HomeMy WebLinkAbout05.Q- Public Works RESOLUTION (ID#2922) DOC ID: 2922 B
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Robert Eisenbeisz M/CC Meeting Date: 03/03/2014
Prepared by: Michael Grubbs, (909) 384-
5140
Dept: Public Works Ward(s): 1,3
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Approving License
Agreement No. 14-49405 with the Burlington Northern Santa Fe (BNSF) Railway for
Maintenance of Temporary Shoring Under the Mt. Vernon Viaduct Between Second Street and
Fourth Street(BR#54C0066). (#2922)
Current Business Registration Certificate: Not Applicable
Financial Impact:
BNSF has agreed to waive all fees associated with this License Agreement. Therefore, there will
be no financial impact.
Funding is available in Account No. 264-160-5504-7947-0025 for installation and maintenance
of the shoring.
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
06/07/04 Resolution No. 2004-154 adopted awarding contract to Yeager Skanska, Inc. for
installation of temporary support for the Mt. Vernon Bridge over the BNSF RR.
10/06/08 Resolution No. 2008-382 adopted awarding contract to Skanska USA Civil for
installation of additional temporary support for the Mt. Vernon Bridge over the BNSF
Railroad (BR#54C0066).
11/02/09 Resolution No. 2009-350 adopted approving License Agreement No. 09-37471 with
BNSF for the maintenance of temporary shoring under the Mt. Vernon Viaduct
between 2nd Street and 4th Street(Br#54C0066).
02/18/14 Resolution adopted awarding a Contract to GMZ Engineering for Removal of
Existing Shoring and Installation of Replacement Temporary Shoring for Mount
Vernon Avenue Overcrossing at the BNSF Yard, Bridge No. 54C-0066.
Background:
On June 3, 2004, Caltrans issued a report, which resulted from an in-depth "fracture critical"
F steel inspection on the Mount Vernon Bridge. During the inspection, Caltrans Inspectors
determined that various steel members were cracked. These cracks occurred in two areas, one at
the north end of the bridge under the southbound lanes and the other towards the south end of the
bridge under the northbound lanes.
Caltrans recommended immediate closure of the entire bridge. The City concurred and
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2922
completed the closure on June 4, 2004. Shoring was subsequently installed under terms of an
emergency contract with Yeager Skanska (now called Skanska USA Civil), allowing the bridge
to be reopened to traffic.
On September 21, 2004, a License Agreement with the BNSF railroad was executed to allow
installation and maintenance of temporary structural supports (shoring). Installation of the
shoring was completed on October 4, 2004, and the bridge was reopened to traffic, except that
large trucks are currently prohibited from using the bridge. Under terms of the License
Agreement,the City has performed annual inspection and maintenance of the shoring.
On May 16, 2008, during a follow-up inspection, Caltrans inspectors identified new cracks in
two additional girders. Staff immediately engaged Morris Engineering, Inc. to prepare design
plans for additional shoring needed at the location of the newly discovered cracks.
A contract was awarded to Skanska on October 6, 2008, to install additional shoring to support
the bridge at the location of the newly discovered cracks. That work was completed in
November of 2008.
On November 2, 2009, the City Council approved a new License Agreement No. 09-37471 with
the BNSF Railroad for the shoring. That Agreement expired on December 31, 2011; however,
the BNSF Railroad is agreeable to executing a new License Agreement which will extend for 10
years or until the bridge is replaced,whichever occurs first.
Most of the shoring has been in place since 2004 and the remainder since 2008. The original
design of the shoring assumed it would be in place for 30 months while a project to replace the
bridge was processed. Caltrans, after conducting their regular inspections of the bridge, has filed
reports indicating concerns about leaving the shoring in place for a duration that is longer than
intended by the designers.
On February 18, 2014, the Mayor and Common Council awarded a contract to GMZ Engineering
for removal of existing shoring and installation of replacement shoring. Work on the project is
expected to start in March 2014. This License Agreement will need to be approved by both
parties prior to start of any work in the BNSF yard.
The bridge will need to be intermittently closed to all traffic during the replacement of the
existing shoring. The contractor will be responsible for providing traffic control and detour
signing.
