HomeMy WebLinkAbout05.N- Public Works RESOLUTION (ID # 2356) DOC ID: 2356 G
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Robert Eisenbeisz M/CC Meeting Date: 01/21/2014
Prepared by: Ryan Sandoval, (909) 384-5140
Dept: Public Works Ward(s): 6
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the
Execution of a Pipeline License Agreement with the BNSF Railway Company for the
Maintenance of a Storm Drain Within Rail Road Right of Way Southwest of Cajon Boulevard.
(#2356)
Current Business Registration Certificate: Not Applicable
Financial Impact:
None. All associated construction and permit costs will be paid for by the proponent.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
None.
Background:
This is a request to enter into a license agreement with the Burlington Northern Santa Fe (BNSF)
Railroad for the continual maintenance of a proposed public storm drain under construction by
the Theines Engineering ("Proponent") for the existing Fed Ex facility that was recently
constructed. The storm drain is being constructed at no cost to the City and it is necessary to
address drainage problems that have previously damaged BNSF and City Water Department
property located downstream of the Fed Ex site. The subject storm drain system collects runoff
from both private property and public streets in the area.
The Proponent has agreed to bear all costs associated with this license agreement including the
required railroad insurance, as well as the construction of the subject storm drain. The railroad
has agreed to waive all license fees, and flagging costs associated with the annual inspection and
routine maintenance of the storm drain facility.
Since the facility will eventually be owned, operated and maintained by the City, prior to
commencing any maintenance activities within BNSF right of way, the City will need to execute
a Pipeline License Agreement for this location. The attached resolution authorizes the execution
of the required Pipeline License Agreement. .
The proponent's contractor has obtained a permit from the City and construction is underway and
nearing completion. The storm drain is being constructed and inspected in accordance with City
standards and requirements. A final inspection and acceptance of the work will occur once the
construction has been completed.
City Attorney Review:
Updated: 1/16/2014 by Georgeann"Gigi"Hanna G Packet Pg.-Ii7
2356
Supporting Documents:
reso 2356 (PDF)
Exh 1 BNSF Pipeline License Agmt (PDF)
Exhibit A -Drawing No. 3-57427, dated 04-02-13 (PDF)
Vicinity Map (PDF)
Updated: 1/16/2014 by Georgeann"Gigi"Hanna G Packet Pg. 188
I RESOLUTION NO.
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.
5 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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10 for the maintenance of a storm drain to be performed by the City, at Cajon Boulevard within o
11 BNSF right of way, attached hereto as Exhibit"1" and made a part hereof. c
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12 SECTION 2. The authorization to sign the agreement is rescinded if the parties to the 2
13 agreement fail to execute it within ninety(90)days of the passage of this resolution.
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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.
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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 ,2014, by the following vote,to wit: m
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Council Members: AYES NAYS ABSTAIN ABSENT
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10 MARQUEZ o
11 JENKINS o
12 VALDIVIA 0
13 E
SHORETT a
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16 JOHNSON a
17 MULV IHILL
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19 Georgeann Hanna, City Clerk 0
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The foregoing resolution is hereby approved this day of ,2014. »:
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Patrick J. Morris,Mayor a
City of San Bernardino
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Approved as to form:
25 Gary D. Saenz,
26 City Attorney
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3 EXHIBIT "1"
4 Pipeline License Agreement
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PIPELINE LICENSE
THIS PIPELINE LICENSE ("License") is made to be effective 2014, (the
"Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") -a
and CITY OF SAN BERNARDINO, ("Licensee"). m
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In consideration of the mutual covenants contained herein, the parties agree to the following: o
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GENERAL @)
1. Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, o
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 c
maintain, in strict accordance with the drawings and specifications approved by Licensor as part 4n
of Licensee's application process (the "Drawings and Specifications"), One (1) pipeline, Thirty o
(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, E
between Mile Post 72.08 and 72.26 as shown on the attached Drawing No. 3-57427, dated April d
2, 2013, attached hereto as Exhibit"A"and incorporated herein by reference(the"Premises"). LL
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2. Term. This License shall commence on the Effective Date and shall continue for a period of m
twenty-five(25)years, subject to prior termination as hereinafter described. C
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. M
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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 g
Premises for any other purpose.
