HomeMy WebLinkAboutContracts & Agreements_114-15_CCv0001.pdf SANBAG Contract No.: 15-1001305
Epic File No.: RRND007747
Subdivision: Redlands
Milepost(s): 8.1 (8"recycled water
pipeline)
SANBAG Contract No. 15-1001305
LICENSE AGREEMENT
BETWEEN
SANBAG
AND
CITY OF REDLANDS
LICENSE AGREEMENT
This LICENSE AGREEMENT("License") is made and entered into as of the date executed by
SANBAG, by and between SAN BERNARDINO ASSOCIATED GOVERNMENTS, acting
solely in its capacity as SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION
and SAN BERNARDINO COUNTY TRANSPORTATION COMMISSION("SANBAG"), and,
CITY OF REDLANDS, a municipal corporation ("LICENSEE"),upon and in consideration of
the agreements, covenants, terms and conditions below.
PART I—BASIC LICENSE PROVISIONS
The Basic License Provisions provided in this Part I and the Standard License Provisions set
forth in Part II of this License,together with all Exhibits and Attachments referenced in either,
are incorporated into and made part of this License. In the event of conflict between Part I and
Part II or of any Exhibits and Attachments,Part I shall control.
Part II
Basic License Provisions Section Cross
Reference
1. Parties.
SANBAG's Address:
1170 West 3rd Street, 2nd Floor
San Bernardino, California 92410-1715
Licensee's Address:
City of Redlands
35 Cajon Avenue, Suite 15A
Redlands, CA 92373
Attn: Ross Whittman
Telephone: (909) 798-7698
E-mail: Chris Diggs, Cdiggs(a)cityofredlands.org
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Part II
Basic License Provisions Section Cross
Reference
2. Description of the Premises. § 1.1
City/County: City of Redlands, San Bernardino County
Subdivision: Redlands
Address or Milepost Location:
Mile Post 8.1
Approximate area:
1,000 square feet; 0.23 acres
See map/diagram in Exhibit"A".
Description and Dimensions of Premises Area:
An underground crossing of SANBAG's Redlands Subdivision at a location
easterly of Tennessee Street calledNew York Street.which is currently
unused as a street crossing. Location is approximately fifty feet (50')
easterly of the center line of said New York Street, and will be at a 90° angle
to the rail measuring ten feet(10') x one hundred feet(100') for a total of
one thousand square feet(1.000 Sq. Ft.)
§ 1.3
3. Allowable Improvements, Facilities and Uses. Licensee shall construct
only the following improvements and/or facilities and conduct or permit
only the following uses on the Premises:
Description of Improvements and/or Facilities ("Improvements"):
Installation of an eight ince (8")recycled water pipeline encased within an
eighteen inch(18") steel casing with a minimum thickness of 0.312 inches.
Use of the Premises:
Recycled water pipeline only and no other uses
4. Term.
Commencement Date: June 1. 2015 § 2.1
Term (check one):
M A. Month-to-month
❑ B. Until End Date: (subject to
termination pursuant to the terms of this License—see
especially Standard License Provisions §2.2).
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Part II
Basic License Provisions Section Cross
Reference
5. Fees. § 3
A. Administration Fee: $1,200.00 per year or portion thereof. § 3.1.1
payable annually in advance.
B. Base Use Fee (check one):
❑ i. $ per month,payable monthly in
advance § 3.1.2
LJ ii. $ per year, payable annually in
advance
C. Additional Use Fee (check one):
ni. One-time fee: $
n ii. Other:
§3.1.3
D. Base Use Fee Adjustment Dates (check if applicable):
i. CPI Adjustment. Annually, effective on the
first day of the anniversary month of the
Commencement Date, based on the published § 3.2
Consumer Price Index (or its successor) § 3.2.1
("CPI") as defined in Section 3.2.1 of the
Standard License Provisions.
❑ ii. Fair Market Rate Adjustment. At intervals
of not less than three (3)years, based on the
then current fair market rental value of the
Premises as set forth in Section 3.2.2 of the § 3.2.2
Standard License Provisions.
❑ iii. Other:
§ 3.2.3
6. Security Deposit (if any). $ § 4
7. Insurance Amount. See Exhibit"B" §§ 10, 13
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IN WITNESS WHEREOF, this License was duly executed by the Parties identified in Item 1
of this Part I on the dates below, and is effective as the date executed by SANBAG.
LICENSEE: SANBAG
CITY OF REDLANDS, a coroporate As San Bernardino County Transportation
municipality Commission and San Bernardino County
Transportation Authority
By: odie 4 :.1 ' By: �; -
. 1r____Name: Paul W. Foster Name: Raymond W. Wolfe
Title Mayor Title: Executive Director
Date: 6-2-2015 Date: (� `.,SI 1S
ATTEST: 1
Sam Ir , ity Clerk
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PART II—STANDARD LICENSE PROVISIONS
TABLE OF CONTENTS
Section Page
1. GRANT AND SCOPE OF LICENSE 1
2. TERM,TERMINATION AND SURRENDER 2
3. PAYMENTS 4
4. SECURITY DEPOSIT 6
5. TAXES 6
6. LIENS 6
7. ASSUMPTION OF RISK AND WAIVER 7
8. DEFAULT, BREACH AND REMEDIES 7
9. INDEMNIFICATION 9
10. INSURANCE 10
11. MAINTENANCE AND REPAIR 11
12. ALTERATIONS AND CONSTRUCTION 11
13. CONTRACTORS; APPROVAL AND INSURANCE 12
14. REIMBURSEMENT 12
15. LANDSCAPING 12
16. MARKERS 12
17. COMPLIANCE WITH LAWS 13
18. SANBAG'S RIGHT OF ACCESS 13
19. ENVIRONMENTAL ASSESSMENT 14
20. HAZARDOUS/TOXIC MATERIAL USE AND INDEMNITY 14
21. UNDERGROUND STORAGE TANKS 15
22. CONDEMNATION 15
23. BROKER'S FEES 15
24. SUBORDINATE RIGHTS 16
25. ABANDONMENT 16
26. GENERAL PROVISIONS 16
Exhibits:
"A" Premises
"B" Insurance Requirements
"C" Permitted Hazardous Material
"D" Additional Provisions
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PART II-STANDARD LICENSE PROVISIONS
I. GRANT AND SCOPE OF LICENSE
1.1. Grant of License. SANBAG hereby grants a non-exclusive, revocable license to
Licensee in, on, over, under, across and along the real property of SANBAG in the
location shown in the diagram attached hereto as Exhibit A and described in Item 2 of
the Basic License Provisions (the "Premises"), for construction, installation, operation,
alteration, maintenance, reconstruction and/or removal of the Improvements described
in Item 3 of the Basic License Provisions, and any usual and necessary related
appurtenances thereto (the "Improvements"), for the purposes described in Item 3 of
the Basic License Provisions, together with rights for access and entry onto the
Premises as necessary or convenient for the use of the Improvements and for no other
purpose. In connection with this grant of license, Licensee, its employees, agents,
customers, visitors, invitees, licensees, consultants and contractors (collectively,
"Licensee's Parties") subject to the provisions hereof,may have reasonable rights of
entry and access onto adjoining real property of SANBAG if necessary for the use of
the Improvements or the Premises,with the time and manner of such entry and access
to be subject to SANBAG's prior written approval. The Premises, adjoining real
property of SANBAG and personal property of SANBAG located thereon shall
hereinafter collectively be referred to as"SANBAG Property."
1.2. Condition of Premises. Licensee acknowledges that it has inspected the Premises in its
present condition, including without limitation, all existing environmental conditions.
Licensee accepts the Premises "as is"as suitable for the purpose for which the
Premises are licensed and assumes all risk with respect to all present conditions of the
Premises,whether patent or latent, including, without limitation, all existing
environmental conditions. Taking of possession by Licensee shall be conclusive to
establish that the Premises are in good and satisfactory condition when possession is
taken.
1.3. Use. The Premises and the Improvements shall be used only for the purposes specified
in Item 3 of the Basic License Provisions and for such lawful purposes as may be
directly incidental thereto, and no other purpose. No change shall be made by
Licensee in the use of the Premises,the Improvements or the commodity or product
being conveyed through the Improvements (if any) without SANBAG's prior written
approval.
1.4. Non-exclusive and Revocable Nature of License. The License granted herein is not
exclusive and SANBAG specifically reserves the right to grant other licenses within
the Premises. Licensee agrees that notwithstanding the Improvements made by
Licensee to the Premises or other sums expended by Licensee in furtherance of this
License,the license granted herein is fully revocable by SANBAG in accordance with
the terms of this License.
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1.5. Easements. SANBAG reserves to itself the right,from time to time,to grant such
easements,rights and dedications that SANBAG deems necessary or desirable,and to
cause the recordation of parcel maps, easement agreements and covenants, conditions
and restrictions, so long as such easements, rights,dedications, maps and covenants,
conditions and restrictions do not unreasonably interfere with the permitted use of the
Premises by Licensee. Licensee shall sign any of the aforementioned documents upon
request of SANBAG and failure to do so shall constitute a material breach of this
License.
2. TERM, TERMINATION AND SURRENDER
2.1. Term of License. The term of this License shall commence on the"Commencement
Date"specified in Item 4 of the Basic License Provisions. If Item 4.A of the Basic
License Provisions is checked,this License shall continue in full force and effect on a
month-to-month basis. If Item 4.B of the Basic License Provisions is checked, then
this License shall be a license for the term specified in said Item 4.B. The term of this
License as provided above is referred to as the"Term."
2.2. Termination.
2.2.1. Convenience. If Item 4.A is checked, this License shall continue in full force and
effect on a month-to-month basis until terminated by either Party on thirty (30)
days' prior written notice. If Item 4.B is checked,this License shall continue in full
force and effect until the End Date, unless SANBAG, acting by its Executive
Director or his or her designee,for any reason and in its sole and absolute
discretion, determines that this License is no longer in SANBAG's best interests. In
which case, SANBAG may terminate this License on thirty(30) days' prior written
notice, but SANBAG shall also return to Licensee,within thirty(30) days after the
termination,the pro-rata portion of any annual Use Fee paid by the Licensee for the
portion of the agreed term that will not be used by Licensee.
2.2.2. Cause. SANBAG may terminate this License for cause in accordance with the
provisions hereof, including, without limitation, Sections 24 (Abandonment), 8
(Default, Breach and Remedies)and 25.11 (Assignment). In addition, SANBAG
shall have the right to immediately, without notice and at Tenant's expense,
terminate this License upon discovery of any default set forth in Section 8.1(d) and
abate any such public nuisance and/or dangerous condition.
