HomeMy WebLinkAboutItem No. 19 - Mt. Vernon Bridge Replacement - Construction and Maintenance Agreement
Consent Calendar
City of San Bernardino
Request for Council Action
Date: May 20, 2020
To: Honorable Mayor and City Council Members
From: Teri Ledoux, City Manager
By:Kris Jensen, Director of Public Works
Subject: Mt. Vernon Bridge Replacement - Construction and
Maintenance Agreement
Recommendation
It is recommended that the Mayor and City Council of the City of San Bernardino,
California, adopt Resolution No. 2020-99, approving Construction and Maintenance
Agreement No. 19-1002208 ("Agreement") with San Bernardino County Transportation
Authority (SBCTA), and Burlington Northern Santa Fe Railway (BNSF) for the
demolition, construction, and maintenance of the Mt. Vernon Bridge; and authorizing the
City Manager to execute the Agreement.
Background
Replacement of the Mt. Vernon Bridge, which was built in 1934, has been a high priority
for the City for more than 18 years. The existing bridge, in part, is supported by
temporary shoring, has netting affixed to catch concrete bridge fragments over work
areas, has a sufficiency rating of 2 out of 100, and is in urgent need of replacement.
SBCTA took over the management of this project from the City in 2016. SBCTA
received legislative approval in 2017 to administer this project through the Design-Build
(DB) delivery method in order to get a firm under contract to demolish and rebuild the
bridge as expeditiously as possible.
The proposed Construction and Maintenance Agreement No. 19-1002208 delineates
roles and responsibilities between the City, SBCTA and BNSF for the demolition,
construction, and maintenance of the Mt. Vernon Bridge Project. It also establishes
payment commitments between SBCTA and BNSF related to the work.
Discussion
Construction and Maintenance Agreement 19-
agreement between the City, SBCTA, and BNSF. It specifies the roles, responsibilities
and funding commitments amongst the parties during design, construction and
maintenance periods. SBCTA is responsible for demolishing the existing bridge and
designing and constructing its replacement, a new bridge that meets current design
standards and accommodate safe travel for vehicular, pedestrian, and bicycle traffic. In
order to demolish and construct the bridge, BNSF will provide the necessary rights
during construction for the DB contactor to access the site while BNSF performs railroad
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flagging to assure the safety of the construction crew. BNSF will provide inspection
services and yard coordination for work performed by the DB contractor.
To allow the DB contractor greater work windows between two adjacent tracks, BNSF
will design and construct two shoofly tracks to shift planned train movement from two
existing sets of tracks. Closure of the two existing tracks allows for greater work periods
for the Design Build contractor during construction. It is important to note, without this
mitigation work, the bridge closure would span approximately six years instead of three
years. The shoofly tracks will avoid this lengthy impact to the public and costly
piecemeal construction. The Agreement includes a phasing plan for the Project work.
While the shoofly tracks mitigate impacts to the public, the location of the shooflies
king. For this
The area with the least impact to the public is the property currently owned by BNSF,
but there are other private property owners located between 4th Street and Kingman
and between Cabrera and Mt. Vernon. BNSF desires to own these properties being
acquired by SBCTA in the future, and neither SBCTA nor the City desire to own these
properties after the project. As part of the mitigation to BNSF for impacts to their facility
and operations, SBCTA will convey the properties to BNSF.
Costs related to the items described above are addressed within the Construction and
Maintenance Agreement with SBCTA and BNSF. SBCTA will pay the actual costs,
estimated at a not-to-exceed limit of $6,300,000, for BNSF flagging, inspection,
temporary track crossings and coordination, as well as up to a capped amount of
$48,325,000 for the mitigation work. While BNSF is not a required funding partner,
BNSF has agreed to provide a fixed in-lieu project contribution of $29,500,000.
will be in place between the City, SBCTA, and BNSF.
2020-2025 Key Strategic Key Targets and Goals:
This project is consistent with Key Target No. 1d: Minimize Risk and Litigation
Exposure. Replacement of the Mt. Vernon Bridge will eliminate a critically outdated
asset and replace it with bridge infrastructure that meets current community needs and
will be constructed with the latest safety features. The new bridge will provide a long-
term transportation feature for the City and more effectively support the north and south
bound travel of residents and businesses in the area.
Fiscal Impact
There is no fiscal impact associated with the recommended action of this item.
Conclusion
It is recommended that the Mayor and City Council of the City of San Bernardino, adopt
Resolution No. 2020-99, approving Construction and Maintenance Agreement No. 19-
1002208 ("Agreement") with San Bernardino County Transportation Authority (SBCTA),
and Burlington Northern Santa Fe Railway (BNSF) for the demolition, construction, and
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maintenance of the Mt. Vernon Bridge; and authorizing the City Manager to execute the
Agreement.
Attachments
Attachment 1 Resolution No. 2020-- Construction and
Maintenance Agreement No. 19-1002208
Wards: 1, 3
Synopsis of Previous Council Actions:
April 8, 2020 The Mayor and City Council directed staff to submit a request to the
San Bernardino County Transportation Authority (SBCTA) to
Street/Arterial Sub-program revenue, in advance, to support
additional funding requirements of the Mt. Vernon Viaduct Project.
September 18, 2018 The Mayor and City Council adopted Resolution No. 2018-257,
approving Contract No. 16-1001477-01, Amended and Restated
Cooperative Agreement with the San Bernardino County
Transportation Authority (SBCTA) for the Development of the
Mount Vernon Avenue Grade Separation over the BNSF Railway
Intermodal Yard Project (SS04-12).
June 20, 2018 The Mayor and City Council adopted Resolution No. 2018-164
approving Contract No. 16-1001477-01, Cooperative Agreement
with the San Bernardino County Transportation Authority (SBCTA)
for the development of the Mount Vernon Avenue Grade
Separation over the BNSF Railway Intermodal Yard Project (SSO4-
12). Note: Contract approved in error. Not executed by SBCTA.
June 6, 2016 The Mayor and City Council Adopted Resolution No. 2016-109
approving Contract No. 16-1001477, Cooperative Agreement with
the San Bernardino Associated Governments (SANBAG) for the
development of the Mount Vernon Avenue Grade Separation over
the BNSF Railway Intermodal Yard Project (SSO4-12).
May 16, 2016 The Mayor and City Council adopted a Resolution approving a
Memorandum of Understanding (MOU) with the San Bernardino
Associated Governments (SANBAG) designating SANBAG as Lead
Agency for environmental clearance, design, right-of-way
acquisition and construction of the Mt. Vernon Avenue Viaduct over
the BNSF Railroad (SS04-12).
February 16, 2016 The Mayor and City Council authorized staff to develop a
Memorandum of Understanding (MOU) with the San Bernardino
Associated Governments (SANBAG) designating SANBAG as Lead
Agency for environmental clearance, design, right-of-way
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acquisition and construction of the Mt. Vernon Avenue Viaduct over
the BNSF Railroad (SS04-12).
March 1, 2010 The Mayor and City Council adopted Resolution No. 2010-036
adopted approving Amendment No. 5 to Services Agreement with
LAN Engineering Corporation for Project Management of the Mt.
Vernon Avenue Viaduct over the BNSF Railroad.
October 20, 2008 The Mayor and City Council adopted Resolution No. 2008-405
adopted approving Amendment No. 4 to Services Agreement with
LAN Engineering Corporation for Project Management of the Mt.
Vernon Avenue Viaduct over the BNSF Railroad.
September 17, 2007 The Mayor and City Council adopted Resolution No. 2007-382
adopted approving Amendment No. 3 to Agreement with LAN
Engineering Corporation for Project Management of the Mt. Vernon
Viaduct over BNSF Railroad.
December 20, 2004 The Mayor and City Council adopted Resolution No. 2004-399
adopted approving Amendment No. 2 to Agreement with LAN
Engineering Corporation for Project Management of the Mt. Vernon
Viaduct over BNSF Railroad and Resolution No. 2004-400 adopted
approving Amendment No. 1 with Jones & Stokes for additional
environmental services for the Mt. Vernon viaduct over the BNSF
Railroad.
March 15, 2004 The Mayor and City Council adopted Resolution No. 2004-73
authorizing execution of Professional Services Agreement with LAN
Engineering Corporation for the Project Management of the Mt.
Vernon Ave. Viaduct over the BNSF railroad in the amount of
$49,000.
December 1, 2003 The Mayor and City Council adopted a resolution approving
Professional Environmental Services Agreement with Myra L. Frank
and Associates for environmental services related to the Mt.
Vernon Bridge.
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RESOLUTION NO. 2020-99
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING CONSTRUCTION AND MAINTENANCE
AGREEMENT NO. 19-1002208 ("AGREEMENT") WITH
SAN BERNARDINO COUNTY TRANSPORTATION
AUTHORITY (SBCTA), AND BURLINGTON NORTHERN
SANTA FE RAILWAY (BNSF) FOR THE DEMOLITION,
CONSTRUCTION, AND MAINTENANCE OF MT.
VERNON BRIDGE, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE AGREEMENT
WHEREAS, the replacement of the Mt Vernon Avenue bridge has been a high priority
transportation project for the City for over 18 years; and
WHEREAS, the City previously entered into Cooperative Agreement No. 16-
1001477with San Bernardino County Transportation Authority (SBCTA), establishing SBCTA
as the lead agency, and, inclusive of all amendments, authorized the design build phase of work,
clarified right of way activities, and revised funding commitments on the Mt. Vernon Avenue
WHEREAS, SBCTA has received proposals for the design-build contract and is ready to
move forward with the Project; and
WHEREAS, the Project will impact Burlington Northern Santa Fe Railway (BNSF)
facilities; and
WHEREAS, SBCTA has developed an agreement with BNSF to define the roles and
responsibilities of each party, describe the scope of work and phasing, and delineate accessibility
to the work areas; and
WHEREAS, Construction and Maintenance Agreement No. 19-1002208 is now required
to delineate roles and responsibilities between the City, SBCTA and BNSF for the demolition,
construction, and maintenance of the Project.
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. The City Manager is hereby authorized and directed to sign and execute
Amendment No. 2 to Construction and Maintenance Agreement No. 19-1002208 with the San
Bernardino County Transportation Authority (SBCTA) and Burlington Northern Santa Fe
Railway (BNSF) for the demolition, construction, and maintenance of the Mt. Vernon Bridge, a
SECTION 3. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 4. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 5. Effective Date. This Resolution shall become effective immediately.
APPROVED and ADOPTED by the by the Mayor and City Council and signed by the
Mayor and attested by the Acting City Clerk this ___ day of __________, 2020.
John Valdivia, Mayor
City of San Bernardino
Attest:
__________________________________
Genoveva Rocha, CMC, Acting City Clerk
Approved as to form:
__________________________________
Sonia Carvalho, City Attorney
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Genoveva Rocha, CMC, Acting City Clerk, hereby certify that the attached is a true copy of
Resolution No. _____, adopted at a regular meeting held at the ___ day of _______, 2020 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ _____ _____ _______ _______
IBARRA _____ _____ _______ _______
FIGUEROA _____ _____ _______ _______
SHORETT _____ _____ _______ _______
NICKEL _____ _____ _______ _______
RICHARD _____ _____ _______ _______
MULVIHILL _____ _____ _______ _______
WITNESS my hand and official seal of the City of San Bernardino this ___ day of
____________ 2020.
______________________________
Genoveva Rocha, CMC, Acting City Clerk
CONSTRUCTION AND MAINTENANCE AGREEMENT
BNSF File No. BF10012430
Mount Vernon Avenue Viaduct Replacement Project
U.S. D.O.T. No. 026731F
LS 7602
MP 0.17
San Bernardino Subdivision
SBCTA Contract Number 19-1002208
This Construction and Maintenance Agreement (“Agreement”),related to the Mount
Vernon Avenue Viaduct Replacement Project over BNSF Railway Intermodal Yard is executed
to be effective as of ___________________(“EffectiveDate”), by and among BNSF RAILWAY
COMPANY, a Delaware corporation (“BNSF”);CITYOF SAN BERNARDINO, a charter cityand
municipal corporation under the Constitution and laws of the State of California (“City”); and
SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY (“SBCTA”). BNSF, CITYand
SBCTA are hereinafter individually referred to as a “Party”and collectively referred to as the
“Parties.”CITYand SBCTA are hereinafter collectively referred to as the “Public Entity.”
RECITALS:
WHEREAS, BNSF owns and operates a line of railroadandanintermodal yardin and through
the Cityof San Bernardino,San Bernardino County, State of California;
WHEREAS, The Mount Vernon Avenue Bridge (Bridge Number 54C-066) (“Existing Bridge”)
crosses main line railroad tracks, storage tracks and an intermodal rail yard (“BNSF Yard”)
operated by BNSF located in the Cityof San Bernardino, San Bernardino County, California;
WHEREAS in 1997, Caltrans inspectors determined that the Existing Bridgehad a sufficiency
rating of less than 50 out of a possible 100. Bridges rated less than 50 are considered to be
structurally deficient and functionally obsolete. In 2004 and again in 2008, temporary shoring
was installed on the Existing Bridgeas a precautionary measure. The shoring was repaired and
upgraded in 2014 under a licensefrom BNSF, which is valid for ten years. Netting was installed
in 2018 to catch debris before itpotentiallyfell on the BNSF tracks and/or BNSF trains;
WHEREAS the Public Entity proposes to remove and replace the Existing Bridgeover the
BNSF Yard(“Replacement Bridge”), while making improvements to existing streets, storm
drains, traffic signals and related work necessitated by theExistingBridgeremoval and
replacement, as more fully described in that certain Supplemental Environmental Assessment
andFinal Programmatic Section 4(f) Evaluationwith Finding of No Significant Impact, dated
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
October 9, 2018 (the “Project”)andhas procuredproposals for a design-build contractor (“DB
Contractor”) to construct the Project.
WHEREAS the Parties wish to efficiently and expeditiously coordinate and complete the Project,
in order to minimize impacts and inconvenience to the local community, to limit interference with
BNSF’s operations, and to restore the safe operation of theMountVernon Avenue Bridgeto the
publicand railroad operations.
WHEREAS, BNSF will contributea fixedTwenty-Nine Million Five Hundred Thousand and
No/100 Dollars ($29,500,000.00) toward the cost of the Mitigation Work defined in Article I
below(the “BNSF Contribution”).The BNSF Contribution constitutesa third party in-kind
contributiontowards the Project tobeaccepted as a match for Federal Highway Administration
(“FHWA”)funds, and also covers federally non-participating expenses.
WHEREAS the Parties entered into that certain Engineering Agreement dated June 13, 2018,
BNSF Agreement No. BF-10011068, SBCTA Contract No. 17-1001621, CityContract No.
SS04-012 (the “Engineering Agreement”), pursuant to which, BNSF agreed to commence the
engineering work necessary to identify and define the scope and nature of the mitigation
measures necessary to reduce and offset the impact of the Project on BNSF’s operations and
SBCTA agreed to reimburse certain actual mitigation costs incurred by BNSF related to the
same,in excess of the BNSF Contribution and up to $48,325,000. This number is not subject to
increase.
WHEREAS a portion of the Project, which constitutes Railroad Work (as defined in Article I,
Section 1 below), includes relocating a portion of the BNSF intermodal operations area, on the
north side of the existing railroad tracks, to a new facility between Kingman Street and West 4th
Street and between Cabrera Avenue and Mount Vernon Avenueas shown on the site plan
attached hereto as Exhibit A-2(the “Relocation Area”). BNSF already owns certain parcels
located in the Relocation Area. However, the Project requires the acquisition of all other parcels
in the Relocation Area that are currently owned by third parties (the “Acquisition Parcels”).
TheAcquisition Parcels are needed to mitigate the impacts of the project on BNSF operations
andwill be conveyed to BNSF, as described in the following recital.The Acquisition Parcels
consist of 25 single-family residences and one multi-family residence. In addition, a portion of
th
the Relocation Area is within Cityright of way known as 4thStreet. Vacation of that portion of 4
Street located east of Cabrera Avenue (the “Vacated Area”) is a precondition to
commencementof the Railroad Workto the extent it will occur in the Vacated Area.
WHEREAS,concurrently with the execution of this Agreement, SBCTA and BNSF areentering
intothat certain Property Conveyance Agreement of even date herewith (“Property
Conveyance Agreement”), pursuant to which, SBCTA willacquirethe Acquisition Parcels from
third parties, complete certain work upon the Acquisition Parcels, cause the abandonment in
place of the high-pressure gas lines located within the Vacated Area and constructnew high-
th
pressure gas lineslocated outside the Relocation Area(i.e., from 4Street/CabreraAvenue,
CONSTRUCTION AND MAINTENANCEAGREEMENT
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north on CabreraAvenueand east at KingmanStreetto tie into a facility on MountVernon
Avenue) andconvey the Acquisition Parcels to BNSF.In addition,BNSF and/or SBCTA will
quitclaim all right, title and interest to the City in a20’ buffer strip along Kingman Streetas
specifically described below.BNSF will alsoconvey to the City footing easements for a12 foot
wallalong Kingman Streetand CabreraAvenue,andconvey to SBCTA an additional 10 foot
temporary construction easement for initial construction of the wall.BNSF will also convey
footing and aerial easements for the ReplacementBridge, all these conveyances will be made
at no cost to the City.
WHEREAS, the Parties desire to enter into this Agreement to memorialize the rights and
obligations of each Party with respect to the design, construction and maintenance of the
Project.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the Parties
contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties
agree as follows:
ARTICLE I)SCOPE OF WORK
1.The term “ProjectWork”as used herein includes any and allworknecessary to
complete thedesign and construction of theProject pursuant tothe Final Plans (defined in
Article II, Section 6below). The Project Work isgenerally described in ExhibitAattached hereto
and incorporated herein. To the extent the Final Plans conflict with the general description of the
Project Work contained inExhibitA, the Final Plans shall control to govern the scope and
definition of the Project Work. As shown in Exhibit A, the Project Work consists of certain
“Railroad Work” (that will be completed by BNSF in accordance with Article IVbelow) and
certain “SBCTA Work” (that willbe completed by SBCTA in accordance with Article Vbelow).
The Railroad Work to be completed by BNSF consists of “Mitigation Work” and “Construction
Support Work,” as delineated in Exhibit A.The Parties acknowledge and agree thatcertain
elements of the SBCTA Workwhich directly affect rail operations in the BNSF Yard, will be
constructed by BNSF, at SBCTA’s expense,as Construction Support Workpursuant to
agreement of the Parties from time to time. Such elements include, without limitation,
construction of track crossings within BNSF right-of-way for SBCTA Design-BuildContractor
equipment access, as delineated in Exhibit A.The SBCTA Work includes the Demolition Work
and Pre-Demolition Work (as defined in Article VII, Section 1) and the Acquisition Parcel Work
(as defined in Article V, Section 2).
ARTICLE II)APPROVAL OF FINAL PLANS
The Final Plans for the Project Work (including both the SBCTA Work and the Railroad
Work) shall be prepared and processed for approval as follows:
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
1.BNSF hereby appoints RailProsas BNSF’s Inspector/Coordinator (the “I/C”).