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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 a�
adjacent to the Premises without Licensor's prior written consent. Q
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COMPENSATION
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6. License Fee. Licensor waives the fees for the use of the Premises. ')
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7. Costs and Expenses. m
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7.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, N
but is not limited to, actual labor and material costs including all assignable additives, and Z
material and supply costs at current value where used. m
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7.2 Intentionally deleted. x
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8. Intentionally deleted.
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LICENSOR'S RESERVED RIGHTS
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9. Reserved Rights of Use. Licensor excepts and reserves the right, to be exercised by Licensor a
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; m
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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 v
Premises; or
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9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate,
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provided Licensor uses all commercially reasonable efforts to avoid material interference E
with the use of the Premises by Licensee for the purpose specified in Section 4 above. o
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10. Intentionally deleted. o
LICENSEE'S OPERATIONS E
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11. Maintenance of the Pipeline. n.
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11.1 Licensee shall notify Licensor's Roadmaster, at 740 Carnegie Drive, San Bernardino, m
California, 92408, telephone(909)386-4060(Office)or(951)538-4026 (Cell), at least ten U)
(10) business days prior to installation of the Pipeline and prior to entering the Premises n
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 M
entry.
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11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License c
at all times while on the Premises. •y
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11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of
Licensor's tracks to the other.
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11.4 Any contractors or subcontractors performing work on the Pipeline or entering the Q
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for N
purposes of this License. d
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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 a
centerline of any railroad track on the Premises unless Licensee has obtained prior n.
written approval from Licensor. Licensee shall, at its sole cost and expense, perform all "-
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activities on and about the Premises in such a manner as not at any time to endanger or m
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) s
the rights or interests of third parties. If ordered to cease using the Premises at any time W
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 E
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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 op
of such material that the Pipeline will not at any time endanger or interfere with (i) the o
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 U
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, c
Licensee shall, at Licensee's own cost and expense, restore the Premises to L
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substantially their state as of the time prior to the current maintenance activities, unless E
otherwise approved in advance by Licensor in writing. `o
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11.7 Licensor may direct one or more of its field engineers to observe or inspect the o
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 a
Drawings and Specifications or any other hazardous condition, Licensee shall U.
immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that z
Licensor has no duty or obligation to observe or inspect, or to halt work on, the Pipeline, it m
being solely Licensee's responsibility to ensure that the Pipeline is maintained in strict U)
accordance with the Drawings and Specifications and in a safe and workmanlike manner a
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, M
fail to properly perform its obligations under this Section 11, Licensor may, at its option N,
and sole expense, arrange for the performance of such work as it deems necessary for N
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 M
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 E
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maintain the pipeline or to make timely repairs. Q
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12. Boring and Excavation. _
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12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any CD
portion of the Premises, Licensee shall explore the proposed location for such work with r-
hand tools to a depth of at least three (3) feet below the surface of the ground to a
determine whether pipelines or other structures exist below the surface, provided, a
however, that in lieu of the foregoing, Licensee shall have the right to use suitable U.
