HomeMy WebLinkAbout10 WATER MAIN REPLACMNT 11-7-05
Finance Director
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AGENDA REPORT
Agenda Item
Reviewed:
City Manager
MEETING DATE:
NOVEMBER 7,2005
FROM:
WILLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
TO:
SUBJECT:
APPROVAL OF PIPELINE LICENSE NOS. 05-28468, 05-28639, AND 05-
28641 BETWEEN THE CITY OF TUSTIN AND THE BURLINGTON
NORTHERN AND SANTA FE RAILWAY COMPANY FOR THE EDINGER
AVENUE WATER MAIN REPLACEMENT PROJECT (CIP NO. 6147)
AND FOR THE NEWPORT AVENUE EXTENSION/SR-55 RAMP
RECONFIGURATION PROJECT (CIP NO. 7130)
SUMMARY
The proposed Licenses between the City of Tustin and the Burlington Northern and Santa
Fe Railway Company (BNSF) allows the City of Tustin to construct and maintain a domestic
water line across the BNSF right-of-way on Edinger Avenue, east of Del Amo Avenue and to
construct and maintain a sanitary sewer line and storm drain line across the BNSF right-of-
way on Valencia Avenue, east of existing Del Amo Avenue.
RECOMMENDATION
It is recommended that the City Council approve Pipeline License Nos. 05-28468, 05-28639,
and 05-28641 between the City of Tustin and the Burlington Northern and Santa Fe Railway
Company (BNSF) for the construction and maintenance of a domestic water line across the
BNSF right-of-way on Edinger Avenue, and for the construction and maintenance of a
sanitary sewer line and storm drain line across the BNSF right-of-way on Valencia Avenue,
and authorize the Mayor and City Clerk to execute the three licenses on behalf of the City.
FISCAL IMPACT
The one-time fee for the Pipeline Licenses is $2,500 per license or $7,500. The annual
required Railroad Protective Liability Policy will be purchased through BNSF at a cost of
$1,000 per year per license. The costs for the domestic water line will be funded by the
Edinger Avenue Water Main Replacement Project (CIP No. 6147) and the costs for the
sanitary sewer line and storm drain line will be funded by the Newport Avenue
Extension/SR-55 Ramp Reconfiguration Project (CIP No. 7130).
BACKGROUND AND DISCUSSION
Currently, there is an existing 8-inch City owned, domestic water line in Edinger Avenue
between Red Hill Avenue and Del Amo Avenue which crosses under the BNSF Railway
right-of-way on Edinger Avenue. The BNSF right-of-way is located just east of Del Amo
Avenue. The City needs to upgrade this water line to a 12-inch line to serve future
Approval of Pipeline License Nos. 05-28468, 05-28639, and 05-28641 between the City of
Tustin and the Burlington Northern and Santa Fe Railway Company for the Edinger Avenue
Water Main Replacement Project (CIP No. 6147) and for the Newport Avenue
Extension/SR-55 Ramp Reconfiguration Project (CIP No. 7130)
November 7,2005
Page 2
development along this segment of Edinger Avenue and the property located east of the
SR-55 Freeway between Edinger Avenue and Valencia Avenue. The cost to upgrade the
water main is funded by the Edinger Avenue Water Main Replacement Project (CIP No.
6147).
As part of the Newport Avenue Extension/SR-55 Ramp Reconfiguration Project (CIP No.
7130), a new sanitary sewer line and storm drain line will be constructed from Red Hill
Avenue to the future Newport Avenue. These lines are also needed to serve future
development east of the SR-55 Freeway between Edinger Avenue and Valencia Avenue.
Both lines will cross under the BNSF right-of-way on Valencia Avenue. This BNSF right-of-
way is the same as the Edinger Avenue right-of-way and is located just east of Del Amo
Avenue.
The City has been working with BNSF and their contract representative, Staubach, Inc., to
prepare the attached licenses for the City to construct and maintain the upgraded water line
on Edinger Avenue, and the sanitary sewer line and storm drain line on Valencia Avenue
within the BNSF right-of-way. The Licenses are now ready for City Council approval. The
City Attorney has signed each license "Approved as to Form".
~c9.~
Tim D. Serlet
Director of Public Works/City Engineer
~d~
Engineering Services Manager
Attachment: Pipeline License No. 05.28468
Location Exhibit for Pipeline License No. 05-28468
Pipeline License No. 05-28639
Pipeline License No. 05-28641
Location Exhibit for Pipeline License Nos. 05-28639 and 05-28641
TDS: DRK: cog: S:\City Councilltems\2005 CouncilltemslApproval of Pipeline License Agmt btwn Tustin & BNSF- Edinger Ave.doc
05-28468
PIPELINE LICENSE
THIS LICENSE ("License"), made as of the - day of , 2005,
("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Licensor") and CITY OF TUSTIN, a California municipality ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, any leases, licenses,
easements, liens, or other encumbrances, and upon the terms and conditions set forth
below, to construct and maintain, in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications"), one (1) PIPELINE, twelve (12) inches in diameter inside
a twenty-four (24) inch steel casing ("PIPELINE"), across or along the rail corridor of
Licensor at or near the Station of Irvine (Tustin), County of Orange, State of California,
Line Segment 7600, Eng. Station 28+97 as shown on the attached Drawing No. 1-
36194, dated May 5, 2005, attached hereto as Exhibit "A" and made a part hereof
("Premises").
1.
Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
2.
Licensee shall use the Premises solely for construction and maintenance of a PIPELINE
in accordance with the Drawings and Specifications carrying water. Licensee shall not
use the PIPELINE to carry any other commodity or use the Premises for any other
purpose.
3.
(a)
Licensee covenants that it will not handle or transport "hazardous waste" or
"hazardous substances", as "hazardous waste" and "hazardous substances"
may now or in the future be defined by any federal, state, or local governmental
agency or body through the PIPELINE on Licensor's property. Licensee agrees,
upon Licensor's written request, to periodically to furnish Licensor with proof,
satisfactory to Licensor, that Licensee is in such compliance. Should Licensee
refuse to comply with the above-stated obligations of this Section,
notwithstanding anything contained in any other provision hereof, Licensor may,
at its option, terminate this License by serving five (5) days' written notice of
termination upon Licensee. Upon termination, Licensee shall remove the
PIPELINE and restore Licensor's property as herein elsewhere provided. Should
Licensor be dissatisfied with Licensee's response, for any reason, Licensor shall
notify Licensee in writing, and afford Licensee thirty (30) days to cure the defect.
Unless there is an imminent threat to public safety, Licensee shall have ninety
(90) to remove its PIPELINE, in the event of termination.
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05-28468
In case of the eviction of Licensee by anyone owning or claiming title to or any interest
in the Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liable to refund Licensee any compensation paid hereunder,
except for the pro-rata part of any recurring charge paid in advance, or for any damage
Licensee sustains in connection therewith.
4.
Any contractors or subcontractors performing work on the PIPELINE or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License. No person performing work on the PIPELINE or entering the
premises under this License for the benefit of Licensee shall be considered an
employee of Licensor under the Federal Ernployees Liability Act or any other federal or
State law or regulation.
5.
TERM
6.
This License shall commence on the Effective Date and shall continue for a period of
twenty-five (25) years, subject to prior termination as hereinafter described.
COMPENSATION
7.
(a)
Licensee shall pay Licensor, prior to the Effective Date, the sum of Two
Thousand Five Hundred and No/100 Dollars ($2,500.00) as compensation for
the use of the Premises.
Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefor) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction and maintenance
of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman
($500.00 per eight hour day, $95.00 per hour thereafter) and any vehicle rental
costs incurred. Licensee acknowledges that a twelve-hour day is often required
to support an eight-hour work day due to travel, placement, and removal of
advance protection signage, safety briefings, and other duties as required.
All invoices are due thirty (30) days after the date of invoice. In the event that
Licensee shall fail to pay any monies due to Licensor within thirty (30) days after
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual
rate equal to (I) the greater of (a) for the period January 1 through June 30, the
prime rate last published in The Wall Street Journal in the preceding December
plus two and one-half percent (2 1/2%), and for the period July 1 through
December 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS
(b)
(c)
8.