The I/C will assemble a design and construction team to manage Project submittals, plan
review, timelines and construction processes on behalf of BNSF.All submittals willbe sent to
the I/C,and not directly to BNSF,and the I/C willreview and forward the submittals to BNSF,
with comments.
2.SBCTA shallprepare andprovideto the I/C for reviewand approvaltheplans
and specifications for the SBCTA Work (“SBCTA Plans”)which impact BNSF operations. All
plan submissions from SBCTA must include calculations and railroad clearances expressed in
English Units. All submittals will be approved by SBCTA prior to submission to the I/C. In
addition, BNSF shall have theopportunity to review, comment on and acceptthe larger scale
Project scope as soon as it is available. Specifically, due to security and railroad operations
concerns, BNSF shall have the opportunity to review, comment on,accept or reject all proposed
activities within the BNSF Yard and within the Acquisition Parcels,prior to commencement of
construction.The parties acknowledge that SBCTA is currently moving forward with demolition
of structures on the Acquisition Parcels.Also, without limiting the generality of the foregoing,
BNSF shall have the opportunity to review, comment on and accept or reject the scope of
adjacent phases of the Project that maynegatively impact BNSFrailroad operations, prior to
commencement of construction. BNSF shall use diligent and good faithefforts to reviewand
comment upon the submittals referenced in this Article II, Section 2 within thirty (30) days of
submission.Without limiting the ability of BNSF to review and approve the SBCTA Plans, the
SBCTA Plansshall comply with the followingon BNSF property:
a.Theminimum vertical and horizontal clearancesset forthin Exhibit C, or
as approved by BNSF;
b.BNSF’s Utility Accommodation Manual
(http://www.bnsf.com/communities/faqs/pdf/utility.pdf), for the installation or relocation of wire
lines, pipe lines and other facilities owned by private persons, companies, corporations, political
subdivisions or public utilities other than BNSF which may be necessary for the construction of
the Project;
c.The BNSF BridgeRequirements set forth on Exhibit F;and
d.All applicable requirements promulgated by state and federal agencies,
departments, commissions and other legislative bodies.
3.Within one hundred twenty (120) days of the Effective Date, SBCTA shall provide
to the I/C for review, comment and concurrence, plans for demolition Work. BNSF shall use
diligent and good faith effortsto achieve a 30-day plan review timeline for submittals, as well as
reasonable turn-around times for comments or acceptance byBNSF.SBCTA and the DB
CONSTRUCTION AND MAINTENANCEAGREEMENT
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Contractorshallsend all submittals to the I/C with theproper cover sheet that tracks all prior
BNSF comments.
4.TheSBCTA Plansfor any discrete portion of the SBCTA Workshallbe
considered concurred with byBNSF onceBNSFprovidesSBCTA with afinal written approval of
the SBCTA Plansfrom BNSFin the form attached hereto as Exhibit E(“Plan Approval
Confirmation Letter”), which approval shall not be unreasonably withheld. Notwithstanding the
foregoing, BNSF reserves its rights regarding SBCTA Plans for any other portion of the SBCTA
Work that may conflict with SBCTA Plans for a portion of the SBCTA Work that has been
previously approved by BNSF. BNSF shall use diligent and good faithefforts to provide any
such Plan Approval Confirmation Letter within thirty (30) days of the submittal date.
5.SBCTA and BNSF will continue to coordinate their respective plans. After BNSF
provides the Plan Approval Confirmation Letter, SBCTA shall submit the SBCTA Plans tothe
City for final approval. BNSFshall submitits plans and specifications for the Railroad Work (the
“Railroad Plans”) to SBCTA, and shall affordSBCTA time to review and provide comments, if
any.SBCTA shall use diligent and good faith efforts to review and provide comments within
thirty (30) days of the submittal date. Afterresolution of commentsfrom SBCTA,BNSF shall
submit the Railroad Plansto the City for final approval. All plans submitted to the City for review
will be consistent with the SBCTA Plans approved by BNSFand the BNSF Plans that were
provided to SBCTA for reviewandcomment.In the event the Cityor SBCTArequestsany
changes to the SBCTA Planswhich impact BNSF operations, SBCTA shall submit the same to
the I/C for review, comment and acceptance and shall not incorporate such changes unless
BNSF has reviewed, commented on and accepted the same in writing by providing a
supplemental Plan Approval Confirmation Letter.Notwithstanding anything to contrary, SBCTA
will not agree as a condition to obtaining any approval of the SBCTA Plans from the City,to any
restrictions on BNSF’s rail operations or property.In the event the City or BNSF requests any
changes to the Railroad Plans that impact theSBCTA Plans, BNSFshall submit the same to
SBCTA for review and afford SBCTA time to provide comments, if any.SBCTA shall use
diligent and good faith efforts to provide any such comments within thirty (30) days of the
submittal date.BNSF shall not incorporate such changes unless SBCTA has reviewedand
commented on the same in writing.
6.Once theSBCTA Plansand the Railroad Plans (jointly, the “Preliminary Plans”)
have been approved by SBCTA, BNSFand,to the extent necessary,the Cityand any other
governmental authoritieswith jurisdiction over the Project Work (“Governmental Authorities”),
the Preliminary Plans shallbecome part of this Agreement andbeincorporated herein and
referred to hereunder as the “Final Plans.” Neither BNSF nor SBCTA shall make or agree to
any changes to the Final Plans withoutwrittenapproval ofthe other party.
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
7.Any acceptance of Final Plansbyeither SBCTA orBNSF shall in no way obligate
SBCTA orBNSF in any manner with respect tothe other Party’s plans,the finished product
design and/or constructionrelated thereto.Any such acceptance by either Partyshall mean
only that the other Party’s planshave been reviewed, and shall not be deemed to mean that
either Party has deemed the other Party’s construction is structurally sound and appropriate or
that such FinalPlans meet applicable regulations, laws, statutes or local ordinances and/or
building codes.
8.Notwithstandinganything to the contrary in this Agreement and as contemplated
in the Phasing Plan (as defined in Article VII, Section 1), demolition of the Existing Bridge and
replacement of the Existing Bridge, respectively,shall not commence unless and until the Final
Plans for those portions of the SBCTA Work have been approved by SBCTA, BNSF and, to the
extentnecessary, the City and Governmental Authorities.
ARTICLE III)GRANTSOF LICENSE/EASEMENTBY BNSF
1.Temporary Construction License. Upon execution of this Agreement, BNSF
hereby grants to SBCTA, its successors and assigns, upon and subject to all of the terms and
conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called,
“Temporary Construction License”) toperform the SBCTA Workin accordance with the Final
Plans,in order to timely complete the Project,across or upon the portion of BNSF’s right-of-way
and property described further on Exhibit A-1, excepting and reserving BNSF’s rights, and the
rights of any others who have obtained, or may obtain, permission or authority from BNSF, to do
the following:
(a)Operate, maintain, renew and/or relocate any and all existing railroad track or
tracks,wires, pipelines and other facilities of like character upon, over or under
the surface of said right-of-wayproviding such activities do not materially
interferewith the SBCTA Work described in this Agreement;
(b)Construct, operate, maintain, renew and/or relocate upon said right-of-way,
without limitation, such facilities as BNSF may from time to time deem
appropriate, provided such facilities do not materially interfere withthe SBCTA
Workpermitted in this Agreementor theCity’s maintenance and useof the
Replacement Bridgefor its permitted use as contemplated inthe Easement
(defined below);
(c)Otherwise use or operate the right-of-way as BNSF may from time to time deem
appropriate, provided such use or operations does not materially interfere with
the SBCTA Work or ultimateuse of theReplacement Bridge;
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(d)Require SBCTA or the DB Contractor to execute a Temporary Construction
Crossing Agreement, for any temporary crossing requested to aid in the
construction of this Project.
Notwithstanding the foregoing, after the Effective Date, BNSF shall not grant any rights
to third parties which would materially interfere with the SBCTA Work or the completion
of the Project.
The term of the Temporary Construction License shall commence upon the mutual
execution and deliveryof a fully-executedagreement between BNSF and the DB Contractor in
the form attached hereto as Exhibit Cand Exhibit C-1,and shall endon the earlier of (i)
completion of the SBCTA Work,or (ii) 60months following the Effective Date. The Temporary
Construction License and related rights given by BNSF to SBCTA in this provision are without
warranty of title of any kind, express or implied.BNSF represents that it is authorized to issue
the Temporary Construction License and has no knowledge of any claim by a third party of an
interest that has priority over those being granted to SBCTA under the Temporary Construction
License.The Temporary Construction License is at no cost to SBCTAor the DB Contractor, is
for SBCTA Workonly and shall not be used by SBCTA for any other purpose. SBCTA
acknowledges and agrees that SBCTA shall not have the right, under the Temporary
Construction License, to use theReplacement Bridgefor any purposeotherthan the completion
of the Project Work.
2.EasementFor Use and Maintenance.Upon the completion of the Projectin
compliance with the terms of this agreement,BNSF will grant to the City, its successors and
assigns,at no cost,an easement (hereinafter called, the “Easement”) to enter upon and use
that portion of BNSF’s right-of-way as is necessary to use and maintain theReplacement
Bridge, substantially in the form of Exhibit Battached to this Agreement.
3.RoadwayDedication.Conditioned on performance of the provisions of this
Agreement by SBCTAand the City, within four (4) months after the Effective Date, BNSF shall
quitclaim tothe City all right, title and interest in and to a 20-foot buffer stripalong Kingman
Street and Cabrera Avenue (the “Grant of Roadway”), for thepurpose of installing and
maintaininga buffer strip, utilities, and a 12 footblock wall and footings. Thequitclaim shall not
be subject to any material liens or encumbrances that would preclude the City from the use and
enjoyment of the Roadway. TheCity shall cause thegrant of theRoadwayto be recorded in
the Official Records of San Bernardino County.
4.Footing and Aerial Easements.Conditioned on BNSF’s acceptance of the Final
Plans for the portion of the SBCTA Work involving the herein described block wall, as well as
performance of the provisions of this Agreement by SBCTA and the City, BNSF shallgrant a
footing easementto the Cityfor the 12 foot block wall, at no cost to the City. In addition,
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conditioned on BNSF’s acceptance of the Final Plans for all portions of the SBCTA Work, as
well as performance of the provisions of this Agreement by SBCTA and the City, BNSF shall
grant an aerial easement for the ReplacementBridge,at no cost to the City.
ARTICLE IV)BNSF OBLIGATIONS
In consideration of the covenants of SBCTA and CITY set forth herein and the faithful
performance thereof, BNSF agrees as follows:
1.Railroad Work.BNSF shall complete certain“Railroad Work”generally
described in Exhibit Aattached hereto in accordance with the Final Plans and the terms and
provisions of this Agreement. BNSF will furnish all labor, materials, tools and equipment for the
Railroad Work.Notwithstanding anything to the contrary in this Agreement, BNSF shall have no
obligation to perform any Mitigation Work that costs in excess of the BNSF Contribution.
provided sufficient Mitigation Work is completed to allow SBCTA toutilize the work windows
specified in this Agreement.
2.Railroad Work Costs.
a.The estimated costs and expenses that BNSF will incur to complete the
Railroad Work(the “Railroad Work Costs”), including the costs and expenses that BNSF will
incur to complete the Mitigation Work (the “Mitigation Work Costs”) and the costs and
expenses that BNSF will incur to complete the Construction Support Work (the “Construction
Support Work Costs”),areshown separately in Exhibit Dattached hereto and made a part
hereof. In the event construction on the Project has not commenced within six (6)months
following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost
estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a
part of this Agreement as though originally set forth herein. Any item of work incidental to the
items listed on Exhibit Dnot specifically mentioned therein may be included as a part of this
Agreement upon written approval of SBCTA, which approval will not be unreasonably withheld.
For purposes of this Agreement,Railroad Work Costs shall include all actual and reasonable
costs and expensesincurred by BNSF or a BNSF contractor or consultant in the performance of
the Railroad Work that are approved by Caltrans for federal reimbursement, including all actual
costs and expenses of labor, travel, vehicles, lodging, meals, supplies, machinery, tools and
materials, Caltrans approved additives, overhead, applicable sales, use, business and
occupation, public utility taxes or any other tax, government charged or assessed fee, or other
like assessment or change of any kind, together with any interest, penalty, addition to tax or
additional amount imposed by any government authority, and actual costs to administer the
requirements of this Agreement. As discussed in more detail in Article IV, Section 2.e below,
BNSF shall be responsible for the Mitigation Work Costs up to the BNSF Contribution(i.e., up to
$29,500,000.00)in lieu of direct payment of the BNSF Contribution.SBCTA shall be
responsible for anyMitigation Work Costsin excess of the BNSF Contribution up toForty-Eight
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Million Three Hundred Twenty-Five Thousand and No/100 Dollars ($48,325,000.00) (the
“Reimbursement Cap”)(i.e.,SBCTA is responsible forany Mitigation Work Costs between
$29,500,000.00 and $48,325,000.00), and BNSF shall be responsible for any Mitigation Work
Costs in excess of the Reimbursement Cap (i.e., any Mitigation Work Costs in excess of
$48,325,000.00). The Parties agree that all Mitigation Work Costs advanced by BNSF pursuant
to the Engineering Agreement shall be considered Mitigation Work Costs for purposes of this
Agreement, even if those Mitigation Work Costs were advanced before the Effective date.As
also discussed in more detail in Article IV, Section 2.e below, SBCTA shall reimburse BNSF for
any and all actual Construction Support Work Costs (without any cap) within forty-five (45)days
after receiptof an invoice for the same.
b.If BNSF is required to perform work of an emergency nature caused by
SBCTA or the DB Contractor in connection with the Project which BNSF deems is reasonably
necessary for the immediate restoration of railroad operations, or for the protection of persons
or BNSF property,BNSF will include that cost as part of the Construction SupportWork Costs.
Such work may be performed by BNSF without prior approval of SBCTA, but BNSF shall
provide notice to SBCTA of such emergency work as soon as reasonably practical.
c.BNSF may includeany increases ininsurance expenses, including self-
insurance expensesdue to the Project, when such expenses cover the cost of Employer’s
Liability(including, without limitation, liability under the Federal Employer’s Liability Act) as part
of the RailroadWork Costsin connection with the construction of the Project. Such charges will
be considered part of the actual cost of the Project, regardless of the nature or amount of
ultimate liability for injury, loss or death to BNSF’s employees, if any.Suchactualincreases in
insurance expensesas shown by supporting documentationmay affecteitherMitigation Work
Costs or Construction Support Work Costs, and will appropriately be billed.
d.The cost of the I/C team shall be included separately in the Mitigation
Work Costs andthe Construction SupportWork Costs.
e.During the construction of the Project, BNSF will compile separate
monthly invoices for the MitigationWorkand Construction Support Workperformed by BNSF
under this Agreementandsegregated as to labor and materials for each item in the
recapitulation shown on ExhibitD.BNSF shall be solely responsible for the Mitigation Work
Costs identified in these invoices up to the BNSF Contribution(i.e., up to $29,500,000.00)in lieu
of direct payment of the BNSF Contribution. The BNSF Contribution constitutes a third party in-
kind contribution towards the Project to be accepted as amatch for FHWAfunds.In the event
anyMitigationWork Costs exceed the BNSF Contribution, as shown in the monthly cost reports
provided by BNSF,SBCTA shall be responsible for the Mitigation Work Costs in excess of the
BNSF Contribution up to the Reimbursement Cap(the “Reimbursable Mitigation Work
Costs”). SBCTA shall reimburse BNSF for the Reimbursable Mitigation Work Costswithin
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forty-five (45)days of the date of receipt of the invoice for such work.In the event any
Mitigation Work Costs exceed the Reimbursement Cap (i.e., $48,325,000.00), BNSF shall be
solely responsible for all Mitigation Work Costs in excess of the Reimbursement Capand
SBCTA shall have no obligation to reimburse BNSF for the same.SBCTA shallalsoreimburse
BNSF for any and all Construction Support Work Costs within forty-five (45)days of the date of
receipt of the invoice for such work. For clarification purposes, SBCTA’s reimbursement of
BNSF’s Construction Support Work Costs is not subject to any cap.
Once the BNSF Contribution in kindhas been satisfied, BNSF will
thereafter send SBCTA monthly invoices for payment ofany MitigationWork Costsin excess of
the BNSFin kind Contribution, segregated as to labor and materials for each item in the
recapitulation shown on ExhibitD.SBCTA must pay such charges within forty-five (45) days of
the date of receipt of such invoices once the BNSF in kindContribution has been satisfied.
BNSF will assess a finance charge of .033% per day (12% per annum) on any unpaid sums or
other charges due under this Agreement which are past its credit terms. The finance charge
continues to accrue daily until the date payment is received by BNSF, not the date payment is
made or the date postmarked on the payment. Finance charges will be assessed on delinquent
sums and other charges as of the end of the month and will be reduced by amounts in dispute
and any unposted payments received by the month’s end. Finance charges will be noted on
invoices sent to SBCTAunder this section. In the event there is a dispute regarding any such
invoices, SBCTA may withhold only the portion so disputed and shall pay as described above
any amounts that are not in dispute. If the disputed amount exceeds $2,500,000.00, BNSF may
suspend any RailroadWork until such dispute is resolved.
3.Timing of Railroad Work.BNSF shall perform the Railroad Work in accordance
with the PhasingPlan, defined in Article VII, Section 1below.BNSF reserves the right to
reallocate labor forces assigned to complete the RailroadWorkwhen necessaryto provide for
the immediate restoration of railroad operations in any location for which BNSF or its related
railroadsis responsibleor to protect persons or property on or near any BNSF-owned property.
In the event any such reallocation of labor forces results in a delay in thecompletion of the
RailroadWork, BNSF will make reasonableandgood faith efforts to make up the delay in the
schedule.
4.Project Reimbursement. Upon BNSF’scompletion of the MitigationWork, in the
event the MitigationWork Costs are less than the BNSF Contribution, BNSF shallmake
payment to SBCTA for an amount equal to the BNSF Contribution less the MitigationWork
Costs incurred by BNSF (the “Project Reimbursement”). If applicable, BNSF shall provide
SBCTA with the Project Reimbursement within ninety (90) days after BNSFcompletes the
Mitigation Work(such invoice to be accompanied by reasonable supporting documentation
evidencing the costs incurred by BNSFto complete the MitigationWork).
