HomeMy WebLinkAbout2014-018 RESOLUTION NO. 2014-18
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PIPELINE
3 LICENSE AGREEMENT WITH THE BNSF RAILWAY COMPANY FOR THE
4 MAINTENANCE OF A STORM DRAIN WITHIN RAIL ROAD RIGHT OF WAY
SOUTHWEST OF CAJON BOULEVARD.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The City Manager is hereby authorized and directed to execute on
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behalf of the City, a Pipeline License agreement with the BNSF Railway Company ("BNSF"),
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for the maintenance of a storm drain to be performed by the City, at Cajon Boulevard within
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11 BNSF right of way, attached hereto as Exhibit"1" and made a part hereof
12 SECTION 2. The authorization to sign the agreement is rescinded if the parties to the
13 agreement fail to execute it within ninety (90) days of the passage of this resolution.
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3 EXHIBIT "1"
4 Pipeline License Agreement
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2014-18
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PIPELINE
2 LICENSE AGREEMENT WITH THE BNSF RAILWAY COMPANY FOR THE
MAINTENANCE OF A STORM DRAIN WITHIN RAIL ROAD RIGHT OF WAY
3 SOUTHWEST OF CAJON BOULEVARD.
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 a t a j-,i n r rP pj,l a r meeting
7 thereof, held on the 2lstday of January , 2014, by the following vote,to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT
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10 MARQUEZ X
11 JENKINS X
12 VALDIVIA X
13 SHORETT x
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VACANT
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16 JOHNSON X
17 MULVIHILL x
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19 George. "Hanna, C'# Clerk
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The foregoing resolution is hereby approved this ,P43----day of January 2014.
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22 ._...�12.411■%-v+-.-4.
23 Mick,;ick J. Morris,
City of San Bernardino
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Approved as to form:
25 Gary D. Saenz,
26 City Attorney
27 B — +.a s. t. _ •
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PIPELINE LICENSE
THIS PIPELINE LICENSE ("License") is made to be effective February 14, 2014, (the "Effective
Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and CITY OF
SAN BERNARDINO, ("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights,
interests, and estates of third parties, including, without limitation, any leases, use rights,
easements, liens, or other encumbrances, and upon the terms and conditions set forth below, to
maintain, in strict accordance with the drawings and specifications approved by Licensor as part
of Licensee's application process (the "Drawings and Specifications"), One (1) pipeline, Thirty
(30") inches in diameter (the "Pipeline"), across or along Licensor's rail corridor at or near the
station of San Bernardino„ County of San Bernardino, State of California, Line Segment 7600,
between Mile Post 72.08 and 72.26 as shown on the attached Drawing No. 3-57427, dated April
2, 2013, attached hereto as Exhibit "A" and incorporated herein by reference(the "Premises").
2. Term. This License shall commence on the Effective Date and shall continue for a period of
twenty-five (25)years, subject to prior termination as hereinafter described.
3. Existing Improvements. 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, repair, maintenance or replacement of such improvements.
4. Use of the Premises. Licensee shall use the Premises solely for maintenance and use of the
Pipeline in accordance with the Drawings and Specifications. The Pipeline shall carry
stormwater, and Licensee shall not use the Pipeline to carry any other material or use the
Premises for any other purpose.
5. Alterations. Except as set forth in this License, Licensee may not make any alterations to the
Premises or permanently affix anything to the Premises or any buildings or other structures
adjacent to the Premises without Licensor's prior written consent.
COMPENSATION
6. License Fee. Licensor waives the fees for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "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.
7.2 Intentionally deleted.
8. Intentionally deleted.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor excepts and reserves the right, to be exercised by Licensor
and any other parties who may obtain written permission or authority from Licensor:
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9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or
communication pipe/lines/cables and appurtenances (other than the Pipeline) and other
facilities or structures of like character upon, over, under or across the Premises existing
as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or
additional facilities, structures and related appurtenances upon, over, under or across the
Premises; or
9.3 to use the Premises in any manner as 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 4 above.
10. Intentionally deleted.
LICENSEE'S OPERATIONS
11. Maintenance of the Pipeline.
11.1 Licensee shall notify Licensor's Roadmaster, at 740 Carnegie Drive, San Bernardino,
California, 92408, telephone (909) 386-4060 (Office)or(951) 538-4026 (Cell), at least ten
(10) business days prior to installation of the Pipeline and prior to entering the Premises
for any subsequent maintenance thereon. In the event of emergency, Licensee shall
notify Licensor of Licensee's entry onto the Premises at the telephone number above as
soon as practicable and shall promptly thereafter follow up with written notice of such
entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License
at all times while on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of
Licensor's tracks to the other.