(a)
Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants or restrictions ("Legal Requirements") relating to
the construction, maintenance and use of the PIPELINE and the use of the
Premises.
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Form 424; RevO1l15/03
(b)
05-28468
Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall
require its contractor to complete the safety training program at the following
Internet Website ''http://www.contractororientation.com''. This training must be
completed no more than one year in advance of Licensee's entry on the
Premises.
DEFINITION OF COST AND EXPENSE
9.
For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but
is not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used.
RIGHT OF LICENSOR TO USE
10.
Provided Licensor uses all commercially reasonable efforts to avoid material
interference with the use of the Premises by Licensee for the purpose specified in
Section 3 above, and Licensee receives thirty (30) days written notice. Licensor accepts
and reserves the right, to be exercised by Licensor and any other parties who may
obtain written permission or authority from Licensor:
(a)
(b)
(c)
to maintain, renew, use, operate, change, modify and relocate any existing pipe,
except the PIPELINE power, communication lines and appurtenances and other
facilities or structures of like character upon, over, under or across the Premises:
to construct, maintain, renew, use, operate, change, modify and relocate any
tracks or additional facilities or structures upon, over, under or across the
Premises; or
to use the Premises in any manner, as the Licensor in its sole discretion deems
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
11.
(a)
(b)
12.
(a)
Licensee shall notify Licensor's Roadmaster David Gonzales at 740 E. Carnegie
Dr., San Bernardino, California 92408, telephone (909) 322-4464, at least five
(5) business days prior to installation of the PIPELINE and prior to entering the
Premises for any subsequent maintenance thereon.
In performing the work described in Section 3, Licensee shall use only public
roadways to cross from one side of Licensor's tracks to the other.
Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipment, toois or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the
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Form 424; Rev01/15/03
(b)
13.
05-28468
Premises unless Licensee has obtained prior written approval from Licensor.
Licensee shall, at its sole cost and expense, perform all activities on and about
the Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe
nature thereof, it being solely Licensee's responsibility to ensure that Licensee's
use of the Premises is safe. Neither the exercise nor the failure by Licensor to
exercise any rights granted in this Section will alter the liability allocation
provided by this License.
Licensee shall, at its sole cost and expense, construct and maintain the
PIPELINE in such a manner and of such material that it will not at any time be a
source of danger to or interference with the existence or use of present or future
tracks, roadbed or property of Licensor, or the safe operation and activities of
Licensor. Licensor may direct one of its field engineers to observe or inspect the
construction and/or maintenance of the PIPELINE at any time for compliance
with the Drawings and Specifications. If ordered at any time to halt construction
or maintenance of the PIPELINE by Licensor's personnel due to non-compliance
with the same or any other hazardous condition, Licensee shall immediately do
so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to observe or inspect, or to halt work on, the
PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE
is constructed in strict accordance with the Drawings and Specifications and in a
safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise nor the failure by Licensor to exercise any right granted by this Section
will alter in any way the liability allocation provided by this License. If at any time
Licensee shall, in the sole judgment of Licensor, fail to properly perform its
obligations under this Section, Licensor may, at its option and at Licensee's sole
expense, arrange for the performance of such work as it deems necessary for
the safety of its operations and activities. Licensee shall promptly reimburse
Licensor for all costs and expenses of such work, upon receipt of an invoice for
the sarne. Licensor's failure to perform any obligations of Licensee shall not
alter the liability allocation hereunder.
During the construction and any subsequent maintenance performed on the PIPELINE,
Licensee shall perform such work in a manner to preclude darnage to the property of
Licensor, and preclude interference with the operation of its railroad. The construction of
the PIPELINE shall be completed within one (1) year of the Effective Date. Upon
completion of the construction of the PIPELINE and after performing any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore
Licensor's Premises to their former state as of the Effective Date of this License.
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Form 424; RevO1/15/03
05-28468
If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the PIPELINE, Licensee shall, at its sole expense, within ninety (90) days after
receiving written notice from LIcensor to such effect, make such changes in the
PIPELINE as in the sole reasonable discretion of Licensor may be necessary to avoid
interference with the proposed use of Licensor's rail corridor, including, without
limitation, the relocation of the existing or the construction of a new PIPELlNE(s).
14.
15.
(a)
16.
Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the ground to
determine whether pipelines or other structures exist below the surface,
provided, however, that in lieu of the foregoing, the Licensee shall have the right
to use suitable detection equipment or other generally accepted industry practice
(e.g., consulting with the Underground Services Association) to determine the
existence or location of pipelines and other subsurface structures prior to drilling
or excavating with mechanized equipment. Upon Licensee's written request,
which shall be made thirty (30) business days in advance of Licensee's
requested construction of the PIPELINE, Licensor will provide Licensee any
information that Licensor has in the possession of its Engineering Department
concerning the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to
conducting any such boring work, the Licensee will review all such material.
Licensor does not warrant the accuracy or completeness of information relating
to subsurface conditions and Licensee's operations will be subject at all times to
the liability provisions herein.
(b)
For all bores greater than 26-inch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by the
Licensee and reviewed by Licensor prior to construction. This study is to
determine if granular material is present, and to prevent subsidence during the
installation process. If the investigation determines in Licensor's reasonable
opinion that granular material is present, Licensor may select a new location for
Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.
Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings
constructed on the Premises by Licensee shall be:
(a)
filled in to surrounding ground level with compacted bentonite grout; or
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Form 424; RevO1/15/03
(b)
05-28468
otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on Licensor's property for
more than ten (10) days, but must be properly disposed of by Licensee in
accordance with applicable Legal Requirements.
17.
Upon termination of this License, Licensee shall, at its sole cost and expense:
(a)
(b)
(c)
18.
LIABILITY
19.
remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of
the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE
with a method satisfactory to Licensor;
report and restore any damage to the Premises arising frorn, growing out of, or
connected with Licensee's use of the Premises;
remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
(d)
leave the Premises in the condition which existed as of the Effective Date of this
License.
Licensee's on-site supervision shall retain/maintain a fully executed copy of this License
at all times while on the Premises.
(a)
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND
SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND
HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS,
ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS)
(COLLECTIVELY REFERRED TO AS "INDEMNITY OBLIGATIONS AND
COSTS") ENVIRONMENTAl OR OTHERWISE (COLLECTIVELY
"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING
FROM OR RELATED TO (IN WHOLE OR IN PART):
(i)
LICENSEE'S PERFORMANCE OF THIS LICENSE, INCLUDING,
WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
(ii)
ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE TO LICENSEE,
(iii)
LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
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Form 424; RevO1/15/03
(b)
05-28468
(Iv)
THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY, OR CONTRIBUTED BY LICENSEE, OR
(v)
ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
INDEMNITY OBLIGATIONS AND COSTS WITH RESPECT TO WHICH
LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT
APPLY ARE INDEMNITY OBLIGATIONS WHOLLY CAUSED BY THE SOLE
NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL
AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE
ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN
"OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH
RESPECT TO A RELEASE OF HAZARDOUS WASTE OR HAZARDOUS
SUBSTANCE (AS DEFINED IN SECTION 3 (a) HEREIN FROM THE PIPELINE
FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS.
LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE
NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT
THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE
SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT
LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF
ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY,
DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL
SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
(c)
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER
AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE
REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY
INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES
AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED
AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO
THE FEDERAL EMPLOYERS' LIABILITY ACT (nFELAn) WHENEVER
EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES OR
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY
INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND,
ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR
REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY
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APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL
HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
(d)
Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit or other proceeding brought against any Indemnitee by any entity,
relating to any matter covered by this License for which Licensee has an
obligation to indemnity and/or save and hold harmless any Indemnitee. Licensee
shall pay all reasonable costs incident to such defense, including, but not limited
to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
PERSONAL PROPERTY WAIVER
20.
ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
INSURANCE
21.
Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A.
