HomeMy WebLinkAbout1995-237 1 RESOLUTION NO. 95-237
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN OWNER PARTICIPATION AND COOPERATIVE AGREEMENT
3 WITH THE ATCHISON, TOPEKA, AND SANTA FE RAILWAY COMPANY AND
ECONOMIC DEVELOPMENT AGENCY, RELATING TO THE INSTALLATION OF THE
4 "I" STREET STORM DRAIN AND PHASE I OF THE NORTHWEST INTERCEPTOR
SEWER.
5
BE IT RESOLVED BY THE MAYOR AND COMMON COU14CIL OF THE
6 CITY OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1 . The Mayor of the City of San Bernardino is
8 hereby authorized and directed to execute, on behalf of said
9 City, an Owner Participation and Cooperative Agreement with the
10 Atchison., Irl F'.ncl Santa Fe Railway Company and Economic
11 Devel(-,p-.Iel,..': °igency relating to the TnS4:011ai..ion of the "I" Street
12 Storm Drain and Phase T of the Northwest Interceptor Sewer. A
13 copy of said agreement is attached hereto, narked Exhibit "A" and
14 incorporated herein by reference as fully as though set forth at
15 length.
16 SECTION 2 . The agreement shall not take effect until
17 fully signed and executed by all parties. The City shall not be
18 obligated hereunder unless and until the agreement is fully
19 executed and no oral agreement relating thereto shall be implied
20 or authorized.
21 SECTION 3 . This resolution is rescinded if the parties
22 to the agreement fail to execute it within ninety (90) days of
23 the passage of this resolution.
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4-11-95
^�1 7 RE80. AUTHORIZING EXECUTION OF AGREEMENT WITH SANTA FE RAILWAY
COMPANY. AND ECONOMIC DEVELOPMENT AGENCY.
j I HEREBY CERTIFY that the foregoing resolution was duly
2 adopted by the Mayor and Common Council of the City of San
3 Bernardino at a n adjourned regular meeting thereof, held on the
4 lothday of July , 1995 , by the following vote, to-wit:
5 Council Members: AYES NAYS ABSTAIN ABSENT
6 NEGRETE X
7 CURLIN x
8 HERNANDEZ x
9 OBERHELMAN X
10 DEVLIN —X
11 POPE-LUDLAM x
12 MILLER X
13
14
P.a el Clark, City Cleric
15 The foregoing resolution is hereby approved this
16
day of July 1995 .
17
18
Tom Minor, Mayor
19 City of San Bernard 41-10
Approved as to form
20 and legal content:
21 James F. Penman
City Attorney
22
23 By
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95-237 �—
/-•i N s F C_OrGC �6
OWNER PARTICIPATION A W JQC01FERNT AGREEMENT
'9� Al Ir,, 28 F 4 :1
This Owner Participation and Cooperative Agreement "Agreement") is entered into
effective August 15 , 1995, among the City of San Bernardino, a municipal corporation
of the State of California, ("City"), the Redevelopment.Agency of the City of San Bernardino,
a public body, corporate and politic("Agency") and The Atchison, Topeka & Santa Fe Railway
Company, a Delaware corporation ("Santa Fe").
RECITALS
A. Santa Fe is expanding its existing intermodal facility at its "A" Yard ("'A' Yard")
in San Bernardino ("Project"). As presently designed, the Project provides for the transmission
of storm water from the "A" Yard, east to "I" Street north of Third Street. Although there is
no existing storm drain in "I" Street, a new storm drain is identified in the City's Master Storm
Drain Plan ("New 'I' Street Storm Drain"), which could receive storm water at the east end of
the "A" Yard and transmit it south in "I" Street, to the east branch of the Lytle Creek Flood
Control Channel.
B. The City is planning to install the Northwest Intercepting Sewer System and has
asked Santa Fe for the right to install a portion of the system across the "A" Yard. A portion
of the system ("First Phase Intercepting Sewer") will also be installed in "I" Street, concurrently
with the installation of the New "I" Street Storm Drain.
C. Santa Fe and the City wish to cooperate in the installation of the New "I" Street
Storm Drain and the First Phase Intercepting Sewer, under a single construction contract, to
facilitate Santa Fe's need for storm drain capacity and the City's need for sewer capacity, and
also to achieve economies of scale.