11.4 Any contractors or subcontractors performing work on the Pipeline or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License.
11.5 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 endanger or
interfere with (i)the existence or use of present or future tracks, roadbeds, or property of
Licensor, (ii)the safe operation and activities of Licensor or existing third parties, or(iii)
the rights or interests of third parties. 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
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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.
11.6 Licensee shall, at its sole cost and expense, maintain the Pipeline in such a manner and
of such material that the Pipeline will not at any time endanger or interfere with (i) the
existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the
safe operation and activities of Licensor or existing third parties, or (iii) the rights or
interests of third parties. Any maintenance shall be completed within one (1) year of
initiation. Within fifteen (15) days after the performance of any maintenance thereon,
Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the time prior to the current maintenance activities, unless
otherwise approved in advance by Licensor in writing.
11.7 Licensor may direct one or more of its field engineers to observe or inspect the
maintenance of the Pipeline at any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). If ordered at any time to halt
maintenance of the Pipeline by Licensor's personnel due to non-compliance with the
Drawings and Specifications or any other hazardous condition, Licensee shall
immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to observe or inspect, or to halt work on, the Pipeline, it
being solely Licensee's responsibility to ensure that the Pipeline is maintained in strict
accordance with the Drawings and Specifications and in a safe and workmanlike manner
in compliance with all terms hereof. Neither the exercise of, nor the failure by Licensor to
exercise, any right granted by this Section will alter in any way the liability allocation
provided by this License. If at any time Licensee shall, in the sole judgment of Licensor,
fail to properly perform its obligations under this Section 11, Licensor may, at its option
and sole expense, arrange for the performance of such work as it deems necessary for
the safety of its operations and activities. Licensor's failure to perform any obligations of
Licensee shall not alter the liability allocation hereunder. If Licensor deems it necessary
to perform work on the pipeline for safety and/or to protect its operations, Licensee shall
reimburse Licensor for the cost of such work. But the reimbursement obligation shall
arise if and only if (1) The work was necessary to correct an unsafe condition or protect
Licensor's operations; and (2)the work was necessitated by Licensee's failure to properly
maintain the pipeline or to make timely repairs.
12. Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar 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, 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. Licensee may request information from Licensor concerning the existence
and approximate location of Licensor's underground lines, utilities, and pipelines at or
near the vicinity of the proposed Pipeline by contacting Licensor's Telecommunications
Helpdesk at least thirty (30) business days prior to installation of the Pipeline. Upon
receiving Licensee's timely request, Licensor will provide Licensee with the information
Licensor has in its possession regarding any existing underground lines, utilities, and
pipelines at or near the vicinity of the proposed Pipeline and,if applicable, identify the
location of such lines on the Premises pursuant to Licensor's standard procedures.
Licensor does not warrant the accuracy or completeness of information relating to
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subsurface conditions of the Premises and Licensee's operations will be subject at all
times to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below
bottom of rail, a soil investigation must be performed by 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 Licensor's sole discretion, a remedial plan to deal with the granular
material. Once Licensor has approved any such remedial plan in writing, Licensee shall,
at Licensee's sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.
12.3 Any open hole, boring, or well, constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings constructed
on the Premises by Licensee shall be:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on Licensor's property for
more than ten (10) days, but must be properly disposed of by Licensee in
accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated
companies, partners, successors, assigns, legal representatives, officers, directors,
shareholders, employees, and agents; (b) "Liabilities" means all claims, liabilities, fines,
penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments,
and expenses (including, without limitation, court costs, reasonable attorneys' fees, costs
of investigation, removal and remediation, and governmental oversight costs)
environmental or otherwise; and (c) "Licensee Parties" means Licensee or Licensee's
officers, agents, invitees, licensees, employees, or contractors, or any party directly or
indirectly employed by any of them, or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD
HARMLESS INDEMNITEES FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES
OF ANY NATURE, KIND, OR DESCRIPTION TO THE EXTENT ARISING OUT OF OR
RESULTING FROM:
13.2.1 LICENSEE'S OR CONTRACTOR'S OPERATIONS UNDER THIS LICENSE,
INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES
CAUSED BY OR CONTRIBUTED TO BY LICENSEE, OR
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13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 Intentionally deleted.
