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S City of San Bernardino 0
Request for Council Action
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Date: October 18, 2017 `o
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To: Honorable Mayor and City Council Members z
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From: Andrea M. Miller, City Manager` ' 3
By: Michael W. Grubbs, Project Manager N
Subject: Temporary Occupancy Permit No. 17-58626 with BNSF for Mt. ti
Vernon Bridge Netting o
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Recommendation E
Adopt a Resolution of the Mayor and City Council of the City of San Bernardino, a
California, approving Temporary Occupancy Permit No. 17-58626 with the Burlington
Northern Santa Fe (BNSF) Railway for installation of debris netting under the Mt. Vernon a
Bridge.
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Background
In 2004, during a fracture critical inspection by Caltrans bridge inspectors, cracks were `o
discovered in the steel girders supporting the Mt. Vernon Bridge. The bridge was closed E
in June 2004 and temporary shoring was installed pursuant to a permit from Burlington
Northern Santa Fe (BNSF). The bridge was re-opened in October 2004. In 2008,
additional cracks were found in the girders and supplemental shoring was installed. The N
shoring was designed by Morris Engineering and consists of untreated timbers bearing
on ground or pavement supporting steel girders which support the cracked bridge d
girders. Also in 2008, the City enacted an Ordinance prohibiting commercial trucks from v
using the bridge. m
Discussion 2
On July 19, 2017, AECOM provided drawings showing the 10 locations and details of a
how the debris netting could be installed under the bridge. City staff reviewed, approved
and received BNSF concurrence. On July 27, 2017, BNSF responded by letter z
concurring with the proposal to install debris netting as a temporary solution to the a
problem. D
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On September 20, 2017, the Mayor and City Council awarded a contract to GMZ
Engineering, Inc. in the amount of $96,020 for installation of the netting. The contract LU
documents are in the process of being executed.
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Before work can begin on the project, BNSF requires that the City execute their standard
Temporary Occupancy Permit. This permit will allow the City and the contractor access
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for the installation of the netting; however, the contractor will be required to obtain
Railroad Protective Liability Insurance (RPLI) before beginning any work. The contractor
is aware of this requirement. m`
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At a meeting with BNSF on July 18, 2017, it was stated by Dave Freeman of BNSF that
they would provide flagging at no cost to the City of San Bernardino. >
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Financial Impact 2
BNSF waived their standard $800 application fee for this permit and the flagging will be U.
provided at no cost to the City. BNSF is offering the City the opportunity to pay a $1,420 z
fee and be part of their blanket RPLI policy. Staff is recommending that the City join
BNSF's blanket RPLI policy because open market purchase of equivalent insurance is 3
much more costly. BNSF has indicated that they will not accept the City's standard self- N
insurance certificate.
The RPLI cost, staff cost and incidental expenses will be charged to Account No. 264- c
160-7121-5504 (Regional Circulation System Fund). z
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Conclusion a
It is recommended the Mayor and City Council adopt a Resolution of the Mayor and City
Council of the City of San Bernardino, California, approving Temporary Occupancy a
Permit No. 17-58626 with the Burlington Northern Santa Fe (BNSF) Railway for
installation of debris netting under the Mt. Vernon Bridge. r
Attachments o
Attachment 1 —Resolution and Temporary Occupancy Permit No. 17-58626 (Exhibit A) a
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Ward: 1&3
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09/20/17 Resolution adopted awarding a Contract to GMZ Engineering Inc. for
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installation of debris netting under the Mt. Vernon Bridge at the BNSF
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Rail Yard (Bridge No. 54C-0066) per Plan No. 13154
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1 RESOLUTION NO.
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2 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF d
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SAN BERNARDINO, CALIFORNIA, APPROVING TEMPORARY OCCUPANCY -a
3 PERMIT NO. 17-58626 WITH THE BURLINGTON NORTHERN SANTA FE (BNSF) m
4 RAILWAY FOR INSTALLATION AND MAINTENANCE OF DEBRIS NETTING cc
UNDER THE MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH
5 STREET(BR#54C0066).
6 WHEREAS,on September 20, 2017,the Mayor and City Council approved a contract ,0
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7 with GMZ Engineering, Inc. for installation of debris netting under the Mt. Vernon Bridge at m
8 the BNSF Rail Yard, and 3
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10 WHEREAS, BNSF has agreed to allow the City to install and maintain the netting ti
11 under the bridge for a period of 3 years subject to the condition that the City execute the z6
12 standard BNSF Temporary Occupancy Permit. E
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13 BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY
14 OF SAN BERNARDINO AS FOLLOWS: M
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15 SECTION 1. The City Manager is hereby authorized and directed to execute the p
16 attached Temporary Occupancy Permit No. 17-58626 on behalf of the City marked as Exhibit c
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17 "A"and made a part hereof.
