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05.M- Public Works
RESOLUTION (ID # 2391) DOC ID: 2391 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Tony Frossard M/CC Meeting Date: 09/16/2013 Prepared by: Ryan Sandoval, (909) 384-5140 Dept: Public Works Ward(s): 3 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of a License Agreement Between the City of San Bernardino, San Bernardino Associated Governments (SANBAG), and Omnitrans for the Construction and Maintenance of Public Improvements Installed in the Railroad Right of Way Related to the SbX Bus Project. (#2391) Current Business Registration Certificate: Not Applicable Financial Impact: There is no direct cost to the City for this action. The public improvements installed in the SANBAG railroad right-of-way will be constructed by Omnitrans at their cost, then will be turned over to the City to be maintained in perpetuity. Motion: Adopt the Resolution. Synopsis of Previous Council Action: None. Background: San Bernardino Associated Governments (SANBAG) has requested that a three party License Agreement be entered into with the City, Omnitrans and SANBAG for the construction and continued maintenance of public improvements within SANBAG railroad right-of-way, in relation to the sbX Bus Project. The public improvements are proposed to be located on the west side of"E" Street, south of Rialto Avenue. For this project, SANBAG is acquiring all necessary right-of-way and/or easements for Omnitrans along the project route. Omnitrans will be constructing all public improvements, which will later be transferred to the City once the improvements have been completed and accepted by the City. In this instance, SANBAG owns the railroad right of way and requires a License Agreement instead of an easement over the railroad property. The proposed License Agreement will allow Omnitrans to construct the improvements over portions of the SANBAG property. Once the City accepts the improvements and takes over the maintenance responsibility, Omnitrans will no longer be a part of the agreement. Since Omnitrans will be the licensee during the construction phase, Omnitrans and/or their contractor will be responsible for complying with the insurance requirements in the subject license agreement. Upon completion and acceptance of the improvements, the City will become the licensee and be responsible for complying with the insurance requirements. Risk Management has reviewed the insurance section of the agreement and has indicated that the City will be able to provide the required coverage under the self insured policy. Updated: 8/19/2013 by Olivia Wolff Packet Pg. 223 5.M 2391 City Attorney Review: Supporting Documents: Vicinity Map- SANBAG License Agrmnt- SBX (PDF) Resolution (DOC) Attachment 1 - SANBAG Licence Agreement Full (PDF) Updated: 8/19/2013 by Olivia Wolff Packet Pg. 224 S.M.a J Q e w d Q � W c +, Ga�pJ2 18 N Q1 215 0 0 �e�aaii N O� 40th St. 330 C �i U J _ 0 Marshall Blvd. Q in Z 210 Highland Ave. zee T � Base Line St. w Cl) N 9th St Q X 5th St. m a � E � Rialto Ave. 15 Q E Mill St. L C Q 210 d Orange Show Rd. 2- F U Q Z Q U) LOCATION OF 5 PROPOSED STREET VICINITY MAP `W IMPROVEMENTS NTS > w C �p d U lE w Q CITY OF SAN BERNARDINO PROPOSED SANBAG LICENSE AGREEMENT FOR PUBLIC WORKS DEPARTMENT PUBLIC IMPROVEMENTS, GENERALLY LOCATED ON .,nBtmar inn REAL PROPERTY SECTION "E" STREET SOUTH OF RIALTO AVENUE WITHIN SANBAG RAILROAD RIGHT OF WAY, IN THE CITY OF Indicates un-incorporated areas within City's SAN BERNARDINO. ® Sphere of Influence Created by: Ryan Sandoval packet Pg.225 S.M.b 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A LICENSE 3 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, SAN BERNARDINO 4 ASSOCIATED GOVERNMENTS (SANBAG), AND OMNITRANS FOR THE CONSTRUCTION AND MAINTENANCE OF PUBLIC IMPROVEMENTS 5 INSTALLED IN THE RAILROAD RIGHT OF WAY RELATED TO THE SBX BUS PROJECT. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and w 9 directed to execute on behalf of said City a License Agreement between the City of San E 10 Bernardino, San Bernardino Associated Governments (SANBAG) and Onmitrans for a 11 construction and maintenance of public improvements installed in the Railroad Right-of-Way 12 in relation to the SbX Bus project. A copy of said License Agreement is attached as 13 Attachment "1" and made a part hereof. m Z 14 SECTION 2. The authorization to execute the above-referenced Agreement is N 15 W rescinded if the parties to the Agreement fail to execute it within sixty 60 days of the passage 0. 16 of this resolution. Q, 17 N 18 o 4+ 19 y 20 21 E U 22 r HI a 23 24 25 /// 26 27 28 Packet Pg.226 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 1 AUTHORIZING THE EXECUTION OF A LICENSE AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO, SAN BERNARDINO ASSOCIATED GOVERNMENTS (SANBAG), AND 2 OMNITRANS FOR THE CONSTRUCTION AND MAINTENANCE OF PUBLIC IMPROVEMENTS INSTALLED IN THE RAILROAD RIGHT OF WAY RELATED TO THE SBX BUS PROJECT. 3 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a meeting 7 thereof, held on the day of , 2013,by the following vote,to wit: co 8 Council Members: AYES NAYS ABSTAIN ABSENT W 9 10 MARQUEZ 11 JENKINS Q as c 12 VALDIVIA J 13 SHORETT m z 14 KELLEY vai 15 JOHNSON 16 17 MCCAMMACK M 18 0 19 Georgeann Hanna, City Clerk y 20 The foregoing resolution is hereby approved this day of , 2013. 21 E r 22 w Patrick J. Morris, Mayor a 23 City of San Bernardino 24 Approved as to form: 25 JAMES F. PENMAN, 26 City Attorney 27 By: 28 J, Packet Pg.227; 5.M.c ATTACHMENT "1 " L W E L Q LICENSE AGREEMENT J 0 Q m z Q BETWEEN Cl) Co n: m a� M SAN BERNARDINO ASSOCIATED GOVERNMENTS 3 U- c AND as d L OMNITRANS c d AND c� Q m z a CITY OF SAN BERNARDINO C? c d s U lC Q Y c� G V R Q Packet Pg. 228 46O,OD004t?$Slft#1Z:2 LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is made and entered into as of the day of , 2013, by and among the SAN BERNARDINO ASSOCIATED GOVERNMENTS, a public agency existing under the authority of the laws of the State w of California ("SANBAG"), OMNITRANS, a joint powers authority created via a joint powers agreement, dated March 8, 1976, and amended pursuant to Section 6500 et. seq. of the Government Code (sometimes hereinafter, "LICENSEE"), and the CITY OF SAN BERNARDINO, a California municipal corporation ("CITY"), upon and in a, consideration of the agreements, covenants, terms and conditions below. The parties a hereto acknowledge and agree that, as of the Transfer Date (as defined in Provision(b) of Subsection 24.11 of the General License Provisions set forth in Part 11 of this Agreement), OMNITRANS shall cease to be a party to this Agreement; however, subject J to the terms and provisions of this Agreement, from and after the Transfer Date, this m Agreement shall continue as between SANBAG and CITY (as Licensee). Q U) PART I a BASIC LICENSE PROVISIONS Cn M 1. Description of the License Property: U. Parcel B141 (APN 136-021-12) (Temporary License Property): As described in attached Exhibit "A" and shown on attached Exhibit `B"; approximate area — [ j E square feet. rn Parcel B143 (APN 0136-021-13) (Temporary License Property): As described in Q attached Exhibit "Al" and shown on attached Exhibit "B1"; approximate area U c a� square feet. J Parcel B141 (APN ,31.0;4 (Ongoing License Property): As described in a m attached Exhibit "A2" and shown on attached Exhibit 11B21'; approximate area Q square feet. (§1.1) m 2. Use of License Property: E Temporary License Property: For all necessary and convenient construction activities r for installation of the public improvements described in Item 10 of these Basic License a Provisions and any usual, necessary and related appurtenances thereto, in, on, over, under, across and along those certain strips of land in the City of San Bernardino, County E of San Bernardino, State of California, more particularly described in the attached Exhibits "A"and"A1" and as shown in Exhibits`B" and`B1." Ongoing License Property: For the construction, operation, maintenance, repair, reconstruction, alteration, and removal of the public improvements described in Item 10 1 46260.00004\7858012.2 P C ket P g.229' i of these Basic License Provisions and any usual, necessary and related appurtenances thereto, in, on, over,under, across and along those certain strips of land in the City of San Bernardino, County of San Bernardino, State of California, more particularly described in the attached Exhibit"A2" and as shown in Exhibit"132." d L (§1.1, §10) w 3. Commencement Date: E a� [� 201 L J. a� N 4. Term of license: d A. Temporary License Property: 24 months, ending [ (_], J 4 201". m z Q B. Ongoing License Property: 480 months, ending [ ] N Cn 205[ ]. (§1.2) n. 5. [RESERVED] CD (§2.2) N 6. Insurance Requirements (See Exhibit"C") (§16) c aD 7. SANBAG's Address: d d SAN BERNARDINO ASSOCIATED GOVERNMENTS Q 1170 West Third Street, 2°d Floor San Bernardino, CA 92410-1715 Q Attn: (§24.1) a 8. Licensee's Address(until the Transfer Date): z a OMNITRANS 1700 West Fifth Street c San Bernardino, CA 92411 E Attn: Milind Joshi (§24.1) 9. CITY'S Address (and Licensee's address from and after the Transfer Date): a d 300 North"D" Street, 3rd Floor San Bernardino, CA 92418 2 Attn: City Engineer (§24.1) a 10. Facility: 2 46260.00004\78580112 Packet Pg.230 All public street improvements, all paved surfaces, curb and gutter, sidewalk, landscaping, public utilities, and any appurtenant and necessary surface and subsurface structures, fittings and other equipment;railroad safety improvements. d w The foregoing Basic License Provisions and the General License Provisions set forth in attached Part 11 are incorporated into and made part of this Agreement. 