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Home My WebLink About20- Development Services ORIGINAL CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Resolution approving License Agreement No. 09-37471 with the Burlington Northern Santa Fe Dept: Development Services (BNSF) Railway for maintenance of temporary shoring under the Mt. Vernon Viaduct between 2nd Date: October 27, 2009 Street and 4th Street(BR#54C0066). File: SSO4-12 MCC Date: 11/02/2009 Synopsis of Previous Council Action: 06/07/04 Resolution No. 2004-154 adopted awarding contract to Yeager Skanska, Inc. for installation of temporary support for the Mt. Vernon Bridge over the BNSF RR. 10/06/08 Resolution No. 2008-382 adopted awarding contract to Skanska USA Civil for installation of additional temporary support for the Mt. Vernon Bridge over the BNSF Railroad(BR#54C0066). Recommended Motion: Adopt Resolution. Valerie C. Ross Contact Person: Robert Eisenbeisz, City Engineer Phone: 5203 Supporting data attached: Staff Report, Reso, Ward(s): 1,3 License FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.)None Acct. Description: None Finance: Council Notes: �s o 2C)09- _-?5n v��usLY: Agenda Item No. 0 zllz X09 -a 3f ' New S+4AI RtPorf 7 7�ZU o ��30 �/3/ 9 CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT Subiect: Resolution approving License Agreement No. 09-37471 with the Burlington Northern Santa Fe (BNSF) Railway for maintenance of temporary shoring under the Mt. Vernon Viaduct between 2nd Street and 4th Street(BR#54C0066). Background: On June 3, 2004, Caltrans issued a report, which resulted from an in-depth "fracture critical" steel inspection on the Mount Vernon Bridge. During the inspection, Caltrans Inspectors determined that various steel members were cracked. These cracks occurred at one span, towards the north end of the bridge in the southbound lanes and toward the south of the bridge in the northbound lanes. Caltrans recommended immediate closure of the entire bridge. The City concurred and completed the closure on June 4, 2004. During the closure, shoring was installed under terms of an emergency contract with Yeager Skanska(now called Skanska USA Civil). On September 21, 2004, the Mayor executed a License Agreement with the BNSF railroad for maintenance of the shoring. Installation of the shoring was completed on October 4, 2004 and the bridge was reopened to traffic, except that large trucks were prohibited from using the bridge. Under terms of the License Agreement, the City has performed annual inspection and maintenance of the shoring. On May 16, 2008, the City was notified of a follow up inspection by Caltrans inspectors that revealed cracks previously not found in two additional girders. The cracks were found in span 6 adjacent to bent 7 near the south end of the bridge. Staff immediately engaged Morris Engineering, Inc. to prepare design plans for shoring the location of the newly discovered cracks. A contract was awarded to Skanska on October 6, 2008 to install additional shoring to support the bridge at the location of the newly discovered cracks. That work was completed in November of 2008. In late 2008, it was noted that the License Agreement requires that the City engage a contractor to construct the permanent replacement bridge within 30 months of the execution of the License. BNSF has indicated a willingness to execute a new License Agreement (See attached Exhibit "A") with the City to allow the shoring to remain until December 31, 2011. Based on the current schedule, construction of the Mt. Vernon Bridge will begin in October of 2010 and be completed by October of 2012. 2 CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT (Continued) Financial Impact: BNSF has agreed to waive all fees associated with this License Agreement. Therefore, there will be no financial impact. Funding is available in Account No. 129-367-5504-7121 to cover the cost of annual inspection and maintenance of the shoring. Recommendation: Adopt Resolution. Attachments: Resolution 3 RESOLUTION NO. COPY 1 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING LICENSE 2 AGREEMENT NO. 09-37471 WITH THE BURLINGTON NORTHERN SANTA FE (BNSF) RAILWAY FOR MAINTENANCE OF TEMPORARY SHORING UNDER THE 3 MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH STREET (BR#54C0066). 4 WHEREAS, on September 21, 2004, the Mayor executed a License Agreement with 5 5 BNSF for the maintenance of temporary shoring under the Mt. Vernon Viaduct between 2°d 7 Street and 4`h Street (Br#54C0066), and 8 WHEREAS, said License Agreement had a 30-month term after execution, subsequent 9 to which it became no longer operable, and 10 WHEREAS,the City is approximately 2-1/2 years away from completing environmental i1 clearance, final design and right-of-way acquisition for removal of the shoring and construction 12 13 of a replacement bridge; and 14 WHEREAS, BNSF is agreeable to a new License Agreement to allow the shoring to 15 remain until December 31, 2011, subject to adequate inspection and maintenance by the City. 16 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 17 18 SECTION 1. The City Manager is hereby authorized and directed to execute the attached 19 License Agreement on behalf of the City marked as Exhibit "A" and made a part hereof. 20 SECTION 2. Said License Agreement shall expire on December 31, 2011, unless earlier 21 terminated as provided therein. 22 SECTION 4. The authorization to execute the above referenced Agreement is rescinded 23 if it is not executed within ninety (90) days of the passage of this resolution. 24 25 26 27 28 1 - 1 - zf+acD RESOLUTION . . . APPROVING LICENSE AGREEMENT NO. 09-37471 WITH 1 THE BURLINGTON NORTHERN SANTA FE (BNSF) RAILWAY FOR MAINTENANCE OF TEMPORARY SHORING UNDER THE MT. VERNON VIADUCT 2 BETWEEN 2ND STREET AND 4TH STREET (BR#54C0066). 