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SECTION 2. Said Temporary Occupancy Permit shall be valid for a period of 3 years C4
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or until the bridge is replaced, whichever is sooner, unless earlier terminated as provided
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therein.
22 SECTION 4. The authorization to execute the above-referenced Agreement is a
23 rescinded if it is not executed within ninety(90)days of the passage of this resolution. z
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1 RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING TEMPORARY OCCUPANCY z
2 PERMIT NO. 17-58626 WITH THE BURLINGTON NORTHERN SANTA FE (BNSF)
RAILWAY FOR INSTALLATION AND MAINTENANCE OF DEBRIS NETTING m
3 UNDER THE MT. VERNON VIADUCT BETWEEN 2ND STREET AND 4TH =
STREET(BR#54C0066).
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5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
6 and City Council of the City of San Bernardino ata _ _ __ meeting
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7 thereof,held on the day of ,2017,by the following vote,to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT o
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10 MARQUEZ
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11 BARRIOS -- ?
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12 VALDIVIA -- - a
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SHORETT
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NICHOLS - — - —
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16 RICHARD -- - 0
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17 MULV IHILL ___.
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19 Georgeann Hanna,City Clerk
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The foregoing Resolution is hereby approved this _ day of �,2017.
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23 R. CAREY DAVIS,Mayor v
City of San Bernardino a
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25 Approved as to form:
GARY D. SAENZ, City Attorney CL
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27 By: _
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EXHIBIT "A"
Law Department Approved Tracking#17-58626
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TEMPORARY OCCUPANCY PERMIT Z
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THIS TEMPORARY OCCUPANCY PERMIT ("License'), is made to be effective
2017, (the "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation m
("Licensor")and CITY OF SAN BERNARDINO, ("Licensee"). o
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In consideration of the mutual covenants contained herein,the parties agree to the following:
GENERAL
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1. Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights,
interests, and estates of third parties, including,without limitation,any leases, use rights, easements, z
liens, or other encumbrances, and upon the terms and conditions set forth below, to temporarily m
occupy, in strict accordance with the drawings and specifications approved by Licensor as part of
Licensee's application process (the "Drawings and Specifications"), for the purposes specified in 3
Section 4 below, Licensor's rail corridor at or near San Bemardino, County of San Bernardino,State to
of California, Line Segment 7650, Mile Post 81.55 as shown on the attached Drawing dated c
Spetember 8, 2017, attached hereto as Exhibit "A", and incorporated herein by reference (the n
"Premises").
2. Term. This License shall commence on the Effective Date and shall continue for a period of Three Z
(3)years,subject to prior termination as hereinafter described.
3. Existin Im; rovements. Licensee shall not disturb any improvements of Licensor or Licensor's a
existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use of
such improvements.
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4. Use. Licensee shall use Premises exclusively as a site for to Install and maintain debris netting
under the Mt. Vernon Bridge at the BNSF yard. Licenses shall not use the Premises for any other p
purpose. Z,
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5. Alterations. Except as set forth in this License, Licensee may not make any alterations to the 0
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Premises or permanently affix anything to the Premises or any buildings or other structures adjacent E
to the Premises without Licensor's prior written consent.
COMPENSATION
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6. License Fee. Licensor waives the fees for the use of the Premises. o
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7. Costs and Ex: enses.
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7.1 For the purpose of this License, "cost"or "costs"and "expense"or"expenses" includes, but `°
is not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used. w
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7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all
costs and expenses incurred by Licensor in connection with Licensee's use of the Premises, z
Including but not limited to the fumishing of Licensor's flaggers and any vehicle rental costs Q
incurred. Licensee shall bear the cost of flagger services and other safety measures D
provided by Licensor, when deemed necessary by Licensor's representative. Flagging costs v
shall include, but not be limited to, the following: pay for at least an eight(8) hour basic day O
with time and one-half or double time for overtime, rest days and holidays (as applicable); o.