detection equipment or other generally accepted industry practice (e.g., consulting with CO
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 W
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 m
Helpdesk at least thirty (30) business days prior to installation of the Pipeline. Upon E
receiving Licensee's timely request, Licensor will provide Licensee with the information
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Licensor has in its possession regarding any existing underground lines, utilities, and a
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 'a
Licensor prior to construction. This study is to determine if granular material is present, op
and to prevent subsidence during the installation process. If the investigation determines o
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 v
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
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terms thereof and hereof. E
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12.3 Any open hole, boring, or well, constructed on the Premises by Licensee shall be safely N
covered and secured at all times when Licensee is not working in the actual vicinity o
thereof. Following completion of that portion of the work, all holes or borings constructed
on the Premises by Licensee shall be: E
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12.3.1 filled in to surrounding ground level with compacted bentonite grout; or LL
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12.3.2 otherwise secured or retired in accordance with any applicable Legal m
Requirement. No excavated materials may remain on Licensor's property for co
more than ten (10) days, but must be properly disposed of by Licensee in a
accordance with applicable Legal Requirements. a
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LIABILITY AND INSURANCE M
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13. Liability and Indemnification. N
13.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated .°
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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 a,
of investigation, removal and remediation, and governmental oversight costs) Q
environmental or otherwise; and (c) "Licensee Parties" means Licensee or Licensee's y
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.
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13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL E-
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD Q,
HARMLESS INDEMNITEES FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES 'a
OF ANY NATURE, KIND, OR DESCRIPTION TO THE EXTENT ARISING OUT OF OR U-
RESULTING FROM: z
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13.2.1 LICENSEE'S OR CONTRACTOR'S OPERATIONS UNDER THIS LICENSE,
INCLUDING,WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, W
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13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
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13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
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13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES Q
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 'a
Licensee and its contractors, these instructions will be for the purpose of maintaining a op
safe workplace and protecting railroad operations. Under no circumstances shall the o
employees of Licensee or its contractors be considered employees of Licensor. W
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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 E
LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO ANY OTHER ALLEGED OR o
ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY y
INDEMNITEE. o
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13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit E
or other proceeding brought against any Indemnitee by any entity, relating to any matter d
covered by this License for which Licensee has an obligation to assume liability for and/or LL
save and hold harmless any Indemnitee. Licensee shall pay all costs and expenses z
incident to such defense, including, but not limited to, reasonable attorneys' fees, CD
investigators' fees, litigation and appeal expenses, settlement payments, and amounts
paid in satisfaction of judgments. a
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. LO
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15. Insurance. Unless allowed to self-insure by Licensor, Licensee shall, at its sole cost and N
expense, procure and maintain during the life of this License the following insurance coverage: c
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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 W
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 E
ISO occurrence or equivalent and include coverage for, but not limited to, the following: Q
• Bodily Injury and Property Damage N
• Personal Injury and Advertising Injury
• Fire legal liability 0
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• Products and completed operations m
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This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance: a.
• The definition of insured contract shall be amended to remove any exclusion or other N
limitation for any work being done within 50 feet of railroad property. m
• 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. W
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any insurance m
carried by Licensor. E
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It is agreed that the workers' compensation and employers' liability related exclusions in Q
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. m
This policy shall also contain the following endorsements, which shall be indicated on the .
certificate of insurance: v
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■ Waiver of subrogation in favor of and acceptable to Licensor.
■ Additional insured endorsement in favor of and acceptable to Licensor. o
■ Separation of insureds. E
■ The policy shall be primary and non-contributing with respect to any insurance o
1 carried by Licensor. Cn
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15.3 Workers'Compensation and Employers' Liability Insurance. This insurance shall include
coverage for, but not limited to: E
■ Licensee's statutory liability under the workers' compensation laws of the state(s) in a
j which the services are to be performed. If optional under state laws, the insurance u_
must cover all employees anyway. z
■ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 oa
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. M
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15.4 Railroad Protective Liability Insurance: This insurance shall name only Licensor as the N
Insured with coverage of at least$5,000,000 per occurrence and $10,000,000 in the c
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 E
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form CG 0035 12 03 and include the following: (a)an endorsement for the pollution Q
exclusion amendment; (b)an endorsement for limited seepage and pollution coverage; N
and (c)an endorsement for evacuation expense endorsement coverage. No other d
endorsements restricting coverage may be added without the written express consent of
the Licensor. J
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Proof of the existence of an applicable policy consistent with and including the terms a
specified herein must be provided to Licensor before Licensee or its contractor .
commences work. u_
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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 w
Contractor(s)named on the Declarations. Z.,
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15.5 Pollution Legal Liability (PLL) Insurance. Intentionally deleted, not required for this E
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permit.