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 4 Common Council of the City of San Bernardino at a meeting thereof, held 5 on the day of , 2009, by the following vote, to wit: 6 7 Council Members: AYES NAYS ABSTAIN ABSENT g ESTRADA 9 BAXTER 10 BRINKER 11 SHORETT 12 KELLEY 13 14 JOHNSON 15 MC CAMMACK 16 17 Rachel Clark, City Clerk 18 The foregoing resolution is hereby approved this day of , 2009. 19 20 Patrick J. Morris, Mayor 21 City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, City Attorney 24 25 By: 26 27 28 - 2 - EXHIBIT"A" 09-37471 LICENSE THIS LICENSE ("License"), made as of the day of , 2009 ("Effective Date ) by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF SAN BERNARDINO, a municipality ("Licensee"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, licenses, easements, liens or other encumbrances, and upon the terms and conditions set forth below, to use the area of Licensor's property shown on the attached Drawing no. 1- 45557, dated January 15, 2009, and revised on February 6, 2009 attached hereto, marked Exhibit "A", and made a part hereof, situated at or near San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 78.53 ("Premises") for the purposes specified in Section 3 below. 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use Premises exclusively for maintaining the City and its contractors to install and maintain the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge. Licensee shall not use the Premises for any other purpose whatsoever. Licensee shall not use or store hazardous substances, as defined by the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ("CERCLA") or petroleum or oil as defined by applicable Environmental Laws on the Premises. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, Licensor shall not be liable to refund Licensee any compensation paid hereunder or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the Premises, or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue until December 31, 2011, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensor will waive the fees for this license. Form 423;Rev.04/26/05 - 1 - 09-37471 (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $800.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or(ii)the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the following Internet Website "http://contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. Form 423;Rev.04126105 -2- 09-37471 RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 11. (a) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Drive, San Bernardino, California, 92408, telephone (909) 386-4060 (Office) or (928) 237- 6860 (Cell), at least five (5) business days prior to entering the Premises and prior to entering the Premises for any subsequent maintenance thereon (if applicable). After completion of use of the Premises for the purpose specified in Section 3, Licensee shall notify Licensor in writing that such use has been completed. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25)feet of the centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. Form 423; Rev.04/26/05 -3- 09-37471 (b) Licensee shall, at its sole cost and expense and subject to the supervision of Licensor's Roadmaster, locate, construct and maintain the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge in such a manner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed and property of Licensor, or the safe operation of its railroad. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, itself perform such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 13. During the construction and any subsequent maintenance performed on the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's premises to their former state as of the Effective Date of this License. 14. if at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of a new temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge. 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested entry on the Premises, Licensor will provide Licensee any information that Licensee's Engineering Department has in its possession concerning the existence and approximate location of Licensor's underground Form 423;Rev.04/26/05 -4- 09-37471 utilities and pipelines on the Premises. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter, and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, cant' out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed upon Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on the Premises for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon completion of Licensee's work on the Premises or upon termination of this License, whichever shall occur first, Licensee shall, at its sole cost and expense: (a) remove all of its equipment from the Premises; (b) remove the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge at the Licensor's sole discretion; (c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (d) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (e) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License at all times while on the Premises. Form 423;Rev.04/26105 -5- 09-37471 LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO(IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE TEMPORARY SHORING AND SUPPORT STRUCTURES ON THE BNSF Form 423; Rev.04/26/05 -6- 09-37471 PROPERTY FOR THE MT. VERNON BRIDGE FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (c) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. Form 423; Rev_04/26105 -7- 09-37471 INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at least$4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B)with limits of at least$500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability Insurance. If further maintenance of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. Form 423; Rev.0426105 -8- 09-37471 ♦ Endorsed to include Evacuation Expense Coverage Endorsement. ♦ No other endorsements restricting coverage may be added. