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RESOLUTION NO. 2004-303
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE ALICENSEILETTER
3 AGREEMENT WITH THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY CONCERNING THE MT. VERNON BRIDGE.
4
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
6 OF SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed
8 to execute on behalf of said City, a License/Letter Agreement with the Burlington Northern and
9 Santa Fe Railway Company concerning the Mt. Vernon Bridge. A copy of said License/Letter
10 Agreement is attached hereto as Exhibit "A," and incorporated herein by reference as though fully
11 set forth.
12 III
13 III
14 III
15 III
16 III
17 III
18 III
19 III
20 III
21 III
22 III
23 III
24 III
25 III ::t:- 3l
q (:10/0 y
26 III
27 III
28 Bnsfagr
1
RESOLUTION NO. 2004-303
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A LICENSEILETTER
3 AGREEMENT WITH THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY CONCERNING THE MT. VERNON BRIDGE.
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bemardino at a joint regular
meeting thereof, held
7 on the 20th day of September , 2004, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA X
10 LONGVILLE X
-
11 MCGINNIS X
12 DERRY ~
13 KELLEY ---1L-
14 JOHNSON ---X-
15 MCCAMMACK x
16
17
18
19
20
21
The foregoing Resolution is hereby approved this d-drdd tir September , 2004.
22
Approved as to form and
23 legal content:
24
25
26
27
28 Bnsf.agr
i
ROBERT E. BRENDZA
rn-.- Fadity Deu/qJrmt
The Burlington Northern
and Santa Fe Railway Company
740 East Carnegie Drive
San Bernardino, CA 92408.3571
Phone, (909) 386-4042
F"" (909) 386-4045
E-mail: Bob Brendz.a(a'!BNSF.com
September 21, 2004
File: Mt. Vernon Bridge
James F. Penman, Esq.
City Attorney
City of San Bernardino
300 North "0" Street
San Bernardino, CA 92418-0001
Re: License Agreement -- Mt. Vernon Bridge Overpass
Dear Mr. Penman:
This correspondence shall constitute an agreement between The Burlington Northern and
Santa Fe Railway Company, a Delaware Corporation ("BNSF") and the City of San Bernardino,
a municipal corporation ("City") with respect to certain City proposed activities affecting the Mt.
Vernon Bridge Overpass and certain BNSF owned property.
In consideration of the mutual agreements of the parties contained herein, which shall
apply during the term of this License, the parties agree as follows:
1. Grant. BNSF hereby grants the City a License ("License", "Agreement" or "License
Agreement"), subject to all rights, interests, and estates ofthird parties, including, without
limitation, any leases, licenses, easements, liens, or other encumbrances, and upon the
terms and conditions set forth below, to temporarily occupy the area shown on attached
Exhibit "A", situated in the City of San Bernardino, County of San Bernardino, State of
California ("BNSF Property"), for the purposes specified herein. The City shall
minimally impact any improvements of BNSF or BNSF's existing lessees, licensees,
easement beneficiaries or lien holders, if any, or minimally interfere with the use of such
improvements.
2. Pumose. The Mt. Vernon Bridge Overpass is currently closed to vehicle traffic because
of cracking of some of the steel members of the bridge. The City quickly awarded a
contract to Yeager Skanska, Inc. to install temporary support for the Mt. Vernon Bridge to
allow some vehicle traffic to resume travel of the Bridge. The contractor is prepared to
complete the temporary shoring within 30 days of beginning work. It is imperative to the
I
people of the City that the Bridge be re-opened as soon as possible. It is also imperative
that BNSF's transcontinental rail service be impacted as minimally as possible. As a
good corporate citizen, with a long standing relationship in the City, BSNF wants to
cooperate in this effort.
This License Agreement will allow the City and its contractors to install and maintain the
temporary shoring and support structures (hereafter, "shoring" or "temporary shoring") on
the BNSF Property for the Mt. Vernon Bridge, and perform geotechnical investigation
and related matters in order to develop the plans and specifications for the construction of
the replacement bridge. The City fully intends to construct a new bridge with great
urgency.
3. Term. Upon execution of this Agreement, the City and its contractors will commence
work to install the temporary shoring within 30 days, according to the specifications
described in attached Exhibit "B". The City and its contractors will finish installing the
temporary shoring within 30 days of commencing work. The City will give BNSF 30
days' notice before removing the temporary shoring.
As set forth herein, this License will provide the City 30 months following execution of
this License, to enter into a binding contract with a qualified general contractor to
construct the permanent replacement bridge.
4. K-Rail Barriers. The City shall provide k-rail barriers painted in the color required by
BNSF with reflective tape at prescribed locations on the property as shown in the Bridge
shoring plans. Such k-rails shall remain on the property while the temporary shoring is in
place. Upon removal of the temporary shoring, such k-rail barriers shall either be
removed by the City or become the property of BNSF.