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5.BNSF will have the right to stop Project Work if, in itssole butreasonable
judgment, any of the followingevents take place: (i) SBCTA (or any of its contractors) performs
the Project Work in a manner contraryin any material respectto the Final Plans approved by
BNSF; (ii) SBCTA (or any of its contractors) prosecutes the Project Work in a manner that is
hazardous to BNSF property, facilities, peopleor the safe movement of railroad traffic; or (iii) the
insurance described in the attached Exhibit C-1is not in full force during the course of the
Project. Prior to any such stoppage, BNSF shall provide written notice to SBCTA of the event
giving rise to such stoppage and a reasonable opportunity to correct; provided that if, in BNSF’s
sole but reasonable judgment,the event createsanimminentthreat to persons, property or
BNSF operations, BNSF may stop the work immediately, but shall provide SBCTA with notice
as soon as practicable thereafter. Except in cases of an imminentthreat, the work stoppage
shall not occur until SBCTA has had a reasonable opportunity to commence corrective action
and has not done so. Once implemented, thework stoppage may continueonly as long as
necessary to remove threats to person, property or BNSF operations oruntil proof of additional
insurance has been delivered to and accepted by BNSF. Any such work stoppage under this
provision will not give rise to any liability on the part of BNSFunless it is determined that BNSF
did not act in accordance with this Agreement in stopping the work. BNSF’s right to stop the
work is in addition to any other rights BNSF may have including, but not limited to, actions or
suits for damages or lost profits. BNSF agrees to provide written notice of stoppage to:
SBCTA Director of Project Delivery and Toll Operations· 1170 W. 3rd Street, 2nd FloorSan
Bernardino, CA 92410 Fax:(909) 885-4407.
ARTICLE V)SBCTAOBLIGATIONS
SBCTAagrees as follows:
1.Permits. SBCTAmust(at its sole cost and expense)make any required
applicationsand obtain all applicablepermits and approvals for the construction of the Project
prior to commencing the SBCTA Workfor which a permit or approval is required.
2.AcquisitionParcels.SBCTA must (at its sole cost and expense)acquire all
rights-of-way necessary for the construction of the Project(except for those parcels in the
Relocation Areathat arealready owned by BNSF as of the Effective Date).Prior to the
Acquisition Parcels being conveyedto BNSF, SBCTA shall do the following as described in
ExhibitA(the “Acquisition ParcelWork”):(a)demolish,clear and remove in compliance with
all applicable environmental regulations, all structuresand improvements (any buildings, slabs,
foundations, footings, pits, septic tanks, fencing, sidewalk and driveway improvements)and any
and all vegetation (including trees, shrubs or other obstructions that can preclude any work
being performedby BNSF)as specified in Exhibit A under SBCTA Work; (b) remove all service
connections from residences to utility mainlines and cap themat the mainline;(c) cause the
abandonmentin place of the high-pressure gas lines located within the Vacated Areaand
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th
constructnew high-pressure gas line located outside of the Relocation Area(i.e., from 4
Street/CabreraAvenue, north on CabreraAvenueand east at KingmanStreetto tie into a
facility on MountVernon Avenue);and (d) complete all necessary clean-up of environmentally
sensitive materials in the structures located on or in soilconstituting any land involved in the
Acquisition Parcel Work(to the extent such environmentally sensitive materials were discovered
during the SBCTA Work on the Acquisition Parcels, including, without limitation, asbestos and
asbestos containing materials; subject, however, to BNSF’s right of inspection set forth in Article
V, Section 10 below),to all applicable regulatory action levelsand in accordance with all
applicable environmental laws, except to the extent BNSF generated the hazardous waste
requiring clean-up. Any clean-upby SBCTA shall be carried out with notification to BNSF.
3.SBCTA Work.SBCTAshall (at its sole cost and expense) completeall of the
“SBCTA Work” generally described in Exhibit Aattached hereto (the “SBCTA Work”)in
accordance with the Final Plansand the Phasing Plan attached hereto as Exhibit I.SBCTAor
the DB Contractor must furnish all labor, materials, tools and equipment for the performance of
the SBCTAWork.
4.SBCTA Work Requirements. In connection with SBCTA’s completion of the
SBCTA Work, SBCTA shall comply with all of the following:
a.SBCTAmust apply said D.O.T. Crossing number 026731F, and the
Public Utility Commission Crossing numberto be provided by BNSF in a conspicuous location
on the Replacement Bridge.
b.The SBCTA Work must be performed by SBCTA’sDB Contractor in a
manner that will not endanger or interfere with the safe and timely operations of BNSF and its
facilities.SBCTA and the DB Contractorshallfollow BNSF’s policies and guidelines, as set
forth in the following documents:
BNSF Railway Public Projects Manual
UP/BNSF Procedures for Grade Separation Projects
Shoring Guidelines
Demolition Guidelines
Utility Accommodation Policy
The agreement to be entered into between BNSF and the DB Contractor
in the form attached hereto asExhibit CandExhibit C-1.
c.Intentionally omitted.
d.SBCTAmust require its DB Contractoror any subcontractorsto notify the
I/Cat least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the
requirements of Exhibit Cattached hereto(and the I/C will coordinate with BNSF’s Roadmaster
and Project Engineer). Additionally, SBCTAmust require its DB Contractorand its
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subcontractorsto notify BNSF’s Manager of Public Projects thirty (30) calendar days prior to
commencing work on BNSF property or work outside BNSF property which may negatively
impact BNSF’s operations.
e.SBCTA must require its DB Contractor, and any subcontractors, under
contract to perform the SBCTA Workto provide the City defense, indemnification, and
insurance, including but not limited to naming the City, its officers, directors, employees and
agents as additional insureds,at least equal to the defense, indemnification, and insurance
provisions required of the DB Contractor and any subcontractors by SBCTA.
5.Intentionally omitted.
6.Reconstruction Requirements. Prior to commencement of demolitionWork
related to theExistingBridgeand until the Replacement Bridgeis deemed by SBCTA to be
ready for traffic, allnon-Project Worktrafficwill be excluded from the use of theExisting Bridge
or the Replacement Bridge, as the case may be. Additionally, temporary traffic controls during
construction must be in compliance with the appropriate sections ofthe Manual of Uniform
Traffic Control Devices (“MUTCD”), of U.S. Department of TransportationorCaliforniaDOT.
7.Intentionally omitted.
8.Contract Requirements. SBCTAmust require its DB Contractor to complywith
the obligations set forth in Exhibit CandExhibit C-1,as the samemay be revised from time to
time with revisions provided to SBCTA, and incorporate in itscontract with the DB
Contractorthe terms and provisions set forth in Exhibit C,Exhibit C-1andExhibit Fattached
hereto and by reference made a part hereof.In addition, except as otherwise provided below,
SBCTA shall include in its contract with the DB Contractor the followingrequirements:
(a)All work performed within the limits of BNSF’s right-of-way must be performed
in a good and workmanlike manner in accordance with the Final Plans
approved by BNSF;
(b)Changes or modifications during construction that may impactsafety or BNSF
operations aresubject to BNSF’s approval;
(c)No work will be commenced within BNSF’s right-of-wayor upon BNSF’s
propertyuntilthe DB Contractor and its subcontractors have (i)executed and
delivered to BNSF an agreement in the form of Exhibit C-1and (ii)delivered to
and secured BNSF’s approval of the required insurance; and
(d)To facilitate scheduling for the Project, SBCTA shall have the DB Contractor
give the I/C30daysadvance notice of the proposed times and dates for work
windows, no matter what the duration of the window is. BNSF’s contractorand
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1493069.1
SBCTA or SBCTA’sDB Contractorwill establish mutually agreeable work
windows for the Project. BNSF has the right at any time to revise or change
the work windows, due to train operations or service obligations. BNSF will not
be responsible for any additional costs and expenses resulting from a change
in work windows.BNSF, SBCTA and the DB Contractor shall cooperate in
good faith and promptly communicate to coordinate and establish mutually
agreeable work windows for the Project, including designating an alternative
work window if a designated work window becomes unavailable in whole or in
part.The Parties acknowledge that the following work windows have been
tentatively approved by BNSF (without being an enforceable commitment by
BNSFor the DB Contractor) for SBCTA’sDB Contractor to use.
Notwithstanding the foregoing, the following work windows would be formally
submitted to the I/C 30days in advance of the actual work window.
(i)4 hour absolute window on all BNSF main tracks from December 26 to
October 1;
(ii)One (1) 55hour window in the Intermodal Yard from December 26 to
January 15;
(iii)One (1) 27 hour window in the Intermodal Yard from January 16 to
September 30if the 55 hour window is not given; and
(iv)Once 2 shooflies are constructed, SBCTA’s DB Contractor will have
availability of 2 non-mainline tracks year-round (but not the right to use or
operate the tracks for railroad purposes), provided proper notice is given
to BNSFin advance and with coordination with the I/C.
(e)The Final Plans for the Project must be in compliance with theBridge
Requirements set forth on Exhibit F, attached to this Agreement and
incorporated herein.
9.Liens. SBCTA will promptly pay and discharge any and all liens arising out of the
SBCTAWork. Notwithstanding the foregoing, subject to the conditions provided hereunder,
SBCTA may in good faith contest any mechanics’, laborers’, materialmen’s or other liens filed or
established against BNSF property. BNSF is hereby authorized to post any notices or take any
other action upon or with respect to the BNSF property that is or may be permitted by applicable
law to prevent the attachment of any such liens to such property; provided, however, that failure
of BNSF to take any such action will not relieve SBCTA of any obligation or liability under this
Agreement. SBCTA will include in its contract with the DB Contractor, and require the DB
Contractorperforming any work on the BNSF property or providing materials to include in its
contracts with itssubcontractors, a notice and acknowledgement by the party providing work or
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1493069.1
materials that BNSF is not liable for any amounts due such DB Contractoror sub-contractors
and waiving any right to place a lien on any BNSF property. In the event that SBCTA contests
any mechanics’, laborers’, materialman’s or other liens as set forth above, BNSF may require
that SBCTA furnish reasonable security to ensure payment and to prevent any sale, foreclosure
or forfeiture of any BNSF property by reason of nonpayment. Upon a final determination of the
validity of such lien or claim, SBCTA will promptly pay any judgment or decree rendered against
SBCTA, BNSF or other party in connection with the foregoing, including without limitation, all
proper costs and charges, and will cause such lien to be released of record, all without cost to
BNSF.
10.Completion.For each portion of the SBCTA Work identified on the Phasing Plan,
at such time as SBCTA believes it has completed said portion, SBCTA shall provide BNSF with
written notice of the same. Thereafter, SBCTA and BNSF shall schedulea walk-through to
inspect that portion of the SBCTA Workincluding, without limitation, inspection of SBCTA’s
cleanup of environmentally sensitive materials at the Acquisition Parcels, as contemplated in
Article V, Section 2 above. If BNSF reasonably determines that aportion of the SBCTA Work is
incomplete and/or needs to be corrected to conform to the Final Plansfor that portion of the
SBCTA Work, BNSF shall provide SBCTA with written notice of the samewithin ten (10)
business days of the walk-throughand SBCTAshall thereafter promptly coordinate and/or begin
anyrequired workwithin ten business (10)days of BNSF’s noticeand thereafter diligently
pursue the same to completion. If BNSF determines that portion of the SBCTA Work is
complete, BNSF shall provide SBCTA with written notice of the samewithin ten (10)business
days. No portion of the SBCTA Work withinBNSFright of wayshall be considered complete
under this Agreement until the same has been inspected and accepted by BNSF and BNSF has
provided SBCTA with written confirmation of the same.Any approval of any SBCTA Work by
BNSF shall in no way obligate BNSF in any manner with respect to the finished product design
and/or construction. Any approval by BNSF shall mean only that such work meets the
standards of BNSFas reasonably determined by BNSF, and such approval by BNSF shall not
be deemed to mean that such work is structurally sound and appropriate or that such Final
Plansmeet applicable regulations, laws, statutes or local ordinances and/or building codes.
11.Indemnity and Release.
TO THE FULLEST EXTENT PERMITTED BY LAW, SBCTAHEREBY RELEASES,
INDEMNIFIES, DEFENDSAND HOLDS HARMLESS BNSF, ITS AFFILIATEDCOMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST
ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES,
LIENS, CAUSES OF ACTION, SUITS, DEMANDS,JUDGMENTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS’FEES) OF ANY
NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION,
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THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY DIRECTLY OR INDIRECTLY
ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR INPART) (I) THE
USE, OCCUPANCY OR PRESENCE OF SBCTA, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE PROJECT SITE,
(II) THE PERFORMANCEOR FAILURE TO PERFORM BY SBCTA, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION
UNDER THIS AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OROMISSIONS OF
SBCTA, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON,
OR ABOUT THE PROJECTSITE, (IV) SBCTA’S BREACH OF THE TEMPORARY
CONSTRUCTION LICENSEOR EASEMENT GRANTEDTO SBCTA PURSUANT TO
ARTICLE IIIOF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO
SBCTA PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE OR EASEMENT
DISCUSSED IN ARTICLE IIIOF THIS AGREEMENT, (VI) SBCTA’S OCCUPATION AND USE
OF BNSF’S PROPERTY OR RIGHT-OF-WAY, OR (VII) AN ACT OR OMISSION OF SBCTA
OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OFTHEM, OR ANYONE THEY
CONTROL OR EXERCISE CONTROL OVER.THE LIABILITYASSUMED BY SBCTAWILL
NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION,
INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE
OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEESOR OTHERWISE, EXCEPT TO THE
EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL
MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
12.Notice to Proceed.SBCTAmust give BNSFwritten notice to proceed (“Notice
to Proceed”) with the Railroad Workafter execution of this Agreement. BNSF has no obligation
tobeginthe Railroad Work(including, without limitation, procurement of supplies, equipment or
materials) until written notice to proceed is received from SBCTA.
13.SBCTA must inspect the work of the DB Contractorto ensure compliance with
the Final Plans approved by BNSF, the terms of this Agreement and all safety requirements of
BNSF.
14.Within 90 days of the conclusion of the Projectand final acceptance by BNSF,
SBCTA will provide BNSF with a complete electronic set of theReplacementBridgeplans
labeled “As Built”. Those plans will reflect any and all deviations from the original plans that
occurred during construction. The “As Built” plans will be submitted in redline PDF format.
Actual measured “as constructed” clearances shall be shown as well as depth, size and location
of all foundation components. The plans shall show dimensioned locations of existing and
relocated utilities.
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15.Preliminary Design Review.Notwithstanding anything to the contrary in this
Agreement, within forty-five (45) days after receiptof an invoice and supporting documentation
thereof, SBCTA shall reimburse BNSF for the actual costs incurred by BNSF in connection with
the preliminary design review completed by BNSF prior to the Effective Date of this Agreement
(including the costs incurred by BNSF and Wilson and Companyfor preliminary design review
and support during the SBCTA procurement process and coordination with the design build
team regarding BNSF structures).
16.Upon the conclusion of the Project (or any discrete segmentthereof), SBCTA
shall assign to BNSF or otherwise make available to BNSF allwarranties from contractors,
equipment manufacturers or others that benefit the Project.
ARTICLE VI)CITYOBLIGATIONS
In considerationof the covenants of BNSF and SBCTA herein contained and the faithful
performance thereof, Cityagrees:
1.To permit SBCTA to act as the responsible lead to design and construct the
Project, with City oversight.
2. Upon completion, City will own and maintain, at its sole cost and expense, the
Replacement Bridge, the roadway approaches, and appurtenances thereto, lighting, drainage
and any access roadway to BNSF’s right-of-way installed pursuant to this Agreement.
3.Subject to all legal requirements for notice, hearing and deliberation, topromptly
initiate and make good faith diligent efforts to complete vacation of that portion of 4th Street
located within the Relocation Area,at no cost to BNSF.
4.AtCity’ssole cost and expense, keep theReplacement Bridgewell maintained
and promptly remove anygraffiti.
5.Maintain the DOT No. 026731F signage in legible condition in the conspicuous
locations on theReplacement Bridgewhere applied by SBCTAduring construction.
6.It is understood byCity that any proposed utility crossing in, above, or under
BNSF’s property will be permitted by way of a separate agreement between BNSF and the
owner of the utility and the approval of the City, except the replacement of the encased water
line that SBCTA will install as part of the SBCTA Work.
7.Notwithstanding the foregoing, it is expressly understood that the Easement
grants the City or SBCTA acting on behalf of the City, the right to install, upgrade, replace, and
maintain utilities on,above or within theReplacement Bridgeso long as the utilities are used
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exclusivelyto serve theReplacement Bridgefor highway purposes.These utilities do not
require a separate permit or license agreement from BNSF.
8.IfCity performs (i) alterations or modifications to theReplacement Bridge, or (ii)
any maintenance or other work on theReplacement Bridgewith heavy tools, equipment or
machinery at ground surface level, horizontally within 25’-0”of the centerline of the nearest
track, or (iii) any maintenance or other work outside the limits of the deck of theReplacement
Bridgevertically above the top of the rail, thenCityshall provide BNSF defense and
indemnification at least equal to the defense, indemnification and insurance provisions
contained in the current Exhibit C-1at the time alterations or modifications to theReplacement
Bridgeare undertaken, in accordance with California Government Code section 14662.5.
Nothing herein shall be deemed to insure BNSF against its sole negligence or willful
misconduct. Notwithstanding the foregoing, City agrees not to commence such alterations,
modifications, maintenance, or other work to theReplacement Bridgeuntil such time asthe City
has procured, at its sole cost and expense, the insurance coverage described below, as
required by Exhibit C-1.
In connection with the foregoing work, then City or its contractors and/or agents must
procure and maintain the following insurance coverage, which may be changed from time to
time:
Railroad Protective Liability insurance naming only BNSFas the Insured with coverage
of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy
shall be issued on a standard ISO form CG 00 35 12 04 and include the following:
Endorsed to include the Pollution Exclusion Amendment.
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to remove any exclusion for punitive damages.
Endorsed to include Evacuation Expense Coverage Endorsement.
No other endorsements restricting coverage may be added.
The original policy must be provided to BNSFprior to performing any
work or services under this Agreement.
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’ care, custody,
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
and control arising out of the acts or omissions of the contractor named
on the Declarations.”
As used in this paragraph, “BNSF”means “Burlington Northern Santa Fe, LLC”, “BNSF
RAILWAY COMPANY” and the subsidiaries, successors, assigns and affiliates of each.
In lieu of providing a Railroad Protective Liability Policy, the Citymay participate in
BNSF’s Blanket Railroad Protective Liability Insurance Policy if availableto the Cityor its
contractors. The limits of coverage are the same as above.
9.Subject to the restrictions imposed by Article VII, Section 8below,notify and
obtain prior authorization from BNSF’s Manager Public Projects to perform (i) inspection that
requires access to BNSF’s right-of-way or property, (ii) alterations or modifications to the
Replacement Bridge, or (iii) any maintenance or other work on, over or under theReplacement
Bridge. Before entering BNSF’s Rail Corridor or for work located a minimum distance of 25’-0”
measured horizontally from the centerline of the nearest track or a greater distance specified by
BNSF’s Manager Public Projects, Citymust comply with the obligations set forth in Exhibit C,
Exhibit C-1and Exhibit F, as the same may be revised from time to time.
10.Ownand maintain, at its sole cost and expense,any fencing and walls built by
SBCTA as part of the Project Work, in addition to any landscaping associated with such fencing
and walls.
11.Accepta20-foot buffer strip in fee,at no cost,and cause the recordation of the
same in the Official Records ofSan Bernardino County in accordance with Article III, Section 3
above.
