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Home My WebLink AboutContracts & Agreements_212-2015_CCv0001.pdf SANBAG Contract No.: 15-1001300 Epic File No.: RRND007 741 Subdivision: Redlands Milepost(s): 9.6-9.8 (Sylvan Park) SANBAG Contract No. 15-1001300 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 AUTHORITY("SANBAG"), and, CITY OF REDLANDS, a corporate municipality("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. Panties. SANBAG's Address: 1170 West 3d Street, 2nd Floor San Bernardino, California 92410-1715 Licensee's Address: CITY OF REDLANDS 35 Cajon Street, Suite 15A Attn: Chris Diggs Telephone: (909) 798-9698 E-mail: cdig`gs@cityofredlands.org 15-1001300 License Agreement Form Approved 4/21/15 i 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: Milepost 9.6-9.8 on Park Avenue in the City of Redlands Approximate area: 16,961.2 square feet;0.31 acres; Park and stone retaining wall area 15,431 Sq. Ft., Ingress and Egress 1,530 Sq. Ft. See mag/diagram in Exhibit"A". Description and Dimensions of Premises Area: Two parcels one a roximatel 919.5'x18' = 16,551 Sq. Ft. and 58.6'x7' =410.2 Sq. Ft.,for a grand total of 16,961.2 Sq. Ft. Within this area is a location for ingress and egress measuring 85'x18'=1,530 Sq. Ft. Property is located at the northerly edge of the SANBAG right-of-way between-division street and North University Street on Park Avenue. § 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"): Two parcels one approximately 919.5'x18' = 16,551 Sq. Ft. and 58.6'x7' =410.2 Sq. Ft.,for a grand total of 16,961.2 Sq_Ft. Use of the Premises: Sylvan Park and Park Avenue 4. Term. Commencement Date: The effective date of this aareement as defined below. § 2.1 Term (check one): ® 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). 15-1001300 License Agreement Form Approved 4/21/15 ii Part H Basic License Provisions Section Cross Re erence 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 ❑ ii. $ per year,payable annually in advance C. Additional Use Fee(check one): ❑ i. One-time fee: $ ❑ 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. O iii. Other: § 3.2.3 6. Security Deposit(if any). $ § 4 7. Insurance Amount.See Exhibit"B" §§ 10, 13 15-1001300 License Agreement Form Approved 4/21/15 iii 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 corporate municipality By: Name: Paul W. Foster Name: Raym n W. Wolfe Title Mayor Title: Executive Director Date: 1�(j Date: /LAI ATTEST: Sam Irw qkty Clerk 15-1001300 License Agreement Form Approved 4/21/15 iv 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. SANB AG'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" Peirnitted Hazardous Material "D" Additional Provisions 15-1001300 License Agreement Form Approved 4/21/15 v PART II - STANDARD LICENSE PROVISIONS 1. 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. 15-1001300 License Agreement Form Approved 4/21/15 1 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 frill force and effect on a month-to-month basis. If Item 4.13 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 4.13 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),.a (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 15-1001300 License Agreement Form Approved 4/21/15 2 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 hnprovements, 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. 4601 et seq. and/or the California Relocation Assistance Law, as amen ed, 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. 15-1001300 License Agreement Form Approved 4/21/15 3 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 22, 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. I5-1001300 License Agreement Form Approved 4/21/15 4 3.2.1. Annual CPI 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 S.D.i and 5.D.ii,the adjustment set forth in S.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 15-1001300 License Agreement Form Approved 4/21/15 5 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 frill. 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 DeRosit'), 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 15-1001300 License Agreement Form Approved 4121/15 6 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 Punish 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: 15-1001300 License Agreement Form Approved 4/21/15 7 (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 15-100I300 License Agreement Form Approved 4/21/15 8 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 15-100000 License Agreement Form Approved 4/21/15 9 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. 15-1001300 License Abreement Form Approved 4/21/15 10 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, 15-1001300 License Agreement Form Approved 4/21115 11 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 15-1001300 License Agreement Form Approved 4121/15 12 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. 15-1001300 License Agreement Form Approved 4/21/15 13 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. 15-1001300 License Agreement Form Approved 4121115 14 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. 15-1001300 License Agreement Form Approved 4/21/15 15 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. BindingE . 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 15-1001300 License Agreement Form Approved 4/21115 16 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 15-1001300 License Agreement Form Approved 4/2I/15 17 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. Assi ngnment. 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' s. 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' 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. 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 Unnih 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 15-1001300 License Agreement Form Approved 4/21/15 18 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. 26.1$. 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 11, Standard License Provisions, the provisions in Exhibit"D" shall control. 15-1001300 License Agreement Form Approved 4/21/15 19 Exhibit"A" Premises [To Be Inserted] 15-1001300 License Agreement Form Approved 4/21/15 A EXHIBIT "All AE"i MP a , MP FM i sT INGRESS&EGRESS "^ '• b TO PARK AREA z - ,� -.. 85.0 WI©E 0 ,c 58-6 a 3903: 444 5 ` •x55ANBAG?ROPERNPW g sA`�,ii „ k ■ i e <y rr.. � •,.r11�I.1Y[ �.. k w w,. ■ 11--i �w SANBAG PROPERTY LINE UP RR PROPERTY LINE It 80 R w � N. i n LANDSCAPING,CONCRETE/ROCK RETAINING WALL= 15,431 SQ.FT. ,- AND INGRESS AND EGRESS TO SYLVAN PARK = 1,530 SQ.FT. 77777777 16,961 SQ.FT APN: 0170-142-07 Date: 2/18/2015, REV 4/23/2015 SANBAG Contract Number:15-1001300 Branch/Line: 11 Mile Post: Lessee/Licensee: REDLANDS 9.6-9.8 CITY OF:REDLANDS SANIBAG County: Thomas Guide Grid: Fife Number: , SAN BERNARDINO 608D7 RRND007741 Area: City: Use: SAN BERNARDINO 16,961 REDLANDS SYLVAN PARK ASSOCIATED GOVERNMENTS Map Reference: Scale: Cross Streets: 1170 W.3rd Street,2nd Floor RND4 NTS PARK AVENUE AND UNIVERSITY STREET" San Bernardino, CA 92410-1715 20 Exhibit`B" INSURANCE REQUIREMENTS 15-1001300 License Agreement Form Approved 4/21/15 i 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. ® 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 ® 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. ❑ 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. $1,000,000 per occurrence $2,000,000 annual aggregate. ❑ Railroad Protective Liability Insurance: Coverage: Insurance Services Office Form Railroad Protective Liability, AAR-AASHTO (ISO/RIMA), in the name of SANBAG 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 l.. 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. 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 frill 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. Exhibit B-Insurance Requirements Form Approved 7/2/14 Exhibit"C" Permitted Hazardous Material No hazardous material is permitted to be used or stored on Premises. IS-1001300 License Agreement Form Approved 4/21/15 1 Exhibit"D" Additional Provisions [To Be Inserted] SANBAG License Agreement Corm Approved 712114 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(SORRA), 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. I. 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. 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 ight-ofway 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 Exhibit D—Additional Requirements Form Approved 712/14 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. 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 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. 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 Exhibit D—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. 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 strictures 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. To 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. Cont for BAG Initials Exhibit D—Additional Requirements Form Approved 7/2/14