as provided in n Section 9. Q Section 8 Default and Termination. :. a 8.1 Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors,fails to properly x perform its obligations under this Easement Agreement, Grantor, in its sole discretion, may: (i) seek specific w performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the performance of c such work as Grantor deems necessary for the safety of its rail operations, activities and property,or to avoid or d remove any interference with the activities or property of Grantor, or anyone or anything present on the rail E , v Exhibit B Easement Agreement Form 7040verpass;Rev. 8/17111 Z 4 Q Packet Pg. 328 7.N.c corridor or property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor for all C costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantors failure to 2 perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this U Easement Agreement. ` a c 8.2 Abandonment. Grantor may, at its option, terminate this Easement Agreement by serving five 0 (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the v LL Easement Purpose. Any waiver by Grantor of any default or defaults shall not constitute a waiver of the right to z terminate this Easement Agreement for any subsequent default or defaults, nor shall any such waiver in any way 00 affect Grantor's ability to enforce any section of this Easement Agreement. of 0 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from 4 any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, CO 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. c 0 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 CSM Agreement,at law or in equity. o d Section 9 Surrender of Premises. m v m 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: Q E (a) remove all or such portion of Grantee's Improvements and all appurtenances m thereto from the Premises,as Grantor directs at Grantor's sole discretion; a (b) repair and restore any damage to the Premises arising from, growing out of, or N connected with Grantee's use of the Premises; c (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee;and d d (d) leave the Premises in the condition which existed as of the Effective Date. G 9.2 Limited License for Entrv. If this Easement Agreement is terminated, Grantor may direct 06 Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which rase Grantee U shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed o 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 o termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to rn the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon m any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. [, m Section 10 Liens. Grantee shall promptly pay and discharge any and all liens arising out of any Q construction, alterations or repairs done, suffered or permitted to be done by Grantee on the Premises or E attributable to Taxes that are the responsibility of Grantee pursuant to Section 6. Grantor is hereby authorized a 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 4 other section of this Easement Agreement. r Section 11 Tax Exchange. Grantor may assign its rights (but not its obligations) under this Easement w 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 E t U Exhibit B Easement Agreement Form 704Overpass;Rev. 8/17/11 .�. 5 Q PacketPg. 329 7.N.c a Notice of Assignment, attached as Exhibit "C-1", and Grantee shall execute an acknowledgement of receipt C of such notice. 0 U 3 Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall y 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. u Worth,TX 76131, Attn: Permits, or such other address as Grantor may from time to time direct by notice to LL Grantee. m Section 13 Recordation. It is understood and agreed that this Easement Agreement shall not be in o6 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 forth attached CO hereto as Exhibit "6-1" (the "Memorandum of Easement") subject to changes required, if any, to conform 4 such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate rn records in the county where the Premises are located. If a Memorandum of Easement is not executed by the o 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. CL m Section 14 Miscellaneous. rn m v 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 C9 conflicts of law provisions. > Q 14.2 In the event that Grantee consists of two or more parties, all the covenants and agreements of E Grantee herein contained shall be the joint and several covenants and agreements of such parties. This m instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon a each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the Premises. N 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 E disbursements in addition to any other relief to which such party or parties may be entitled. y P w 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 °d provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision V herein,there will be added automatically as a part of this Easement Agreement a provision as similar in its terms o to such illegal, invalid or unenforceable provision as may be possible and be legal,valid and enforceable. m CL 14.5 This Easement Agreement is the full and complete agreement between Grantor and Grantee ma 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, m 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. ¢ E to IL ADMINISTRATIVE FEE Q 15. Grantee acknowledges that a material consideration for this agreement, without which it would not a be made, is the agreement between Grantee and Grantor, that the Grantee shall pay upon return of this k Agreement signed by Grantee to Grantor's Broker a processing fee in the amount of $2,000.00 over and above W the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check. m E r v Exhibit B Easement Agreement Form 7040verpass;Rev. 8/17/11 to e ¢ Packet Pg. 330 7.N.c Witness the execution of this Easement Agreement as of the date first set forth above. C 0 u GRANTOR: N C BNSF RAILWAY COMPANY, a Delaware corporation 0 U LL in Z m By. 00 Name: Mark D. Ude 4 Title: AVP-Corporate Real Estate Development m Z in Q C 0 GRANTEE: CU CL SAN BERNARDINO ASSOCIATED GOVERNMENTS,a body in corporate and politic of the State of California m c� By Name: Janice Rutherford Q Title: President-Board of Directors E m a �o 0 N C N E d d iT Q Od U 0 O t0 CL m w d m t7 m E R a Q a t X w c v E t U Exhibit a Easement Agreement Fomi 7040verpass;f1ev. 8117111 7 a Packet Pg. 331 7.N.c EXHIBIT "A-1" r Od To Easement Agreement ° U Premises 0 U LL N Z ED U Q z Z Q N c 0 m m CL m N m R f7 m Q E m a 0 N C CD E m m rn Q oC U c 0 m C. m d a m 0 m Q E m a a a z x w c m E s v a PacketPg. 