HomeMy WebLinkAbout17-Development Services
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CITY OF SAN BERNARDINO REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director
Subject:
Dept: Development Services
Date: January 8, 2007
File Nos. 1.7324
MCC Date:
Resolution to approve an Overhead
Agreement with Burlington Northern Santa Fe
(BNSF) Railway Company and County of San
Bernardino and the San Bernardino Associated
Governments (SANBAG) for the University
Parkway Grade Separation Project (Crp SS04-
52).
January 22, 2007
Synopsis of Previous Council Action:
August 2006 The Mayor and Common Council approved FY 2006-07 CIP Budget.
Recommended Motion:
Adopt Resolution.
VJiWv f/. 'Rd1V
Valerie C. Ross
Contact Person:
Mark Lancaster, Deputy Director/City Engineer
Phone:
3305
Supporting data attached:
Staff Report, Resolution
& Overhead Agreement
Ward:
6
FUNDING REQUIREMENTS:
Amount: None
Source: (Acct. No.)
Acct.
Description:
Finance:
1/J..~b1
Agenda Item No. 17
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CITY OF SAN BERNARDINO REOUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution to approve an Overhead Agreement with Burlington Northern Santa Fe (BNSF) Railway
Company and County of San Bernardino and the San Bernardino Associated Governments (SANBAG)
for the University Parkway Grade Separation Project (Crp SS04-52).
Background:
The State StreetlUniversity Parkway Grade Separation project is one of two grade separation projects
funded by AB 2928 within the City Limits. This Agreement specifies that BNSF will make a 10%
contribution towards the project upon completion of construction. The Agreement also specifies that
SANBAG will construct the new grade separation over BNSF property and will then transfer the
completed project to the City and County of San Bernardino. Provisions are set forth detailing
responsibilities for SANBAG during construction and responsibilities between the City and County of
San Bernardino for ongoing maintenance of the bridge and the attachments to the bridge, such as
lighting after construction is complete.
In order to construct the new grade separation bridge, SANBAG will acquire from BNSF both a
temporary construction easement to give the contractor a staging area for equipment to construct the
bridge, and a permanent easement for the new bridge as it spans over BNSF tracks and has
foundations, which are located on BNSF property. Upon completion of construction, the permanent
easement will be transferred to the County. These easements are included within the Agreement and
its attachments.
The grade separation will eliminate an at-grade railroad crossing at University Parkway near Cajon
Blvd. and will improve safety and enhance mobility for the traveling public at no cost to the City. The
only contribution from the City has been staff time reviewing plans and coordinating the project with
adjacent development projects. It is anticipated that this project will start in Spring, 2007 and be
completed by the end of2008.
Financial Impact:
None.
Recommendation:
Adopt Resolution.
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01111/20077,17 AM
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING AN OVERHEAD AGREEMENT WITH BURLINGTON
NORTHERN SANTA FE (BNSF) RAILWAY COMPANY AND COUNTY OF SAN
BERNARDINO AND THE SAN BERNARDINO ASSOCIATED GOVERNMENTS
(SAN BAG) FOR THE UNIVERSITY PARKWAY GRADE SEPARATION PROJECT
(CIP SS04-52).
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I. The Mayor is hereby authorized and directed to execute the Overhead
Agreement with Burlington Northern Santa Fe (BNSF) Railway Company. the County of San
Bernardino, and the San Bernardino Associated Governments (SANBAG) for the University
Parkway Grade Separation Project (CIP SS04-52), attached and incorporated herein as Exhibit
HI:'
SECTION 2, The attached Overhead Agreement and any amendment or modifications
thereto shall not take effect or become operative until fully signed and executed by the parties
and no party shall be obligated hereunder until the time of such full execution. No oral
agreements, amendments, modifications or waivers are intended or authorized and shall not be
implied from any act or course of conduct of any party.
SECTION 3. This resolution is rescinded if the parties to the contract fail to execute it
within sixty (60) days of passage of the resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING AN OVERHEAD AGREEMENT WITH BURLINGTON
NORTHERN SANTA FE (BNSF) RAILWAY COMPANY AND COUNTY OF SAN
BERNARDINO AND THE SAN BERNARDINO ASSOCIATED GOVERNMENTS
(SAN BAG) FOR THE UNIVERSITY PARKWAY GRADE SEPARATION PROJECT
(CI P SS04-52).
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
Common Council of the City of San Bernardino at a
meeting thereof, held on the
day of ,2007, by the following vote, to wit:
AYES
NAYS
ABST AIN
ABSENT
Council Members:
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
JOHNSON
17 MC CAMMACK
18
19
City Clerk
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The foregoing resolution is hereby approved this
day of
,2007.
Patrick J. Morris, Mayor
City of San Bernardino
Approved as to form
REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY, CALIFORNIA
AND RECORD OF ACTION
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January 9, 2007
FROM:
PATRICK J. MEAD, Director
Department of Public Works - Transportation
SUBJECT:
COOPERATIVE AGREEMENT FOR STATE STREET/UNIVERSITY
PARKWAY GRADE SEPARATION PROJECT
RECOMMENDATION: Approve a Cooperative (Agreement 07-0016) with Burlington Northern
and Santa Fe Railway Company (BNSF), San Bernardino Associated Governments (SANBAG)
and the City of San Bernardino (City) for the State Street/University Parkway Grade Separation
Project in the San Bernardino area.
BACKGROUND INFORMATION: The County, BNSF, SANBAG and the City desire to cooperate
and jointly participate in a project to construct a railroad overhead structure and roadway on new
alignment located at BNSF's Main Track No.1. This project is needed to enable vehicles to
travel over and across BNSF's Rail Corridor at State Street/University Parkway. The existing
crossing at gr;:lde will be permanently removed and the Department of Transportation (DOT)
Crossing will be amended to include the new State Street at University Parkway Grade
Separation.
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The proposed agreement sets forth the responsibilities and obligations of the above listed entities
as they pertain to this project. SAN BAG will act as the lead agency in the design and
construction of the project and will provide to the County, BNSF and the City plans and
specifications for this project. BNSF will be responsible for work associated with the railroad
segment of the project. Upon completion of the project, the County and City will maintain and
repair the new structure. In accordance with this agreement, SAN BAG and BNSF will fund the
project, while the County and City will be responsible for future costs for maintenance and repair
of the structure.
REVIEW BY OTHERS: This item was reviewed by County Counsel (Charles S. Scolastico,
Deputy County Counsel, 387-4635) and the County Administrative Office (Tom Forster,
Administrative Analyst, 387-4635) on December 22,2006.
FINANCIAL IMPACT: The County has no funding obligations for the design and construction of
this project, only future costs for maintenance and repair of the subject structure. The County's
share of future cost will be funded by the County Road Fund (SAA-TRA- TRA).
SUPERVISORIAL DISTRICT(S): 5th
Name
BNSF'S MANAGER OF PUBLIC PROJECTS
Address
740 E. CARNEGIE DRIVE
SAN BERNARDINO. CA 9240B
Telephone
(909\ 386-4479
d Name
AN BERNARDINO ASSOCIATED GOVERNMENTS
Address
1170 W. THIRD STREET. 2NO FLOOR
SAN BERNARDINO. CA 92410
Telephone
(909) 889-8611
Burlington Northern and Santa Fe Railway Company ,(B~Fj. San Bernardino Associateg, <>covernments (SAN BAG), the County of
San Bernardino (COUNTY) and the City of -San ~~rnardino (CITY) wish to enter i~to,a1f,9Ur~y agree.ment to construct a railroad
overhead structure and roadway on ne,,! aug,nmentlocated approximately 31.2-f{let~ulheaslerly Il\tl~ured along the centerline of
BNSF's Main Track No. 1 to~r€stat~ Street at University Parkway.trafft oyer 'ilndacros,s '!lNSl=".s Rail Corridor. The existing
crossing at grade (P.u.c~. ~ct.' ~ ~7P) will be permanent.I..y .removElP and the'exi.sting "pee...<anwer;l.t.af1'ransportation (DOT) Crossing
No. 026106V Sh. all be.fa m)ea to include the new Stat.....e .Stree~veTs. 1l.Y. PW'kwa~ G~~e "'Separation. SAN BAG will be the lead
agency in the designilan . construction of the prQLect.lSANflAG shall fL!!11isll to tMe"COUNTY, BNSF and the CITY plans and
specifications for the project. Upon completioneo(J!;1e project, t':!.e..C~Uti~.if1" maintain the entire Structure and the CITY shall
reimburse COUNTY for the cost to m~.intaflJ...lh~ portion of,lhe Structli1re-located within its jurisdiction. The CITY will maintain all of
the lighting for the entire Structure anq'CQUlilrr shal~Iein1b4rselCITY for the cost to maintain that portion of the lighting, including
~' ,,"', j,~, ,'" <
energy costs, located within its jurisdiCtion. UnderJhEl tertns'of this agreement, the COUNTY has no funding obligations to this
project, only future cost for maintenance ,'l.nd1t~aiJ iff the Structure. .
(Attach this transmittal to all ~~&t;~e;ared on the "Standard Contract "form.)
,t..
Approv n bluednk) Reviewed as to Contract Co liance
, ,
COUNTY OF SAN BERNARDINO
FAS
CONTRACT TRANSMITTAL
_ /,2..-2./ - c;:;P6
Auditor I Controller - Recorder Use Ont
x"BycQll\i'8Ci'nal8bliile'o,: . O'I'AS
FOR COUNTY USE ONLY
.x.. New Vendor Code Dept. Contract Number
- Change SC TRA A 07-001'"
Cancel
County Department Dept. Orgn. Contractor's License No.
Public Works - Transportation TRA TRA
County Department Contract Representative Telephone Total Contract Amount
Brendon Biees 387-8166 $0
Contract Type
o Revenue 0 Encumbered 0 Unencumbered liil Other: .
If not encumbered or revenue contract tvpe, provide reason: Maintenance Aareement On Iv
Commodity Code /contract Start Date Contract End Date Original Amount This Amendment
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Orig. Amount
SAA TRA TRA 200 2445 42H14157
Fund Dept. Organization Appr. ObjlRev Source GRClPROJ/JOB No. Orig. Amount
Fund Dept. Organization Appr. Obj/Rev Source GRC/PROJ/JOB No. Orig. Amount
Project Name Estimated Payment Total by Fiscal Year
STATE STREET@UNIVERSITY FY Amount 110 FY Amount I/O
PARKWA Y
GRADE SEPARATtON - -
Contract Type - Special (Risk - -
Manaoement Aooroved)
Federal 10 No. or Social Security No.
and Name
CITY OF SAN BERNARDINO
Address
300 NORTH "0" STREET
SAN BERNARDINO. CA 92418
Telephone
(909) 384-5211
Federal 10 No. or Social Security No.
v.....,
.-.
}'
l.
FederallD No. or Social Security No.
./"
I
,-
Date
Date
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OVERHEAD AGREEMENT
BNSF File No. 026106V
State Street/University Parkway
Grade Separation
U.S. D.O.T. No. 026106V
This Agreement ("Agreement"), is executed to be effective as of this 9th day of
Januarv~ 2007 ,:x;KD ("Effective Date"), by and between BNSF RAILWAY COMPANY, a
Delaware corporation ("BNSF"), the CITY OF SAN BERNARDINO, a body corporate and
politic of the State of California ("CITY"), the COUNTY OF SAN BERNARDINO, a body
corporate and politic of the State of California ("COUNTY"), and the SAN BERNARDINO
ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of California,
hereinafter referred to as ("SAN BAG").
RECITALS:
WHEREAS, BNSF owns and operates a line of railroad in and through the County of San Bernardino,
California.
WHEREAS, CITY, COUNTY, and SAN BAG propose to construct a railroad overhead structure and
roadway on new alignment located approximately 312 feet southeasterly measured along the centerline
of BNSF's Main Track #1 to carry State Street/University Parkway traffic over and across BNSF's "Rail
Corridor" and tracks by means of a 4-span concrete structure to be known as the State Street/University
Parkway Grade Separation (P.U.C. No. 2-76.6-A), DOT No. 026106V, with the abutments and bents to be
of reinforced concrete.
WHEREAS, the existing State Street/University Parkway crossing at grade, P.U.C. No. 2-76.6, will be
permanently removed as part of this project. The existing DOT No. 026106V shall be amended to cover
the new State Street/University Parkway Grade Separation.
WHEREAS, the Public Utilities Commission of the State of Califomia ("Commission") by Order Decision
(D.) 03-01-071, dated January 30, 2003 authorized the construction of the State Street/University
Parkway Overhead Grade Separation and by Resolution TED - 206 dated November 29, 2005 granted a
three year extension from March 1, 2006 to March 1, 2009 to exercise the authority granted by Decision
(D.) 03-01-071.
WHEREAS, CITY, COUNTY, and SAN BAG agree that SAN BAG will design and construct the State
Street/University Parkway Grade Separation with the CITY and COUNTY assuming ownership and
maintenance responsibility upon completion of construction.
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 "Project" as used herein includes any and all work related to the construction of the
State Street/University Parkway Grade Separation, (hereinafter referred to as the "Structure"), and the
removal of the existing State Street/University Parkway crossing at grade, P.U.C. No. 2-76.6, more
particularly described on the Exhibit A attached hereto and incorporated herein, including, but not limited
to, any and all changes to telephone, telegraph, signal and electrical lines and appurtenances, temporary
and permanent track work, fencing, grading, alterations to or new construction of drainage facilities,
preliminary and construction engineering and contract preparation.
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ARTICLE 11- BNSF OBLIGATIONS
IN CONSIDERATION of the covenants of the CITY, COUNTY and SANBAG set forth herein and the
faithful performance thereof, BNSF agrees as follows:
1. Upon SAN BAG's payment to BNSF of the sum of EIGHTYNINE THOUSAND TWO HUNDRED
FIFTY DOLLARS ($89,250.00), BNSF shall grant to SANBAG, irs successors and assigns, upon and
subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license
(hereinafter called, 'Temporary Construction License") to construct the Structure across or upon the
portion of BNSF's Rail Corridor described further on Exhibit A, 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 rail
corridor;
(b) Construct, operate, maintain, renew and/or relocate upon said Rail Corridor, without
limitation, such facilities as the BNSF may from time to time deem appropriate, provided such
facilities do not materially interfere with CITY'S or COUNTY'S use of the Structure;
(c) Otherwise use or operate the Rail Corridor as BNSF may from time to time deem appropriate,
provided such use or operations does not materially interfere with CITY'S or COUNTY'S use
of the Structure.