13.4 The parties agree that while Licensor may make requests or issue instructions to
Licensee and its contractors, these instructions will be for the purpose of maintaining a
safe workplace and protecting railroad operations. Under no circumstances shall the
employees of Licensee or its contractors be considered employees of Licensor.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE
EXTENT LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT OF ANY INDEMNITEE, OR TO THE EXTENT THAT
LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO ANY OTHER ALLEGED OR
ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY
INDEMNITEE.
13.6 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 and expenses
incident to such defense, including, but not limited to, reasonable attorneys' fees,
investigators' fees, litigation and appeal expenses, settlement payments, and amounts
paid in satisfaction of judgments.
14. Personal Property Risk of Loss. Licensor shall not be responsible for personal property brought
onto or kept on the premises by employees of Licensee or its contractors.
15. Insurance. Unless allowed to self-insure by Licensor, Licensee shall, at its sole cost and
expense, procure and maintain during the life of this License the following insurance coverage:
15.1 Commercial General Liability Insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $5,000,000 each
occurrence and an aggregate limit of at least $10,000,000 but in no event less than the
amount otherwise carried by Licensee. Coverage must be purchased on a post 2004
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 or language, which shall be
indicated on the certificate of insurance:
• The definition of insured contract shall be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor and Jones
Lang LaSalle Brokerage, Inc.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance
carried by Licensor.
It is agreed that the workers' compensation and employers' liability related exclusions in
the Commercial General Liability Insurance policy(s) required herein are intended to
apply to employees of the policy holder and shall not apply to Licensor's employees.
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No other endorsements limiting coverage may be included on the policy.
15.2 Business Automobile Insurance. This insurance shall contain a combined single limit of
at least$1,000,000, and include coverage for, but not limited to the following:
• Bodily injury and property damage.
• Any and all vehicles owned, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the
certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance
carried by Licensor.
15.3 Workers'Compensation and Employers' Liability Insurance. This insurance shall include
coverage for, but not limited to:
• Licensee's statutory liability under the workers' compensation laws of the state(s) in
which the services are to be performed. If optional under state laws, the insurance
must cover all employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000
by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liability Insurance: This insurance shall name only Licensor as the
Insured with coverage of at least$5,000,000 per occurrence and $10,000,000 in the
aggregate. This coverage will be required when Licensee conducts a project on
Licensor's property requiring construction or digging with mechanized equipment.
Railroad Protective Liability Insurance shall not be required for routine maintenance,
inspection, or cleaning, nor shall it be required if any digging to be performed does not
involve the use of mechanized equipment. The policy shall be issued on a standard ISO
form CG 0035 12 03 and include the following: (a)an endorsement for the pollution
exclusion amendment; (b)an endorsement for limited seepage and pollution coverage;
and (c)an endorsement for evacuation expense endorsement coverage. No other
endorsements restricting coverage may be added without the written express consent of
the Licensor.
Proof of the existence of an applicable policy consistent with and including the terms
specified herein must be provided to Licensor before Licensee or its contractor
commences work.
The definition of"Physical Damage to Property" shall be endorsed to read, "means direct
and accidental loss to all property owned by any named insured and all property in any
named insured's care, custody, or control arising out of the acts or omissions of the
Contractor(s)named on the Declarations.
15.5 Pollution Legal Liability (PLL) Insurance. Intentionally deleted, not required for this
permit.
15.6 Other Requirements:
15.6.1 Intentionally deleted.
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15.6.2 Licensee's insurers, through the terms of the policy or a policy endorsement,
must waive their right of subrogation against Licensor for all claims and suits, and
the certificate of insurance must reflect the waiver of subrogation endorsement.
Licensee further waives its right of recovery, and its insurers must also waive
their right of subrogation against Licensor for loss of Licensee's owned or leased
property, or property under Licensee's care, custody, or control.
15.6.3 With the exception of Railroad Protective Liability, Licensee is allowed to self-
insure without the prior written consent of Licensor. Any 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 License, be covered by Licensee's
insurance will be covered as if Licensee elected not to include a self-insured
retention or other financial responsibility for claims.
15.6.4 Intentionally deleted.
15.6.5 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.
15.6.6 If coverage is purchased on a "claims made" basis, Licensee hereby agrees to
maintain coverage in force for a minimum of three years after expiration or
termination of this License. Annually, Licensee agrees to provide evidence of
such coverage as required hereunder.
15.6.7 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 License. Allocated Loss
Expense shall be in addition to all policy limits for coverages referenced above.
15.6.8 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.
15.6.9 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.
15.6.10 Failure to provide evidence as required by this Section 15 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.
15.6.11 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.
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15.6.12 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa
Fe, LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns
and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Regulations.