City Attorney Review:
Supporting Documents:
reso 2922 (PDF)
Mt Vernon Bridge Shoring BNSF Permit 01-31-14 (PDF)
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1 RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING
LICENSE AGREEMENT NO. 14-49405 WITH THE BURLINGTON NORTHERN
3 SANTA FE (BNSF) RAILWAY FOR MAINTENANCE OF TEMPORARY SHORING
4 UNDER THE MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH
STREET (BR 454C0066). L
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WHEREAS, on November 2, 2009, the City Manager executed License Agreement W
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No. 09-37471 with BNSF for the maintenance of temporary shoring under the Mt. Vernon c
8 Viaduct between 2nd Street and 4th Street(Br#54C0066), and d
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9 WHEREAS, said License Agreement expired on December 31, 2011, subsequent to m
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10 which it became no longer operable, and a�
11 WHEREAS,the City is approximately 2 years away from completing final design and
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13 right-of-way acquisition for removal of the shoring and construction of a replacement bridge;
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WHEREAS, BNSF is agreeable to a new License Agreement to allow the shoring to
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16 remain for 10 years or until the bridge is replaced, whichever is sooner, subject to adequate a
17 inspection and maintenance by the City.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
19 CITY OF SAN BERNARDINO AS FOLLOWS: N
20 SECTION 1. The City Manager is hereby authorized and directed to execute the N
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attached License Agreement No. 14-49405 on behalf of the City marked as Exhibit "A" and tn
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made a part hereof.
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24 SECTION 2. Said License Agreement shall be valid for a period of 10 years or until
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25 the bridge is replaced,whichever is sooner,unless earlier terminated as provided.therein.
26 SECTION 4. The authorization to execute the above-referenced Agreement is
27 rescinded if it is not executed within ninety (90) days of the passage of this resolution.
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I RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING
LICENSE AGREEMENT NO. 14-49405 WITH THE BURLINGTON NORTHERN
2 SANTA FE (BNSF) RAILWAY FOR MAINTENANCE OF TEMPORARY SHORING
UNDER THE MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH
3 STREET (BR454C0066).
4 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
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and Common Council of the City of San Bernardino at a meeting
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thereof,held on the day of ,2014,by the following vote,to wit: o
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8 Council Members: AYES NAYS ABSTAIN ABSENT
9 MARQUEZ O
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BARRIOS >
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12 VALDIVIA .°
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13 SHORETT m
14 NICKEL 3
'= 15 JOHNSON
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16 MULVIHILL Q
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19 Georgeann Hanna,City Clerk o
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20 The foregoing resolution is hereby approved this day of , 2014.
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22 R. CAREY DAVIS,Mayor
23 City of San Bernardino
24 Approved as to form:
25 GARY D. SAENZ, a
City Attorney
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By:
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14-49405
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LICENSE
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THIS LICENSE ("License"), made as of the day of , 2014,
("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Licensor")and CITY OF SAN BERNARDINO, a municipality("Licensee"). -�
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NOW THEREFORE, in consideration of the mutual covenants contained herein, the o
parties agree to the following: L
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GENERAL
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1. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, °
and estates of third parties, including, without limitation, any leases, licenses, N
easements, liens or other encumbrances, and upon the terms and conditions set forth Z
below, to use the area of Licensor's property shown on the attached Drawing no. 1- m
45557, dated January 15, 2009, and revised on February 6, 2009 attached hereto,
marked Exhibit "A", and made a part hereof, situated at or near San Bernardino, County =
of San Bernardino, State of California, Line Segment 7600, Mile Post 81.55("Premises") E
for the purposes specified in Section 3 below.
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2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, ¢
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements. ;'
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3. Licensee shall use Premises exclusively for the City and its contractors to maintain the N
temporary shoring and support structures on the BNSF property for the Mt. Vernon N
Bridge. Licensee shall not use the Premises for any other purpose whatsoever. --
- Licensee shall not use or store hazardous substances, as defined by the
Comprehensive Environmental Response, Compensation, and Liability Act, as amended r
("CERCLA") or petroleum or oil as defined by applicable Environmental Laws on the
Premises.
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4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest a
in the Premises, Licensor shall not be liable to refund Licensee any compensation paid LL
hereunder or for any damage Licensee sustains in connection therewith. Z
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't 5. Any contractors or subcontractors performing work on the Premises, or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for o
purposes of this License. in
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6. This License shall commence on the Effective Date and shall continue for ten (10) o
years, subject to prior termination as hereinafter described. E
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COMPENSATION
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7. (a) Licensor will waive the fees for this license.