The Temporary Construction License shall be in the form attached hereto as Exhibit B and by this
reference made a part hereof, and shall be for a term beginning on the Effective Date thereof and ending
on the earlier of (i) completion of the Structure, or (ii) thirty six (36) months following the Effective Date.
The Temporary Construction License and related rights to be given by BNSF to SAN BAG shall be without
warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from
the use of any word or words therein contained. The TemDorarv Construction License shall be for
construction of the Structure and for no other Duroose. SAN BAG acknowledges and agrees that SAN BAG
shall not have the right, under the Temporary Construction License, to use the Structure. In the event
SAN BAG is evicted by anyone owning, or claiming title to or any interest in said Rail Corridor, BNSF will
not be liable to SAN BAG for any damages, losses or any expenses .of any nature whatsoever. The
granting of similar rights to others, subsequent to the date of this Agreement, will not impair or interfere .
with the rights granted to SAN BAG pursuant to the Temporary Construction License.
Upon payment to BNSF of the additional sum of SEVENTY THOUSAND SEVEN HUNDRED
FIFTY DOLLARS ($70,750.00); such payment to be made within thirty (30) days of the giving of the
notice required pursuant to Article III, Section 15 of this Agreement, BNSF shall deliver to SANBAG, its
successors and assigns, a perpetual easement to enter upon and use that portion of BNSF's Rail
Corridor described therein as is necessary to use and maintain the Structure. The Easement shall be in
the form attached hereto as Exhibit B-1 and by this reference made a part hereof.
2. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the
construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit
Q attached 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 D not specifically mentioned therein may be included as a part of this Agreement upon written
approval of SAN BAG, which approval will not be unreasonably withheld. Construction of the Project will
include the following principle elements of railroad work by BNSF:
(a) Procurement of materials, equipment and supplies necessary for the railroad work;
(b) Preliminary engineering, design, and contract preparation;
(c) Furnishing of flagging services necessary for the safety of BNSF's property and the
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operation of its trains during co(lstruction of the Project as set forth in further detail on
Exhibit C, attached to this Agreement and made a part hereof;
(c) Furnishing engineering and inspection as required in connection with the construction of the
Project and;
(d) Removal and relocation of Intermediate Eastbound Signal 762 for Main 1 and Intermediate
Eastbound Signal 764 for Main 2 to the west side (railroad direction) of the Structure;
(e) Removal of the automatic warning device signals from the existing State Street/University
Parkway at-grade crossing (P.U.C. No. 2-76.6) and obliteration of said at-grade crossing
between the rails and to two feet outside thereof.
3. BNSF will do all railroad work set forth in Article II, Section 2 above on an actual cost basis, when
BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its
own employees working under applicable collective bargaining agreements or by contractor(s) if
necessary.
4. SAN BAG agrees to reimburse BNSF for work of an emergency nature caused by SAN BAG or
SAN BAG's contractor in connection with the Project which is reasonably necessary for the immediate
restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be
performed by BNSF without prior approval of SAN BAG and SAN BAG agrees to fully reimburse BNSF for
all such emergency work.
5. BNSF may charge SAN BAG for insurance expenses, including self-insurance expenses, when
such expenses cover the cost of Employer's Liability (including, without limitation, liability under the
Federal Employer's Liability Act) in 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.
6. During the construction of the Project, BNSF will send SAN BAG progressive invoices detailing
the costs of the railroad work performed by BNSF under this Agreement. Pursuant to the California
Prompt Payment Act, CALIFORNIA CODES, GOVERNMENT CODE, SECTION 927-927.12, SAN BAG
must reimburse BNSF for completed force-account work within forty-five (45) calendar days from the date
of SAN BAG's receipt of the invoice for such work. Upon completion of the Project, BNSF will send
SAN BAG a detailed invoice of final costs, segregated as to labor and materials for each item in the
recapitulation shown on Exhibit D. If SAN BAG fails to make payment of a BNSF invoice within said forty-
five (45) days, SAN BAG shall pay a penalty at a rate of 1 percent above the rate accrued on June 30 of
the prior year by the Pooled Money Investment Account, not to exceed a rate of 15 percent pursuant to
Section 927.6 (b) of said Govemment Code.
ARTICLE 111- SANBAG OBLIGATIONS
In consideration of the covenants of CITY, COUNTY and BNSF set forth herein and the faithful
performance thereof, SAN BAG agrees as follows:
1. SAN BAG must furnish to BNSF, CITY and COUNTY plans and specifications for the Project.
Four sets of said plans (reduced size 11' x 17'), together with two copies of calculations, and two copies
of specifications with the railroad clearances expressed in English Units, must be submitted to BNSF,
CITY and COUNTY for approval prior to commencement of any construction. BNSF will give SAN BAG
final written approval of the plans and specifications substantially in the form of Exhibit E, attached to this
Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications,
said plans and specifications will become part of this Agreement and are hereby incorporated herein.
Any approval of the plans and specifications 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
the plans and specifications meet the subjective standards of BNSF, and such approval by BNSF shall
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not be deemed to mean that the plans and specifications or construction is structurally sound and
appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local
ordinances and/or building codes.
2. SAN BAG must provide for and maintain minimum vertical and horizontal clearances, as required
and approved by BNSF as part of the plans and specifications for the Project.
3. SAN BAG must make any and all arrangements 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.
4. SAN BAG must construct the Project as shown on the attached Exhibit A and do all work
("SAN BAG's Work'" provided for in the plans and specifications for the Project, except railroad work that
will be performed by BNSF herein. SAN BAG must fumish all labor, materials, tools and equipment for the
performance of SAN BAG's Work. The principal elements of SANBAG's Work are as follows:
(a) Preliminary and final Engineering;
(b) Design and the Construction of the Structure;
(c) Install and remove a temporary construction fence along BNSF's southerly (BNSF
direction) right of way line between the existing grade crossing and the new overpass;
(d) All necessary grading and paving, including backfill of excavations and restoration of
disturbed vegetation on BNSF's Rail Corridor;
(e) Provide suitable drainage, both temporary and permanent;
(f) Acquire all properties required to construct the Project and maintain the Structure;
Application of the Commission's Crossing Number 2-76.6-A and D.O.T. Crossing Number
026106V in a conspicuous location on the Structure;
(h) Removal and obliteration of those portions of the existing State Street/University Parkway
at-grade crossing (P.U.C. No. 2-76.6) from a line measured from two feet outside the rails
to BNSF's property lines and;
(g)
(i) Job site cleanup including removal of all construction materials, concrete debris, surplus
soil, refuse, contaminated soils, aspha~ debris, litter and other waste materials to the
satisfaction of BNSF.
5. SAN BAG's Work must be performed by SAN BAG or SAN BAG's contractor in a manner that will
not endanger or interfere with the safe and timely operations of BNSF and its facilities.
6. SAN BAG must require its contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar
days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached
hereto. Additionally, SAN BAG must require its contractor(s) to notify BNSF's Manager of Public Projects
thirty (30) calendar days prior to commencing work on BNSF property or near BNSF tracks.
7. SAN BAG or its contractor(s) must submit four (4) copies of any plans (including two sets of
calculations in English Units) for proposed shoring, falsework or cribbing to be used over, under, or
adjacent to BNSF's tracks to BNSF's Manager of Public Projects for approval. The shoring, falsework or
cribbing used by SAN BAG's contractor shall comply with the BNSF Bridge Requirements set forth on
Exhibit F and all applicable requirements promulgated by state and federal agencies, departments,
commissions and other legislative bodies.
8. SAN BAG must include the following provisions in any contract with its contractor(s) performing
work on said Project:
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(a)
The Contractor is placed on notice U1at 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 Rail Corridor. The locations of
these Lines have been included on the plans based on information from the
telecommunications companies. The contractor will be responsible for contacting
BNSF's Project Engineer at telephone number 909 386 4079 and/or the
telecommunications companies and notifying them of any work that may damage
these Lines or facilities and/or interfere with their service. The contractor must also
mark all Lines shown on the plans or marked in the field in order to verify their
locations. The contractor must also use all reasonable methods when working in the
BNSF Rail Corridor or on BNSF property to determine if any other Lines (fiber optic,
cable, communication or otherwise) may exist.
(b) Failure to mark or identify these Lines will be sufficient cause for any BNSF
Representative to stop construction at no cost to the SAN BAG or BNSF until these
items are completed.
(c)
In addition to the liability terms contained elsewhere in this Agreement, the contractor
hereby indemnifies, defends and holds harmless BNSF for, from and against all cost,
liability, and expense whatsoever (including, without limijation, 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 Rail Corridor, (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 Rail Corridor, 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 CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS
A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF
ACTION OR CLAIM WAS OCCASION~D BY OR CONTRIBUTED TO BY THE
NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR
OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE
PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE
NEGLIGENCE OF BNSF.
(d) The Contractor will be responsible for the rearrangement of any facilities or Lines
determined to interfere with the construction. The Contractor must cooperate fully
with any telecommunications company(ies) in performing such rearrangements.
9. SAN BAG must incorporate in each prime contract for construction of the Project, or the
specifications therefore (i) the provisions set forth in Article III, Sections 5, 6, 7, 8, 10, and 11; (ii) the
provisions set forth in Article V, Sections 3, 5, 6, 7, 15 and 16; and (iii) the provisions set forth in Exhibit
~ Exhibit C-I, and Exhibit F attached hereto and by reference made a part hereof.
10. Except as otherwise provided below in this Section 10, all construction work performed hereunder
by SAN BAG for the Project will be pursuant to a contract or contracts to be let by SAN BAG, and all such
contracts must include the following:
(a) All work performed under such contract or contracts within the limits of BNSF's Rail
Corridor must be performed in a good and workmanlike manner in accordance with plans
and speCifications approved by BNSF;
(b) Changes or modifications during construction that affect safety or BNSF operations must
be subject to BNSF's approval;
.
(c)
No work will be commenced within BNSF's Rail Corridor until each of the prime
contractors employed in connection with said work must have (i) executed and delivered
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(d)
to BNSF a letter agreement in the form of Exhibit C-I, and (ii) delivered to and secured
BNSF's approval of the required insurance; and
If it is in SANBAG's best interest, SAN BAG may direct that the construction of the Project
be done by day labor under the direction and control of SAN BAG, or if at any time, in the
opinion of SAN BAG, the contractor has failed to prosecute with diligence the work
specified in and by the terms of said contract, SAN BAG may terminate its contract with the
contractor and take control over the work and proceed to complete the same by day labor
or by employing another contractor(s) provided; however, that any contractor(s) replacing
the original contractor(s) must comply with the obligations in favor of BNSF set forth above
and, provided further, that if such construction is performed by day labor, SAN BAG will, at
its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C-
1.
(e) To facilitate scheduling for the Project, SAN BAG shall have its contractor give BNSF's
Project Engineer at telephone number 909 386 4079 eight (8) weeks advance notice of
the proposed times and dates for work windows. BNSF and SAN BAG's contractor will
establish mutually agreeable work windows for the Project SAN BAG shall inform its
contractor that any request for work windows with less that eight (8) weeks advance notice
will have a reduced probability of approval. 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. Additional costs and expenses resulting from a change in work windows shall
be accounted for in the contractor's expenses for the Project.
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11. The plans and specifications for the Project must be in compliance with the Bridge Requirements
set forth on Exhibit F, attached to this Agreement and incorporated herein.
12. SAN BAG must advise the BNSF Manager of Public Projects, in writing, of the completion date of
the Project within thirty (30) days after such completion date. Additionally, SAN BAG must notify BNSF's
Manager of Public Projects, in writing, of the date on which SANBAG, and/or CITY and/or COUNTY
and/or SAN BAG's Contractor will meet with BNSF for the purpose of making final inspection of the
Project.
13. SANBAG, shall convey to County, within sixty (60) days after SAN BAG'S notification of the
completion date the Project, as provided for in Article III, Section 12 above, all of its right title and interest
in the perpetual easement granted to SAN BAG by BNSF pursuant to the provisions in Article II, Section 1
of this Agreement.
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14. TO THE FULLEST EXTENT PERMmED BY LAW, SANBAG HEREBY RELEASES,
INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES,
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, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF SAN BAG, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE,
(II) THE PERFORMANCE, OR FAILURE TO PERFORM BY SANBAG, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF SAN BAG, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE
CONSTRUCTION SITE, (IV) SAN BAG'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE
GRANTED TO SANBAG PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR
INTERESTS GRANTED TO SAN BAG PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE
DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) SANBAG'S OCCUPATION AND USE OF
BNSF'S PROPERTY OR RAIL CORRIDOR, OR (VII) AN ACT OR OMISSION OF SAN BAG OR ITS
OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR
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INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE
CONTROL OVER. THE LIABILITY ASSUMED BY SANBAG WILL 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, EMPLOYEES
OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY
THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
15. SAN BAG must give BNSF's Manager of Public Projects written notice to proceed ("Notice to
Proceed") with the railroad work after receipt of necessary funds for the Project. BNSF will not begin the
railroad work (including, without limitation, procurement of supplies, equipment or materials) until written
notice to proceed is received from SAN BAG. The Notice to Proceed must reference BNSF's file number
026106V.
ARTICLE IV - CITY AND COUNTY OBLIGATIONS
IN CONSIDERATION of the covenants of BNSF and SAN BAG herein contained and the faithful
performance thereof, CITY AND COUNTY agree:
1. To permit SAN BAG to act as the responsible lead agency to design and construct the Project.
2. 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, BNSF, CITY and COUNTY agree to the following
terms upon completion of construction of the Project:
(a) BNSF will own and, at its sole cost and expense, maintain its roadbed, tracks, railroad
drainage, and all other railroad facilities;
(b)
COUNTY will own that portion of the Structure that is located over BNSF's property and
within the COUNTY's jurisdiction, the highway approaches, and appurtenances thereto,
lighting and drainage;
COUNTY will maintain the entire. Structure including CITY'S portion, the highway
approaches, and appurtenances thereto, and drainage with the exception noted for lighting
in (e) below; and will maintain the Commission's Crossing Number 2-76.6-A and D.OT
Crossing Number 026106V as applied during construction of the Project. CITY shall
reimburse COUNTY for the cost to maintain that portion of the bridge that is located within
CITY'S ownership of the Structure;
(c)
(d) CITY will own that portion of the Structure that is located so~th (BNSF direction) compass
northeasterly of BNSF's southerly property line and within the CITY's jurisdiction, and will
reimburse COUNTY for the cost for maintaining the CITY'S portion of the Structure, the
highway approaches, and appurtenances thereto, and drainage with the exception noted for
the lighting in (e) below;
(e) COUNTY and CITY agree that CITY will maintain all of the lighting for the entire Structure.