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee's insurance policies through policy endorsement, must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor and Staubach Global Services - RR, Inc. as an additional insured with respect to work performed under this agreement. Severability of interest and naming Licensor and Staubach Global Services - RR, Inc. as additional insureds shall be indicated on the certificate of insurance. Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Form 423, Rev.04/26/05 -9- 09-37471 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement.- Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall Form 423;Rev.04/26/05 -10- 09-37471 give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee - shall promptly respond to Licensor's request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations of the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor's prior written consent. NO WARRANTIES 24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 26. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in Form 423;Rev.04126/05 -11 - 09-37471 writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. Form 423;Rev.04/26/05 -12- 09-37471 If to Licensor: Staubach Global Services-RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. —A0133 Fort Worth, TX 76131 Attn: Senior Manager Real Estate If to Licensee: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418-0001 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State of California. SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Form 423; Rev.04/26/05 -13- 08,37471 MISCELLANEOUS 37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Staubach Global Services—RR, Inc. is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131 By: Ed Darter Title: Vice President—National Accounts CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 02418-0001 By: Title: APPROVED AS TO FORM: James F. Penman, City Attorney By: Form 423;Rev.04126/05 -14- TRACKING NO.09-37471 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND O CITY OF SAN BERNARDINO M O ai O Ire %,S F SCALE: 1 1N.=200 FT. P� R� CALIFORNIA DIV. CA-04 < SAN BERNARDINO SUBD I V. L.S. 7600 5-028 DATE 01/15/2009 REVISED DATE 02/06/2009 , �� a �ap�t� •��. 1-1— 1 A— ,. PROPERTY LINE a (p ----^ --":,ems^ Pet TO HARBOR ' T — --� 'sa:sre at o.wd x+...•..p d.+av si p. Pd Q7 •rus•c i wv Pd 1O / -• S7 ,, .1 �4qy,•`.. r �j�pgrw ...J•s.G.a nnr..P'�r /T -.0 .,!�^.^eetlJ.'.!�Vi+�.-..__ !J_��`r•.-- r�,,.•t•^'r'! —Pa,D9 -��f1µ ATly1 Pdlw •.5 �lmd Pd 16 n Coed of wa.. 5417 L - Pd Q �PN QtI Ptl �� Pa 116.+ Y wgNO.,IMerdl l/iu..b+•wn. . Psi QS ..."`. • !�'�..sr. WE I qt •*T ftt2l 11 - �4�� i. - - --- 4_. vas MP 81.35 _ _. _ _. ;. _ 1 . > y ES,� .� ► 1 _ " " ° W :� ._.. ,,. TO SAN BERNARDINO Y i' .� �� PROPERTY LINE m T rl- It cp DESCRIPTION: A PARCEL OF LAND FOR TEMPORARY OCCUPANCY CONTAINING A TOTAL OF 53,912 SO. FT. (1.237 A.C.) MORE OR LESS SHOWN SHADED TO MAINTAIN TEMPORARY SHORING SUPPORTS. AT SAN BERNARDINO COUNTY OFSAN BERNARDINO STATE OF CA AFV DRAWING NO. 1-45557 09-37471 LICENSE THIS LICENSE ("License"), made as of the day of , 2009 ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF SAN BERNARDINO, a municipality ("Licensee"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, licenses, easements, liens or other encumbrances, and upon the terms and conditions set forth below, to use the area of Licensor's property shown on the attached Drawing no. 1- 45557, dated January 15, 2009, and revised on February 6, 2009 attached hereto, marked Exhibit "A", and made a part hereof, situated at or near San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 73.53 ("Premises") for the purposes specified in Section 3 below. 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use Premises exclusively for maintaining the City and its contractors to install and maintain the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge. Licensee shall not use the Premises for any other purpose whatsoever. Licensee shall not use or store hazardous substances, as defined by the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ("CERCLA") or petroleum or oil as defined by applicable Environmental Laws on the Premises. 4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, Licensor shall not be liable to refund Licensee any compensation paid hereunder or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the Premises, or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue until December 31, 2011, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensor will waive the fees for this license. Form 423; Rev.04 126/05 - 1 - 09-37471 (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $800.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 112%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 112%), or (b) twelve percent (12%), or(ii)the maximum rate permitted by law, whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the following Internet Website "http://contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. Form 423; Rev. 04/26/05 -2- 09-37471 RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 11. (a) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Drive, San Bernardino, California, 92408, telephone (909) 386-4060 (Office) or (928) 237- 6860 (Cell), at least five (5) business days prior to entering the Premises and prior to entering the Premises for any subsequent maintenance thereon (if applicable). After completion of use of the Premises for the purpose specified in Section 3, Licensee shall notify Licensor in writing that such use has been completed. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. Form 423; Rev.04/26/05 -3- 09-37471 (b) Licensee shall, at its sole cost and expense and subject to the supervision of Licensor's Roadmaster, locate, construct and maintain the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge in such a manner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed and property of Licensor, or the safe operation of its railroad. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, itself perform such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 13. During the construction and any subsequent maintenance performed on the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's premises to their former state as of the Effective Date of this License. 