0 a� L a tl! C d V J Q m Z Q Cn CO n: a T CD M N_ LL C d E 01 L Q d V d J Q m Z Q U) C d E t v to a E a 3 46260.Q9004WMO124 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. SANBAG: d a� SAN BERNARDINO ASSOCIATED GOVERNMENTS w c d E EXHIBIT COPY Name: Q Title: � J Q m LICENSEE: z a co OMNI°TRAN S co n: By: EXHIBIT COPY M v Name: LL Title: d E a CITY: CITY OF SAN BERNARDINO a m z EXHIBIT COPY By: w Name: Title: E Approved as to form: a c By: E James F. Penman,City Attorney w Q 4 Packet Pg.232' 40260.400GA78580112 INDEX TO LICENSE AGREEMENT-PART II Section Page d L cn 1. GRANT OF LICENSE/TERM....................................................................... ................. ..7 w 2. [RESERVED] .................................................................... ........... .... ..........................7 E 3. TAXES.......................................................................................................................... .......7 L 4. CONSTRUCTION........................ d 5. CONTRACTORS; APPROVAL AND INSURANCE 6. REIMBURSEMENT...............................................................................................................8 7. LIENS..................... . .................................. ...........................................................................8 a m 8. MAINTENANCE AND REPAIR...........................................................................................8 N 9. LANDSCAPING......................«........ ........,,................................ . ..... .......... .....,..........9 a. 10. USE.......................................................... .................................................... . ...................9 11. ABANDONMENT..........................................................................................................x...9 M 12. BREACH.........................................................................................................................,...9 13. SURRENDER......... . ........ ...... ....... ......... ................................................... .............9 u- 14. INDEMNIFICATION........................ ................................................... .....................10 15. ASSUMPTION OF RISK AND WAIVER.................. ..10 d 16. INSURANCE.................................................................................... ................... . ....11 17. TESTS AND INSPECT IONS......................................... ...............................................11 18. HAZARDOUS/TOXIC MATERIALS USE AND INDEMNITY....................................11 -' c� 19. UNDERGROUND STORAGE TANKS...........................................................................12 m z 20. SUBORDINATE RIGHTS.................................................................... ........................12 N 21. COMPLIANCE WITH LAWS.....................................................--.................................12 _ 22. CONDEMNATION...........................................................................................................13 23. MARKERS................................... ....................... ........ .................. . ..................13 w 24. GENERAL PROVISIONS ................................................................................................13 a d E a 5 a 46260.00004\785 8012.2 ���� 233"a, Exhibi Legal Description: Parcel B 141 rfemporary License Property "A.1" Legal Description: Parcel B143/Temporary License Property "AT" Lcaal Description: Parcel 13141/Ongoing License Property Cn "B" Depiction: Parcel B141/Temporary License Property C "B 1" Depiction: Parcel 8143/Temporary License Property 0 E "132" Depiction: Parcel 13141/Ongoing License Property "C" Insurance Requirements "D" Permitted Hazardous Materials as "0" Additional Provisions z Cn U) LL 0 E rJ CO z U) E 2 C 0 E 6 PART II-GENERAL LICENSE PROVISIONS 1. GRANT OF LICENSE/TERM m 1.1 Grant of License. SANBAG hereby grants a non-exclusive license to Licensee in,on,over,under,across and along those certain strips of land in the City of San Bernardino,County of San Bernardino, State of California,more particularly described in the attached Exhibit "A," Exhibit"Al" W and Exhibit"A2"and as shown in Exhibit`B,"Exhibit"Bl"and Exhibit 11132"(the"License Property")for c the purposes described in Item 2 of the Basic License Provisions,together with rights for access and entry onto ar the License Property as necessary or convenient for the use of the public improvements described in Item 10 of the Basic License Provisions(the"Facility"). In connection with this grant of license,Licensee,its employees, m agents,customers,visitors, invitees, licensees and contractors(collectively, "Licensee's Parties"),may,subject Q to the provisions hereof,have reasonable rights of entry and access onto adjoining real property of SANBAG if w necessary for the use of the Facility or the License Property,with the time and manner of such entry and access = to be subject to SANBAG's prior written approval, which will not be unreasonably withheld. The License 0 Property, adjoining real property of SANBAG and personal property of SANBAG located thereon shall J hereinafter collectively be referred to as"SANBAG Property". Q DO 1.2 Term of Agreement. The term of this Agreement shall commence on the z "Commencement Date"specified in Item 3 of the Basic License Provisions. The term of this Agreement shall N coincide with the term of the license for the Ongoing License Property as specified in Item 43 of the Basic License Provisions; provided,however, that SANBAG shall have the right to terminate this Agreement(or the license granted herein as to any part of the License Property) prior to the date specified in said Item 4.13 by delivering ninety (90) days' prior written notice to Licensee, provided that SANBAG, in its sole, reasonable judgment,determines that it then may require possession of the License Property(or such designated part of it) rn for its primary,transportation-related purposes;provided,however,that the license granted herein shall terminate M N as to those portions of the License Property designated as the Temporary License Property not later than as _ specified in Item 4.A of the Basic License Provisions. The term of this Agreement as provided above is referred to as the"Term". m 1.3 Condition of License Property. Licensee acknowledges that it has E inspected and accepts the License Property in its present, "AS IS,""WHERE IS"and"WITH ALL FAULTS," m condition as suitable for the use for which this Agreement is granted. Execution of this Agreement by Licensee Q shall be conclusive to establish that the License Property is in good and satisfactory condition as of the Commencement Date. c d 2. [RESERVED] J C9 3. TAXES Q Co z Licensee shall be liable for and agrees to pay promptly and prior to delinquency,any < tax or assessment,including but not limited to any possessory interest tax,levied by any governmental authority: , (a) against the Facility, the License Property and/or any personal property, fixtures or equipment of Licensee used in connection therewith or(b)as a result of the Facility's operations. d E 4. CONSTRUCTION •� co Any work performed or caused to be performed by Licensee on the Facility or the Q License Property shall be performed(a)at Licensee's sole cost and expense, (b) in accordance with any and all +: applicable laws, rules and regulations (including the SANBAG's rules and regulations), and (c) in a good and d workmanlike manner which is (i)equal to or greater than the then applicable standards of the industry for such E work, and (ii) satisfactory to SANBAG. Prior to commencement of any construction, reconstruction, installation,restoration,alteration,repair,replacement or removal (other than normal maintenance)(hereinafter, "Work")on the License Property,Licensee shall submit work plans to SANBAG for review and approval. Any Q such Work must be