COUNTY shall reimburse CITY for the cost to maintain that portion of the lighting, including
energy costs, that is located within COUNTY'S ownership of the Structure.
(f) CITY and COUNTY will, at their sole cost and expense, arrange for the removal of graffiti on
that portion of the Structure which is located within their respective jurisdictions;
(g)
It is understood by CITY and COUNTY that the right to install utilities is restricted to the
placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50)
feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior
approval BNSF will permit selected utilities to be run through the deck of the Structure.
Under no circumstances will utilities be allowed to hang from the Structure. All utility
crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements
between BNSF and each of the owners of the utilities;
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(h) Upon request from BNSF, COUNTY shall remove all trash and debris associated with the
Structure from BNSF's property;
(i)
If CITY and/or COUNTY (including their contractors and agents) or BNSF, on behalf of CITY
and/or COUNTY, perfonns (i) alterations or modifications to the Structure, or (ii) any
maintenance or other work on the Structure with 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 the Structure vertically above
the top of the rail, then CITY and/or COUNTY or their contractors and/or agents must
procure and maintain insurance coverage as contained in said Exhibit C-1 as the same may
be revised from time to time.
OJ In lieu of providing a Railroad Protective Liability Policy, CITY and/or COUNTY may
participate in BNSF's Blanket Railroad Protective Liability Insurance Policy if available to
CITY and/or COUNTY or its contractors. The limits of coverage are the same as above and;
(k) CITY and/or COUNTY must provide for and maintain minimum vertical and horizontal
clearances, as required and approved by BNSF as part of the plans and specifications for the
Project.
3. CITY and COUNTY shall, upon SAN BAG'S notice of the completion date of the Project pursuant
to Article III, Section 12, vacate that portion of Street/University Parkway to public travel that will no longer
be used by the traveling public due to the realignment of the roadway, reserving unto CITY and COUNTY
the right to retain existing utilities and install future utilities. CITY and COUNTY also reserve the right to
grant private parties ingress and egress over the vacated roadway with the exception that no right of
ingress or egress shall be granted over BNSF'S Rail Corridor. Any new utilities Proposed for installation
over or under BNSF'S Rail Corridor must be covered by a separate license agreement between the
owner of the utility and BNSF.
4. City will grant BNSF, as a part of this Agreement, a pennanent, non exclusive, right of entry over
that portion of State Street/University Parkway that will no longer be used by the traveling public between
its point of intersection with the realigned roadway and BNSF's southerly property line (BNSF direction)
compass northeasterly for use by BNSF as ingress and egress to its Rail Corridor for maintenance
purposes as shown on said Exhibit A..
5. Subject to the restrictions imposed by Article V, Section 15 below, CITY and/or COUNTY must
notify and obtain prior authorization from BNSF's Manager of Public Projects before entering BNSF's Rail
Corridor for maintenance purposes. If the construction work hereunder is contracted, CITY and/or
COUNTY must reql!ire its primecontractor(s) to comply with the obligations set forth in Exhibit C. Exhibit
C-1 and Exhibit F, as the same may be revised from time to time. CITY and/or COUNTY will be
responsible for its contractor(s) compliance with such obligations.
6. TO THE FULLEST EXTENT PERMITTED BY LAW, CITY HEREBY RELEASES, INDEMNIFIES,
DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, 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, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF CITY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (II)
THE PERFORMANCE, OR FAILURE TO PERFORM BY THE CITY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF CITY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE
MAINTENANCE SITE, (IV) CITY'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL
CORRIDOR, INCLUDING WITHOUT LIMITATION, SUBSEQUENT MAINTENANCE OF THE
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STRUCTURE BY CITY, OR (V)AN ACT OR OMISSION OF CITY OR ITS OFFICERS, AGENTS,
INVITEES, EMPLOYEES OR CONTRACTORS' OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED
BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY
ASSUMED BY CITY WILL 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, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) ARE
PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF.
7. TO THE FULLEST EXTENT PERMITTED BY LAW, COUNTY HEREBY RELEASES,
INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES,
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, THE EMPLOYEES OF THE PARTIES HERETO) OR ENTITY
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE
OR IN PART) (I) THE USE, OCCUPANCY OR PRESENCE OF COUNTY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE MAINTENANCE SITE, (II)
THE PERFORMANCE, OR FAILURE TO PERFORM BY THE COUNTY, ITS CONTRACTORS,
SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS
AGREEMENT, (III) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF COUNTY, ITS
CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE
MAINTENANCE SITE, (IV) COUNTY'S BREACH OF THE EASEMENT GRANTED TO COUNTY
PURSUANT TO ARTICLE II OF THIS AGREEMENT, COUNTY'S OCCUPATION AND USE OF BNSF'S
PROPERTY OR RAIL CORRIDOR, OR, (V) ANY RIGHTS OR INTERESTS GRANTED TO COUNTY
PURSUANT TO THE EASEMENT DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI) COUNTY'S
OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR, INCLUDING WITHOUT
LIMITATION, SUBSEQUENT MAINTENANCE OF THE STRUCTURE BY COUNTY, OR (VII)AN ACT
OR OMISSION OF COUNTY OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR
CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER. THE LIABILITY ASSUMED BY
COUNTY WILL 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, EMPLOYEES OR OTHERWISE, EXCEPT TO
THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT
OR SOLE NEGLIGENCE OF BNSF.
ARTICLE V - JOINT OBLIGATIONS
IN CONSIDERATION of the premises, the parties hereto mutually agree to the following:
1. All work contemplated in this Agreement must be performed in a good and workmanlike manner
and each portion must be promptly commenced by the party obligated hereunder to perform the same
and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any
changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior
to the commencement of any such changes or modifications.
2. The work hereunder must be done in accordance with the Bridge Requirements set forth on
Exhibit F and the detailed plans and specifications approved by BNSF.
3. SAN BAG must require its contractor(s) to reasonably adhere to the Project's construction schedule
for all Project work. The parties hereto mutually agree that BNSF's failure to complete the railroad work in
accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies
will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability.
Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the
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labor forces assigned to complete the railroad work in the event of an emergency to provide for the
immediate restoration of railroad operations (BNSF or its related railroads) or to protect persons or
property on or near any BNSF owned property. BNSF will not be liable for any additional costs or
expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any
reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or
costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF.
4. BNSF shall have the right to request any SAN BAG employee, CITY employee, or COUNTY
employee, who enters BNSPs Rail Corridor and because of their incompetence, neglect of duty, unsafe
conduct or misconduct and/or they adversely affected BNSF's operations or facilities, be removed from
the Rail Corridor. In the event SAN BAG, CITY or COUNTY elects not to honor such request, BNSF may
stop work within its Rail Corridor until the matter has been fully resolved to BNSF's satisfaction. The party
whose employee has been asked to leave the Rail Corridor will indemnify BNSF and the other parties
against any claims arising from such removal.
5. BNSF will have the right to stop construction work on the Project if any of the following events
take place: (i) SAN BAG (or any of its contractors) performs the Project work in a manner contrary to the
plans and specifications approved by BNSF; (ii) SAN BAG (or any of its contractors), prosecutes the
Project work in a manner which is hazardous to BNSF property, facilities or the safe and expeditious
movement of railroad traffic; or (Iii) the insurance described in the attached Exhibit C-1 is canceled during
the course of the Project. The work stoppage will continue until all necessary actions are taken by
SAN BAG or its contractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until
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 BNSF. 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. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to
immediately notify the following individual in writing:
SAN BAG Director of Freeway Construction
1170 W. 3rd Street, 2nd Floor
San Bemardino, CA 92410
Fax: (909) 388-2002.
6. SAN BAG's or any CITY or COUNTY employee, agents, contractors, representatives and invitees
shall wear Personal Protective Equipment ("PPE") when on the BNSF's Rail Corridor during construction
of the Project or performing subsequent maintenance after completion of construction. The PPE shall
meet applicable OSHA and ANSI specifications. Current BNSF PPE requirements are listed on the web
site, www.contractororientation.com. A partial list of BNSF's PPE requirements include; a) safety glasses:
permanently affixed side shields; no yellow lenses, b) hard hats with high visibility orange cover, c) safety
shoes: hardened toe, above-the-ankle lace-up with a defined heel and d), high visibility retro-reflective
orange vests are required as specified by BNSF's representative in charge of the Project. PPE
requirements as defined on the web site, will be amended from time to time, and shall take precedence
over the Partial list of requirements outlined in this Section 6 of Article V. Hearing protection, fall
protection and respirators will be wom as required by State and Federal regulations.
7. SAN BAG must supervise and inspect the operations of all SAN BAG contractors to assure
compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all
safety requirements of the BNSF railroad. If BNSF determines that proper supervision and inspection is
not being performed by SAN BAG personnel at any time during construction of the Project, BNSF has the
right to stop construction (within or adjacent to its operating Rail Corridor). Construction of the Project will
not proceed until SAN BAG corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the
situation is not being corrected in an expeditious manner, BNSF will immediately notify SAN BAG Director
of Freeway Construction for appropriate corrective action.
8. The Project funding is contemplated to come from state and local sources. Therefore BNSF will
be required to contribute to the cost of construction of the Project, pursuant to Section 1202.5 (d) of the
Public Utilities Code. The Project's cost for the purpose of determining cost apportionment is estimated
to be $18,842,811, hereinafter referred to as "E8tima1edCost" as shown on Exhibit G attached hereto
and made a part hereof.
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9. BNSF's share of the Estimated Cost, hereinafter referred to as "BNSF's Share", shall be a Fixed
Not To Exceed Amount of $1,884,281. BNSF's share has been determined to be 10% of the calculated
amount of the Project that is apportioned to BNSF being 69% of the Estimated Cost in the amount of
$27,195,700.
10. That BNSF will make payment in full of BNSF's Share upon receipt of a detailed invoice of the
Project's final costs, together with written advice of the Projecfs date of completion as provided for
hereinabove in Article III Section 12 with the date of BNSF's payment conditioned upon SAN BAG
fumishing BNSF sufficient advanced notification of the Project's completion date and a current estimate of
the Project's final cost to enable BNSF to include BNSF's estimated Share in a subsequent Budget Year.
BNSF's cut off date for its next years Capital Budget is August 31".
11. SAN BAG agrees to fumish BNSF's Manager Public Projects monthly Project Progress Reports
that detail work completed, percentage of Project completeness, an updated projection of the Project's
final cost, and the Project's estimated completion date for BNSF's use in budgeting BNSF's Share.
12. Notwithstanding the provisions of Sections 8 and 9 of this Article V, which contemplate the use of
non Federal-aid funds for construction of the Project, if any Federal funds are used by SAN BAG to
finance the Project, BNSF will not be required to contribute to the Project's cost pursuant to the Federal
Aid Highway Program Manual, Volume 6, Chapter 6, Section 2, Subsection 1.
13. Pursuant to this section and Article II, Section 6 herein, SAN BAG must, out of funds made
available to it for the construction of the Project, reimburse BNSF in full for the actual costs of all work
performed by BNSF ~nder this Agreement.
14. All expenses detailed in statements sent to SAN BAG pursuant to Article II, Section 6 herein will
comply with the terms and provisions of the Federal Aid Highway Program Manual, U.S. Department of
Transportation, as amended from time to time, which manual is hereby incorporated into and made a part
of this Agreement by reference. The parties mutually agree that BNSF's preliminary engineering, design,
and contract preparation costs described in Article II, Section 2 herein are part of the costs of the Project
even though such work may have preceded the date of this Agreement.
15. The parties mutually agree that no construction activities for the Project, nor future maintenance
of the Structure once completed, that would interfere with operations of the Rail Corridor will be permitted
during the fourth quarter of each calendar year. Emergency work will be permitted only upon prior
notification to BNSF's Network Operations Center (telephone number: 800 832-5452). The parties hereto
mutually understand and agree that trains cannot be subjected to delay during this time period.
16. Subject to the restrictions imposed by Article V, Section 15 above, the construction of the Project
will n,ot commence until SAN BAG gives BNSF's Manager of Public Projects thirty (30) days prior written
notice of such commencement. The commencement notice will reference BNSF's file number 026114M. .
and must state the time that construction activities will begin.
17. Within 90 days of the conclusion of the Project and final acceptance by BNSF, SANBAG must
provide BNSF with a complete electronic set of the bridge plans with the railroad clearances (prepared in
Enalish Units). BNSF will also accept a marked up paper copy of the bridge plans labeled "As Built".
The marked up copy of those plans will reflect any and all deviations from the original plans that occurred
during construction. The electronic set of bridge plans will be submitted in Micro Station *.dgn electronic
format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format
used for CAD plan preparation and not converted to another format prior to submission. The" As Built"
plans shall show actual measured "as constructed" clearances as well as depth, size and location of all
foundation components. The plans shall show dimensioned locations of existing and relocated utilities.
The As Built plans must comply with the Bridge Requirements set forth on Exhibit F and depict all
information in BNSF engineering stationing and mile post pluses. The As Built plans must also include
plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and
facilities must be shown. It is understood that BNSF prefers to receive the "As Built" plans in an electronic
format.
18. BNSF may, at its expense, make future changes or additions to the railroad components of the
Structure if necessary or desirable, in BNSF's sole discretion, including, without limitation the following: (i)
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the right to raise or lower the grade or change the alignment of its tracks, (ii) the right to lay additional
track or tracks, or (iii) the right to build other facilities in connection with the operation of its railroad. Such
changes or additions must not change or alter the highway components of the Structure. If it becomes
necessary or desirable in the future to change, alter, widen or reconstruct the highway components of the
Structure to accommodate railroad projects, the cost of such work, including any cost incidental to
alteration of railroad or highway facilities made necessary by any such changes to the Structure, will be
divided between BNSF and CITY and/or COUNTY in such shares as may be mutually agreed to by the
parties hereto. Any alteration or reconstruction of the highway components of the Structure will be
covered by a Commission order.
19. CITY and/or COUNTY may, at CITY and/or COUNTY'S sole expense, alter or reconstruct the
highway components of the Structure if necessary or desirable, due to traffic conditions or pedestrian or
other recreational traffic, provided, however, that any such alteration or reconstruction must not encroach
further upon or occupy the surface of BNSF's Rail Corridor to a greater extent than is contemplated by the
plans and specifications to be approved by BNSF pursuant to Article III, Section 1 herein, without
obtaining BNSF's prior written consent and the execution of a supplement to this Agreement or the
completion of a separate agreement. Any alteration or reconstruction of the highway components of the
Structure will be covered by a Commission order.