5. Exoenses.
(a) The City will pay for the temporary shoring.
(b) Subject to the limitations in this paragraph, if a BNSF flagman is needed, the City
will pay $500.00 per 8-hour day, plus $95.00 per hour for each additional hour
during that day, for each flagman needed.
(c) If an electrical contractor is needed to accommodate BNSF's lighting under the
bridge, the City will pay BNSF's actual direct cost for services provided by
BNSF's electrical contractor to perform such modifications to BNSF's lighting,
which BNSF estimates to be $5,000.00, provided any amount above the $5,000.00
estimate is substantiated and approved in advance by the City.
(d) The parties agree to work together to minimize the above expenses consistent with
the need for safe operations.
2
6. Indemnification.
(a) The City agrees to indemnify and hold harmless BNSF, its officers, agents and
volunteers from any and all claims, actions or losses, damages and/or liability
resulting from the City's negligent acts or omissions arising from the City's
performance of its obligations under this License.
(b) BNSF agrees to indemnify and hold harmless the City, its officers, agents and
volunteers from any and all claims, actions or losses, damages and/or liability
resulting from BNSF's negligent acts or omissions arising from BNSF's
performance of its obligations under the License and/or resulting from the
negligent acts or omissions arising from the performance of work by BNSF's
agents under this License.
(c) In the event the City and/or BNSF is found to be comparatively at fault for any
claim, action, loss or damage which results from their respective obligations under
this License, the City and/or BNSF shall indemnify the other to the extent of its
comparative fault.
(d) It is the understanding of the parties that the City's contractor, Yeager Skanska,
Inc., has agreed to comply with the special conditions attached as Exhibit "c" and
it is the further understanding of the parties that Yeager Skanska, Inc. will not
seek indemnification or additional compensation from the City in the event of a
claim or lawsuit arising from said contractor's alleged failure to comply with said
special conditions.
7. Good Faith Declaration of City's Intent to Construct a New Bridge: The City
acknowledges that the current Mt. Vernon Bridge is inadequate to handle the needs of the
City. The City will diligently and in good faith take all steps necessary to demolish the
current bridge and construct a new replacement bridge. The City and BNSF agree to
negotiate in good faith for a construction and maintenance agreement (C&M Agreement)
that will be a separate document from this License to temporarily shore the bridge
pending construction of the new bridge and that will facilitate construction of the
permanent replacement bridge.
(a) If within 30 months following execution of this License, the City has not entered
into a binding contract with a qualified general contractor to construct the
permanent replacement bridge, then BNSF shall have the right to require the City
to either (i) perform repairs to the Mt. Vernon Bridge Overpass or (ii) remove the
temporary shoring, as City may elect. This License would be extended
commensurately with required construction timeframes for completion of such
intermediate repairs/removal of shoring. In the event City elects the alternative of
removing shoring, it is City's intent to close the Bridge concurrent with removal
3
of shoring. In the event City elects to remove shoring, such shoring will be
removed within 90 days ofBNSF's notice to City.
(b) If the City defaults in its obligations to either complete the intermediate repairs or
remove the shoring, BNSF shall have the following remedy:
(i) BNSF shall have the right to seek a declaration that the City is in default of
its obligations to either complete the intermediate repairs or remove the
shoring, by arbitration in San Bernardino, California, before a sole
arbitrator, in accordance with the laws of the State of California for
agreements made in and to be performed in that State. The arbitration
shall be administered by the Judicial Arbitration and Mediation Service
(JAMS) pursuant to its Streamlined Arbitration Rules and Procedures.
Judgment on the award may be entered in any court having jurisdiction.
A. Selection of Arbitrator. The parties agree to jointly select a
retired judicial officer who is affiliated with JAMS, to act as the
trier of fact and judicial officer in such dispute resolution, from a
panel offered by JAMS;
B. Inability to Agree on Arbitrator. If the parties are unable to
agree upon a particular retired judicial officer, then the decision
shall be made by the chief executive officer of JAMS, after
consulting with the parties;
C. Discovery. All parties shall have the same rights of discovery as if
the dispute were being resolved in the Superior Court of the State
of California. However, the judicial officer shall, on his own
motion, or the request of a party, have the authority to extend or
reduce the time periods therefore;
D. Fees. The parties shall equally divide the costs of such judicial
officer.
(ii) If it is determined by the judicial officer that the City is in default of its
obligations to either complete the intermediate repairs or remove the
shoring, then BNSF will have rights of self-help to remove such shoring
and, in that event, be reimbursed in full for the actual out-of-pocket third-
party costs and expenses incurred by the BNSF in removing the shoring,
not to exceed $50,000.00, provided any additional amount above
$50,000.00 is substantiated and approved in advance by the City. In that
event, the City agrees to close the Bridge.