vacation allowance; paid holidays (as applicable); railway and unemployment insurance; w
public liability and property damage Insurance; health and welfare benefits; transportation; ~
meals; lodging and supervision. Negotiations for railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase
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Law Department Approved Tracking#17.58626
agreements and rate changes authorized by appropriate Federal authorities may increase Z
flagging rates. Flagging rates in effect at the time of performance by the fiaggers will be used
to calculate the flagging costs pursuant to this Section 7. :2
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8. Pa,ment Terms. All invoices are due thirty(30)days after the date of invoice. If Licensee fails to pay o
any monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay `
interest on such unpaid sum from the due date until paid at an annual rate equal to the lesser of(i)
the prime rate last published in The Wall Street Journal in the preceding December plus two and one-
half percent(2%%),or(ii)the maximum rate permitted by law.
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LICENSOR'S RESERVED RIGHTS u
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9. Reserved Rights of Use. Licensor excepts and reserves the right, to be exercised by Licensor and z
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any other parties who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or N
communication pipeAines/cables and appurtenances and other facilities or structures of like C4
character upon,over, under or across the Premises existing as of the Effective Date; 00
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 0
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Premises;or 24
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9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, CL
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provided Licensor uses all commercially reasonable efforts to avoid material interference with T
the use of the Premises by Licensee for the purpose specified in Section 4 above.
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LICENSEE'S OPERATIONS
10. Use of the Premises.
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10.1 Licensee shall notify Licensor's Roadmester, at 740 Carnegie Drive, San Bernardino, 0
California, 94208, telephone (909) 386-4061 (Office) or (909) 322-4188 (Cell), at least ten
(10)business days prior to entering the Premises. In the event of emergency, Licensee shall
notify Licensor of Licensee's entry onto the Premises at the telephone number above as
soon as practicable and shall promptly thereafter follow up with written notice of such entry.
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10.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all
times while on the Premises. U)
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10.3 While on the Premises, Licensee shall use only public roadways to cross from one side of
Licensor's tracks to the other. `4
10.4 Any contractors or subcontractors performing work on the Premises, or entering the w
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for a
purposes of this License. }
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10.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any a
other activity using mechanized equipment and/or machinery, or place or store any D
mechanized equipment, tools or other materials, within twenty-five(25)feet of the centerline v
of any railroad track on the Premises unless Licensee has obtained prior written approval O
from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and a
about the Premises in such a manner as not at any time endanger or Interfere with (i) the w
existence or use of present or future tracks, roadbeds or property of Licensor, (ii) the safe
operation and activities of Licensor or existing third parties, or (iii) the rights or interests of
third parties. K ordered to cease using the Premises at any time by Licensor's personnel due
Form 431;Rev.20150841 r
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to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing z
right of Licensor, the parties agree that Licensor has no duty or obligation to monitor
Licensee's use of the Premises to determine the safe nature thereof, it being solely M
Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the m
exercise nor the failure by Licensor to exercise any rights granted In this Section will alter the c
liability allocation provided by this License. °c
LIABILITY AND INSURANCE >
11. Llabilit and Indemnification. U.
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11.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated (nn
companies, partners, successors, assigns, legal representatives, officers, directors, Z
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shareholders, employees, and agents; (b) "Liabilities" means all claims, liabilities, fines,
penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments, and 3
expenses (including, without limitation, court costs, reasonable attorneys' fees, costs of
investigation, removal and remediation, and govemmental oversight costs)environmental or 0
otherwise; and (c) "Licensee Parties" means Licensee or Licensee's officers, agents, °,n°
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by r
any of them, or any party they control or exercise control over. o
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11.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD
HARMLESS INDEMNITEES FOR, FROM,AND AGAINST ANY AND ALL LIABILITIES OF a
ANY NATURE, KIND, OR DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF,
RESULTING FROM,OR RELATED TO(IN WHOLE OR IN PART):
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11.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS, 0
11.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
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11.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES, E
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112.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED
BY OR CONTRIBUTED TO BY LICENSEE,OR N
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11.2.6 ANY ACTOR OMISSION OF ANY LICENSEE PARTY. 0
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11.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER r
WAIVES ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, o
LICENSOR IS A GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER
FOR THE PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION, AND LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER a
ENVIRONMENTAL LAWS (DEFINED BELOW). LICENSEE WILL INDEMNIFY, DEFEND, >-
AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS, Z
NOTHING IN THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER a
OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD a
NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS LICENSE U
TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, LICENSEE
AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY a
LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO EVENT
AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES AS
CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO
LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
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Law Department Approved Tracking#17-58826
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11.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN
EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, :a
LICENSEE SHALL,AND SHALL CAUSE ITS CONTRACTOR TO,RELEASE,INDEMNIFY, m
DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY o
LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE OR IN PART)ANY SUCH
ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF EMPLOYMENT BY j
AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS .r
THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFETY
APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL ,o
SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, N
AND ANY SIMILAR STATE OR FEDERAL STATUTE. m
11.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT r
LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR 3
WILLFUL MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER 04
LIABILITIES, INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER 00
ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF
ANY INDEMNITEE.