12.THE CITYHEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS BNSF
FROM, AND TO REPAIR OR PAY FOR ANY DAMAGE PROXIMATELY CAUSED BY
REASON OF THE CITY PERFORMING OR FAILING TO PERFORM UNDERTHIS
AGREEMENT AND THE EASEMENTS PERTAINING TO THEREPLACEMENT BRIDGE.
13.City hereby agrees that BNSF shall have the right to construct a new driveway
along Kingman Streetfor ingress and egress to and from BNSF’s employee parking lot.
14.Citymay, atCity’s sole expense, alter or reconstruct the highway components of
the Replacement Bridgeif necessary or desirable due to traffic conditions or pedestrian or other
recreational traffic, provided, however, that any such alteration or reconstruction must receive
BNSF’s prior written approvalas evidenced by either a supplement to this Agreement, or
execution of a newagreement that provides for the termination of this Agreement.Furthermore,
any alteration or reconstruction of the highway components of theReplacement Bridgewill be
covered by a Commission Order.
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
15.The City and BNSF agree that certain maintenance work to be performed by the
City or its contractors under this Agreement maynotimpact track operationsand poses less risk
to bodily injury, personal injury and property damage (e.g., graffiti removal, street light repairs,
pavement striping) (such work hereinafter referred to as “Minor Maintenance Work”). Whether
maintenance work constitutes “Minor Maintenance Work” shall be decided by BNSF (in its sole
and absolute discretion) on a case-by-case basis. In the event BNSF confirms in writing to the
City that certain maintenance work constitutes “Minor Maintenance Work,” notwithstanding
anything to the contrary in this Article VI, instead of the City and its contactors being required to
obtain commercial general liability insurance and railroad protective liability insurance with
coverage in the amount of at least $5,000,000 per occurrence and $10,000,000 in the
aggregate (as provided in Exhibit CandExhibit C-1hereto), the City and its contractors shall
only be required to obtain commercial general liability insurance and railroad protective liability
insurance withcoverage in the amount of at least $2,000,000 per occurrence and $4,000,000 in
the aggregate and $2,000,000 per occurrence and $6,000,000 in the aggregate, respectively.
16.In addition to the terms and conditions set forth elsewhere in this Agreement,
including, but not limited to, the terms and conditions stated in Exhibit F, the Parties agree to the
following terms upon completion of construction of the Project:
(a)City will own and maintain, at its sole cost and expense, theReplacement
Bridge, the highway approaches, and appurtenances thereto, lighting,
drainage and any access roadways to the right-of-way line.BNSF may, at
City’s solecost, perform maintenance on theReplacement Bridgeif
necessary to avoid conflicts with train operations. BNSF will notify Cityprior
to performing any such maintenance on theReplacement Bridge. In the
event such maintenance involves emergency repairs, BNSF will notify City at
its earliest opportunity.City must fully reimburse BNSF for the costs of
maintenance performed by BNSF pursuant to this subsection (a).
(b)For any inspection or maintenance, either routine or otherwise, performed by
contractors on behalfof City,Cityshallrequire the contractors to comply with
the provisions of the attached Exhibit Cand execute the agreement attached
hereto as Exhibit C-1.Prior to performing any future maintenance with its
own personnel, the Cityshall: comply with all of BNSF’s applicable safety
rules and regulations; require any Cityemployee performing maintenance to
complete the safety training program at the BNSF’s Internet Website
“www.BNSFContractor.com”; notify BNSF when, pursuant to the
requirements of Exhibit C, a flagger is required to be present; procure, and
have approved by BNSF’s Risk Management Department, Railroad
Protective Liability insurance.
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
ARTICLE VII)JOINT OBLIGATIONS
IN CONSIDERATION of the covenants contained herein, the Parties hereto mutually agree to
the following:
1.Phasing Plan.The Parties hereby agree that the SBCTA Work and the Railroad
Work shall be completed in accordance with the sequenced phasing plan (the “Phasing Plan”),
which is attached hereto as Exhibit I.BNSF, SBCTA and the DB Contractor shall cooperate in
good faith in mutually agreeing on modifications of the Phasing Planfrom time to time.
2.Timing; Sequenced Construction; Phasing Plan. The general phasing of
construction is listed below; provided, however, in the event of any conflict between the
provisions of the Phasing Plan and the provisions below, the provisions of the Phasing Plan
shall supersede and control.Some activities are or may be accomplished simultaneously. The
activities include:
a.BNSF bids mitigation work and may begin mitigation work on existing
BNSF property;
b.SBCTA obtains legal possession of Acquisition Parcels, demolishes
buildings and clearssitesof acquiredproperties as properties become cleared;
c.BNSF constructstemporary crossingswithin BNSF right of way for
SBCTA demolition and construction purposes; provided, however, that the process for such
construction will begin with a request from SBCTA or the DB Contractor, execution of a
separate agreement between BNSF and the DB Contractor regarding the work, including the
agreement of the DB Contractor to pay BNSF the cost of the work, as Construction Support
Work.
d.SBCTA Design Builder to prepare an ExistingBridgedemolition plan,
approved by BNSF, and perform demolition ofthe ExistingBridgesuperstructure;
th
e.SBCTA reconfigures 4Streetand CabreraAvenueintersection, closing
it to through traffic, constructs buffer wall and reroutes gas, electric, water and sewer line
facilities currently located in 4thStreet;
f.BNSF completes building relocations, employee parking, and constructs
portions of shoofly tracks 218 and 219 which are not in conflict withthe ExistingBridge
superstructure;
g.SBCTA demolishes ExistingBridgesubstructure in conflict with tracks
216, 217, 218 and 219;
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 21
1493069.1
h.BNSF realigns tracks 216 and 217; and
i.SBCTA completes all remaining demolition and constructs Replacement
Bridge.
SBCTA shall not commence the reconstruction of theReplacementBridgeuntil SBCTA
has completed the Demolition Work and the Acquisition Parcel Work, BNSF has completed
building relocations, employee parking, and has constructed portion of shoofly tracks 218 and
219, as provided in Article VII, Section 2 aboveand BNSF has given notice of completion of all
of the foregoing to SBCTA.
3.Allwork contemplated in this Agreement must be performed in a good and
workmanlike mannerand in accordance with the Final Plans and each portion must be promptly
commenced by the Party obligated hereunder to perform the same and thereafter diligently
prosecuted to conclusion in accordance with the Phasing Plan. Furthermore, any changes or
modifications during construction which affect BNSF will be subject to BNSF’s written approval
prior to the commencement of any such changes or modifications from theproject engineer or
inspector coordinator.BNSF shall promptly consider any such request, and BNSF shall not
unreasonably withhold its consent.
4.The work hereunder must be done in accordance with the BridgeRequirements
set forth on Exhibit Fand the Final Plansapproved bythe Parties.
5.Each party will pay its own attorneys’ fees and litigation costs in any action to
enforce the terms of this Agreement.
6.The Partiesmutuallyagree that neither construction activities for the Project
(except as discussed in Article V, Section 8above), nor future maintenance of theReplacement
Bridgeonce completed, will be permitted during the fourth quarter of each calendar year
affecting the main line tracks, except in the event such work is immediately necessary to protect
property or persons. Such emergency work will be permitted only upon prior notification to
BNSF’s Network Operations Center (telephone number: 800 832-5452). The Partieshereto
mutually understand and agree that trains cannot be subjected to delay during this time period
except in the case of an emergency (i.e., imminent harm or damage to persons or property).
7.The Parties shall be excused from performance under this Agreement(excluding
BNSF’s obligation to fund the BNSF Contribution as contemplated herein)when its performance
is prevented by a Force Majeure Event. For purposes of this Agreement, the term “Force
Majeure Event” means any event or cause beyond the reasonable control of the Parties
including, without limitation, the following: (i)unusually severe weatherconditions such as
drought, flood, tornado, storm or lightning, washout, heat or cold, earthquake or other acts of
God; (ii)sabotage, riot, fire, civil disturbance, epidemic, casualty, explosion, terrorismor war;
CONSTRUCTION AND MAINTENANCEAGREEMENT
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1493069.1
(iii)strikes, work stoppages, wage scale changes and other similar labor problems and
circumstances; (iv)organized, institutional or community opposition to the Project; (v)an order
entered by a court of competent jurisdiction enjoining or materially impairing construction of the
Project; (vi)failure to obtain or the withdrawal or denial of any Government Authorization;
(vii)the unavailability of the necessary materials in a commercially reasonable manner; (viii)the
existence of Indian relicsor artifactsor protected species of plants or animals or environmental
contamination;(ix)changes following the EffectiveDate in any federal, state of local laws, rules,
regulations or codes, or in the interpretation thereof; and/or (x)delays by labordisputes,
unavailability of necessary materials, adverse weather conditions or other natural events
beyond the control of the Parties. For purposes of this Agreement, the term “Governmental
Authorization” means any: (a)permit, license, franchise, certificate, concession, approval,
consent, ratification, permission, clearance, confirmation, endorsement, waiver, certifications,
designation, rating, registration, qualification or authorization issued, granted, given or otherwise
made available by or under the authority of any Governmental Authority or pursuant to any law;
or (b)right under any contract with any Governmental Authority. For purposes of this
Agreement, the term “Governmental Authority” means any federal, state or local or other
governmental or administrative authority, agency, court or tribunal having jurisdiction.
8.Subject to the restrictions imposed by Article VI, Section 6above and in
accordance with the requirements of Article V, Section 4above, City and/or SBCTAmust notify
and obtain prior authorization from BNSF’s Manager of Public Projects before entering BNSF’s
right-of-way for inspection or maintenancepurposes, and the BNSF Manager of Public Projects
will determine if flagging is required.
9.If the Projectis not completedfor reasons not related to any defaults by BNSF,
SBCTA shall restore BNSF’s right-of-way and BNSF’s propertyto as close to its pre-existing
condition as reasonably possible.
10.Any books, papers, records and accounts of the Partieshereto relating to the
work hereunder or the costs or expenses for labor and material connected with the construction
will at all reasonable times be open to inspection and audit by the agents and authorized
representatives of the parties hereto, as well as the State of California and the Federal Highway
Administration, three (3) years from the date of final BNSF invoice under this Agreement.
11.The covenants and provisions of this Agreement are binding upon and inure to
the benefit of thesuccessors andassigns of the Parties hereto. Notwithstanding the preceding
sentence, no Partyhereto may assign any of its rights or obligations hereunder without the prior
written consent of the other Parties.
12.In the event SBCTA Workdoes not commence within 18months of the Effective
Date, this Agreement will become null and void.
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 23
1493069.1
13.Neither termination nor expiration of this Agreement will release anyPartyfrom
any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting
from any acts, omissions or events happening prior to the date of termination or expiration.
Notwithstanding the foregoing, with the exception ofArticle IV, Section 2 (regarding SBCTA’s
reimbursement obligations); Article V, Section 9 (regarding SBCTA’s lien discharge obligations);
Article V, Section 11(regarding SBCTA’s indemnification obligations); Article V, Section 14
(regarding SBCTA’s obligation to provide “as built” plans); Article VII, Section 5 (the attorneys’
fees provision); Article VII, Section 9 (regarding SBCTA’s restoration obligations),and Article
VII, Section 10(regarding SBCTA’s bookkeeping obligations), , SBCTA’s obligations under this
agreement shall terminate and/or be deemed satisfied uponthe completion of the Project Work.
14.To the maximum extent possible, each provision of this Agreement will be
interpreted in such a manner as to be effective and valid under applicable law. If any provision
of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will
be ineffective solely to the extent of such prohibition or invalidity and the remainderof the
provision will be enforceable.
15.This Agreement(including exhibits and other documents, manuals, etc.
incorporated herein) is the full and complete agreement between the Partieswith respect to the
subject matter herein and supersedes any and all other prior agreements between the Parties
hereto.
16.Except as otherwise provided herein, any notice provided for herein or
concerning this Agreement must bein writing and will be deemed sufficiently given when sent
by certified mail, return receipt requested, to the Parties at the following addresses:
BNSF:Paul Cristina
Director of BNSF Public Projects
2650 Lou Menk Dr. OOB 3rd Floor
Fort Worth, TX 76131
Telephone: 817-352-1549
Paul.Cristina@BNSF.com
SBCTA:Paula Beauchamp
Director of Project Deliveryand Toll Operations
1170 West Third Street, Second Floor
San Bernardino, CA 92410-1715
Telephone: (909) 884-8276
pbeauchamp@gosbcta.com
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 24
1493069.1
CITY:Alex Qishta, P.E.
DeputyDirector of Public Works/City Engineer
290North “D”Street
San Bernardino, CA 92401
Telephone: (909)384-5019
17.This Agreement may be amended, modified or terminated only by a written
instrument duly executed by the Parties hereto (or their successors-in-interest).
Notwithstanding the foregoing or anything to the contrary in this Agreement, the Parties hereby
acknowledge and agree that this Agreement and BNSF’s obligations hereunder are expressly
conditioned upon (a)execution ofthe Property Conveyance Agreementand (b)the vacation by
th
City of that portion of 4Street located in the Relocation Area, at no cost to BNSF.In the event
the Property Conveyance Agreement is terminatedas a result of City’s failure to vacate such
th
portion of 4Street at no cost to BNSF, this Agreement shall terminate, at BNSF’s electionand
the Parties shall have no further rights or obligations hereunder, except for those that expressly
survive any termination of this Agreement.
18.Timeis of the essence of this Agreement and each and every term and provision
hereof.
19.Each Party shall, whenever and as often as it shall be requested to do so by the
other Parties, execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, any and all such further conveyances, assignments, approvals, consents and any and
all other documents and do any and all other acts as may be necessary to carry out the intent
and purpose of this Agreement.
20.A waiver by any Party hereto of a breach of any of the covenants or agreements
hereof to be performed by the other Parties shall not be construed as a waiver of any
succeeding breach of the same or other covenants, agreements, restrictions or conditions
hereof.
21.This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which, together, shall constitute one and the same instrument.
The Parties hereto intend to be bound by the signatures on the facsimile or electronic
document, and hereby waive any defenses to the enforcement of the terms of this Agreement
based on the use of a facsimile or electronic signature; provided, however, that the Parties
hereby agree to execute and provide to each other original signatures, upon the request made
by any Party to the others.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed and
attested by its duly qualified and authorized officials as of the day and year first above written.
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 25
1493069.1
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 26
1493069.1
BNSF RAILWAY COMPANY
SIGNATURE PAGE
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
APPROVED AS TO FORM:
By: _________________________________
Its: _________________________________
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 27
1493069.1
SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY
SIGNATURE PAGE
SAN BERNARDINO COUNTY
TRANSPORTATION AUTHORITY
By: ____________________________
Darcy McNaboe
President, Board of Directors
APPROVED AS TO FORM:
By:_____________________
Julianna K. Tillquist
General Counsel
By:_____________________
Jeffery Hill
Procurement Manager
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 28
1493069.1
CITYOF SAN BERNARDINO
SIGNATURE PAGE
CITY:
CITYOF SAN BERNARDINO
By:
Printed Name:
Title:
APPROVED AS TO FORM:
By: _________________________________
Its: _________________________________
CONSTRUCTION AND MAINTENANCEAGREEMENT
Page 29
1493069.1
Exhibit A
DESCRIPTION OF PROJECT WORK
“SBCTA Work”:
Demolitionand removal of the the Existing Bridge,to be completed no later than
April 25, 2024;
Reconstruction of theExisting Bridge;
Improvements to existing streets, storm drains, traffic signals and related work
necessitated by the removal and replacement of theExisting Bridge, as more
fully described in that certain Supplemental Environmental Assessment andFinal
Programmatic Section 4(f) Evaluationwith Finding of No Significant Impact,
dated October 9, 2018;
Fencing, includinga wall at thenorth and west perimeter of the acquisition area
and including fencing necessary to keep the construction site and BNSF property
secure during construction;
Gradingand pavingfor bridgeand street construction and clearing and grubbing
of Acquisition Parcel areaafter demolition;
Preliminary and construction engineering and contract preparationfor SBCTA’s
Design Builder’s work;
Any and all work necessary to support the City’s vacation ofthat portion of 4th
Street located within the Relocation Area;
Demolition, clearance and removal from the Acquisition Parcelsin compliance
with allapplicable environmental regulations, any and all structures and
improvements (any buildings, slabs, foundations, footings, pits, septic tanks,
fencing, sidewalk and drivewayimprovements, service connectionsand utility
lines up to the main lines) and any and all vegetation (including trees and
shrubs). The aforementioned includes the demolition, clearance and removal of
all sidewalk and drivewayimprovements, except for those along 4th Street;
Fill and compact all areas within the Acquisition Parcel areawhere structures
and/or service utilities have been removedand capped;
All design and engineering of theExisting Bridgedemolition and Replacement
Bridgeconstruction;
Backfill of SBCTA excavations on BNSF’s right-of-wayat future wall footing
location;
Temporary installation of K-Rail (Jersey) barriers, chain link fencingor other
security measures that preclude access to the Site on Mount Vernon Avenue
between 2nd and 5th Streets;
Abandonment of the high-pressure gas lineslocated within the Vacated Area and
construct anew high-pressure gas line that will be located outside the Relocation
th
Area (i.e.,from 4
Street/CabreraAvenue,north on CabreraAvenueand east at
KingmanStreetto tie into afacility on MountVernonAvenue) and construct a
replacement encased waterline on the Replacement Bridge;
Installation and maintenance of an 8-ft. high fence and/or concrete combination
(throw fence) on the outside barrier of theReplacement Bridge;and
Clean-up of the Acquisition Parcelsincluding removal of all construction
materials, concrete debris, surplus soil, refuse, contaminated soils(including
remediation of contamination to all applicable regulatory action levels and in
EXHIBIT A
1493069.1
accordance with all applicable environmental laws), asphalt debris, litter and
other waste materialslocated on the Acquisition Parcels to the reasonable
satisfaction of BNSFuntil the area is turned over to BNSF for Mitigation Work.
Clean-up of the Project Work areanot already turned over to BNSFincluding
removal of all construction materials, concrete debris, surplus soil, refuse,
contaminated soils(including remediation of contamination to all applicable
regulatory action levels and in accordance with all applicable environmental
laws), asphalt debris, litter and other waste materials caused by the SBCTA
contractor to the reasonable satisfaction of BNSFafter completion of the Project
Work.
Convey the Acquisition Parcels to BNSFproviding BNSF is in compliance with
the terms of this agreement and the Property Conveyance Agreement.
“RailroadWork”:
Mitigation Work(funded byBNSF Contribution and SBCTA subject to theSBCTA
Reimbursement Capwith any additional costs to be borne solely by BNSF, some of
which has been performed before the date of this Agreement).