14. If at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of a new temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge. 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (etc.., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested entry on the Premises, Licensor will provide Licensee any information that Licensor's Engineering Department has in its possession concerning the existence and approximate location of Licensor's underground Form 423; Rev.04/26/05 -4- 09-37471 utilities and pipelines on the Premises. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter, and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed upon Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on the Premises for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon completion of Licensee's work on the Premises or upon termination of this License, whichever shall occur first, Licensee shall, at its sole cost and expense: (a) remove all of its equipment from the Premises; (b) remove the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge at the Licensor's sole discretion; (c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (d) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (e) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License at all times while on the Premises. Form 423; Rev.04/26/05 -5- 09-37471 LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE TEMPORARY SHORING AND SUPPORT STRUCTURES ON THE BNSF Form 423;Rev.04/26/05 -6- 09-37471 PROPERTY FOR THE MT. VERNON BRIDGE FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (c) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. Form 423;Rev.04126/05 -7- 09-37471 INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability Insurance. If further maintenance of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. Form 423; Rev.04/26/05 -8- 09-37471 ♦ Endorsed to include Evacuation Expense Coverage Endorsement. ♦ No other endorsements restricting coverage may be added. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee's insurance policies through policy endorsement, must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor and Staubach Global Services - RR, Inc. as an additional insured with respect to work performed under this agreement. Severability of interest and naming Licensor and Staubach Global Services - RR, Inc. as additional insureds shall be indicated on the certificate of insurance. Licensee is not allowed.to self-insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration.. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Form 423; Rev.04/26/05 -9- 09-37471 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. - Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. (b) Licensee shall give Licensor immediate notice to Licenser's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall Form 423; Rev.04/26/05 -10- 09-37471 give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. shall promptly respond to Licensor's request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations of the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor's prior written consent. NO WARRANTIES 24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 26. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in Form 423;Rev.04/26/05 -11 - 09-37471 writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. Form 423;Rev. 04126/05 - 12- 09-37471 If to Licensor: Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. —A0133 Fort Worth, TX 76131 Attn: Senior Manager Real Estate If to Licensee: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418-0001 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State of California. SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Form 423; Rev.04/26/05 - 13- 09-37471 MISCELLANEOUS 37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Staubach Global Services—RR, Inc. is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131 By: Ed Darter Title: Vice President— National Accounts CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418-0001 By: Title: APPROVED AS TO FORM:. James F. Penman, City Attorney ]By: , Form 423;Rev.04/26/05 -14- TRACKING N0.09-37471 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND O rn CITY OF SAN BERNARDINO 0 0 cn 0 Pvs F A) uj SCALE: 1 IN.=200 FT. CA-04 a CALIFORNIA DIV. M SAN BERNARDINO SUBDIV. L.S. 7600 S-02B DATE 01/15/2009 REVISED DATE 02/06/2009 I �- „PROPERTY LINE :. �4,i1.,; 4 yI. TO HARBOR +] n� wail( i-- vSd 1'J .mil-( zrr,r,,.. IPd 177! .ul:'xuvv.il.°9 Pd 117 ,r�4�1 J s• d7:i , _, 1 ! -A�s'<v- a `' Sµ w ° _ - ..°%r.v..a•A nr+P-ar / � � a 666.....��_..-_--. ,�' ,��. .,f� 4'�w�.�':l Pd WB ' m n.0 � •F •••J✓ T T' P`7 1GS,� _...I: --�_...._.�.. Po 126 ,.1Y•. r W.0 of 1°oler ipnts 5217° +-�.--- �Y,..•,,;,a.,, Pd 12Y Pd 122 PclI Pd TB...'- �f",,y11(jevr u N.6 fl wo�al )) .wlfY'�^'l"""'•"^' f I Tl2l Pd 125 - I — li _ ��J�+.tY ar'"."5�:�aq Warv^o'a^M•JX. a -A d� -- 1l-}} -a]'Ym_ 'll :' G. 1 —__._ _ -_...•... 1 r •lil'•�{� .__-.'a.,,...�.4tii 1111"'. _ ... &7 �nw. "•'_"S r..na°t_ _. '.r n. t ___—.-- _P01N — �+A�t _�_ ._._' Ali _ __ 12342., �3 _ E11L]_- _ s PcllU_.. ,.- - -- � wn�•? —_�_—"� .9 np •w_y id.`n.•=;�=�.'_..._ _..pXOlK BJ.I �S�1"{ :—"^y.P d�xl a,.a7:,._—_._...� �_.._ — --.-1,:��..--- °#al'e�..r 'a'. .�•;F r 3;a c �. `,__ 1 a a fl �t, .w. 4,Au r t Pet 'J d r. 4_..ro.5,41'4i!a t.T1 ode oMP 81.55 .._�_.T}I-'�.r,f,/l_- �IF, 'A E.{-d d_�L___.I G: _,.r.1..•.64sl=iLt'"m-".,._,ice^-'.k:�• ra� , LLES 21`23 Z y�= TO SAN BERNARDINO �'j PROPERTY —LINE-- -- . ..—_. i ¢ ,rl u ]I n a, -•Jj F— Ll`�('1 �d t r w l�� rii- "'�''l�%.,�._1:!1:Y..l..dr1:'Cl.!:113!51-..t_116.Y.:1�Yr4N��WrJv Lr3. 9'.