2.2.3. Public Use. In addition to any and all other termination rights of SANBAG
described herein, Licensee hereby expressly recognizes and agrees that the Premises
are located on SANBAG property that may be developed for public projects and
programs which may be implemented by SANBAG or other public agencies, such
as, but not limited to: rail and bus transitways,bikeways, walkways,beautification
projects,roadways, parking facilities, flood control and drainage facilities, and/or
any other public or other governmental uses (collectively and individually "Public
Use"); and that Licensee's use of the Premises under this License is a temporary,
interim use as to which Licensee has no right to nor expectation of use for any
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particular length of time that may be terminated by SANBAG by thirty(30) days
written notice to Licensee as set forth in Section 2.2.1 above. Accordingly, as a
condition to entering into this License, Licensee expressly acknowledges and
agrees that:
(a) SANBAG may terminate this License as set forth above for any Public Use,to be
determined in the sole and absolute discretion of SANBAG's Executive Director,
or designee;
(b) Licensee shall NOT object to, oppose, or protest at any approval proceeding;nor
file suit to prevent or delay any Public Use when planned or implemented on or
adjacent to the Premises;
(c) If SANBAG's Executive Director, or designee, at any time, or from time to time,
determines in his or her sole and absolute discretion, that there is a need for the
Premises or any adjoining property for a Public Use and such Public Use requires
relocation or removal of the Improvements, Licensee shall reconstruct, alter,
modify, relocate or remove its Improvements, as directed by SANBAG or any
parties having operating rights over the Premises, at Licensee's sole cost and
expense,within thirty(30) days after written notice from SANBAG; and
(d) Licensee expressly assumes all risk of any future Public Use as determined by
SANBAG and in the event SANBAG terminates this License and requires
Licensee to vacate the Premises for any Public Use, Licensee shall not, as a result
of such termination and vacation of the Premises, be entitled to receive any:
(i) relocation assistance,moving expenses, goodwill or other payments under
the Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970,as amended, 42 U.S.C. 0601 et seq. and/or the California
Relocation Assistance Law, as amended, California Government Code
§7260 et seq; and
(ii) compensation under any eminent domain or inverse condemnation law.
2.2.4. Penalty: If Licensee fails to terminate use of the Premises and/or restore the
Premises as required in Item 2.3 below, on or before the End Date specified in Item
4.B of the Basic License Provisions or the termination date established as otherwise
provided in this License ("Termination Date"), then, in addition to any and all other
remedies available to SANBAG under the terms of this License or at law or equity,
Licensee shall pay a Penalty equal to twice the Base Use Fee in effect on the day
prior to the Termination Date, plus twice any Additional Use Fee, calculated and
payable on a monthly basis,for the number of months (partial months counting as
whole months) from the Termination Date to the date that Licensee has terminated
use and restored the Premises to the required condition. In the event that any
Additional Use Fee is set as a percentage of revenues, or on some other variable
basis, it shall be calculated based on the average for the prior twelve month period
or if in effect less than one year, the monthly average from the effective date to the
day prior to the Termination Date. Licensee shall indemnify SANBAG against all
liabilities, costs and damages sustained by SANBAG by reason of such failure to
terminate and restore.
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2.3. Termination of Use and Restoration of Premises. Upon the Termination Date , unless
otherwise requested in writing by SANBAG prior to the Termination Date, Licensee,
at its own cost and expense, shall immediately remove all alterations additions and
Improvements made by Licensee to the Premises and restore the SANBAG Property as
nearly as possible to the same state and condition as existed prior to the construction,
reconstruction or installation of said Improvements. Should Licensee fail to comply
with the requirements of the preceding sentence, SANBAG may at its option (i)
perform the same at Licensee's expense (including costs, interest, and fees),which
Licensee agrees to pay to SANBAG on demand, or(ii) assume title and ownership of
said Improvements. No termination hereof shall release Licensee from any liability or
obligation hereunder, whether of indemnity or otherwise,resulting from any acts,
omissions or events happening prior to the date the Improvements are removed and the
SANBAG Property is restored.
3. PAYMENTS
3.1. Fees. As consideration for the rights herein granted, Licensee agrees to pay to
SANBAG the Administration and Use Fees specified in Item 5 of the Basic License
Provisions, adjusted as set forth in Section 3.2.
3.1.1. Administration Fee. The Administration Fee set forth in Item 5.A of the Basic
License Provisions shall be due and payable annually in advance prior to each
anniversary of the execution date of this license.
3.1.2. Base Use Fee. If Item 5.B.i of the Basic License Provisions is checked, the first
month's Base Use Fee noted therein shall be due and payable upon Licensee's
execution of this License. Thereafter,the Base Use Fee, as such fee may be
adjusted pursuant to the provisions of Section 3.2, shall be due and payable,without
demand, on or before the first day of each calendar month succeeding the
Commencement Date during the Term. The Base Use Fee for any fractional
calendar month at the commencement or end of the Term shall be prorated on a
daily basis. If Item 5.B.ii of the Basic License Provisions is checked, the annual
Use Fee amount, as such fee may be adjusted pursuant to the provisions of Section
3.2, shall be due and payable, without demand, annually in advance on or before the
anniversary month of the Commencement Date for the convenience of both Parties,
without affecting the Term of this License as specified in Section 2.1 of the Basic
License Provisions.
3.1.3. Additional Use Fee. If Item 5.C.i of the Basic License Provisions is checked, the
one-time fee noted therein shall be due and payable upon execution of this License
by Licensee. If Item 5.C.ii of the Basic License Provisions is checked, the fee noted
therein shall be due and payable as indicated in Item 5.C.ii.
3.2. Use Fee Adjustment.
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3.2.1. Annual ON Adjustment. If Item 5.D.i of the Basic License Provisions is checked,
then the Base Use Fee shall be increased, but not decreased, as provided below on
the first day of each month during which an annual anniversary of the
Commencement Date occurs unless another date is provided in Item 5 of the Basic
License Provisions (the "Adjustment Date"). If no adjustment is made at the annual
anniversary date, an adjustment may nevertheless be made at a subsequent date and
thereafter at not less than annual intervals. The adjusted Base Use Fee as of each
Adjustment Date shall be the greater of the Base Use Fee on the day preceding that
Adjustment Date or that amount multiplied by a fraction, the numerator of which is
the CPI figure for the month that is three (3)months prior to the month during
which the particular Adjustment Date occurs and the denominator of which is the
CPI figure for the month that is three (3) months prior to the month containing the
prior Adjustment Date or, if there has been no prior Adjustment, three (3) months
prior to the first day of the anniversary month of the Commencement Date. As used
in this section,the"CPI" means the Consumer Price Index for Urban Wage Earners
and Clerical Workers, Los Angeles/Riverside/Orange County, all items (1982-84=
100), published by the U.S. Department of Labor, Bureau of Labor Statistics
(Bureau), or if such index is no longer published,the U.S. Department of Labor's
most comprehensive official index then in use that most nearly corresponds to the
index named above. If it is calculated from a base different from the base period
1982-84 = 100, figures used for calculating the adjustment shall first be converted to
the base period used under a formula supplied by the Bureau. If a comparable index
shall no longer be published by the U.S. Department of Labor, another index
generally recognized as authoritative shall be substituted by SANBAG.
3.2.2. Fair Market Adjustment. If Item 5.D.ii of the Basic License Provisions is
checked,then, at intervals of not less than three (3)years, the Base Use Fee (as such
fee may be adjusted by Section 3.2.1, above) payable under this Section 3 shall be
increased, but not decreased, in order to adjust the fee to the then fair market rental
value of the Premises as determined by SANBAG in good faith. Such increases
shall be effective as of thirty(30) days after written notice from SANBAG to
Licensee of such adjustment, or the date specified in such written notice,whichever
is later. If no adjustment is made at any three (3) year interval, an adjustment may
nevertheless be made on any subsequent date and thereafter at intervals of not less
than three(3) years apart.
3.2.3. Other Adjustment. If Item 5.D.iii of the Basic License Provisions is checked,
then, in addition to any adjustments required under Items 5.D.i and 5.D.ii, the
adjustment set forth in 5.D.iii shall be applied in accordance with its terms.
3.3. Late Charge. Licensee acknowledges that late payment by Licensee of any payment
owed to SANBAG under this License will cause SANBAG to incur costs not
contemplated by this License,the exact amount of such costs being extremely difficult
and impracticable to determine. Therefore, if any payment due from Licensee is not
received by SANBAG within five (5)days of when due, Licensee shall pay to
SANBAG an additional sum of ten percent(10%) of the overdue payment as a late
charge, up to a maximum amount of$500 for each late payment. The Parties agree
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that this late charge represents a fair and reasonable estimate of the administrative
costs that SANBAG will incur by reason of a late payment by Licensee. Acceptance
of any late payment charge shall not constitute a waiver of Licensee's default with
respect to the overdue payment, nor prevent SANBAG from exercising any of the
other rights and remedies available to SANBAG under this License, at law or in
equity. In addition, any payment not made within 15 days of when due shall bear
interest at the rate of eighteen percent (18%) per annum, or the highest legally
allowable rate, whichever is lower, until paid in full.
4. SECURITY DEPOSIT
Upon execution of this License and in addition to the payment described in Section 3 of the
Basic License Provisions, SANBAG may require Licensee to pay SANBAG a security deposit in
the amount set forth in Item 6 of the Basic License Provisions("Security Deposit"),which sum
shall be held by SANBAG in its general fund, without obligation for interest, as security for the
faithful performance by Licensee of all of the terms, covenants, conditions and obligations of this
License. If at any time Licensee fails to keep and perform any of the terms, covenants, and
conditions of this License, including making any payment required hereunder, SANBAG may, at
its sole option, apply all or any portion of the Security Deposit to any overdue payment and/or
any loss or damage incurred by SANBAG by reason of Licensee's default or breach. Within a
reasonable time after termination of this License and after Licensee has vacated the Premises,
SANBAG shall return,without interest, said deposit or portion remaining, if any, after
deductions for any unpaid payments and any losses or damages sustained by SANBAG due to
any breach or default by Licensee or any damage to the Premises or any failure to restore the
Premises to the required condition.