332 7.N.c 06 >_ Caw Su cyin&Inc. 0 Oc[oba 6,2011 U 7 N EXHIBIT"A' � LEGAL DESCRIPTION L j APN 0266-011-13 W N z 07 THAT PORTION OF GOVERNMENT LOT 37, RANCHO MUSCUPIABE, COUNTY OF SAN of BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, Q IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: ro z 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) o (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 n POINT OF BEGINNING; THENCE LEAVING SAID NORTHEASTERLY RIGHT OF WAY LINE SOUTH y 51°05'32' WEST 150.00 FEET TO THE SOUTHWESTERLY RIGHT OF WAY LINE OF SAIDO 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 a LINE SOUTH 38 054'04'EAST 60.50 FEET TO THE TRUE POINT OF BEGINNING. E m a CONTAINING 9,075 SQUARE FEET, MORE OR LESS. m 0 ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. c d DATED THIS 6"'DAY OF OCTOBER,2011. E m v LAND rn e6 GWEN-VERA DEL CASTILLO.PLS 5108 L .S. 5108 Q 0 o OF CA< �E� Q" 0 cn d m m m a E al a a L X W c m E s U 1 m IN 10807R Q Packet Pg. 333 7.N.c oty c FTM. GOV. LOT 37 RANCHO NJ�� /��QG�jL�C N IfP M.B.o I/7 f 23 m \ a� R.S. 84/20 � a 1. z 4 c T ° \ ,�2 0 GO � N 1 d 2 ` P E m P.O.C. D \ o / t�O� 9A2 s ` E yti °� \(p%, �i � a O/'t'p PP c BEARING DISTANCE °- 1 S51'05' 32'W 150. 00' 2 N38'54' 04' W 60. 50' // c' �� a 3 N51'05' 32'E 150. 00' 4 S38'54' 04'E 60. 50' 5 N38'54' 04'W 211. 63'///��01 4, > �OGP� CF O \ F 9� Q 0 `a0 E `0� \ \ pa Q Y W Y C d jos : 108-078 E DATE: 10-6-11 EXHIBIT SCALE: i"=10o' BN RAILROAD COA03SATAY SpRVEIEING, INC. M SHEET 1 OF 1 AP 026E rusne, c�' 92780-6527 (714) 918-6266 Packet 334 7.N.c 06 Coast Survcyi%Inc. _ O March 23,2012 U 7 EXHIBIT"A" LEGAL DESCRIPTION v FOUNDATION EASEMENT APN 0266-011-13 u' In z Co THAT PORTION OF GOVERNMENT LOT 37, RANCHO MUSCUPIABE, COUNTY OF SAN a1 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: Co a 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) o (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 o 3B°54'04' WEST 138.62 FEET ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE; THENCE 0 In 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 m BEGINNING; THENCE CONTINUING ALONG SAID SOUTHWESTERLY RIGHT OF WAY LINE NORTH Q 38 054'04" WEST 28.00 FEET; THENCE LEAVING SAID SOUTHWESTERLY RIGHT OF WAY LINE E NORTH 51°05'56' EAST 7.50 FEET; THENCE SOUTH 38°54'04' EAST 7.75 FEET; THENCE NORTH m 51°05'32"EAST 4.50 FEET;THENCE SOUTH 38°54'28" EAST 12.50 FEET,THENCE SOUTH 51°05'32" a WEST 4.50 FEET; THENCE SOUTH 38"54'04' EAST 7.75 FEET; THENCE SOUTH 51°05'56' WEST r 7.50 FEET TO THE TRUE POINT OF BEGINNING. N CONTAINING 266 SQUARE FEET,MORE OR LESS. E d ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. � ad U �i.� LAND 3, c DATED THIS 28 3x DAY OF MARCH, 2012. �y DEL PL 0 0 a L.S. 5108 Q GWEN-VERA DEL CASTILLO, PLS 5108 E F dot c� Op CALF � E m a 4 L X W C d E 1 v IN 108078 @ ¢ Packet Pg.335 c \ PTH. GOV. LOT 37 RANCHO o ,p ML o o 7623 m \ d� R.S. 0412£ a \ m Z \ 44• H 9p \ G c 6 7 2 rn 5 8 \ 9 GO Q m 4 0 ♦ \�O Q 11 O d 3 a P.O.C. CST �o � \ o BEARING DISTANCE 0 \ 1 N38'54' 04'W 211. 63' J` 2 S51.05' 32'W 150, 00' 9y 9Oy E 3 N38'54' 04'W 16. 25' BF \ O y 4 N38'54' 04'W 28. 00' py \ ?6 5 N51'05' 56' E 7. 50' 9P 6\ Q 6 S38' 54' 04' E 7. 75' 7 N51' 05' 32'E 4. 50' 8 538.54' 28' E 12, 50' 9 S51'05' 32'W 4. 50' 10 S38'54' 04'E 7. 75' \\ o 11 S51'05' 56'W 7. 50' i CL CD U) Z49°G �O\GP O P \ l/ \ E a i'/ 'rp� Q•�y F Gp Q L w C [JOB : 108-078 E �DA,e:3-23-12 XHI COAST SURVEYING, INC nLE: 1"=100' N Aid A 15031 PARKWAY LOOP, SURE B EET 1 OF 1 AP 0266-011-13 1umN. CA 92780-M? (714) 918-5155 Ficket.P 338 7.N.c otS EXHIBIT "B-1" 2 To Easement Agreement N C O MEMORANDUM OF EASEMENT u- m z m ¢ m z Q m c 0 L C CL d m a m IL^ V d > a E a 0 N C d E W d L rn Q U c 0 m Lm CL m v v m m E m a a a s x w c d E t U a Packet Pg. 337 7.N.c .0 C O U 7 N C O MEMORANDUM OF EASEMENT U LL W Z M 06 0 THIS MEMORANDUM OF EASEMENT is hereby executed this day m of 2012, by and between BNSF RAILWAY COMPANY, a Delaware corporation Z ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas Q 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 o 1170 W. 3 . Street, San Bernardino, Califomia 92410-1715, which terms "Grantor" and "Grantee' shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, o successors and assigns of the respective parties: N m a WITNESSETH: m WHEREAS, Grantor owns or controls certain real property situated in County, m E as described on Exhibit "A•1" attached hereto and incorporated herein by reference (the "Premises'); o WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated o 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 E m WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the Easement Agreement of record. Q For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Grantor ,n does grant unto Grantee and Grantee does hereby accept from Grantor the Easement over and across U the Premises. o The term of the Easement, unless sooner terminated under provisions of the Easement Agreement,shall be perpetual. c m rn All the terms, conditions, provisions and covenants of the Easement Agreement are incorporated m herein by this reference for all purposes as though written out at length herein, and both the Easement m Agreement and this Memorandum of Easement shall be deemed to constitute a single instrument or 29 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 Q inconsistency between the Easement Agreement or this Memorandum of Easement, the Easement E Agreement shall control. a Q a t X w c m E s U A Page l of 2 Q Packet Pg. 338 7.N.c 0a IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of Easement to 0 as of the date and year first above written. GRANTOR: y r 0 BNSF RAILWAY COMPANY,a Delaware corporation L) LL N Z m 06 By a Name: Mark D. Ude m Title: AVP-Corporate Real Estate Development Q rn C 0 STATE OF TEXAS § a § 0 COUNTY OFTARRANT § d a This instrument was acknowledged before me on the day of 2012, by (name) as (title) of O BNSF RAILWAY COMPANY,a Delaware corporation. Q E Notary Public ti (Seal) O 0 N My appointment expires: v E 0 v m GRANTEE: ¢ SAN BERNARDINO ASSOCIATED GOVERNMENTS,a 2 body corporate and politic of the State of California, 06 U r- 0 By. Name: Janice Rutherford 0- Title: President-Board of Directors <n 0 v STATE OF CALIFORNIA § (� COUNTY OF SAN BERNARDINO § ¢ E This instrument was acknowledged before me on the day of by m IL (name)as (title)of ,a ¢ a Notary Public x W (Seal) c CD My appointment expires: E V R Page 2 of 2 ¢ Packet Pg. 339 A 06 EXHIBIT "C" o To Construction and Maintenance Aereement VI CONTRACTOR REQUIREMENTS o PALM AVENUE OVERHEAD U LL rn Z to 1.01 General: 06 • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as z "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter vai referred to as "Railway Property", during SAN BERNARDINO ASSOCIATED GOVERNMENTS, a o body corporate and politic of the State of Califomia,hereinafter referred to as ("SANBAG")removal of the E m 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. m c� m • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the a Exhibit C-1 Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in E full force and effect the insurance called for under Section 3 of said Exhibit C-1. Questions regarding a procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA,214-303-8519. 