carried out pursuant to work plans approved in writing by SANBAG. In addition,Licensee shall provide SANBAG with at least 15 calendar days'written notice prior to commencement of any Work on the 46260.00004\7858012.2 Racket P g.235' License Property or the Facility,except in cases of emergency, in which event Licensee shall notify SANBAG's representative personally or by phone prior to commencing any Work. Unless otherwise requested by SANBAG, upon completion of any Work, Licensee shall restore the SANBAG Property to its condition immediately preceding the commencement of such Work. m 5. CONTRACTORS;APPROVAL AND INSURANCE U) SANBAG hereby approves Licensee and its sub-contractors to perform Work on the w Facility or the License Property. With respect to such Work,Licensee shall,at its sole cost and expense,obtain } and maintain in full force and effect throughout the term of such Work, insurance, as required by SANBAG, in the amounts and coverages specified on, and issued by insurance companies as described on, Exhibit "C". aEi Additionally, Licensee shall cause any and all of its contractors and subcontractors which (i) may be involved d with such Work,or(ii)may, for any reason, need to enter onto the License Property to obtain and maintain in Q full force and effect during the Term,or throughout the term of such Work(as applicable),insurance,as required by SANBAG, in the amounts and coverages specified on, and issued by insurance companies as described on, _ Exhibit"C". SANBAG reserves the right,throughout the Term,to review and change the amount and type of insurance coverage it requires in connection with this Agreement or the Work to be performed on the License Property. Q 6. REIMBURSEMENT z Q Licensee agrees to reimburse SANBAG for all reasonable costs and expenses U) incurred by SANBAG in connection with Work on or maintenance of the License Property or the Facility, including,but not limited to, costs incurred by SANBAG in furnishing any materials or performing any labor, a- reviewing Licensee's Work plans and/or inspecting any Work,installing or removing protection beneath or along SANBAG's tracks, furnishing of watchmen, flagmen and inspectors as SANBAG deems necessary and such other items or acts as SANBAG in its sole discretion deems necessary to monitor or aid in compliance with this N Agreement. 7. LIENS u.. c Licensee will fully and promptly pay for all materials whether or not joined or E affixed to the Facility or the License Property,and fully and promptly pay all persons who perform labor whether 0 or not upon said Facility or the License Property. Licensee shall not suffer or permit to be filed or enforced against the SANBAG Property or the Facility,or any part thereof,any mechanics',materiahnen's,contractors',or Q subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, a) investigation, maintenance or Work, or out of any other claim or demand of any kind. Licensee shall pay or cause to be paid all such liens,claims or demands,including sums due with respect to stop notices,together with 2 attorneys' fees incurred by SANBAG with respect thereto,within ten(10)business days after notice thereof and shall indemnify,hold harmless and defend SANBAG from all obligations and claims made against SANBAG for Q and with respect to the above described work, including attorneys' fees. Licensee shall furnish evidence of z payment upon request of SANBAG. Licensee may contest any lien, claim or demand by furnishing a statutory Q lien bond or equivalent with respect to stop notices to SANBAG in compliance with applicable California law. If to Licensee does not discharge any mechanic's lien or stop notice for works performed for Licensee, SANBAG r shall have the right to discharge same(including by paying the claimant)and Licensee shall reimburse SANBAG for the cost of such discharge within ten(10)business days after billing. SANBAG reserves the right at any time m to post and maintain on the SANBAG Property such notices as may be necessary to protect SANBAG against = liability for all such liens and claims. The provisions of this section shall survive the termination of this Agreement. Q 8. MAINTENANCE AND REPAIR E Licensee, at Licensee's cost and sole expense, shall maintain the License Property and the Facility in a first-class condition during the Term and shall perform all maintenance and clean-up of the r License Property and the Facility as necessary to keep the License Property and the Facility in good order and Q condition, to SANBAG's satisfaction. If any portion of the SANBAG Property, including improvements or fixtures,suffers damage by reason of the access to or use of the License Property,by Licensee,Licensee's Parties 8 46260.00004\7858012.2 Packet Pg. 236 ,n or by Licensee's partners, officers or directors or by any person or entity claiming, using or occupying the including but not limited to damage arising from an tests or SANBAG Property by,under or through Licensee, g g g Y investigations conducted upon the License Property, Licensee shall, at its own cost and expense, immediately repair all such damage and restore the SANBAG Property to as good a condition as before such damage occurred. Repair of damage shall include, without limitation, regrading and resurfacing of any holes, ditches, y indentations, mounds or other inclines created by any excavation by Licensee or Licensee's Parties, including without limitation any person or entity claiming,using or occupying the SANBAG Property by,under or through y Licensee. W 9. LANDSCAPING E If required by SANBAG, then Licensee, at its sole cost and expense, shall install m barrier landscaping to shield the Facility from public view. SANBAG shall have the right to review and approve landscaping plans prior to installation. All landscaping work shall be done in accordance with the provisions of y Section 4 above of these General License Provisions. N C m 10. USE J The License Property and the Facility shall be used only for the purposes specified in Q Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental thereto. No Z change shall be made by Licensee in the use of the License Property, the Facility or the commodity or product Q rn being conveyed through the Facility(if any)without SANBAG's prior written approval. 11. ABANDONMENT W Should Licensee at anytime abandon the use of the Facility or the License Property, CD or any part thereof, or fail at any time for a continuous period of ninety (90) days to use the same for the N purposes contemplated herein,then this Agreement and the license granted herein shall terminate to the extent of the portion so abandoned or discontinued: and, in addition to any other rights or remedies, SANBAG shall 3 immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, LL without the encumbrance of this Agreement or the license. W E 12. BREACH d a� Should Licensee breach, or fail to keep, observe or perform any agreement, Q covenant, term or condition on its part herein contained, then, in addition to any other available rights and remedies,SANBAG at its option may: (a) perform any necessary or appropriate corrective work at Licensee's J expense,which Licensee agrees to pay to SANBAG upon demand,or < Q Co (b) with or without written notice or demand, immediately terminate this Q Agreement and,at any time thereafter,recover possession of the License Property or any part thereof,and expel N and remove therefrom Licensee and any other person occupying the License Property by lawful means,and again repossess and enjoy the License Property and the Facility, without prejudice to any of the remedies that SANBAG may have under this Agreement, at law or equity by reason of Licensee's default or of such E termination. R 13. SURRENDER Q Upon termination of this Agreement, unless otherwise requested in writing by C d SANBAG prior to the date of termination,Licensee, at its own cost and expense,shall immediately remove the E Facility and restore the SANBAG Property as nearly as possible to the same state and condition as existed prior to the construction, reconstruction or installation of said Facility. Should Licensee fail to comply with the requirements of the preceding sentence, SANBAG may at its option(i)perform the same at Licensee's expense, Q which costs Licensee agrees to pay to SANBAG on demand,or(ii)assume title and ownership of said Facility. No termination hereof shall release Licensee from any liability or obligation hereunder,whether of indemnity or 9 46260.00004\78 5 8012.2 Packet Pg.237., 5.M.c otherwise, resulting from any acts,omissions or events happening prior to the date the Facility is removed and the SANBAG Property is restored. 