5. TAXES
Licensee shall be liable for and agrees to pay promptly and prior to delinquency, any tax or
assessment, including but not limited to any possessory interest tax as described in California
Revenue and Taxation Code Section 107, levied by any governmental authority: (a) against the
Improvements,the Premises and/or any personal property, fixtures or equipment located on or
placed on the Premises, whether owned by Licensee or any person or entity acting for or at the
request of Licensee; or(b) as a result of the Licensee's or the Improvements' operations.
6. LIENS
Licensee will fully and promptly pay for all materials joined or affixed to the Improvements or
Premises, and fully and promptly pay all persons who perform labor upon said Improvements or
Premises. Licensee shall not suffer or permit to be filed or enforced against the Premises or the
Improvements, or any part thereof, any mechanics', materialmen's, contractors', or
subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any
testing, investigation,maintenance, Work, activities, or operations of Licensee, or out of any
other claim or demand of any kind. The term"Work"under this License means any
construction,reconstruction, installation,restoration, alteration, repair,replacement, or removal,
other than normal maintenance. Licensee shall provide SANBAG with immediate written
notice of any such liens, claims, demands, or stop notices that are placed against the Premises or
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the Improvements. Licensee shall pay or cause to be paid all such liens, claims or demands,
including sums due with respect to stop notices,together with attorney's fees incurred by
SANBAG with respect thereto,within ten(10) business days after notice thereof and shall
indemnify, hold harmless and defend SANBAG from any and all such obligations and claims,
including attorney's fees. Licensee shall furnish evidence of payment upon request of
SANBAG. Licensee may contest any lien, claim or demand by furnishing a statutory lien bond
or equivalent with respect to stop notices to SANBAG in compliance with applicable California
law. If Licensee does not discharge any mechanic's lien or stop notice for works performed for
Licensee, SANBAG shall have the right to discharge same (including by paying the claimant)
and Licensee shall reimburse SANBAG for the cost of such discharge,as well as any associated
costs and fees, within ten(10) business days after billing. In such circumstances, Licensee shall
pay an additional fee to SANBAG of twenty five percent (25%) of the costs of the discharge of
the lien or stop notice in order to cover SANBAG's administrative costs. SANBAG reserves the
right at any time to post and maintain on the Premises such notices as may be necessary to
protect SANBAG against liability for all such liens and claims. The provisions of this section
shall survive the termination of this License.
7. ASSUMPTION OF RISK AND WAIVER
To the maximum extent allowed by law, Licensee assumes any and all risk of loss, damage or
injury of any kind to any person or property, including without limitation, the Improvements, the
SANBAG Property and any other property of, or under the control or custody of, Licensee,
which is on or near the Premises. Licensee's assumption of risk shall include,without limitation,
loss or damage caused by defects in any structure or improvement on the SANBAG Property,
accident or fire or other casualty on the SANBAG Property, or electrical discharge, noise or
vibration resulting from SANBAG's transit operations on or near the SANBAG Property. The
term "SANBAG" as used in this section shall include: (i) any transit or rail-related company
validly operating upon or over SANBAG's tracks or other property, and(ii) any other persons or
companies employed, retained or engaged by SANBAG. Licensee, on behalf of itself and its
officers, directors, affiliates, employees, agents, independent contractors and subcontractors
anyone directly or indirectly employed by or for whose acts Licensee is liable (collectively,
"Personnel"), as a material part of the consideration for this License, hereby waives all claims
and demands against SANBAG for any such loss, damage or injury of Licensee and/or its
Personnel. In that connection,Licensee expressly waives the benefit of California Civil
Code Section 1542, which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release,which if known by him must have
materially affected his settlement with the debtor.
The provisions of this section shall survive the termination of this License.
8. DEFAULT,BREACH AND REMEDIES
8.1. Licensee Default. Licensee shall be deemed to have breached and be in default under
this License when any of the following occurs:
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(a) Licensee shall fail to make any payment or any reimbursement to SANBAG
required herein when due;
(b) Licensee shall vacate all or a substantial portion of the Premises, whether or not
Licensee is in default of the payment or other charges due under this License;
(c) Licensee shall fail to comply with any other term, provision or covenant of this
License, and shall not cure such failure within three(3) days after written notice
thereof to Licensee; or
(d) Licensee shall create or maintain, or allow any other person or entity to create or
maintain, any public nuisance or any condition that fails to comply with any
federal, state, SANBAG or rail operator specifications or safety regulations or that
presents a danger to public safety or a safety hazard to any operations,personnel,
passengers or property of SANBAG or any rail carrier operating upon the affected
rail line(s) on the Premises or SANBAG's adjacent right of way.
8.2. SANBAG's Remedies.
8.2.1. Termination. Upon the occurrence of Licensee's default and breach, SANBAG
shall have the right, at any time,with or without notice or demand, to terminate this
License, and at any time thereafter to recover possession of the Premises or any part
thereof and expel and remove therefrom Licensee and any other person occupying
the same, by any lawful means, and again repossess and enjoy the Premises without
prejudice to any of the remedies that SANBAG may have under this License, at law
or equity by reason of Licensee's default or of such termination.
8.2.2. Corrective Measures. Should Licensee default on, breach, or fail to keep, observe
or perform any agreement, covenant,term or condition on its part herein contained,
then, in addition to any other available rights and remedies, SANBAG at its option
may perform any corrective measures deemed by SANBAG in its sole and absolute
discretion to be necessary or appropriate to protect public health or safety, or
SANBAG's legitimate governmental or proprietary interests or the interests of its
railroad operators, at Licensee's expense (including fees,costs and interest)which
Licensee agrees to pay to SANBAG upon demand.
8.2.3. Costs. If SANBAG incurs any cost or expense occasioned by the default of
Licensee (including but not limited to attorneys' fees and costs), then SANBAG
shall be entitled to receive such costs together with interest on all funds SANBAG
expends at the lesser of eighteen percent (18%)per annum or the maximum rate
allowed by law, whichever is lower, including without limitation, brokers' fees
incurred by SANBAG in connection with relicensing the whole or any part of the
Premises; the costs of removing and storing Licensee's or other occupant's
property; the costs of repairing, altering, and/or otherwise restoring the Premises to
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a safe and suitable condition, useable and acceptable to SANBAG, rail operators
and future licensees; and all reasonable expenses incurred by SANBAG in enforcing
or defending SANBAG's rights and remedies, including reasonable attorneys' fees
whether or not suit is actually filed.
8.2.4. Remedies Cumulative. All rights,privileges and remedies of the parties are
cumulative and not alternative or exclusive to the extent permitted by law except as
otherwise provided herein
8.3. SANBAG Default and Licensee's Remedies. SANBAG shall not be in default under
this License unless SANBAG fails to perform obligations required of SANBAG within
sixty(60) days after written notice is delivered by Licensee to SANBAG specifying
the obligation which SANBAG has failed to perform; provided, however, that if the
nature of SANBAG's obligation is such that more than sixty (60) days are required for
performance, then SANBAG shall not be in default if SANBAG commences
performance within such sixty (60) day period and thereafter diligently prosecutes the
same to completion. Licensee's exclusive remedies shall be an action for specific
performance.
9. INDEMNIFICATION
9.1. Licensee, on behalf of itself and its successors and assigns,agrees to indemnify,
defend(by counsel satisfactory to SANBAG), and hold harmless SANBAG, in all of
its capacities, and its members,commissioners, officers, directors, employees, agents,
consultants, contractors, partners, affiliated entities, subsidiaries, permittees, licensees,
successors and assigns (individually and collectively, "Indemnitees"), to the maximum
extent allowed by law, from and against all loss, liability, claims, demands, suits, liens,
claims of lien, damages (including consequential damages), costs and expenses
(including, without limitation, any fines,penalties,judgments, litigation expenses, and
experts' and attorneys' fees), that are incurred by or asserted against Indemnitees
arising out of or connected in any manner with(i) the acts or omissions to act of the
Licensee, or its Personnel(as defined in Section 7, Assumption of Risk and Waiver) or
invitees of Licensee in connection with the SANBAG Property or the presence upon or
performance of activities by Licensee or its Personnel with respect to the SANBAG
Property, (ii)bodily injury to or death of any person(including employees of
Indemnitees)or damage to or loss of use of property resulting from such acts or
omissions of Licensee or its Personnel, or(iii) non-performance or breach by Licensee
or its Personnel of any term or condition of this License, in each case whether
occurring during the Term of this License or thereafter.
9.2. The Licensee acknowledges that any construction allowed on the Premises pursuant to
this License is not being performed for SANBAG's benefit or on SANBAG's account
and that this is an agreement allowing Licensee and/or its contractor(s) to enter upon
SANBAG's Property as an accommodation within the meaning of California Civil
Code Section 2782.1. Therefore,the foregoing indemnity shall be effective regardless
of any negligence (whether active, passive, gross, derivative, sole,joint, concurring or
comparative) on the part of Indemnitees, unless caused solely by the gross negligence
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or willful misconduct of Indemnitees, and is in addition to any other rights or remedies
which Indemnitees may have under the law or under this License. Upon request of
SANBAG, Licensee shall provide insurance coverage for possible claims or losses
covered by the indemnification and defense provisions of this License.
9.3. Claims against the Indemnitees by Licensee or its Personnel shall not limit the
Licensee's indemnification obligations hereunder in any way,whether or not such
claims against Indemnitees may result in any limitation on the amount or type of
damages, compensation, or benefits payable by or for Licensee or its Personnel under
workers' compensation, disability benefits or other employee benefits laws or
insurance.
9.4. The indemnification and defense obligations of Licensee set forth in this section shall
survive the termination and End Date of this License.
10. INSURANCE
10.1. SANBAG's Insurance. SANBAG may maintain insurance covering the Premises and
SANBAG's ownership and operation thereof in such types and amounts as it deems
necessary in its sole discretion. Such insurance shall be for the sole benefit of
SANBAG and under its sole control. Licensee's insurance policies shall provide
primary coverage to SANBAG; when any such policy issued to SANBAG provides
duplicate coverage or is similar in coverage, SANBAG's policy will be excess over
Licensee's policies.
10.2. Licensee's Insurance. Licensee, at its sole cost and expense, shall obtain and
maintain in full force and effect during the Term of this License insurance as required
by SANBAG in the amounts and coverages specified and issued by insurance
companies as described in, and meeting all other requirements set forth in,
Exhibit"B". SANBAG reserves the right, throughout the Term of this License,to
review and change the amount and type of insurance coverage it requires in connection
with this License or the Work to be performed on the Premises. Prior to (i) entering
the Premises or (ii) performing any Work or maintenance on the Premises, Licensee
shall furnish SANBAG with insurance endorsements or certificates evidencing the
existence, amounts and coverages of the insurance required to be maintained
hereunder. SANBAG shall not be liable for the payment of any premiums or
assessments for insurance required to be maintained by Licensee under this License.