-ice-' •-,-_ DESCRIPTION: A PARCEL OF LAND FOR TEMPORARY OCCUPANCY CONTAINING A TOTAL OF 53,912 SO. FT. (1.237 A.C.) MORE OR LESS SHOWN SHADED TO MAINTAIN TEMPORARY SHORING SUPPORTS. AT SAN BERNARDINO COUNTY OF SAN BERNARDINO STATE OF CA AFV DRAWING NO. 1-45557 11/2/09, Item No. 20 Item History Backup distributed on 4/6/09, Item No. 16 Continued to: 4/20/09, #34 5/4/091 #27 5/18/0% #22 6/l/0% #26 6/15/091 #40 7/6/09, #51 7/20/091 #23 8/3/091 #30 8/17/091 #30 9/8/09, #24 9/21/0% #23 10/5/091 #21 10/19/09, #18 CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Resolution approving License Agreement No. 09-37471 with the Burlington Northern Santa Fe Dept: Development Services (BNSF) Railway for maintenance of temporary shoring under the Mt. Vernon Viaduct between 2nd Date: February 26, 2009 Street and 4th Street(BR#54C0066). File: SSO4-12 MCC Date: April 6, 2009 Synopsis of Previous Council Action: 06/07/04 Resolution No. 2004-154 adopted awarding contract to Yeager Skanska, Inc. for installation of temporary support for the Mt. Vernon Bridge over the BNSF RR. 10/06/08 Resolution No. 2008-382 adopted awarding contract to Skanska USA Civil for installation of additional temporary support for the Mt. Vernon Bridge over the BNSF Railroad(BR#54C0066). Recommended Motion: Adopt Resolution. �/� ''L„ /`/• ��A ' r Valerie C. Ross Contact Person: Robert Eisenbeisz, City Engineer Phone: 5203 Supporting data attached: Staff Report, Reso, Ward(s): 1,3 License FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.)None Acct. Description: None Finance: Council Notes: Agenda Item No. / r ,41,&x047 x047 CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT Subiect: Resolution approving License Agreement No. 09-37471 with the Burlington Northern Santa Fe (BNSF) Railway for maintenance of temporary shoring under the Mt. Vernon Viaduct between 2nd Street and 4th Street(BR#54C0066). Background: On June 3, 2004, Caltrans issued a report, which resulted from an in-depth "fracture critical" steel inspection on the Mount Vernon Bridge. During the inspection, Caltrans Inspectors determined that various steel members were cracked. These cracks occurred at one span, towards the north end of the bridge in the southbound lanes and toward the south of the bridge in the northbound lanes. Caltrans recommended immediate closure of the entire bridge. The City concurred and completed the closure on June 4, 2004. During the closure, shoring was installed under terms of an emergency contract with Yeager Skanska(now called Skanska USA Civil). On September 21, 2004, the Mayor executed a License Agreement with the BNSF railroad for maintenance of the shoring. Installation of the shoring was completed on October 4, 2004 and the bridge was reopened to traffic, except that large trucks were prohibited from using the bridge. Under terms of the License Agreement, the City has performed annual inspection and maintenance of the shoring. On May 16, 2008, the City was notified of a follow up inspection by Caltrans inspectors that revealed cracks previously not found in two additional girders. The cracks were found in span 6 adjacent to bent 7 near the south end of the bridge. Staff immediately engaged Morris Engineering, Inc. to prepare design plans for shoring the location of the newly discovered cracks. A contract was awarded to Skanska on October 6, 2008 to install additional shoring to support the bridge at the location of the newly discovered cracks. That work was completed in November of 2008. In late 2008, it was noted that the License Agreement requires that the City engage a contractor to construct the permanent replacement bridge within 30 months of the execution of the License. BNSF has indicated a willingness to execute a new License Agreement (See attached Exhibit "A") with the City to allow the shoring to remain until December 31, 2011. Based on the current schedule, construction of the Mt. Vernon Bridge will begin in October of 2010 and be completed by October of 2012. 2 CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION STAFF REPORT (Continued) Financial Impact: BNSF has agreed to waive all fees associated with this License Agreement. Therefore, there will be no financial impact. Funding is available in Account No. 129-367-5504-7121 to cover the cost of annual inspection and maintenance of the shoring. Recommendation: Adopt Resolution. Attachments: Resolution 3 RESOLUTION NO. 1 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING LICENSE 2 AGREEMENT NO. 09-37471 WITH THE BURLINGTON NORTHERN SANTA FE (BNSF) RAILWAY FOR MAINTENANCE OF TEMPORARY SHORING UNDER THE 3 MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH STREET (BR#54C0066). 4 WHEREAS, on September 21, 2004, the Mayor executed a License Agreement with 5 6 BNSF for the maintenance of temporary shoring under the Mt. Vernon Viaduct between 2nd 7 Street and 4h Street(Br#54C0066), and 8 WHEREAS, said License Agreement had a 30-month term after execution, subsequent 9 to which it became no longer operable, and 10 WHEREAS,the City is approximately 2-1/2 years away from completing environmental 11 clearance, final design and right-of-way acquisition for removal of the shoring and construction 12 of a replacement bridge; and 13 14 WHEREAS, BNSF is agreeable to a new License Agreement to allow the shoring to 15 remain until December 31, 2011, subject to adequate inspection and maintenance by the City. 16 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 17 18 SECTION 1. The City Manager is hereby authorized and directed to execute the attached 19 License Agreement on behalf of the City marked as Exhibit"A" and made a part hereof. 20 SECTION 2. Said License Agreement shall expire on December 31, 2011, unless earlier 21 terminated as provided therein. 22 SECTION 4. The authorization to execute the above referenced Agreement is rescinded 23 if it is not executed within ninety(90) days of the passage of this resolution. 24 25 26 27 -t ( - - 1 - 1 RESOLUTION . . . APPROVING LICENSE AGREEMENT NO. 09-37471 WITH THE BURLINGTON NORTHERN SANTA FE (BNSF) RAILWAY FOR 2 MAINTENANCE OF TEMPORARY SHORING UNDER THE MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH STREET (BR#54C0066). 