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15.6 Other Requirements: Q
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 v
their right of subrogation against Licensor for loss of Licensee's owned or leased op
property, or property under Licensee's care, custody, or control. o
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15.6.3 With the exception of Railroad Protective Liability, Licensee is allowed to self- v
insure without the prior written consent of Licensor. Any self-insured retention or Ua
other financial responsibility for claims shall be covered directly by Licensee in =
lieu of insurance. Any and all Licensor liabilities that would otherwise, in
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accordance with the provisions of this License, be covered by Licensee's E
insurance will be covered as if Licensee elected not to include a self-insured 0
retention or other financial responsibility for claims. CO
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15.6.4 Intentionally deleted. Y
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15.6.5 Any insurance policy shall be written by a reputable insurance company d
acceptable to Licensor or with a current Best's Guide Rating of A- and Class VII U_
or better, and authorized to do business in the state(s) in which the service is to Cn
be provided. m
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. M
15.6.7 Licensee represents that this License has been thoroughly reviewed by N
Licensee's insurance agent(s)/broker(s), who have been instructed by Licensee =
to procure the insurance coverage required by this License. Allocated Loss 0
Expense shall be in addition to all policy limits for coverages referenced above. >
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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 E
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practices in the railroad industry and underwriting practices in the insurance Q
industry. N
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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 S
the subcontractor shall release, defend and indemnify Licensor to the same Q,
extent and under the same terms and conditions as Licensee is required to a.
release, defend and indemnify Licensor herein. U.
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15.6.10 Failure to provide evidence as required by this Section 15 shall entitle, but not 00
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 W
Licensee's obligations hereunder.
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15.6.11 The fact that insurance (including, without limitation, self-insurance) is obtained E
by Licensee shall not be deemed to release or diminish the liability of Licensee,
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including, without limitation, liability under the indemnity provisions of this a
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
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16. Compliance with Laws, Rules, and Regulations. o
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16.1 Licensee shall observe and comply with any and all laws, statutes, regulations, U
ordinances, orders, covenants, restrictions, or decisions of any court of competent E
jurisdiction ("Legal Requirements") relating to the maintenance and use of the Pipeline o
and the use of the Premises. E
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16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s)to comply U)
with all of Licensor's applicable safety rules and regulations. Licensee must ensure that o
each of its employees, contractors, agents or invitees entering upon the Premises j
completes the safety orientation program at the Website"www.contractororientation.com', E
(the "Safety Orientation") within one year prior to entering upon the Premises. n(D
Additionally, Licensee must ensure that each and every employee of Licensee, its LL
contractors, agents and invitees possess a card certifying completion of the Safety U)
Orientation prior to entering upon the Premises. Licensee must renew the Safety m
Orientation annually. U)
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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") LO
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and such other rights, licenses, permits, authorizations, and approvals (including without
limitation, any necessary local, state, federal or tribal authorizations and environmental N
permits)that are necessary in order to permit Licensee to maintain, own and operate the c
Pipeline and otherwise to perform its obligations hereunder in accordance with the terms °
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and conditions hereof. 2
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16.4 Licensee shall either require that the initial stated term of each such Rights be for a w
period that does not expire, in accordance with its ordinary terms, prior to the last day of E
the term of this License or, if the initial stated term of any such Right expires in Q
I accordance with its ordinary terms on a date earlier than the last day of the term of this N
License, Licensee shall, at its cost, exercise any renewal rights thereunder, or otherwise
CD
acquire such extensions, additions and/or replacements as may be necessary, in order to 0
cause the stated term thereof to be continued until a date that is not earlier than the last J
a)
day of the term of this License. 5
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16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to a
! own, operate or use the Pipeline in accordance with the terms and conditions of this N
M
! License, this License thereby shall automatically expire upon such expiration or m
termination of the Right.