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11.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or
other proceeding brought against any Indemnitee by any entity, relating to any matter E
covered by this License for which Licensee has an obligation to assume liability for and/or a
save and hold harmless any Indemnitee. Licensee shall pay all costs and expenses incident L
to such defense, including, but not limited to, reasonable attorneys'fees, investigators'fees,
litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of z
judgments.
12. Personal Pro,ert. Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED
TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT
THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE a
THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE E
NEGLIGENCE OF ANY INDEMNITEE.
13. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this r
License the following insurance coverage:
13.1 Commercial General Liabilit Insurance. This Insurance shall contain broad form contractual
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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 but in no event less than the amount otherwise carried r
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence or equivalent
and include coverage for, but not limited to,the following:
■ Bodily Injury and Property Damage
■ Personal Injury and Advertising Injury a
■ Fire legal liability �-
• Products and completed operations Z
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This policy shall also contain the following endorsements or language; which shall be
indicated on the certificate of insurance: v
■ The definition of Insured contract shall be amended to remove any exclusion or other U
limitation for any work being done within 50 feet of railroad property. a
• Waiver of subrogation in favor of and acceptable to Licensor, w
■ Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang
LaSalle Brokerage, Inc. y
■ Separation of insureds.
Form 431;Rev.20150801
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■ The policy shall be primary and non-contributing with respect to any insurance carried by z
Licensor. d
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It is agreed that the workers' compensation and employers' liability related exclusions in the m
Commercial General Liability Insurance policy(s) required herein are intended to apply to c
employees of the policy holder and shall not apply to Licensor's employees. c°
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No other endorsements limiting coverage may be included on the policy. >
13.2 Business Automobile Insurance. This insurance shall contain a combined single limit of at o
least$1,000,000 per occurrence,and include coverage for, but not limited to the following: w
■ Bodily injury and property damage. 0)
• Any and all vehicles owned, used or hired. m
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This policy shall also contain the following endorsements, which shall be indicated on the 3
certificate of insurance:
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• Waiver of subrogation in favor of and acceptable to Licensor. Co
■ Additional Insured endorsement In favor of and acceptable to Licensor. ti
■ Separation of Insureds.
■ The policy shall be primary and non-contributing with respect to any Insurance carried by 6
Licensor.
13.3 Workers'Com; ensation and Em�lgy2T LiabNittlnsurance. This insurance shall include a
coverage for, but not limited to: >%
■ Licensee's statutory liability under the workers' compensation laws of the state(s) in
which the services are to be performed. If optional under state laws, the insurance must
cover all employees anyway. 3
■ Employers' Liability(Part B)with limits of at least $500,000 each accident, $500,000 by 0
disease policy limit, $500,000 by disease each employee. 0
This policy shall also contain the following endorsements or language, which shall be `o
indicated on the certificate of insurance: Q-
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Waiver of subrogation in favor of and acceptable to Licensor. ai
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13.4 Railroad Protective Liabilit, Insurance. This insurance shall name only Licensor as the
Insured with coverage of at least $2,000,000 per occurrence and $6,000,000 in the CN
aggregate. The coverage obtained under this policy shall only be effective during the initial ! -
installation of the debris netting under the Mt. Vernon Bridge at the BNSF yard. If further N
maintenance of the debris netting under the Mt.Vernon Bridge at the BNSF yard is needed at d
a later date, an additional Railroad Protective Liability Insurance Policy shall be required. r
The policy shall be issued on a standard ISO form CG 00 35 12 03 and include the following: a
■ Endorsed to include the Pollution Exclusion Amendment. =
■ Endorsed to Include the Limited Seepage and Pollution Endorsement.
■ Endorsed to include Evacuation Expense Coverage Endorsement. a
• No other endorsements restricting coverage may be added. �.