Alterations to, or new construction of, drainage facilities (temporary and
permanent)on the Relocation Area;
Grading of the Relocation Area;
Demolition, clearance and removal from theRelocation Area other than the
Acquisition Parcelsany and all structures and improvements (including, without
limitation, any buildings, slabs, foundations, footings, pits, septic tanks, fencing,
sidewalk and driveway improvements, serviceconnectionsand utility
improvements) and any and all vegetation (including trees and shrubs). The
aforementioned includes the demolition, clearance and removal of sidewalk and
th
driveway improvements along 4Street;
Fill and compact all areas within the Relocation Area other than the Acquisition
Parcel areawhere structures and/or service utilities have been removedand
capped;
Remove all utilities from the Relocation Area (other than those noted above as
SBCTA WorkonAcquisition Parcels) toadjacentpublic rights-of-way (i.e.,
Cabrera Avenue, Kingman Street and/or MountVernon Avenue) and cap them;
Completion of temporary and/or permanent mitigation measures necessary to
reduce and offset the impact of the Project upon BNSF’s operationsand trailer
parking as shown on BNSF Plans;
o Relocation and reconstruction of a portion of BNSF’s railroad
tracks (both temporary and permanent), including all
telecommunications, railroad signals,air lines and other utilities,
grading, drainage facilities, roadbed, track crossings, paving, and
any other civil work related to the track construction or relocation
associated with tracks 216/226, 217/227, 218/228 and219/229as
needed for track realignment with the Replacement Bridge
reconfiguration;
Relocation of a portion of the BNSF intermodal operations area and parking lot to
the Relocation Area, including construction and demolition of buildings and other
facilities;
EXHIBIT A
1493069.1
Preliminary and construction engineering, design,contract preparation, and
constructionfor RailroadMitigationWork;and
Procurement of labor,materials, equipment and supplies necessary for the
Railroad Work.
Except for utility coordination, removal and/or relocation,which SBCTA is
required to perform, any utility coordination, removal, and/or relocation necessary
for Railroad Work.
Completion of BNSF’s due diligence inspection of the Acquisition Parcels under
the Property Conveyance Agreement (including the Survey and BNSF’s
Environmental Reports, as defined therein), BNSF’s review of the condition of
title of the Acquisition Parcels under the Property Conveyance Agreement,
obtaining the Owner’s Policy referenced in the Property Conveyance Agreement,
and the payment of title and escrow fees in accordance with the Property
Conveyance Agreement.
Construction Support Work(work that is not subject to any limitation or cap, including the
Reimbursement Cap, some of which has been performed before the date of this
Agreement)
Relocation and reconstruction of a portion of BNSF’s railroad tracks (both
temporary and permanent), including all telecommunications, railroad signals, air
lines and other utilities, grading, drainage facilities, roadbed, track crossings,
paving, and any other civil work related to the track construction or relocation
needed to support existing foundation removals (reference existing bent
foundations demolition limits)and to support demolition and construction of the
Replacement Bridge(modifications to crossings, air system and other utilities are
necessary to support construction of the Replacement Bridge, which will bewider
than the Existing Bridge);
Furnishing of flagging services during construction of the Project as required and
set forth in further detail on Exhibit C;
Furnishing engineering and inspection as required inconnection with the
construction of the Project;
Providing a contract project coordinator to serve as a project manager for the
Project;
Providing a designated BNSF operations employee to serve as train operations
coordinator;
Providing a designated BNSFengineeringemployee to serve as engineering
coordinator;
Protection of BNSF signal, telecommunications lines, and any other utilities that
could possibly be damaged during demolitionof the Existing Bridgeor
construction of the Replacement Bridge;
Constructionand removalof a temporary at-grade construction crossing;
provided, however, that the process for such construction will begin with a
request from the DB Contractor, execution of a separate agreement between
BNSF and the DB Contractor regarding the work, including the agreement of the
DB Contractor to pay BNSF the cost of the work as Construction Support Work.
If required, provide contracted security, in order to maintain security of operation
throughout intermodal yard;
EXHIBIT A
1493069.1
BNSF and the DB Contractor regarding the work, including the agreement of the
DB Contractor to pay BNSF the cost ofthe work as Construction Support Work.
If required, provide contracted security, in order to maintain security of operation
throughout intermodal yard;
Preliminary design workto the extent it involves Construction Support Work;
Certain elements of the SBCTA Work which directly affect rail operations in the
BNSF Yard, pursuant to agreement of the parties from time to time. Such
elements include, without limitation, construction of track crossings within BNSF
right of way for SBCTA Design-Build Contractor equipment access.
Other Railroad Work (at BNSF discretion and cost)
Relocation and reconstruction of a portion of BNSF’s railroad tracks (both
temporary and permanent), including all telecommunications, railroad signals, air
lines and other utilities, grading, drainage facilities, roadbed, track crossings,
paving, and any other civil work related to the track construction or relocation for
any tracks other than 216/226, 217/227, 218/228 or 219/229.
EXHIBIT A
1493069.1
EXHIBIT A-1
LEGAL DESCRIPTION OF BNSF’S RIGHT-OF WAY
EXHIBIT A-1
1493069.1
.
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5TH ST.
A
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.
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KINGMAN ST.
POC2
TPOB2
4TH ST.
LEGEND
1"=200'
3RD ST.
EXHIBIT A-2
SITE PLAN OF THE RELOCATION AREA
EXHIBIT A-2
1493069.1
BSFB
WBDBUFE
COTGQBSDFMT
COTGQBS.DFMT
EXHIBIT B
THIS EASEMENTAGREEMENT FOR _________________ (“Easement Agreement”)
is made and entered into as of the ____ day of _________ 20___ (“Effective Date”), by and
between BNSF RAILWAY COMPANY, a Delaware corporation (“Grantor”), and
__________________________, a ________________ (“Grantee”).
A.Grantor owns or controls certainreal property situated at or near the vicinity of
_______________________, County of _____________, State of _________, at Mile Post
__________, \[Project # ___________\], as described or depicted on Exhibit “A-1”attached
hereto and made a part hereof (the“Premises”).
B.Grantor and Grantee have entered into that certain Construction and
MaintenanceAgreement dated as of ______________________________________
concerning improvements on or near the Premises (the “Agreement”).
C.Grantee has requested thatGrantor grant to Grantee an easement over the
Premises for the Easement Purpose (as defined below).
D.Grantor has agreed to grant Grantee such easement, subject to the terms and
conditions set forth in this Easement Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recitals which are
incorporated herein, the mutual promises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
Section 1Granting of Easement.
1.1Easement Purpose. The “Easement Purpose”shall be for the purposes set
forth in the Agreement. Any improvements to be constructed in connection with
the Easement Purpose are referred to herein as “Improvements”and shall be
constructed, located, configured and maintained by Grantee in strict accordance
with the terms of this Easement Agreement and the Agreement.
1.2Grant. Grantor does hereby grant unto Grantee a non-exclusive easement
(“Easement”) over the Premises for the Easement Purpose and for no other
purpose. The Easement is granted subject to any and all restrictions, covenants,
easements, licenses, permits, leases and other encumbrances of whatsoever
nature whether or not of record, if any, relating to the Premises and subject to all
with all applicable federal, state and local laws, regulations, ordinances,
restrictions, covenants and court or administrative decisions and orders,
including Environmental Laws (defined below) and zoning laws(collectively,
“Laws”). Grantor may not make any alterations or improvements or perform any
maintenance or repair activities within the Premises except in accordance with
the terms and conditions of the Agreement.
EXHIBIT B-Page 1
1493069.1
1.3Reservations by Grantor.Grantor excepts and reserves the right, to be
exercised by Grantor and any other parties who may obtain written permission or
authority from Grantor:
(a)to install, construct, maintain, renew, repair, replace, use, operate,
change, modify and relocate any existing pipe, power, communication,
cable, or utility lines and appurtenances and other facilities or structures
of like character (collectively, “Lines”) upon, over, under or across the
Premises;
(b)to install, construct, maintain, renew, repair, replace, use, operate,
change, modify and relocate any tracks or additional facilities or
structures upon, over, under or across the Premises; and
(c)to use the Premises in any manner as the Grantor in its sole discretion
deems appropriate, provided Grantor uses all commercially reasonable
efforts to avoid material interference with the use of the Premises by
Grantee for the Easement Purpose.
Section 2Term of Easement. The term of the Easement, unless sooner terminated under
provisions of this Easement Agreement, shall be perpetual. \[If this is a temporary easement
replace the preceding sentence with the following:The term of this Easement, unless
sooner terminated under provisions of this Easement Agreement, shall expire on the date that is
___________________________________ after the Effective Date.\]
Section 3No Warranty of Any Conditions of the Premises.Grantee acknowledges that
Grantor has made no representation whatsoever to Grantee concerning the state or condition of
the Premises, or any personal property located thereon, or the nature or extent of Grantor’s
ownership interest in the Premises. Grantee has not relied on any statement or declaration of
Grantor, oral or in writing, as an inducement to entering into this Easement Agreement, other
than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR
WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF
ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF
THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY
OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE
RESPONSIBLE TO GRANTEE OR ANY OF GRANTEE’S CONTRACTORS FOR ANY
DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY
PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH
PROPERTY TO ITS INTENDED USES. GRANTEE ACCEPTS ALL RIGHTS GRANTED
UNDER THIS EASEMENT AGREEMENT IN THE PREMISES IN AN “AS IS, WHERE IS”AND
“WITH ALL FAULTS”CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR’S
RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Grantee has inspected or willinspect
the Premises, and enters upon Grantor’s rail corridor and property with knowledge of its
physical condition and the danger inherent in Grantor’s rail operations on or near the Premises.
Grantee acknowledges that this Easement Agreement does not contain any implied warranties
EXHIBIT B-Page 2
1493069.1
that Grantee or Grantee’s Contractors (as hereinafter defined) can successfully construct or
operate the Improvements.
Section 4Nature of Grantor’s Interest in the Premises.GRANTOR DOES NOT
WARRANT ITS TITLE TO THE PREMISESNOR UNDERTAKE TO DEFEND GRANTEE IN
THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE. In case of the eviction of Grantee by anyone owning or claiming title to
or any interest in the Premises, or by the abandonment by Grantorof the affected rail corridor,
Grantor shall not be liable to refund Grantee any compensation paid hereunder.
Section 5Improvements.Grantee shall take, in a timely manner, all actions necessary
and proper to the lawful establishment, construction, operation, and maintenance of the
Improvements, including such actions as may be necessary to obtain any required permits,
approvals or authorizations from applicable governmental authorities. Any and all cuts and fills,
excavations or embankments necessary in the construction, maintenance, or future alteration of
the Improvements shall be made and maintained in such manner, form and extent as will
provide adequate drainage of and from the adjoining lands and premises of the Grantor; and
wherever any such fillor embankment shall or may obstruct the natural and pre-existing
drainage from such lands and premises of the Grantor, the Grantee shall construct and maintain
such culverts or drains as may be requisite to preserve such natural and pre-existing drainage,
and shall also wherever necessary, construct extensions of existing drains, culverts or ditches
through or along the premises of the Grantor, such extensions to be of adequate sectional
dimensions to preserve the present flowage of drainage or other waters, and of materials and
workmanship equally as good as those now existing.In the event any construction, repair,
maintenance, work or other use of the Premises by Grantee will affect any Lines, fences,
buildings, improvements or other facilities (collectively, “Other Improvements”), Grantee will be
responsible at Grantee’s sole risk to locate and make any adjustments necessary to such Other
Improvements. Grantee must contact the owner(s) of the Other Improvements notifying them of
any work that may damagethese Other Improvements and/or interfere with their service and
obtain the owner’s written approval prior to so affecting the Other Improvements. Grantee must
mark all Other Improvements on the Plans and Specifications and mark such Other
Improvements in the field in order to verify their locations. Grantee must also use all reasonable
methods when working on or near Grantor property to determine if any Other Improvements
(fiber optic, cable, communication or otherwise) may exist. The Grantee agrees to keep the
above-described premises free and clear from combustible materials and to cut and remove or
cause to be cut and removed at its sole expense all weeds and vegetation on said premises,
said work of cutting and removal to be done at such times and with such frequency as to comply
with Grantee and local laws and regulations and abate any and all hazard of fire.
Section 6Taxes and Recording Fees. Grantee shall pay when due any taxes,
assessments or other charges (collectively, “Taxes”) levied or assessed upon the
Improvements by any governmental or quasi-governmental body or any Taxes levied or
assessed against Grantor or the Premises that are attributable to the Improvements. Grantee
agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed
by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees
incidental to recordation of the Memorandum of Easement. In the event of Grantee’s failure to
do so, if Grantor shall become obligated to do so, Grantee shall be liable for all costs, expenses
and judgments to or against Grantor, including all of Grantor’s legal fees and expenses.
EXHIBIT B-Page 3
1493069.1
Section 7Environmental.
7.1Compliance with Environmental Laws.Grantee shall strictly comply with all
federal, state and local environmental Laws in its use of the Premises, including, but not limited
to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act,
the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances
Control Act (collectively referred to as the “Environmental Laws”). Grantee shall not maintain
a“treatment,”“storage,”“transfer”or “disposal”facility, or “underground storage tank,”as those
terms are defined by Environmental Laws, on the Premises. Grantee shall not handle,
transport, release or suffer the release of “hazardous waste”or “hazardous substances”, as
“hazardous waste”and “hazardous substances”may now or in the future be defined by any
Environmental Laws.
7.2Notice of Release. Grantee shall give Grantor immediate notice to Grantor’s
Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or
from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to Grantee’s use of the
Premises. Grantee shall use its best efforts to promptly respond to any release on or from the
Premises. Grantee also shall give Grantor immediate notice of all measures undertaken on
behalf of Grantee to investigate, remediate, respond to or otherwise cure such release or
violation.
7.3Remediation of Release. In the event that Grantor has notice from Grantee or
otherwise of a release or violation of Environmental Laws which occurred or may occur during
the term of this Easement Agreement, Grantor may require Grantee, at Grantee’s solerisk and
expense, to take timely measures to investigate, remediate, respond to or otherwise cure such
release or violation affecting the Premises. If during the construction or subsequent
maintenance of the Improvements, soils or other materials considered to be environmentally
contaminated are exposed, Grantee will remove and safely dispose of said contaminated soils.
Determination of soils contamination and applicable disposal procedures thereof, will be made
only by an agency having the capacityand authority to make such a determination.
7.4Preventative Measures. Grantee shall promptly report to Grantor in writing any
conditions or activities upon the Premises known to Grantee which create a risk of harm to
persons, property or the environment and shall take whatever action is necessary to prevent
injury to persons or property arising out of such conditions or activities; provided, however, that
Grantee’s reporting to Grantor shall not relieve Grantee of any obligation whatsoever imposed
on it by this Easement Agreement. Grantee shall promptly respond to Grantor’s request for
information regarding said conditions or activities.
7.5Evidence of Compliance. Grantee agrees periodically to furnish Grantor with
proof satisfactory to Grantor that Grantee is in compliance with this Section 7. Should Grantee
not comply fully with the above-stated obligations of this Section 7, notwithstanding anything
contained in any other provision hereof, Grantor may, at its option, terminate this Easement
Agreement by serving five (5) days’notice of termination upon Grantee. Upon termination,
Grantee shall remove the Improvements and restore the Premises as provided in Section 9.
EXHIBIT B-Page 4
1493069.1
Section 8Default and Termination.
8.1Grantor’s Performance Rights.If at any time Grantee, or Grantee’s Contractors,
fails to properly perform its obligations under this Easement Agreement, Grantor, in its sole
discretion, may: (i) seek specific performance of the unperformed obligations, or (ii) at Grantee’s
sole cost, may arrangefor the performance of such work as Grantor deems necessary for the
safety of its rail operations, activities and property, or to avoid or remove any interference with
the activities or property of Grantor, or anyone or anything present on the rail corridor or
property with the authority or permission of Grantor. Grantee shall promptly reimburse Grantor
for all costs of work performed on Grantee’s behalf upon receipt of an invoice for such costs.
Grantor’s failure to perform any obligations of Grantee orGrantee’s Contractors shall not alter
the liability allocation set forth in this Easement Agreement.
8.2Abandonment. Grantor may, at its option, terminate this Easement Agreement
by serving five (5) days’notice in writing upon Grantee if Grantee should abandon or cease to
use the Premises for the Easement Purpose. Any waiver by Grantor of any default or defaults
shall not constitute a waiver of the right to terminate this Easement Agreement for any
subsequent default or defaults, nor shall any such waiver in any way affect Grantor’s ability to
enforce any section of this Easement Agreement.
8.3Effect of Termination or Expiration.Neither termination nor expiration will release
Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise,
resulting from any acts, omissions or events happening prior to the date of termination or
expiration, or, if later, the date the Premises are restored as required by Section 9.
8.4Non-exclusive Remedies. The remedies set forth in this Section 8shall be in
addition to, and not in limitation of, any other remedies that Grantor may have under the
Agreement, at law or in equity.
Section 9 Surrender of Premises.
9.1Removal of Improvements and Restoration. Upon termination of this Easement
Agreement, whether by abandonment of the Easement or by the exercise of Grantor’s
termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform
the following:
(f)remove all or such portion of Grantee’s Improvements and all
appurtenances thereto from the Premises, as Grantor directs at
Grantor’s sole discretion;
(g)repair and restore any damage to the Premises arising from,
growing out of, or connected with Grantee’s use of the Premises;
(h)remedy any unsafe conditions on the Premises created or
aggravated by Grantee; and
(i)leave the Premises in the condition which existed as of the
Effective Date.
EXHIBIT B-Page 5
1493069.1
9.2Limited License for Entry. If this Easement Agreement is terminated, Grantor
may direct Grantee to undertake one or more of the actions set forth above, at Grantee’s sole
cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent
necessary to undertake the actions directed by Grantor. The terms of this limited license
include all of Grantee’s obligations under this Easement Agreement. Termination will not
release Grantee from any liability or obligation under this Easement Agreement, whether of
indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Grantee’s Improvements are removed and the
Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to
surrender the Premises to Grantor upon any termination of the Easement, all liabilities and
obligations of Grantee hereunder shall continue in effect until the Premises are surrendered.
Section 10Liens. Grantee 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 Grantee on the
Premises or attributable to Taxes that are the responsibility of Grantee pursuant to Section 6.
Grantor is hereby authorized to post any notices or take any other action upon or with respect to
the Premises that is or may be permitted by Law to prevent the attachment of any such liens to
any portion of the Premises; provided, however, that failure of Grantor to take any such action
shall not relieve Grantee of any obligation or liabilityunder this Section 10or any other section
of this Easement Agreement.
Section 11Tax Exchange. Grantor may assign its rights (but not its obligations) under this
Easement Agreement to Goldfinch Exchange Company LLC, an exchange intermediary, in
order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In
such event, Grantor shall provide Grantee with a Notice of Assignment, attached as Exhibit C,
and Grantee shall execute an acknowledgement of receipt of such notice.
Section 12Notices. Any notice required or permitted to be given hereunder by one party to
the other shall be delivered in the manner set forth in the Agreement. Notices to Grantor under
this Easement shall be delivered to the following address: BNSF Railway Company, Real
Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other
address as Grantor may from time to time direct by notice to Grantee.