Commercial General Liability Insurance. This insurance shall contain broad
form contractual liability with a combined single limit of a minimum of $5,000,000
each occurrence and an aggregate limit of at least $10,000,000. Coverage must
be purchased on a post 1998 ISO occurrence or equivalent and include
coverage for, but not limited to, the following:
. Bodily Injury and Property Damage
. Personal Injury and Advertising Injury
. Fire legal liability
. Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
. The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
. Any exclusions related to the explosion, collapse and underground
hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
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B.
Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for, but
not limited to the following:
. Bodily injury and property damage
. Any and all vehicles owned, used or hired
C.
Contractor hereby agrees to waive any Workers' Compensation subrogation
claims, liens, or demands, which could be asserted against Railroad by the
Contractor, and further agrees to indemnify and save harmless Railroad and its
employees, regardless of Railroad's negligence, for any and all Workers'
Compensation subrogation claims, liens, or demands asserted by the
Contractor's agents or employees, or the Contractor's insurance carrier.
D.
Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $5,000,000 per occurrence and
$10,000,000 in the aggregate. The coverage obtained under this policy shall
only be effective during the initial installation and/or construction of the
PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED
WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of
the PIPELINE is needed at a later date, an additional Railroad Protective Liability
Insurance Policy shall be required. The policy shall be issued on a standard ISO
form CG 00 35 1093 and include the following:
. Endorsed to include the Pollution Exclusion Amendment (ISO form CG
2831 1093)
. Endorsed to include the Limited Seepage and Pollution Endorsement.
. Endorsed to include Evacuation Expense Coverage Endorsement.
. No other endorsements restricting coverage may be added.
. The original policy must be provided to the Licensor prior to performing
any work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in
Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or
its contractor. The limits of coverage are the same as above. The cost is $1,000.00.
0
I elect to participate in Licensor's Blanket Policy;
0
I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its insurers, through policy endorsement, waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right of
recovery, and its insurers also waive their right of subrogation against Licensor for loss
oi its owned or leased property or properlY under its care, custOdy, or control.
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Licensee's insurance policies through policy endorsement, must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of interest endorsement and shall name
Licensor and Staubach Global Services-RR, Inc. as an additional insured with respect to
work performed under this agreement. Severability of interest and naming Licensor
and Staubach Global Services-RR, Inc. as additional insureds shall be indicated
on the certificate of insurance.
Licensee is not allowed to self-insure without the prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any
and all Licensor liabilities that would otherwise, in accordance with the provisions of this
Agreement, be covered by Licensee's insurance will be covered as if Licensee elected
not to include a deductible, self-insured retention or other financial responsibility for
claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments and referencing the
contract audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in
writing at least 30 days prior to any cancellation, or ten (10) days for non-renewal, due
to non-payment of premium. This cancellation provision shall be indicated on the
certificate of insurance. Upon request from Licensor, a certified duplicate original of any
required policy shall be furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s) , who have been instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth
herein, naming Licensor as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemnify Licensor herein.
10 of 15
Form 424; Rev01/15/03
05-28468
Failure to provide evidence of insurance as required by this section shall entitle, but not
require, Licensor to terminate this License immediately. Acceptance of a certificate that
does not comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee including,
without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe
Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
ENVIRONMENTAL
22.
(a)
(b)
(c)
Licensee shall strictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. Licensee
shall not release or suffer the release of oil or hazardous substances, as defined
by Environmental Laws on or about the Premises.
Licensee shall give Licensor immediate notice to Licensor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on
or from the Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on or from the Premises. Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or
violation.
In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the PIPELINE
which occurred or may occur during the term of this License, Licensor may
require Licensee, at Licensee's sole risk and expense, to take timely measures
to investigate, remediate, respond to or otherwise cure such release or violation
affecting the Premises or Licensor's right-of-way.
(d)
Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Premises known to Licensee which create a risk of harm to persons,
property or the environment and shall take whatever action is necessary to
prevent injury to persons or property arising out of such conditions or activities;
11 of 15
Form 424; RevO1/15/03
05-28468
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on it by this License. Licensee
shall promptly respond to Licensor's request for information regarding said
conditions or activities.
ALTERATIONS
23.
Licensee may not make any alterations to the Premises or permanently affix anything to
the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
NO WARRANTIES
24.
LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
25.
EXCEPT AS PROVIDED IN SECTION 10 HEREIN LICENSOR DOES NOT WARRANT
ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE
PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
DEFAULT
26.
LIENS
27.
If default shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment or transfer of this License by operation of
law, Licensor may, at its option, terminate this License by serving thirty (30) days' notice
in writing of a default upon licensee. Licensee shall have thirty (30) days or longer
period, as may be agreed by the parties to cure the default. Unless such default
consists of an imminent threat to the safety of the Premises Licensee shall have ninety
days to remove its PIPELINE in the event of termination. Any waiver by Licensor of any
default or defaults shall not constitute a waiver of the right to terminate this License for
any subsequent default or defaults, nor shall any such waiver in any way affect
Licensor's ability to enforce any Section of this License. The remedy set forth in this
Section 26 shall be in addition to, and not in limitation of, any other remedies that
Licensor may have at law or in equity.
Licensee shall promptly pay and discharge any and all liens arising out of anv
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on Premises. Licensor is hereby authorized to post any notices or take any other action
12 of 15
Form 424; RevO1/15/03
05-28468
upon or with respect to Premises that is or may be permitted by law to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this
Section 27 or any other Section of this License.
TERMINATION
28.
This License may be terminated by Licensor, at any time, by serving ninety (90) days'
written notice of termination upon Licensee. This License may be terminated by
Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in
effect. Upon expiration of the time specified in such notice, this License and all rights of
Licensee shali absolutely cease.
29.
If Licensee fails to surrender to Licensor the Premises, upon any termination of this
License, all liabilities and obligations of Licensee hereunder shall continue in effect until
the Premises are surrendered, Termination shali not release Licensee from any liability
or obligation, whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination.
ASSIGNMENT
30.
Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall assign or transfer this License or any
interest herein, without the prior written consent and approval of Licensor, which may be
withheld in Licensor's sole discretion.
NOTICES
31.
Any notice required or permitted to be given hereunder by one party to the other shali be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return receipt requested, or (ii)
deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party
no less than thirty (30) days' advance written notice of such change in address,
If to Licensor:
Staubach Global Services - RR, Inc.
5650 N, Riverside Drive, Suite 101
Ft. Worth, TX 76137
Attn: Licenses/Permits
with a copy to:
BNSF Railway Company
2500 Lou Menk Dr - AOB3
Ft. Worth, TX 76131
Attn: Director Real Estate
If to Licensee:
CityofTustin
300 Centennial Way
1ustin, California 92780
130; ;:'
"orm 42' 1'\.,,0111510,
05-28468
SURVIVAL
32.
Neither termination nor expiration will release either party from any liability or obligation
under this License, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later,
the date when the PIPELINE and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
RECORDATION
33.
It is understood and agreed that this License shall not be recorded in the official records
of the County of Orange.
APPLICABLE LAW
34.
All questions concerning the interpretation or application of provisions of this License
shall be decided according to the substantive laws of the State of Texas without regard
to conflicts of law provisions.
SEVERABILITY
35.
To the maximum extent possible, each provision of this License shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
License shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this License.
INTEGRATION
36.
This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Prernises as described herein. However, nothing herein is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
MISCELLANEOUS
37.
38.
In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
14 of 15
Form 424; RevO1/15/03
05-28468
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the
parties hereto as of the day and year first above written.
BNSF RAILWAY COMPANY
P.O. Box 961050
Fort Worth, TX 76161-0050
By:
Title:
Stephen M. Kuzma
Manaç¡er land Revenue Manaç¡ement
CITY OF TUSTIN
300 Centennial Way
Tustin, California 92780
By:
Title:
,5, of ,5
Fo"" 42" f<evO"il151O:
TRACKING No.05-28468
EXHIBIT "A"
A TT ACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
CITY
OF
SCALE: 1 IN.=100 FT.
CALIFORNIA DIV.