4
(c) BNSF and the City acknowledge that completion of a number of activities will be
necessary for the City to be in a position to construct the replacement bridge as
contemplated in this License. Accordingly, BNSF and the City agree to use good
faith diligent efforts to complete all performance contemplated in this License
during the aforementioned 30-month period.
(i) If the parties are unable to complete any aspect of such performance for
reasons beyond their reasonable control, they shall negotiate in good faith
for required extensions of this License which are necessary to complete
such performance.
(ii) Without limiting the generality of the foregoing, should the City, after
obtaining appraisals by its consultant and making offers to purchase right-
of-way, and the offers are declined forcing the City to pursue eminent
domain actions, experience delay in completing the eminent domain
actions, BNSF and the City shall negotiate in good faith for required
extensions of this License as are necessary to complete such eminent
domain actions.
(iii) Without limiting the generality of the foregoing, should the City through
project development be delayed because of any possible environmental
hazardous materials issues associated with the underlying property, BNSF
and the City shall negotiate in good faith for extension of the term as may
be necessary to accommodate the required cleanup.
(iv) In the event any aspect of the City's performance under this License is
prevented due to the initiation of litigation, the applicable time periods in
this License shall be tolled pending completion of such litigation. The
City will diligently defend against any such litigation and shall use good
faith diligent efforts to bring about a speedy resolution of such litigation.
8. Other Provisions.
(a) The City shall observe and comply and cause its contractors to observe and
comply with any and all applicable laws, statutes, regulations and ordinances.
(b) Prior to commencing any work on the BNSF Property, the City shall complete and
shall require its contractor to complete the safety training program at the Internet
Website "contractororientation.com".
(c) Any activities performed by the City or the City's contractors on the BNSF
Property shall be generally in accordance with prudent standards of professional
environmental practices exercised by the environmental engineering profession.
5
(d) The City shall observe and comply and cause its contractors to observe and
comply with any applicable BNSF safety rules and regulations. The applicable
BNSF safety rules and regulations are attached as Exhibit "c" to Exhibit "c" to
this License.
(e) Except for the installation of the temporary shoring, any k-rail barriers or the
permanent replacement bridge, upon completion of the City's work on the BNSF
Property or upon termination of this. License, whichever shall occur first, unless
superseded by a subsequent agreement between the parties, the City shall cause its
contractors to do the following:
(i) remove all of their equipment from the BNSF Property;
(ii) report and restore any damage to the BNSF Property arising from, growing
out of, or connected with their use of the BNSF Property;
(iii) remedy any unsafe conditions on the BNSF Property created or aggravated
by them; and
(iv) leave the BNSF Property in the condition which existed as of the date of
this License.
9. Davs and Months. All references to days and months shall be deemed to be references to
calendar days and calendar months.
10. Aoolicable Law. This License shall be interpreted and enforced in accordance with the
laws of the State of Cali fomi a for agreements made in and to be performed in that State.
Ifthe aforementioned terms and conditions are acceptable, please indicate your agreement
by having the appropriate person sign in the space provided.
If there are any questions, please feel free to contact this office at (909) 386-4042.
Sincerely,
~L~
Robert E. Brendza
CITY OF SAN BERNARDINO,
I corporation
By:
Date:
9 ';;,;}-.;;;oo V
,'PROVED AS TO FORM
AND LEGAL CONTENT.
James F. Penman,
City A~orney...., -1
6
BNSF PROPERTY
EXHffiIT "A"
EXHIBIT "A" . CONTRACTOR'S ACCESS PLAN
Sheet 1 of 2
EXHIBIT "A" · CONTRACTOR'S ACCESS PLAN
Sheet 2 of 2
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AND SUPPORT STRUCTURES AND PROTECTIVE K-RAIL BARRIERS
EXHIBIT "B"
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SPECIAL CONDITIONS (BNSF Form C-l)
EXHffiIT "e"
EXHIBIT "e-I"
Agreement
Between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
and the
CONTRACTOR IN CALIFORNIA
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
740 E. Carneeie Drive
San Bernardino. CA. 92408-3571
Attention: Manager Public Projects
Railway File:
Ageucy Project:
Gentlemen:
The undersigned, hereinafter referred to as Contractor, has entered with a third party (awarding authority)
into a Contract dated September ---' 2004 for the performance of certain work in connection with the installation
of temporary shoring at the Mt. Vernon Bridge, the performance of which work the Contractor will necessarily be
required to conduct operations within THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY ("Railway"), right of way and property ("Railway Property"). The Contract provides that no work shall
be commenced within Railway Property until the Contractor employed in connection with said work for IAeencv)
shall have executed and delivered to Railway an Agreement, in the form hereof, and shall have provided insurance
of the coverage and limits specified in said Contract and Section 2 of this Agreement. If this Agreement is executed
by other than the Owner, General Partner, President or Vice President of Contractor, evidence is furnished to you
herewith certifying that the signatory is empowered to execute this Agreement for the Contractor.