Form 423; Rev.04/26/05
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(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefor)for all costs and expenses incurred by Licensor in connection with L
Licensee's use of the Premises, including but not limited to the furnishing of
Licensors Flagman and any vehicle rental costs incurred. The cost of flagger
services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the Licensee. The estimated cost for one (1) m
flagger is $800.00 for an eight (8) hour basic day with time and one-half or o
double time for overtime, rest days and holidays. The estimated cost for each F
flagger includes vacation allowance, paid holidays, Railway and unemployment >
insurance, public liability and property damage insurance, health and welfare
benefits, transportation, meals, lodging and supervision. Negotiations for
Railway labor or collective bargaining agreements and rate changes authorized ,0
by appropriate Federal authorities may increase actual or estimated flagging N
rates. The flagging rate in effect at the time of performance by the Contractor m
hereunder will be used to calculate the actual costs of flagging pursuant to this
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(c) All invoices are due thirty (30) days after the date of invoice. In the event that a
Licensee shall fail to pay any monies due to Licensor within thirty(30)days after E
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual Q
rate equal to (i) the greater of (a) for the period January 1 through June 30, the N
prime rate last published in The Wall Street Journal in the preceding December
plus two and one-half percent (2 1/2%), and for the period July 1 through J
December 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent
(12%), or(ii)the maximum rate permitted by law, whichever is less. N
COMPLIANCE WITH LAWS
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8. (a) Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants, restrictions, or decisions of any court of E
competent jurisdiction ("Legal Requirements") relating to the use of the a
Premises_
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(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to m
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall o
require its contractor to complete the safety-training program at the following
Internet Website "http://contractororientation.com". This training must be a�
completed no more than one year in advance of Licensee's entry on the -a
Premises. m`
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DEFINITION OF COST AND EXPENSE
g. For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but
is not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used. E
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Form 423;Rev.04/26105
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RIGHT OF LICENSOR TO USE c'
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10. Licensor excepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
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(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe, m
power, communication lines and appurtenances and other facilities or structures o
of like character upon, over, under or across the Premises; L
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(b) to construct, maintain, renew, use, operate, change, modify and relocate any
tracks or additional facilities or structures upon, over, under or across the
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Premises; or °
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(c) to use the Premises in any manner as the Licensor in its sole discretion deems m
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose 3
specified in Section 3 above.
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LICENSEE'S OPERATIONS
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11. (a) Licensee shall notify Licensor's Roadmaster at 740 Carnegie Drive, San Q
Bernardino, California, 92408, telephone (909) 386-4061 (Office) or (951) 712- c
9381 (Cell), at least ten (10) business days prior to entering the Premises and
prior to entering the Premises for any subsequent maintenance thereon (if
applicable). After completion of use of the Premises for the purpose specified in N
Section 3, Licensee shall notify Licensor in writing that such use has been N
completed.
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(b) In performing the work described in Section 3, Licensee shall use only public M
roadways to cross from one side of Licensor's tracks to the other.