14. INDEMNIFICATION r m Licensee, on behalf of itself and its successors and assigns, agrees to indemnify, defend (by counsel satisfactory to SANBAG), and hold harmless SANBAG and its subsidiaries, officers, U) directors, employees, agents, representatives, successors and assigns (individually and collectively, w "Indemnitees"),to the maximum extent allowed by law,from and against any and all losses,liabilities,claims, demands,suits,liens,claims of lien,damages(including consequential damages),costs and expenses(including, without limitation,any fines,penalties,judgments,litigation expenses,and experts'and attorneys'fees),that are E incurred or suffered by or asserted against Indemnitees arising out of,resulting from or connected in any manner m with(i) the acts or omissions to act of the Licensee, or its officers,directors, affiliates,Licensee's Parties, any a� person or entity claiming,using or occupying the SANBAG Property by, under or through Licensee,or anyone Q CD directly or indirectly employed by or for whose acts Licensee is liable(collectively,"Personnel")or invitees of Licensee in connection with the SANBAG Property or arising from the presence upon or performance of activities by Licensee or its Personnel with respect to the SANBAG Property,(ii)bodily injury to or death of any person(including employees of Indemnitees)or damage to or loss of use of property resulting from such acts or 0 omissions of Licensee or its Personnel, or(iii)non-performance or breach by Licensee or its Personnel of any < term or condition of this Agreement,in each case whether occurring during the Term or thereafter. Z Q The foregoing indemnity shall be effective regardless of any negligence (whether active,passive,derivative,joint,concurring or comparative)on the part of Indemnitees,except to the extent,but only to the extent, of losses, liabilities, claims, demands, suits, liens, claims of lien, damages (including consequential damages), costs and expenses caused by the gross negligence or willful misconduct of the Indemnitees;shall survive termination of this Agreement;and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. Upon request of SANBAG, Licensee shall N provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions -- of this Agreement. UL Claims against the Indemnitees by Licensee or its Personnel shall not limit the m Licensee's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees E may result in any limitation on the amount or type of damages, compensation, or benefits payable by or for a Licensee or its Personnel under workers'compensation acts,disability benefit acts or other employee benefit acts or insurance. Q a� 15. ASSUMPTION OF RISK AND WAIVER = d U_ To the maximum extent allowed by law,Licensee assumes any and all risk of loss, damage or injury of any kind to any person or property,including,without limitation,the Facility,the SANBAG Property and any other property of,or under the control or custody of or used by,Licensee,which is on or near Z the License Property. Licensee's assumption of risk shall include, without limitation, loss, damage or injury Q caused by defects in any structure or improvement on the SANBAG Property,accident or fire or other casualty CO on the SANBAG Property,or electrical discharge,noise or vibration resulting from SANBAG's transit operations on or near the SANBAG Property. The term "SANBAG" as used in this section shall include: (i) San Bernardino Associated Governments,(ii)any transit or rail-related company operating upon or over SANBAG's m tracks or other property, and (iii) any other persons or companies employed, retained or engaged by San Bernardino Associated Governments. Licensee,on behalf of itself and its Personnel(as defined in Section 14 of ca these General License Provisions)as a material part of the consideration for this Agreement,hereby waives and Q releases any and all claims and demands against SANBAG for any such loss, damage or injury of Licensee and/or its Personnel. In that connection, Licensee waives the benefit of California Civil Code Section 1542, d which provides as follows: E U A general release does not extend to claims which the creditor does not 2 know or suspect to exist in his favor at the time of executing the release, Q which if known by him must have materially affected his settlement with the debtor. 10 46260.00004\7858012.2 Packet Pg.238 Licensee acknowledges and agrees that it consulted or had an opportunity to consult with counsel concerning the provisions of this section. The provisions of this section shall survive the termination of this Agreement. CITY OIvtNITRANS SANBAG d U) W 16. INSURANCE Initials = a� E Licensee, at its sole cost and expense, shall obtain and maintain, in full force and m effect, during the Term and for a period of two (2)years thereafter, insurance as required by SANBAG in the Q amounts and coverages specified and issued by insurance companies as described on Exhibit "C"; and the obligation, liability and duty of OMNITRANS (as a result of being the Licensee during the period prior to the Transfer Date) in this regard shall continue for a period of two (2) years from and after the Transfer Date. a) SANBAG reserves the right, throughout the Term, to review and change the amount and type of insurance J coverage it requires in connection with this Agreement or the Work to be performed on the License Property. Prior to (i) entering the License Property or(ii) performing any Work or maintenance on the License Property, m Licensee shall furnish SANBAG with insurance endorsements or certificates evidencing the existence, amounts Z and coverages of the insurance required to be maintained hereunder. In most instances,SANBAG does not allow < self-insurance; however, if Licensee can demonstrate assets and retention funds meeting SANBAG's co ch self-insurance requirements, SANBAG may permit Licensee to self-insure; provided, however,that the right to R self-insure with respect to any coverage required to be maintained hereunder may be granted or revoked by SANBAG in its sole and absolute discretion at any time. SANBAG shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by Licensee under this Agreement. M N 17. TESTS AND INSPECTIONS SANBAG shall have the right at anytime to inspect the License Property and the ti Facility, so as to monitor compliance with this Agreement. If,inSANBAG's sole judgment,any installation on, or use or condition of the License Property may have an adverse effect on the SANBAG Property, adjacent E property(whether or not owned by SANBAG)or SANBAG operations,SANBAG shall be permitted to conduct a) Q any tests or assessments, including but not limited to environmental assessments, of, on or about the License Property, as it determines to be necessary or useful to evaluate the condition of the License Property. Licensee Q shall cooperate with SANBAG in any tests or inspections deemed necessary by SANBAG. Licensee shall pay or reimburse SANBAG, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections w or any necessary corrective work and inspections thereafter. J 18. HAZARDOUS/TOXIC MATERIALS USE AND INDEMNITY Q m Licensee shall operate and maintain the License Property in compliance with all,and Q shall not cause or permit the License Property to be in violation of any federal, state or local environmental, N health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to Licensee or the License Property (collectively, "Environmental Laws" and, individually, an "Environmental Law"). Except � for Hazardous Materials expressly approved by SANBAG in writing as shown on Exhibit°`D",Licensee shall not cause or permit,or allow any of Licensee's Parties to cause or permit,any Hazardous Materials to be brought upon, stored, used, generated, treated or disposed of on or about the SANBAG Property. Any Hazardous Q Materials on the site shall be stored, used, generated and disposed of in accordance with all applicable Environmental Laws. As used herein, "Hazardous Materials" means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law E based upon,directly or indirectly,its properties or effects. ca Licensee shall indemnify, defend (by counsel acceptable to SANBAG) and hold Q harmless the Indemnitees(as defined in Section 14 of these General License Provisions) from and against any and all loss,liability,claim,demand,damage,cost or expense(including without limitation,any fines,penalties, -- 11 46260.00004\7858012.2 Packet Pg.239:n judgments,litigation expenses,attorneys'fees,and consulting,engineering,and construction fees and expenses) incurred by Indemnitees as a result of(a)Licensee's breach of any prohibition or provision of this section,or(b) any release of Hazardous Materials upon or from the Facility or the License Property or contamination of the SANBAG Property or adjacent property (i) which occurs due to the use and occupancy of the Facility or the SANBAG Property by Licensee or Licensee's Parties,or(ii)which is made worse due to the act or failure