Accordingly, as one of the inducements to and as part of the consideration for Railway granting permission
to Contractor to enter upon Railway Property, Contractor, effective on the date of said Contract, has agreed and does
hereby agree with Railway as follows:
Section 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 any work performed
on or about Railway's property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR SHALL
NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE,
DEAm, 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 INTENTIONAL MISCONDUCT OR
GROSS NEGLIGENCE OF RAIL WAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR SHALL INCLUDE
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 BOILER INSPECTION ACT, WHENEVER SO CLAIMED.
Contractor further agrees, at its expense, in the name and on behalf of Railway, that it shall adjust and settle
all claims made against Railway, and shall, at Railway's discretion, appear and defend any suits or actions oflaw 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 shall give notice to Contractor, in writing, of the receipt or dependency of such claims and
Approved VP Law April 17. 2000 Page 1 of 5
C-I CA Apr l7.doc
thereupon Contractor shall 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, shall defend, adjust, or settle such suits and protect, indemniry,
and save hannless 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.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement shall survive any termination of this Agreement.
Section 2. INSURANCE
(a) Before commencing any work under this Agreement, Contractor must provide and maintain in effect
throughout the term of this Agreement insurance, at Contractor's expense, covering all of the work and
services to be performed hereunder by Contractor and each of its subcontractors, as described below:
I) Workers' Compensation coverage as is required by State law. THE CERTIFICATE MUST
CONTAIN A SPECIFIC WAIVER OF THE INSURANCE COMPANY'S SUBROGATION
RIGHTS AGAINST THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY.
2) Commercial General Liability insurance covering liability, including but not limited to Public
Liability, Personal Injury, Property Damage and Contractual Liability covering the obligations
assumed by Contractor in Section I, with coverage of at least $2,000,000 per occurrence and
$6,000,000 in the aggregate. Where explosion, collapse, or underground hazards are involved, the X,
C, and U exclusions must be removed from the policy.
3) Automobile Liability insurance, including bodily injury and property damage, with coverage of at least
$1,000,000 combined single limit or the equivalent covering any and all vehicles owned or hired by the
Contractor and used in performing any of the services under this agreement.
4) Railroad Protective Liability insurance stating The Burlington Northern and Santa Fe Railway
Company is the Named Insured covering all of the liability assumed by the Contractor under the
provisions of this Agreement with coverage of at least $2,000,000 per occurrence and $6,000,000 in
the aggregate. Coverage shall be issued on a standard ISO form CG 00 35 0 I 96 and endorsed to
include ISO form CG 28 31 1093 and the Limited Seepage and Pollution Endorsement (see attached
copy).
The average train traffic per 24-hour period on this route is _ freight trains at a timetable speed of _
MPH and _ passenger trains at a timetable speed of _ MPH and _ switch engine movements.
All insurance shall be placed with insurance companies licensed to do business in the States in which
the work is to be performed, and with a current Best's Insurance Guide Rating of A- and Class VII, or
better.
In all cases except Workers' Compensation and Railroad Protective Liability coverage the certificate
must specifically state that THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY IS AN ADDITIONAL INSURED.
Any coverage afforded Railway, the Certificate Holder, as an Additional Insured shall apply as
primary and not excess to any coverage issued in the name of Railway.
(b) Such insurance shall be approved by the Railway before any work is performed on Railway's Property and
shall be carried until all work required to be performed on or adjacent to Railway's Property under the
terms of the contract is satisfactorily completed as determined by awarding authority, and thereafter until
all tools, equipment and materials not belonging to the Railway, have been removed from Railway's
Property and Railway Property is left in a clean and presentable condition, except for the installation of the
Approved VP Law April 17, 2000 Page 2 of 5
C.I CA Apr 17.~
temporary shoring, any k-rail barriers or a new replacement bridge. The insurance herein required shall be
obtained by the Contractor and Contractor shall furnish Railway with an original certificate of insurance,
signed by the insurance company, or its authorized representative, evidencing the issuance of insurance
coverage as prescribed in (a) I, 2 and 3 above, plus the original Railroad Protective Liability insurance
policy to:
Attention:
Insurance Approvals
Engineering Services
The Burlington Northern and Santa Fe Railway Company
4515 Kansas Avenue
Kansas City, Kansas 66106
The certificate of insurance shall guarantee that the policies will not be amended, altered, modified or
canceled insofar as the coverage contemplated hereunder is concerned, without at least thirty (30) days
notice mailed by registered mail to Railway.