0 N • 1.01,03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the c movement of any trains on Railway Property. E v v • 1.01.04 The Contractors right to enter Railway's Property is subject to the absolute right of Railway to a cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's g activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to 06 stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its r subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by g Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in m a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of O railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the m Project; or (iv) SANBAG fails to pay Railway for the Temporary Construction License or the Easement. v 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 i delivered to and accepted by Railway. In the event of a breach of(i) the Exhibit C-1 Agreement, (ii) the a Temporary Construction License, or(iii) the Easement, Railway may immediately terminate the Temporary E Construction License or the Easement. Any such work stoppage under this provision will not give rise to a 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 a Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: x W L; Garry Cohoe E SANBAG Director of Project Delivery U 1170 W. 3rd Street, 2nd Floor a Palm Ave Overhead May 25,2012 Page 1 of I 1 Packet Pg.340 7.N.c San Bernardino, CA 92410 c Phone number: (909)884-8276 0 Fax number(909) 388-2002 Email: gcohoe @sanbag.ca.gov c 0 • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local LL Governmental laws and regulations, including, but not limited to environmental laws and regulations z (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water to Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA), and health and safety 06 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 z against the Railway which arise out of Contractor's work under the Exhibit C-1 Agreement. y r- 0 • 1.01.06 The Contractor must notify SANBAG'S Director of Project Delivery (909-8848276) and Railway's Manager Public Projects, telephone number 909-386-4472 at least thirty (30) calendar days a before commencing any work on Railway Property. Contractor's notification to Railway must refer to w Railway's file BF-10003191. 0 • 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 E (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the a 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 o 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 Q 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 o stamped by a registered professional engineer licensed to practice in the state the project is located. The m Contractor must not begin work until notified by the Railway that plans have been approved. The a 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 E by the Railway. a C s 1.02 Contractor Safety Orientation x w • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway c Property without first having completed Railway's Engineering Contractor Safety Orientation,found E on the web site www.contractororientation.com. The Contractor must ensure that each of its v employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety a Palm Ave Overhead May 25.2012 Page 2 of 1 I Packet Pg. 341 7.N.c Orientation through internet sessions before any work is performed on the Project. Additionally, the 06 Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees 4 possesses a card certifying completion of the Railway Contractor Safety Orientation before entering 3 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. c Further clarification can be found on the web site or from the Railway's Representative. U en Z 1.03 Railway Requirements m oa • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, a including track ballast, free of sand, debris, and other foreign objects and materials resulting from his Z operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or N replaced by Railway and the cost of such repairs or replacement must be paid for by SANBAG. o .2 • 1.03.02 The Contractor must notify the Railway's Division Engineer at 909-386-4504 and provide m CL blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations N adjacent to or on Railway's Property. v m • 1.03.03 The Contractor must abide by the following temporary clearances during construction: m 15'-0"Horizontally from centerline of nearest track £ 21'-6" Vertically above top of rail m 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 O 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 20,000 volts N 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts v a, m P 1.03.04 Upon completion of construction,the following clearances shall be maintained: a ¢ ■ 72'-0" Northeasterly from centerline of track, Main 1, to face of column Bent 3 and 39'-I1" Od Southwesterly Horizontally from centerline of track, Main 3, to face of crash wall for Bent 2, v 25'-0"Vertically above top of rail o • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be a 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. d • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of E installing tell-tales or other protective devices Railway deems necessary for protection of Railway m CL operations. The cost of tell-tales or protective devices will be home by SANBAG. 4 • 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 r this work must not be undertaken until approved by the Railway. X LU c • 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 a Palm Ave Overhead May 25,2012 Page 3 of I I PacketPg. 