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12. (a) Under no conditions shall Licensee be permitted to conduct any tests, E
investigations or any other activity using mechanized equipment and/or a
machinery, or place or store any mechanized equipment, tools or other U-
materials, within twenty-five(25)feet of the centerline of any railroad track on the z
Premises unless Licensee has obtained prior written approval from Licensor. m
Licensee shall, at its sole cost and expense, perform all activities on and about
the Premises in such a manner as not at any time to be a source of danger to or o
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any -a
hazardous condition, Licensee shall immediately do so. Notwithstanding the mL
foregoing right of Licensor, the parties agree that Licensor has no duty or o
obligation to monitor Licensee's use of the Premises to determine the safe L
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, W
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(b) Licensee shall, at its sole cost and expense and subject to the supervision of
Licensor's Roadmaster, locate, construct and maintain the temporary shoring L
and support structures on the BNSF property for the Mt. Vernon Bridge in such a
manner and of such material that it will not at any time be a source of danger to
or interference with the present or future tracks, roadbed and property of
Licensor, or the safe operation of its railroad. If at any time Licensee shall, in the m
judgment of Licensor, fail to perform properly its obligations under this C
paragraph, Licensor may, at its option, itself perform such work as it deems c
necessary for the safe operation of its railroad, and in such event Licensee
agrees to pay, within fifteen (15) days after bill shall have been rendered
therefor, the cost so incurred by Licensor, but failure on the part of Licensor to
perform the obligations of Licensee shall not release Licensee from liability o
hereunder for loss or damage occasioned thereby. U-
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13. During the construction and any subsequent maintenance performed on the temporary in
shoring and support structures on the BNSF property for the Mt. Vernon Bridge, 3
Licensee shall perform such work in a manner to preclude damage to the property of
Licensor, and preclude interference with the operation of its railroad. The construction d
of the temporary shoring and support structures on the BNSF property for the Mt. E
Vernon Bridge shall be completed within one (1) year of the Effective Date. Upon
completion of the construction of the temporary shoring and support structures on the a
BNSF property for the Mt. Vernon Bridge and after performing any subsequent N
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore
Licensor's premises to their former state as of the Effective Date of this License. J
14. If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the temporary shoring and support structures on the BNSF property for the Mt.
Vernon Bridge, Licensee shall, at its sole expense, within thirty (30)days after receiving
written notice from Licensor to such effect, make such changes in the temporary shoring C?
and support structures on the BNSF property for the Mt. Vernon Bridge as in the sole o
discretion of Licensor may be necessary to avoid interference with the proposed use of
Licensor's rail corridor, including, without limitation, the relocation of the existing or the aD
construction of a new temporary shoring and support structures on the BNSF property a.
for the Mt. Vernon Bridge. u
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15. (a) Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the N
ground to determine whether pipelines or other structures exist below the
surface, provided, however, that in lieu of the foregoing, the Licensee shall have
the right to use suitable detection equipment or other generally accepted industry m
practice (e g„ consulting with the Underground Services Association) to c
determine the existence or location of pipelines and other subsurface structures °c
prior to drilling or excavating with mechanized equipment. Upon Licensee's
written request, which shall be made thirty (30) business days in advance of
Licensee's requested entry on the Premises, Licensor will provide Licensee any
information that Licensor's Engineering Department has in its possession =
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concerning the existence and approximate location of Licensor's underground E
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1449405
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utilities and pipelines on the Premises. Prior to conducting any such boring work,
the Licensee will review all such material. Licensor does not warrant the =
accuracy or completeness of information relating to subsurface conditions and L
Licensee's operations will be subject at all times to the liability provisions herein.
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(b) For all bores greater than 26-inch diameter, and at a depth less than 10.0 feet .�
below bottom of rail, a soil investigation will need to be performed by the m
Licensee and reviewed by Licensor prior to construction. This study is to =
determine if granular material is present, and to prevent subsidence during the c
installation process. If the investigation determines in Licensor's reasonable >
opinion that granular material is present, Licensor may select a new location for _
Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material. o
Once Licensor has approved any such remedial plan in writing, Licensee shall, at U.
its sole cost and expense, carry out the approved plan in accordance with all m
terms thereof and hereof.
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16. Any open hole, boring or well constructed upon Premises by Licensee shall be safely 3
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 E
constructed on the Premises by Licensee shall be: C'
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(a) filled in to surrounding ground level with compacted bentonite grout; or N
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(b) otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on the Premises for more
than ten (10) days, but must be properly disposed of by Licensee in accordance
with applicable Legal Requirements.
17. Upon completion of Licensee's work on the Premises or upon termination of this IL
". License, whichever shall occur first, Licensee shall, at its sole cost and expense: "'
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(a) remove all of its equipment from the Premises; E
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(b) remove the temporary shoring and support structures on the BNSF property for a
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the Mt. Vernon Bridge at the Licensors sole discretion; z
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(c) report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises; o
(d) remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and a
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(e) leave the Premises in the condition which existed as of the Effective Date of this o
License. _
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18. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License
at all times while on the Premises.
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LIABILITY
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19. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL N
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND
LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS,
ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, m
SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, _
"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, F
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, >
CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES w
(INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES
AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND —
GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE U)
(COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION m
OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF,
RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(i) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS E
ENVIRONMENTAL PROVISIONS,
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(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS y
LICENSE,
to LICENSEE'S OCCUPATION AND USE OF THE PREMISES, J
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(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE N
PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR
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(v) ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S `?
OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS,
OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF E
THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL a
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EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN m
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO o
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO ui
THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
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(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, 0
NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL
NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS >
WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR
OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", c
"ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE E
TEMPORARY SHORING AND SUPPORT STRUCTURES ON THE BNSF
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PROPERTY FOR THE MT. VERNON BRIDGE FOR THE PURPOSES OF
CERCLA OR OTHER ENVIRONMENTAL LAWS. LICENSEE WILL a,
INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM
ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE °�
INDEMNITEES. LICENSEE FURTHER AGREES THAT THE USE OF THE
PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY -2
WAY SUBJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A m
COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND o
EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO >
EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL
CONDITION OF THE PREMISES. L-
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(c) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER z
AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED m
NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD
HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF
ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY
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INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS` E
LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY a
OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT a
THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS a�
INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA
CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY
FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT
NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION N
ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE N
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR
FEDERAL STATUTE.
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(c) Upon written notice from Licensor, Licensee agrees to assume the defense of
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any lawsuit or other proceeding brought against any Indemnitee by any entity, E
relating to any matter covered by this License for which Licensee has an CD
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obligation to assume liability for and/or save and hold harmless any Indemnitee.
Licensee shall pay all costs incident to such defense, including, but not limited to, N
attorneys' fees, investigators' fees, litigation and appeal expenses, settlement m
payments, and amounts paid in satisfaction of judgments.
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PERSONAL PROPERTY WAIVER N
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20. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE m`
RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY o
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. >
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Form 423; Rev.04/26/05 `t
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INSURANCE a,
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21. Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage: Cn
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A. Commercial General Liability Insurance. This insurance shall contain broad `
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form contractual liability with a combined single limit of a minimum of$2,000,000 =
each occurrence and an aggregate limit of at least$4,000,000. Coverage must 0
be purchased on a post 1998 ISO occurrence or equivalent and include
coverage for, but not limited to, the following:
♦ Bodily Injury and Property Damage o
Personal Injury and Advertising Injury U-
♦ Fire legal liability z
4 Products and completed operations °�°
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
The employee and workers compensation related exclusions in the above
policy shall not apply with respect to claims related to railroad employees.
♦ The definition of insured contract shall be amended to remove any exclusion a
or other limitation for any work being done within 50 feet of railroad property.
♦ Any exclusions related to the explosion, collapse and underground hazards
shall be removed.
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No other endorsements limiting coverage may be included on the policy. a
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B. Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for, but M
not limited to the following:
♦ Bodily injury and property damage °
♦ Any and all vehicles owned, used or hired E
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C. Workers Compensation and Employers Liability Insurance. This insurance N
shall include coverage for, but not limited to: z
♦ Licensee's statutory liability under the worker's compensation laws of the a,
state(s) in which the work is to be performed. If optional under State law, the =
insurance must cover all employees anyway. �Lo
♦ Employers' Liability (Part B)with limits of at least$500,000 each accident, U)
$500,000 by disease policy limit, $500,000 by disease each employee.
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D. Railroad Protective Liability Insurance. If further maintenance of the °0
temporary shoring and support structures on the BNSF property for the Mt. 0
Vernon Bridge is needed at a later date, an additional Railroad Protective
Liability Insurance Policy shall be required. The policy shall be issued on a >
standard ISO form CG 00 35 10 93 and include the following:
♦ Endorsed to include the Pollution Exclusion Amendment(ISO form CG 28 31 c
10 93)
♦ Endorsed to include the Limited Seepage and Pollution Endorsement.
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Form 423;Rev.04/26/05 Q
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♦ Endorsed to include Evacuation Expense Coverage Endorsement.
♦ No other endorsements restricting coverage may be added.