Self-insurance is not permitted. However, SANBAG may, in its sole and absolute
discretion, permit self-insurance on a case by case, coverage by coverage, basis where
the Licensee has documented, to SANBAG's sole satisfaction, sufficient available
assets and/or available funds and sufficient legal security in those assets to assure
SANBAG that its risk is not greater than it would have been with acceptable insurance
coverage, and otherwise meeting SANBAG's self-insurance requirements. The
privilege to self-insure with respect to any coverage required to be maintained
hereunder may be granted or revoked by SANBAG at its sole and absolute discretion
at any time. Upon revocation of self-insurance privilege,Licensee shall immediately
provide all required insurances.
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10.3. Increases to Insurance. If any increase in the fire and extended coverage insurance
premiums paid by SANBAG is caused by Licensee's use and occupancy of the
Premises, or if Licensee vacates the Premises and causes any increase in such
premiums,then Licensee shall pay as an additional fee the amount of such increase to
SANBAG, and, upon demand by SANBAG,the amount required to correct at
Licensee's expense the cause of such disallowance,penalty or surcharge to the
satisfaction of the particular insurance authority.
11. MAINTENANCE AND REPAIR
Licensee, at Licensee's sole expense, shall during the term of this License maintain the
Improvements in a first-class condition, shall maintain the Premises in a good condition, free
from weeds, litter, debris, refuse or other nuisance, and shall perform all maintenance and clean-
up of the Premises and the Improvements as necessary to keep the Premises and the
Improvements in good order and condition,to SANBAG's sole satisfaction. If any portion of the
SANBAG Property, including improvements or fixtures, suffers damage by reason of the access
to or use of the Premises by Licensee or Licensee's employees, agents, customers, invitees,
licensees, consultants, and contractors (collectively, "Licensee's Parties"), including but not
limited to damage arising from any tests or investigations conducted upon the Premises, Licensee
shall, at its own cost and expense, immediately repair all such damage and restore the SANBAG
Property to as good a condition as before such cause of damage occurred. Repair of damage
shall include, without limitation, re-grading and resurfacing of any holes, ditches, indentations,
mounds or other inclines created by any excavation by Licensee or Licensee's Parties. Licensee
shall not perform any maintenance on railroad tracks and facilities without express prior written
approval of and direction from SANBAG or the railroads with valid operating authority over
SANBAG's lines and compliance with all applicable standards, specification and safety
requirements.
12. ALTERATIONS AND CONSTRUCTION
Except as otherwise provided herein, Licensee shall make no alterations, additions or
Improvements to the Premises without obtaining the prior written consent of SANBAG in each
instance. Any Work performed or caused to be performed by Licensee on the Improvements or
the Premises shall be performed(a) at Licensee's sole cost and expense; (b) in accordance with
any and all applicable permit requirements, laws, rules,regulations and safety requirements
(including SANBAG's rules and regulations), and (c) in a manner which is (i) equal to or greater
than the then applicable standards of the industry for such Work, and (ii) satisfactory to
SANBAG. Prior to commencement of any Work on the Premises, Licensee shall submit Work
plans to SANBAG for review and approval. Any such Work must be carried out pursuant to
Work plans approved in writing by SANBAG. In addition, Licensee shall provide SANBAG
with at least fourteen(14) calendar days' written notice prior to commencement of any Work on
the Premises or the Improvements, except in cases of emergency, in which event Licensee shall
notify SANBAG's representative personally or by phone prior to commencing any Work.
SANBAG shall have the right at any time and from time to time to post and maintain notices of
non-responsibility. Unless otherwise requested by SANBAG,upon completion of any Work,
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Licensee shall restore the SANBAG Property to its condition immediately preceding the
commencement of such Work.
13. CONTRACTORS; APPROVAL AND INSURANCE
Any contractors of Licensee performing Work on the Improvements or the Premises shall first be
approved in writing by SANBAG and acquire all required right of entry permits and
authorizations from SANBAG and any rail operator utilizing affected or adjacent railroad tracks.
With respect to such Work, Licensee shall,at its sole cost and expense, obtain and maintain in
full force and effect throughout the term of such Work, insurance, as required by SANBAG, in
the amounts and coverage specified on and issued by insurance companies as described in
Exhibit"B". Additionally, Licensee shall cause any and all of its contractors and subcontractors
which may (i) be involved with such Work, or(ii)may,for any reason,need to enter onto the
Premises, to obtain and maintain in full force and effect during the Term of this License, or
throughout the term of such Work(as applicable), insurance, as required by SANBAG, in the
amounts and coverage specified on, and issued by insurance companies as described in Exhibit
"B". SANBAG reserves the right, throughout the Term of this License, to review and change the
amount and type of insurance coverage it requires in connection with this License or the Work to
be performed on the Premises.
14. REIMBURSEMENT
Licensee agrees to reimburse SANBAG for all reasonable costs and expenses that SANBAG
incurs in connection with Work on or maintenance of the Premises or the Improvements,
including,but not limited to, costs incurred by SANBAG in furnishing any materials or
performing any labor, reviewing Licensee's Work plans and inspecting any Work, installing or
removing protection beneath or along SANBAG's tracks, furnishing of watchmen, flagmen and
inspectors as SANBAG deems necessary and such other items or acts as SANBAG in its sole
discretion deems necessary to monitor or aid in compliance with this License,protect the safety
of, and railway operations upon, its tracks and right-of-way, and to otherwise protect its interests.
The costs and expenses addressed in this Section 14 shall include all costs that SANBAG incurs
in complying with the Work or maintenance requirements of the railroads with valid operating
authority over SANBAG's lines.
15. LANDSCAPING
If required by SANBAG, then Licensee,at its sole cost and expense, shall install barrier
landscaping to shield the Improvements from public view. SANBAG shall have the right to
review and approve landscaping plans prior to installation. All landscaping activities shall be
done in accordance with the provisions of Section 12 above(Alterations and Construction).
16. MARKERS
Except as modified by any additional provisions attached at Exhibit"D", project markers in form
and size satisfactory to SANBAG, identifying the Improvements and their owner(s), shall be
installed and constantly maintained by and at the expense of Licensee at such locations as
SANBAG shall designate. Such markers shall be relocated or removed upon request of
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SANBAG without expense to SANBAG. Absence of markers in or about SANBAG Property
does not constitute a warranty by SANBAG of the absence of subsurface installations.
17. COMPLIANCE WITH LAWS
Licensee shall comply with all applicable federal, state and local laws,regulations,rules and
orders in its Work on, or maintenance, inspection, testing or use of,the SANBAG Property, and
shall furnish satisfactory evidence of such compliance promptly upon request of SANBAG.
Licensee shall obtain all required permits or leases required by any governmental authority for its
use of the Premises, at its sole cost and expense. Licensee shall comply with all SANBAG
policies, rules and regulations applicable to its properties. Subject to SANBAG's approval,
Licensee shall at its own cost and expense install and construct all physical improvements to or
needed to serve the Premises that are required by any federal, state or local building code or
other law or regulation applicable to the Premises, or that are made necessary by the nature of
Licensee's use of the Premises. Licensee shall promptly comply with all governmental orders
and directives for the correction, prevention and abatement of nuisances in or upon, or connected
with, the Premises, all at Licensee's sole expense.
18. SANBAG'S RIGHT OF ACCESS
18.1. Inspections. SANBAG shall have the right at any time (upon provision of reasonable
notice of inspection to Licensee) or in case of emergency(without notice), to inspect
the Premises in order to protect SANBAG's interests therein and to monitor
compliance with this License, including compliance with applicable federal, state and
local laws, regulations, rules and orders. Failure to submit to or cooperate with any
inspection may result in termination of the License.
18.2. Tests. If, in SANBAG's sole judgment, any installation on, or use or condition of the
Premises may have an adverse effect on the Premises or SANBAG Property, adjacent
property or SANBAG's operations, SANBAG shall be permitted to conduct any tests
or assessments, including but not limited to environmental assessments, of, on or about
the Premises, as it determines to be necessary or useful to evaluate the condition of the
Premises. Licensee shall cooperate with SANBAG in any tests or inspections deemed
necessary by SANBAG.
18.3. Costs. Licensee shall pay or reimburse SANBAG, as appropriate, for all reasonable
costs and expenses incurred due to tests, inspections or any necessary corrective Work,
maintenance and inspections thereafter. SANBAG may establish an inspection fee,
which may be changed from time to time, as part of an inspection program. The user
shall pay such fee for each such inspection. Failure to pay the fee may result in
termination of the License.
18.4. Sale or Lease of Premises. SANBAG may at any time place on or about the Premises
(including the Improvements) any ordinary"for sale" and"for lease" signs. Licensee
shall also permit SANBAG and its agents, upon request,to enter the Premises or any
part thereof, at reasonable times during normal business hours, to show the Premises to
prospective tenants,purchasers or mortgagees.
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19. ENVIRONMENTAL ASSESSMENT
Upon execution of this License, SANBAG may, in its sole discretion and if applicable, require
Licensee to retain a duly licensed environmental consultant acceptable to SANBAG who shall
perform an environmental assessment of the Premises and Licensee's and Licensee's Parties'
business activities and prepare a report on Licensee's and/or Licensee's Parties' compliance with
the provisions of this section. SANBAG may, if applicable,require Licensee to cause a similar
environmental assessment to be conducted on an annual basis, and/or upon or within one (1)year
after the expiration or earlier termination of this License, the cost of which shall be the sole
responsibility of Licensee. Licensee shall provide a copy of the report or reports from the
consultant(s) promptly to SANBAG upon receipt, and upon request shall promptly provide to
SANBAG a copy of all data, documents and other information prepared or gathered in
connection therewith.
20. HAZARDOUS/TOXIC MATERIAL USE AND INDEMNITY
20.1. Licensee shall operate and maintain the Premises in compliance with all, and shall not
cause or permit the Premises to be in violation of any,Environmental Law which is
now or may hereafter become applicable to Licensee or the Premises. As used herein,
"Environmental Law"means any federal, state or local environmental,health and/or
safety-related law,regulation, standard, decision of a court,permit or permit
conditions, currently existing or as amended or adopted in the future. Except for any
Hazardous Material expressly approved by SANBAG in writing as shown on Exhibit
"C", Licensee shall not cause or permit, or allow any of Licensee's Parties to cause or
permit, any Hazardous Material to be brought upon, stored,used, generated, treated or
disposed of on or about the SANBAG Property. Any Hazardous Material on the site
shall be stored, used, generated and disposed of in accordance with all applicable
Environmental Laws. As used herein, "Hazardous Material" means any chemical,
substance or material, including any mixture or solution, which by virtue of its
properties or effects is potentially harmful to health, safety or property, or which is
now or becomes in the future listed, defined or regulated in any manner under any
Environmental Law as a hazardous or dangerous material or substance.