Full compensation for all premiums which the Contractor is required to pay on all the insurance described
hereinafter shall be considered as included in the prices paid for the various items of work to be performed
under the Contract, and no additional allowance will be made therefor or for additional premiums which
may be required by extensions of the policies of insurance.
It is further distinctly understood and agreed by the Contractor that its liability to the Railway herein under
Section I will not in any way be limited to or affected by the amount of insurance obtained and carried by
the Contractor in connection with said Contract.
The Railway file reference number and location InformatIon shown at the top of this Agreement,
must appear ou any original Insnranee policIes or eertllieates of insurance sent to Railway by the
Contractor.
Section 3. EXHIBIT "c" CONTRACTOR REQUIREMENTS
The Contractor will observe and comply with all the provisions, obligations and limitations to be observed
by Contractor which are contained in the subdivision of the specifications of said Contract, entitled EXHIBIT "C",
CONTRACTOR REQUIREMENTS, and shall include, 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.
SectIon 4. TRAIN DELAY
Contractor shall be responsible to Railway, including its affiliated railway companies, and its tenants for all
damages for any unscheduled delay to a freight or passenger train that 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 and train service employees 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 Railway Work. Railway agrees that it will not perform any act to
unnecessarily cause train delay.
For loss of use, Contractor will be billed per freight train hour at an average rate of ($ .00 ) with annual
adiustments) per hour per train as determined from Railway's record. Any disruption to train traffic may cause
delays to multiple trains at the same time for the same period.
In addition to the above damages, passenger, U.S. mail trains and certain other grain, intermodal, coal and
freight trains operate under incentive/penalty contracts between Railway and its customer. Under these
arrangements, if Railway does not meet its contract service commitment, Railway may suffer loss of performance or
incentive payor be subject to a penalty payment. Contractor shall be responsible for any train performance and
Approved VP Law April 17, 2000 Page 3 of 5
C-l CA^"r l7.doc
incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a
train delay caused by Contractor, or subcontractors.
As example, a train arrives 30 minutes after its contract service commitments and Railway is assessed
damages per terms of the contract. Either Contractor, and/or subcontractors, caused a 29 minute delay to the train
and therefore are not responsible for any train performance and incentive penalties or other contractual economic
losses actually incurred by Railway.
As example, a train arrives 30 minutes after its contract service commitments and Railway is assessed
damages per terms of the contract. Either Contractor, and/or subcontractors, caused a 31 minute delay to the train
and therefore are 100% responsible for any train performance and incentive penalties or other contractual economic
losses actually incurred by Railway.
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
maximum extent consistent with Railway confidentiality obligations. Damages for train delay for certain trains
could be as high as $50,000.00 per incident.
Contractor and subcontractors shaD plan, schednle, coordinate and conduct aD Contractor's work so
as to not cause any delays to any trains.
Kindly acknowledge receipt of this letter by signing and returning to the undersigned two original
copies of this letter, which, npon execution by Railway, shall constitute an Agreement between ns.
Yours truly,
(Contractor)
The Burlington Northern and Santa Fe
Railway Company
By:
Name:
By:
Name:
Manager Public Projects
(Title)
Address
Accepted this _day of
.2001
City:
State:_Zip:_
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Cot CA ApI' 17.doc
LIMITED SEEPAGE, POLLUTION AND CONTAMINATION COVERAGE ENDORSEMENT WORDING
In consideration of the premiwn charged it is understood and agreed that Exclusion f. of Coverage A. of this Policy
shall not apply to the liability of the Insured resulting from seepage and/or pollution and/or contamination caused
solely by:
I. unintended fIre, lightning or explosion: or
2. a collision or overturning of a road vehicle: or
3. a collision or overturning or derailment ofa train.
Notwithstanding the foregoing it is agreed that the coverage provided by this Endorsement shall not apply to:
I. loss of, damage to or loss of use of property directly or indirectly resulting from sub-surface operations of
the Insured, and/or removal of, loss of or damage to sub-surface oil, gas or any other substance;
2. any site or location used in whole or in part for the handling, processing, treatment, storage, disposal or
dwnping of any waste materials or substances;
3. the cost of evaluating and/or monitoring and/or controlling seeping and/or polluting and/or contaminating
substances;
4. the cost of removing and/or nullifying and/or cleaning up seeping and/or polluting and lor contaminating
substances on property at any time owned and/or leased and/or rented by the insured and/or under lbe
control of the Insured.
Notwithstanding lbe foregoing, Item I does not apply to tunnels.
Approved VP Law April 17, 2000 Page 5 of 5
C-I CAApI' 17.doe
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
CALIFORNIA
1.01 General
. 1.01.01 The Contractor shall cooperate with THE BURLINGTON NORTHERN AND SANTA FE
RAIL WAY 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
temporary shoring for the Mt. Vernon Bridge.