D. The City has asked Santa Fe for assistance in funding the cost of the New "I"
Street Storm Drain, which is estimated to cost approximately $450,000, and Santa Fe is willing
to provide up to $450,000 in assistance. In view of the fact that$110,000 of the estimated cost
of the New "I" Street Storm Drain is being incurred for facilities which exceed Santa Fe's
requirements, Santa Fe has asked the City to reimburse it for$110,000 of the estimated cost of
the New "I" Street Storm Drain ("Oversizing Amount") and the City is willing to do so. In
addition, in order to facilitate the installation of the Northwest Intercepting Sewer System, at the
City's request, Santa Fe has previously expended $54,965.00 to construct sewer facilities
("Sewer Facilties") which will be conveyed by the City. Santa Fe has asked the City to pay it
$54,965.00 for the acquisition of the Sewer Facilities ("Sewer Acquisition Amount") and the
City is willing to do so.
E. In view of the fact that the project will retain existing jobs related to intermodal
operations at the Project, including jobs related to the loading and unloading of intermodal
trailers and containers and various support functions, and create new jobs of the same type in
the City, Santa Fe has also asked the Agency to provide economic assistance to the Project in
the amount of$231,000 ("Employment Reimbursement Amount") and the Agency is willing to
do so.
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537
F. The "A" Yard and the New "I" Street Storm Drain, directly benefit property in
the Mount Vernon Redevelopment Project Area of the Agency ("Project Area"). The purpose
of the Redevelopment Plan for the Project Area ("Redevelopment Plan") is to promote the
redevelopment and reuse of land within the Project Area. The construction of the New "I"
Street Storm Drain and the facilitation of Santa Fe's Project are in the vital and best interests
of the City and the health, safety, morals and welfare of its residents, and in accordance with
the public purposes and provisions of the applicable state and local laws and requirements. The
construction of the New "I" Street Storm Drain and the facilitation of Santa Fe's Project will
also result in the elimination of blight and the generation of revenue, conferring of benefits upon
local residents and an enhancement of the quality- of life for the present and future residents of
the City, which otherwise might not occur to the same degree or which might not occur in the
absence of the construction of the New "I" Street Storm Drain and the facilitation of Santa Fe's
Project.
In consideration of the mutual covenants and conditions in this Agreement, the City, the
Agency and Santa Fe agree as follows:
OPERATIVE PROVISIONS
1. Santa Fe's Obligations. Santa Fe shall do the following:
(a) Santa Fe has previously, at its sole cost, designed or caused the New "I"
Street Storm Drain to be designed, and has provided design drawings to the City.
(b) Santa Fe shall execute and deliver to the City, a Pipe Line License in the
form of Exhibit "A" attached hereto and incorporated herein by reference, to facilitate the
construction of the Northwest Intercepting Sewer.
(c) Santa Fe shall reimburse the City for the total cost of the New "I" Street
Storm Drain, in an amount not to exceed $450,000. Santa Fe shall pay such amount to the City
at such time as the City has delivered evidence to Santa Fe that all costs associated with the New
"I" Street Storm Drain have been paid in full and that the City has accepted the New "I" Street
Storm Drain as having been completed in accordance with the applicable plans and
specifications.
(d) To facilitate the construction of the First Phase Intercepting Sewer,
Santa Fe shall temporarily close its rail line across the intersection of "I" Street and Rialto
Avenue (for up to two working days), and remove rails, ties and ballast according to a schedule
which is reasonably required by the City in order to install the First Phase Intercepting Sewer.
(e) Until such time as the Agency has paid the Employment Reimbursement
Amount in full, Santa Fe shall submit annual reports to the Agency, setting forth the number of
persons employed in connection with the Project during the quarter then ended and the job
classification of each such person. Those annual reports shall be submitted 30 days before the
first, second, third and fourth anniversaries of the Effective Date of this Agreement.
(f) Concurrent with payment by the City of the Sewer Acquisition Amount,
Santa Fe will convey to the City all of its right, title and interest in the Sewer Facilities.