• The original policy must be provided to Licensor prior to performing any work or services Z
under this License. a
• Definition of"Physical Damage to Property'shall be endorsed to read: "means direct and
accidental loss of or damage to all property owned by any named insured and all
property in any named insured's care, custody and control arising out of the acts or v
omissions of the contractor named on the Declarations." 0
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In lieu of providing a Railroad Protective Liability Policy,for a period of one(1)year from the rn
Effective Date, Licensee may participate in Llcensor's Blanket Railroad Protective Liability ro
Insurance Policy available to Licensee or its contractor. The limits of coverage are the same Q`p
as above. The cost is$1,420.
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0 1 elect to participate In Licensor's Blanket Policy;
U I elect not to participate in Licensor's Blanket Policy.
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13.5 Intentionally deleted. LL
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13.6 Other Requirements: Z
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13.6.1 Where allowable by law, all policies (applying to coverage listed above)shall contain 3
no exclusion for punitive damages. N
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13.6.2 Licensee agrees to waive its right of recovery against Licensor for all claims and CO
suits against Licensor. In addition, 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 0
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waiver of subrogation endorsement. Licensee further waives its right of recovery,
and Its Insurers must also waive their right of subrogation against Licensor for loss of E
Licensee's owned or leased property, or property under Licensee's care, custody, or d
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control
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self-insure without the prior written consent of Licensor. If
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13.6.3 Licensee
granted by Licensor, any self-insured retention or other financial responsibility for
claims shall be covered directly by Licensee in lieu of insurance. Any and all
Licensor liabilities that would otherwise, in accordance with the provisions of this
License, be covered by Licensee's insurance will be covered as if Licensee elected
not to include a self-insured retention or other financial responsibility for claims. o
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13.6.4
13.6.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable F
certificate(s) of insurance including an original signature of the authorized
representative evidencing the required coverage, endorsements, and amendments.
Licensee shall notify Licensor in writing at least 30 days prior to any cancellation, C4
non-renewal, substitution, or material alteration. In the event of a claim or lawsuit S
involving Licensor arising out of this License, Licensee will make available any 0
required policy covering such claim or lawsuit. ;v
13.6.5 Any insurance policy shall be written by a reputable Insurance company acceptable
to Licensor or with a current Best's Guide Rating of A-and Class VII or better, and
authorized to do business in the state(s)in which the service is to be provided. w
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13.6.6 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 U
termination of this License. Annually, Licensee agrees to provide evidence of such Q
coverage as required hereunder. n.
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13.6.7 Licensee represents that this License has been thoroughly reviewed by Licensee's U
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the a
insurance coverage required by this License. Allocated Loss Expense shall be in 2
addition to all policy limits for coverages referenced above. H
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13.6.8 Not more frequently than once every five years, Licensor may reasonably modify the a�
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry. m
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13.6.9 If any portion of the operation is to be subcontracted by Licensee, Licensee shall 0
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require that the subcontractor shall provide and maintain insurance coverages as set a`)
forth herein, naming Licensor as an additional insured, and shall require that the >
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemnify Licensor herein. w
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13.6.10 Failure to provide evidence as required by this Section 13 shall entitle, but not m
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 3
obligations hereunder.
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13.6.11 The fact that insurance (including, without limitation, self-insurance) is obtained by co
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 6
insurance coverage. Z
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13.6.12 These insurance provisions are intended to be a separate and distinct obligation on a
the part of the Licensee. Therefore, these provisions shall be enforceable and
Licensee shall be bound thereby regardless of whether or not indemnity provisions
are determined to be enforceable.
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13.6.13 For purposes of this Section 15, Licensor shall mean"Burlington Northern Santa Fe, 0
LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
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COMPLIANCE WITH_LAWS,REGULATIONS, AND ENVIRONMENTAL MATTERS 0.
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14. Compliance_with_Laws,Rules and Re ulations.