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Other Requirements:
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Where allowable by law, all policies (applying to coverage listed above) shall contain no C
exclusion for punitive damages and certificates of insurance shall reflect that no m
exclusion exists. _
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Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its insurers, through policy endorsement, waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right of ,o
recovery, and its insurers also waive their right of subrogation against Licensor for loss LL
of its owned or leased property or property under its care, custody, or control. m
Licensee's insurance policies through policy endorsement, must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
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All policy(ies) required above (excluding Workers Compensation and if applicable, Q
Railroad Protective) shall include a severability of interest endorsement and shall name N
Licensor and Staubach Global Services - RR, Inc. as an additional insured with respect
to work performed under this agreement. Severability of interest and naming Licensor J
and Staubach Global Services- RR, Inc. as additional insureds shall be indicated on the
certificate of insurance.
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Licensee is not allowed to self-insure without the prior written consent of Licensor. If v
granted by Licensor, any deductible, self-insured retention or other financial IL
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 o
Agreement, be covered by Licensee's insurance will be covered as if Licensee elected E
not to include a deductible, self-insured retention, or other financial responsibility for (D
claims. U.
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Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable m
certificate(s)of insurance including an original signature of the authorized representative Cn
evidencing the required coverage, endorsements, and amendments. The policy(ies) o
shall contain a provision that obligates the insurance company(ies) issuing such
policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-
renewal, substitution or material alteration. This cancellation provision shall be indicated a
on the certificate of insurance. In the event of a claim or lawsuit involving Railroad m
arising out of this agreement, Licensee will make available any required policy covering o
such claim or lawsuit. E
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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. d
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Licensee represents that this License has been thoroughly reviewed by Licensee's o,
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the c
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
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addition to all policy limits for coverages referenced above.
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Not more frequently than once every five years, Licensor may reasonably modify the m
required insurance coverage to reflect then-current risk management practices in the =
railroad industry and underwriting practices in the insurance industry. 0
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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 o
subcontractor shall release, defend and indemnify Licensor to the same extent and LL
under the same terms and conditions as Licensee is required to release, defend and Z
indemnify Licensor herein. M
Failure to provide evidence as required by this section shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does not
comply with this section shall not operate as a waiver of Licensee's obligations E
hereunder. °'
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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
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coverage.
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For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe NT
Corporation", "BNSF Railway Company' and the subsidiaries, successors, assigns and r
affiliates of each.
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22. (a) Licensee shall strictly comply with all federal, state and local environmental laws a.
and regulations in its use of the Premises, including, but not limited to, the z
Resource Conservation and Recovery Act, as amended (RCRA), the Clean m
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall o
not maintain a treatment, storage, transfer or disposal facility, or underground N
storage tank, as defined by Environmental Laws on the Premises. Licensee
shall not release or suffer the release of oil or hazardous substances, as defined -�
by Environmental Laws on or about the Premises. m`
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(b) Licensee shall give Licensor immediate notice to Licensor's Resource c
Operations Center at (840) 832-5452 of any release of hazardous substances on >
or from the Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts
to promptly respond to any release on or from the Premises. Licensee also shall E
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Form 423; Rev.04/26/05 Q
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14-49405
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give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or
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violation. o
(c) In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the temporary
shoring and support structures on the BNSF property for the Mt. Vernon Bridge m
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 °c
to investigate, remediate, respond to or otherwise cure such release or violation
affecting the Premises or Licensor's right-of-way.
(d) Licensee shall promptly report to Licensor in writing any conditions or activities o
upon the Premises known to Licensee which create a risk of harm to persons, U-
property or the environment and shall take whatever action is necessary to Z
prevent injury to persons or property arising out of such conditions or activities; 0°
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on it by this License. Licensee 3
shall promptly respond to Licensor's request for information regarding said
conditions or activities. 1=
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ALTERATIONS a
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23. Licensee may not make any alterations of the Premises or permanently affix anything to
0 the Premises or any buildings or other structures adjacent to the Premises without J
Licensor's prior written consent.
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NO WARRANTIES
24. LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR °
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE E
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR LL
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, z
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY m
OR FITNESS FOR A PARTICULAR PURPOSE. _
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QUIET ENJOYMENT
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25. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR
UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE m
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. c
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DEFAULT >
26. If default shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment or transfer of this License by operation of
law, Licensor may, at its option, terminate this License by serving five (5) days' notice in U
Form 423;Rev.04/26/05 Q
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14-49405
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writing upon Licensee. Any waiver by Licensor of any default or defaults shall not W
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 o
Section of this License. The remedy set forth in this Section 26 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have at law or in equity. a)
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LIENS CO
27. Licensee shall promptly pay and discharge any and all liens arising out of any c
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on Premises. Licensor is hereby authorized to post any notices or take any other action
upon or with respect to Premises that is or may be permitted by law to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this U.