342 7.N.c 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, o at the completion of the project, removed at the expense of the Contractor. N • 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, o constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must U LL immediately notify the Railway's Resource Operations Center at 1(800) 832-5452, of any discharge, release z or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a m treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery ae Act or any state analogue. m Z • 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 o 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 a representative. m rn v v R 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan: d a • 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop E and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project a 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 c 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 a 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. e6 U c • 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 m require access to Railway Critical Infrastructure, Railway Critical Information Systems, Railway's m a Employees, Hazardous Materials on Railway's property or is being transported by or otherwise in the cD custody of Railway,or Freight in Transit involving Railway. a E m IL The required background screening shall at a minimum meet the rail industry background screening criteria defined by the e-RAILSAFE Program as outlined at http://www.e-railsafe.com in addition to any other a applicable regulatory requirements. a s X U1 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 m completed background information to Railway's designee. Contractor shall be subject to periodic audit to E ensure compliance. a Palm Ave Overhead May 25,2012 Page 4 of I I Packet Pg. 343 7.N.c c Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, 0 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 c this section above to any of Contractor's employees, subcontractors or agents who do not display the o authorized identification badge issued by a background screening service meeting the standards set forth in U. the e-RAIISAFE Program, or who in Railway's opinion, which may not be unreasonable, may pose a threat z to the safety or security of Railway's operations, assets or personnel. In e6 0 Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United Slates In citizens or legally working in the United States under a lawful and appropriate work VISA or other work a authorization. In c 0 1.05 Railway Flagger Services: a 0 • 1.05.01 The Contractor must give Railway's Roadmaster (telephone 909.386-4061) a minimum of m 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 0 advance by the Contractor and it is subsequently determined by the patties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that Q appropriate arrangements can be made to abolish the position pursuant to union requirements. —E� a • 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 °v (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 E catastrophic occurrence,but not limited thereto for the following conditions: m • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. Q otS • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of U Railway's representative,track or other Railway facilities may be subject to movement or settlement. o 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. o W U) 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. 0 d • 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. E a • 1.05.03 Flagging services will be performed by qualified Railway flaggers. Q • 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. x w • 1.05.03b Each time a flagger is called, the minimum period for billing will be the eight(8)hour basic day. E • 1.05.03c The cost of flagger services provided by the Railway will be bome 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 Palm Ave Overhead May 25,2012 Page 5 of I I Packet Pg. 344 7.N.c 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 o may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME 0 LL OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE z THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. m atl • 1.05.03d The average daily train traffic on this route is 84 freight trains and 2 passenger trains. m Z Train timetable speeds are: y Westward: 50 MPH Passenger, 35 MPH Freight o Eastward: 79 MPH Passenger, 55 MPH Freight Eastward: 70 MPH, Qualifying Freight a N 1.06 Contractor General Safety Requirements m L • 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. E m o_ • 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 o 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). E m v • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety a 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 06 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 g notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line m of track. m CL m N • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working m hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of t j 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 m under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's IL 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. a • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported x immediately to the Railway's representative in charge of the project. Any vehicle or machine which may w 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 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 Palm Ave overhead May 25,2012 Page 6 of I I Packet Pg. 345 7.N.c 06 site. c 0 • 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. 0 • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable U LL OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on z the web site, www.contractororientation.com, however, a partial list of the requirements include: a) in safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: e9 (9 hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. m The Railway's representative in charge of the project is to be contacted regarding local specifications for z meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and rq respirators must be wom as required by State and Federal regulations. (NOTE — Should there be a o discrepancy between the information contained on the web site and the information in this — paragraph,the web site will govern.) to 0. 