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2, Qi V's Obligations. The City shall do the following:
(a) The City has previously, at its sole cost, prepared or caused construction
plans and technical specifications for the Northwest Intercepting Sewer and the New "I" Street
Storm Drain to be prepared.
(b) The City shall, at its sole cost, construct or cause the Northwest
Intercepting Sewer to be constructed.
(c) Without limiting Santa Fe's obligation to reimburse the City for the cost
of the New "I" Street Storm Drain as provided in paragraph 1(c) above, the City shall, at its
sole cost, construct or cause the New "I" Street Storm Drain to be constructed, to the
specifications set forth in the design referred to in paragraph 1(a) above. The parties intend that
the City shall initially advance the total cost of the New "I" Street Storm Drain, subject to
Santa Fe's obligation to reimburse the City as provided in paragraph 1(c) above.
(d) The City shall, at its sole cost, obtain all public and private approvals
required to lawfully construct the Northwest Intercepting Sewer and the New "I" Street Storm
Drain and in so doing, shall comply with all of the requirements of the law including, without
limitation, the requirements of the California Environmental Quality Act.
(e) The City shall award a contract for construction of the Northwest
Intercepting Sewer and the New "I" Street Storm Drain, under a single contract, to the lowest
responsible bidder. The City shall obtain Santa Fe's concurrence before awarding the portion
of the contract related to the New "I" Street Storm Drain.
(f) Within 10 days after the effective date of this Agreement, the City shall
pay the Sewer Acquisition Amount to Santa Fe, provided that Santa Fe concurrently conveys to
the City all of its right, title and interest in the Sewer Facilities.
(g) The City shall reimburse Santa Fe for the Oversizing Amount referred to
in Recital D above, with interest on the unpaid balance of the Oversizing Amount from time to
time at the rate of 7% per annum, in 4 equal installments of$27,500 each, on the first, second,
third and fourth anniversaries of the effective date of this Agreement.
3. Agency's Obligations. The Agency shall do the following:
(a) Subject to the limitations in paragraph 3(b) below, the Agency shall
reimburse Santa Fe for the Employment Reimbursement Amount, without interest, in 4 equal
installments of$57,750 each, on the first, second, third and fourth anniversaries of the effective
date of this Agreement.
(b) Notwithstanding the provisions of paragraph 3(a) above, if at any time
prior to full payment by the Agency of the Employment Reimbursement Amount, the total
number of persons employed in connection with the Project decreases below 60 persons, and
Santa Fe fails to return the number of persons employed in connection with the Project to at
least 60 persons, within 90 days after notice of the deficiency is given by the Agency, then any
unpaid portion of the Employment Reimbursement Amount shall automatically be forgiven and
o:W366\000\DmumendAgr=3.001 3
�s
the Agency shall have no further obligation with regard to the Employment Reimbursement
Amount. Nothing in this paragraph shall in any way affect any other obligations of the City or
the Agency under this Agreement and the above-mentioned forgiveness of any unpaid portion
of the Employment Reimbursement Amount shall be the Agency's sole remedy against Santa Fe
if the number of persons employed in connection with the Project at any time decreases below
60 persons and Santa Fe fails to return the number of persons employed in connection with the
Project to at least 60 persons within 90 days after notice of the deficiency if given by the
Agency.
4. General Provisions.
(a) Notices. Demands and Communications. Formal notices, demands and
communications between any of the parties shall be sufficiently given if personally delivered and
a receipt therefor is obtained or is refused or if dispatched by registered or certified mail,
postage prepaid, return receipt requested, or if dispatched by way of a nationally recognized
overnight mail delivery service (such as United Parcel Service or Federal Express), to the parties
at the following addresses. Such written notices, demands and communications may be sent in
the same manner to such other addresses as any party may from time to time designate by mail.
Such notices, demands and communications shall be deemed given as of the date of receipt or
rejection.