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20. Any books, papers, records and accounts of the parties hereto 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 and
the Federal Highway Administration, for a period of three (3) years from the date of the final BNSF invoice
under this Agreement.
21. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the
successors and assigns of the parties hereto. Notwithstanding the preceding sentence, neither party
hereto may assign any of its rights or obligations hereunder without the prior written consent of the other
party.
22. In the event construction of the Project does not commence within three (3) years of the Effective
Date, this Agreement will become null and void.
23. Neither termination nor expiration of this Agreement will release either party from 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.
24. 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 remainder of the provision will be enforceable.
25 This Agreement (including exhibits and other documents, manuals, etc. incorporated herein) is
the full and complete agreement between BNSF, CITY, COUNTY and SAN BAG with respect to the
subject matter herein and supersedes any and all other prior agreements between the parties hereto.
26. Any notice provided for herein or concerning this Agreement must be in writing and will be
deemed sufficiently given when sent by certified mail, retum receipt requested, to the parties at the
following addresses:
BNSF Railway Company:
BNSF's Manager of Public Projects
740 E. Camegie Drive
San Bernardino, CA. 92408
Fax: 909 386 4479
SAN BAG:
San Bernardino Associated Governments
1170 W. 3rd Street, 2nd. Floor
San Bemardino, CA 92410
Attn. Director of Freeway Construction
Fax 909 388 2002
e
Page 12 of 15
City of San Bernardino
e
County of San Bernardino
e
e
City of San Bernardino
Attention: Mark Lancaster
Deputy Director I City Engineer
300 North D Street
San Bernardino, CA. 92418
Fax No: (909) 384-5573
Department of Transportation
Attention: Mr. Patrick J. Mead, Director
825 East 3rd. Street
San Bernardino, CA. 92415-0835
. Fax No.: (909) 3878130
[Signature Page to Follows]
Page 13 of 15
e
e
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.
BNSF RAILWAY COMPANY
By:
Printed Name:
Title:
)j. . - i-v"'f-
' Grea <7o'x
Vice President Enaineerina
WITNESS:
CITY OF SAN BERNARDINO
By
APPROVED AS TO FORM:
Patrick J. Morris
Its Mavor
~~~~E~m~
r I~""
Paul Biane
Board of Supervisors
SIGNED AND CERTIFIED THAT A COPY
OF THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
<1'~.n~
Dena SIIJ~~.CJe~.~f1b~'~~
of Sup.er:vLsorlk~> ',:~, '.j ~
,t" '_. 7'- .','. -',':, ~'t.. 0 ,
;.~ ---.;.' -<.' -~,.,
By: if! r':'~ ::~;/ ) ._ ~
AP;ko'v~b A(1iO ~E~At F~i'~
~~~~~~#~~~i~;se,
By: , .
Deputy
Date: - ,". /
e [Signatures continued next page]
Page 14 of 15
.
e
e
e
APPROVED AS TO FORM:
~_Q~. ill
. n-Rene Basle
SAN BAG Counsel
Slate Slreet/University Parkway November 29. 2006
By:
Printed Name:
Title:
Dennis ansberaer
President - Board of Directors
Page 15 of 15
State of California
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
County of .<;a" Buna.rd.,'(\{}
onJ1nlAa~ Ur, lJ.OO7
before me,
(here insert name and title of the officer)
personally appeared
Den n;5 1:1 at1S~(,~e.r-
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person'jJ whose
name~/ilfe-SubsCribed to the within instrument and acknowledged to me th&~/tftey executed the
same i@Ref/tReif authorized capacity~, and that b@'m/~ signature\1l on the instrument the
person>il. or the entity upon behalf of which the person(l' acted. executed the instrument.
WITNESS my hand and official seal.
J'" ~_:." A &TRAC;L.HoMAN"' &(
:::@ COMM #1609780 !':!
en' Notary PubUc.c:.lifoml. se
w. IAN BER"~coutf1'Y ....
J.. . ~. fIIy.~bp.hpt.~~ I
Signatur~ ~~~
(Seal)
OPTIONAL INFORMATION
Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this
acknowledgment to an unauthorized document and moy prove useful to persons relying on the attached documenr.
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a document
titled/for the purpose of
Method of Signer Identification
o Personally known to me
o Proved to me on the basis of satisfactory evidence:
LO form(s) ot identification 0 credible wilness(es)
Identification is detailed in notary journal on.
Page#~ Entry#~
containing
The signer(s) capacity or authority is/are as:
D Individual(s}
o Attorney-in-Fact
o Corporate Officer(s)
Notary contact.
Other
o Additional Slgner(5) [] Signer(s} Thumbprint(sj
Tillel,)
o
[J Guardian/Conservator
o Partner - Limited/General
o Trustee(s)
o Other
representing:
Name(~) of Person(s) or Entitylies) Signer is Representong
I", Copyr.ght 2005 Notary Rotary, Inc. 925 29th Sf. De~ Moone~, IA 50312-3612 FormACK02 10/0S, To re-order. call tolHree t.877.349-6S88 or VI~1t us on The Internet at hnpJ/www.notaryrotary.com
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Form Approved by VP-Law
e
EXHIBIT B
TEMPORARY CONSTRUCTION LICENSE
(State StreetlUnlverslty Parkway)
THIS TEMPORARY CONSTRUCTION LICENSE FOR the construction and maintenance
of the new State Street/U niversity Parkway Overhead (''Temporary Construction License") is
made and entered into as of the ...21l1 day of Jan.2007:8l11l1 ("Effective Date"), by and between
BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor"), and SAN BERNARDINO
ASSOCIATED GOVERNMENTS, a body corporate and politic of the State of Califomia
("Licensee").
A. Licensor owns or controls certain real property situated at or near the vicinity of
San Bemardino, County of San Bernardino, State of Califomia, at Mile Post 80+3935.09, Line
Segment 7200-6, [Project # State Street/University Parkway Overhead], as described or depicted
on Exhibit "A-3" attached hereto and made a part hereof (the "Premises").
B. Licensor and Licensee have entered into that certain Overhead Agreement dated
as of January 9th, 2007 concerning improvements on or near the
Premises (the "Overhead Agreemenr).
e
C. Licensee has requested that Licensor grant to Licensee a temporary non-
exclusive license over the Premises in connection with the construction of the State
Street/University Parkway Overhead as defined in the Overhead Agreement.
D. Licensor has agreed to grant Licensee such license, subject to the terms and
conditions hereinafter set forth.
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 1
Grantina of License.
1.1 License Puroose. Licensee shall use the Premises for such purposes as are
necessary and incidental to the construction of the State Street/University
Parkway Overhead as is set forth in the Overhead Agreement.
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1.2 Grant. Licensor does hereby grant unto Licensee a temporary non-exclusive
license ("License") over the Premises for the License Purpose and for no other
purpose. The License 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"). Licensee 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 Overhead Agreement.
1.3 Reservations bv Licensor. Licensor excepts and reserves the right, to be
Exhibit B
Form Approved by VP-Law
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exercised by Licensor and any other parties who may obtain written permission
or authority from Licensor.
(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
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(c) to use the Premises in any manner as the Licensor in its sole discretion
deems appropriate, provided Licensor uses all reasonable efforts to
avoid material interference with the use of the Premises by Licensee for
the License Purpose.
Section 2 Term of License. The term of the Temporary Construction License shall be for
a period of four (4) years or completion of the project, whichever occurs first..
Section 3 No Warranty of Anv Conditions of the Premises. Licensee acknowledges that
Licensor has made no representation whatsoever to Licensee concerning the state or condition of
the Premises, or any personal property located thereon, or the nature or extent of Licensor's
ownership interest in the Premises. Licensee has not relied on any statement or declaration of
Licensor, oral or in writing, as an inducement to entering into this Temporary Construction
License, other than as set forth herein. LICENSOR 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 LICENSEE OR ANY OF LICENSEE'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. LICENSEE ACCEPTS ALL RIGHTS GRANTED
UNDER THIS TEMPORARY CONSTRUCTION LICENSE IN THE PREMISES IN AN "AS IS,
WHERE IS" AND 'WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON
LICENSOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. Licensee has inspected
or will inspect the Premises, and enters upon Licensor's rail corridor and property with knowledge
of its physical condition and the danger inherent in Licensor's rail operations on or near the
Premises. Licensee acknowledges that this Temporary Construction License does not contain
any implied warranties that Licensee or Licensee's Contractors (as hereinafter defined) can
successfully construct or operate the Improvements.
Section 4 Nature of Licensor's Interest in the Premises. LICENSOR DOES NOT
WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE
PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS
MADE. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in
the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not
be liable to refund Licensee any compensation paid hereunder.
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Section 5 Improvements. Licensee 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,
Exhibit B
Form Approved by VP-Law
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approvals or authorizations from applicable govemmental 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 Licensor; and wherever
any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such
lands and premises of the Licensor, the Licensee 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 Licensor, 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 Licensee will affect any Lines, fences, buildings, improvements or other
facilities (collectively, "Other Improvements"), Licensee will be responsible at Licensee's sole risk
to locate and make any adjustments necessary to such Other Improvements. Licensee must
contact the owner(s) of the Other Improvements notifying them of any work that may damage
these Other Improvements and/or interfere with their service and obtain the owner's written
approval prior to so affecting the Other Improvements. Licensee must mark all Other
Improvements on the Plans and Specifications and mark such Other Improvements in the field in
order to verify their locations. Licensee must also use all reasonable methods when working on
or near Licensor's property to determine if any Other Improvements (fiber optic, cable,
communication or otherwise) may exist.
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Section 6 Taxes. Licensee 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 Licensor or the Premises that are
attributable to the Improvements. In the event of Licensee's failure to do so, if Licensor shall
become obligated to do so, Licensee shall be liable for all costs, expenses and judgments to or
against Licensor, including all of Licensor's legal fees and expenses.
Section 8
Default and Termination.
8.1 Licensor's Performance Riohts. If at any time Licensee, or Licensee's
Contractors, fails to properly perform its obligations under this Temporary Construction License,
Licensor, in its sole discretion, may: (i) seek specific performance of the unperformed obligations,
or (ii) at Licensee's sole cost, may arrange for the performance of such work as Licensor 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 Licensor, or anyone or anything present on the rail
corridor or property with the authority or permission of Licensor. Licensee shall promptly
reimburse Licensor for all costs of work performed on Licensee's behalf upon receipt of an
invoice for such costs. Licensor's failure to perform any obligations of Licensee or Licensee's
Contractors shall not alter the liability allocation set forth in this Temporary Construction License.
8.2 Effect of Termination or Exoiration. Neither termination nor expiration will release
Licensee from any liability or obligation under this License, 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.
8.3 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in
addition to, and not in limitation of, any other remedies that Licensor may have under the
Overhead Agreement, at law or in equity.
Section 9 Surrender of Premises.
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9.1 If said described premises, or any part thereof, shall at any time cease to be used by said
Licensee, or by the public, for the purpose, as aforesaid for a period of two (2) consecutive years,
or should they be converted to any other use whatsoever, or should the Licensee fail to perform
Exhib~ B
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Form Approved by VP-Law
any of the conditions herein expressed, then upon written request by the Licensor, Licensee shall
immediately request abandonment in accordance with the applicable statutes or laws of the State
of Califomia, and, subject to appropriations being made for the purpose by the California
Transportation Commission, Licensee shall restore Premises to their prior condition.
Section 10 Liens. Licensee shall promptly pay and discharge any and all liens arising out of
any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the
Premises or attributable to Taxes that are the responsibility of Licensee pursuant to Section 6.
Licensor 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 Licensor to take any such action
shall not relieve Licensee of any obligation or liability under this Section 10 or any other section of
this Temporary Construction License.
Section 11 Tax Exchanae. Licensor reserves the right to assign this Temporary
Construction License to Apex Property & Track Exchange, Inc. ("Apex"). Apex is a qualified
intermediary within the meaning of Section 1031 of the Internal Revenue Code of 1986, as
amended, and Treas. Reg. !l 1.1031(k)-1(g), for the purpose of completing a tax-deferred
exchange under said Section 1031. Licensor shall bear all expenses associated with the use of
Apex, or necessary to qualify this transaction as a tax-deferred exchange, and, except as
otherwise provided herein, shall protect, reimburse, indemnify and hold harmless Licensee from
and against any and all reasonable and necessary additional costs, expenses, including,
attorneys fees, and liabilities which Licensee may incur as a result of Licensor's use of Apex or
the qualification of this transaction as a tax-deferred transaction pursuant to Section 1031.
Licensee shall cooperate with Licensor with respect to this tax-deferred exchange, and upon
Licensor's request, shall execute such documents as may be required to effect this tax-deferred
exchange.
Section 12 Notices. 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 Overhead Agreement. Notices to
Licensor under this License 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 Licensor may from time to time direct by notice to Licensee.
Section 13 Recordation. It is understood and agreed that this Temporary Construction
License shall not be recorded.
Section 14
Miscellaneous.
14.1 All questions concerning the interpretation or application of provisions of this
Temporary Construction License shall be decided according to the substantive laws of the State
of California without regard to conflicts of law provisions.
14.2 In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties. 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.
14.3 If any action at law or in equity is necessary to enforce or interpret the terms of
this Temporary Construction License, 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.
Exhibn B
Form Approved by VP-Law
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14.4 If any provision of this Temporary Construction License is held to be illegal,
invalid or unenforceable under present or future Laws, such provision will be fully severable and
this Temporary Construction License 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 Temporary Construction License a provision as similar in its
terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid
and enforceable.
14.5 This Temporary Construction License is the full and complete agreement
between Licensor and Licensee with respect to all matters relating to Licensee's use of the
Premises, and supersedes any and all other agreements between the parties hereto relating to
Licensee's use of the Premises as described herein. However, nothing herein is intended to
terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold
Licensor harmless in any prior written agreement between the parties. .
14.6 Time is of the essence for the performance of this Temporary Construction
License.
14.7 The terms of the Overhead Agreement are incorporated herein as if fully set forth
in this instrument which terms shall be in full force and effect for purposes of this License.
Witness the execution of this Temporary Construction License as of the date first set forth above.