. 1.01.02 The Contractor shall execute and deliver to the Railway duplicate copies of the Exhibit "C-I"
Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and
effect the insurance called for under Section 2 of said Exhibit "C-I ".
. 1.01.03 The Contractor shall plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
. 1.01.04 The 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 opinion of Railway, Contractor's activities create
a hazard to Railway's Property, employees, and/or operations.
. 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local
Governmental laws and regulations, including, but not limited to environmental, health and safety. The
Contractor shall be responsible for and indemnify and save Railway harmless from 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.
. 1.01.06 The Contractor must notify Railway's Manager Public Projects, telephone number (909) 386-4058 at
least thirty (30) working days before commencing any work on Railway Property.
. 1.01.07 For any falsework above any tracks or any excavations located, whichever is greater, within
twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a I y,
horizontal to I vertical slope beginning at eleven (II) feet from centerline of the nearest track, both measured
perpendicular to center line of track, the Contractor shall 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. All calculations shall take
into consideration railway surcharge loading and shall 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 shall be stamped by a registered professional engineer
licensed to practice in the state the project is located. The Contractor shall not begin work until notified by the
Railway that plans have been approved. The Contractor shall 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 shall the Contractor be
relieved of responsibility for results obtained by the implementation of said approved plans.
. 1.01.08 Subject 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 shallI 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.
Form 0102 Rev. 07/04
1.02 Agreement
. 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees shall enter Railway Property
without first having completed Railway's Contractor Safety Orientation, found on the web site
www.contractororientation.com. The Contractor shall ensure that each of its employees, subcontractors,
agents or invitees have received Railway's Contractor Safety Orientation through internet sessions
conducted by the or through the Contractor before any work is performed on the Project. Additionally,
the Contractor shall ensure that each its employees, subcontractors, agents or invitees have verification
that they have completed the Safety Orientation and that every employee of the Contractor, its
subcontractors, agents or invitees have a card, in his or her possession, that is properly signed and dated
certifying that they have received the Safety Orientation before entering Railway Property. The
Contractor is responsible for the cost oUhe Safety Orientation. It is required that the Safety Orientation
be renewed annually. Further clarification can be found on the web site or from the Railway's
Representative.
1.03 Railway Requirements
. 1.03.01 The Contractor shall 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 shall be paid for by the Agency.
. 1.03.02 The Contractor shall notify the Railway's Division Superintendent Michael Shirecliff at (909) 386-
4150 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.
. 1.03.03
.
.
.
.
.
.
The Contractor shall abide by the following clearances during construction:
25'-0" Horizontally from centerline of nearest track
22.6" Vertically above top of rail (Temporary Falsework Clearance may be reduced to 21'-6"
subject to Railway and Public Utilities Commission approval)
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
. 1.03.04 Any infringement within State statutory clearances due to the Contractor's operations shall be
submitted to the Railway and shall not be undertaken until approved in writing by the Railway, and until any
necessary authorization from the State Regulatory Authority for the infringement has been obtained. 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.
. 1.03.05 In the case of impaired vertical clearance above top of rail, Railway shall have the option of installing
tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of
tell-tales or protective devices shall be borne by the Agency.
. 1.03.06 The details of construction affecting the Railway's Property and tracks not included in the contract
plans shall be submitted to the Railway for approval before work is undertaken and this work shall not be
undertaken until approved by the Railway.
. 1.03.07 At other than public road crossings, the Contractor shall not move any equipment or materials across
Railway's tracks until permission has been obtained from the Railway. The Contractor shall obtain a
"Temporary Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
the Railways tracks. The temporary crossing shall be gated and locked at all times when not required for use by
the Contractor. The temporary crossing for use of the Contractor shall be at the expense of the Contractor.
2
Form 0102 Rev. 07/04
. 1.03.08 Discharge, release or spill on the Railway Property of any hazardous substances in excess of a
reportable quantity or any hazardous waste is prohibited and Contractor shall immediately notifY the Railway's
Resource Operations Center at 1(800) 832-5452, of any discharge, release or spills. Contractor shall not allow
Railway Property to become a treatment, storage facility as those terms are defmed in the Resource
Conservation and Recovery Act or any state analogue.