SAN DIEGO SUBDIV. L.S. 7600
DATE 05/05/2005
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CARRIER CASING
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SIZE: 12" 24"
CONTENTS: WATER
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WALL TH I CKNESS: .280" .375"
COATING: ASPHALT N/A
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PIPE
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VENTS: NUMBER..lILA- SIZE --=- HEIGHT OF VENT ABOVE GROUND-=-
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STATE OF CA
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05-28639
PIPELINE LICENSE
THIS LICENSE ("License"), made as of the - day of , 2005,
("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Licensor") and CITY OF TUSTIN, a California municipality ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, any leases, licenses,
easements, liens, or other encumbrances, and upon the terms and conditions set forth
below, to construct and maintain, in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications"), one (1) PIPELINE, ten (10) inches in diameter inside a
twenty-four (24) inch steel casing ("PIPELlNE"), across or along the rail corridor of
Licensor at or near the Station of Irvine (Tustin), County of Orange, State of California,
Line Segment 7600, Eng. Station 28+97 as shown on the attached Drawing No. 1-
36512, dated June 7, 2005, attached hereto as Exhibit "A" and made a part hereof
("Prernises").
1.
Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
2.
Licensee shall use the Premises solely for construction and maintenance of a PIPELINE
in accordance with the Drawings and Specifications carrying sanitary sewage. Licensee
shall not use the PIPELINE to carry any other commodity or use the Premises for any
other purpose.
3.
(a)
Licensee covenants that it will not handle or transport "hazardous waste" or
"hazardous substances", as "hazardous waste" and "hazardous substances"
may now or in the future be defined by any federal, state, or local governmental
agency or body through the PIPELINE on Licensor's property. Licensee agrees,
upon Licensor's written request, to periodically to furnish Licensor with proof,
satisfactory to Licensor, that Licensee is in such compliance. Should Licensee
refuse to comply with the above-stated obligations of this Section,
notwithstanding anything contained in any other provision hereof, Licensor may,
at its option, terminate this License by serving five (5) days' written notice of
termination upon Licensee. Upon termination, Licensee shall remove the
PIPELINE and restore Licensor's property as herein elsewhere provided. Should
Licensor be dissatisfied with Licensee's response, for any reason, Licensor shall
notify Licensee in writing, and afford Licensee thirty (30) days to cure the defect.
Unless there is an imminent threat to public safety, Licensee shall have ninety
(90) to remove its PIPELINE, in the event of termination.
1 of 15
Fonm 424: Rev. 01/15/03
4.
5.
TERM
6.
05-28639
In case of the eviction of Licensee by anyone owning or claiming title to or any interest
in the Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liable to refund Licensee any compensation paid hereunder,
except for the pro-rata part of any recurring charge paid in advance, or for any damage
Licensee sustains in connection therewith.
Any contractors or subcontractors performing work on the PIPELINE or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License. No person performing work on the PIPELINE or entering the
premises under this License for the benefit of Licensee shall be considered an
employee of Licensor under the Federal Employees Liability Act or any other federal or
State law or regulation.
This License shall commence on the Effective Date and shall continue for a period of
twenty-five (25) years, subject to prior termination as hereinafter described.
COMPENSATION
7.
(a)
Licensee shall pay Licensor, prior to the Effective Date, the sum of Two
Thousand Five Hundred and No/100 Dollars ($2,500.00) as compensation for
the use of the Premises.
(b)
Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefor) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction and maintenance
of the PIPELINE, including but not limited to the furnishing of Licensor's Flagrnan
($500.00 per eight hour day, $95.00 per hour thereafter) and any vehicle rental
costs incurred. Licensee acknowledges that a twelve-hour day is often required
to support an eight-hour work day due to travel, placement, and removal of
advance protection signage, safety briefings, and other duties as required.
(c)
All invoices are due thirty (30) days after the date of invoice. In the event that
Licensee shall fail to pay any monies due to Licensor within thirty (30) days after
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual
rate equal to (i) the greater of (a) for the period January 1 through June 30, the
prime rate last published in The Wall Street Journal in the preceding December
plus two and one-half percent (2 1/2%), and for the period July 1 through
December 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS
8.
(a)
Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants or restrictions ("Legal Requirements") relating to
the construction, maintenance and use of the PIPELINE and the use of the
Premises.
2 of 15
Form 424; Rev01/15/03
(b)
05-28639
Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall
require its contractor to complete the safety training program at the following
Internet Website ''http://www.contractororientation.com''. This training must be
completed no more than one year in advance of Licensee's entry on the
Premises.
DEFINITION OF COST AND EXPENSE
9.
For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but
is not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used.
RIGHT OF LICENSOR TO USE
10.
Provided Licensor uses all commercially reasonable efforts to avoid material
interference with the use of the Premises by Licensee for the purpose specified in
Section 3 above, and Licensee receives thirty (30) days written notice. Licensor accepts
and reserves the right, to be exercised by Licensor and any other parties who may
obtain written permission or authority from Licensor:
(a)
(b)
(c)
to maintain, renew, use, operate, change, modify and relocate any existing pipe,
except the PIPELINE power, communication lines and appurtenances and other
facilities or structures of like character upon, over, under or across the Premises;
to construct, maintain, renew, use, operate, change, modify and relocate any
tracks or additional facilities or structures upon, over, under or across the
Premises; or
to use the Premises in any manner, as the Licensor in its sole discretion deems
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
11.
12.
(a)
Licensee shall notify Licensor's Roadmaster David Gonzales at 740 E. Carnegie
Dr., San Bernardino, California 92408, telephone (909) 322-4464, at least five
(5) business days prior to installation of the PIPELINE and prior to entering the
Premises for any subsequent maintenance thereon.
(b)
In performing the work described in Section 3, Licensee shall use only public
roadways to cross from one side of Licensor's tracks to the other.
(a)
Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the
3 of 15
Form 424: RevO1/15/03
(b)
13.
05-28639,
Premises unless Licensee has obtained prior written approval from Licensor.
Licensee shall, at its sole cost and expense, perform all activities on and about
the Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe
nature thereof, it being solely Licensee's responsibility to ensure that Licensee's
use of the Premises is safe. Neither the exercise nor the failure by Licensor to
exercise any rights granted in this Section will alter the liability allocation
provided by this License.
Licensee shall, at its sole cost and expense, construct and maintain the
PIPELINE in such a manner and of such material that it will not at any time be a
source of danger to or interference with the existence or use of present or future
tracks, roadbed or property of Licensor, or the safe operation and activities of
Licensor. Licensor may direct one of its field engineers to observe or inspect the
construction and/or maintenance of the PIPELINE at any time for compliance
with the Drawings and Specifications. If ordered at any time to halt construction
or maintenance of the PIPELINE by Licensor's personnel due to non-compliance
with the same or any other hazardous condition, Licensee shall immediately do
so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to observe or inspect, or to halt work on, the
PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE
is constructed in strict accordance with the Drawings and Specifications and in a
safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise nor the failure by Licensor to exercise any right granted by this Section
will alter in any way the liability allocation provided by this License. If at any time
Licensee shall, in the sole judgment of Licensor, fail to properly perform its
obligations under this Section, Licensor may, at its option and at Licensee's sole
expense, arrange for the performance of such work as it deems necessary for
the safety of its operations and activities. Licensee shall promptly reimburse
Licensor for all costs and expenses of such work, upon receipt of an invoice for
the same. Licensor's failure to perform any obligations of Licensee shall not
alter the liability allocation hereunder.
During the construction and any subsequent maintenance performed on the PIPELINE,
Licensee shall perform such work in a manner to preclude damage to the property of
Licensor, and preclude interference with the operation of its railroad. The construction of
the PIPELINE shall be completed within one (1) year of the Effective Date. Upon
completion of the construction of the PIPELINE and after performing any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore
Licensor's Premises to their former state as of the Effective Date of this License.
4 of 15
Form 424; Rev01115103
05-28639
If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the PIPELINE, Licensee shall, at its sole expense, within ninety (90) days after
receiving written notice from Licensor to such effect, make such changes in the
PIPELINE as in the soie reasonable discretion of Licensor may be necessary to avoid
interference with the proposed use of Licensor's rail corridor, including, without
limitation, the relocation of the existing or the construction of a new PIPELlNE(s).
14.
15.
(a)
(b)
16.
Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the ground to
determine whether pipelines or other structures exist below the surface,
provided, however, that in lieu of the foregoing, the Licensee shail have the right
to use suitable detection equipment or other generally accepted industry practice
(e.g., consulting with the Underground Services Association) to determine the
existence or location of pipelines and other subsurface structures prior to driiling
or excavating with mechanized equipment. Upon Licensee's written request,
which shall be made thirty (30) business days in advance of Licensee's
requested construction of the PIPELINE, Licensor will provide Licensee any
information that Licensor has in the possession of its Engineering Department
concerning the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to
conducting any such boring work, the Licensee will review all such material.
Licensor does not warrant the accuracy or completeness of information relating
to subsurface conditions and Licensee's operations will be subject at ail times to
the liability provisions herein.
For all bores greater than 26-inch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by the
Licensee and reviewed by Licensor prior to construction. This study is to
determine if granular rnaterial is present, and to prevent subsidence during the
installation process. If the investigation determines in Licensor's reasonable
opinion that granular material is present, Licensor may select a new location for
Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.
Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings
constructed on the Premises by Licensee shall be:
(a)
filled in to surrounding ground level with compacted bentonite grout: or
5 of 15
Form 424; Rev01/15/03
(b)
05-28639
otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on Licensor's property for
more than ten (10) days, but must be properly disposed of by Licensee in
accordance with applicable Legal Requirements.
17.
Upon termination of this License, Licensee shall, at its sole cost and expense:
(a)
(b)
(c)
(d)
remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of
the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE
with a method satisfactory to Licensor;
report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
leave the Premises in the condition which existed as of the Effective Date of this
License.
18.
Licensee's on-site supervision shall retain/maintain a fully executed copy of this License
at all times while on the Premises.
LIABILITY
19.
(a)
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND
SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND
HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS,
ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS)
(COLLECTIVELY REFERRED TO AS "INDEMNITY OBLIGATIONS AND
COSTS") ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY
"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING
FROM OR RELATED TO (IN WHOLE OR IN PART):
(I)
LICENSEE'S PERFORMANCE OF THIS LICENSE, INCLUDING,
WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
(ii)
ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE TO LICENSEE,
(Iii)
LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
6 of 15
Form 424; Rev01/15/03
(b)
05-28639
(Iv)
THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY, OR CONTRIBUTED BY LICENSEE, OR
(v)
ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
INDEMNITY OBLIGATIONS AND COSTS WITH RESPECT TO WHICH
LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT
APPLY ARE INDEMNITY OBLIGATIONS WHOLLY CAUSED BY THE SOLE
NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL
AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE
ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN
"OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH
RESPECT TO A RELEASE OF HAZARDOUS WASTE OR HAZARDOUS
SUBSTANCE (AS DEFINED IN SECTION 3 (a) HEREIN FROM THE PIPELINE
FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS.
LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE
NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT
THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE
SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT
LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF
ENVIRONMENTAl LAWS AND EXPRESSLY AGREES TO INDEMNIFY,
DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL
SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
(c)
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER
AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE
REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY
INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES
AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED
AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO
THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER
EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES OR
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY
INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHAlL ALSO EXTEND,
ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR
REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY
7 of 15
Form 424; Rev01/15/03
05-28639
APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL
HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
(d)
Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit or other proceeding brought against any Indemnitee by any entity,
relating to any matter covered by this License for which Licensee has an
obligation to indemnity and/or save and hold harmless any Indemnitee. Licensee
shall pay all reasonable costs incident to such defense, including, but not limited
to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
PERSONAL PROPERTY WAIVER
20.
ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
INSURANCE
21.
Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A.
Commercial General Liability Insurance. This insurance shall contain broad
form contractual liability with a combined single limit of a minimum of $5,000,000
each occurrence and an aggregate limit of at least $10,000,000. Coverage must
be purchased on a post 1998 ISO occurrence or equivalent and include
coverage for, but not limited to, the following:
. Bodily Injury and Property Damage
. Personal Injury and Advertising Injury
. Fire legal liability
. Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
. The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
. Any exclusions related to the explosion, collapse and underground
hazards shall be removed.
No other endorsements limiting coverage rnay be included on the policy.
8 of 15
Form 424; RevD1/15/03
B-
C.
05-28639
Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for, but
not limited to the following:
. Bodily injury and property damage
. Any and all vehicles owned, used or hired
Contractor hereby agrees to waive any Workers' Compensation subrogation
claims, liens, or demands, which could be asserted against Railroad by the
Contractor, and further agrees to indemnify and save harmless Railroad and its
employees, regardless of Railroad's negligence, for any and all Workers'
Compensation subrogation claims, liens, or demands asserted by the
Contractor's agents or employees, or the Contractor's insurance carrier.
D.
Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $5,000,000 per occurrence and
$10,000,000 in the aggregate. The coverage obtained under this policy shall
only be effective during the initial installation and/or construction of the
PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED
WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of
the PIPELINE is needed at a later date, an additional Railroad Protective Liability
Insurance Policy shall be required. The policy shall be issued on a standard ISO
form CG 00 35 10 93 and include the following:
. Endorsed to include the Pollution Exclusion Amendment (ISO form CG
2831 1093)
. Endorsed to include the Limited Seepage and Pollution Endorsement.
. Endorsed to include Evacuation Expense Coverage Endorsement.
. No other endorsements restricting coverage may be added.
. The original policy must be provided to the Licensor prior to performing
any work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in
Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or
its contractor. The limits of coverage are the same as above. The cost is $1,000.00.
0
I elect to participate in Licensor's Blanket Policy;
0
I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its insurers, through policy endorsement, waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right of
recovery, and its insurers also waive their right of subrogation against Licensor for loss
of its owned or leased property or property under its care, custody, or control.
9 of 15
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Licensee's insurance policies through policy endorsement, must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of interest endorsement and shall name
Licensor and Staubach Global Services-RR, Inc. as an additional insured with respect to
work performed under this agreement. Severability of interest and naming Licensor
and Staubach Global Services-RR, Inc. as additional insureds shall be indicated
on the certificate of insurance.
Licensee is not allowed to self-insure without the prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any
and all Licensor liabilities that would otherwise, in accordance with the provisions of this
Agreement, be covered by Licensee's insurance will be covered as if Licensee elected
not to include a deductible, self-insured retention or other financial responsibility for
claims.
Prior to cornmencing the Work, Licensee shall furnish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments and referencing the
contract audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in
writing at least 30 days prior to any cancellation, or ten (10) days for non-renewal, due
to non-payment of premium. This cancellation provision shall be indicated on the
certificate of insurance. Upon request from Licensor, a certified duplicate original of any
required policy shall be furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth
herein, naming Licensor as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemniíy Licensor herein.
10 of 15
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Failure to provide evidence of insurance as required by this section shall entitle, but not
require, Licensor to terminate this License immediately. Acceptance of a certificate that
does not comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee including,
without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe
Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
ENVIRONMENTAL
22.
(a)
(b)
Licensee shall strictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. Licensee
shall not release or suffer the release of oil or hazardous substances, as defined
by Environmental Laws on or about the Premises.
Licensee shall give Licensor immediate notice to Licensor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on
or from the Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on or from the Premises. Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or
violation.
(c)
In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the PIPELINE
which occurred or may occur during the term of this License, Licensor may
require Licensee, at Licensee's sole risk and expense, to take timely measures
to investigate, remediate, respond to or otherwise cure such release or violation
affecting the Premises or Licensor's right-of-way.
(d)
Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Premises known to Licensee which create a risk of harm to persons,
property or the environment and shall take whatever action is necessary to
prevent injury to persons or property arising out of such conditions or activities;
11of15
Form 424; Rev01/15/03
05-28639
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on it by this License. Licensee
shall promptly respond to Licensor's request for information regarding said
conditions or activities.
ALTERATIONS
23.
Licensee may not make any alterations to the Premises or perrnanently affix anything to
the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
NO WARRANTIES
24.
LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
25.
EXCEPT AS PROVIDED IN SECTION 10 HEREIN LICENSOR DOES NOT WARRANT
ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE
PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
DEFAULT
26.