14.1 Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances,
orders, covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Y—
Requirements")relating to Licensee's use of the Premises. 0
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14.2 Prior to entering the Premises, Licensee shall and shall cause Its contractor(s)to comply with
all of Licensor's applicable safety rules and regulations. Licensee must ensure that each of m
its employees, contractors, agents or invitees entering upon the Premises completes the g
safety orientation program at the website "www.BNSFcontractor.com" (the "Safety
Orientation")within one(1)year prior to entering upon the Premises. Additionally, Licensee a
must ensure that each and every employee of Licensee, its contractors, agents and invitees
possess a card certifying completion of the Safety Orientation prior to entering upon the Z
Premises. Licensee must renew the Safety Orientation annually, a
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15. Environmental. U
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15.1 Licensee shall strictly comply with all federal, state and local environmental Legal .a
Requirements and regulations in its use of the Premises, including, but not limited to, the w
Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the f-
Oil Pollution Act, the Hazardous Materials Transportation Act, and CERCLA (collectively
referred to as the"Environmental Laws"). Licensee shall not maintain a treatment, storage, d
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transfer or disposal facility, or underground storage tank, as defined by Environmental Laws z
on the Premises. Licensee shall not release or suffer the release of oil or hazardous d
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substances,as defined by Environmental Laws on or about the Premises. a
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15.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous c
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 or on
Licensor's property. Licensee agrees periodically to furnish Licensor with proof, satisfactory
to Licensor that Licensee is in compliance with the provisions of this Section 15.2.
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15.3 Licensee shall give Licensor Immediate notice to Licensor's Resource Operations Center at LL
(800)832-5452 of any known (i) release of hazardous substances on, from, or affecting the z
Premises, (ii) violation of Environmental Laws, or (Iii) inspection or inquiry by governmental m
authorities charged with enforcing Environmental Laws with respect to Licensee's use of the r
Premises. Licensee shall use the best efforts to promptly respond to any release on,from,or 3
affecting the Premises. Licensee also shall give Licensor immediate notice of all measures
undertaken on behalf of Licensee to Investigate, remedlate, respond to or otherwise cure m
such release or violation. n
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15.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental
Laws arising In any way with respect to the land which occurred or may occur during the term Z
of this License, Licensor may require Licensee, at Licensee's sole risk and expense,to take
timely measures to investigate, remediate, respond to or otherwise cure such release or E
violation affecting the Premises or Licensor's right-of-way. a
15.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the
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Premises known to Licensee which create a risk of harm to persons, property or the
environment and shall take whatever action Is necessary to prevent injury to persons,
property, or the environment arising out of such conditions or activities; provided, however,
that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever
imposed on it by this License. Licensee shall promptly respond to Licensor's request for
information regarding said conditions or activities. 0
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DISCLAIMER OF WARRANTIES F
16. No Warranties. r
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16.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN r
THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS
OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY
OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY W
WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR a
PURPOSE. U
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16.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY A
KIND, EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR
OTHER RIGHTS GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT o
LICENSEE'S CONSTRUCTION, MAINTENANCE,OWNERSHIP, USE OR OPERATION OF
a.
THE RAIL CORRIDOR WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS 2
AND ESTATES OF THIRD PARTIES,INCLUDING,WITHOUT LIMITATION,ANY LEASES, W
USE RIGHTS,EASEMENTS AND LIENS OF ANY THIRD PARTY. ~
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17. Disclaimer of Warran_for Quiet Enioyment. LICENSOR DOES NOT WARRANT ITS TITLE TO
THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION a
OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. Q`p
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18. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, °c
or claiming any interest in the Premises, or by the abandonment by Licensor of the affected rail
corridor, Licensor shall not be liable(1)to refund Licensee any compensation paid hereunder, except
for the pro-rata part of any recurring charge paid in advance, or(ii)for any damage Licensee sustains
In connection with the eviction. o
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DEFAULT.TERMINATION AND SURRENDER vii
19. Default and Termination. In addition to and not in limitation of Licensors right to terminate for failure m
to provide evidence of insurance as required pursuant to the terms of Section 13, the following
events are also deemed to be events of default pursuant to which Licensor has the right to terminate 3
as set forth below: cc
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19.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained
in this License and Licensee fails to cure said default within thirty (30) days after written r
notice is provided to Licensee by Licensor, or in case of any assignment or transfer of this o
License in violation of Section 21 below, Licensor may, at its option, terminate this License z
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 13. a-
19.2
19.2 Should Licensee not comply fully with the obligations of Section 15 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained a
in any other provision of this License, Licensor may, at its option, terminate this License by v
serving five(5)days'notice of termination upon Licensee. p
19.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to
terminate this License for any subsequent default or defaults, nor shall any such waiver in a
any way affect Licensors ability to enforce any Section of this License. The remedy set forth E
in this Section 19 shall be in addition to, and not In limitation of, any other remedies that
Licensor may have at law or in equity.