. 1.03.09 The Contractor upon completion of the work covered by this contract, shall 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 shall 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
. 1.04.01 Each 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 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 shall develop and implement the Safety Action Plan,
as provided for on the web site www.contractororlentation.com. which shall be made available to Railway
prior to commencement of any work on Railway Property. During the performance of work, the Contractor
shall audit its compliance with the Safety Action Plan. The Contractor shall designate an on-site Project
Supervisor who shall serve as the contact person for the Railway and who shall maintain a copy of the Safety
Action Plan and subsequent audits at the job site for inspection and review by the Railway at any time during
the course of the project. Below is a partial list of what should be contained in the Safety Action Plan, a
complete list can be found on the web site. (NOTE - Should there be a discreoancv between the information
contained on the web site and the list below. the web site shall 20vern.):
. Contractors Employees Safety
All employees working on Railway property have completed Railway's annual Safety Orientation Program
through the internet (Sec 1.02.0 I)
Job Briefmgs (Sec 1.06.0 I & 1.06.02)
Personal Protective Equipment (Sec 1.06.08)
Protection of Railway Facilities and Railway Flagger Services (Sec 1.03.05 & 1.05)
All employees working on Railway property, who will be working within 25 feet from centerline of track,
have completed annual Roadway Worker Protection/On Track Safety Training (Secs 1.04.01 and 1.06.03)
Work After Hours (Sec 1.06.04)
. Contractor Employee Training
Personal Injury Reporting (Sec 1.09)
Accident Investigations and Analysis
. High Risk Work Areas/Situations
Notification of Damage to Railway property or hazards that could affect the safe operation of trains (Sec
1.06.06)
Falsework/Shoring affecting the integrity of tracks (Sec 1.01.06)
Clearances affecting the integrity of train operations (Sec 1.03.03)
Moving Equipment and Materials acrosS Railway's tracks (Sec 1.03.07)
Security of Machines, Equipment and Vehicles (Sec 1.06.10)
Power line Safety (Sec 1.06.12)
Excavation Safety (Sec 1.07)
. High Risk Employees
Alcohol and Drug Use (Sec 1.06.05)
Firearms or Deadly Weapons (Sec 1.06.07)
. Property Damage, Housekeeping and Clean-up (Sec 1.03.01 & 1.03.09)
Storage of Materials (Sec 1.06.09)
Facility Auditing
. Compliance with Laws (Sec 1.01.04)
3
Form 0102 Rev. 07/04
. Hazardous Substances and Materials
Discharges, Releases and Spills (Sec 1.03.08)
Hazardous Materials encountered in excavations (Sec 1.08)
1.05 Protection of Railway Facilities and Railway Flagger Services:
. 1.05.01 The Contractor shall give a minimum of 15 working days notice to David Miller the Railways Manager
Engineering at (909) 386-4058 and (800) 832-5452, in advance of when flagging services will be required.
. 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices will be required and furnished when Contractors work activities are located over or under
of and within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes
or similar equipment positioned outside of 25-foot horizontally from track centerline that could foul the track in
the event oftip over or other catastrophic occurrence, but not limited thereto for the following conditions:
. 1.05.02a When in the opinion of the Railway's Representative it is necessary to safeguard Railway's Property,
employees, trains, engines and facilities.
. 1.05.02b When 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.
. 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds.
. 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities
either due to persons, material, equipment or blasting in the vicinity.
. 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects
or equipment which might result in making the track impassable.
. 1.05.03 Flagging services will be performed by qualified Railway flaggers.
. 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to
protect Railway Property and operations, if deemed necessary by the Railways Representative.
. 1.05.03b Each time a flagger is called, the minimum period for billing shall be the eight (8) hour basic day.
1.06 Contractor General Safety Requirements
. 1.06.01 Work 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 performed by contractors within 25 feet
of any track shall be in compliance with FRA Roadway Worker Protection Regulations.
. 1.06.02 Before beginning any task on Railway Property, a thorough job safety brieflng shall 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 !!!!!!t 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).
. 1.06.03 Workers shall not work within 25 feet of the centerline of any track without an on track safety
strategy approved by the Railway's Project Representative, unless the track is protected by track bulletin
and work has been authorized by the Railway. When authority is provided, every contractor employee
mnst know: (1) who the Railway flagger is, and how to contact the flagger, (2) limits of the flag/work
protection, (3) the method of communication to stop and resume work, and (4) entry into flag/work limits
when designated. Men or equipment entering flag/work limits that were not previously job briefed, must
notify the flagger immediately, and be given a job brieflng when working at less than 25 feet from center
4
Form 0102 Rev. 07/04
line of track.
. 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railrol\d's representative in charge of the project must be notified. A
minimum of two employees shall be present at all times.
. 1.06.05 Any Contractor employee, its subcontractor employees, agents or invitees 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.
. 1.06.06 Any damage to Railway Property, or if any hazard is noticed on passing trains, shall be reported
immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come
in contact with track, signal equipment, or structure (bridge) could result in a train derailment and shall be
reported by the quickest means possible 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 shall be posted at the job
site.
. 1.06.07 All persons are prohibited from having pocket knife with blade in excess of three (3) inches, firearms
or other deadly weapons in their possession while working on Railway's Property.