LICENSOR:
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BNSF RAILWAY COMPANY, a Delaware
corporation
By:
Name:
Title:
LICENSEE:
SAN BERNARDINO ASSOCIATED
GOVERNMENTS,
By:
Name:
Title:
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Exhibij B
EXHIBIT "A-3"
PAGE 1 OF3
_ BEING A PORTION OF THE EAST ONE-HALF OF SECTION 19, TOWNSHIP ONE NORTH,
_ RANGE FOUR WEST SAN BERNARDINO MERIDIAN, DESCRIBED AS FOLLOWS;
TCE PARCEL A
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 19 WITH
THE CENTERLINE OF THE MAIN TRACK OF THE B.N.S.F. RAILROAD. THE RIGHT OF
WAY OF SAID MAIN TRACK LIES 75.00 FEET NORTHEASTERLY AND 50.00 FEET
SOUTHWESTERLY MEASURED AT RIGHT ANGLES AS DEFINED FOR THIS LEGAL
DESCRIPTION; THENCE NORTH 38055' 18" WEST, 1792.16 FEET TO THE CENTERLINE OF
UNIVERSITY PARKWAY REALIGNMENT; THENCE NORTH 07056'14" EAST 91.04 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS
OF 1150.00 FEET; THENCE NORTHERLY ALONG SAID TANGENT CURVE THROUGH A
CENTRAL ANGLE OF 00 35'18" AN ARC LENGTH OF 11.81 FEET TO THE
NORTHEASTERLY RIGHT OF WAY LINE OF SAID B.N.S.F. RAILROAD; THENCE NORTH
38055'18" WEST ALONG SAID NORTHEASTERLY RIGHT OF WAY LINE TO A POINT
LYING 6 I .00 FEET MEASURED AT RIGHT ANGLES FROM SAID CENTERLINE OF
UNIVERSITY PARKWAY SAID POINT ALSO BEING THE BEGINNING OF A
NONT ANGENT CUR VE CONCA VE WESTERLY HAVING A RADIUS OF 1089.00 TO
WHICH A RADIAL LINE BEARS SOUTH 850 48'21" EAST AND THE TRUE POINT OF
BEGINNING; THENCE SOUTHERLY AND PARALLEL WITH SAID CENTERLINE AND
tit ALONG SAID NONTANGENT CURVE THROUGH A CENTRAL ANGLE OF 030 44'35" AN
ARC LENGTH OF 71.14 FEET; THENCE SOUTH 070 56'14" WEST PARALLEL WITH SAID
CENTERLINE, I 02.40 FEET TO A POINT ON SAID SOUTHWESTERLY RIGHT OF WAY
LINE; THENCE NORTH380 55'18" WEST ALONG SAID SOUTHWESTERLY RIGHT OF
WAY LINE, 17 1.4 7 FEET TO A POINT LYING 186.00 FEET MEASURED AT RIGHT ANGLES
FROM SAID CENTERLINE OF UNIVERSITY P ARKW A Y SAID POINT ALSO BEING THE
BEGINNING OF A NONT ANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF
964.00 FEET TO WHICH A RADIAL LINE BEARS SOUTH 820 58'31" EAST; THENCE
NORTHERLY ALONG SAID NONTANGENT CURVE AND PARALLEL WITH SAID
CENTERLINE THROUGH A CENTRAL ANGLE OF
11029'49" AN ARC LENGTH OF 193.44 FEET TO A POINT ON SAID NORTHEASTERLY
8N5.F. RAILROAD RlGHT OF WAY LINE; THENCE SOUTH 380 55' I R" EAST ALONG
SAID NORTHEASTERLY RIGHT A WAY LINE. 19R.99 FEET TO THF TRUE POINT OF
BECiINNING.
l'HF ABO\'E DESCRII3ED PARCEL OF LAND CONTAINS 052 ACRES. ~~.h71 PEET \10RF
OR LESS.
tit I'RII'.\RUii3Y \11: OR l '-IDER \IY DIRECTION
Ill' ..1C~ (~ 2./~'()~___
EXHIBIT "A-3"
PAGE 2 OF 3
ttmG A PORTION OF THE EAST ONE-HALF OF SECTION 19, TOWNSHIP ONE NORTH,
RANGE FOUR WEST SAN BERNARDINO MERIDIAN, DESCRIBED AS FOLLOWS;
TCE PARCEL B
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 19 WITH
THE CENTERLINE OF THE MAIN TRACK OF THE B.N.S.F. RAILROAD. THE RIGHT OF
WAY OF SAID MAIN TRACK LIES 75.00 FEET NORTHEASTERLY AND 50.00 FEET
SOUTHWESTERL Y MEASURED AT RIGHT ANGLES AS DEFINED FOR THIS LEGAL
DESCRIPTION; THENCE NORTH 38055' 18" WEST, 1792.16 FEET TO THE CENTERLINE OF
UNIVERSITY PARKWAY REALIGNMENT (61.00 FEET HALF-WIDTH); THENCE NORTH
07056'14" EAST 91.04 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
WESTERLY HAVING A RADIUS OF 1150.00 FEET; THENCE NORTHERLY ALONG SAID
TANGENT CURVE THROUGH A CENTRAL ANGLE OF 00 35'18" AN ARC LENGTH OF
11.81 FEET TO THE NORTHEASTERLY RIGHT OF WAY LINE OF SAID B.N.S.F.
RAILROAD; THENCE SOUTH 380 55' I 8" EAST ALONG SAID NORTHEASTERLY RIGHT
OF WAY LINE A DISTANCE OF 83.68 TO A POINT LYING 61.00 FEET MEASURED AT
RIGHT ANGLES FROM SAID CENTERLINE OF UNIVERSITY PARKWAY SAID POINT
.0 BEING THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID
~RTHEASTERL Y RIGHT OF WAY LINE SOUTH 380 55' 18" EAST 171.31 FEET TO A
POINT LYING 186.00 FEET MEASURED AT RIGHT ANGLES FROM SAID CENTERLINE OF
UNIVERSITY PARKWAY; THENCE SOUTH 070 56'14" WEST PARALLEL WITH SAID
CENTERLINE, 171.3 I FEET TO A POINT ON SAID SOUTHWESTERLY RIGHT OF WAY
LINE; THENCE NORTH 380 55'18" WEST ALONG SAID RIGHT OF WA Y LINE 171.31 FEET
TO A POINT LYING 61.00 FEET MEASURED AT RIGHT ANGLES FROM SAID
CENTERLINE OF UNIVERSITY PARKWAY; THENCE NORTH 070 56' 14" EAST PARALLEL
WITH SAID CENTERLINE 171.31 FEET TO THE TRUE POINT OF BEGINNING.
THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 0.49 ACRES. 21,414 FEET MORE
OR LESS.
, ,
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I'REPJ\R7; BY \'IE OR UNDER M1' DIRECTION
. I/{)Vy (~ 11t;.o{p
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EXHIBIT "A-3"
PAGE 3 OF 3
OWNER
BURLINGTON NORTHERN
& SANTA FE
ASSESSORS PARCEL NUMBER
BASIS OF BEARINGS:
BEARINGS SHOW'N HEREON ARE BASED ON THE
BEARING BETW'EEN SAN BERNARDINO COUNTY
SURVEYOR'S HORIZONTAL CONTROL STATION
'HIVERN' AND 'JUNIOR' B[lNG NORTH
88'52'15' EAST (GRID)
REPARE~ BY ME OR UNIJER MY IJIRECTION
BY, ~ t(~ 2-/0' &f.,
LA'l?R""Yi?eARNES IJATE
II.ANIJ SURVEYOR, PLS. 7766
i4lIJVANCEIJ SURVEY CONCEPTS
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EXHIBIT B-1
WHEN RECORDED MAIL TO:
MAIL TAX STATEMENTS TO:
SPACE ABOVE THIS UNE FOR RECORDER'S USE
DOCUMENTARY TRANSFER TAX S
...Computed on the consideration or value of Property conveyed, OR
...Computed on the consideration or value less liens or encumbrances
remaining at time of sale.
Signature of Declarant or Agent determining Tax - Firm Name
EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that BNSF RAILWAY COMPANY,
(formerly known as The Burlington Northern and Santa Fe Railway Company and successor by
merger to The Atchison, Topeka and Santa Fe Railway Company) a Delaware corporation,
whose. address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas
76131-2830, Grantor, for SEVENTY THOUSAND SEVEN HUNDRED FIFTY and No/100
Dollars ($70,750.00) to it paid by SAN BERNARDINO ASSOCIATED GOVERNMENTS,
Grantee, and the promises of the Grantee hereinafter specified, does hereby grant unto the
Grantee, subject to the terms and conditions hereinafter set forth, an EASEMENT for the
purpose of constructing, reconstructing, maintaining and operating an overhead Structure and
for no other purpose, located at Railroad Mile Post 80.75, Line Segment 7600-2, hereinafter
called Structure, over, upon and across the premises, situated in the City of San Bernardino,
County of San Bernardino, State of California, being more particularly described on Exhibits "A-
1" and" A-2", attached hereto and by this reference made a part hereof.
RESERVING, however, unto the Grantor, its successors and assigns, the right to
construct, place, operate, maintain, alter, repair, replace, renew, improve and remove
communication lines above, below and on the surface of the premises, including, without
limitation, transmission by conduit, fiber optics, cable, wire or other means of electricity, voice
data, video, digitized information, or other materials or information, pipelines, utility lines, track
and facilities including the right of ingress and egress in any such manner as does not
unreasonably interfere with Grantee's use of the premises for said Structure, and further
reserving unto Grantor, its successors and assigns, all right and privilege of ingress and egress
to said premises as Grantor, its successors and assigns may req.uire to investigate and
remediate environmental contamination and hazards, and further reserving the right and
privilege to use said land for any and all purposes not inconsistent with the use thereof for said
Structure.
The foregoing easement is made subject to and upon the following express
conditions:
.
1. To existing interests in the above-described premises to whomsoever belonging and
of whatsoever nature and any and all extensions and renewals thereof, including but
not limited to underground pipe line or lines, or any type of wire line or lines, if any.
2. Any and all cuts and fills, excavations or embankments necessary in the
construction, maintenance, or future alteration of said Structure 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 fill
or 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.
3. The Grantee shall bear the cost of removal, relocation or reconstruction of any and
all right of way fences, telephone or telegraph poles, or other facilities, the removal,
relocation or reconstruction of which may be made necessary by reason of the use of
said premises for said Structure purposes.
4. The Grantee shall, at its own cost and expense, make adjustment with industries or
other lessees of Grantor for buildings or improvements that may have to be
relocated, reconstructed or destroyed by reason of the construction and maintenance
of said Structure on said premises.
.
5. If, during the term of this Easement, Grantor has notice from Grantee or otherwise of
a release or violation of Environmental Laws which are caused or which may be
caused by reason of the uses authorized by such easement, Grantor may require
Grantee, at Grantee's sole risk and expense, to take timely measures to investigate,
remediate, respond to or otherwise cure such release or violation affecting the
premises. To the extent permitted by Califomia Government Code Section 14662.5,
Grantee shall indemnify, protect and defend the Grantor from any and all liability,
claims or demands, if any, which arise as a result of such release or violation.
6. Grantor and Grantee have entered into that certain Overhead Agreement dated as of
January 9th. 2007 concerning the Premises ( the "Overhead Agreement").
The terms of the Overhead Agreement, as may be amended from time to time, are
incorporated herein as if fully set forth in this instrument which terms shall be in full
force and effect for purposes of this Easement even if the Overhead Agreement is,
for whatever reason, no longer in effect.
.
7. Grantee shall pay when due any taxes, assessments or other charges (collectively,
'Taxes") levied or assessed upon the Improvements by any govemmental or quasi-
govemmental 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 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.
2
Form 0105 Rev. 10104
.
e
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8. The Grantee or its contractor(s) shall telephone Grantor's Communication Network
Control Center at (800) 533-2891 (a 24 hour number) to determine if fiber optic cable
is buried anywhere on the premises; and if so, the Grantee or its contractor(s) will
contact the Telecommunications Company(ies) involved, and make arrangements
with the Telecommunications Company(ies) for protection of the fiber optic cable
prior to beginning any work on the premises.
9. If said described premises, or any part thereof, shall at any.time voluntarily cease to
be used by said Grantee, or by the public, for the purpose, as aforesaid for a period
of two (2) consecutive years, or should they be converted to any other use
whatsoever, or should the Grantee fail to perform any of the conditions herein
expressed after notice and a reasonable opportunity to cure, then upon written
request by the Grantor, Grantee shall immediately request abandonment in
accordance with the applicable statutes or laws of the State of California, and,
subject to appropriations being made for the purpose by the California Transportation
Commission, Grantee shall, remove said structure and restore Railroad's premises
to the condition existing prior to construction of said structure.
10. The Grantor does not warrant its title to said premises nor undertake to defend the
Grantee in the peaceable possession, use or enjoyment thereof; and the grant herein
made is subject to all outstanding rights or interest of others, including the tenants
and licensees of the Grantor.
11. This easement shall be binding upon and inure to the benefit of the heirs, executors,
administrators, assigns and successors of Grantor and Grantee.
TO HAVE AND TO HOLD THE SAME, together with all the hereditaments and
appurtenances thereunto belonging to Grantee for public use and enjoyment for the purposes
aforesaid and for no other purpose whatsoever subject to the terms and conditions hereinbefore
stated.
IN WITNESS WHEREOF, the said BNSF RAILWAY COMPANY has caused this
instrument to be signed by its authorized officer, and the corporate seal affixed on the
day of , 2006.
BNSF RAILWAY COMPANY
By:
David P. Schneider
General Director-
Land Revenue Management
ATTEST:
By:
Patricia Zbichorski
Assistant Secretary
3
Form 0105 Rev. 10104
.
.
.
STATE OF TEXAS )
) ss.
COUNTY OF TARRANT )
On this day of , 2006, before me, the undersigned,
a Notary Public in and for said County and State, personally appeared David P.
Schneider and Patricia Zbichorski, known to me to be General Director-Land Revenue
Management and Assistant Secretary, respectively, of the corporation that executed the
within instrument on behalf of the Corporation therein named, and acknowledged to me
that such Corporation executed the same.
Notary's Signature
My Commission Expires:
THIS IS TO CERTIFY, That San Bernardino Associated Governments hereby accepts for public
purposes the real property described in the within deed and consents to the Recording thereof.