Section 27 or any other Section of this License. m
TERMINATION 3
28. This License may be terminated by Licensor, at any time, by serving thirty (30) days' E
written notice of termination upon Licensee. This License may be terminated by a
Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in
CD
effect. Upon expiration of the time specified in such notice, this License and ail rights of Q
Licensee shall absolutely cease. c
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29. If Licensee fails to surrender to Licensor the Premises, upon any termination of this
License, all liabilities and obligations of Licensee hereunder shall continue in effect until c"
the Premises are surrendered. Termination shall not release Licensee from any liability
or obligation, whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination.
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ASSIGNMENT
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30. Neither Licensee, nor the heirs, legal representatives, successors or assigns of E
Licensee, nor any subsequent assignee, shall assign or transfer this License or any a
interest herein, without the prior written consent and approval of Licensor, which may be U-
withheld in Licensor's sole discretion. m
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NOTICES
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31. Any notice required or permitted to be given hereunder by one party to the other shall be U)
in writing and the same shall be given and shall be deemed to have been served and
given if (1) placed in the United States mail, certified, return receipt requested, or (ii) :2
deposited into the custody of a nationally recognized overnight delivery service, m`
addressed to the party to be notified at the address for such party specified below, or to C
such other address as the party to be notified may designate by giving the other party L
no less than thirty(30)days' advance written notice of such change in address. >
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If to Licensor: Staubach Global Services- RR, Inc. _
3017 Lou Menk Drive, Suite 100 L
Fort Worth, TX 76131 N
Attn: Licenses/Permits
with a copy to: BNSF Railway Company m
2500 Lou Menk Dr. —A0133 =
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
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If to Licensee: City of San Bernardino
300 North "D" Street ,0
San Bernardino, CA 92418-0001 U-
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SURVIVAL m
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32. Neither termination nor expiration will release either party from any liability or obligation 3
under this License, whether of indemnity or otherwise, resulting from any acts, a
omissions or events happening prior to the date of termination or expiration, or, if later, E
the date when the Premises are restored to its condition as of the Effective Date. 2
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RECORDATION N
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33. It is understood and agreed that this License shall not be placed on public record.
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APPLICABLE LAW N
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34. All questions concerning the interpretation or application of provisions of this License
shall be decided according to the laws of the State of California.
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SEVERABILITY °
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35, To the maximum extent possible, each provision of this License shall be interpreted in a
such manner as to be effective and valid under applicable law, but if any provision of this U-
License shall be prohibited by, or held to be invalid under, applicable law, such provision CO
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not m
invalidate the remainder of such provision or any other provision of this License.
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INTEGRATION
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36. This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any m`
and all other agreements between the parties hereto relating to Licensee's use of the o
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.
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MISCrtELLANEOUS =
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37. In the event that Licensee consists of two or more parties, all the covenants and N
agreements of Licensee herein contained shall be the joint and several covenants and Q
agreements of such parties. �
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38. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way c
impair the right of Licensor to enforce that provision for any subsequent breach thereof. E
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Staubach Global Services—RR, Inc. is acting as representative for BNSF Railway
Company. o
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the parties U-
hereto as of the day and year first above written. z
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BNSF RAILWAY COMPANY
Staubach Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131 Q
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By: _ N
Ed Darter N
Title: Sr. Vice President— National Accounts
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CITY OF SAN BERNARDINO
300 North "D" Street E
San Bernardino, CA 92418-0001 a.
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EXHIBIT "AR
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
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CITY OF SAN BERNARDINO
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CAL,I FQRNIA DIV. x °
SAN BERNARDINO SUBDIV. L.S. 7600 S-02B LL
DATE 01/15/2009 Z
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DESCRIPTION: .. ;.,+, A - 1
A PARCEL OF LAND FOR TEMPORARY OCCUPANCY
CONTAINING A TOTAL OF 53,912 SQ.FT.
(1.237 A.C.) MORE OR LESS SHOWN SHADED m
TO MAINTAIN TEMPORARY SHORING SUPPORTS. E
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