to act y of Licensee or Licensee's Parties. L U) The foregoing indemnity shall be effective regardless of any negligence (whether w active,passive,derivative,joint,concurring or comparative)on the part of Indemnitees,except to the extent,but only to the extent, caused by the gross negligence or willful misconduct of the Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. m a� In addition, in the event of any release on or contamination of the License Property, Q m Licensee, at its sole expense, shall promptly take all actions necessary to clean up the affected property N (including the SANBAG Property and all affected adjacent property--whether or not owned by SANBAG)and to return the affected property to the condition existing prior to such release or contamination,to the satisfaction J of SANBAG and any govermnental authorities having jurisdiction thereover. t9 a m 19. UNDERGROUND STORAGE TANKS Q NEITHER LICENSEE NOR LICENSEE'S PARTIES, INCLUDING WITHOUT N LIMITATION ANY PERSON OR ENTITY CLAIMING, USING OR OCCUPYING THE SANBAG PROPERTY BY,UNDER OR THROUGH LICENSEE, SHALL INSTALL,OR USE ANY UNDERGROUND a STORAGE TANKS ON THE LICENSE.PROPERTY UNLESS SPECIFICALLY APPROVED IN ADVANCE IN WRITING BY SANBAG, WHICH APPROVAL MAY BE WITHHELD IN SANBAG'S SOLE DISCRETION. M N At SANBAG's option, upon the termination of this Agreement at any time and for any reason, Licensee shall, prior to the effective date of such termination, remove and close all underground U- storage tanks and related equipment and clean up and remove all Hazardous Materials in,on,under and about the SANBAG Property, in accordance with the requirements of all Environmental Laws and to the satisfaction of E SANBAG and any governmental authorities having jurisdiction thereover, and deliver to SANBAG a copy of a ai certificate of closure issued for such tanks by the appropriate governmental authority. Q 20. SUBORDINATE RIGHTS m This Agreement is subject and subordinate to the prior and continuing right and obligation of SANBAG, its successors and assigns,to use the SANBAG Property in the exercise of its powers J and in the performance of its duties, including those as a public transportation body. Accordingly, there is < Q reserved and retained unto SANBAG, its successors, assigns and permittees, the right to construct,reconstruct, m maintain and use existing and future rail tracks, facilities and appurtenances and existing and future Q transportation,communication,pipeline and other facilities and appurtenances in, upon, over, under,across and co along the SANBAG Property, and in connection therewith the right to grant and convey to others, rights and interests to the SANBAG Property on the License Property and in the vicinity of Facility. This Agreement is = subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and m other matters of title ("title exceptions") which may affect the SANBAG Property now or hereafter, and the Ec words"grant"or"convey"as used herein shall not be construed as a covenant against the existence of any such .U�. title exceptions. Q 21. COMPLIANCE WITH LAWS E Licensee shall comply with all applicable federal, state and local laws, regulations, rules and orders in its work on, or maintenance, inspection, testing or use of, the Facility and the SANBAG Property and shall furnish satisfactory evidence of such compliance promptly upon request of SANBAG. Q SANBAG may enter the License Property to inspect the Facility at any time. Licensee shall obtain all required 12 46260.00004\7858012.2 Packet Pg. 240 1 permits or licenses required by any governmental authority for its use of the License Property and the Facility,at its sole cost and expense. 22. CONDEMNATION m In the event all or any portion of the License Property shall be taken or condemned m for public use(including conveyance by deed in lieu of or in settlement of condemnation proceedings),Licensee tj) shall receive compensation (if any)only for the taking and damage to the Facility. Any other compensation or W damages arising out of such taking or condemnation awarded to Licensee are hereby assigned by Licensee to c SANBAG. E d 23. MARKERS as Project markers in form and size satisfactory to SANBAG, identifying the Facility y and its owners,will be installed and constantly maintained by and at the expense of Licensee at such locations as N SANBAG shall designate. Such markers shall be relocated or removed upon request of SANBAG without expense to SANBAG. Absence of markers in or about SANBAG Property does not constitute a warranty by J SANBAG of the absence of subsurface installations. Q 00 24. GENERAL PROVISIONS Q 24.1 Notices. All notices and demands which either party is required to or m desires to give to the other shall be made in writing by personal delivery, by express courier service or by certified mail postage prepaid, and addressed to such party at its address set forth in the Basic License n. Provisions. Any party may change its address for the receipt of notice by giving written notice thereof to the other party in the manner herein provided. Notices shall be effective only upon receipt by the party to whom notice or demand is given. N 24.2 Non-Exclusive License. The license granted herein is not exclusive and 3 SANBAG specifically reserves the right to grant other licenses within the License Property. U- c 24.3 Governing Law. This Agreement shall be governed by the laws of the E State of California. ai L 24.4 Severability. If any term, covenant, condition or provision of this Q Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid,void or unenforceable,the remainder of the terms,covenants,conditions,or C w provisions of this Agreement,or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected,impaired or invalidated thereby. J C9 Q 24.5 Interest on Past Due Obligations. Any amount due to SANBAG that is not m paid when due shall bear interest,from the date due,at the maximum rate then allowable by law. Such interest Q will be due SANBAG as it accrues. Payment of such interest shall not excuse or cure any default by Licensee N under this Agreement; provided, however, that interest shall not be payable on late charges (that is, interest) T incurred by Licensee. d 24.6 Captions. The captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof,or in any way affect the interpretation of this Agreement. Q 24.7 Survival of Obligations. All obligations of Licensee hereunder not fully C m performed as of the expiration or earlier termination of the Term shall survive the expiration or earlier E termination of this Agreement, including, without limitation, all payment and/or reimbursement obligations as well as obligations concerning the condition of the SANBAG Property and the Facility. All obligations, liabilities and duties of OMNITRANS, as Licensee hereunder, including without limitation the indemnities and Q related obligations and liabilities as well as the waivers, release and assumptions of liability set forth in this Agreement, first incurred or relating in whole or in part to any period prior to the Transfer Date and not fully 13 46260.00004\7858012.2 Packet Pg..241' performed as of the Transfer Date shall survive the Transfer Date and shall not be waived,released or relieved by the occurrence or passing of Transfer Date. Notwithstanding the foregoing, however, OMNITRANS shall be relieved and free from any and all obligations first incurred or relating in whole or in part to any period prior to the Transfer Date that are expressly accepted in writing by and from CITY as successor Licensee, directed to each of and received by both OMNITRANS and SANBAG, which writing expressly confirms, without reservation,that CITY will be responsible and liable for such expressly accepted obligations. L w rn 24.8 Waiver of Covenants or Conditions. The waiver by one party of the w performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement. _ d E 24.9 Effective Date/Nonbinding Offer. Submission of this Agreement for d examination or signature by OMNITRANS and/or CITY does not constitute an offer or option for any license, Q and it is not effective as a license or otherwise until executed and delivered by SANBAG, OMNITRANS and CITY. Each individual executing this Agreement on behalf of SANBAG,OMNITRANS or CITY represents and = warrants to the other parties that he or she is authorized to do so. J 24.10 Amendment. This Agreement may be amended at any time prior to the Transfer Date by the written agreement of SANBAG, OMNITRANS, and CITY. From and after the Transfer CO Date, this Agreement may be amended by written agreement of SANBAG and Licensee. All amendments, z changes,revisions,and discharges of this Agreement in whole or in part,and from time to time,shall be binding < upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by CO CO the parties hereto. a 