Com:
City of San Bernardino
City Hall
300 North "D" Street
San Bernardino, CA 92401
Attn: City Clerk
With a copy to:
City of San Bernardino
City Hall
300 North "D" Street
San Bernardino, CA 92401
Attn: Director of Public Works
Agency:
Redevelopment Agency of the City of San Bernardino
201 North "E" Street
San Bernardino, CA 92401
Attn: Director of Development
0AA36610001DocmmnAAgrw3.001 4
Santa Fe:
The Atchison, Topeka & Santa Fe Railway Company
920 Southeast Quincy Street
Topeka, KS 66612-1116
Attn: Assistant Director Asset Management
With a copy to:
The Atchison, Topeka & Santa Fe Railway Company
740 East Carnegie Drive
San Bernardino, CA 92408
Attn: Manager Industrial Development
(b) Inde ndence of Parties. The terms of this Agreement shall not cause the
parties to be construed in any manner whatsoever as partners, joint ventures or agents of any
other in the performance of their respective obligations under this Agreement, or subject any
party to any obligation, loan, charge or expense of any other party unless the party to be held
responsible has independently contracted with the claimant so as to make it directly responsible
for the performance and/or payment, as appropriate, of the pertinent obligation, loss, charge or
expense.
(c) Text to Control. The headings in this Agreement are included solely for
convenience, and if there is any conflict between any heading and the text of this Agreement,
then the text shall control.
(d) Inte retation. Should any provision of this Agreement require
interpretation, it is agreed that the person or persons interpreting or construing the same shall
not apply a presumption that the terms of this Agreement shall be more strictly construed against
one party by reason of the rule of construction that a document is to be construed more strictly
against the party who itself or through its agent or counsel prepared the same or caused the same
to be prepared; it being agreed that the agents and counsel of all of the parties have participated
equally in the negotiation and preparation of this Agreement. The language in all parts of this
Agreement shall be in all cases construed simply, fairly, equitably and reasonably, according to
its plain meaning and not strictly for or against any of the parties.
(e) Nonliabilily of Officials Employees and Contractors. No member,
official, employee, agent or contractor of the City or the Agency shall be personally liable to
Santa Fe in the event of any default or breach by the City or the Agency or for any amount
which may become due to Santa Fe or on any obligation under this Agreement, and no officer,
employee, agent or contractor of Santa Fe shall be personally liable to the City or the Agency
in the event of any default or breach by Santa Fe or for any amount which may become due to
the City or the Agency or on any obligation under this Agreement.
(f) Entire Agreement, Waivers and Amendments. This Agreement integrates
all of the terms and conditions mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements between the parties regarding all or any portion of the
subject matter of this Agreement. All waivers of the provisions of this Agreement shall be in
0:1A36610001Document\Agree3.001 5
writing and signed by the appropriate authorities of the City and Santa Fe, and all amendments
hereto must be in writing and signed by the appropriate authorities of the City or the Agency,
as to their respective rights and obligations hereunder, and Santa Fe.
(g) Attorneys'Fees. If any party institutes any action or proceeding to enforce
or interpret any provision of this Agreement, for damages by reason of any alleged breach of
any provisions of this Agreement or for a declaration of rights under this Agreement, then the
prevailing party in any such action or proceeding shall be entitled to receive from the losing
party all costs and expenses, including reasonable attorneys' and other fees, incurred by the
prevailing party in connection with such action or proceeding. The term "attorneys' and other
fees" shall mean and include attorneys' fees, accountants' fees, and any and all other similar fees
incurred in connection with the action or proceeding and preparations therefor. The term "action
or proceeding" shall mean and include actions, proceedings, suits, arbitrations, appeals and other
similar proceedings. The court, arbitrator or other tribunal in any such action or proceeding
shall determine which party is the prevailing party and which party is the losing party.
(h) Exculpation. None of the City, the Agency or any officer, employer,
agent or either shall be responsible for any damage or liability occurring by reason of anything
done or omitted to be done by Santa Fe under or in connection with any work done by or at the
request of Santa Fe under this Agreement. In addition, Santa Fe shall fully indemnify and hold
the City and the Agency harmless from any liability and injury (as defined by Government Code
Section 810.8) occurring by reason of anything done or omitted to be done by Santa Fe under
or in connection with any work done by or at the request of Santa Fe under this Agreement.