20.2. Licensee shall indemnify, defend(by counsel acceptable to SANBAG) and hold
harmless the Indemnitees (as defined in Section 9, Indemnification) from and against
all loss, liability, claim, damage, cost or expense(including without limitation, any
fines,penalties,judgments, litigation expenses, attorneys' fees, and consulting,
engineering, and construction fees and expenses) incurred by Indemnitees as a result of
(a) Licensee's breach of any prohibition or provision of this section, or(b) any release
of Hazardous Material upon or from the Improvements or the Premises or
contamination of the SANBAG Property(i) which occurs due to the use and
occupancy of the Improvements or the Premises by Licensee or Licensee's Parties, or
(ii) which is made worse due to the act or failure to act of Licensee or Licensee's
Parties.
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20.3. The foregoing indemnity shall be effective regardless of any negligence(whether
active,passive, derivative,joint, concurring or comparative) on the part of
Indemnitees, unless caused solely by the gross negligence or willful misconduct of
Indemnitees; shall survive termination or End Date of this License; and is in addition
to any other rights or remedies which Indemnitees may have under the law or under
this License.
20.4. In addition, in the event of any release on or contamination of the Premises, Licensee,
at its sole expense, shall promptly take all actions necessary to clean up the affected
property (including the SANBAG Property and all affected adjacent property—
whether or not owned by SANBAG) and to return the affected property to the
condition existing prior to such release or contamination, to the satisfaction of
SANBAG and any governmental authorities having jurisdiction.
21. UNDERGROUND STORAGE TANKS
21.1.NEITHER LICENSEE NOR LICENSEE'S PARTIES SHALL INSTALL OR USE
ANY UNDERGROUND STORAGE TANKS ON THE PREMISES UNLESS
SPECIFICALLY APPROVED IN ADVANCE IN WRITING BY SANBAG, WHICH
APPROVAL MAY BE WITHHELD IN SANBAG'S SOLE DISCRETION.
21.2. At SANBAG's option, upon the termination of this License at any time and for any
reason, Licensee shall,prior to the effective date of such termination, remove and close
all underground storage tanks and related equipment and clean up and remove all
Hazardous Material in, on,under and about the Premises, in accordance with the
requirements of all Environmental Laws and to the satisfaction of SANBAG and any
governmental authorities having jurisdiction,and deliver to SANBAG a copy of a
certificate of closure issued for such tanks by the appropriate governmental authority.
22. CONDEMNATION
In the event all or any portion of the Premises shall be taken or condemned for public use by a
governmental agency or any other party having the power of eminent domain(including
conveyance by deed in lieu of or in settlement of condemnation proceedings), Licensee shall
receive compensation(if any) only for the taking and damage to the Improvements. Any other
compensation or damages arising out of such taking or condemnation awarded to Licensee are
hereby assigned by Licensee to SANBAG.
23. BROKER'S FEES
Licensee agrees to indemnify and hold SANBAG harmless from and against any claims by any
broker, agent or other person claiming a commission or other form of compensation by virtue of
having dealt with Licensee with regard to obtaining this License.
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24. SUBORDINATE RIGHTS
This License is subject and subordinate to the prior and continuing rights and obligation of
SANBAG,its successors and assigns, to use the SANBAG Property in the exercise of its powers
and in the performance of its duties, including those as a public transportation body, and to all
Bonds issued by SANBAG and their Indentures. Accordingly, there is reserved and retained
unto SANBAG, its successors, assigns and permittees, the right to construct,reconstruct, operate,
maintain and use existing and future rail tracks, facilities and appurtenances and existing and
future transportation, communication,pipeline and other facilities and appurtenances in,upon,
over,under, across and along the SANBAG Property or any portion thereof, and in connection
therewith the right to grant and convey to others, rights and interests to the SANBAG Property or
the Premises and in the vicinity of the Improvements, regardless of any effect or impact on the
Improvements. Licensee shall bear all costs and losses it incurs associated with any
modifications to the Improvements necessary to accommodate SANBAG's exercise of any right
hereunder. This License is subject to all licenses, leases, easements, restrictions,conditions,
covenants, encumbrances, liens, claims and other matters of title ("title exceptions") which may
affect the SANBAG Property now or hereafter. This License is executed and delivered by
SANBAG without any warranty of title, express or implied, and the words "grant"or"convey"
as used herein shall not be construed as a warranty of title or a covenant against the existence of
any such title exceptions.
25.ABANDONMENT
Should Licensee at any time abandon the use of the Improvements or the Premises, or any part
thereof, or fail at any time for a continuous period of ninety (90) days to use the same for the
purposes contemplated herein,then this License shall terminate to the extent of the portion so
abandoned or discontinued, and in addition to any other rights or remedies, SANBAG shall
immediately be entitled to exclusive possession and ownership of the portion so abandoned or
discontinued, without the encumbrance of this License.
26. GENERAL PROVISIONS
26.1. Notices. All notices and demands which either of the Parties is required to or desires
to give to the other shall be made in writing by personal delivery, by express courier
service or by certified mail postage prepaid, and addressed to the other Party at its
address set forth in the Basic License Provisions. Either of the Parties may change its
address for the receipt of notice by giving written notice thereof to the other Party in
the manner herein provided. Notices shall be effective only upon receipt by the Party
to whom notice or demand is given.
26.2. Governing Law. This License shall be governed by the laws of the State of
California.
26.3. Binding Effect. The terms, provisions and covenants and conditions contained in this
License shall apply to, inure to the benefit of, and be binding upon, the parties hereto
and upon their respective heirs, legal representatives, successors and permitted assigns,
except as otherwise herein expressly provided. If more than one person executes this
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License as Licensee,then each shall be jointly and severally liable for all obligations
of Licensee hereunder.
26.4.No Third Party Beneficiaries. This License is not intended by either party to confer
any benefit on any third party other than the constituent members of SANBAG,
including without limitations any broker, finder, or brokerage firm.
26.5. Severability. If any term,covenant, condition or provision of this License, or the
application thereof to any person or circumstance, shall to any extent be held by a
court of competent jurisdiction to be invalid,void or unenforceable, the remainder of
the terms, covenants, conditions,or provisions of this License, or the application
thereof to any person or circumstance, shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby.
26.6. Interest on Past-due Obligations. Except as expressly herein provided, any amount
due to SANBAG that is not paid when due shall bear interest, from the date due, at the
maximum rate then allowable by law. Such interest will be due SANBAG as it
accrues. Payment of such interest shall not excuse or cure any default by Licensee
under this License,provided,however, that interest shall not be payable on late
charges incurred by Licensee.
26.7. Captions. The captions included in this License are for convenience only and in no
way define, limit, or otherwise describe the scope or intent of this License or any
provision hereof, or in any way affect the interpretation of this License.
26.8. Survival of Obligations. All obligations of Licensee hereunder not fully performed as
of the expiration or earlier termination of the Term of this License shall survive the
expiration or earlier termination of this License, including without limitation all
indemnity and defense obligations, all payment obligations with respect to Fees and all
obligations concerning the condition of the SANBAG Property and the Improvements.
26.9. Waiver of Covenants or Conditions. The waiver by either Party of any term,
covenant, agreement or condition under this License shall not invalidate this License,
nor shall it be considered a waiver by it of any other covenant or condition or of the
same covenant or condition in another instance. To the extent patterns of practice
between the Parties are inconsistent with the terms of this License, such patterns of
practice shall not waive in part or in full SANBAG's right to insist upon strict
accordance with any of the provisions of this License. The subsequent acceptance of
payments hereunder by SANBAG shall not be deemed to be a waiver of any preceding
breach by Licensee of any provisions,covenant, agreement or condition of this
License, other than the failure of Licensee to pay the particular payment so accepted,
regardless of SANBAG's knowledge of such proceeding breach at the time of
acceptance of such payment.
26.10. Effective Date/Nonbinding Offer. Submission of this License for examination or
signature by Licensee does not constitute an offer of or option for a license, and it is
not effective as a license or otherwise until executed and delivered by both SANBAG
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and Licensee. Each individual executing this License on behalf of SANBAG or
Licensee represents and warrants to the other Party that he or she is authorized to do
so.
26.11. Assignment. This License and the license granted herein are personal to the
Licensee. Licensee shall not assign or transfer(whether voluntary or involuntary) this
License in whole or in part, or permit any other person or entity to use the rights or
privileges hereby conveyed, without the prior written consent of SANBAG, which
may be withheld in SANBAG's sole and absolute discretion, and any attempted act in
violation of the foregoing shall be void and without effect and be a material breach of
this License, which gives SANBAG the right to immediately terminate this License
and seek all other available remedies for breach.
26.12. Entire Agreement, Amendments. This License, including all attached Exhibits,
constitutes the entire agreement between the Parties and supersedes all prior verbal or
written agreements and understandings between the Parties with respect to the items
set forth in this License. The Parties each acknowledge that no representations,
inducements,promises or agreements, oral or written, have been made by either
SANBAG or Licensee, or anyone acting on behalf of SANBAG or Licensee, other
than those contained in this License. No amendments, changes, revisions, or
discharges, at any time in whole or in part, of this License shall be binding upon the
Parties unless they are in writing and executed by the Parties.
26.13. Attorneys' Fees. If either SANBAG or Licensee commences or engages in, or
threatens to commence or engage in, an action by or against the other party arising out
of or in connection with this License or the Premises, the prevailing party shall be
entitled to have and recover from the losing party reasonable attorneys' fees and other
costs incurred in connection with the action, preparation for such action, any appeals
relating thereto and enforcing any judgments rendered in connection therewith. If
SANBAG becomes involved in any action, threatened or actual,by or against anyone
not a party to this License, but arising by reason of or related to any act or omission of
Licensee or Licensee's Parties, Licensee agrees to pay SANBAG's reasonable
attorneys' lees and other costs incurred in connection with the action,preparation for
such action, any appeals relating thereto and enforcing any judgments rendered in
connection therewith.