0 • 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 v OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR a' TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WELL E OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO a BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAH WAY'S REPRESENTATIVE. c N • 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 he lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable m rn and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) at U • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water 2 drainage. Any work performed over water must meet all Federal, State and Local regulations. 2 M CL m • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the 0) contrary by proper authority. For all power lines the minimum clearance between the lines and any part of 00 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 0 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 desired clearance by visual means. a- 1.07 Excavation: a • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric a wires, or cables, including fiber optic cable systems are present and located within the Project work area. x The Contractor must determine whether excavation on Railway's Property could cause damage to buried ul 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 r 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 a Palm Ave Overhead May 25,2012 Page 7 of I 1 Packet Pg. 346 7.N.c 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 o utilities before excavating. U N • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing o excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is U a utility and the owner of the utility can be identified, then the Contractor must also notify the owner z immediately. If there is any doubt about the location of underground cables or lines of any kind, no work m must be performed until the exact location has been determined. There will be no exceptions to these 06 instructions. Q In Z • 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. o • 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or a protected when not being worked on. When leaving work site areas at night and over weekends, the areas rn must be secured and left in a condition that will ensure that Railway employees and other personnel who a, may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. m E 1.08 Hazardous Waste,Substances and Material Reporting: a • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other c deleterious material, including but not limited to any non-containerized commodity or material, on or N 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 'E Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards necessary L 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. of 1.09 Personal Injury Reporting 0 • 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 CL Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported vi immediately (by phone mail if unable to contact in person) to the Railway's representative in charge of the v 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. ¢ E M a a L X w c v E t v m w Palm Ave Overhead May 25,2012 Page 8 of I 1 Packet Pg. 347 7.N.c B/VSF RA/L rYAY NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION U J (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.) 0 LL V) z m Injured Person Type: oe m z Passenger on train (C) Non-employee (N) e-emp efanothermilroad or non-FMSFempinvolved in vehic%ecodent ine%dingc2moy vehC1W c 0 `m Contractor/safety sensitive (F) Contractor/non-safety sensitive (G) d rn d F1 Volunteer/safety sensitive (H) Volunteer/other man-safety sensitive (1) m Non-trespasser (0)- to include highway users involved in highway rail grade crossing accidents who did not go around or ¢ E through gates m a Trespasser (E) - to include highway users involved in highway rail grade crossing accidents who went around or through gates c N ❑ Non-trespasser(J)- Off Railway Property c v E m If train involved.Train 10: ` rn �a U c O Transmit attached information to Accident/Incident Reporting Center by: fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident-Reaorting.CenteriONSF.com o W U) d v Officer Providing Information: (Name) (Employee No.) (Phane m ¢' E m a REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT a TO 49 U.S.C.20903 AND 83 U.S.C.490 a r >< w C d E s U a Palm Ave Omhead May 25,2012 Page 9 of 1 I PacketPg. 348 •;7.N.c NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION 0 INFORMATIDN REDUIREO 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 w c I.Accident CHy/St 2:Date: Time:: 0 aL County: 3.Temperature: 4.Weather. z (if non BNSF location) m Mile Post/Line Segment 0 a 5.Driver's license No.(and state)or other 10: SSN(rimil } a U) G.Name(last first mi): c 0 7.Address: City: St Zip: a m N R Date of Birth: and/or Age: Gender. v (If available) Phone Number: Employer. m 9.Injury. 10.Body Part E (i.e.laceration,etc.) (i.e.Hand,etc.) a II.Description of Accident(To include location.action,result etc.) Co 0 N_ r C d E 01 d 12.Treatment: rn ❑ First Aid Only a as ❑Required Medical Treatment v c 0 ❑ Other Medical Treatment ra CL d 13.Dr.Name: Date: w d a m 14:Or.Address: c7 Street: City: St:_Zip: a E 15:Hospital Name: m CL IB:Hospital Address: ¢ Street: City: St Zip- :E X 17:Diagnosis: w ROM PREPARED TO COMPLY WITH FEDERALACCIOEMTREPl1MNSREMM ENTS AND PROTECTED FROM DIZU]SIOE PURSUANT 1043 U=2MM AND 03 UM 490 E r m a Palm Ave Overhead May 25,2012 Page 10 of l l Packet Pg.349 7.N.c © EXHIBIT "C-1" Agreement Between c BNSF RAILWAY COMPANY 0 and the U. to CONTRACTOR m ea c� BNSF RAILWAY COMPANY Z Attention: Manager Public Projects V) C Railway File: BF-10003191 Agency Project: Palm Avenue Overhead-USDOT No.929074M 2 to CL m Gentlemen: rn m a 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 a to as ("SANBAG") for the performance of certain work in connection with the following R 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 D No. 929074K CPUC # 002B-74.06-A BNSF's Milepost 74.06, and Line Segment 7600 on N BNSF's Cajon Subdivision. m E W Performance of such work will necessarily require Contractor to enter BNSF RAILWAY Q1 COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor 2 employed in connection with said work for SANBAG (i) executes and delivers to Railway an ae 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 2 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 d behalf of Contractor. to to Accordingly, in consideration of Railway granting permission to Contractor to enter upon tj 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: ¢' E a Section 1. RELEASE OF LIABILITY AND INDEMNITY Q Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or w 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 m (► of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's E Property. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED to Exhibit C-1 Palm Avenue Ovetbead-May 25.2012 Page 1 of g Packet Pg. 550 7.N.c O c 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 ra WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY. N z THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR 02 INCLUDES ANY CLAIMS,SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR m STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE z LOCOMOTIVE INSPECTION ACT,WHENEVER SO CLAIMED. rn c 0 Contractor further agrees, at its expense, in the name and on behalf of Railway, that it m will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear a 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 E other process in connection therewith to Contractor, and Contractor, at Railway's discretion, a 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 c or resulting from or incident to any such claims or suits. c In addition to any other provision of this Agreement, in the event that all or any portion E of this Article shall be deemed to be inapplicable for any reason, including without limitation as m 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 ea EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR c RAILWAY'S ACTS OF NEGLIGENCE. g M It is mutually understood and agreed that the assumption of liabilities and indemnification m provided for in this Agreement survive any termination of this Agreement. In d c� Section 2.TERM d This Agreement is effective from the date of the Contract until (i) the completion of the E project set forth herein, and (ii) full and complete payment to Railway of any and all sums or a other amounts owing and due hereunder. a Section 3. INSURANCE Contractor shall, at its sole cost and expense, procure and maintain during the life of this x w Agreement the following insurance coverage: r E � s U A Q Exhibit C-t Palm Avenue Overhead-May 25,2012 Page 2 of 8 Packet Pg. 351 7.N.c OA. 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 N amount otherwise carried by the Contractor. Coverage must be purchased on a post v 2004 ISO occurrence form or equivalent and include coverage for,but not limit to the aL following: z m ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ¢ m ♦ Fire legal liability z ♦ Products and completed operations c 0 j This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: a v U) ♦ 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. m ♦ The policy shall be primary and non-contributing with respect to any a. insurance carried by Railway. It is agreed that the workers' compensation and employers' liability related N 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 m Railway employees. v m 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. o 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 rn following: d a ♦ Bodily injury and property damage t7 ♦ Any and all vehicles owned,used or hired a The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: a ♦ Waiver of subrogation in favor of and acceptable to Railway. Q ♦ Additional insured endorsement in favor of and acceptable to Railway. ♦ Separation of insureds. L ♦ The policy shall be primary and non-contributing with respect to any w insurance carried by Railway. m � E U U t0 Exhibit C—I ¢ Palm Avenue Overhead-May 25,2012 Page J of B Packet Pg. 352 7.N.c aS C. Workers Compensation and Employers Liability insurance including coverage for, °- U but not limited to: 2 N C ♦ Contractor's statutory liability under the worker's compensation laws of the o U state(s) in which the work is to be performed. If optional under State law, the y insurance must cover all employees anyway. zm ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, 06 $500,000 by disease policy limit, $500,000 by disease each employee. 0 a m This policy shall also contain the following endorsements or language,which shall be z indicated on the certificate of insurance: N c 0 ♦ Waiver of subrogation in favor of and acceptable to Railway. M CL D. Railroad Protective Liability insurance naming only the Railway as the Insured with fn 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 E ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. a ♦ Endorsed to remove any exclusion for punitive damages. o ♦ No other endorsements restricting coverage may be added. N ♦ The original policy must be provided to the Railway prior to perforating any ` work or services under this Agreement ♦ Definition of "Physical Damage to Property" shall be endorsed to read: E E "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 2 06 Declarations. U c In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if available) g in Railway's Blanket Railroad Protective Liability Insurance Policy. a rli U v Other Requirements: v M Where allowable by law, all policies (applying to coverage listed above) shall contain no a exclusion for punitive damages. E M Contractor agrees to waive its right of recovery against Railway for all claims and suits a against Railway. In addition, its insurers, through the terms of the policy or policy endorsement, a 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 a for loss of its owned or leased property or property under Contractor's care, custody,or control. t X W Allocated Loss Expense shall be in addition to all policy limits for coverages referenced 0 above. m eah;b¢c—1 Palm Avenue Overhead-May 25,2012 Page d of 8 Packet Pg. 353 i 7.N.c C 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 2 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 o U insurance will be covered as if Contractor elected not to include a deductible, self-insured LL retention or other financial responsibility for claims. z M Prior to commencing the Work, Contractor shall furnish to Railway an acceptable e6 t7 certificate(s) of insurance from an authorized representative evidencing the required coverage(s), m endorsements, and amendments. The certificate should be directed to the following addresses: a w BNSF Railway Company o Manager Public Projects 740 East Carnegie Drive a San Bernardino, CA 92408 y Phone: 909-386-4472 d a Fax: 909-386-4479 ° Melvin.Thomas@bnsf.com