Neither Santa Fe nor any officer, employee or agent shall be responsible for any damage or
liability occurring by reason of anything done or omitted to be done by the City or Agency
under or in connection with any work done by or at the request of the City or the Agency under
this Agreement or under the license referred to in paragraph 1(b) above. The City shall
indemnify and hold Santa Fe harmless from any liability imposed or injury (as defined by
Government Code Section 810.8) occurring by reason of anything done or omitted to be done
by the City or the Agency under or in connection with any work done by or at the request of
City or Agency under this Agreement or under the license referred to in paragraph 1(b) above.
(i) Cooperation. In exercising their rights and performing their obligations
under this Agreement, each party shall cooperate in good faith with the other parties, so the
purposes of this Agreement can be obtained.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first set forth above.
(SIGNATURES FOLLOW)
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City
The City of San Bernardino
By:
Tom Minor, Mayor
Attest:
City Clerk
Approved as to form and content:
By:
James F. P an, City Attorney
W A 366\000\Document\Agree3.001
s
Agency
Redevelopment Agency of the City of San
Bernardino
By: _ �✓ moi` /
Attest:
Secretary
Approved as to form and legal content:
By: �,�--
Sabo & Greo, Wttorneys for
the Redevelopment Agency of
the City of San Bernardino
OAA3661000\DocumentlAgree3.001
Santa Fe
The Atchison, Topeka & Santa Fe Railway
Company
By: •
Manager yrs a d�;ts
EXHIBIT A95-2PIPELINE LICENSE
Fn--rr++r, 'r
PIPELINE LICENSE
AUG 28 P 4 :14
THIS LICENSE("License")is made this 15th day o f Aucgu s t , 1995,between
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a Delaware corporation
(hereinafter called "Licensor"), a party of the first part, and CITY OF SAN BERNARDINO
(hereinafter, whether one or more, called "Licensee"), party of the second part.
WITNESSETH, that the parties hereto for the consideration hereinafter expressed
covenant and agree as follows:
1. Subject to the terms and conditions hereinafter set forth, Licensor grants a
nonexclusive license to Licensee to construct and maintain a single pipe line, v-—7
inches in diameter ("PIPE LINE"), across or along the rail corridor of Licensor at or near the
San Bernardino "A" Yard, County of San Bernardino, State of California, the exact location of
the PIPE LINE being more particularly shown by bold line upon the print hereto attached,
designated File No. 15.03-095, marked Exhibit "A", and made a part hereof.
2. Licensee shall use the PIPE LINE solely for carrying domestic sewage and shall
not use it to carry any other commodity or for any other purpose whatsoever.
3. Licensee shall pay Licensor as compensation for this License the sum of One and
No/100 Dollars ($1.00).
4. Licensee shall, at its own cost and subject to the supervision and control of
Licensor's field engineer, locate and/or relocate, construct and maintain the PIPE LINE 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, rail yard or rail corridor of Licensor, or
the safe operation of its railroad. When the PIPELINE is used for oil, gas, petroleum products,
or other flammable or highly volatile substances under pressure, the PIPE LINE shall be
constructed, installed and thereafter maintained in conformity with the plans and specifications
shown on print hereto attached, marked Exhibit "B" and made a part thereof. If at any time
Licensee shall, in the judgment of Licensor, fail to perform properly its obligations under this
paragraph, Licensor may, at its option, arrange for the performance of such work as it deems
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 hereunder for loss or damage occasioned thereby.
5. Licensee shall reimburse Licensor for any expense incurred by Licensor for false
work to support Licensor's tracks and for flagman to protect its traffic during installation and
maintenance periods and for any and all other expense incurred by Licensor on account of the
PIPE LINE.
6. (a) Except as set forth in Section 6(b), Licensee shall release, indemnify, and
hold harmless Licensor for all losses, damages, expenses, injuries or death
to Licensee, its employees, agents and contractors, arising in any manner
from the performance of this agreement, except for Licensor's negligence.
o:W366\ .003 1
Licensee further agrees to release, indemnify, and hold harmless Licensor
for all losses, damages, expenses, injuries, or death to any person,
including Licensor, which arise in any manner from the construction,
maintenance, use, state of repair or presence of Licensee's pipelines.