26.14. Nondiscrimination. Licensee certifies and agrees that all persons employed by
Licensee and Licensee's affiliates, subsidiaries, or holding companies, and any
contractors retained by Licensee with respect to the Premises, are and shall be treated
equally without regard to or because of race, religion, ancestry,national origin, or sex,
and in compliance with all federal and state laws prohibiting discrimination in
employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil
Rights Act;the Cartwright Act; and the California Fair Employment Practices Act.
26.15. Further Acts. Licensee agrees to perform any further acts and to execute and
deliver in recordable form any documents which may be reasonably necessary to carry
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out the provisions of this License, including, at SANBAG's sole discretion, the
relocation of the Improvements and the license granted hereby.
26.16. Time of Essence. Time is of the essence for this License.
26.17. Certificates. Licensee agrees from time to time within ten (10) days after request
of SANBAG,to deliver to SANBAG, or SANBAG's designee, all financial statements
for the previous three(3) fiscal years of Licensee, and an estoppel certificate stating
that this License is in full force and effect, the date to which all applicable payments
have been paid, the unexpired Term of this License and such other matters pertaining
to this License as may be requested by SANBAG.
26.18. Security Measures. Licensee hereby acknowledges that the payments payable to
SANBAG hereunder do not include the cost of guard service or other security
measures, and that SANBAG shall have no obligation whatsoever to provide same.
Licensee assumes all responsibility for the protection of Licensee, Licensee's Parties
and their property from acts of third parties.
26.19. Performance Under Protest. If at any time a dispute shall arise as to any amount
or sum of money to be paid by one Party to the other under the provisions hereof, the
Party against whom the obligation to pay the money is asserted shall have the right to
make payment"under protest" and such payment shall not be regarded as a voluntary
payment, and there shall survive the right on the part of said party to institute suit for
recovery of such sum. If it shall be adjudged that there was no legal obligation on the
part of said Party to pay such sum or any part thereof, said Party shall be entitled to
recover such sum or so much thereof as it was not legally required to pay under the
provisions of this License.
26.20. No Recording. Licensee shall not record or permit to be recorded in the official
records of the county where the Premises are located,this License, any memorandum
of this License or any other document giving notice of the existence of this License or
the license granted hereby.
26.21. Flagmen. Where applicable, as a part of or in addition to all other safety
obligations, Licensee shall maintain, at Licensee's expense, competent flagmen to
protect and control movement of vehicles and equipment of Licensee or any other user
of the Premises while upon the Premises, consistent with any applicable laws and
regulations regarding work protection, including the rules and policies of SANBAG
and/or any railroad operator having rights to utilize any affected or adjacent railroad
tracks.
26.22. Additional Provisions. Those additional provisions set forth in Exhibit"D", if
any, are hereby incorporated by this reference as if fully set forth herein. To the extent
that any additional provisions in Exhibit"D" conflict with the provisions contained in
this Part II, Standard License Provisions, the provisions in Exhibit "D" shall control.
15-1001305 License Agreement
Form Approved 4/21/15
I9
Exhibit "A"
Premises
[To Be Inserted]
15-1001305 License Agreement
Form Approved 4/21/15
1
EXHIBIT "A"
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APN: 0169-251-04, 0171-022-12
Date 4/2312015 Contract Number 15-1001305 Governments
Branch/Line Mile Post Lessee/Licensee
REDLANDS
8.1 CITY OF REDLANDS SAN BAG
County Thomas Guide Grid Epic File Number WorkingTogether
SAN BERNARDINO 608A7 RRNDDD7747
Area City use SAN BERNARDINO
1,000 Sq, Ft. REDLANDS 8"WATER PIPELINE IN A 18"STEEL CASING ASSOCIATED GOVERNMENTS
Map Reference Scale Cross Streets 1170 W. 3rd Street, 2nd Floor
RND 3 1"=100' NEW YORK ST.AND REDLANDS BLVD. San Bernardino, CA 92410-1715
Exhibit"B"
INSURANCE REQUIREMENTS
The holder of the permit, license or lease to which this Exhibit B is attached is hereinafter
referred to as"User", and shall procure and maintain, for the duration of the contract, insurance
against claims for injuries to persons or damages to property that may arise from, or in
connection with,the use of SANBAG property hereunder by the User, its agents,representatives,
employees or subcontractors as follows:
Scope of Coverages and Minimum Limits of Insurance (Check all applicable boxes)
User shall maintain and provide proof of insurance coverage at least as broad as and with
limits no less than the following:
• General Liability: Coverage: Insurance Services Office Commercial General
Liability coverage (occurrence form CG 0001). Minimum limits: $1,000,000 per
occurrence for bodily injury,personal injury and property damage. If Commercial
General Liability Insurance or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to this project/location or
the general aggregate limit shall be twice the required occurrence limit.
Z Excess and/or Umbrella insurance coverage shall be in excess over the General
Liability,Auto Liability&Workman's Compensation of:
® $5,000,000 ❑ $10,000,000
AXI Automobile Liability: Insurance Services Office Form No. CA 0001 (Ed. 1/87) covering
Automobile Liability, code 1 (any auto). $1,000,000 per accident for bodily injury and
property damage.
XI Worker's Compensation insurance as required by the State of California and Employer's
Liability Insurance. $1,000,000 per occurrence for bodily injury or disease.
❑ Course of Construction: Providing coverage for"all risks"of loss in the completed value
of the project.
❑ Property Insurance against all risks of loss to any tenant improvements or betterments.:
Full replacement cost with no coinsurance penalty provision.
❑ Contractors Pollution Liability with coverage for:
a. bodily injury, sickness, disease,mental anguish or shock sustained by any person,
including death;
b. property damage including physical injury to or destruction of tangible property
including the resulting loss of use thereof, clean-up costs, and the loss of use of
tangible property that has not been physically injured or destroyed;
c. defense, including costs, charges and expenses incurred in the investigation,
adjustment or defense of claims for such compensatory damages; and
d. losses caused by pollution conditions that arise from the operations of the
contractor described under the scope of services of this contract.
S1,000,000 per occurrence$2,000,000 annual aggregate.
(l Railroad Protective Liability Insurance: Coverage: Insurance Services Office Form
Railroad Protective Liability, AAR-AASHTO (ISO/RIMA), in the name of SANBAG
15-1001305 Exhibit B-Insurance Requirements
Form Approved 7/2/14
Exhibit "B"
with respect to the operations they or any of their subcontractors perform on the
Property. Minimum Limits: $2 million per occurrence, combined single limit,for
coverage and for losses arising out of injury to or death of all persons and for physical
loss or damage to or destruction of Property, including the loss of use thereof. A $6
million annual aggregate shall apply. If providing coverage on the London claims-
made form, the following provisions shall apply:
a. The limits of liability shall be not less than$3 million per occurrence, combined
single limit. A $9 million aggregate may apply.
b. Declarations item 6, extended claims made date, shall allow an extended claims
made period no shorter than the length of the original policy period plus one year.
c. If equivalent or better,wording is not contained in the policy form,the following
endorsement must be included:
It is agreed that "physical damage to Property" means direct and accidental
loss of or damage to rolling stock and their contents,mechanical construction
equipment or motive power equipment, railroad tracks, roadbed, catenaries,
signals, bridges or buildings.
In cases of low hazard activity and insignificant risk to rail facilities, and if the
exposure to the track is physically separated by a building,floor or a continuous fence
(no thoroughfares) and the employees of the Contractor are explicitly notified,
trained, and supervised such that they are not permitted to have any contact with the
track or its related improvements, the Railroad Protective Liability Insurance
requirement may be waived by SANBAG, or its designated representative, in
SANBAG's sole and absolute discretion, where SANBAG's agreements and
obligations with rail operators allow it.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by SANBAG. At
the option of SANBAG, either: the insurer shall reduce or eliminate such deductibles or self-
insured
elfinsured retentions as respects SANBAG, its officials, employees, members, affiliated entities
(including the San Bernardino Associated Government Joint Powers Authority; the San
Bernardino County Transportation Commission,the San Bernardino County Transportation
Authority, the San Bernardino County Congestion Management Agency, and the San Bernardino
County Service Authority for Freeway Emergencies), contractors, consultants, authorized rail
operators and agents ("Related Parties"); or the User shall procure a bond guaranteeing payment
of losses, and related investigations, claim administration and defense expenses.
Other Insurance Provisions
1. The general liability and automobile liability policies are to contain, or be endorsed to
include, the following provisions:
a. SANBAG and Related Parties are to be covered as insured parties as respects: liability
arising out of activities performed by or on behalf of the User; products and completed
operations of the User;premises owned, occupied or used by the User; and automobiles
owned, leased, hired or borrowed by the User. The coverage shall contain no special
limitations on the scope of protection afforded to SANBAG, or its Related Parties.
15-1001305 Exhibit B-Insurance Requirements
Form Approved 7/2/14
Exhibit"B"
b. For any claims related to this project,the User's insurance coverage shall be primary
insurance as respects SANBAG, and its Related Parties. Any insurance or self-insurance
maintained by SANBAG, or its Related Parties shall be excess of the User's insurance
and shall not contribute with it.
c. Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to SANBAG and its Related
Parties.
d. The User's insurance shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurer's liability.
e. Each insurance policy required by this clause shall be endorsed to state that coverage
shall not be suspended, voided, canceled by either a party, or reduced in coverage or in
limits, except after thirty(30) days' prior written notice by certified mail,return receipt
requested, has been given to SANBAG.
2. All insurance policies, including without limitation, Workers' Compensation and Employer's
Liability policies, shall contain or be endorsed to include a waiver of subrogation in favor of
SANBAG and its Related Parties.No insurance coverage provided shall prohibit User or
User's employees or agents from waiving the right of subrogation prior to a loss or claim.
User hereby waives all rights of subrogation against SANBAG and its Related Parties.
3. Additional Insured: All policies, except for Employer Liability/Worker's Compensation and
Professional Liability policies, shall contain endorsements naming SANBAG and its Related
Parties as additional insured parties with respect to liabilities arising out to the performance
of Work hereunder. The additional insured endorsements shall not limit the scope of
coverage for SANBAG or its Related Parties to vicarious liability but shall allow coverage
for SANBAG and its Related Parties to the full extent provided by the policy.
4. Course of construction policies shall name SANBAG as loss payee.
Acceptability of Insurers
Insurance is to be placed with insurers admitted in California and with a current A.M. Best's
rating of no less than A:VII, unless otherwise approved by SANBAG.