. 1.06.08 All personnel protective equipment used on Railway Property shall meet applicable OSHA and ANSI
specifications. Current Railway personnel protective equipment requirements are listed on the web site,
www.contrac!ororientation.com. however, a partial list of the requirements include: a) safety glasses:
permanently affixed side shields; no yellow lenses; b) hard hats with high visibility orange cover, c) safety
shoes: hardened toes, above-the-ankle lace-up with a defmed heel; and d) high visibility retro-reflective orange
vests are required as specified by the Railroad's representative in charge of the project. Hearing protection, fall
protection and respirators will be worn as required by State and Federal regulations. (NOTE - Shonld there be
a discreoancv between the information contained on the web site and the Information in this oaral!raoh.
the web site shalll!overn.l
. 1.06.09 The Contractor shall not pile or store any materials, machinery or equipment closer than 25'-0" to the
center line of the nearest Railway track. At highway/rail at-grade crossings, materials, machinery or equipment
shall not be stored or left temporarily which interferes with the sight distances of motorists approaching the
crossing. Prior to beginning work, the Contractor will establish a storage area with concurrence of the Railroad's
representative.
. 1.06.10 Machines 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 inoperahle and
secured against movement.
. 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water
drainage. Any work performed over water shall meet all Federal, State and Local regulations.
. 1.06.12 All 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 shall 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 and if capacity of the line is not known, minimum clearance
of 45 feet must be maintained. A person shall 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 visyal
means.
5
Form 0102 Rev. 07/04
1.07 Excavation
. 1.07.01 Before excavating, it must be ascertained by the Contractor if there are any underground pipe lines,
electric wires, or cables, including fiber optic cable systems that either cross or run parallel with the track which
are located within the Projects work area. Excavation on Railway's Property could result in damage to buried
cables resulting in delay to Railway traffic, including disruption of service to users resulting in business
interruptions involving loss of revenue and profits. Before any excavation commences, the Contractor must
contact the Railway's Signal Supervisor and Roadmaster. All underground and overhead wires will be
considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It
is also 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.
. 1.07.02 The Contractor must cease all work and the Railway must be notified immediately before continuing
excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a
utility, and the owner of the utility can be identified, then the owner should also be notified immediately. If
there is any doubt about the location of underground cables or lines of any kind, no work will be performed
until the exact location has been determined. There will be no exceptions to these instructions.
. 1.07.03 All excavations shall be conducted in compliance with applicable OSHA regulations and regardless of
depth shall be shored where there is any danger to tracks, structures or personnel.
. 1.07.04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or
protected when not being worked on. When leaving work 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.
1.08 Hazardous Waste, Substances and Material Reporting
. 1.08.01 If 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 shall 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
. 1.09.01 The 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
mail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee
Personal Injury nata 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.
6
Form 0102 Rev. 07/04
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 IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
1. Accident City/St
County:
(if non-Railway location)
2. Date:
3. Temperature:
Time:
4. Weather
5. Social Security #
6. Name (last, first, mil
7. Address: Street:
City:
St._Zip:
8. Date of Birth:
and/or Age Gender:
(if available)
9. (a) Injury:
(i.e. (a) Laceration (b) Hand)
(b) Body Part:
11. Description of Accident (To include location, action, result, etc.):
12. Treatment:
? First Aid Only
? Required Medical Treatment
? Other Medical Treatment
13. Dr. Name
30. Date:
14. Dr. Address:
Street:
City:
St:_Zip:
15. Hospital Name:
16. Hospital Address:
Street:
City:
St:_Zip:
17. Diagnosis:
FAX TO
RAIL WAY AT (817) 352-7595
AND COPY TO
RAILWAY ROADMASTER FAX
7
Form 0102 Rev. 07/04
OFFICE OF THE CITY CLERK
RACHEL G. CLARK, CM.C. - CITY CLERK
300 North "D" Street. San Bernardino' CA 92418-0001
909.384.5002' Fax: 909.384.5158
www.ci.san-bernardino.ca.lls
'"
Septernber 23, 2004
Mr. Robert E. Brendza
Director Facility Development
The Burlington Northern
and Santa Fe Railway Company
740 East Carnegie Drive
San Bernardino, CA 92408-3571
Dear Mr. Brendza,
Enclosed please find one fully executed original license agreement between the Burlington
Northern and Santa Fe Railway Company and the City of San Bernardino concerning the Mt.
Vernon Bridge.
If you have any questions, please do not hesitate to call me at (909)384-5002.
Sincerely, ,
"J'/' / // .J ,
I (C{q~" (,I-( .)-G"I\
Michelle Taylor (-
Senior Secretary
/,'"
e.V' ',--
Enclosure
CITY OF SAN BERNARDINO
AnnpTRn SIIA.R1l'.n VAl.TJRS! Tntp.(Jritv. Arrmmt:lhilitv. Rp.l1.nprt fnr J.lnm~n nionitv. J.lnm'l1f\l