d a AND E a BNSF Railway Company do Cert 1405 o P.O. Box 140528 Kansas City, MO 64114 Toll Free: 877-576-2378 a E Fax number: 817-840-7487 v Email: BNSF @certfocus.com www.certfocus.com of U Contractor shall notify Railway in writing at least 30 days prior to any cancellation,non- o renewal, substitution,or material alteration. A `m a Any insurance policy must be written by a reputable insurance company acceptable to <n 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 a> this contract. Annually, Contractor agrees to provide evidence of such coverage as required E hereunder. a 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. w Not more frequently than once every five years, Railway may reasonably modify the m required insurance coverage to reflect then-current risk management practices in the railroad Ec industry and underwriting practices in the insurance industry. m Exhibit C-t a Palm Avenue Overhead-May 25,2012 Page 5 of g Packet Pg- 354 7.N.c 06 c 0 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 c herein, naming Railway as an additional insured, and shall require that the subcontractor shall 0 release, defend, and indemnify Railway to the same extent and under the same terms and LL conditions as Contractor is required to release,defend, and indemnify Railway herein. z m Failure to provide evidence as required by this section shall entitle, but not require, 0 Railway to terminate this Agreement immediately. Acceptance of a certificate that does not m comply with this section shall not operate as a waiver of Contractor's obligations hereunder. a The fact that insurance (including, without limitation, self-insurance) is obtained by o 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 a recoverable by Railway shall not be limited by the amount of the required insurance coverage. 0 m 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 E part of the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be a- 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. c For purposes of this section, Railway means "Burlington Northern Santa Fe LLC", "BNSF RAILWAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each m d m Section 4. EXHIBIT"C" CONTRACTOR REQUIREMENTS ¢ 06 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 o "C" attached to the Contract and this Agreement, , including, but not be limited to, payment of R all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, o. resulting from use, occupancy, or presence of its employees, representatives, or agents or rn subcontractors on or about the construction site. m a m f7 m Section 5. TRAIN DELAY ' E Contractor is responsible for and hereby indemnifies and holds harmless Railway a (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 G to fully utilize its equipment and to meet customer service and contract obligations. Contractor a will be billed, as further provided below, for the economic losses arising from loss of use of x equipment,contractual loss of incentive pay and bonuses and contractual penalties resulting from w 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 E cause train delay. m Exhibit C-1 ¢ Palm Avenue Overhead-May 25,2012 Page 6 of B Packet Pg. 355 7.N.c aS >_ 0 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. o U tl Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other z grain, intermodal, coal and freight trains operate under incentive/penalty contracts between 0° Railway and its customer(s). Under these arrangements, if Railway does not meet its contract 0 service commitments,Railway may suffer loss of performance or incentive pay and/or be subject m to penalty payments. Contractor is responsible for any train performance and incentive penalties a or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. o .2 The contractual relationship between Railway and its customers is proprietary and a confidential. In the event of a train delay covered by this Agreement, Railway will share rn 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 m HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN > DELAY PURSUANT TO THIS AGREEMENT. E a 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 o 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 E any additional costs or expenses resulting from a change in work windows. Additional v costs or expenses resulting from a change in work windows shall be accounted for in a Contractor's expenses for the project. 06 Contractor and subcontractors must plan, schedule, coordinate and conduct all v Contractor's work so as to not cause any delays to any trains. o `m a d rn d m m a E o. a a L X W C v E t U Il! Exhibit C-1 a Palm Avenue O,emead-May 25,2012 Page 7 of d Packet Pg. 3 66 c 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 IrB. ur C O U LL m Z Contractor BNSF Railway Company m 06 0 By: By: m Z Printed Name: Name: < Manager Public Projects c Title: Accepted and effective this day of 20_ Contact Person: o. v to Address: v v City: C7 d State: Zip: Q E Fax: a Phone: to 0 E-mail: c v E d d m a6 U c 0 `m a d U) d a ro t7 m Q E M LL a s X w c N E U 16 Exhibit C-1 ¢ Palm Avmuc Ovcncud-May 25,2012 Pagc 8 of B Packet Pg. 357 i 7.N.c EXHIBIT D N 360 Flagging $ 000.00 0, U U- V) Inspection $100,000.00 m 06 Signal $140,000.00 m z Track $150,000.00 a N C O TOTAL ESTIMATED COST RAILROAD WORK $750,000.00 R a v d a E m a 0 N 1 v G v E v m a ai U c R C CL m cn d v A t7 m a E m IL Q a s x w c m L V A a Packet Pg.358 7.N.c Exhibit E 0 u Malvin Thomas aNSF Kallavay Company O Manager Public Pr*ds U 'RAIL WA)- 740 East Carnegie Onve LL San Bemar6no,CA 92408 z (909)3994472(office) m (909)M"199(Cell) ptf (909)388-0479(fu) (� McNln Thonnas®bnsf.com Q M z Q N C Date: 0 Mr. Garry Cohoe o Director of Project Delivery rn San Bernardino Associated Governments d 1170 W. 3rtl Street,2n° Floor m San Bernardino, CA 92410 C7 m Re: Final Approval of Plans and Specifications dated by Q (consultant)(hereinafter called,the"Plans and Specifications") E M a Dear Mr. Cohoe: m This letter serves as BNSF RAILWAY COMPANY'S ("BNSF") final written approval of that N 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 v top of rail to the bridge soffit and the horizontal clearances from center line of the tracks to E 0 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 g California, hereinafter referred to as ("SANBAG") pursuant to Article III, Section 1 of that 06 certain Construction and maintenance Agreement between BNSF, CITY OF SAN U BERNARDINO,and SANBAG, which this Exhibit