If default shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment or transfer of this License by operation of
law, Licensor may, at its option, terminate this License by serving thirty (30) days' notice
in writing of a default upon licensee. Licensee shall have thirty (30) days or longer
period, as rnay be agreed by the parti~s to cure the default. Unless such default
consists of an imminent threat to the safety of the Premises Licensee shall have ninety
days to remove its PIPELINE in the event of termination. Any waiver by Licensor of any
default or defaults shall not constitute a waiver of the right to terminate this License for
any subsequent default or defaults, nor shall any such waiver in any way affect
Licensor's ability to enforce any Section of this License. The remedy set forth in this
Section 26 shall be in addition to, and not in limitation of, any other remedies that
Licensor may have at law or in equity.
LIENS
27-
Licensee shall promptly pay and discharge any and all liens arising out of anv
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on Premises. Licensor is hereby authorized to post any notices or take any other action
12 of 15
Form 424; Rev01/15/03
05-28639
upon or with respect to Premises that is or may be permitted by iaw to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this
Section 27 or any other Section of this License
28.
TERMINATION
29.
This License may be terminated by Licensor, at any time, by serving ninety (90) days'
written notice of termination upon Licensee. This License may be terminated by
Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in
effect Upon expiration of the time specified in such notice, this License and all rights of
Licensee shall absolutely cease.
If Licensee fails to surrender to Licensor the Premises, upon any termination of this
License, all liabilities and obligations of Licensee hereunder shall continue in effect until
the Premises are surrendered. Termination shall not release Licensee from any liability
or obligation, whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination,
ASSIGNMENT
30.
Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall assign or transfer this License or any
interest herein, without the prior written consent and approval of Licensor, which may be
withheld in Licensor's sole discretion.
NOTICES
31.
Any notice required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return receipt requested, or (Ii)
deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party
no less than thirty (30) days' advance written notice of such change in address.
If to Licensor:
Staubach Global Services - RR, Inc.
5650 N. Riverside Drive, Suite 101
Ft. Worth, TX 76137
Attn: Licenses/Permits
with a copy to:
BNSF Railway Company
2500 Lou Menk Dr. - AOB3
Ft. Worth, TX 76131
Attn: Director Real Estate
If to Licensee:
City of Tustin
300 Centennial Way
Tustin, California 92780
13 of 15
Form 424: RevO1/15/03
05-28639
SURVIVAL
32.
Neither termination nor expiration will release either party from any liability or obligation
under this License, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later,
the date when the PIPELINE and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
RECORDATION
33.
It is understood and agreed that this License shall not be recorded in the official records
of the County of Orange.
APPLICABLE LAW
34.
All questions concerning the interpretation or application of provisions of this License
shall be decided according to the substantive laws of the State of Texas without regard
to conflicts of law provisions.
SEVERABILITY
35.
To the maximum extent possible, each provision of this License shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
License shall be prohibited by, or held to be invalid under, appiicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this License.
INTEGRATION
36.
This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Premises as described herein. However, nothing herein is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
MISCELLANEOUS
37.
38.
In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
140f15
Form 424; RevO1/15/03
05-28639
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the
parties hereto as of the day and year first above written.
APP.!}OV~D AS TO FORM:
~2.~
City Attorney ~
BNSF RAILWAY COMPANY
P.O. Box 961050
Fort Worth, TX 76161-0050
By:
Title:
Stephen M. Kuzma
Manager land Revenue Management
CITY OF TUSTIN
300 Centennial Way
Tustin, California 92780
By:
Title:
150115
Fann 424; Rev01/15/03
TRACKING NO.05-28539
EXH I BIT II A II
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY
OF
TUSTIN
00
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SCALE:11N.=100FT, "",1,. MAP~
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"'l:IIW~I. '¡"..'U'.,I:II"I~, 111:&II!lI.,~~ ,I l:nPI:I"""""",I.._"",'M ""'-J"I""-'"'~:I
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~:~I: I ¡..~~ ------,
DESCRIPTION OF PIPELINE
PIPELINE SHOWN BOLD
CARRIER CAS I NG CARR I ER CAS I NG
PIPE PIPE PIPE PIPE
SIZE: ~ 2~ n LENGTH ON R/W: 50' 50'
CONTENTS: SANITARY SEWER WORK I NG PRESSURE: GRAVITY
PIPE MATERIAL: --'LC..!:...... STEEL BURY: BASE/RA I L TO TOP OF CAS I NG 17.25'
SPECIFICATION / GRADE: .....G.=l.QQ GR B BURY: NATURAL GROUND 17. 25'
WALL THICKNESS: ..1...:...Q.222 0.375" BURY: ROADWAY DITCHES 17.25'
COATING: --1::1.LlL TAR EPOXY CA THOO I C PROTECT I ON N/A
VENTS: NUMBER ....NLL SIZE -=-- HE I GHT OF VENT ABOVE GROUND-=-
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
AT IRVINE (TUSTIN)
COUNTY OF ORANGE
STATE OF CA
CTF
05-28641
PIPELINE LICENSE
THIS LICENSE ("License"), made as of the - day of , 2005,
("Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation
("Licensor") and CITY OF TUSTIN, a California municipality ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
1.
2.
Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, any leases, licenses,
easements, liens, or other encumbrances, and upon the terms and conditions set forth
below, to construct and maintain, in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process (the
"Drawings and Specifications"), two (2) PIPELINE, forty eight (48) inches in diameter
inside two (2) sixty (60) inch steel casing ("PIPELINE"), across or along the rail corridor
of Licensor at or near the Station of Irvine (Tustin), County of Orange, State of
California, Line Segment 7600, Eng. Station 28+75 as shown on the attached Drawing
No. 1-36513, dated June 7,2005, attached hereto as Exhibit "A" and made a part hereof
("Premises").
Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
3.
Licensee shall use the Premises solely for construction and maintenance of a PIPELINE
in accordance with the Drawings and Specifications carrying storm water. Licensee
shall not use the PIPELINE to carry any other commodity or use the Premises for any
other purpose.
(a)
Licensee covenants that it will not handle or transport "hazardous waste" or
"hazardous substances", as "hazardous waste" and "hazardous substances"
may now or in the future be defined by any federal, state, or local governmental
agency or body through the PIPELINE on Licensor's property. Licensee agrees,
upon Licensor's written request, to periodically to furnish Licensor with proof,
satisfactory to Licensor, that Licensee is in such compliance. Should Licensee
refuse to comply with the above-stated obligations of this Section,
notwithstanding anything contained in any other provision hereof, Licensor may,
at its option, terminate this License by serving five (5) days' written notice of
termination upon Licensee. Upon termination, Licensee shall remove the
PIPELINE and restore Licensor's property as herein elsewhere provided. Should
Licensor be dissatisfied with Licensee's response, for any reason, Licensor shall
notify Licensee in writing, and afford Licensee thirty (30) days to cure the defect.
Unless there is an imminent threat to public safety, Licensee shall have ninety
(90) to remove its PIPELINE, in the event of termination.
1 of 15
Form 424; Rev. 01/15/03
05-28641
In case of the eviction of Licensee by anyone owning or claiming title to or any interest
in the Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liable to refund Licensee any compensation paid hereunder,
except for the pro-rata part of any recurring charge paid in advance, or for any damage
Licensee sustains in connection therewith.
4.
Any contractors or subcontractors performing work on the PIPELINE or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for
purposes of this License. No person performing work on the PIPELINE or entering the
premises under this License for the benefit of Licensee shall be considered an
employee of Licensor under the Federal Employees Liability Act or any other federal or
State law or regulation.
5.
TERM
6.
This License shall commence on the Effective Date and shall continue for a period of
twenty-five (25) years, subject to prior termination as hereinafter described.
COMPENSATION
7.
(a)
Licensee shall pay Licensor, prior to the Effective Date, the sum of Two
Thousand Five Hundred and No/10G Dollars ($2,500.00) as compensation for
the use of the Premises.
Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefor) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction and maintenance
of the PIPELINE, including but not limited to the furnishing of Licensor's Flagman
($500.00 per eight hour day, $95.00 per hour thereafter) and any vehicle rental
costs incurred. Licensee acknowledges that a twelve-hour day is often required
to support an eight-hour work day due to travel, placement, and removal of
advance protection signage, safety briefings, and other duties as required.