Verification of Coverage
User shall furnish SANBAG with original certificates of insurance with endorsements as
verifying coverage required by this Exhibit B. All documents are to be signed by a person
authorized by that insurer to bind coverage on its behalf. All documents are to be received and
approved by the SANBAG before Work commences. As an alternative, User may provide
complete, certified copies of all required insurance policies, including endorsements effecting the
coverage required by these specifications.
Contractors and Subcontractors
User shall include all contractors and subcontractors as insured parties under its policies or
require certificates and endorsements for each contractor and subcontractor. All coverages for
contractors and subcontractors shall be subject to all of the requirements stated herein. The
administration of insurance compliance of contractors and subcontractors shall be subject to
audit review by SANBAG.
15-1001305 Exhibit B-Insurance Requirements
Form Approved 7/2/14
Exhibit"B"
INSURANCE REQUIREMENTS
15-1001305 License Agreement
Corm Approved 4/21/15
1
Exhibit"C"
Permitted Hazardous Material
No hazardous material is permitted to be used or stored on Premises.
15-1001305 License Agreement
Form Approved 4/21/15
1
Exhibit"D"
Additional Provisions
[To Be Inserted]
SANBAG License Agreement
Form Approved 7/2/34 I
Exhibit "D"
ADDITIONAL REQUIREMENTS
The following Additional Requirements are imposed on the Tenant/Licensee/Permittee and all of
its contractors, subcontractors, employees, laborers or other persons performing any work upon
SANBAG property on behalf of Tenant/Licensee/Permittee, and are made part of the terms of
the Lease/License/Permit to which this Exhibit D is attached("Agreement").
As used hereinafter,the term"Contractor" shall include the Tenant/Licensee/Permittee and each
and every one of its contractors, subcontractors, employees, laborers, agents or other persons
performing any work upon SANBAG property on behalf of Tenant/Licensee/Permittee; and the
term "railroad operator" or"operating railroad" shall mean Southern California Regional Rail
Authority (SCRRA), Burlington Northern Santa Fe Railroad Railway Company(BNSF) and/or
any other railroad company or rail carrier having operating rights over rail lines owned or
controlled by SANBAG.
Contractor shall fully comply with each and every one of the Additional Requirements below
which is in any way applicable to the type of use, construction, installation or facility allowed
under the Contractor's Agreement and approved by SANBAG as required thereunder
("Permitted Use"). The inclusion of an Additional Requirement below that is not in any way
applicable to the Contractor's Permitted Use shall not imply any right,permission or consent to
expand the Permitted Use in any way.
1. Contractor agrees to execute and deliver to each railroad operator prior to commencing
any work within the rail right-of-way, a railroad Right of Entry Agreement which will
include agreement to abide by each railroad operator's rules and requirements for
construction on railway property. Contractor shall secure approval from SANBAG and
each railroad operator of the design of any structures and facilities prior to commencing
work on their construction or installation.
2. Contractor will acquire and comply with any and all additional permits required by the
railroad operator(s),affected public utilities and/or by any government agency having
jurisdiction. Any permit fees, inspection fees, flagging fees, or costs associated with the
use or maintenance of the Premise by any governmental agency, department, or
organization, and any labor expenses for the installation or maintenance of any permitted
improvements are the Contractor's sole responsibility. Fully conformed copies of all
permits are to be provided to SANBAG. Additional permits required of the Contractor
may include but are not limited to encroachment permits, Storm Water Pollution
Prevention Plans, environmental permits,temporary use permits,regulatory permits and
third party utility permits. Contractors shall have all original executed agreements and
permits on hand while on site and will present them on demand of representative of
SANBAG and/or the railroad operator(s). Prior to the commencement of work, the
contractor shall submit to SANBAG for review and approval, a description of the work
process including a detailed schedule of all work activities to be carried out on SANBAG
property.
15-1001305 Exhibit D—Additional Requirements
Form Approved 7/2/14
[For convenience only, SANBAG provides the following telephone numbers for
inquiries and information: SCRRA's Right of Way Engineers Office -(909) 394-
3418;BNSF's Roadmaster Office- (909)386-4061]
3. Contractor at its sole cost and expense shall obtain and maintain, in full force and effect,
insurance, as required by SANBAG and the railroad operator(s) during the entire
construction period. The Contractor shall furnish copies of the insurance certificates to
SANBAG and all affected railroad operators.
4. Contractor agrees to comply with instructions of SANBAG and each railroad operator's
Employee-In-Charge (EIC) and other representatives in relation to the proper manner of
protection of the tracks and the traffic moving theron, pole lines, signals and other
property of SANBAG or its member agencies, tenants or licensees at or in the vicinity of
the work, and shall perform the work at such times as not to endanger or interfere with
safe and timely operations of railroad operators or of SANBAG's track and other
facilities.
5. Contractor will call the appropriate operating railroad to arrange for flagging services a
minimum of fifteen (15)working days prior to beginning work. Although every effort is
made to accommodate schedules, prior notification does not guarantee the availability of
protective/flagging services for the proposed date of work. The SCRRA/BNSF
flagman/EIC has sole authority to protect safe railroad operations and infrastructure,
therefore, only they and their representatives are permitted to perform flagging operations
within the railroad right-of-way. At all times the contractor shall follow the
flagman/EIC's direction. Contractor's work may not proceed in the absence of a flagman
in accordance with applicable rules. At no time shall any contractor be permitted to cross
any track or place or maintain any personnel or equipment within the railroad right-of-
way without the permission of the railroad flagman.
SCRRA's Flagging Office (213) 305-8424
BNSF's Flagging Office (909) 386-4061
6. Prior to the start of construction and at the contractor's expense, all personnel including
subcontractors and third parties shall complete SCRRA's/BNSF's Third Party Safety
Training course, which is required for all work near or within the railroad right-of-way,
Evidence of training must be supplied upon request of SANBAG and its representatives.
No work may commence on the railroad right-of-way until this training has been
completed. The contractor shall make the necessary arrangements for each equipment
operator to have constant and direct radio contact with their foreman. The foreman will
in turn have constant and direct contact with the SCRRA/BNSF flagman/EIC.
7. Contractor shall be responsible for the location and protection of any and all surface, sub-
surface, and overhead lines, structures and improvements. Contractor shall not damage,
destroy or interfere with any existing encumbrances, licenses and rights (whether public
or private), granted upon or relating to the railroad right-of-way. It shall be the
15-1001305 Exhibit D—Additional Requirements
Form Approved 7/2/14
Contractor's responsibility to contact Underground Alert and locate all underground
facilities prior to the commencement of construction. At the same time,the contractor
shall notify the operating railroad for signal and communications cables and conduits
mark-outs. Contractor shall obtain permission from the owners of any fiber optic, gas,
electrical, water, oil or other lines which may be impacted by work on or any use of the
Premises by Contractor.
SCRRA Signal Department(909) 592-1346
BNSF Signal Department (909) 386-4051
8. In case of signal emergencies or grade crossing problems,the contractor shall call
the following emergency numbers.
SCRRA Signal Emergency Department (888) 446-9721
BNSF Signal Emergency Department (909) 386-4051
9. Contractor shall prepare and submit traffic control plan for SANBAG/SCRRA approval
for projects that will affect vehicular traffic at an existing highway-rail grade crossing.
10. If SANBAG or any of its associated rail entities or railroad operators deem it necessary in
the future, to modify, or to build additional, track or tracks or other facilities in
connection with the operation of its railroad, at the request of SANBAG, contractor shall
modify, at its own expense, any or all of its permitted facilities to conform to the rail
facilities.
11. Both Contractor and SANBAG acknowledge that the Premises is Licensed in"AS IS"
condition and any track removal, grading,paving and fencing as may be necessary or
required to meet Contractor's needs will be the sole responsibility and at the sole cost of
the Contractor and subject to SANBAG's and any affected operating railroad's prior
review and approval,which may be withheld in SANBAG's or the affected operating
railroad's sole and absolute discretion. SANBAG or the affected operating railroad may
require that any track removal and/or other work within the right-of-way be done by
SANBAG or the railroad operator, respectively, but all such work shall remain at the sole
cost of the Contractor, who may be required to deposit the estimated cost plus 25%in
advance of the work, subject to refund or additional charge at the conclusion of the work.
No permanent structures may be constructed on the premises without SANBAG's prior
written approval. Contractor will be responsible for the removal of any or all permitted
improvements upon termination of Agreement as directed by SANBAG.
12. Contractor shall pay for any and all utilities for its benefit, security and use.
13. SANBAG makes no warranties as to the suitability of the location for Contractor's
intended use, and Contractor assumes all risks as to environmental compliance,zoning,
visibility, or any other factors which may affect Contractor's intended use of the
premises.
15-1001305 Exhibit D—Additional Requirements
Form Approved 7/2/14
14. Boring of carrier or direct burial utilities by directional boring methods is prohibited.
15. Signs are not permitted on or along the perimeter of the Premises unless such signs were
requested and approved under Contractor's original proposal and covered by the required
insurance. The contractor shall install permanent signs identifying the location of pipes
at the edge of the railroad right-of-way unless within a public grade crossing.
16. Contractor shall not bring upon or use any import soil on the Premises in conjunction
with any purposes allowed under this Agreement, until said import soil has been
laboratory tested by a certified hazardous waste testing laboratory and the test results
have been approved by SANBAG. Additionally, any soil currently existing on the
Premises may not be spread on the Premises unless and until it is characterized as clean
coil to the reasonable satisfaction of SANBAG. All soil piles are to be placed on a
barrier to prevent intermingling with surface soils.
17. Contractor shall keep the Premises free and clear of weeds, trash, vegetation,
unauthorized vehicle parking and graffiti and from occupancy by transients/homeless
persons or individuals. Contractor shall by fully responsible for all maintenance and
maintenance of adjoining SANBAG property that is required or necessary in connection
with Contractor's use of Premises.
18. Prior to commencement of construction, the contractor shall submit to SANBAG/
SCRRA a plan showing the proposed method of casing installation, construction access,
stockpile locations, SWPPP control measures, fencing type and location and a milestone
schedule.
19. For pipelines carrying flammable or hazardous materials,the contractor shall adhere to
special conditions stated in the Right of Entry (ROE)Agreement.
20. The jacking and receiving pits shall be constructed outside of the railroad right of way
unless shown on the SANBAG approved plans and shall not be located between any track
and the automatic signal gate arms. The contractor shall layout the proposed jack and
bore pits prior to the commencement of work. Only after the SANBAG/SCRRA
inspector has approved the layout will the Contractor be allowed to begin work.