24.11 Assignment. (a) General Provisions. This Agreement and the license granted herein are N personal to Licensee. Licensee shall not assign or transfer(whether voluntary or involuntary)this Agreement or the license in whole or in part,or permit any other person or entity other than CITY,as provided in provision(b) ` below of this subsection,to use the rights or privileges conveyed by this Agreement, without the prior written LL consent of SANBAG, which consent may be withheld in SANBAG's sole and absolute discretion, and any attempted act in violation of the foregoing shall be void and without effect and give SANBAG the right to E immediately terminate this Agreement,including the license. y L (b) Automatic Assignment to CITY. Notwithstanding any other tenn or Q provision of this Agreement,Licensee's interest in, to and under this Agreement and the license granted herein shall be automatically assigned from OMNITRANS to CITY upon CITY's written acceptance of the public improvements described in Item 10 of the Basic License Provisions(that is,the Facility)as evidenced by CITY's issuance of a "Certificate of Completion" for the public improvements, including delivery of a copy of the 'J Certificate of Completion by CITY to SANBAG and OMNITRANS in accordance with Subsection 24.1 of these < Q General License Provisions. As of the date of CITY's issuance of such Certificate of Completion and delivery M thereof to SANBAG and OMNITRANS("Transfer Date"),CITY shall be deemed to have assumed and to have Z Q agreed to undertake and fully perform any and all of OMNITRANS' obligations, liabilities and duties as the Licensee under and pursuant to this Agreement and the license granted herein,and CITY,as successor Licensee, r shall be subject to all terms and conditions of this Agreement, including,without limitation, all costs,fees and expenses, if any, incurred by CITY or Licensee from and after the Transfer Date. From and after the Transfer Date,all references in this Agreement to"Licensee"shall be deemed to refer to CITY. As of the Transfer Date, OMNITRANS shall be deemed to have assigned all of its right,title and interest in this Agreement to CITY,and OMNITRANS shall be released and free from(i)any and all liabilities and obligations first accruing on or after Q the Transfer Date as well as(ii)any and all obligations first accruing in whole or in part in any period prior to the Transfer Date that are expressly accepted in writing by and from CITY as successor Licensee,directed to each of and received by both OMNITRANS and SANBAG,which writing expressly confirms,without reservation,that E CITY will be responsible and liable for such expressly accepted obligations. From and after the Transfer Date, no breach or default under this Agreement or the license by Licensee first occurring on or after the Transfer Date w shall be attributed to OMNITRANS. Q 14 46260.00004\7858012.2 ._Picket Pg.242; 24.12 Attorneys' Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorneys'fees and costs. 24.13 Nondiscrimination. Licensee certifies and agrees that all persons employed thereby and/or the affiliates,subsidiaries,or holding companies thereof and any contractors retained thereby with d respect to the License Property are and shall be treated equally without regard to or because of race, religion, U) ancestry, national origin, or sex, and in compliance with all federal and state laws prohibiting discrimination in W employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act;and the California Fair Employment Practices Act. 24.14 Further Acts. Licensee agrees to perform any further acts and to execute and deliver in recordable form any documents which may be reasonably necessary to carry out the provisions of this Agreement, including, at SANBAG's sole discretion,the relocation of the Facility and the license granted y hereby as well as a quitclaim and/or other release upon any expiration or termination of this Agreement or the = license granted herein,in whole or in part. U J 24.15 Termination for Public Project. Licensee hereby expressly recognizes and agrees that the License Property is located on SANBAG property that may be developed for public projects and Q programs which may be implemented by SANBAG or other public agencies,such as,but not limited to,rail and Z bus transitways,bikeways,walkways,beautification projects and other public uses(collectively"Project");and Q N that Licensee's use of the License Property under this Agreement and the license granted herein is an interim use. Accordingly,as a condition to entering into this Agreement, SANBAG expressly reserves the right to terminate this Agreement and the license for any of such public Project. Licensee expressly acknowledges and agrees that: n- (1) SANBAG may terminate this Agreement and the license for any public project; (2) Licensee will NOT oppose any Project when planned or implemented on or adjacent to the License Property,except to the extent and only to the extent that the Project impacts property actually owned by I.,icensee; and(3) in the event SANBAG M terminates this Agreement and/or the License and requires Licensee to vacate the License Property for any public Project, Licensee (a) shall not be entitled to receive any relocation assistance, moving expenses, goodwill or M other payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,as u_ amended, 42 U.S.C. §4601 et seq. and/or the California Relocation Assistance Law, as amended, California Government Code §7260 et seq.; and (b) shall not be entitled to any compensation whatsoever, including, E without limitation, under the eminent domain law, as a result of such termination and vacation of the License Property. CITY Oh1NITRANS SANBAG ' Q d U C V J ilItials t7 Initials Q m Z 24.16 Future Need of License Property. If SANBAG shall at any time, or from N time to time, so require by written notice thereof to Licensee based on the need of SANBAG, in its sole discretion, for the License Property for its public purposes, Licensee shall reconstruct, alter, make changes as required by SANBAG,relocate or remove its Facility,at Licensee's sole cost and expense. d E 24.17 Time of Essence. Time is of the essence. -� 24.1.8 Recording. Licensee shall(i), immediately upon SANBAG's instructions, Q record or(ii) permit to be recorded in the official records of the county where the License Property is located, this Agreement,any memorandum of this Agreement or any other document giving notice of the existence of this d Agreement or the license granted hereby proposed by SANBAG. However, Licensee shall not record this E Agreement, any memorandum of this Agreement or any other document giving notice of the existence of this Agreement without SANBAG's concurrence or direction. Q 24.19 Revocable License. Licensee agrees that, notwithstanding the improvements made by Licensee to the License Property or other sums expended by Licensee in furtherance of 15 46260.00004\7858012.2 , Pacicet Pg.243 i this Agreement, the license granted herein is revocable and/or terminable by SANBAG in accordance with the terms of this Agreement. 24.20 Entire Agreement. Amendments. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all y prior verbal or written agreements and understandings between the Parties with respect to the items set forth m herein. This Agreement may be amended at any time by the written agreement of SANBAG and Licensee. All Cn amendments, changes, revisions, and discharges of this Agreement in whole or in part, and from time to time, W shall be binding upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the parties hereto. 24.21 Additional Provisions. Those additional provisions set forth in Exhibit"E",if any,are hereby incorporated by this reference as if fully set forth herein. Q m 24.22 Construction. This Agreement will be liberally construed to effectuate the = intention of the parties with respect to the matter(s) described herein. In determining the meaning of, or m resolving any ambiguity with respect to,any word,phrase or provision of this Agreement,neither this Agreement J nor any uncertainty or ambiguity herein will be construed or resolved against either party (including the party 0 primarily responsible for drafting and preparation of this Agreement), under any rule of construction or m otherwise, it being expressly understood and agreed that the parties have participated equally or have had equal z opportunity to participate in the drafting thereof a n: T M N_ 7 LL C CD E d L a d V V 'J V a m z a T C a) E M V .M+ a C W E a 16 46260.00004\7858012.2 Packet Pg:244: i I Exhibit"A" Legal Description: Parcel 13141/"Temporary License Property w as d - L U) w [To Be inserted] ' C a> E 0 d L Q d N C a) U J a m z Q CO n: o: M N_ 3 LL C Q E a) d L a U C U U J 0 Q CO z Q N T- Z C d E U cs w .r a E U a 17 46260.00004\7858012.2 Packet Pg. 245 PARSONS 3200E G:•s'.I hu:d.Sni:e 3JJ.Ontzrio.CH 317:: ^.