(b) Whenever any employee, agent or contractor of Licensee or any of
Licensee's parties makes any claim for personal injury or death against
Licensor within the meaning of the Federal Employers' Liability Act, or
any applicable safety act, (45 U.S.C. § 51 et. seq.), for any incident
caused, wholly or in part, by property, equipment, fixtures or condition
belonging to or subject to the control of Licensee, or claims or alleges that
he or she is an employee of Licensor or is furthering the operational
activities of Licensor, Licensee agrees to indemnify and hold harmless
Licensor for all losses, damages, costs or expenses related to such claim.
7. If at any time during the term hereof Licensor shall desire to make any use of its
rail corridor with which the PIPE LINE will in any way interfere, including the relocation of
existing or the construction of new pipelines and other facilities in which it shall have an
interest, Licensee shall, at Licensee's own cost, within thirty (30) days after receiving written
notice from Licensor to such effect, make such changes in the PIPE LINE as in the judgment
of Licensor may be necessary to avoid interference with the proposed use of its rail corridor.
8. The Licensee is self-insured for liability, including but not limited to, public
liability, personal injury and property damage and contractual liability up to $1,000,000 in the
aggregate and shall supply Licensor with a certificate of self-insurance affirming (i) Licensee's
self-insurance status and that (ii) reserves are maintained for claims in its self-insured retention.
Licensor's self-insured retention is within keeping with its net worth in cash flows and is
consistent with that of other cities of similar operations and size.
(a) During the installation period, and during all future maintenance periods,
Licensee or its contractor shall, at its expense, first procure and maintain
throughout these periods, a comprehensive general form of supplemental
insurance covering liability, including, but not limited to, Public Liability,
Personal Injury and Property Damage, as well as Contractual Liability in
excess of$1,000,000 up to $25,000,000 in the aggregate. Such insurance
shall contain no exclusion with respect to any rail corridor of Licensor in
the care, custody or control of Licensee. LICENSOR SHALL BE
NAMED AS AN ADDITIONAL INSURED.
(b) The all risk supplemental insurance on the PIPE LINE of the Licensee,
or Licensor's property in Licensee's care, custody and control, shall
contain a waiver of subrogation of claims against Licensor and shall
provide that coverage shall not be revised, cancelled or reduced until at
least 15 days written notice of such revision, cancellation or reduction
shall have been given to Licensor. Licensee shall maintain Workers
Compensation insurance which shall contain a waiver of subrogation
against Licensor.
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(c) All supplemental insurance shall be placed with insurance companies
licensed to do business in the state in which the PIPE LINE is located,
with a current Best's Insurance Guide Rating of A and Class X, or better.
Licensee shall provide Licensor in advance of said installation and
maintenance periods a Certificate of Insurance evidencing such insurance.
Insurance must provide for coverage of incidents occurring within fifty
(50) feet of a railroad track, and any provision in the insurance policy to
the contrary must be specifically deleted.
(d) The furnishing of supplemental insurance required by this Section shall in
no way limit or diminish the liability or responsibility of Licensee as
provided under any Section of this License.
9. Upon written notice from Licensor, Licensee agrees to assume the defense of any
lawsuit, or other proceeding brought against Licensor by any public body, individual,
partnership, corporation, or other legal entity, relating to any matter covered by this License for
which Licensee has an obligation to assume liability for and/or save and hold harmless Licensor.
Licensee shall pay all the costs incident to such defense including, but not limited to, attorneys'
fees, investigators' fees, litigation expenses, settlement payments, and amounts paid in
satisfaction of judgments.
10. (a) Licensee shall comply with all federal, state and local environmental laws
and regulations in its use of Licensor's rail corridor, including, but not
limited to, the Resource Conservation and Recovery Act, as amended
(RCRA),and the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended (CERCLA). Licensee shall not maintain
a treatment, storage, transfer or disposal facility, or underground storage
tank, as defined by RCRA, on or under Licensor's rail corridor. Licensee
shall not release or suffer the release of oil or hazardous substances, as
defined by CERCLA, on Licensor's rail corridor. Notwithstanding any
other requirements in this contract, Licensee assumes all responsibility for
the investigation and cleanup of such release and shall indemnify and
defend Licensor and its agents for all costs and claims, including
consultant and attorney fees, arising in any manner out of such release or
Licensee's failure to comply with environmental laws, regardless of
whether such costs or claims are caused or contributed to by the
negligence or alleged negligence of Licensor, except to the extent such
costs or claims are proximately caused by Licensor's gross negligence or
intentional misconduct.