IN WITNESS WHEREOF, I have hereunto set my hand this day of ,2006
Tony Grasso - Executive Director
San Bernardino Associated Governments
FORM APPROVED BY LAW
4
Form 0105 Rev. 10104
EXHIBIT "A-I"
PAGE 1 OF 1
ttNG A PORTION OF THE EAST ONE-HALF OF SECTION 19, TOWNSHIP ONE NORTH,
RANGE FOUR WEST SAN BERNARDINO MERIDAN, DESCRIBED AS FOLLOWS;
BEGINNING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 19 WITH
TI-IE CENTERLINE OF THE MAIN TRACK OF TilE B.N.S.F. RAILROAD. THE RIGHT OF
WAY OF SAID MAINTRACK LIES 75.00 FEET NORTHEASTERLY AND 50.00 FEET
SOUTHWESTERL Y MEASURED AT RIGHT ANGLES AS DEFINED FOR THIS LEG/\L
DESCRIPTION; THENCE NORTII380 55'18" WEST, 1792./6 FEET TO THE CENTERLINE OF
UNIVERSITY PARKWA Y REALIGNMENT; THENCE NORTH 07056'14" EAST 91.04 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS
OF 115000 FEET; TIIENCE NORTHERLY ALONG SAID TANGENT CURVE THROUGH A
CENTRAL ANGLE OF (jc 35' 18" AN ARC LENGTH OF 11.81 FEET TO THE
NORTHEASTERLY RIGIIT Or: WA Y LINE OF SAID B.N.S.F. RAII.ROAD SAID POINT ALSO
REINe; THE TRUE POINT OF BEGINNING; THENCE NORTII 380 55' tW' WEST ALONG
SAID NORTIIEASTERLY RIGHT OF WAY LINE TO A POINT LYING 61.00 FEET
rvlEASURED AT RIGHT ANGLES FROM SAID CENTERLINE OF UNIVERSITY PARK'vVA Y
Si\lD POINT ALSO BEING THE BEGINNING OF A NONTANGENT CURVE TO WHICH A
IDIAL LINE BEARS SOUTH 85048'21" EAST; THENCE SOUTHERLY AND PARALLEL
HI SAID CENTERI.INE AND ALONG SAID NON-TANGENT CURVE THROUGII A
CENTRAL ANGLE OF 030 44'35" AN ARC LENGTH OF 71.14 FEET; TIIENCE SOUTH
07" 56'14" WEST PARRALLEL WITH SAID CENTERLINE, 1 0240 FEET TO A POINT ON
SAID SOUTHWESTERLY RIGHT OF WAY LINE; THENCE SOUTH 3So 54' 18" EAST ALONG
SAID SOUTHWESTERLY RtGHT OF WAY LINE, 167.20 FEET TO A POINT L\'ING 610
FEET SOUTHEASTERLY MEASURED AT RIGHT ANGLES FROM SAID CENTERLINE OF
UNIVERSITY PARK\VAY; THENCE NORTH 070 56'14" EAST PARALLEL WITH SAID
CENTERLfNE, 17/.31 FEET TO SAIl) NORTHEASTERLY RIGHT OF WA Y LINE; THENCE
NORTH 380 55' IS" WEST ALONG SAID NORTHEASTERLY RIGHT OF \VA '{ 8368 FEET TO
11 [E TRUE POINT OF BEGINNING.
TilE A80VE DESCRIRFD PARCEL OF LAND CONTAINS 1)48 ACRES, 20,952 FEET rVIORE
(lR I.FSS.
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!'I{L!'.\RI;U BY \11,. OR l\TlI:R \IY DIRFCTION
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EXHIBIT "A-2"
PAGE 1 OF 1
OWNER
BURLINGTON NORTHERN
& SANTA FE
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BASIS OF BEARINGS:
BEARINGS SHOWN HEREON ARE BASED ON THE
BEARING BETWEEN SAN BERNARDINO COUNTY
SURVEYOR'S HORIZONTAL CONTROL STATION
'HIVERN' AND 'JUNIOR' BEING NORTH
88'52'15' EAST (GRID)
PREPARED BY ME OR UNDER MY DIRECTION
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LAW DEPARTMENT APPROVED
EXHIBIT "C"
CONTRACTOR REQUIREMENTS
1.01 General
. 1.01.01 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 of State Street/University Parkway Overhead.
. 1.01.02 The Contractor must 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 3 of said Exhibit "C_I",
. 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the
movement of any trains on Railway Property.
. 1.01.04 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 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.
. 1.01.06 The Contractor must notify the (Aaencv) at and Railway's Manager Public Projects,
telephone number (909) 386-4472 at least thirty (30) calendar days before commencing any work on Railway
Property. Contractors notification. to Railway, must refer to Railroad's file 0261 14M.
. 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 Yo
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. 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.
. 1.01.08 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 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.
Form 0102 Rev. 01120/05
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1.02 Contractor Safety Orientation
. 1.02.01 No employee ofthe Contractor, Its subcontractors, agents or invitees may enter Railway Property
without fint having completed Railway's Engineering Contractor Safety Orientation, found on the web
site www.contractororientation.com. The Contractor must ensure that eacb of its employees,
subcontracton, agents or Invitees completes Railway's Engineering Contractor Safety Orientation
tbrough internet sessions before any work Is performed on the Project. Additionally, the Contractor
must ensure that each and every one of its employees, subcontraetors, 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 tbe 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's Representative.
1.03 Railway Requirements
. 1.03.01 The 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 p~id for by the Agency.
. 1.03.02 The Contractor must notilY the Railway's General Manager Michael Shircliff at telephone (909) 386
4150 Fax 909 386 4111 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 must abide by the following temporary clearances during construction:
. i5' 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
. 1.03~04 Upon completion of construction, the following clearances shall be maintained:
. 31'.6'"
. 27'.0"
. 24'-7"
Horizontally from centerline of Siding I
Horizontally from centerline of Main 3
Vertically above top of rail
. 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be
submitted to the Railway and to the iA2encv) and must not be undertaken until approved in
writing by the Railway, and until the iA2encv) has 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.
. 1.03.06 In 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 protection of Railway operations. The cost of
tell-tales or protective devices will be borne by the Agency.
. 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract
plans must be submitted to the Railway by iA2encv) for approval before work is
undertaken and this work must not be undertaken until approved by the Railway.
. 1.03.08 At 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 Private Crossing Agreement" from the Railway prior to moving his equipment or materials across
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Form 0 I 02 Rev. 01120105
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the Railways 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 at the expense of the Contractor.
. 1.03.09 Discharge, 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's Resource 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 Resource Conservation and Recovery Act or any state
analogue.
. 1.03.10 The 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
. 1.04.0 I 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 S.afety 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.eontraetororientation.eom. 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.
1.05 Protection of Railway Facilities and Railway Flagger Services:
. 1.05.01 The Contractor must give Railway's Roadmaster (telephone 909 386 4061) 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.
. 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger and protective
services and devices 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:
. 1.05.02a 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.
. 1.05.02. 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.
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Form 0102 Rev. 01120/05
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. 1.05.02e Special pennission 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 perfonned 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 will be the eight (8) hour basic day.
. 1.05.03c The cost of flagger services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the IA2encv) . The estimated cost for one (I) flagger is
$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 cost for each flagger includes vacation allowance, paid holidays, Railway and
unemployment insurance, public liability and property damage insurance, health and welfare benefits,
transportation, meals, lodging and supervision. Negotiations for Railway labor or collective bargaining
agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated
flagging rates. The flagging rate in effect at the time of perfonnance by the Contractor hereunder will be used to
calculate the actual costs of flagging pursuant to this paragraph.
. 1.05.03d The average train traffic on this route is 94 freight trains per 24-hour period at a timetable speed of35
MPH and 2 passenger trains at a timetable speed of 50 MPH.
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 must be in compliance with FRA Roadway Worker Protection Regulations.
. 1.06.02 Before 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 nagger, 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 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 Dagger is, and how to contact the nagger, (2)
limits of the authority, (3) the method of communication to stop and resume work, and (4) location of the
designated places of safety. Persons or equipment entering nag/work limits that were not previously job
briefed, must notify the nagger immediately, and be given a job briefing when working within 25 feet of
the center line oftrack.
. 1.06.04 When Contractor employees are required to work on the Railway Property after normal
working hours or on weekends, the Railroad's representative in charge of the project must be notified. A
minimum of two employees must be present at all times.
. 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under
the innuence 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 any hazard noticed on passing trains must 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) and could result in a train derailment must be
4
Fonn 0102 Rev. 01120105
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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.
.
1.06.07 For safety reasons, all persons are proh,ibited from having pocket knives, firearms or other deadly
weapons in their possession while working on Railway's Property.
.
1.06.08 All 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.contractororientation.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 dermed heel; and d) high visibility retro-reflective work wear. The Railroad's
representative in charge ofthe project is to be contacted regarding local specifications for meeting requirements
relating to hi-visability work wear. Hearing protection, fall protection, gloves, and respirators must be worn as
required by State and Federal regulations. (NOTE - Should there be a discrepancv between the information
contained on the web site and the information in this Daral!raDh. the web site willl!overn.l
.
1.06.09 The 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 any highway/rail at-grade crossings, where storage of the same will interfere with the sight
distances of motorists approaching the crossing. Prior to beginning work, the Contractor must 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 inoperable and
secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed
specifications)
. 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 must meet all Federal, State and Local regulations.
. 1.06.11 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 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 capacity of 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
. 1.07.01 Before 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 Project Engineer (909 386 4079). All underground and overhead wires will
be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line.
II 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.
. 1.07.02 The Contractor must cease all work and notity the Railway 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 Contractor must also notity the owner immediately. If there
is any doubt about the location of underground cables or lines ofany kind, no work must be performed until the
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Form 0102 Rev. 01120105
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exact location has been detennined. There will be no exceptions to these instructions.
. 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of
depth, must 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 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.
1.08 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 srice water, swamp, wetlands or waterways, while perfonning 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
. 1.09.01 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 Data Collection Fonn 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 ITO later than the close of shift on the date of the
injury.
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NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION
INFORMA nON REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD
BE USED FOR COMPLIANCE WITH FEDERAL REGULA nONS ONLY AND IS NOT INTENDED TO
PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABILITY.
I. 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:
andior Age Gender:
(if available)
9. (a) Injury:
(i.e. (a) Laceration (b) Hand)
(b) Body Part:
) 1. Description of Accident (To include location, action, result, etc.):
12. Treatment:
" First Aid Only
II Required Medical Treatment
n 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
RAILWAY AT (817)352-7595
AND COPY TO
RAILWAY ROADMASTER FAX 9093864843
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LAW DEPARTMENT APPROVED
OVERPASS EXHIBIT "C-I"
Agreement
Between
BNSF RAILWAY COMPANY
and tbe
CONTRACTOR
BNSF RAILWAY COMPANY
Attention: Manager Public Projects
Railway File: 026106V
Agency Project: State StreetlUniversity Parkway Overpass
Gentlemen:
The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated
,200-, with SAN BERNARDINO ASSOCIATED GOVERNMENTS for the performance of
certain work in connection with the following project: remove the existing Stale StreetlUniversity Parkway grade
crossine and construct a railroad overhead structure and roadway on new alignment located approximately 312 feet
southeasterly measured along the centerline of BNSF's Main Track #1 to carry State Street/University Parkway
traffic across BNSF's "Rail Corridor" and tracks and Cajon Boulevard by means of a 4-span concrete structure to
be known as the State Street/University Parkway Overpass in the City and County of San Bernardino, CA.
Performance of such work will necessarily require contractor to enter BNSF RAIL WAY COMPANY ("Railway")
right of way and property ("Railway Property"). The Contract provides that no work will be commenced within
Railway Property until the Contractor employed in connection with said work for SAN BERNARDINO
ASSOCIATED GOVERNMENTS (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 Contract, has agreed and does hereby
agree with Railway as follows:
Section I. 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 Contractors officers and employees, and for loss and damage to property belonging to any person,
arising in any manner from Contractors or any of Contractors subcontractors' acts or omissions or any work
performed on or about Railway's property or right-of-way. THE LIABILITY 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 SOLE
NEGLIGENCE OF RAILWAY.
THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY
CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL
Fonn 0107 Rev. 01120105
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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 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.
It is mutually understood and agreed that the assumption of liabilities and indemnification provided for in
this Agreement survive any termination of this Agreement.
Section 2. TERM
This Agreement is effective from the date of the Contract 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.
Section 3. INSURANCE
Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
A. Commercial General Liability insurance. This insurance must 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. Coverage must be purchased on a post 1998 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 must also contain the following endorsements, which must be indicated on the certificate of
insurance:
.
.
It is agreed that any workers' compensation exclusion does not apply to Rail,oad payments
related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be either payments made or
obligations assumed under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
The defmition of insured contract must be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
Any exclusions related to the explosion, collapse and underground hazards must be removed.
.
No other endorsements limiting coverage as respects obligations under this_Agreement may be included on
the policy.
B. Business Automobile Insurance. This insurance must 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
2
Fonn 0107 Rev. 01120105
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. Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including coverage for, but not limited 10:
. California's statutory liability under the worker's compensation laws of the state(s) in which
the work is 10 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.
D. Railroad Protective Liability insurance naming only the Railroad as 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 1093 and include the following:
. Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 10 93)
. Endorsed to include the Limited Seepage and Pollution Endorsement.
. Endorsed to remove any exclusion for punitive damages.
. No other endorsements restricting coverage may be added.
. The original policy must be provided to the Railroad prior to performing any work or services
under this Agreement
Other Requirements:
All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and
certificates of insurance must reflect that no exclusion exists.
Contractor agrees to waive its right of recovery against Railroad for all claims and suits against Railroad.
In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation
against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation
endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation
against Railroad for loss of its owned or leased property or property under contractor's care, custody or control.
Contractor's insurance policies through policy endorsement, must include wording which states that the
policy is primary and non-contributing with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective)
must include a severability of interest endorsement and Railroad must be named as an additional insured with
respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured
must be indicated on the certificate of insurance.
Contractor is not allowed to self-insure without the prior written consent of Railroad. If granted by
Railroad, any deductible, self-insured retention or other financial responsibility for claims must be covered directly
by contractor in lieu of insurance. Any and all Railroad 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 the Work, contractor must furnish to Railroad an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must
contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing
at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation
provision must be indicated on the certificate of insurance. Upon request from Railroad, a certified duplicate
original of any required policy must be furnished. Contractor should send the certificate(s) to the following address:
BNSF RAILWAY COMPANY
3
Fonn 0107 Rev. 01120105
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Risk Mana2ement
2400 Western Center Blvd.
Fort Worth. TX 76131
Any insurance policy must be written by a reputable insurance company acceptable to RaUroad or with a
current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the
service is to be provide.