°�I',c u.y0,.:18?6n0• F;,._e _2 i r-3f^5 �.. ,pe rscas u,t,t r d EXHIBIT A TEMPORARY CONSTRUCTION EASEMENT w w AP 0136-021-12 c d THAT PORTION OF LOT 1, BLOCK 11 OF THE RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,COUNTY OF SAN BERNARDINO,STATE OF CALIFORNIA,AS PER MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, CONVEYED TO THE Q SAN BERNARDINO VALLEY RAILWAY COMPANY, BY DEED RECORDED AUGUST 1,1889 IN BOOK 59, PAGE N 443 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER,DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE LAND DESCRIBED IN SAID DEED, BEING A POINT ON THE WEST LINE OF"E"STREET(41.25 FEET HALF-WIDTH);THENCE ALONG THE NORTH LINE OF SAID Q DEED SOUTH 89"35'39"WEST 2.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE S.00°24'21"E.,A m DISTANCE OF 75.00 FEET;THENCE S.89°35'39"W.,A DISTANCE OF 5.00 FEET; THENCE N.00°24'21"W.,A zz DISTANCE OF 75.00 FEET;THENCE N.89°35'39"E.,A DISTANCE OF 5.00 FEET TO THE TRUE POINT OF N BEGINNING. CONTAINING 375 SQUARE FEET, MORE OR LESS. n ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. M N DATED THIS 26TH DAY OF OCTOBER,2010 _ ��QRQFESS p c aEi 60—BERT EDWARD SfE FENS, PE 25068 {fig co Q REGISTRATION EXPIRES 12/31/11 s� v a m z a m d E s a d E v .r Q APN 0136-021-12 TCE Page 1 Packet Pg.246;, 5.M.c Exhibit"Al" Legal Description: Parcel B 143/Temporary License Property r d a� L i+ W [To Be Jnserted] ' r _ m E a� m L a _ J a m z Q CO U) o: a rn M N_ 7 LL a+ _ E W d Q d V _ V J C9 Q CO z Q N C d E V c0 w r a E 0 r w Q 18 46260,00004\7858012,2 Packet Pg. 247 � :.�4►i �". .:ti +Y.= .,may �.. «. �,.-. -. PARSONS Gt a_.L F r, Cl.f' tai 0.U:'i"t 1;'i't5 V •'.;,li; to`1e'0,?['8-2c'-U ,Fax:�:2 i c d L EXHIBIT A TEMPORARY CONSTRUCTION EASEMENT w AP 0136-021-13 = w E THAT PORTION OF LOT 1, BLOCK 11 OF THE RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,COUNTY OF SAN BERNARDINO,STATE OF CALIFORNIA,AS PER MAP RECORDED IN BOOK Q 7, PAGE 2 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,CONVEYED TO THE SAN BERNARDINO VALLEY RAILWAY COMPANY, BY DEED RECORDED AUGUST 1,1889 IN BOOK 59, PAGE _ 443 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER,DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE LAND DESCRIBED IN SAID DEED, BEING A POINT ON J THE WEST LINE OF"E"STREET(41.25 FEET HALF-WIDTH); ;THENCE S.00'24'21"E ALONG THE WEST LINE Q OF SAID"E"STREET, A DISTANCE OF 80.66 FEET TO THE TRUE POINT OF BEGINNING;THENCE CONTINUE m SOUTHERLY ALONG SAID LINE,A DISTANCE OF 2.00 FEET;THENCE S.89°35'39"W.,A DISTANCE OF 7.75 Q FEET;THENCE N.00°24'21"W.,A DISTANCE OF 7.66 FEET;THENCE N.89°35'39"E.,A DISTANCE OF 5.00 FEET; N THENCE S.00 024'21"E.,A DISTANCE OF 0.53 FEET;THENCE S.19°48'04"W., A DISTANCE OF 1.16 FEET; THENCE S.00°24'21"E.,A DISTANCE OF 4.05 FEET;THENCE N.89°35'39"E.,A DISTANCE OF 3.15 FEET TO a THE TRUE POINT OF BEGINNING. CONTAINING 42 SQUARE FEET, MORE OR LESS. M N ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF, c a� DATED THIS 27TH DAY OF OCTOBER,2010 E QFIES ROBERT EDWARD STEpf4NS, PE 25068 068 REGISTRATION EXPIRES 12/31/11 �tviv m �DF CAW Q a� E r a c d E w a APN 0136-021-13 TCF Page 1 Pac6t Pg:248 ! Exhibit"AT' Legal Description: Parcel 13141/Ongoing License Property as d r w [To Be Inserted] ' r c m E a� a� L a d N C d V J a m z a n: D: r 01 M N LL C d E d d L a d V d V rJ^ V a m z a N 1 C 0) E V Y J.+ a Y C E V a 7.9 46260.00004\7858012.2 Packet Pg. 249 PARSONS 32r.-O E.Ciuts;i r;C-.d,C A!,:20J,C:,t-,rio.CA 701 •Te!�r,!.an:.:G0:2 3GQU• Fax 5• �:;r,r,p:rs�ns: m d EXHIBIT A „p°'., N RIGHT OF WAY w AP 0136-021-12 E THAT PORTION OF LOT 1, BLOCK 11 OF THE RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO,COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,AS PER MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,CONVEYED TO THE a SAN BERNARDINO VALLEY RAILWAY COMPANY, BY DEED RECORDED AUGUST 1, 1889 IN BOOK 59, PAGE N 443 OF DEEDS, IN THE OFFICE OF SAID COUNTY RECORDER, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF THE LAND DESCRIBED IN SAID DEED,BEING A POINT ON THE WEST LINE OF"E"STREET(41.25 FEET HALF-WIDTH); ;THENCE S.00°24'21"E.,A DISTANCE OF 75.00 Q FEET;THENCE S.89°35'39"W.,A DISTANCE OF 2.75 FEET;THENCE N.00°24'21"W.,A DISTANCE OF 75.00 m FEET;THENCE N.89°35'39"E.,A DISTANCE OF 2.75 FEET TO THE POINT OF BEGINNING. z rn CONTAINING 206 SQUARE FEET, MORE OR LESS. rn ALL AS MORE PARTICULARLY SHOWN ON EXHIBIT B ATTACHED HERETO AND MADE A PART HEREOF. a T DATED THIS 26TH DAY OF OCTOBER,2010 �oQggFESS/ Qti �i DO U. � c _ cc 8 a ' r m ROBERT EDWARD WAWIENS, PE 25068 REGISTRATION EXPIRES 12/31/11 `Y'�Qj clo. tQ `� �©FC•Al�fd4 a a� c a� C9 a m z a c d E s U r6 w a+ a _ E a APN 0136-021-12 ROW Page 1 Packet Pg.250 Exhibit"B" Depiction: Parcel 13141/"Temporary License Property r a� a� L Cn w [To Be Inserted] ' C d E d L Q d U J Q m Z Q N Cn n: rn M N_ LL C d E CJ d L Q d U C d U J L7 Q m Z Q Cn C d E t U fC r Q d E U R Q 20 46260.00004\7858012.2 Packet Pg.251 RIALTO AVENUE a� N W a.. C BEARING & DISTANCE DATA E No. BEARING DISTANCE (FT) L 1 N00 9 24'21"W 75.00 2 589°35'39"W 5.00 41 .25' ii v 3 S00°24'21"E 75.00 _ 4 N89 035'39"E 5.00 N v 5 N89°35'39"E 2.75 W J Q Q ~ m FOR. LOT 99 BLOCK 1f N a Lu to RANCHO Co SAN B ERNARDWO N.D. 7/2 T.P.O.B. a 5 MOST N'LY LINE 4 P.O.C. °; 0 u- 59/443 Dds. c d FOR. LOT 9, LOCK 99 3 RANCHO 1 BAN DERNARWHO N.D. 7/2 59/443 Dds. REC. 08/01 /1889 -' Q S CO t s A.T. & S.F. R.R. 2 ° T d V 41 .25' { a u Oc) E G J- WAM V R y.. i Q U 0 v EXHIBIT " B " UTZ cc v PARSONS °",< 06/30/20)0 3200 EAST GUASTI ROAD, SUITE 200 APN 138'021"12 W" 1"_q0' ONTARIO, CALIFORNIA 91TBI + TEMPORARY CONSTRUCTION EASEMENT aw01of1 Packef Pg..252 Exhibit"Bl" Depiction: Parcel B 143/Temporary License Property as d L LLJ [To Be Inserted] ' c E m d L a N _ d V J Q m z Q Cn M Q a rn M N LL C d E d d L d a� c m 0 _ Q m z a Cl) d E s �a w a E z Q a 21 46260.00004\7858012.2 Packet Pg. 253 51VI':c RIALTO AVENUE d d L r w .r c E POR. LOT 1, BLOCK 11 RANCHO a' OAN BERNARMHO W.I. 7/2 41 .2 5' m J W MOST N'LY LINE 59/443 Dds. P.O.C. u z co � a � rn W a POR. LOT 9, BLOCK 11 - RANCHO 1 M CAN o ERNARMHO W.I. 7 2 59/443 Dds. REC. 08/01 /1889 SEE DETAIL d 2 — T.P.0.B. to A.T. & S.F. R.R. V i J r E CO J, Z BEARING & DISTANCE DATA f� 2 +,!! cn No. BEARING DISTANCE (FT) \ 1 N89 035'39"E 2.75 J $ 9 2 N89 035'39"E 5.00 3 N00 024'21"W 7.66 ( 3 / T•P•0•B• s 4 N89 035'39"E 7.75 5 ' u 1 5 N00°24'21"W 2.00 1\ � 41 .2 5' 6 N89°35'39"E 3.15 \ f n Q 1 S00°24'21"E 4.05 8 S19 048'04 1 1.16 E 9 N00°24'21"W 0.53 v N00 4 24'21"W 80.66 DETAIL C Q N.T.S. PARSONS EXHIBIT " B ' W=10/27/2010 3200 EAST GUASTI ROAD, SUITE 200 APH 136-021-13 ""t 1'1_401 ONTARIO, CALIFORNIA 91761 TEMPORARY CONSTRUCTION EASEMENT �""° 1 of i Packet Pg.254' Exhibit"B2" Depiction: Parcel B 141/Ongoing License Property d a� L Cn w [To Be Inserted] ' r c as E m d L Q CD N G d Cl J a m z Q rn tY a rn M LLN_ 7 a+ C d E d d L Q d V C N V J Q m z Q N C N E t v ca Q c m E c� w Q 22 46260.0000417858012.2 Packet Pg. 255 RIALTO AVENUE o� d L w c oy L a 41 .25' y _ a� J PON R LOT 1, BLOCK 1� °J W m m RANCHO a BAN o ERNAR HO N.H. 7/2 `o co W n. ' 4 P.O.B. MOST N'LY LINE 59/443 Dds. N u- C:> r-+ _ d o p©N. LO�Q�� © OCK 11 3 1 d SAN BERHARMH® W.I. 7/2 41 .25' . c 59/443 Dds. V. REC. 08/01 /1889 C J L7 . a � m A.T. & S.F. R.R. 2 a a � P- d BEARING & DISTANCE DATA E No. BEARING DISTANCE (FT) t N00 024'21"W __.. 75.00 41 .25' S89°35'39"W 2.75 c a c 3 S00°24'21"E 75.00 _ 4 N89 035'39"E 2.75 a E v to c a P. P P EXHIBIT " 6 " DATE 41 0 PARSONS DATE 06/30/2010 3200 EAST CUASTI ROAD, SUITE 200 APN 136-021-12 iAE 1'_40' °„ ONTARIO, CALIFORNIA 91761 * RIGHT OF WAY '"""° 1 of 1 Packet Pg.256> Exhibit"C" INSURANCE REQUIREMENTS FOR LEASES,LICENSES,AND PERMITS as a� Licensee shall procure and maintain, for the duration of this Agreement and an additional two(2) N years thereafter, insurance against claims for injuries to persons or damages to property which w may arise from, or in connection with,the use of SANBAG and MTA property hereunder by the Licensee, its agents, representatives,employees or subcontractors. Minimum Scope of Insurance (Check all applicable boxes) a� _ m L Coverage shall be at least as broad as: a' Q ® Insurance Services Office Commercial General Liability coverage(occurrence form CG N _ 0001). ® Insurance Services Office Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, code I (any auto). t9 ® Worker's Compensation insurance as required by the State of California and Employer's m Liability Insurance. zz Course of Construction insurance form providing coverage for"all risks"of loss. co Property insurance against all risks of loss to any tenant improvements or betterments. N Insurance Services Office Railroad Protective Liability Contractor's Pollution Liability with coverage for: a. a. bodily injury, sickness, disease, mental anguish or shock sustained by any •- person, including death; N b. property damage including physical injury to or destruction of tangible property — meluding the resulting loss of use thereof, clean-up costs, and the loss of use of ii tangible property that has not been physically injured or destroyed; m C. defense, including costs, charges and expenses incurred in the investigation, E adjustment or defense of claims for such compensatory damages; and L rn d. losses caused by pollution conditions that arise from the operations of the Q contractor described under the scope of services of this contract. Minimum Limits of Insurance (Check all applicable boxes) Lessee,Licensee, or Permittee shall maintain limits no less than: Q Z General Liability: $1,000,000 per occurrence for bodily injury, personal injury z and property damage. < ® If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall appply separately to this projectllocation or the general aggregate limit shall be twice the required c occurrence limit. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. Employer's Liability: $1,000,000 per accident for bodily injury or disease. Course of Construction: Completed value of the project. .- Property Insurance: Full replacement cost with no coinsurance penalty provision. Q Railroad Protective Liability: $2,000,000 per occurrence. Aggregate limit shall ap ply � separately to this project/location or the aggregate limit shall be twice the required per occurrence limit E ®Contractors Pollution Liability: $1,000,000 per occurrence$2,000,000 annual aggregate. ca Q Deductibles and Self-Insured Retentions 23 46260.00004\7858012.2 Packet Pgr<257 Anyy deductibles or self-insured retentions must be declared to and approved by SANBAG and MTA. At the option of SANBAG and MTA, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects SANBAG and MTA, its officials and employees; or Licensee shall procure a bond guaranteeing payment of losses, and related investigations,claim administration and defense expenses. a� Other Insurance Provisions N The general liability and automobile liability policies are to contain, or be endorsed to contain, ui the following provisions: d 1. SANBAG and MTA, its subsidiaries:officials and employees are to be covered as insureds as E respects: liability arising out of activities performed by or on behalf of Licensee; products as and completed operations of of premises owned, occupied or used by Licensee; and a automobiles owned, leased, hired or borrowed by Licensee. The coverage shall contain no special limitations on the scope of protection afforded to SANBAG and MTA, its subsidiaries,officials and employees. 2. For any claims related to this project, L,icensee's insurance coverage shall be primary insurance as respects SANBAG and MTA, its subsidiaries, officials and employees. Any a insurance or self insurance maintained by SANBAG and MTA, its subsidiaries, officials and m employees shall be excess of the contractor's insurance and shall not contribute with it. za 3. Any failure to comply with reporting or other provisions of the policies including breaches of N warranties shall not affect coverage provided to SANBAG and MTA, its subsidiaries, officials and employees. 4. Licensee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. M N 5. Each insurance policy re uired by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either a party, or reduced in coverage or in limits, 5 except after thirty (3Q) days' prior written notice by certified mail, return receipt requested, - has been given to SANBAG and MTA. E 6. Workers' Compensation and Employer's Liability policies shall contain the inclusion of the SANBAG and MTA, its Subsidiaries, officials and employees as additional insured, or provide a waiver of subrogation. Q m Course of construction policies shall contain the following provisions: U 1. SANBAG and M`I'A shall be named as loss payee. 2. The insurer shall waive all subrogation rights against SANBAG and MTA. a m Z Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise approved by SANBAG and MTA. _ a� E Verification of CoveraE Licensee shall furnish SANBAG and m,rA with original endorsements and certificates of a insurance evidencing coverage required by this clause. All documents are to be signed by a person authorized by that insurer to bind coverage on its behalf. All documents are to be received d and approved by the SANBAG and MTA before work commences. As an alternative, Licensee E may provide complete, certified copies of all required insurance policies, including endorsements o effecting the coverage required by these specifications. a 24 46260.0000417858012.2 Packet Pg.258 Contractors and Subcontractors Licensee shall include all contractors and subcontractors as insureds under its policies or require certificates and endorsements for each contractor and subcontractor. All coverages for contractors and subcontractors shall be subject to all of the requirements stated herein. The administration of insurance compliance of contractors and subcontractors shall be subject to audit review by SANBAG and MTA. r w w E a� a� Q N C d U J Q m Z Q Cn U) n: o_ M N 3 LL a+ C d E d d C/ Q d U C U U J Q m Z Q N C d E U Q C d E t U tC w Q .:, 25 46260.0000A78580 122 Mcket AgW 259 `" Exhibit "D" Permitted Hazardous Materials r a� L Cn No hazardous materials are permitted to be used or stored on License Property, W C a> E CD a) L 0) Q CD N C U U J Q m Z Q N U) w d T M 5S tL r-� C a1 E d a) L Q U C d U J Q m Z Q N G U E t U ns w Q C d t U t4 w Q 26 46260.00004\7858012.2 Packet Pg. 260 I i ,• Exhibit"E" Additional Provisions 1. Paving and Fencing. Licensee will pave the License Property with asphalt or concrete or r landscaping. Licensee shall be responsible for the total expense of asphalt, concrete or N w landscaping. _ 2. Importation of Soil/Fill Dirt. Licensee shall not bring upon or use any imported soil on the E License Property in conjunction with any purposes allowed under this Agreement, until said i imported soil has been laboratory tested by a certified hazardous waste testing laboratory and 0 the test results have been approved by SANBAG's Environmental Consultant. Additionally, N any soil currently existing on the License Property may not be spread on the License Property unless and until it is characterized as"clean soil"to the reasonable satisfaction of SANBAG's J Environmental Consultant. 4 3. Maintenance of License Property. Licensee shall keep the License Property free and clear Z of weeds, trash, vegetation, unauthorized vehicle parking, graffiti and occupancy by < transients/homeless persons or individuals. Licensee shall be fully responsible for ALL co maintenance and maintenance that is required or necessary in connection with Licensee's use a of License Property. 4. Protection of Underground and Aboveground Installations. Licensee shall ensure that it N and Licensee's Parties protect, from and against any and all damage, all underground and aboveground installations and improvements, such as pipes,fiber optic lines and wires,which M may be impacted by any work or any use of the License Property by Licensee. m 5. Improvements. Both Licensee and SANBAG acknowledge that the License Property is m licensed in "AS IS," "WHERE IS" and "WITH ALL FAULTS" condition and any track removal, grading, paving and fencing as may be necessary or required to meet Licensee's a needs will be the sole responsibility of the Licensee. No permanent structures may be constructed on the License Property without SANBAG's prior written approval. Licensee will be responsible for the removal of all permitted improvements upon termination of the J license. a m 6. Utilities. Licensee shall pay for any and all utilities for its benefit,security and use. Z a U) 7. Warranties. SANBAG makes no representations or warranties as to the suitability of the r location for Licensee's intended use as to zoning, visibility, traffic count or any other factors which may cause Licensee to want to license the License Property. E U f6 8. Zoning or Permitting. Any permits, inspection fees, or costs associated with the use or a maintenance of the License Property by any governmental agency, department, or organization, or any labor expenses for the installation or maintenance of any permitted ' f are to be improvements are and shall be the Licensee's sole responsibility. Copies E permits o p � readily available for inspection by SANBAG personnel. M M V w Q 9. Si na e. NO SIGNS ARE PERMITTED on, or along the perimeter of,the License Property. CITY OMNITRANS SANBAG ?.7 46260.00004\7858012.2 Initials Packet Rg.261 L N W _ CD L a _ U_ J a m z d o: o: rn M N 7 LL w C d N d L tm a d U _ U 'J V d m z a Cn c a� E s U tC a w U w a 2.8 46260.00004\7 8 58012.2 Packet Pg. 262