All invoices are due thirty (30) days after the date of invoice. In the event that
Licensee shall fail to pay any monies due to Licensor within thirty (30) days after
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual
rate equal to (I) the greater of (a) for the period January 1 through June 30, the
prime rate last published in The Wall Street Journal in the preceding December
plus two and one-half percent (2 1/2%), and for the period July 1 through
December 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS
(b)
(c)
8.
(a)
Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants or restrictions ("Legal Requirements") relating to
the construction, maintenance and use of the PIPELINE and the use of the
Premises.
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(b)
05-28641
Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall
require its contractor to complete the safety training program at the following
Internet Website ''http://www.contractororientation.com''. This training must be
completed no more than one year in advance of Licensee's entry on the
Premises.
DEFINITION OF COST AND EXPENSE
9.
For the purpose of this License, "cost' or "costs" "expense" or "expenses" includes, but
is not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used.
RIGHT OF LICENSOR TO USE
Provided Licensor uses all commercially reasonable efforts to avoid material
interference with the use of the Premises by Licensee for the purpose specified in
Section 3 above, and Licensee receives thirty (30) days written notice. Licensor accepts
and reserves the right, to be exercised by Licensor and any other parties who may
obtain written permission or authority from Licensor:
10.
(a)
(b)
(c)
to maintain, renew, use, operate, change,_modify and relocate any existing pipe,
except the PIPELINE power, communication lines and appurtenances and other
facilities or structures of like character upon, over, under or across the Premises;
to construct, maintain, renew, use, operate, change, modify and relocate any
tracks or additional facilities or structures upon, over, under or across the
Premises; or
to use the Premises in any manner, as the Licensor in its sole discretion deems
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
11.
(a)
12.
Licensee shall notify Licensor's Roadmaster David Gonzales at 740 E. Carnegie
Dr., San Bernardino, California 92408, telephone (909) 322-4464, at least five
(5) business days prior to installation of the PIPELINE and prior to entering the
Premises for any subsequent maintenance thereon.
(b)
In performing the work described in Section 3, Licensee shall use only public
roadways to cross from one side of Licensor's tracks to the other.
(a)
Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the
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(b)
13.
05-28641
Premises unless Licensee has obtained prior written approval from Licensor.
Licensee shall, at its sole cost and expense, perform all activities on and about
the Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licensor, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that. Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe
nature thereof, it being solely Licensee's responsibility to ensure that Licensee's
use of the Premises is safe. Neither the exercise nor the failure by Licensor to
exercise any rights granted in this Section will alter the liability allocation
provided by this License.
Licensee shall, at its sole cost and expense, construct and maintain the
PIPELINE in such a manner and of such material that it will not at any time be a
source of danger to or interference with the existence or use of present or future
tracks, roadbed or property of Licensor, or the safe operation and activities of
Licensor. Licensor may direct one of its field engineers to observe or inspect the
construction and/or maintenance of the PIPELINE at any time for compliance
with the Drawings and Specifications. If ordered at any time to halt construction
or maintenance of the PIPELINE by Licensor's personnel due to non-compliance
with the same or any other hazardous condition, Licensee shall immediately do
so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to observe or inspect, or to halt work on, the
PIPELINE, it being solely Licensee's responsibility to ensure that the PIPELINE
is constructed in strict accordance with the Drawings and Specifications and in a
safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise nor the failure by Licensor to exercise any right granted by this Section
will alter in any way the liability allocation provided by this License. If at any time
Licensee shall, in the sole judgment of Licensor, fail to properly perform its
obligations under this Section, Licensor may, at its option and at Licensee's sole
expense, arrange for the performance of such work as it deems necessary for
the safety of its operations and activities. Licensee shall promptly reimburse
Licensor for all costs and expenses of such work, upon receipt of an invoice for
the same. Licensor's failure to perform any obligations of Licensee shall not
alter the liability allocation hereunder.
During the construction and any subsequent maintenance performed on the PIPELINE,
Licensee shall perform such work in a manner to preclude damage to the property of
Licensor, and preclude interference with the operation of its railroad. The construction of
the PIPELINE shall be completed within one (1) year of the Effective Date. Upon
completion of the construction of the PIPELINE and after performing any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore
Licensor's Premises to their former state as of the Effective Date of this License.
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If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the PIPELINE, Licensee shall, at its sole expense, within ninety (90) days after
receiving written notice from Licensor to such effect, make such changes in the
PIPELINE as in the sole reasonable discretion of Licensor may be necessary to avoid
interference with the proposed use of Licensor's rail corridor, including, without
limitation, the relocation of the existing or the construction of a new PIPELlNE(s).
14.
15.
(a)
16.
Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the ground to
determine whether pipelines or other structures exist below the surface,
provided, however, that in lieu of the foregoing, the Licensee shall have the right
to use suitable detection equipment or other generally accepted industry practice
(e.g., consulting with the Underground Services Association) to determine the
existence or location of pipelines and other subsurface structures prior to drilling
or excavating with mechanized equipment. Upon Licensee's written request,
which shall be made thirty (30) business days in advance of Licensee's
requested construction of the PIPELINE, Licensor will provide Licensee any
inforrnation that Licensor has in the possession of its Engineering Department
concerning the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed PIPELINE. Prior to
conducting any such boring work, the Licensee will review all such material.
Licensor does not warrant the accuracy or completeness of information relating
to subsurface conditions and Licensee's operations will be subject at all times to
the liability provisions herein.
(b)
For all bores greater than 26-inch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by the
Licensee and reviewed by Licensor prior to construction. This study is to
determine if granular material is present, and to prevent subsidence during the
installation process. If the investigation determines in Licensor's reasonable
opinion that granular material is present, Licensor may select a new location for
Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.
Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings
constructed on the Premises by Licensee shall be:
(a)
filled in to surrounding ground level with compacted bentonite grout; or
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05-28641
otherwise secured or retired in accordance with any applicable Legal
Requirement. No excavated materials may remain on Licensor's property for
more than ten (10) days, but must be properly disposed of by Licensee in
accordance with applicable Legal Requirements.
17.
Upon termination of this License, Licensee shall, at its sole cost and expense:
(a)
(b)
(c)
(d)
remove the PIPELINE and all appurtenances thereto, or, at the sole discretion of
the Licensor, fill and cap or otherwise appropriately decommission the PIPELINE
with a method satisfactory to Licensor;
report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
leave the Premises in the condition which existed as of the Effective Date of this
License.
18.
Licensee's on-site supervision shall retain/maintain a fully executed copy of this License
at all times while on the Premises.
LIABILITY
19.
(a)
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL AND
SHALL CAUSE ITS CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND
HOLD HARMLESS LICENSOR AND LICENSOR'S AFFILIATED COMPANIES,
PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS
(COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND
ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES,
LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS
AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS,
ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS)
(COLLECTIVELY REFERRED TO AS "INDEMNITY OBLIGATIONS AND
COSTS") ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY
"LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING
FROM OR RELATED TO (IN WHOLE OR IN PART):
(i)
LICENSEE'S PERFORMANCE OF THIS LICENSE, INCLUDING,
WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
(ii)
ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE TO LICENSEE,
(m)
LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
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(b)
(c)
05-28641
(Iv)
THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY, OR CONTRIBUTED BY LICENSEE, OR
(v)
ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR
ANYONE THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
INDEMNITY OBLIGATIONS AND COSTS WITH RESPECT TO WHICH
LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT
APPLY ARE INDEMNITY OBLIGATIONS WHOLLY CAUSED BY THE SOLE
NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 19(a), LICENSEE SHALL
AND SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE
ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN
"OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" WITH
RESPECT TO A RELEASE OF HAZARDOUS WASTE OR HAZARDOUS
SUBSTANCE (AS DEFINED IN SECTION 3 (a) HEREIN FROM THE PIPELINE
FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS.