Contractor represents that this Agreement has 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. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, RaUroad may reasonably modil)- 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, contractor must require that the
subcontractor provide and maintain the insurance coverages set forth herein, naming RaUroad as an additional
insured, and requiring that the subcontractor release, defend and indemnil)- RaUroad to the same extent and under
the same terms and conditions as contractor is required to release, defend and indemnil)- Railroad herein.
Failure to provide evidence as required by this section will entitle, but not require, RaUroad to terminate
this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a
waiver of contractor's obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will 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 RaUroad will not be limited by the amount of the required
insurance coverage.
For purposes of this section, RaUroad means "Burlington Northern Santa Fe Corporation", "BNSF
RAIL WAY COMPANY" and the subsidiaries, successors, assigns and affiliates of each.
Section 4. EXHIBIT "C" CONTRACTOR REQUIREMENTS
The Contractor must observe and comply with the provisions, obligations, requirements and limitations
contained in the Contract and the Contractor Requirements set forth on Exhibit "C" attached to the Contract 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.
Section 5. 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 contractoal 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 unnecessarily cause 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
4
Fonn 0107 Rev. 01120/05
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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. Damages for train delay for certain trains may be as high
as $50,000.00 per incident.
Contractor and its subcontractors must give Railway's representative 909 386 4079 eight (8) weeks advance
notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually
agreeable work windows for lbe 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.
Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this
letter, which, upon execution by Railway, will constitute an Agreement between us.
(Contractor)
BNSF Railway Company
By:
Printed Name:
Title:
By:
Name: Me2an T. Mclntvre
Manager Public Projects
Contact Person:
Address
Accepted and effective this _day of20_.
City:
Fax:
Phone:
E-mail:
State:_Zip:_
5
Fonn 0107 Rev. 01120105
EXHIBIT D
tit Recapitulation ofBNSF's Cost Estimates to do the following work:
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Procurement of materials, equipment and supplies necessary for the railroad work;
Preliminary engineering, design, and contract preparation;
Furnishing of flagging services necessary for the safety of BNSF's property and the operation of
its trains during construction of the Project;
Furnishing engineering and inspection as required in connection with the construction of the
Project;
Removal and relocation of Intermediate Eastbound Signal 762 for Main 1 and Intermediate
Eastbound Signal 764 for Main 2 to the west side (railroad direction) of the Structure and;
Removal of the automatic warning device signals from the existing State Street/University
Parkway at-grade crossing (P.D.C. No. 2-76.6) and obliteration of said at-grade crossing between
the rails and to two feet outside thereof.
Signal Estimate (Page 2)
$379,203
Flagging and Inspection (Page 3)
$227,366
Remove Crossing Main Track No. I (Page 4)
$12,697
Remove Crossing Main Track No.2 (Page 5)
$12,697
Remove Crossing Main Track No.3 (Page 6)
$12.697
TOTAL ESTIMATED COST BNSF WORK
$644,660
(See Estimate Details Pages 2 to 6)
Exhibit D
State Street/University Parkway
Page I nf6
EXHIBIT D
-- MAINTAIN PROPRIETARY CONFIDENTIALITY *****
. m_m__m___m mm__mm__m______mm_____h_m___m_mm___m___hmn_mmmh_nm___m__m_
THE B. N. S. F. RAILWAY C(M>ANY
FHPM ESTIMATE FOR
SANBAG
LOCATION, -
ONO
OETAILS OF ESTIMATE
PLAN ITEM, 000119203
VERSION, 1
------------.--------------------------------------------------.--------------------------------------------------------._--
PURPOSE. JUSTIFICATION ANO OESCRIPTION
SIGNAL COST ESTIMATE FOR UNIVERSITY PM UNOERPASS ANO THE REMOVAL OF THE EXISTING HIGHWAY
CROSSING AT GRAOE. M.P. 76.60. LIS 7600. CALIFORNIA OIV.. CAJON SUBOIV.
MONTHLY POWER UTIlITY COST CENTER, 61692
THE MATERIAL lIST BELOW REFLECTS TYPICAL REPRESENTlVE PACKAGES USEO FOR ESTIMATING PURPOSE
ONLY. .
THEY CAN BE EXPECTEO TO CHANGE AFTER THE ENGINEERING PROCESS. OETAIlEO ANO ACCURATE
MATERIAL LISTS WILL BE FURNISHEO WHEN ENGINEERING IS CCMPLETEO.
CONTINUING CONTRACTS HAVE BEEN ESTABLISHEO FOR PORTIONS OF SIGNAL l<<lRK ON THE BNSF
RAILROAO.
THIS ESTIMATE IS GOOO FOR 90 OAYS. THEREAFTER THE ESTIMATE IS SUBJECT TO CHANGE IN COST
FOR LABOR. MATERIAL. ANO OVERHEAO.
*************--********--- SIGNAL WORK OHl Y -**************************
MAINTAIN PROPRIETARY CONFIOENTIALITY
OESCRIPTION
QUANTITY UIM
COST
TOTAL S
**********
LABOR
**********
.
PLACE FlELO WELOS - CAP
PLACE RAIL - CAP
SIGNAL FIElO LABOR - CAP
SIGNAL SHOP LABOR - CAP
PAYROLL ASSOCIATEO COSTS
EQUIPMENT EXPENSES
OA LABOR OVERHEAOS
PEROIEM EXPENSES
INSURANCE EXPENSES
70.40 MH
34.88 MH
1736.00 MH
48.00 MH
1.554
708
42.213
1.085
36.752
11.407
41.020
15.190
7.1B3
TOTAL LABOR COST
157.112
157.112
**********
MATERIAL
.--
PLUG RAIL. 136# IN5ULATEO.BONOEO. 20 FT
WELOKIT. GENERIC FOR ALL RAIL WEIGHTS
ELECTRICAL METER POLE
M.P. 76.57
M.P. 76.65
MATERIAL HANOLING
USE TAX
OFFLINE TRANSPORTATION
4.00 EA X
8.00 KT X
1.00 LS
1.00 LS
1.00 LS
2.784
424
1.500
1.000
127.038
6.636
'1,517
1.670
TOTAL MATERIAL COST
152.569
152.569
--
OTHER
**********
AC POWER SERVICE
CONTRACT ENGR.
MACHINE RENTAL
1.00 LS
1.00 LS
1.00 LS
10.000
16.886
6.448
TOTAL OTHER ITEMS COST
33.334
33.334
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
343.015
34.301
1.887
GROSS PROJECT COST
LESS COST PAIO BY 8NSF
379.203
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TOTAL BILLABLE COST
379.203
Exhibit 0
Stale StreetlUniversity Parkway
Page 2 of6
EXHffiIT D
e __mmmm_mnmnm_mmm==m_~~~~~~_~~~~~::~~:_~~~~~~:~:~~:~::_~n==____mm_mmn_hmn
THE B. N. S. f. RAILWAY CWANY
FHPM ESTIMATE FOR
SANBAG
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lOCATION:-
VEROEI4ONT TO BASELINE
DETAILS Of EST!"" TE
PLAN ITEM: PTR026106V
PURPOSE. JUSTIfICATION ANO OESCRIPTION
flAGGING AND INSPECTION fOR THE UNIVERSITY AVENUE GRADE SEPARATION PROJECT, D.O.T. NO. 026
106 V. BETWEEN VERDE'IlNT, M.P. 76.60 AND BASElINE, M.P. 76.62, CAJON SUBDIVISION.
SOUTHERN CAlIfORNIA ENGINEERING DIVISION.
RfA NO. 59-358-06
AUTHORITY NO. 7-""-06,
DESCRIPTION
QUANTITY U/M
COST
**********
lABOR
---
flAGGING - BRIDGE - CAP
PAYROll ASSOCIATED COSTS
EQUIPMENT E'PENSES
DA lABDR OVERHEADS
INSURANCE E'PENSES
1925.00 MH.
41,585
33.546
10.412
37.443
6.557
TOTAL lABDR COST
129,543
********-
""TERIAl
**********
TOTAL MATERIAL COST
*-****
OTHER
**********
INSPECTION - CONTRACTOR I COOROINATOR
lEASED VEHICLE
90.00 DAY
175.00 DAY
63.000
13,125
TOTAL OTHER ITEMS COST
76.125
PROJECT SUBTOTAL
CONTINGENCIES
BIll PREPARATION fEE
GROSS PROJECT COST
lESS COST PAID BY BNSf
TOTAL BILLABLE COST
Exhibit 0
State StreetlUniversity Parkway
Page 3 of6
VERSION: 1
TOTAL S
129.543
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76,125
205.658
20. 566
1.132
227.366
o
227.366
EXHffiIT D
e-mmm--m--mm-- _____m____mmmm_m_____mmmn__m_____n__m___m____mnmnmnm_m_
***** MAINTAIN PROPRIETARY CONFIDENTIALITY *****
-----~---------------------------------_._---------------------------.-.-----------------------------------------------
THE B. N. S. F. RAILWAY COMPANY
FHPM ESTIMATE FOR
SANBAG
----------------------------------------------------------------------------------------------------------------------------
LOCATION,-
VEROEMONT TO BASELINE
DETAILS OF ESTIMATE
PLAN ITEM, PTR026106VA VERSION, 1
----------------------------------------------------------------------------------------------------------------------------
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PURPOSE, JUSTIFICATION AHO DESCRIPTION
CLOSURE OF UNIVERSITY AVENUE, O.O.T. NO, 026106 V, PRIOR TO HIGHWAY OVERPASS BEING PUT TO
SERVICE BETWEEN VEROEt<<!NT, M,P. 76.58 AND BASELINE, M.P. 76.64, CAJON SUBDIVISION,
SOUTHERN CALIFORNIA ENGINEERING DIVISION AS FOLLOWS,
* REt<<!VE MAINLINE 1 CROSSING, RUBBER SURFACE AND AlC PAVING MATERIAL
RFA NO. 5935806
AUTHORITY NO. 7 -XXXX-06.
DESCRIPTION
OUANTITY UIM
COST
**********
LABOR
**********
REt<<!VE PUBLIC CROSSING
SURFACE TRACK - REPLACEMENT - CAP
PAYROLL ASSOCIATED COSTS
EQUIPMENT EXPENSES
OA LABOR OVERHEADS
PEROIEM EXPENSES
INSURANCE EXPENSES
968
253
984
644
1,098
69
191
46,97 MH
11.66 MH
TOTAL LABOR COST
4,207
**********
MATERIAL
******--
TOTAL MATERIAL COST
**********
OTHER
**--****
DUMP FEESIHAUlINGIPERI4ITS
1.00 LS
B,334
TOTAL OTHER ITEMS COST
8,334
PROJECT SUBTOTAL
CONTINGENCIES
BIll PREPARATION FEE
GROSS PROJECT COST
LESS COST PAID BY BNSF
TOTAL BILLABLE COST
Exhibit D
State StreetlUniversity Parkway
Page 4 of6
TOTAL $
4,207
o
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8,334
12,541
92
64
12,697
o
12,697
EXHIBIT D
e_mmmnnnnmmnmnnm_mnh____________mmmnm_m______mm_mmmh___m_mm_mn__
--- MAINTAIN PROPRIETARY CONFIDENTIALITY --
---------------------------------------------------------------------------------------------------------------------.-
THE B. N. S. F. RAILWAY COMPAHY
FHP14 ESTIMATE FOR
SAHBAG
--_.----------------------------------------------._---------------------------------------------------------------------.-.
LOCATlON,-
VEROEMONT TO BASELINE
DETAILS OF ESTIMATE
PLAH ITEM, PTR026106VB VERSION, 1
------------------------------------------------------.---------------------------------------------------------------------
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PURPOSE. JUSTIFICATION AHO DESCRIPTION
CLOSURE OF UNIVERSITY AVENUE. O.O.T. NO. 026106 V. PRIOR TO HIGHWAY OVERPASS BEING PUT TO
SERVICE BETWEEN VEROEMONT. M.P. 76.58 AND BASELINE. M.P. 76.64. CAJOO SUBDIVISION.
SOUTHERN CAlifORNIA ENGINEERING DIVISION AS FOLLOWS,
. REMOVE MAINLINE 2 CROSSING. RUB8ER SURFACE AND AlC PAVING MATERIAL
RFA NO. 5935806
AUTHORITY NO. 7-XXXX-06.
DESCRIPTION
QUANTITY U/M
COST
******'*'***
LABOR
*--***-
REMOVE PUBliC CROSSING
SURFACE TRACK - REPLACEMENT - CAP
PAYROLL ASSOCIATED COSTS
EOUIPMENT EXPENSES
OA LABOR OVERHEADS
PEROIEM EXPENSES
INSURANCE EXPENSES
46.97 If<
11.66 If<
968
253
984
644
1.098
69
191
TOTAL LABOR COST
4.207
**********
MATERIAL
...-
TOTAL MATERIAL COST
**********
OTHER
**********
DUMP FEES/HAULING/PERMITS
1.00 LS
B.334
TOTAL OTHER ITEMS COST
B.334
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
GROSS PROJECT COST
LESS COST PAlO BY BNSF
TOTAL BILLABLE COST
Exhibit D
State StreetlUniversity Parkway
Page 5 of6
TOTAL S
4.207
o
o
8.334
12.541
92
64
12.697
o
12.697
EXHIBIT D
~'----_--_--__mm__m_____n____.__________mm__m____m__mn_______mm_m__m______mm_____mmn
., --- MAINTAIN PROPRIETARY CONFIDENTIALITY --
---------------------------._-----------------------.--------------------------------------------------------------._--
THE B. N. S. F. RAILWAY COMPANY
FHPM ESTIMATE FOR
SANBAG
----------.-------------------------------------------------------------------------------------------.---------------------
LOCATION: -
VEROEMONT TO BASELINE
OETms OF ESTIMATE
PLAN ITEM: PTR026106VC VERSION: 1
----------------------------------------------------------------------------------------------------------------------------
PURPOSE. JUSTIFICATION ANO OESCRIPTION
CLOSURE OF UNIVERSITY AVENUE. O.O.T. NO. 026 106 V. PRIOR TO HIGHWAY OVERPASS BEING PUT TO
SERVICE BETWEEN VEROEMONT. M.P. 76.58 ANO BASELINE. M.P. 76.64. CAJON SUBOIVISION.
SOUTHERN CALIFORNIA ENGINEERING OIVISION AS FOLLOWS:
. REMOVE MAINLINE 3. CONCRETE SURFACE ANO AlC PAVING MATERIAL
RFA NO. 5935606
AUTHORITY NO. 7-XXXX-06.
OESCRIPTION
QUANTITY U/M
COST
TOTAL S
----------------------------------------------------- ---------.- ----------- ----------.