21. Contractor shall construct a temporary fence along the railroad right—of-way, or along the
edge of pits closest to the track, on both sides of the pit, extending 50-feet in both
directions from the pit, and measuring a minimum of 6-feet high. Fences are not required
for work at grade crossings. Contractor shall pave the Premises area with asphalt or
concrete, when requested, around the entire perimeter of the property as described in the
Agreement in Part I and Exhibit"A". Contractor shall be responsible for total expense of
fencing and asphalt.
22. All jack and bore operations within the railroad right-of-way shall be performed
continuously on a 24-hour basis until work is completed with a SCRRA/BNSF flagman
and SCRRA/BNSF inspector present at all times. Should work begin without the
15-1001305 Exhibit D—Additional Requirements
Form Approved 7/2/14
flagman and inspector present, the work will be halted and any casing installed will be
abandoned in place, pressure grouted full, and capped to the satisfaction of SANBAG.
23. The contractor shall submit to SANBAG/SCRRA for review, drawings and calculations
for any shoring that may affect or be influenced by the railroad tracks. All shoring
designs shall comply with the requirements of, and be approved by, SANBAG and/or the
affected operating railroad. All drawings and calculations shall be signed and stamped by
a California licensed Civil or Structural Professional Engineer.
24. Prior to commencement of work,the contractor shall submit to SANBAG/SCRRA for
review, load calculations for the proposed jacking casing with applied load as defined by
Cooper E-80 with a 50%added impact load. The calculations shall be signed and
stamped by a California licensed Civil or Structural Professional Engineer.
25. Should ground water or loose or unstable soils conditions be encountered during
construction, the contractor shall immediately stop work,notify the railroad flagman,
provide necessary structural support to track and other railroad structures, and notify the
affected operating railroads and SANBAG. It shall be the responsibility of the contractor
to make necessary corrections to the construction process to allow for said conditions.
26. All underground utilities under railroad tracks shall be encased in a larger pipe or conduit
called the "casing pipe". Said casing pipe shall be installed across the entire width of the
railroad right-of-way and shall extend beyond the right of way a minimum of 10-feet.
The top of the casing shall have a minimum depth of 6-feet below the top of tie and a
minimum depth of 5-feet below ground surface including bottom of ditches and other low
points within the railroad right-of-way. All ends of the casing pipe shall be sealed unless
otherwise authorized by SANBAG. Casing and carrier pipes shall be constructed to
prevent leakage of any substance. When casing pipes are sealed at each end,vent pipes
shall be installed. All casing pipes shall be installed with a minimum slope of 1%.
Installation of casing pipes by open trenching is prohibited.
27. Abandoned pipes shall be removed from their casing pipes. The empty casing pipe shall
be pressure grouted full for the entire length of the pipe. Should there be no casing pipe;
the abandoned pipe shall be pressure grouted full the entire length of the pipe. A
SANBAG/ SCRRA inspector must be present during the grouting process.
28. Casing jacking shall adhere to the following requirements:
a. This method shall be in accordance with the American Railway Engineering and
Maintenance of Way Association recommended practices,Volume 1, Chapter 1,
Part 4, "Earth Boring and Jacking Culvert Pipe Through Fills." This operation
shall be conducted without hand-mining ahead of the pipe and without the use of
any type of boring, auguring,or drilling equipment.
b. Bracing and backstops and jacks shall be designed and used with sufficient rating
so that the jacking can progress without stoppage (except for adding lengths of
pipe)until the leading edge of the pipe reaches the receiving pit.
15-1001305 Exhibit D—Additional Requirements
Form Approved 7/2/14
c. During jacking, an earth plug 1.5 times the diameter of the casing shall be
maintained at all times. Jacking operations shall be continuous on a non-stop, 24-
hour per day basis until the jacking operation is completed.
29. Casing boring shall adhere to the following requirements:
a. This method consists of pushing the pipe into the fill with a boring auger rotating
within the pipe to remove the spoil. When augers or similar devices are used for
casing replacement, the front of the pipe shall be provided with mechanical
arrangements or devices that will positively prevent the auger from leading the
casing so that there will be no unsupported excavation ahead of the casing. The
auger and cutting head arrangement shall be removable from within the pipe in
the event an obstruction is encountered. The over-cut by the cutting head shall
not exceed the outside diameter of the pipe by more than one-half inch. The face
of the cutting head shall be arranged to provide reasonable obstruction to the free
flow of soft or poor material.
b. The use of water or other liquids to facilitate casing placement and/or spoil
removal is prohibited.
c. Plans and descriptions of the auger stop arrangement to be used shall be submitted
to SANBAG/ SCRRA for approval prior to commencement of work.
d. Any method which employs simultaneous boring and jacking or drilling and
jacking for pipes over 8-inches in diameter that does not adhere to the above
requirements will not be permitted. For casings 8-inches and smaller in diameter,
augering or boring without the same requirements may be considered if approved
by SANBAG/SCRRA.
30. If an obstruction is encountered during installation of the casing pipe that will stop the
forward action of the pipe, and it becomes evident that it is impossible to advance the
pipe, operations will cease and the pipe shall be abandoned in-place and pressure grouted
full before continuing with work. Location, length, and depth of abandoned casing pipes
and carrier pipes shall be shown on the as-built drawings.
31. Bored or jacked installations shall have a bored-hole diameter essentially the same as the
outside diameter of the casing plus the thickness of the protective coating. If voids
should develop or if the bored-hole diameter is greater than the outside diameter of the
casing pipe, plus coating, by more than approximately 1-inch, grouting or other methods
as approved by SANBAG/SCRRA shall be employed to fill such voids.
32. Pressure grouting of the soils before or during jacking or boring may be required to
stabilize the soil, control water,prevent loss of material, and prevent settlement or
displacement of the ground and/or tracks. Grout shall be cement, chemical or other
special injection material selected to accomplish the necessary stabilization. The
grouting contractor shall be a specialist in the field with a minimum of 5-years
continuous experience of successfully grouting soil. Materials to be used and the method
of injection shall be prepared by a California licensed Geotechnical Engineer, or by an
experienced and qualified company specializing in this work and submitted for approval
15-1001305 Exhibit 13--Additional Requirements
Form Approved 7/2/14
by SANBAG/SCRRA prior to the commencement of work. Proof of experience and
competency shall accompany the submission.
33. When water is known or expected to be encountered, pumps of sufficient capacity to
handle the flow shall be maintained at the site and be constantly attended operationally on
a 24-hour per day basis until the SANBAG/SCRRA inspector determines their operation
can be safely halted. When dewatering, close observation shall be maintained to detect
any settlement or displacement of track, ground, or facilities.
34. The dewatering system shall lower and maintain the ground water level a minimum of 2-
feet below the invert at all times during construction by utilizing well points,vacuum
well points, or deep wells to prevent the inflow of water or water and soil into the
heading. Ground water observation wells may be required to demonstrate that the
dewatering requirements are being complied with.
35. The proposed methods of dewatering shall be submitted to SANBAG/SCRRA prior to
the commencement of work. The discharge from the dewatering operations in the
vicinity of the railroad shall be carefully monitored. Should excessive fine soils particles,
pollutants, or hazardous materials or fluids be observed at any time during the dewatering
process,the dewatering shall be halted immediately and cannot resume until the
unsatisfactory condition is remedied to the satisfaction of the SANBAG/SCRRA
inspector.
36. All backfilling shall be at 90% relative dry compaction. For areas within or that affect
the railroad right-of-way,the contractor shall submit a compaction report prepared by a
California licensed Geotechnical Professional Engineer prior to release of any deposited
fund balance.
37. The Contractor shall remove all temporary facilities constructed on the railroad right-of-
way, debris, and other items not originally at the site prior to construction and shall notify
SANBAG and any affected operating railroad that all construction has been completed.
After as-builts have been received, SANBAG inspects the construction site and signs-off
the work, SANBAG will release any unused deposit funds it holds. Contractor shall be
responsible to arrange refunds due from any affected operating railroads.
38. A minimum of five feet(5') clearance is required above signal and communication lines
for overhead crossings.
39. Poles for any use within the railroad right-of-way must be located fifty-feet (50') out
from the centerline of the railroad main,branch and running tracks, CTC sidings, and
heavy tonnage spurs. Pole locations adjacent to industry track must provide at least a ten
foot(10') clearance from the centerline of track,when measured at right angles. If
located adjacent to curved track,then said clearance must be increased at the rate of 1.5
inches per degree of curved track.
15-1001305 Exhibit D—Additional Requirements
Form Approved 7/2/14
40. Regardless of the voltage, un-guyed poles shall be located a minimum distance from the
centerline of any track, equal to the height of the pole above the ground—line plus ten feet
(10'). If guying is required, the guys shall be placed in such a manner as to keep the pole
from leaning/falling in the direction of the tracks.
41. Poles must be located a minimum distance from the railroad signal and communication
line equal to the height of the pole above the ground-line or else be guyed at right angles
to the lines. High voltage towers (34.5 kV and higher) must be located off railroad right-
of-way.
42. Grade crossings or temporary grade crossing must not be installed under or within five-
hundred feet (500') of the end of any railroad bridge, or three hundred feet (300') from
the centerline of any culvert or switch area.
43. For overhead crossings, complete spanning of the property is encouraged with supportive
structures and appurtenances located outside of the railroad property. For electric supply
and communication lines, normally the crossing span shall not exceed one-hundred fifty-
feet (150') with adjacent span not exceeding 1.5 times the crossing span length. For
heavier type construction, longer spans will be considered.
44. l'o ensure that overhead crossings are clear from contact with any equipment passing
under such wires, communication lines shall be constructed with a minimum clearance
above top of rail of twenty-eight feet (28').. Electric lines must have a florescent ball
marker on low wire over centerline track.
45. The utility owner will label the poles closest to the crossing with the owner's name and
telephone number for emergency contact.
46. Overhead flammable and hazardous material lines are prohibited.
47. Because inductive interference from certain types of lines have the potential to disrupt the
railroad signal and communication systems causing failures with the signals,
communication, and at-grade crossing warning devices, . SANBAG may require that an
inductive coordination study be performed prior to approval of the permitted use at the
expense of the utility owner for proposed electrical lines crossing tracks.
48. Joint-use construction is encouraged at locations where more than one utility or type of
facility is involved. However, electricity and petroleum, natural gas or other flammable
materials shall not be combined.
IFi4SANBAG
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Initials
15-1001305 Exhibit D—Additional Requirements
Form Approved 712/1.1