(b) Licensee shall give Licensor timely notice of any release, violation of
environmental laws or inspection or inquiry by governmental authorities
charged with enforcing environmental laws with respect to Licensor's rail
corridor. Licensee also shall give Licensor timely notice of all measures
undertaken by or on behalf of Licensee to investigate, remediate, respond
to or otherwise cure such release or violation.
oAAW%000�umwALkxnw-OW 3
(c) In the event that Licensor receives notice from Licensee or otherwise of
a release or violation of environmental laws which occurred or is
occurring during the term of this License, Licensor may require Licensee,
at Licensee's sole expense, to take timely measures to investigate,
remediate, respond to or otherwise cure such release or violation.
11. It is mutually agreed that this License may not be terminated by Licensor unless
Licensee defaults or otherwise violates any of the covenants or agreements of this License. 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 writing upon
Licensee; but any waiver by Licensor of any default or defaults shall not constitute a waiver of
the right to terminate this License for any subsequent default or defaults, nor shall any such
waiver in any way affect Licensor's ability to enforce any Section of this License. The remedy
set forth in this Section shall be in addition to, and not in limitation of, any other remedies that
Licensor may have at law or in equity.
12. Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee on the
PIPE LINE and shall indemnify Licensor against any loss, liability or expense incurred by other
action upon or with respect to the PIPE LINE that is or may be permitted by law to prevent the
attachment of any such liens to Licensor's premises; provided, however, that failure of Licensor
to take any such action shall not relieve Licensee of any obligations or liability under this
Section or any other Section of this License.
13. In the case of eviction of Licensee by anyone owning or obtaining title to the rail
corridor on which the PIPE LINE is located, or the abandonment by Licensor of said rail
corridor, Licensor shall not be liable to Licensee for any damage of any nature whatsoever or
to refund any payment made by Licensee to Licensor hereunder, except the proportionate part
of any recurring rental charge which may have been paid hereunder in advance.
14. Any notice to be given by either party shall be deemed to be properly served if
deposited with the United States Postal Service, or other acceptable mailing service, postage
prepaid, addressed to either party, at the addresses and department shown beneath signature of
the parties.
15. In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and agreements
of such parties.
16. Any contractor or subcontractor performing work on or in connection with the
PIPE LINE shall for the purpose of this license, be conclusively deemed to be the servant and
agent of Licensee acting on behalf and within the scope of such contractor's or subcontractor's
employment for Licensee.
o:W66\000\Doc=ac .OM 4
17. Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall underlease or sublet the PIPE LINE nor assign or
transfer this License or any interest herein, without the prior written consent and approval of
Licensor.
18. It is understood and agreed that this License shall not be placed of public record.
19. All the covenants and provisions of this License shall be binding upon the heirs,
legal representatives, successors and assigns of Licensee. No assignment by Licensee shall be
binding upon Licensor without the written consent of Licensor in each instance.
20. All questions concerning the interpretation or application of provisions of this
License shall be decided according to the laws of the state in which the PIPE LINE is located.
21. To the maximum extent possible, each provision of this License shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this License shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this License.
22. The waiver by Licensor of the breach of any provision herein by Licensee shall
in no way impair the right of Licensor to enforce that provision for any subsequent breach
thereof.
23. Notwithstanding any other provisions of this License, Licensee shall comply with
all statutes, ordinances, rules, regulations, orders and decisions issued by any federal, state or
local governmental body or agency established thereby relating to Licensee's use of Licensor's
premises hereunder.
24. This License is given by Licensor and accepted by Licensee upon the express
condition that the same may be terminated at any time by Licensee upon 90 days notice in
writing to be served upon Licensor, stating therein the date that such termination shall take
place, and that upon the termination of this License in this or any other manner herein provided,
Licensee, upon demand by Licensor, shall abandon the use of the PIPE LINE and remove the
same and restore the rail corridor of Licensor to the same condition in which it was prior to the
placing of the PIPE LINE thereunder. In case Licensee shall fail to restore Licensor's rail
corridor within 90 days after the effective date of termination, Licensor may proceed with such
work at the expense of Licensee. No termination hereof shall release Licensee from any liability
or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions
or events happening prior to the date the PIPE LINE is removed and the rail corridor of
Licensor restored as above provided.