Section13Recordation. It is understood and agreed that this Easement Agreement shall
not be in recordable form and shall not be placed on public record and any such recording shall
be a breach of this Easement Agreement.Grantor and Grantee shall execute a Memorandum
of Easement in the form attached hereto as Exhibit “B-1”(the “Memorandum of Easement”)
subject to changes required, if any, to conform such form to local recording requirements. \[IF
LEGAL DESCRIPTION IS NOT AVAILABLE USE THE FOLLOWING IN PLACE OF THE
PRIOR SENTENCE: As of the Effective Date, a legal description of the Premises is not
available. Grantee and Grantor shall work together in good faith to establish the legal
description for the Premises. Once Grantor and Grantee have approved the legal description,
Grantor and Grantee shall execute a Memorandum of Easement in the form attached hereto as
Exhibit “B-1”(the “Memorandum of Easement”).\] The Memorandum of Easement shall be
recorded in the real estate records in the county where the Premises are located. If a
Memorandum of Easement is not executed bythe parties and recorded as described above
within ____ days of the Effective Date, Grantor shall have the right to terminate this Easement
Agreement upon notice to Grantee.
EXHIBIT B-Page 6
1493069.1
Section 14Miscellaneous.
14.1All questions concerning the interpretation orapplication of provisions of this
Easement Agreement shall be decided according to the substantive Laws of the State of
Californiawithout regard to conflicts of law provisions.
14.2In the event that Grantee consists of two or more parties, all the covenants and
agreements of Grantee herein contained shall be the joint and several covenants and
agreements of such parties. This instrument and all of the terms, covenants and provisions
hereof shall inure to the benefit of and be binding upon each of the parties hereto and their
respective legal representatives, successors and assigns and shall run with and be binding
upon the Premises.
14.3If any action at law or in equity is necessary to enforce or interpret the terms of
this Easement Agreement, the prevailing party or parties shall be entitled to reasonable
attorneys’fees, costs and necessary disbursements in addition to any other relief to which such
party or parties may be entitled.
14.4If any provision of this Easement Agreement is held to beillegal, invalid or
unenforceable under present or future Laws, such provision will be fully severable and this
Easement Agreement will be construed and enforced as if such illegal, invalid or unenforceable
provision is not a part hereof, and the remaining provisions hereof will remain in full force and
effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added
automatically as a part of this Easement Agreement a provision as similar in its terms to such
illegal, invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
14.5This Easement Agreement and the Agreement, which is incorporated herein by
reference, is the full and complete agreement between Grantor and Grantee with respect toall
matters relating to Grantee’s use of the Premises, and supersedes any and all other
agreements between the parties hereto relating to Grantee’s use of the Premises as described
herein. However, nothing herein is intended to terminate any surviving obligation of Grantee or
Grantee’s obligation to defend and hold Grantor harmless in any prior written agreement
between the parties.
14.6Time is of the essence for the performance of this Easement Agreement.
Section 15Administrative Fee.
15.1Grantee acknowledges that a material consideration for this agreement, without
which it would not be made, is the agreement between Grantee and Grantor, that the Grantee
shall pay upon return of this Agreement signed by Grantee to Grantor’s Broker a processing fee
in the amount of $0.00over and above the agreed upon Acquisition Price. Said fee shall be
made payable to BNSF Railway Company by a separate check.
\[Signature page follows\]
EXHIBIT B-Page 7
1493069.1
Witness the execution of this Easement Agreement as of the date first set forth above.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware
corporation
By:
Name:
Title:
GRANTEE:
_______________________________________,
a ______________________________________
By:
Name:
Title:
EXHIBIT B-Page 8
1493069.1
EXHIBIT “A-1”
Premises
EXHIBIT B-Page 9
1493069.1
EXHIBIT “B-1”
THIS MEMORANDUM OF EASEMENTis hereby executed this day of
, 20___, by and between BNSF RAILWAY COMPANY, a Delaware corporation
(“Grantor”), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth,
Texas 76131, and _______________________, a _______________(“Grantee”), whose
address for purposes of this instrument is _________________________________, which
terms “Grantor”and“Grantee”shall include, wherever the context permits or requires, singular
or plural, and the heirs, legal representatives, successors and assigns of the respective parties:
WITNESSETH:
WHEREAS, Grantor owns or controls certain real property situated in ________ County,
_________ as described on Exhibit “A-1”attached hereto and incorporated herein by
reference (the “Premises’);
WHEREAS, Grantor and Grantee entered into an Easement Agreement, dated
(the “Easement Agreement”) which set forth, among other things, the terms of an
easement granted by Grantorto Grantee over and across the Premises (the “Easement”); and
WHEREAS, Grantor and Grantee desire to memorialize the terms and conditions of the
Easement Agreement of record.
For valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Grantor does grant unto Grantee and Grantee does hereby accept from Grantor
the Easement over and across the Premises.
The term of the Easement, unless sooner terminated under provisions of the Easement
Agreement, shall be perpetual. Provisions regulating the use and purposes to which the
Easement shall be limited, are set forth in detail in the Easement Agreement and Grantor and
Grantee agree to abide by the terms of the Easement Agreement.
All the terms, conditions, provisions and covenants of the Easement Agreement are
incorporated herein by this reference for all purposes as though written out at length herein, and
both the Easement Agreement and this Memorandum of Easement shall be deemed to
constitute a single instrument or document. This Memorandum of Easement is not intended to
amend, modify, supplement, or supersede any of the provisions of the Easement Agreement
and, to the extent there may be any conflict or inconsistency between the Easement Agreement
or this Memorandum of Easement,the Easement Agreement shall control.
\[Signature page follows\]
EXHIBIT B-Page 10
1493069.1
IN WITNESS WHEREOF, Grantor and Grantee have executed this Memorandum of
Easement to as of the date and year first above written.
GRANTOR:
BNSF RAILWAY COMPANY, a Delaware
corporation
By:
Name:
Title:
GRANTEE:
_____________________________,
_____________________________
By:
Name:
Title:
EXHIBIT B-Page 11
1493069.1
STATE OF _______________§
§
COUNTY OF _____________§
This instrument was acknowledged before me on the ___ day of _________________, 20__, by
(name) as
(title) of BNSF RAILWAY COMPANY, a
Delaware corporation.
Notary Public
(Seal)
My appointment expires:
STATE OF _______________§
§
COUNTY OF _____________§
This instrument was acknowledged before me on the ___ day of _________________, 20__, by
(name) as (title) of
____________________________, a ______________________.
Notary Public
(Seal)
My appointment expires:
EXHIBIT B-Page 12
1493069.1
EXHIBIT“C”
CONTRACTOR REQUIREMENTS
1.01 General:
The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as
“Railway”where work is over or under on or adjacent to Railway property and/or right-of-
way, hereafter referred to as “Railway Property”, during the construction oftheMount
Vernon Avenue Viaduct Replacement Project.
1.01.02The Contractor must execute and deliver to the Railway duplicate copies of the
Exhibit “C-1”Agreement, in the form attached hereto, obligating the Contractor to provide
and maintain in full force and effect the insurance called for under Section 3 of said Exhibit
“C-1”. Questions regarding procurement of the Railroad Protective Liability Insurance should
be directed to Rosa Martinez at Marsh, USA, 214-303-8519.
1.01.03The Contractor must plan, schedule and conduct all work activities so as not to
interfere with the movement of any trains on Railway Property.
1.01.04The Contractor’s right to enter Railway’s Property is subject to the absolute right
of Railway to cause the Contractor’s work on Railway’s Property to cease if, in the opinionof
Railway, Contractor’s activities create a hazard to Railway’s Property, employees, and/or
operations. Railway will have the right to stop construction work on the Project if any of the
following events take place: (i) Contractor (or any of its subcontractors) performs the Project
work in a manner contrary to the plans and specifications approved by Railway; (ii)
Contractor (or any of its subcontractors), in Railway’s opinion, prosecutes the Project work in
a manner which is hazardous to Railway property, facilities or the safe and expeditious
movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is
canceled during the course of the Project; or (iv) Contractor fails to pay Railway for the
Temporary Construction License or the Easement. The work stoppage will continue until all
necessary actions are taken by Contractor or its subcontractor to rectify the situation to the
satisfaction of Railway’s Division Engineer or until additional insurance has been delivered
to and accepted by Railway. In the event of a breach of (i) this Agreement, (ii) the
Temporary Construction License, or (iii) the Easement, Railway may immediately terminate
the Temporary Construction License or the Easement. Any such work stoppage under this
provision will not give rise to any liability on the part of Railway. Railway’s right to stop the
work is in addition to any other rights Railway may have including, but not limited to, actions
or suits for damages or lost profits. In the event that Railwaydesires to stop construction
work on the Project, Railway agrees to immediately notify the following individual in writing:
_______________________
_______________________
_______________________
_______________________
EXHIBIT C-Page 1
1493069.1
1.01.05The Contractor is responsible for determining and complying with all Federal,
State and Local Governmental laws and regulations, including, but not limited to
environmental laws and regulations (including but not limited to the Resource Conservation
and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous
Materials Transportation Act, CERCLA), and health and safety laws and regulations. The
Contractor hereby indemnifies, defends and holds harmless Railway for, from and against
all fines or penalties imposed or assessed by Federal, State and Local Governmental
Agencies against the Railway which arise out of Contractor’s work under this Agreement.
1.01.06The Contractor must notify SBCTAat and Railway’s Manager
Public Projects, telephone number (909)386-4474at least thirty (30) calendar days before
commencing any work on Railway Property. Contractor’s notification to Railway must refer
to Railway’sfile DOT # 026731F.
1.01.07For any bridge demolition and/or falsework above any tracks or any excavations
located with any part of the excavations located within, whichever is greater, twenty-five (25)
feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2
horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest
track, both measured perpendicular to center line of track, the Contractor must furnish the
Railway five sets of working drawings showing details of construction affecting Railway
Property and tracks. The working drawing must include the proposed method of installation
and removal of falsework, shoring or cribbing, not included in the contract plans and two
sets of structural calculations of any falsework, shoring or cribbing. Forall excavation and
shoring submittal plans, the current “BNSF-UPRR Guidelines for Temporary Shoring”must
be used for determining the design loading conditions to be used in shoring design, and all
calculations and submittals must be in accordance with the current “BNSF-UPRR Guidelines
for Temporary Shoring”. All submittal drawings and calculations must be stamped by a
registered professional engineer licensed to practice in the state the project is located. All
calculations must take into consideration railway surcharge loading and must be designed to
meet American Railway Engineering and Maintenance-of-Way Association (previously
known as American Railway Engineering Association) Coopers E-80 live loading standard.
All drawings and calculations must be stamped by a registered professional engineer
licensed to practice in the state the project is located. The Contractor must not begin work
until notified by the Railway that plans have been approved. The Contractor will be required
to use lifting devices such as, cranes and/or winches to place or to remove any falsework
over Railway’s tracks. In no case will the Contractor be relieved of responsibility for results
obtained by the implementation of said approved plans.
1.01.08Subject to the movement of Railway’s trains, Railway will cooperate with the
Contractor such that the work may be handled and performed in an efficient manner. The
Contractor will have no claim whatsoever for any type of damages or for extra or additional
compensation in the event his work is delayed by the Railway.
1.02 Contractor Safety Orientation
1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may
enter Railway Property without first having completed Railway’s Engineering
Contractor Safety Orientation, found on the web site www.BNSFContractor.com. The
EXHIBIT C-Page 2
1493069.1
Contractor must ensure that each of its employees, subcontractors, agents or
invitees completes Railway’s Engineering Contractor Safety Orientation through
internet sessions before any work is performed on the Project. Additionally, the
Contractor must ensure that each and every one of its employees, subcontractors,
agents or invitees possesses a card certifying completion of the Railway Contractor
Safety Orientation before entering Railway Property. The Contractor is responsible
for the cost of the Railway Contractor Safety Orientation. The Contractor must renew
the Railway Contractor Safety Orientation annually. Further clarification can be found
on the web site or from the Railway’sRepresentative.
1.03 Railway Requirements
1.03.01The Contractor must take protective measures as are necessary to keep railway
facilities, including track ballast, free of sand, debris, and other foreign objects and materials
resulting from his operations. Any damage to railway facilities resulting from Contractor’s
operations will be repaired or replaced by Railway and the cost of such repairs or
replacement must be paid for by the Contractor.
1.03.02The Contractor must notify the Railway’s Division Engineer and provide blasting
plans to the Railway for review seven (7) calendar days prior to conducting any blasting
operations adjacent to or on Railway’s Property.
1.03.03The Contractor must abide by the following temporary clearances during
construction:
15’-0”Horizontally from centerline of nearest track
21’-6”Vertically above top of rail
27’-0”Vertically above top of rail for electric wires carrying less than 750 volts
28’-0”Vertically above top of rail for electric wires carrying 750 volts to 15,000
volts
30’-0”Vertically above top of rail for electric wires carrying 15,000 volts to
20,000 volts
34’-0”Vertically above top of rail for electric wires carrying more than 20,000
volts
1.03.04Upon completion of construction, the following clearances shall be maintained:
25’Horizontally from centerline of nearest track
23’6”Vertically above top of rail
1.03.05Any infringement within State statutory clearances due to the Contractor’s
operations must be submitted to the Railway and to SCBTAand must not be undertaken
until approved in writing by the Railway, and until SBCTAhas obtained any necessary
authorization from the State Regulatory Authority for the infringement. No extra
compensation will be allowed in the event the Contractor’s work is delayed pending Railway
approval, and/or the State Regulatory Authority’s approval.
1.03.06In the case of impaired vertical clearance above top of rail, Railway will have the
option of installing tell-tales or other protective devices Railway deems necessary for
EXHIBIT C-Page 3
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protection of Railway operations. The cost of tell-tales or protective devices will be borne by
the SBCTA.
1.03.07The details of construction affecting the Railway’s Property and tracks not
included in the contract plans must be submitted to the Railway bySBCTAfor approval
before work is undertaken and this work must not be undertaken until approved by the
Railway.
1.03.08At other than public road crossings, the Contractor must not move any equipment
or materials across Railway’s tracks until permission has been obtained from the Railway.
The Contractor must obtain a “Temporary Construction Crossing Agreement”from the
Railway prior to moving his equipment or materials across theRailways tracks. The
temporary crossing must be gated and locked at all times when not required for use by the
Contractor. The temporary crossing for use of the Contractor will be constructed and, at the
completion of the project, removed at the expense of the Contractor.
1.03.09Discharge, release or spill on the Railway Property of any hazardous substances,
oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited
and Contractor must immediately notify the Railway’sResource Operations Center at 1(800)
832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor
must not allow Railway Property to become a treatment, storage or transfer facility as those
terms are defined in the ResourceConservation and Recovery Act or any state analogue.
1.03.10The Contractor upon completion of the work covered by this contract, must
promptly remove from the Railway’s Property all of Contractor’s tools, equipment,
implements and other materials, whether brought upon said property by said Contractor or
any Subcontractor, employee or agent of Contractor or of any Subcontractor, and must
cause Railway’s Property to be left in a condition acceptable to the Railway’s representative.
1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan:
1.04.01Each Contractor that will perform work within 25 feet of the centerline of a track
must develop and implement a Roadway Worker Protection/On Track Safety Program and
work with Railway Project Representative to develop an on track safety strategy as
described in the guidelines listed in the on track safety portion of the Safety Orientation.
This Program must provide Roadway Worker protection/on track training for all employees
of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job
site through job safety briefings. Additionally, each Contractor must develop and implement
the Safety Action Plan, as provided for on the web site www.BNSFContractor.com,which
will be made available to Railway prior to commencement of any work on Railway Property.
During the performance of work, the Contractor must audit its work activities. The Contractor
must designate an on-site Project Supervisor who will serve as the contact person for the
Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material
Safety Datasheets (MSDS), at the job site.
1.04.02Contractor shall have a background investigation performed on all of its
employees, subcontractors and agents who will be performing any services for Railroad
under this Agreement which are determined by Railroad in its sole discretion a)to be on
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Railroad’s property, or b)that require access to Railroad Critical Infrastructure, Railroad
Critical Information Systems, Railroad’s Employees, Hazardous Materials on Railroad’s
property or is being transported by or otherwise in the custody of Railroad, or Freight in
Transit involving Railroad.
The required background screening shall at a minimum meet the rail industry background
screening criteria defined by the e-RAILSAFE Program as outlined at www.everifile.com, in
addition to any other applicable regulatoryrequirements.
Contractor shall obtain written consent from all its employees, subcontractors or agents
screened in compliance with the e-RAILSAFE Program to participate in the Program on their
behalf and to release completed background information to Railroad’s designee. Contractor
shall be subject to periodic audit to ensure compliance.
Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its
employees, subcontractors or agents to perform services hereunder who are not first
approved under e-RAILSAFE Program standards. Railroad shall have the right to deny
entry onto its premises or access as described in this section above to any of Contractor’s
employees, subcontractors or agents who do not display the authorized identification badge
issued by a background screening service meeting the standards set forth in the e-
RAILSAFE Program, or who in Railroad’s opinion, which may not be unreasonable, may
pose a threat to the safety or security of Railroad’s operations, assets or personnel.
Contractors shall be responsible for ensuring that its employees, subcontractors and agents
are United States citizens or legally working in the United States under a lawful and
appropriate work VISA or other work authorization.
1.05 Railway Flagger Services:
1.05.01The Contractor must give Railway’sRoadmaster (telephone ________)a
minimum of thirty (30) calendar days advance notice when flagging services will be required
so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger’s
position). If flagging services are scheduled in advance by the Contractor and it is
subsequently determined by the parties hereto that such services are no longer necessary,
the Contractor must give the Roadmaster five (5) working days advance notice so that
appropriate arrangements can be made to abolish the position pursuant to union
requirements.
1.05.02Unless determined otherwise by Railway’s Project Representative, Railway
flagger will be required and furnished when Contractor’s work activities are located over,
under and/or within twenty-five (25) feet measured horizontally from centerline of the
nearest track and when cranes or similar equipment positioned beyond 25-feet from the
track centerline could foul the track in the event of tip over or other catastrophic occurrence,
but not limited thereto for the following conditions:
1.05.02aWhen, upon inspection by Railway’s Representative, other
conditions warrant.
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1.05.02bWhen any excavation is performed below the bottom of tie
elevation, if, in the opinion of Railway’s representative, track or other Railway
facilities may be subject to movement or settlement.
1.05.02cWhen work in any way interferes with the safe operation of trains
at timetable speeds.
1.05.02dWhen any hazard is presented to Railwaytrack, communications,
signal, electrical, or other facilities either due to persons, material, equipment
or blasting in the vicinity.
1.05.02eSpecial permission must be obtained from the Railway before
moving heavy or cumbersome objects or equipment which might result in
making the track impassable.
1.05.03Flagging services will be performed by qualified Railway flaggers.
1.05.03aFlagging crew generally consists of one employee. However,
additional personnel may berequired to protect Railway Property and
operations, if deemed necessary by the Railways Representative.
1.05.03bEach time a flagger is called, the minimum period for billing will be
the eight (8) hour basic day.