***-****
LABOR
**********
REMOVE PlJ8LIC CROSSlNU
SURFACE TRACX - REPLACEMENT - CAP
PAYROLl ASSOCIATED COSTS
EQUIPMENT EXPENSES
OA LABOR OVERHEAOS
PEROIEM EXPENSES
INSURANCE EXPENSES
46.97 OIl
11.66 OIl
968
253
984
644
1.098
69
191
e
TOTAL LABOR COST
4.207
4.207
**********
MATERIAL
-.-
TOTAL MATERIAL COST
o
o
**********
OTHER
**********
Ol,MP FEES/HAULING/PERMITS
1.00 LS
8.334
TOTAL OTHER ITEMS COST
B.334
B.334
PROJECT SUBTOTAL
CONTINGENCIES
BILL PREPARATION FEE
12.541
92
64
GROSS PROJECT COST
LESS COST PAlO BY BNSF
12.697
o
TOTAL BILLABLE COST
12.697 .
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Exhibit D
Stale StreeIlUniversily Parkway
Page 6 of6
Form Approved by VP-Law
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Exhibit E
[Public Projects Manager's letterhead]
Date:
Mr./Ms.
[Name of SAN BAG Here]
[Address for SANBAG]
Re: Final Approval of Plans and Specifications dated ,20_,
drafted by [insert name of architecture or
engineering firm bere] (hereinafter called, tbe "Plans and
Specifications")
Dear
This letter serves as BNSF RAIL WAY COMPANY's ("BNSF") final written approval of
the Plans and Specifications covering the construction of
[insert description of the project here ].
This final written approval is given to [insert name of SANBAG
here) ("SANBAG") pursuant to Article III, Section I of that certain Overpass Agreement
between BNSF and SANBAG, dated ,200_. If the Plans and
Specifications are revised by SANBAG subsequent to the date set forth above, this letter
shall no longer serve as final written approval of the Plans and Specifications and
SANBAG must resubmit said Plans and Specifications to BNSF for final written
approval.
e
Regards,
[Public Projects Manager's Name]
e
Form 0105 Rev. 4/14/05
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Exhibit F
BNSF Bridl!:e Requirements
BRIDGE DESIGN, PLANS & SPECIFICATIONS:
Except for the design of temporary falsework and shoTing, BNSF review of the Structure plans will be
limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation
dimensions and drainage characteristics as they relate to existing and future tracks. BNSF will not review
structural design calculations for the permanent Structure unless a member or members are influenced by
railroad live loads.
Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to
beginning construction. SANBAG shall perform an independent review of the design calculations for
temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction
clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and
21 feet-6inches measured vertically from the top of rail of the most elevated track to the bottom of lowest
temporary falsework member. State regulatory agencies may have more restrictive requirements for
temporary railroad clearances.
e
For the permanent Structure, SANBAG will submit plans showing the least horizontal distance from the
centerline of existing and future tracks to the face of the nearest member of the proposed Structure. The
location of the least horizontal distance must be accurately described such that BNSF can determine where
it will occur in both the horizontal and vertical plane. If the permanent member is within 25 feet of the
nearest track (or future track), collision walls shall be incorporated into the permanent Structure design
according to American Railway Engineering and Maintenance Association Manual of Recommended
Practice - Chapter 8 - Article 2.1.5.
For the permanent Structure, SANBAG will submit plans showing the least vertical clearance from top of
the most elevated rail of existing and future tracks to the lowest point of the proposed Structure. Prior to
beginning construction of the permanent Structure, the top of rail elevations should be checked and verified
that they have not changed from the assumed elevations utilized for the desi~ of the bridge.
Prior to issuing any invitation to bid on construction of the Structure, SANBAG should conduct a pre-bid
meeting where prospective Contractors have the opportunity to communicate with BNSF personnel
regarding site specific train speeds, train density, and general safety requirements for men and equipment
working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to
BNSF for review and approval prior to letting of bids for the Project.
BRIDGE CONSTRUCTION:
After awarding the bid, but prior to the Contractor entering BNSF's right-of -way or property, SANBAG
should conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety
requirements of construction activity adjacent to live tracks.
During construction, BNSF may require an independent engineering inspector to be present during certain
critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework,
construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction
processes. SANBAG shall reimburse BNSF for all costs of supplemental inspection services.
e
Form 0105 Rev. 4/14/05
State StreetlUniversity Parkway Overpass, Near Ono, CA.
Page I of2
. .
e
e
e
Within 90 days of the conclusion of the Project and final acceptance by BNSF, SANBAG will provide
BNSF with a complete electronic set of the bridge plans 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 Micro Station · .dgn electronic format (preferred) or AutoCAD . .dwg format. Electronic plans
are to be submitted in the original format used for CAD plan preparation and not converted to another
format prior to submission. 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.
BRIDGE MAINTENANCE:
The CITY and COUNTY will be responsible for maintenance and repair of the Structure including the
earth retention components, embankment slopes, erosion control, surface drainage, fencing, deck drains,
landscaping, paint, walkways, handrails, lighting, and other improvements associated with the Pi-oject.
Fencing and other pedestrian access controls within BNSF's right-of-way and incorporated into the Project
shall be designed and maintained by SANBAG. Trespasser control shall be the responsibility of SANBAG.
Graffiti removal will be the responsibility of the CITY and COUNTY.
BRIDGE INSPECT[ON:
The CITY and COUNTY will conduct annual routine structural inspections. In the event of an earthquake,
fire, flood, damage from vehicular impacts or other emergent situations, the CITY and COUNTY will
provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe
passage of trains. [f necessary the C[TY and COUNTY will embargo weights or provide lane closures or
other such measures to protect the structural integrity of the Structure such that there can be continuous safe
passage of trains until repairs are made.
BRIDGE AL TERA nONS:
Except as provided otherwise by this Agreement, there will be no alterations made to the Structure that will
alter the railroad vertical or horizontal clearances provided by the original design.
[t is expressly understood by C[TY and COUNTY that the right to install utilities is restricted to the
placement of underground utilities beneath BNSF's tracks located a minimum of fifty (SO) feet from
abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit
selected utilities to be run through the deck of the Structure. Under no circumstances will utilities be
allowed to hang from the Structure, unless approved by BNSF. All utility crossings within the limits of
BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the
utilities.
Form 0105 Rev. 4/14105
State StreetlUniversity Parkway Overpass, Near Ono, CA.
Page 2 of2
tit
EXHIBIT G
University Pkwy./State St. Grade Separation Project
BNSF Cost Share
REVISED- 11/27/2006
No Item Item Unit of estimated Unit Price ltam Total
Code Measure Quantity
1 070010 PROGRESS SCHEDULE /CRITICAl PA THI LS 1 $5,000 $5,000
2 071301 TEMPORARY FENCE LF 4168 $15 $52,520
3 120090 CONSTRUCTION AREA SIGNS S\ LS 1 $15,000 $15,000
4 120100 TRAFFIC CONTROL SYSTEM /5 LS 1 $46,875 . $46,875
5 129000 TEMPORARY RAllINGITVPE K\ LF 1,500 $25 $37,500
6 150605 REMOVE FENCE LF 5358 $10 $53,680
7 150700 REMOVE PAVEMENT DELINEATION LS 1 $8,000 $5,000
8 COLD PlANE ~~PHAlT CONCRETE PAVEMENT SY 2,400 $2 $4,800
153112 0.15' MAXIMUM
9 160101 CLEARING AND GRUBBING LS 1 $100,000 $100 000
10 170101 DEVELOP WATER SUPPLY LS 1 $10,000 $10,000
11 190101 ROADWAY EXCAVATION CY 0 $5 $0
12 192003 STRUCTURE EXCAVATION BRIDGEi" CY 978 $50 $46,909
13 192037A STRUCTURE EXCAVATION MSE WAlL CY 35 $50 $1,750
14 193003 STRUCTURE BACKFILL/BRIDGE' CY 1,034 $55 $57,185
15 193013A STRUCTURE BACKFILLIMSE WALl\ CY 42 $50 $2,100
16 198001 IMPORTED BORROW CY 126,200 $10 $1,262 000
17 197031A MSE Wail NO.1 SF 21,014 $90 $1,891,260
18 197031B MSE Wall NO.2 SF 17,252 $90 $1,552,680
19 197031C SOIL NAIL WALL No. 130 SF 1,927 $75 $144,525
20 1970310 SOIL NAIL WAlL No. 133 SF 2,007 $75 $150,525
21 260201 CLASS 2 AGGREGATE BASE CY 7,300 $30 $219,000
22 390102 ASPHALT CONCRETE TON 10,500 $45 $472,500
23 390113 ASPHALT CONCRETE DIKE LF 2,218 $1 $2.218
24 490753 FURNISH PllINGTClASS 100\ LF 5,441 $30 $163.220
25 490764 DRIVE PILING/CLASS 100' EA 121.38 $1,400 $169.932
26 5??oo1 PRESTRESSING CAST.IN-PLACE CONCRETE LS 1 $168.000 $168.000
27 510051 STRUCTURAl CONCRETE. BRIDGE FOOTING CY 350 $500 $210.000
28 510053 STRUCTURAl CONCRETE BRIDGE CY 1750 $750 $1.312.500
29 510060 STRUCTURAL CONCRETE. RETAINING WALL CY 45 $550 $29.250
30 510086 STRUCTURAL CONCRETE. APPROACH SlAB CY 351 $550 $228.150
TYPE N/30S\ .
31 510501A CONSTRUCT CATCH BASIN EA 23 $1.000 $23.000
32 510502 MINOR CONCRETEIMINOR STRUCTURE\ CY 36 $500 $21.800
33 518201 MASONARYBLOCKWAlL SF 1.650 $35 $57.750
34 519129 JOINT SEAL ASSEMBLY MR=4 INCH\ LF 115 $400 $46.000
35 511064 FRACTURED RIB TEXTURE SF 6451 $4 $25.804
36 520102 BAR REINFORCING STEEUBRIDGE\ LB 346.550 $1 $485.169
37 SIGNING & STRIPING LS 0 $19,000 $0
38 641101A PLASTIC PIPE LF 658 $25 $16.450
39 650014 18" REINFORCED CONCRETE PIPE LF 372 $45 $16.740
40 650018 24" REINFORCED CONCRETE PIPE LF 1.619 $50 $97.140
41 650022 30" REINFORCED CONCRETE PIPE LF 145 $80 $11.600
42 705201A CONCRETE FLARED END SECTION EA 4 $1.000 $4.000
43 720000 ROCK SLOPE PROTECTION CY 38 $150 $5.700
44 721810 SLOPE PAVING CONCRETE\ CY 72 $400 $28.800
45 MINOR CON~~.;;E (CURB, GUTTER. SIDEWALK. CY 556 $350 $194.600
731510 AND DRIVEWA
46 750505 BRIDGE DECK DRAINAGE SYSTEM LS 1 $15,000 $15.000
47 832001 METAl BEAM GUARD RAIL LF 405 $30 $12.150
48 800300 CHAIN LINK FENCE LF 4800 $10 $48.000
49 833032 CHAIN LINK RAILING TYPE 7 MODIFIED\ LF 945 $75 $70.875
50 833140 CONCRETE BARRIEIf!TVPE 26' LF 945 $125 $118.125
51 833142 CONCRETE BARRIER {TYPE 26 MODIFIED\ LF 1.688 $125 $211.000
52 200001 ROADWAY PLANTING LS 1 $56.000 $56.000
53 208000 IRRIGATION SYSTEM LS 1 $37.500 $37.500
64 204099 PlANT ESTABLISHMENT WORK /90 Da~\ LS 0 $3.500 $0
55 860351 TRAFFIC SIGNAlISTATElNOlANlSHORTI LS 0 $142.000 $0
57 860353 TRAFFIC SIGNAl/CAJON I OLD STA TE\ LS 0 $16.000 $0
58 860353A TRAFFIC SIGNAl INTERCONNECT LS 0 $20.000 $0
59 860401 LIGHTING LS 1 $140.000 $140.000
SUBTOTAL ROADWAY, BRIDGE ITEMS $10,180,000
60 I 999990 I MOBILIZATION I 10.00% I I $1.131.111
Jamei M. 1"8DM'
1112910601.11 PM
StateSlreelGtacleSoapCMA.....G 11_27-ll!1.lIla
lof2
LAN Engineering Corpordon
e
EXHIBIT G
University Pkwy./State St. Grade Separation Project
BNSF Cost Share
REVISED. 11127/2006
No ltam . Item Unit of estimated Unit Price 118m Total
Code Measure Quantity
CONTINGENCY 5.00% S509 000
UTILITIES/Sewer W_&Misc.1 LS 1 $250,000 $250 000
BNSF Work
T IBNSF Sinnal Estimate LS 1 $379,200 $379,200
I IBNSF Track Estimate lIncludina Flaoaina) I LS 1 $265,500 $265,500
I IBNSF Total Eotlmlte I $844.700
CONSTRUCTION PROBABLE COST WITHOUT SUPPLEMENTAL ITEMS 512,714,811
SUPPLEMENTAL ITEMS
1 DISPUTES REVIEW BOARD Estimated - - $15,000
2 EXCAVATION AND BACKFILL BELOW PIPE Estimated $15,000
BEDDING - -
3 074019 PREPARE STORM WATER POLLUTION LS 1 $5,000 $5,000
PREVENTION PLAN
4 074020 WATER POLLUTION CONTROL LS 1 $250,000 $250,000
5 LEAD COMPLIANCE PLAN LS 1 $5,000 $5,000
6 HAZARDOUS MATERIALS MITIGATION LS 1 $100,000 $100,000
SUBTOTAL SUPPLEMENTAL ITEMS $390 000
CONSTRUCTION PROBABLE COST 513,104,811
RIW AND ENGINEERING
RIW ACQUISITION COSTS . $2,600,000
PRELIMINARY ENGINEERING " $1,447322
CONSTRUCTION ENGINEERING LS - $1,690 379
SUBTOTAL RIW AND ENGINEERING $5,738,000
ESTIMATED GRAND TOTAL $18.842.811
RR SHARE $1,884.281
OTHER $0
. ROW COST ARE CARRIED OVER FROM PR & 65%
** LAN'S NEGOTIATED CONTRACT
U. ESTIMATED PERCENTAGE OF TOTAL CONSTRUCTION
.... PLACE HOLDER FOR UNFORSEEN UTILITY COST TO BE DETERMINED
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111291ll60U1PM
staleSlreetGr.s.SepCMAtxhG1t_27-06_.
20/2
James M. Faber
LAN Engineering CoIpor8tion
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