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 4 5 Common Council of the City of San Bernardino at a meeting thereof, held 6 on the day of , 2009, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 ESTRADA 9 BAXTER 10 BRINKER 11 SHORETT 12 13 KELLEY 14 JOHNSON 15 MC CAMMACK 16 17 Rachel Clark, City Clerk 18 The foregoing resolution is hereby approved this day of , 2009. 19 20 21 Patrick J. Morris, Mayor City of San Bernardino 22 Approved as to form: 23 JAMES F. PENMAN, 24 City Attorney 25 By: 26 27 28 - 2 - EX141BIT "A" Law Department Approved 09-37471 LICENSE THIS LICENSE ("License"), made as of the day of , 2009 ("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF SAN BERNARDINO, a city municipality ("Licensee"). NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL 1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, licenses, easements, liens or other encumbrances, and upon the terms and conditions set forth below, to use the area of Licensor's property shown on the attached Drawing no. 1- 45557, dated January 15, 2009, and revised on February 6, 2009 attached hereto, marked Exhibit"A", and made a part hereof, situated at or near San Bernardino, County of San Bernardino, State of California, Line Segment 7600, Mile Post 78.53("Premises") for the purposes specified in Section 3 below. 2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such improvements. 3. Licensee shall use Premises exclusively for maintaining the City and its contractors to install and maintain the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge. Licensee shall not use the Premises for any other purpose whatsoever. Licensee shall not use or store hazardous substances, as defined by the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ("CERCLA") or petroleum or oil as defined by applicable Environmental Laws on the Premises. 4. In case of the eviction of Licensee by anyone owning.or claiming title to or any interest in the Premises, Licensor shall not be liable to refund Licensee any compensation paid hereunder or for any damage Licensee sustains in connection therewith. 5. Any contractors or subcontractors performing work on the Premises, or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License. TERM 6. This License shall commence on the Effective Date and shall continue until December 31, 2011, subject to prior termination as hereinafter described. COMPENSATION 7. (a) Licensor will waive the fees for this license. Form 423;Rev.04/26/05 -1 - Law Department Approved 09-37471 (b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises, including but not limited to the furnishing of Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger services provided by the Railway, when deemed necessary by the Railway's representative, will be borne by the Licensee. The estimated cost for one (1) flagger is $800.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. The flagging rate in effect at the time of performance by the Contractor hereunder will be used to calculate the actual costs of flagging pursuant to this paragraph. (c) All invoices are due thirty (30) days after the date of invoice. In the event that Licensee shall fail to pay any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Licensee at an annual rate equal to (i) the greater of (a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent (2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent (12%), or(ii)the maximum rate permitted by law,whichever is less. COMPLIANCE WITH LAWS 8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements") relating to the use of the Premises. (b) Prior to entering the Premises, Licensee shall and shall cause its contractor to comply with all Licensor's applicable safety rules and regulations. Prior to commencing any work on the Premises, Licensee shall complete and shall require its contractor to complete the safety-training program at the following Internet Website "http://contractororientation.com". This training must be completed no more than one year in advance of Licensee's entry on the Premises. DEFINITION OF COST AND EXPENSE 9. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. Form 423;Rev.04/26/05 -2- Law Department Approved 09-37471 RIGHT OF LICENSOR TO USE 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, power, communication lines and appurtenances and other facilities or structures of like character upon, over, under or across the Premises; (b) to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; or (c) to use the Premises in any manner as the Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 3 above. LICENSEE'S OPERATIONS 11. (a) Licensee shall notify Licensoes Roadmaster at 740 Carnegie Drive, San Bernardino, California, 92408, telephone (909) 386-4060 (Office) or (928) 237- 6860 (Cell), at least five (5) business days prior to entering the Premises and prior to entering the Premises for any subsequent maintenance thereon (if applicable). After completion of use of the Premises for the purpose specified in Section 3, Licensee shall notify Licensor in writing that such use has been completed. (b) In performing the work described in Section 3, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other. 12. (a) Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in such a manner as not at any time to be a source of danger to or interference with the existence or use of present or future tracks, roadbed or property of Licensor, or the safe operation and activities of Licensor. if ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License. Form 423; Rev.04/26/05 -3- Law Department Approved 09-37471 (b) Licensee shall, at its sole cost and expense and subject to the supervision of Licensor's Roadmaster, locate, construct and maintain the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge in such a manner and of such material that it will not at any time be a source of danger to or interference with the present or future tracks, roadbed and property of Licensor, or the safe operation of its railroad. If at any time Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this paragraph, Licensor may, at its option, itself perform such work as it deems necessary for the safe operation of its railroad, and in such event Licensee agrees to pay, within fifteen (15) days after bill shall have been rendered therefor, the cost so incurred by Licensor, but failure on the part of Licensor to perform the obligations of Licensee shall not release Licensee from liability hereunder for loss or damage occasioned thereby. 