25. This License is the full and complete agreement between Licensor and Licensee
with respect to all matters relating to License on the premises, and supersedes any and all other
agreements between the parties hereto relating to License on the premises.
7
IN WITNESS WHEREOF, the parties have executed this License in duplicate the day
and year first above written.
Licensor
The Atchison, Topeka & Santa Fe Railway Company
P.O. Box 1738
Topeka, Kansas 66601-1738
By: CN l= � �•
Title: �`racts
Licensee
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
Title: Mayor
0An366\ .oai 6
EXHIBIT A-1 - PIPELINE LOCATION
July 20, 1995
DESCRIPTION OF SEWER EASEMENT
SANTA FE RAILWAY COMPANY
That portion of Lot 1, Block 16, Rancho San Bernardino, in the County of San
Bernardino, State of California, as per map recorded in Book 7 of Maps, Page 2, records
of said County, more particularly described as follows:
Commencing at the Southeast comer of said Lot 1, said corner being the intersection
of the North line of Third Street, 82.50 feet wide with the West line of"I" Street, 82.50 feet
wide;
Thence North 00°23' 04" West along said West line of"I" Street a distance of 401.03
feet;
Thence North 60° 28' 47" West, a distance of 26.93 feet to the Southeasterly line of
the Southern California Railway Company (now Atchison, Topeka and Santa Fe Railway
Company) to the TRUE POINT OF BEGINNING;
Thence continuing North 60° 28' 28.47" West, a distance of 574.83 feet;
Thence North 00° 00' 37" East, a distance of 393.03 feet;
Thence South 89° 59' 23" West, a distance of 689.80 feet;
Thence South 87° 47' 24" East, a distance of 531.81 feet;
Thence North 01° 10' 32" East, a distance of 55.42 feet to the Northerly line of the
right of way of the Southern California Railway Company;
Thence North 89° 58' 38.83" East along said Northerly right of way line a distance
of 20.00 feet;
Thence South 01° 10' 32" East, a distance of 34.62 feet;
Thence North 87° 47' 24" East, a distance of 510.98 feet;
Thence North 89° 59' 23" East, a distance of 710.20 feet;
Thence South 00° 00' 37" West, a distance of 401.38 feet;
Thence South 60°28' 28.47" East, a distance of 561.80 feet to the Southeasterly right
of way of the Southern California Railway Company;
Thence South 25° 37' 23.93" West along said Southeasterly right of way line, a
distance of 20.05 feet to the TRUE POINT OF BEGINNING.
Easement contains 1.025 acres.
3/WP/B/SFR-FsMLRJR
Ludwig Engineering
ZITY OF SAN BERNARDINO SEWER PLANS ETC.
?LAN FILE SB0699 Plan # 10000 20-Jul-95 09:23 AM
PROJECT SB0699 SANTA FE SEWER EASEMENT CLOSURE
7150 1861624.92643 6772555.07183
N 60-28'28.47"W 574.8287
7151 1861908.20759 6772054.89210
N 00--00137.00"E 393.0305
7152 1862301.23809 6772054.96260
S 89-59023.00"W 689.8044
7157 1862301.11435 6771365.15818
S 87-47124.00"W 531.8137
7158 1862280.60644 6770833 .74000
N 01-10132.00"E 55.4170
7153 1862336.01174 6770834.87692
N 89-58138.83"E 20.0044
7154 1862336.01961 6770854.88130
S 01-10'32.00"W 34.6171
7155 1862301.40978 6770854.17110
N 87-47124.00"E 510.9796
7156 1862321.11429 6771364.77064
N 89--59123.00"E 710.1956
7147 1862321.24168 6772074 .96619
S 00-00137.00"W 401.3776
7148 1861919.86412 6772074.89419
S 60-28128.47"E 561.8043
7149 1861643.00147 6772563.74098
S 25-37'23.93"W 20.0465
7150 1861624.92643 6772555.07183
AREA= 44638.69 SQUARE FEET OR 1.02476 ACRES
?ERIMETER= 4503.91933 FT
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