17. Environmental. x
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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 E
t
Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act,
the Oil Pollution Act, the Hazardous Materials Transportation Act, and CERCLA Q
(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
8
Packet Pg.199
5.N.b
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 m
Pipeline on Licensor's property. Licensee agrees periodically to furnish Licensor with o
proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this
Section 17.2. V
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 E
governmental authorities charged with enforcing Environmental Laws with respect to 0
Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond N
to any release on, from, or affecting the Premises. Licensee also shall give Licensor 0
immediate notice of all measures undertaken on behalf of Licensee to investigate,
remediate, respond to or otherwise cure such release or violation. E
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17.4 If Licensor has notice from Licensee or otherwise of a release or violation of a
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Environmental Laws arising in any way with respect to the Pipeline which occurred or z
may occur during the term of this License, Licensor may require Licensee, at Licensee's op
sole risk and expense, to take timely measures to investigate, remediate, respond to or U)
otherwise cure such release or violation affecting the Premises or Licensor's right-of-way. a
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
M
0 environment and shall take whatever action is necessary to prevent injury to persons, v
property, or the environment arising out of such conditions or activities; provided, N
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. >
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DISCLAIMER OF WARRANTIES
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18. No Warranties. Q
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18.1 LICENSER'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 J
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WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL Q
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR a-
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT U-
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR z
FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY w
KIND, EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR
OTHER RIGHTS GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT a=i
LICENSEE'S MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE E
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PIPELINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND U
ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY LEASES, Q
USE RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enioyment. LICENSOR DOES NOT WARRANT ITS TITLE TO
9
Packet Pg.200
S.N.b
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 'a
rail corridor, Licensor shall not be liable (i)to refund Licensee any compensation paid hereunder, m
except for the pro-rata part of any recurring charge paid in advance, or (ii) for any damage o
Licensee sustains in connection with the eviction. W
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LIENS AND TAXES
21. Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of f0
0
any maintenance, alterations or repairs done, suffered or permitted to be done by Licensee on E
Premises. Licensor is hereby authorized to post any notices or take any other action upon or with `o
respect to Premises that is or may be permitted by law to prevent the attachment of any such N
liens to Premises; provided, however, that failure of Licensor to take any such action shall not o
relieve Licensee of any obligation or liability under this Section 21 or any other Section of this
License. E
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22. Intentionally deleted. LL
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DEFAULT,TERMINATION,AND SURRENDER m
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: 'O
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23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations N
contained in this License and Licensee fails to cure said default within thirty (30) days c
after written notice is provided to Licensee by Licensor, or in case of any assignment or
.N
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. E
Q
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the N
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. m
c
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right Q,
to terminate this License for any subsequent default or defaults, nor shall any such a
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 m
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 W
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 m
notice of termination upon the other party. Such termination shall not release either party E
hereto from any liability or obligation under the License, whether of indemnity or
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otherwise, resulting from any acts, omissions or events happening prior to the date of a
termination or thereafter in case by the terms of the License it is provided that anything
shall or may be done after termination hereof.
10
Packet Pg.201
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 op
Licensee to the same extent as if each such successor and assign was named a party to this o
License.
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26. Assignment. S
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26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, E
obligation, or interest herein (either voluntarily or by operation of law, merger, or o
otherwise) without the prior written consent of Licensor, which consent may not be
unreasonably withheld or delayed by Licensor. Any attempted assignment by Licensee o
in violation of this Section 26 shall be a breach of this License and, in addition, shall be r
voidable by Licensor in its sole and absolute discretion.