13. During the construction and any subsequent maintenance performed on the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge, Licensee shall perform such work in a manner to preclude damage to the property of Licensor, and preclude interference with the operation of its railroad. The construction of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge shall be completed within one (1) year of the Effective Date. Upon completion of the construction of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge and after performing any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore Licensor's premises to their former state as of the Effective Date of this License. 14. if at any time during the term of this License, Licensor shall desire the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the existing or the construction of a new temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge. 15. (a) Prior to Licensee conducting any boring work on or about any portion of the Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, rop vided, however, that in lieu of the foregoing, the Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g_, consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's requested entry on the Premises, Licensor will provide Licensee any information that Licensor's Engineering Department has in its possession concerning the existence and approximate location of Licensor's underground Form 423; Rev.04/26/05 -4- Law Department Approved 0 9-37471 utilities and pipelines on the Premises. Prior to conducting any such boring work, the Licensee will review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's operations will be subject at all times to the liability provisions herein. (b) For all bores greater than 26-inch diameter, and at a depth less than 10.0 feet below bottom of rail, a soil investigation will need to be performed by the Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in its sole discretion a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at its sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof. 16. Any open hole, boring or well constructed upon Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that pdrtion of the work, all holes or borings constructed on the Premises by Licensee shall be: (a) filled in to surrounding ground level with compacted bentonite grout; or (b) otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on the Premises for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 17. Upon completion of Licensee's work on the Premises or upon termination of this License, whichever shall occur first, Licensee shall, at its sole cost and expense: (a) remove all of its equipment from the Premises; (b) remove the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge at the Licensor's sole discretion; (c) report and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (d) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (e) leave the Premises in the condition which existed as of the Effective Date of this License. 18. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License at all times while on the Premises. Form 423;Rev.04/26/05 -5- Law Department Approved 09-37471 LIABILITY 19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (1) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (Ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE, (iii) LICENSEE'S OCCUPATION AND USE OF THE PREMISES, (Iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR (v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE TEMPORARY SHORING AND SUPPORT STRUCTURES ON THE BNSF Form 423;Rev.04/26105 -6- Law Department Approved 09-37471 PROPERTY FOR THE MT. VERNON BRIDGE FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR 1S OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. (c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (c) Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. PERSONAL PROPERTY WAIVER 20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. Form 423;Rev.04/26/05 -7- Law Department Approved 09-37471 INSURANCE 21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of$2,000,000 each occurrence and an aggregate limit of at least$4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: ♦ Licensee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability(Part B)with limits of at least$500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability Insurance. If further maintenance of the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge is needed at a later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy shall be issued on a standard ISO form CG 00 3510 93 and include the following: ♦ Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93) ♦ Endorsed to include the Limited Seepage and Pollution Endorsement. Form 423,Rev. 04/26/05 -8- I Law Department Approved 09-37471 ♦ Endorsed to include Evacuation Expense Coverage Endorsement. ♦ No other endorsements restricting coverage may be added. • The original policy must be provided to the Licensor prior to performing any work or services under this Agreement Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. in addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee's insurance policies through policy endorsement, must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name Licensor and Staubach Global Services - RR, Inc. as an additional insured with respect to work performed under this agreement. Severability of interest and naming Licensor and Staubach Global Services - RR, Inc. as additional insureds shall be indicated on the certificate of insurance. Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted by Licensor, any deductible, self-insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Licensee's insurance will be covered as if Licensee elected not to include a deductible, self-insured retention, or other financial responsibility for claims. Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non- renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Licensee will make available any required policy covering such claim or lawsuit. Form 423;Rev.04/26/05 -9- Law Department Approved 08-37471 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or with a current Best's Guide Rating of A- and' Class VII or better, and authorized to do business in the state(s) in which the service is to be provided. Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming Licensor as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. ENVIRONMENTAL 22. (a) Licensee shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws*). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. Form 423; Rev.04/26/05 -10- Law Department Approved 09-37471 (b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on or from the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in any way with respect to the temporary shoring and support structures on the BNSF property for the Mt. Vernon Bridge which occurred or may occur during the, term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. (d) Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensors request for information regarding said conditions or activities. ALTERATIONS 23. Licensee may not make any alterations of the Premises or permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without Licensor's prior written consent. NO WARRANTIES 24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR ' WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Form 423;Rev.04/26105 -11 _ Law Department Approved 08-37471 QUIET ENJOYMENT 25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. DEFAULT 26. If default shall be made in any of the covenants or agreements of Licensee contained in this document, or in case of any assignment or transfer of this License by operation of law, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 26 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. LIENS 27. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 27 or any other Section of this License. TERMINATION 28. This License may be terminated by Licensor, at any time, by serving thirty (30) days' written notice of termination upon Licensee. This License may be terminated by Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in effect. Upon expiration of the time specified in such notice, this License and all rights of Licensee shall absolutely cease. 29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered. Termination shall not release Licensee from any liability or obligation, whether of indemnity or otherwise, resulting from any events happening prior to the date of termination. ASSIGNMENT 30. Neither Licensee, nor the heirs, legal representatives, successors or assigns of Licensee, nor any subsequent assignee, shall assign or transfer this License or any interest herein, without the prior written consent and approval of Licensor, which may be withheld in Licensor's sole discretion. Form 423;Rev.04/26/05 - 12- Law Department Approved 09-37471 NOTICES 31. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (1) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: Staubach Global Services - RR, Inc. 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131 Attn: Licenses/Permits with a copy to: BNSF Railway Company 2500 Lou Menk Dr. --A063 Fort Worth, TX 76131 Attn: Senior Manager Real Estate If to Licensee: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418-0001 SURVIVAL 32. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the Premises are restored to its condition as of the Effective Date. RECORDATION 33. It is understood and agreed that this License shall not be placed on public record. APPLICABLE LAW 34. All questions concerning the interpretation or application of provisions of this License shall be decided according to the laws of the State of Texas, SEVERABILITY 35. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. Form 423;Rev.04/26/05 - 13- Law Department Approved 09-37471 INTEGRATION 36. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. MISCELLANEOUS 37. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. 38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. Staubach Global Services—RR, Inc. is acting as representative for BNSF Railway Company. IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. BNSF RAILWAY COMPANY Staubach Global Services- RR, Inc., its Attorney in Fact 3017 Lou Menk Drive, Suite 100 Fort Worth, TX 76131 By: Ed Darter, Title: Vice President- National Accounts CITY OF SAN BERNARDINO 300 North "D" Street San Bernardino, CA 92418-0001 By: Title: Form 423;Rev.04/26/05 -14- TRACKING NO.09--37471 EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND 0 rn CITY OF SAN BERNARDINO 0 ILI- q�S F SCALE: 1 IN.=29Q FT. P� R� a CALIFORNIA DIV, CA-04 SAN BERNARDINO SUBD I V. L.S. 7600 S-028 DATE 01/15/2009 REVISED DATE 02/06/2009 , ,,A,s.-- � - 4 • , - __I ,,.,,,W -- .-_ y II II PROPERTY LINE '` TO HARBOR Off� IM _ �,Z ,I,i �• m -- --- Pa1 n•O t� - I I'1�/npww fMrw^11 � �►tl Ir I t 1l'.u�41. '�t /�~ `A.O�.. - _-.-- -Jr _ n... ttnwsiy. htt, nt` r J/ ....(.,�.�w�voi-f• o�.... ,. f Y �Ayb1` Al, i.J ll1Q _ _ --•-^'--- _ +, t t.,..�.ry Pei go "m Pa V! �/' /fI1�..y , µs •••N•.1 Y.awr�... �4s J raae� P,ju--.=�M1 �rrwl `- --- ras 1 t; s„ — n •a. 'I �'vmp 8155 Z E S 21.2 3 i —_ `"``` TO SAN BERNARDINO P R n„•.,,,,�LQJF I �� °4� PROPERTY LINE DESCRIPTION: 7P A PARCEL OF LAND FOR TEMPORARY OCCUPANCY CONTAINNVG A TOTAL OF 53,912 SO. FT. 0.237 A.C.I MORE OR LESS SHOWN SHADED TO MAINTAIN TEMPORARY SHORING SUPPORTS. AT SAN BERNARDINO COUNTY OF SAN BERNARDINO STATE OF CA AFv DRAWING NO. 1-45557