1.05.03cThe cost of flagger services provided by the Railway will be borne
by SBCTA.The estimated cost for one (1) flagger is approximately between
$800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or
double time for overtime, rest days and holidays. The estimated costfor
each flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance,
health and welfare benefits, vehicle, transportation, meals, lodging, radio,
equipment, supervision and other costs incidental to performing flagging
services. Negotiations for Railway labor or collective bargaining agreements
and rate changes authorized by appropriate Federal authorities may increase
actual or estimated flagging rates. THE FLAGGING RATE INEFFECT AT
THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER
WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING
PURSUANT TO THIS PARAGRAPH.
1.05.03dThe average train traffic on this route is ______ freight trains per
24-hour period at a timetable speed ______ MPH and ______ passenger
trains at a timetable speed of ______ MPH.
1.06 Contractor General Safety Requirements
1.06.01Work in the proximity of railway track(s) is potentially hazardous where
movement of trains and equipment can occur at any time and in any direction. All work
EXHIBIT C-Page 6
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performed by contractors within 25 feet of any track must be in compliance with FRA
Roadway Worker Protection Regulations.
1.06.02Before beginning any task on Railway Property, a thorough job safety briefing
must be conducted with all personnel involved with the task and repeated when the
personnel or task changes. If the task is within 25 feet of any track, the job briefing must
include the Railway’s flagger, as applicable, and include the procedures the Contractor will
use to protect its employees, subcontractors, agents or invitees from moving any equipment
adjacent to or across any Railway track(s).
1.06.03Workers must not work within 25 feet of the centerline of any track without an on
track safety strategy approved by the Railway’s Project Representative. When authority is
provided, every contractor employee must know: (1) who the Railway flagger is, and how to
contact the flagger, (2) limits of SBCTA, (3) the method of communication to stop and
resume work, and (4) location of the designated places of safety. Persons or equipment
entering flag/work limits that were not previously job briefed, must notify the flagger
immediately, and be given a job briefing when working within 25 feet of the center line of
track.
1.06.04When Contractor employees are required to work on the Railway Property after
normal working hours or on weekends, the Railway’s representative in charge of the project
must be notified. A minimum of two employees must be present at all times.
1.06.05Anyemployees, agents or invitees of Contractor or its subcontractors under
suspicion of being under the influence of drugs or alcohol, or in the possession of same, will
be removed from the Railway’s Property and subsequently released to the custody of a
representative of Contractor management. Future access to the Railway’s Property by that
employee will be denied.
1.06.06Any damage to Railway Property, or any hazard noticed on passing trains must
be reported immediately to the Railway’s representative in charge of the project. Any
vehicle or machinewhich may come in contact with track, signal equipment, orstructure
(bridge)and could result in a train derailment must be reported immediately to the Railway
representative in charge of the project and to the Railway’s Resource Operations Center at
1(800) 832-5452. Local emergency numbers are to be obtained from the Railway
representative in charge of the project prior to the start of any work and must be posted at
the job site.
1.06.07For safety reasons, all persons are prohibited from having pocket knives,
firearms or other deadly weapons in their possession while workingon Railway’s Property.
1.06.08All personnel protective equipment (PPE) used on Railway Property must meet
applicable OSHA and ANSI specifications. Current Railway personnel protective equipment
requirements are listed on the web site,www.BNSFContractor.com,however, a partial list
of the requirements include: a) safety glasses with permanently affixed side shields (no
yellow lenses); b) hard hats; c) safety shoe with: hardened toes, above-the-ankle lace-up
and a defined heel; and d) high visibility retro-reflective work wear. The Railway’s
representative in charge of the project is to be contacted regarding local specifications for
meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection,
EXHIBIT C-Page 7
1493069.1
gloves, and respirators must be worn as required by State and Federal regulations. (NOTE
–Should there be a discrepancy between the information contained on the web site
and the information in this paragraph, the web site will govern.)
1.06.09THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS,
MACHINERY OR EQUIPMENT CLOSER THAN 25’-0”TO THE CENTER LINE OF THE
NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT
BE STORED OR LEFT WITHIN 250 FEET OF ANYHIGHWAY/RAIL AT-GRADE
CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF
THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING.
PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE
AREA WITH CONCURRENCE OF THE RAILWAY’S REPRESENTATIVE.
1.06.10Machines or vehicles must not be left unattended with the engine running.
Parked machines or equipment must be in gear with brakes set and if equipped with blade,
pan or bucket, they must be lowered to the ground. All machinery and equipment left
unattended on Railway’s Property must be left inoperable and secured against movement.
(See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
1.06.11Workers must not create and leave any conditions at the work site that would
interfere with water drainage. Any work performed over water must meet all Federal, State
and Local regulations.
1.06.12All power line wires must be considered dangerous and of high voltage unless
informed to the contrary by proper authority. For all power lines the minimum clearance
between the lines and any part of the equipment or load must be; 200 KV or below -15 feet;
200 to 350 KV -20 feet; 350 to 500 KV -25 feet; 500 to 750 KV -35 feet; and 750 to 1000
KV-45 feet. If capacityof the line is not known, a minimum clearance of 45 feet must be
maintained. A person must be designated to observe clearance of the equipment and give
a timely warning for all operations where it is difficult for an operator to maintain the desired
clearance by visual means.
1.07 Excavation:
1.07.01Before excavating, the Contractor must determine whether any underground pipe
lines, electric wires, or cables, including fiber optic cable systems are present and located
within the Project work area. The Contractor must determine whether excavation on
Railway’s Property could cause damage to buried cables resulting in delay to Railway traffic
and disruption of service to users. Delays and disruptions to service may cause business
interruptions involving loss of revenue and profits. Before commencing excavation, the
Contractor must contact BNSF’s Field Engineering Representative (______________).
All underground and overhead wires will be considered HIGH VOLTAGE and dangerous
until verified with the company having ownership of the line. It is the Contractor’s
responsibility to notify any other companies that have underground utilities in the
area and arrange for the location of all underground utilities before excavating.
1.07.02The Contractor must cease all work and notify the Railway immediately before
continuing excavation in the area if obstructions are encountered which do not appear on
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drawings. If the obstruction is a utility and the owner of the utility can be identified, then the
Contractor must also notify the owner immediately. If there is any doubt about the location
of underground cables or lines of any kind, no work must be performed until the exact
location has been determined. There will be no exceptions to these instructions.
1.07.03All excavations must be conducted in compliance with applicable OSHA
regulations and, regardless of depth, must be shored where there is any danger to tracks,
structuresor personnel.
1.07.04Any excavations, holes or trenches on theRailway’s Property must be covered,
guarded and/or protected when not being worked on. When leaving work site areas at night
and over weekends, the areas must be secured and left in a condition that will ensure that
Railway employees and other personnel who may be working or passing through the area
are protected from all hazards. All excavations must be back filled as soon as possible.
1.07.05.Contractor is placed on notice that fiber optic, communication and other cable
lines and systems (collectively, the “Lines”) owned by various telecommunications
companies may be buried on BNSF’s property or right-of-way. The locations of these Lines
have been included on the plans based on information from the telecommunications
companies. Contractor will be responsible for contacting the I/C, BNSF’s Signal
Representative and the telecommunications companies and notifying them of any work that
may damage these Lines or facilities and/or interfere with their service. Contractor must
also mark all Lines shown on the plans or marked in the field in order to verify their
locations. Contractor must also use all reasonable methods when working in the BNSF
right-of-way or on BNSF property to determine if any other Lines (fiber optic, cable,
communication or otherwise) may exist.
1.07.06.Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. Contractor must cooperate fully with any
telecommunications company(ies) in performing such rearrangements.
1.07.07.Failure tomark or identify Lines will be sufficient cause for BNSF or the I/C to
stop construction at no cost to BNSF until these items are completed.
1.07.08.Contractor shall indemnify, defend and hold harmless BNSF for, from and
against all cost, liability, andexpense whatsoever (including, without limitation, attorney’s
fees and court costs and expenses) arising out of or in any way contributed to by any act or
omission of Contractor, its subcontractors, agents and/or employees that cause or in any
way or degree contribute to (1) any damage to or destruction of any Lines by Contractor,
and/or its subcontractors, agents and/or employees, on BNSF’s property or within BNSF’s
right-of-way, (2) any injury to or death of any person employed by or on behalf of any
telecommunications company, and/or its contractor, agents and/or employees, on BNSF’s
property or within BNSF’s right-of-way, and/or (3) any claim or cause of action for alleged
loss of profits or revenue by, or loss of service by a customer or user of such
telecommunication company(ies). THE LIABILITY ASSUMED BY CONTRACTORWILL
NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE,
DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED
BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS,
EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
EXHIBIT C-Page 9
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PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF
BNSF.
1.08 Hazardous Waste, Substances and Material Reporting:
1.08.01If Contractor discovers any hazardous waste, hazardous substance, petroleum or
other deleterious material, including but not limited to any non-containerized commodity or
material, on or adjacent to Railway’s Property, in or near any surface water, swamp,
wetlands or waterways, while performing any work under this Agreement, Contractor must
immediately: (a) notify the Railway’s Resource Operations Center at 1(800) 832-5452, of
such discovery: (b) take safeguards necessary to protect its employees, subcontractors,
agents and/or third parties: and (c) exercise due care with respect to the release, including
the taking of any appropriate measure to minimize the impact of such release.
1.09 Personal Injury Reporting
1.09.01The Railway is required to report certain injuries as a part of compliance with
Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained
by an employee of the Contractor, subcontractor or Contractor’s invitees while on the
Railway’s Property must be reported immediately (by phone mailif unable to contact in
person) to the Railway’s representative in charge of the project. The Non-Employee
Personal Injury Data Collection Form contained herein is to be completed and sent by Fax
to the Railway at 1(817) 352-7595 and to the Railway’s Project Representative no later than
the close of shift on the date of the injury.
EXHIBIT C-Page 10
1493069.1
NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
(If injuries are in connection with rail equipment accident/incident, highway rail grade crossing
accident or automobile accident, ensure that appropriate information is obtained, forms
completed and that data entry personnel are aware that injuries relate to that specific event.)
Injured Person Type:
Passenger on train (C)Non-employee (N)
(i.e., emp of another railroad, or, non-BNSF emp
involved in vehicle accident, including company
vehicles)
Contractor/safety Contractor/non-safety sensitive (G)
sensitive (F)
Volunteer/safety sensitive Volunteer/other non-safety sensitive (I)
(H)
Non-trespasser (D) -to include highway users involved in highway rail grade
crossing accidents who did not go around or through gates
Trespasser (E) -to include highway users involved in highway rail grade crossing
accidents who went around or through gates
Non-trespasser (J) -Off railroad property
If train involved, Train ID:
________________________________
Transmit attached information to Accident/Incident Reporting Center by:
Fax 1-817-352-7595or by Phone 1-800-697-6736or email to: Accident-
Reporting.Center@BNSF.com
Officer Providing Information:
(Name)(Employee No.)(Phone #)
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING
REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903
AND 83 U.S.C. 490
EXHIBIT C-Page 11
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT
INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St: 2. Date: Time:
County: 3. Temperature: 4. Weather:
(if non BNSF location)
Mile Post / Line Segment:
5. Driver’s License No (and state) or other ID: SSN (required):
6. Name (last, first, mi):
7. Address: City: St: Zip:
8. Date of Birth: and/or Age: Gender:
(if available)
Phone Number: Employer:
9. Injury: 10. Body Part:
(i.e., Laceration, etc.) (i.e., Hand, etc.)
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
First Aid Only
Required Medical Treatment
Other Medical Treatment
13. Dr. Name: Date:
14. Dr. Address:
Street: City: St: Zip:
15. Hospital Name:
16. Hospital Address:
Street: City: St: Zip:
17. Diagnosis:
REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS
AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490
EXHIBIT C-Page 12
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EXHIBIT “C-1”
Agreement Between
BNSF RAILWAY COMPANY
and the
CONTRACTOR
Railway File:026731F
SBCTAProject:_______________________________
\[Insert contractor’s legal name here\](hereinafter called “Contractor”), has entered into an
agreement (hereinafter called “Agreement”) dated ______________, 201_, withSBCTA and
CITYOF SAN BERNARDINOfor the performance of certain work in connection with the
following project: Mount Vernon Avenue Viaduct Replacement Project. Performance ofsuch
work will necessarily require Contractor to enter BNSF RAILWAY COMPANY(hereinafter
called “Railway”) right of way and property (hereinafter called “Railway Property”). The
Agreement provides that no work will be commenced within Railway Property until the
Contractor employed in connection with said work forSBCTA(i) executes and delivers to
Railway an Agreement in the form hereof, and (ii) provides insurance of the coverage and limits
specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who
is not the Owner, General Partner, President or Vice President of Contractor, Contractor must
furnish evidence to Railway certifying that the signatory is empowered to execute this
Agreement on behalf of Contractor.
Accordingly, in consideration of Railway granting permission to Contractor to enter upon
Railway Property and as an inducement for such entry, Contractor, effective on the date of the
Agreement, has agreed and does hereby agree with Railway as follows:
1)RELEASE OF LIABILITY AND INDEMNITY
Contractor hereby waives, releases, indemnifies, defends and holds harmless Railway
for all judgments, awards, claims, demands, and expenses (including attorneys’fees),
for injury or death to all persons, including Railway’s and Contractor’s officers and
employees, and for loss and damage to property belonging to any person, arising in any
manner from Contractor’s or any of Contractor’s subcontractors’acts or omissions or
any work performed on or about Railway’s property or right-of-way. THE LIABILITY
EXHIBIT C-1-Page 1
1493069.1
ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A
FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS
OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS
AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT
THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL
MISCONDUCT OR SOLESOLENEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES
ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE
FEDERAL EMPLOYEE’S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT
LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE
INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, thatit
will adjust and settle all claims made against Railway, and will, at Railway’s discretion,
appear and defend any suits or actions of law or in equity brought against Railway on
any claim or cause of action arising or growing out of or in any manner connected with
any liability assumed by Contractor under this Agreement for which Railway is liable or is
alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or
dependency of such claims and thereupon Contractor must proceed to adjust and
handle to a conclusion such claims, and in the event of a suit being brought against
Railway, Railway may forward summons and complaint or other process in connection
therewith to Contractor, and Contractor, at Railway’s discretion, must defend, adjust, or
settle such suits and protect, indemnify, and save harmless Railway from and against all
damages, judgments, decrees, attorney’s fees, costs, and expenses growing out of or
resulting from or incident to any such claims or suits.
In addition to any other provision of this Agreement, in the event that all or any portion of
this Article shall be deemed to be inapplicable for any reason, including without limitation
as a result of a decision of an applicable court, legislative enactment or regulatory order,
the parties agree that this Article shall be interpreted as requiring Contractor to indemnify
Railway to the fullest extent permitted by applicable law. THROUGH THIS
AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO
INDEMNIFY RAILWAYFOR RAILWAY’S ACTS OF NEGLIGENCE.
It is mutually understood and agreed that the assumption of liabilities and indemnification
provided for in this Agreement survive any termination of this Agreement.
2)TERM
This Agreement is effective from the date of theAgreement until (i) the completion of the
project set forth herein, and (ii) full and complete payment to Railway of any and all
sums or other amounts owing and due hereunder.
EXHIBIT C-1-Page 2
1493069.1
3)INSURANCE
Contractor shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
Commercial General Liability insurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $5,000,000 each
occurrence and an aggregate limit of at least $10,000,000 but in no event less than the
amount otherwise carried by the Contractor. Coverage must be purchased on a post
2004 ISO occurrence form or equivalent and include coverage for, but not limit to the
following:
Bodily Injury and Property Damage
Personal Injury and Advertising Injury
Fire legal liability
Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
The definition of insured contract shall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
Waver of subrogation in favor of and acceptable to Railway.
Additional insured endorsement in favor of and acceptableto Railway.
Separation of insureds.
The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
It is agreed that the workers’compensation and employers’liability related
exclusions in the Commercial General Liability insurance policy(s) required herein
are intended to apply to employees of the policy holder and shall not apply to
Railwayemployees.
No other endorsements limiting coverage as respects obligations under this
Agreement may be included on the policy with regard to the work being performed
under this agreement.
B.Business Automobile Insurance. This insurance shall contain a combined single limit of at
least $1,000,000 per occurrence, and include coverage for, but not limited to the following:
Bodily injury and property damage
EXHIBIT C-1-Page 3
1493069.1
Any and all vehicles owned, used or hired
The policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
Waiver of subrogation in favor of and acceptable to Railway.
Additional insured endorsement in favor of and acceptable to Railway.
Separation of insureds.
The policy shall be primary and non-contributing with respect to any
insurance carried by Railway.
C.Workers Compensation and Employers Liability insurance including coverage for, but
not limited to:
Contractor’s statutory liability under the worker’s compensation laws of the
state(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
Employers’Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be
indicated on the certificate of insurance:
Waiver of subrogation in favor of and acceptable to Railway.
A.Railroad Protective Liability insurance naming only the Railwayas the Insured with
coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate.
The policy Must be issued on a standard ISO form CG 00 35 12 04 and include the
following:
Endorsed to include the Pollution Exclusion Amendment
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to remove any exclusion for punitive damages.
No otherendorsements restricting coverage may be added.
The original policy must be provided to the Railwayprior to performing any
work or services under this Agreement
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
EXHIBIT C-1-Page 4
1493069.1
named insured and all property in any named insured’care, custody, and
control arising out of the acts or omissions of the contractor named on the
Declarations.
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate (if
available) in Railway’s Blanket Railroad Protective Liability Insurance Policy.
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
Contractor agrees to waive its right of recovery against Railwayfor all claims and suits
against Railway. In addition, its insurers, through the terms of the policy or policy
endorsement, waive their right of subrogation against Railwayfor all claims and suits.
Contractor further waives its right of recovery, and its insurers also waive their right of
subrogation against Railwayfor loss of its owned or leased property or property under
Contractor’s care, custody or control.
Allocated Loss Expense shall be in addition to all policy limits for coverages referenced
above.
Contractor is not allowed to self-insure without the prior written consent of Railway. If
granted by Railway, any self-insured retention or other financial responsibility for claims
shall be covered directly by Contractor in lieu of insurance. Any and allRailway
liabilities that would otherwise, in accordance with the provisions of this Agreement, be
covered by Contractor’s insurance will be covered as if Contractor elected not to include
a deductible, self-insured retention or other financial responsibility for claims.
Prior to commencing services, Contractor shall furnish to Railwayan acceptable
certificate(s) of insurance from an authorized representative evidencing the required
coverage(s), endorsements, and amendments.The certificate should be directed to the
following address:
BNSF Railway Company
c/o CertFocus
P.O. Box 140528
Kansas City, MO 64114
Toll Free:877-576-2378
Fax number:817-840-7487
Email:BNSF@certfocus.com
www.certfocus.com
Contractor shall notify Railway in writing at least 30 daysprior to any cancellation, non-
renewal, substitution or material alteration.