19.4 in addition to and not in limitation of Licensor's rights to terminate this License for failure to U)
provide evidence of insurance or occurrence of defaults as described above, this License
may be terminated by either party, at anytime, by serving thirty(30) days'written notice of U)
termination upon the other party. Such termination shall not release either party hereto from
any liability or obligation under the License,whether of indemnity or otherwise, resulting from
any acts,omissions or events happening prior to the date of termination or thereafter in case
by the terms of the License it is provided that anything shall or may be done after termination
hereof.
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20. Surrender of the Premises. v
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20.1 On or before expiration or termination of this License for any reason, Licensee shall, at Its a
sole cost and expense:
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20.1.1 remove all of its equipment from the Premises; p
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20.1.2
20.1.2 report and restore any damage to the Premises or Licensor's other property arising 2
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from, growing out of,or connected with Licensee's use of the Premises;
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20.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; 0
and
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20.1.4 leave the Premises in the condition which existed as of the Effective Date of this c
License. _
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20.2 Upon any expiration or termination of this License,if Licensee fails to surrender the Premises >
to Licensor or If Licensee fails to complete its obligations under Section 20.1 above (the
"Restoration Obligations"), Licensee shall have a limited license to enter upon the o
Premises solely to the extent necessary for Licensee to complete the Restoration LL
Obligations, and all liabilities and obligations of Licensee hereunder shall continue in effect z
until the Premises are surrendered and the Restoration Obligations are completed. Neither m
termination nor expiration shall release Licensee from any liability or obligation under this
License, whether of Indemnity or otherwise, resulting from any acts, omissions or events 3
happening prior to the date of termination, or, if later,the date when Licensee surrenders the
Premises and all of the Restoration Obligations are completed.
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20.3 If Licensee faNs to complete the Restoration Obligations within thirty(30)days after the date ti
of such termination of its tenancy, then Licensor may, at its election, eider: (i) remove the
Improvements or otherwise restore the Premises, and in such event Licensee shall, within o
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thirty (30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon
written notice to Licensee, take and hold the Improvements and personal property as its sole E
property, without payment or obligation to Licensee therefor, or (iii) specifically enforce
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Licensees obligation to restore and/or pursue any remedy at law or in equity against >,
Licensee for failure to so restore. Further, if Licensor has consented to the Improvements
remaining on the Premises following termination, Licensee shall, upon request by Licensor, M
provide a bill of sale in a form acceptable to Licensor conveying the Improvements to
Licensor
V
MISCELLANEOUS
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21. Successors and Assi,ns. All provisions contained in this License shall be binding upon, inure to the °-
benefit of,and be enforceable by the respective successors and assigns of Licensor and Licensee to
the some extent as if each such successor and assign was named a party to this License.
21. Assi..nment. 0
21.1 Licensee may not sell,assign,transfer,or hypothecate this License or any right,obligation,or 0
interest herein (either voluntarily or by operation of law, merger, or otherwise) without the
prior written consent of Licensor, which consent may not be unreasonably withheld or r
delayed by Licensor. Any attempted assignment by Licensee in violation of this Section 21
shall be a breach of this License and, in addition, shall be voidable by Licensor in its sole and
absolute discretion.
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21.2 For purposes of this Section 21, the word "assign" shall include without limitation (a) any >-
sale of the equity interests of Licensee following which the equity interest holders of Licensee z
immediately prior to such sale own, directly or indirectly, less than 50% of the combined a
voting power of the outstanding voting equity interests of Licensee, (b) any sale of all or
substantially all of the assets of (i) Licensee and (ii) to the extent such entities exist, v
Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization, U
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recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, o_
any reorganization, recapitalization, merger or consolidation following which the equity w
W interest holders of Licensee immediately prior to such reorganization,recapitalization, merger
or consolidation own, directly or indirectly, at least fifty percent(50%)of the combined voting
power of the outstanding voting equity interests of Licensee or any successor thereto or the m
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entity resulting from such reorganization, recapitalization, merger or consolidation shall not Z
be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND WITHOUT
THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN -a
LICENSOR'S SOLE DISCRETION. m
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21.3 Notwithstanding the provisions of Section 21.1 above or anything contained in this License °c
to the contrary, If Licensee sells, assigns, transfers, or hypothecates this License or any d
interest herein in contravention of the provisions of this License(a"Purported Assignment")
to another party (a "Purported Transferee"), the Purported Transferee's enjoyment of the g
rights and privileges granted under this License shall be deemed to be the Purported o
Transferee's agreement to be bound by all of the terms and provisions of this License, LL
Including but not limited to the obligation to comply with the provisions of Section 13 above cn
concerning insurance requirements. In addition to and not in limitation of the foregoing, m
Licensee, for itself, its successors and assigns, shall indemnify, defend and hold harmless
Licensor for all Liabilities of any nature, kind or description of any person or entity directly or 3
indirectly arising out of, resulting from or related to (in whole or in part) a Purported
Assignment. m
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21.4 The provisions of this Section 21 shall survive the expiration or earlier termination of this ti
License.