16.1 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 maintenance and use of the Pipeline
and the use of the Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply
with all of Licensor's applicable safety rules and regulations. Licensee must ensure that
each of its employees, contractors, agents or invitees entering upon the Premises
completes the safety orientation program at the Website "www.contractororientation.com"
(the "Safety Orientation") within one year prior to entering upon the Premises.
Additionally, Licensee must ensure that each and every employee of Licensee, its
contractors, agents and invitees possess a card certifying completion of the Safety
Orientation prior to entering upon the Premises. Licensee must renew the Safety
Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any
and all additional rights-of way, easements, licenses and other agreements relating to the
grant of rights and interests in and/or access to the Premises (collectively, the "Rights")
and such other rights, licenses, permits, authorizations, and approvals (including without
limitation, any necessary local, state, federal or tribal authorizations and environmental
permits) that are necessary in order to permit Licensee to maintain, own and operate the
Pipeline and otherwise to perform its obligations hereunder in accordance with the terms
and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a
period that does not expire, in accordance with its ordinary terms, prior to the last day of
the term of this License or, if the initial stated term of any such Right expires in
accordance with its ordinary terms on a date earlier than the last day of the term of this
License, Licensee shall, at its cost, exercise any renewal rights thereunder, or otherwise
acquire such extensions, additions and/or replacements as may be necessary, in order to
cause the stated term thereof to be continued until a date that is not earlier than the last
day of the term of this License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to
own, operate or use the Pipeline in accordance with the terms and conditions of this
License, this License thereby shall automatically expire upon such expiration or
termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal
Requirements 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, and 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
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of oil or hazardous substances, as defined by Environmental Laws on or about the
Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous
substances", as "hazardous waste" and "hazardous substances" may now or in the
future be defined by any federal, state, or local governmental agency or body through the
Pipeline on Licensor's property. Licensee agrees periodically to furnish Licensor with
proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this
Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center
at (800) 832-5452 of any known (i) release of hazardous substances on, from, or
affecting the Premises, (ii)violation of Environmental Laws, or(iii) 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, from, or affecting 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.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of
Environmental Laws arising in any way with respect to the Pipeline which occurred or
may occur during the term of this License, Licensor may require Licensee, at Licensee's
sole risk and expense, to take timely measures to investigate, remediate, respond to or
otherwise cure such release or violation affecting the Premises or Licensor's right-of-way.
17.5 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,
property, or the environment 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.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 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.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY
KIND, EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR
OTHER RIGHTS GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT
LICENSEE'S MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE
PIPELINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND
ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY LEASES,
USE RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO
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THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE
POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
20. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title
to, or claiming any interest in the Premises, or by the abandonment by Licensor of the affected
rail corridor, Licensor shall not be liable (i) to refund Licensee any compensation paid hereunder,
except for the pro-rata part of any recurring charge paid in advance, or (ii) for any damage
Licensee sustains in connection with the eviction.
LIENS AND TAXES
21. Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of
any maintenance, 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 21 or any other Section of this
License.
22. Intentionally deleted.
DEFAULT, TERMINATION, AND SURRENDER
23. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for
failure to provide evidence of insurance as required pursuant to the terms of Section 15, the
following events are also deemed to be events of default pursuant to which Licensor has the right
to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations
contained in this License and Licensee fails to cure said default within thirty (30) days
after written notice is provided to Licensee by Licensor, or in case of any assignment or
transfer of this License in violation of Section 26 below, Licensor may, at its option,
terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License
immediately if Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the
handling or transporting of hazardous waste or hazardous material, notwithstanding
anything contained in any other provision of this License, Licensor may, at its option,
terminate this License by serving five (5)days'notice of termination upon Licensee.
23.3 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 23 shall be in addition to, and not in limitation of, any
other remedies that Licensor may have at law or in equity.
23.4 In addition to and not in limitation of Licensor's rights to terminate this License for failure
to provide evidence of insurance or occurrence of defaults as described above, this
License may be terminated by either party, at any time, by serving thirty (30) days'written
notice of termination upon the other party. Such termination shall not release either party
hereto from any liability or obligation under the License, whether of indemnity or
otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or thereafter in case by the terms of the License it is provided that anything
shall or may be done after termination hereof.
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24. Intentionally deleted.
MISCELLANEOUS
25. Successors and Assigns. All provisions contained in this License shall be binding upon, inure to
the benefit of, and be enforceable by the respective successors and assigns of Licensor and
Licensee to the same extent as if each such successor and assign was named a party to this
License.
26. Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right,
obligation, or interest herein (either voluntarily or by operation of law, merger, or
otherwise) without the prior written consent of Licensor, which consent may not be
unreasonably withheld or delayed by Licensor. Any attempted assignment by Licensee
in violation of this Section 26 shall be a breach of this License and, in addition, shall be
voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a)any
sale of the equity interests of Licensee following which the equity interest holders of
Licensee immediately prior to such sale own, directly or indirectly, less than 50% of the
combined voting power of the outstanding voting equity interests of Licensee, (b) any
sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent such
entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any
reorganization, recapitalization, merger or consolidation involving Licensee.
Notwithstanding the foregoing, any reorganization, recapitalization, merger or
consolidation following which the equity interest holders of Licensee immediately prior to
such reorganization, recapitalization, merger or consolidation own, directly or indirectly, at
least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization,
recapitalization, merger or consolidation shall not be deemed an assignment. THIS
LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN
CONSENT OF LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE
DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this
License to the contrary, if Licensee sells, assigns, transfers, or hypothecates this License
or any interest herein in contravention of the provisions of this License (a "Purported
Assignment") to another party (a "Purported Transferee"), the Purported Transferee's
enjoyment of the rights and privileges granted under this License shall be deemed to be
the Purported Transferee's agreement to be bound by all of the terms and provisions of
this License, including but not limited to the obligation to comply with the provisions of
Section 15 above concerning insurance requirements. In addition to and not in limitation
of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend
and hold harmless Licensor for all 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)a Purported Assignment.
26.4 The provisions of this Section 26 shall survive the expiration or earlier termination of this
License.
27. Notices. Any notice, invoice, or other writing 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
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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: Jones Lang LaSalle Brokerage, Inc.
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 76155
Attn: Permits/Licenses
with a copy to: BNSF Railway Company
2500 Lou Menk Dr.-AOB3
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
If to Licensee: City of San Bernardino
City Manager
300 N. "D" Street
San Bernardino, California 92418
28. Survival. Neither termination nor expiration will release either party from any liability or obligation
under this License, whether of indemnity or otherwise, resulting from any acts, omissions or
events happening prior to the date of termination or expiration, or, if later, the date when the
Pipeline and the other Improvements are removed and the Premises are restored to its condition
as of the Effective Date.
29. Recordation. It is understood and agreed that this License shall not be placed or allowed to be
placed on public record.
30. Applicable Law. All questions concerning the interpretation or application of provisions of this
License shall be decided according to the substantive laws of the State of California without
regard to conflicts of law provisions.
31. Severability. 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.
32. Integration. 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.
33. Joint and Several Liability. If 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.
34. Waiver. 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.
35. Interpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or
against any party based upon the source of the draftsmanship; both parties hereby agree
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that this License shall not be subject to the principle that a contract would be construed
against the party which drafted the same. Article titles, headings to sections and
paragraphs and the table of contents (if any) are inserted for convenience of reference
only and are not intended to be a part or to affect the meaning or interpretation hereof.
The exhibit or exhibits referred to herein shall be construed with and as an integral part of
this License to the same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by
"without limitation"whether or not they are in fact followed by such words or words of like
import; "writing", "written" and comparable terms refer to printing, typing, lithography and
other means of reproducing words in a visible form; references to any person are also to
that person's successors and permitted assigns; "hereof", "herein", "hereunder" and
comparable terms refer to the entirety hereof and not to any particular article, section, or
other subdivision hereof or attachment hereto; references to any gender include
references to the masculine or feminine as the context requires; references to the plural
include the singular and vice versa; and references to this License or other documents
are as amended, modified or supplemented from time to time.
36. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all
purposes, be deemed an original but which together shall constitute one and the same
instrument, and the signature pages from any counterpart may be appended to any other
counterpart to assemble fully executed documents, and counterparts of this License may also be
exchanged via email or electronic facsimile machines and any email or electronic facsimile of any
party's signature shall be deemed to be an original signature for all purposes.
///
///
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37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for
BNSF Railway Company.
This License has been duly executed by the parties hereto as of the date below each party's
signature; to be effective, however, as of the Effective Date.
LICENSOR:
BNSF RAILWAY COMPANY a Delaware corporation
By: Jones Lang LaSalle Brokerage, Inc.,
4300 Amon Carter Blvd, Suite 100
Fort Worth, TX 76155
By: _
Ed Darter
Title: Vice President- National Accounts
Date:
LICENSEE:
CITY OF SAN BERNARDINO
By: 300 N. "D" Street
San Bernardino, California 92418
By:
,de%(e.
Allen 'arker,
Title: City Manager
Date: 07,/,"
14
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