E is attached to and made a part thereof. C 0 If the Plans and Specifications are revised by SANBAG subsequent to the date set forth above, this m m 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. N d a 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 m accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project. a. Respectfully, a Melvin Thomas s X w c m Manager Public Projects E BNSF Railway v m a Packet Pg. 359 ,.N.c 0 Exhibit F N C O BNSF Bridle Requirements LL to Z to ca (7 BRIDGE DESIGN,PLANS&SPECIFICATIONS: Q m Z Except for the design of temporary falsework and shoring,BNSF review of the Structure plans will be limited to the Q vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage to characteristics as they relate to existing and future tracks.BNSF will not review structural design calculations for the o permanent Structure unless a member or members are influenced by railroad live loads. m `m Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to y beginning construction. SANBAG shall perform an independent review of the design calculations for temporary rn falsework and shoring prior to submitting them to BNSF for approval.Temporary construction clearances must be a) no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6 inches measured M vertically from the top of rail of the most elevated track to the bottom of lowest temporary falsework member. State 0 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 E of existing and future tracks to the face of the nearest member of the proposed Structure.The location of the least a- horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. . c N ' For the permanent Structure, AUTHORITY will submit plans showing the least vertical clearance from top of v paving to bottom the deck of the proposed Structure. Prior to beginning construction of the permanent Structure,the d top of rail elevations should be checked and verified that they have not changed from the assumed elevations m utilized for the design of the bridge. The general policy of BNSF with regard to bridge and related crash wall v construction is to follow the current recommendations of the American Railway Engineering and Maintenance-of- Q Way Association(AREMA)Current AREMA recommended practice in Manual for Railway Engineering Chapter 8 (Art.2.1.5.1). oC Prior to issuing any invitation to bid on construction of the Structure,SANBAG should conduct a pre-bid meeting o 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 m invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to CL letting of bids for the Project. m v m BRIDGE CONSTRUCTION: � d After awarding the bid,but prior to the Contractor entering BNSF's railroad corridor or property,SANBAG should Q conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of E construction activity adjacent to live tracks. M a 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 Q shoring and retaining walls, placing concrete, placing soil backftll and compaction processes. SANBAG shall :t reimburse BNSF for all costs of supplemental inspection services. s w u c m Furm 0105 Rev. 4/07/08 E Page 1 of 2 m Palm Avenue Overhead,San Bernardino CA. Q Packet Pg. 360 7.N.c 06 c Within 90 days of the conclusion of the Project and final acceptance by BNSF and CITY, SANBAG will provide g 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 U original format used for CAD plan preparation and not converted to another format prior to submission. The"As w Built" plans shall show actual measured "as constructed" clearances shall be shown as well as depth, size and rn Z location of all foundation components. The plans shall show dimensioned locations of existing and relocated m utilities. It is understood that BNSF prefers to receive the"As Built"plans in an electronic format. *6 C7 Q m BRIDGE MAINTENANCE: Q U) CITY will be responsible for maintenance and repair of the Structure including the earth retention components, c embankment slopes,erosion control,surface drainage,fencing,deck drains,landscaping,paint,walkways,handrails, .2 lighting,and other improvements associated with the Project. m CL 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 d SANBAG through construction. Graffiti removal will be the responsibility of CITY. m 0 d BRIDGE INSPECTION: Q E CITY will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from m vehicular impacts or other emergent situations, CITY will provide an immediate inspection by qualified personnel C.L. and notify BNSF of damage that may affect safe passage of trains. If necessary CITY will embargo weights or to provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be o continuous safe passage of trains until repairs are made. N c BRIDGE ALTERATIONS: E N Except as provided otherwise by this Agreement,there will be no alterations made to the Structure that will alter the R railroad vertical or horizontal clearances provided by the original design. Q It is expressly understood by SANBAG and CITY that the right to install utilities is restricted to the placement of 0a underground utilities beneath BNSFs tracks located a minimum of fifty (50) feet from abutments, piers, piles, or U footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed c 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 BNSFs Rail Corridor m will be covered by separate agreements between BNSF and each of the owners of the utilities. CL rn v a v Q E M EL a t LI w c m Page 2 of 2 E s U Orangethorpe Ave.Overhead,Placentia CA. m Form 0105 Rev. 4/14/05 Q Packet Pg.361 7.N.c 0 .0 Exhibit G N C O Palm Avenue Overhead— Total Project Cost U LL Cn z m Construction Civil Items: $ 7,294,864 a Structures Items: $ 4,353,940 m z Railroad Items: $ 750,000 < Construction Support: $ 2,112,321 C Riaht of Wav ROW Acquisition: $ 5,476,619 CL ROW Utilities: $ 1,271,420 ROW Support: $ 200,000 c� Design: $ 3,000,000 a Other Project Support: $ 18,836 E R a TOTAL $2454789000 E v m as U c 0 m c v d v m U m Q E R IL a a r x w c m E s v a Packet Pg. 362 Entered Into Rec.of MCCICDC Mfg: lo rs by, 6f--a Agenda Rem No. �- CONSTRUCTION and MAINTENANCE by: Secretary City of San Bemardino 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 day of 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: rf Page 1 of 17 1 Palm Overhead —September 20,2012 1'15f ronne U CITY OF SAN BERNARDINO By Andrea Travis-Miller Acting City Manager Date: APPROVED AS TO FORM: By: Z, James F. Penman City Attorney Date: Z c � wf- Page 16 of 17 Palm Overhead —September 20,2012 C13018