EXHIBIT C-1-Page 5
1493069.1
Any insurance policy shall be written by a reputable insurance company acceptable to
Railwayor 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.
If coverage is purchased on a “claims made”basis, Contractor hereby agrees to
maintain coverage in force for a minimum of three years after expiration, cancellation or
termination of this Agreement. Annually Contractor agrees to provide evidence of such
coverage as required hereunder.
Contractor represents that this Agreementhas been thoroughly reviewed by Contractor’s
insurance agent(s)/broker(s), who have been instructed by Contractor to procure the
insurance coverage required by this Agreement.
Not more frequently than once every five years, Railwaymay reasonably modify the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Contractor,Contractorshall
require that the subcontractor shall provide and maintain insurance coverage(s) as set
forth herein, naming Railwayas an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Railwayto the same extent and
under the same terms and conditions as Contractoris required to release, defend and
indemnify Railwayherein.
Failure to provide evidence as required by this section shall entitle, but not require,
Railwayto terminate this Agreement immediately. Acceptance of a certificate that does
not comply with this section shall not operate as a waiver of Contractor’s obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Contractor shall not be deemed to release or diminish the liability of Contractor including,
without limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Railwayshall not be limited by the amount of the required insurance
coverage.
In the event of a claim or lawsuit involvingRailwayarising out of this agreement,
Contractor will make available any required policy covering such claim or lawsuit.
These insurance provisions are intended to be a separate and distinct obligation on the
part of the Contractor. Therefore, these provisions shall be enforceable and Contractor
shall be bound thereby regardless of whether or not indemnity provisions are determined
to be enforceable in the jurisdiction in which the work covered hereunder is performed.
EXHIBIT C-1-Page 6
1493069.1
For purposes of this section, Railwayshall mean “Burlington Northern Santa Fe LLC”,
“BNSF Railway Company”and the subsidiaries, successors, assigns and affiliates of
each.
4)SALES AND OTHER TAXES
In the event applicable sales taxes of a state or political subdivision of a state of the
United States are levied or assessed in connection with and directly related to any
amounts invoiced by Contractor to Railway (“Sales Taxes”), Railway shall be responsible
for paying only the Sales Taxes that Contractor separately states on the invoice or other
billing documents provided to Railway; provided, however,that (i) nothing herein shall
preclude Railway from claiming whatever Sales Tax exemptions are applicable to
amounts Contractor bills Railway, (ii) Contractor shall be responsible for all sales, use,
excise, consumption, services and other taxes which may accrue on all services,
materials, equipment, supplies or fixtures that Contractor and its subcontractors use or
consume in the performance of this Agreement, (iii) Contractor shall be responsible for
Sales Taxes (together with any penalties, fines or interest thereon) that Contractor fails
to separately state on the invoice or other billing documents provided to Railway or fails
to collect at the time of payment by Railway of invoiced amounts (except where Railway
claims a Sales Tax exemption), and (iv) Contractor shall be responsible for Sales Taxes
(together with any penalties, fines or interest thereon) if Contractor fails to issue
separate invoices for each state in which Contractor delivers goods, provides services
or, if applicable, transfers intangible rights to Railway.
Upon request, Contractor shall provide Railway satisfactory evidence that all taxes
(together with any penalties, fines or interest thereon) that Contractor is responsible to
pay under this Agreement have been paid. If a written claim is made against Contractor
for Sales Taxes with respect to which Railway may be liable for under this Agreement,
Contractor shall promptly notify Railway of such claim and provide Railway copies of all
correspondence received from the taxing authority. Railway shall have the right to
contest, protest, or claim a refund, in Railway’s own name, any Sales Taxes paid by
Railway to Contractor or for which Railway might otherwise be responsible for under this
Agreement; provided, however, that if Railway is not permitted by law to contest any
suchSales Tax in its own name, Contractor shall, if requested by Railway at Railway’s
sole cost and expense, contest in Contractor’s own name the validity, applicability or
amount of such Sales Tax and allow Railway to control and conduct such contest.
Railway retains the right to withhold from payments made under this Agreement
amounts required to be withheld under tax laws of any jurisdiction. If Contractor is
claiming a withholding exemption or a reduction in the withholding rate of any jurisdiction
on any payments under this Agreement, before any payments are made (and in each
succeeding period or year as required by law), Contractor agrees to furnish to Railway a
properly completed exemption form prescribed by such jurisdiction. Contractor shall be
EXHIBIT C-1-Page 7
1493069.1
responsible for any taxes, interest or penalties assessed against Railway with respect to
withholding taxes that Railway does not withhold from payments to Contractor.
1)EXHIBIT “C”CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with all provisions, obligations, requirements
and limitations contained in the Agreement, and the Contractor Requirements set forth
on Exhibit “C”attached to the Agreement and this Agreement, including, but not be
limited to, payment of all costs incurred for any damages to Railway roadbed, tracks,
and/or appurtenances thereto, resulting from use, occupancy, or presence of its
employees, representatives, or agents or subcontractors on or about the construction
site. Contractor shall execute a Temporary Construction Crossing Agreement or Private
Crossing Agreement (http://www.bnsf.com/communities/faqs/permits-real-estate/), for
any temporary crossing requested to aid in the construction of this Project, if approved
by BNSF.
2)TRAIN DELAY
Contractor is responsible for and hereby indemnifies and holds harmless Railway
(including its affiliated railway companies, and its tenants) for, from and against all
damages arising from any unscheduled delay to a freight or passenger train which
affects Railway’s ability to fully utilize its equipment and to meet customer service and
contract obligations. Contractor will be billed, as further provided below, for the
economic losses arising from loss of use of equipment, contractual loss of incentive pay
and bonuses and contractual penalties resulting from train delays, whether caused by
Contractor, or subcontractors, or by the Railway performing work under this Agreement.
Railway agrees that it will not perform any act to unnecessarilycause train delay.
For loss of use of equipment, Contractor will be billed the current freight train hour rate
per train as determined from Railway’s records. Any disruption to train traffic may cause
delays to multiple trains at the same time for the same period.
Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other
grain, intermodal, coal and freight trains operate under incentive/penalty contracts
between Railway and its customer(s). Under these arrangements, if Railway does not
meet its contract service commitments, Railway may suffer loss of performance or
incentive pay and/or be subject to penalty payments. Contractor is responsible for any
train performance and incentive penalties or other contractual economic losses actually
incurred by Railway which are attributable to a train delay caused by Contractor or its
subcontractors.
The contractual relationship between Railway and its customers is proprietary and
confidential. In the event of a train delay covered by this Agreement, Railway will share
information relevant to any train delay to the extent consistent with Railway
confidentiality obligations. The rate then in effect at the time of performance by the
EXHIBIT C-1-Page 8
1493069.1
Contractor hereunder will be used to calculate the actual costs of train delay pursuant to
this agreement.
Contractor and its subcontractors must give Railway’s representative
(___________________)thirty (30) days’ advance notice of the times and dates for
proposed work windows. Railway and Contractor will establish mutually agreeable work
windows for the project. Railway has the right at any time to revise or change the work
windows due to train operations or service obligations. Railway will not be responsible
for any additional costs or expenses resulting from a change in work windows.
Additional costs or expenses resulting from a change in work windows shall be
accounted for in Contractor’s expenses for the project.
Contractor and subcontractors must plan, schedule, coordinate and conduct all
Contractor’s work so as to not cause any delays to any trains.
EXHIBIT C-1-Page 9
1493069.1
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed
by its duly authorized officer the day and year first above written.
ContractorLegalNameBNSF Railway Company
By:________________________________By:________________________________
Printed Name:_______________________Name: _____________________________
Manager Public Projects
Title:_______________________________
Accepted and effective this ______day of 20__.
Contact Person:______________________
Address: ___________________________
City:_______________________________
State:_________Zip:_________________
Fax:_______________________________
Phone:_____________________________
E-mail:_____________________________
EXHIBIT C-1-Page 10
1493069.1
EXHIBIT D
RAILROAD WORK COSTS
EXHIBIT D
1493069.1
5/1/2020
Mt. Vernon Bridge Replacement
Exhibit D
Summary Page
Amount
BNSF Construction Support Work
Flagging$2,2
Inspector/Coordinator$2,095,385
Project Engineer and Transportation Staff Support$533,280
Signal$177,504
Telecom$65,816
Track$67,721
Civil/Electrical/Crossings$1,122,339
Total Construction Support
BNSF Mitigation Project$55,3,903
Total Railroad Work$62,
BNSF Mitiagtion Project includes $18,825,000
recollectible from SBCTA, remainder is BNSF cost.
Construction Support Work is 100% billable to SBCTA
Exhibit E
\[Public Projects Manager’s letterhead\]
Date: ______________________
Mr./Ms. ______________________
_____________________________\[Name of SBCTAHere\]
_____________________________\[Address for SBCTA\]
_____________________________
Re: Final Approval of Plans and Specifications dated _________, 20__, drafted by
_____________________\[insert name of architecture or engineering firm here\]
(hereinafter called, the “Plans and Specifications”)
Dear _______________:
This letter serves as BNSF RAILWAY COMPANY’s (“BNSF”) final written approval of the Plans
and Specifications covering the construction ofMount Vernon Avenue Viaduct Replacement
Project. This final written approval is given to SBCTA (“Agency”) pursuant to Article II, Section 6
of that certain Underpass Agreement between BNSF and Agency, dated __________, 20__,
which this Exhibit E is attached to and made a part thereof.
If the Plans and Specifications are revised by Agency subsequent to the date set forth above,
this letter shall no longer serve as final written approval of the Plans and Specifications and
Agency must resubmit said Plans and Specifications to BNSF for final written approval.
It is understood that the approvals contained in this letter do not cover, the approvals of plans
and specifications for any falsework, shoring, and demolition that may be subsequently
submitted to BNSF by CITYor its contractor for approval.
BNSFhas not reviewed the design details or calculations for structural integrity or engineering
accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project.
Regards,
___________________________
\[Public Projects Manager’sName\]
EXHIBIT E
1493069.1
Exhibit F
BNSF BridgeRequirements
BNSFPROCESS REQUIREMENTSFOR DESIGN & CONSTRUCTION OF GRADE
SEPARATION PROJECTS BY A PUBLIC AGENCY ON BNSF RIGHT OF WAY, WHICH
IMPACT BNSF PROPERTY OR OPERATIONS
1.01 General:
1.01.01The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter
referred to as "Railway" where work is over or under on or adjacent to Railway property
and/or right-of-way, hereafter referred to as "Railway Property", during the construction of
the Mount Vernon Avenue Viaduct Replacement Project.
1.01.02Definitions:
Operationally Critical(OC): defined as Work that requires a submittal and
acceptance by BNSF, which impacts, or could impact BNSF operations, on BNSF
right-of-way or adjacent to it.
Acceptance: BNSF’s response to plan submittals indicating a notice to proceed
with work in the field;Disclaimer for Acceptance: *BNSF has reviewed these
submittals and no exceptions are taken with regard to BNSF's ability to use or
accommodate the project as intended. BNSF has not reviewed the design
details or calculations for structural integrity or engineering accuracy. BNSF
accepts no responsibility for errors or omissions in the design or execution of
the project.
Inspector/Coordinator(I/C): A third party consultant which BNSF hires to assist in
the coordination of the project on BNSF’s behalf. When referenced, “I/C” refers to the
I/C team consisting of I/C-I, I/C-II, and the Resident Engineer (RE). The I/C team’s
role is to ensure the project is constructed per accepted* plans and specifications for
that portion of the project on BNSF right of way, as it affects BNSF. The I/C will
monitor construction activities to ensure that improvements used by BNSF meet all
requirementsof BNSF, and accommodate railroad operations.
1.01.03The following submittals and actions are required by BNSF prior to Operationally
Critical(OC) Workbeing performed on BNSF property or above tracks being operated by
BNSF Railway:
2.01 Submittals and Actions Required During the Project Design Phase:
2.01.01SBCTAshall be the main contact for BNSF throughout the project. SBCTAshall
be included on all correspondence relating to BNSF.
EXHIBIT F–Page 1
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2.01.02Required Design Submittals: (Allow for 4 weeks for BNSF to review design
submittals)
SBCTAshall refer to the requirements of the UP/BNSF Guidelines on Grade Separation
Projects when designing a grade separation which will impact BNSF Railway.SBCTAwill
be required to submit plans for BNSF review and comment. Plans shall not be labeled
“final” until all comments have been addressed and BNSF has accepted* the plans.
Examples of required design submittals may be, but are not limited to:
Concept, vertical profile of Top of Rail, 30% plans and final plans
The following submittals will require a Professional Engineer, (PE) stamp:
Overpass design
Underpass design
Hydraulic study
Any non-standard design of a structurewhich will carry train loading
Work covered by a submittal shall not be performed in field without receiving Acceptance
from BNSF.
Work windows will not exceed 6 hours, so project should be designed accordingly.
The following Disclaimer applies to BNSF acceptance of SBCTAdesign plans:
*BNSF has reviewed these submittals and no exceptions are taken with regard to BNSF's
ability to use or accommodate the project as intended. BNSF has not reviewed the design
details or calculations for structural integrity or engineering accuracy. BNSF accepts no
responsibility for errors or omissions in the design or execution of the project.
3.01 Submittals and Actions Required During the Construction Phase:
3.01.01SBCTAshall be the main contact for BNSF throughout the project. SBCTAshall
be included on all correspondence relating to BNSF. BNSF will NOT accept submittals
directly from the SBCTA’sContractor.
3.01.02BNSF will hire a consultant team to perform the duties of an
Inspector/Coordinator(I/C) on behalf of BNSF for the duration of the field construction of the
project. The cost of theI/C will be reimbursable to BNSF by SBCTAor itsContractor.
BNSF requires the I/C team be involved in the project throughout the construction phase to
represent BNSF.
The I/C has authority to remove a contractor’s employee from BNSF property if that
employee fails to comply with the BNSF safety policy, does not have proper PPE or
otherwise ignores instructions regarding work on BNSF right-of-way. The I/C has
authority to shut down work on BNSF right-of-way if the contractor works in a manner
that is in violation of BNSF’s safety policy or FRA regulations.
EXHIBIT F–Page 2
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All equipment and personnel will be removed from BNSF property until issues
causing the shutdown are resolved to BNSF’s satisfaction.
3.01.03SBCTAmust hold a pre-construction meeting with contractor and BNSF prior to
work beginning on BNSF property.
The Pre-Construction meeting shall not be held until 30 days after I/C has been selected –
this allows time for the I/C to become familiar with the project.
Recommend scheduling two weeks prior to construction commencing to allow for
adjustment to work plans, if needed.
3.01.04Required Construction Submittals: : (Allow for 4 weeks for BNSF to review
submittals)
All submittalsshould flow from the Contractor to SBCTA, to the I/C Consultant, to the BNSF
Project Engineer, (PE), and to BNSF Structures with responses back through the same
communication chain. BNSF will not accept submittals directly from the Contractor.
Any changes to the work governed by a submittal requires that the submittal be re-
accepted* by BNSF before the work commences.
Examples of construction submittals required include but are not limited to:
Contractors Safety Action Plan, Fire Prevention Plan, Proposed Project Schedule,
Demolition, Shoring, Falsework and Lifting of Materials.
The following submittals will require a Professional Engineer, (PE) stamp:
Critical Pick Plan (75% of capacity of crane, or multi-crane pick)
Lifted Material Plan (Placement or Removal) –When lift is within temporary construction
clearances and when list is within 25’ of the centerline of the nearest track
Demolition Plan
Temporary Shoring Plan
Bracing Design Plan (non-standard only per DOT)
For overpasses, SBCTAshall submit as-built plans of the structure, including final clearance
dimensions to the I/C. Vertical clearance must be measured from the Top of Rail, horizontal
clearance must be measured from the nearest track centerline.
OPERATIONALLY CRITICAL WORK AND SUBMITTALS: (4 to 6 weeks review timeline)
All OC work requires a submittal and acceptance* by BNSF.
Operationally Critical (OC) submittals are those that have the potential to affect the
safe operation of trains and will need to be reviewed carefully. Work must be
monitored to ensure it conforms to the submitted/accepted* plan.
In-person safety review meetings will be required with BNSF representative, I/C,
Contractor and SBCTArepresentative for all OC work and must be documented.
EXHIBIT F–Page 3
1493069.1
The purpose of the meeting is to ensure all parties understand BNSF requirements
and are following the applicable submittals. When a track work window is required
the meeting shall occur at least 48 hours in advance of work starting.
Submittals must meet the requirements of the UP Railroad -BNSF Railway
Guidelines for Railroad Grade Separation Projects.Submittals must also
follow the requirements outlined in BNSF Review Comment Sheets, Use of
Cranes & Lifting of Materials Submittal Schedule, BNSF Guidelines for
Preparation of BridgeDemolition & Removal Plan and the BNSF-UPRR
Guidelines for Temporary Shoring.Some submittals are required to be sealed by
a licensed professional engineer.
a.See Table 3-1 for Overhead Structuresin UP Railroad -BNSF Railway
Guidelines for Railroad Grade Separation Projects
b.See Table 3-2 for Underpass StructuresUP Railroad -BNSF Railway Guidelines
for Railroad Grade Separation Projects
c.Examples of OC submittals included in the above are:
i.Shoring(Follow BNSF-UPRR Guidelines for Temporary Shoring)
ii.Falsework
iii.Demolition (Need plans for substructure and superstructure. Follow
BNSF Guidelinesfor Preparation of Bridge Demolition & Removal Plan)
iv.Erection (overhead and underpass structures)
v.Construction Phasing Plans
d.AdditionalOC submittals required, but not included in the Guidelines are:
i.All work plans that remove tracks from service (track outage windows
require a detailed Gantt chart when greater than 2 hours)
ii.Contingency plans
iii.Additional OC submittals may be required on aproject by project basis.
For underpasses and other railroad bridges, as required in Sections 4.11 and 4.12 of the UP
Railroad -BNSF Railway Guidelines for Railroad Grade Separation Projects, a RE will be on
site full-time during construction, at the cost of the project. At the discretion of the RE, as
accepted by BNSF, an I/C-I or I/C-II maybe assigned for field duties where the work is not
critical to ensuring the bridge isbuilt to acceptedproject plans and specification.
3.01.05Prior to any work commencing on BNSF right of way:
Contractors C/C-1 or Right of Entry must be fully executed and their insurance
must be approved before they can perform work on BNSF property.
Proof of Contractors insurance approval must be produced to the BNSF PE and
the I/C.
EXHIBIT F–Page 4
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3.01.06Contractor must adhere to all other BNSF policies and proceduresnot
specifically mentioned in this agreement.
EXHIBIT F–Page 5
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EXHIBITG
Intentionally Omitted
EXHIBIT G
1493069.1
EXHIBIT H
INTENTIONALLY OMITTED
EXHIBIT H
1493069.1
EXHIBIT I
PHASING PLAN
EXHIBIT I
1493069.1
EXHIBIT J
INTENTIONALLY OMITTED
EXHIBIT J
1493069.1