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26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any LL
sale of the equity interests of Licensee following which the equity interest holders of M
Licensee immediately prior to such sale own, directly or indirectly, less than 50% of the m
combined voting power of the outstanding voting equity interests of Licensee, (b) any co
sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent such a
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 M
consolidation following which the equity interest holders of Licensee immediately prior to
such reorganization, recapitalization, merger or consolidation own, directly or indirectly, at N
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,
.N
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. E
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26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this N
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 d
enjoyment of the rights and privileges granted under this License shall be deemed to be c
the Purported Transferee's agreement to be bound by all of the terms and provisions of Q.
this License, including but not limited to the obligation to comply with the provisions of 'a
Section 15 above concerning insurance requirements. In addition to and not in limitation u.
of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend m
and hold harmless Licensor for all Liabilities of any nature, kind or description of any r
person or entity directly or indirectly arising out of, resulting from or related to(in whole or s
in part)a Purported Assignment. w
26.4 The provisions of this Section 26 shall survive the expiration or earlier termination of this
License.
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27. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one Q
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
11
ticket Pg.202
f
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 m
Fort Worth, TX 76155 0
Attn: Permits/Licenses
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with a copy to: BNSF Railway Company
2500 Lou Menk Dr.—AOB3 =
Fort Worth, TX 76131 0
Attn: Senior Manager Real Estate E
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If to Licensee: City of San Bernardino CO
City Manager o
300 N. "D" Street
San Bernardino, California 92418
28. Survival. Neither termination nor expiration will release either party from any liability or obligation U-
under this License, whether of indemnity or otherwise, resulting from any acts, omissions or y
events happening prior to the date of termination or expiration, or, if later, the date when the m
Pipeline and the other Improvements are removed and the Premises are restored to its condition U)
as of the Effective Date. a
29. Recordation. It is understood and agreed that this License shall not be placed or allowed to be
placed on public record. M
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30. Applicable Law. All questions concerning the interpretation or application of provisions of this N
License shall be decided according to the substantive laws of the State of California without o
regard to conflicts of law provisions. •y
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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 0
ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the Q
remainder of such provision or any other provision of this License. N
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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 m
other agreements between the parties hereto relating to Licensee's use of the Premises as c
described herein. However, nothing herein is intended to terminate any surviving obligation of Q,
Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written a
agreement between the parties. "-
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33. Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and m
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties. W
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. E
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35. Interpretation. a
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
12
Packet Pg.203
5.N.b
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. op
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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 v
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 S
that person's successors and permitted assigns; "hereof', "herein", "hereunder" and `L°
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 o
references to the masculine or feminine as the context requires; references to the plural y
include the singular and vice versa; and references to this License or other documents o
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 a
purposes, be deemed an original but which together shall constitute one and the same LL
instrument, and the signature pages from any counterpart may be appended to any other CO
counterpart to assemble fully executed documents, and counterparts of this License may also be m
exchanged via email or electronic facsimile machines and any email or electronic facsimile of any Cn
i 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. m
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LICENSOR: V
BNSF RAILWAY COMPANY a Delaware corporation =
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By: Jones Lang LaSalle Brokerage, Inc., E
4300 Amon Carter Blvd, Suite 100 0
Fort Worth,TX 76155 vn
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By: E
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Title: Vice President-National Accounts U-
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CITY OF SAN BERNARDINO
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By: 300 N. "D" Street =
San Bernardino, California 92418 c
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Title: City Manager
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LOCATION OF
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CITY OF SAN BERNARDINO BNSF PIPELINE LICENSE AGREEMENT FOR A STORM
PUBLIC WORKS DEPARTMENT DRAIN, GENERALLY LOCATED WITHIN BNSF RIGHT
*Banarino REAL PROPERTY SECTION OF WAY WESTERLY CAJON BOULEVARD AND
SOUTHEASTERLY OF GLEN HELEN PARKWAY, IN
Indicates un-incorporated areas within City's THE CITY OF SAN BERNARDINO.
® Sphere of Influence
Created by: Ryan Sandoval Packet Pg. 207