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22. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one
party to the other shall be in writing and the same shall be given and shall be deemed to have been E
served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) a
deposited into the custody of a nationally recognized overnight delivery service, addressed to the
party to be notified at the address for such party specked below, or to such other address as the c
party to be notified may designate by giving the other party no less than thirty (30) days' advance Q,
written notice of such change in address.
If to Licensor: Jones Lang LaSalle Brokerage, Inc. O
4200 Buckingham Road, Suite 110
Fort Worth,TX 761550
Attn: Permits/Licenses a
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with a copy to: BNSF Railway Company
2301 Lou Menk Drive GOB-3W
Fort Worth,TX 76131 �
Attn: Senior Manager Real Estate
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If to Licensee: City of San Bernardino
290 N. "D"Street
San Bernardino, California 92401 t6
23. Survival, Neither termination nor expiration will release either parry from any liability or obligation w
under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events a
happening prior to the date of termination or expiration, or, if later, the date when the Premises are v
restored to its condition as of the Effective Date. Z
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24. Recordation. It is understood and agreed that this License shall not be placed or allowed to be M
placed nn public record. v
25. &);IlicableO_
Law. All questions concerning the interpretation or application of provisions of this 0
License shall be decided according to the substantive laws of the State of Texas without regard to w
conflicts of law provisions.
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26. Severabilit4. 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 a
shall be prohibited by, or held to be Invalid under, applicable law, such provision shall be ineffective op
solely to the extent of such prohibition or invalidity,and this shall not invalidate the remainder of such c
provision or any other provision of this License. E
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27. Inte :ration. This License Is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other g
agreements between the parties hereto relating to Licensee's use of the Premises as described c
herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or U.
Licensee's obligation to defend and hold Licensor harmless In any prior written agreement between z
the parties. m
28. Joint and Several Liabilit . If Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and agreements of 3
such parties. N
29. Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way Co
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
6
30. Interpretation. z
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30.1 This License shall be Interpreted in a neutral manner, and not more strongly for or against E
any party based upon the source of the draftsmanship; both parties hereby agree 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 c
table of contents(if any)are inserted for convenience of reference only and are not intended 1°
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.
30.2 As used herein, "include", "includes" and "including" are deemed to be followed by"without `oo
limitation" whether or not they are in fact followed by such words or words of like import; E
"writing", "written" and comparable terms refer to printing, typing, lithography and other
means of reproducing words in a visible form; references to any person are also to that
person's successors and permitted assigns; "hereof', "herein", "hereunder"' and comparable
terms refer to the entirety hereof and not to any particular article,section, or other subdivision CN
hereof or attachment hereto;references to any gender include references to the masculine or
feminine as the context requires; references to the plural include the singular and vice versa; N
and references to this License or other documents are as amended, modified or d
supplemented from time to time. r
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32. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all
purposes, be deemed an original but which together shall constitute one and the same instrument, tr
and the signature pages from any counterpart may be appended to any other counterpart to a
assemble fully executed documents, and counterparts of this License may also be exchanged via }
email or electronic facsimile machines and any email or electronic facsimile of any party's signature v
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shall be deemed to be an original signature for all purposes. Q
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33. Licensor's Re, resentative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF v
Railway Company. p
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END OF PAGE—SIGNATURE PAGE FOLLOWS w
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This License has been duly executed by the parties hereto as of the date below each party's -a
signature;to be effective,however, as of the Effective Date. m
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LICENSOR:
BNSF Railway Company,a Delaware corporation g
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By: Jones Lang LaSalle Brokerage, Inc., U-
4200 Buckingham Road, Suite 110 rn
Fort Worth,TX 76155 z
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LICENSEE:
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CITY OF SAN BERNARDINO
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290 N. "D'Street O
San Bernardino, California 92401
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