LICENSEE WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE
NEGLIGENCE OF THE INDEMNITEES. LICENSEE FURTHER AGREES THAT
THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE
SHALL NOT IN ANY WAY SUBJECT LICENSOR TO CLAIMS THAT
LICENSOR IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF
ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY,
DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL
SUCH CLAIMS. IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER
AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE
REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY
INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES
AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED
AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO
THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELAn) WHENEVER
EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, INVITEES OR
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY
INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND,
ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR
REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY
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APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL
HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
(d)
Upon written notice from Licensor, Licensee agrees to assume the defense of
any lawsuit or other proceeding brought against any Indemnitee by any entity,
relating to any matter covered by this License for which Licensee has an
obligation to indemnity and/or save and hold harmless any Indemnitee. Licensee
shall pay all reasonable costs incident to such defense, including, but not limited
to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
PERSONAL PROPERTY WAIVER
20.
ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR
IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE-
INSURANCE
21.
Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A.
Commercial General Liability Insurance. This insurance shall contain broad
form contractual liability with a combined single limit of a minimum of $5,000,000
each occurrence and an aggregate limit of at least $10,000,000. Coverage must
be purchased on a post 1998 ISO occurrence or equivalent and include
coverage for, but not limited to, the following:
. Bodily Injury and Property Damage
. Personal Injury and Advertising Injury
. Fire legal liability
. Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
. The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet of
railroad property.
. Any exclusions related to the explosion, collapse and underground
hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
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B.
Business Automobile Insurance- This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include coverage for, but
not limited to the following:
. Bodily injury and property damage
. Any and all vehicles owned, used or hired
C.
Contractor hereby agrees to waive any Workers' Compensation subrogation
claims, liens, or demands, which could be asserted against Railroad by the
Contractor, and further agrees to indemnify and save harmless Railroad and its
employees, regardless of Railroad's negligence, for any and all Workers'
Compensation subrogation claims, liens, or demands asserted by the
Contractor's agents or employees, or the Contractor's insurance carrier.
D.
Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $5,000,000 per occurrence and
$10,000,000 in the aggregate. The coverage obtained under this policy shall
only be effective during the initial installation and/or construction of the
PIPELINE. THE CONSTRUCTION OF THE PIPELINE SHALL BE COMPLETED
WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of
the PIPELINE is needed at a later date, an additional Railroad Protective Liability
Insurance Policy shall be required. The policy shall be issued on a standard ISO
form CG 00 35 10 93 and include the following:
Endorsed to include the Pollution Exclusion Amendment (ISO form CG
28311093)
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to include Evacuation Expense Coverage Endorsement.
No other endorsements restricting coverage may be added.
. The original policy must be provided to the Licensor prior to performing
any work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in
Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or
its contractor. The limits of coverage are the same as above. The cost is $1,000.00.
0
I elect to participate in Licensor's Blanket Policy;
0
I elect not to participate in Licensor's Blanket Policy.
Other Requirements:
Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its insurers, through policy endorsement, waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right of
recovery, and its insurers also waive their right of subrogation against Licensor for loss
of its owned or leased property or property under its care, custody, or control.
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Licensee's insurance policies through policy endorsement, must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable.
Railroad Protective) shall include a severability of interest endorsement and shall name
Licensor and Staubach Global Services-RR, Inc. as an additional insured with respect to
work performed under this agreement. Severability of interest and naming Licensor
and Staubach Global Services-RR, Inc. as additional insureds shall be indicated
on the certificate of insurance.
Licensee is not allowed to self-insure without the prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any
and all Licensor liabilities that would otherwise, in accordance with the provisions of this
Agreement, be covered by Licensee's insurance will be covered as if Licensee elected
not to include a deductible, self-insured retention or other financial responsibility for
claims.
Prior to commencing the Work, Licensee shall furnish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments and referencing the
contract audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in
writing at least 30 days prior to any cancellation, or ten (10) days for non-renewal, due
to non-payment of premium. This cancellation provision shall be indicated on the
certificate of insurance. Upon request from Licensor, a certified duplicate original of any
required policy shall be furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth
herein, naming Licensor as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemnify Licensor herein.
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Failure to provide evidence of insurance as required by this section shall entitle, but not
require, Licensor to terminate this License immediately. Acceptance of a certificate that
does not comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee including,
without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe
Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
ENVIRONMENTAL
22.
(a)
(b)
Licensee shall strictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. Licensee
shall not release or suffer the release of oil or hazardous substances, as defined
by Environmental Laws on or about the Premises.
Licensee shall give Licensor immediate notice to Licensor's Resource
Operations Center at (800) 832-5452 of any release of hazardous substances on
or from the Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on or from the Premises. Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of
Licensee to investigate, remediate, respond to or otherwise cure such release or
violation.
(c)
In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the PIPELINE
which occurred or may occur during the term of this License, Licensor may
require Licensee, at Licensee's sole risk and expense, to take timely measures
to investigate, remediate, respond to or otherwise cure such release or violation
affecting the Premises or Licensor's right-of-way.
(d)
Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Premises known to Licensee which create a risk of harm to persons,
property or the environment and shall take whatever action is necessary to
prevent injury to persons or property arising out of such conditions or activities;
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provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on it by this License. Licensee
shall promptly respond to Licensor's request for inforrnation regarding said
conditions or activities.
ALTERATIONS
23.
Licensee may not make any alterations to the Premises or permanently affix anything to
the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
NO WARRANTIES
24.
LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
25-
EXCEPT AS PROVIDED IN SECTION 10 HEREIN LICENSOR DOES NOT WARRANT
ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND LICENSEE IN THE
PEACEABLE POSSESSION OR USE THEREOF- NO COVENANT OF QUIET
ENJOYMENT IS MADE.
DEFAULT
26.
If default shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment or transfer of this License by operation of
law, Licensor may, at its option, terminate this License by serving thirty (30) days' notice
in writing of a default upon licensee. Licensee shall have thirty (30) days or longer
period, as may be agreed by the parties to cure the default. Unless such default
consists of an imminent threat to the safety of the Premises Licensee shall have ninety
days to remove its PIPELINE in the event of termination. Any waiver by Licensor of any
default or defaults shall not constitute a waiver of the right to temninate this License for
any subsequent default or defaults, nor shall any such waiver in any way affect
Licensor's ability to enforce any Section of this License. The remedy set forth in this
Section 26 shall be in addition to, and not in limitation of, any other remedies that
Licensor may have at law or in equity.
LIENS
27.
Licensee shall promptly pay and discharge any and all liens arising out of anv
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on Premises. Licensor is hereby authorized to post any notices or take any other action
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05-28641
upon or with respect to Premises that is or may be permitted by law to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this
Section 27 or any other Section of this License.
TERMINATION
28.
29.
This License may be terminated by Licensor, at any time, by serving ninety (90) days'
written notice of termination upon Licensee. This License may be terminated by
Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in
effect Upon expiration of the time specified in such notice, this License and all rights of
Licensee shall absolutely cease.
If Licensee fails to surrender to Licensor the Premises, upon any termination of this
License, all liabilities and obligations of Licensee hereunder shall continue in effect until
the Premises are surrendered. Termination shall not release Licensee from any liability
or obligation, whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination.
ASSIGNMENT
30.
Neither Licensee, nor the heirs, legal representatives, successors or assigns of
Licensee, nor any subsequent assignee, shall assign or transfer this License or any
interest herein, without the prior written consent and approval of Licensor, which may be
withheld in Licensor's sole discretion.
NOTICES
31.
Any notice required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return receipt requested, or (ii)
deposited into the custody of a nationally recognized overnight delivery sefVice,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party
no less than thirty (30) days' advance written notice of such change in address.
If to Licensor.
Staubach Global SefVices - RR, Inc.
5650 N. Riverside Drive, Suite 101
Ft. Worth, TX 76137
Attn: Licenses/Permits
with a copy to:
BNSF Railway Company
2500 Lou Menk Dr. - AOB3
Ft. Worth, TX 76131
Attn: Director Real Estate
If to Licensee:
City of Tusiin
300 Centennial Way
Tusiin, California 92780
,3 of ,ê
éorm 42, RevG1115/0'
05-28641
SURVIVAL
32.
Neither termination nor expiration will release either party from any liability or obligation
under this License, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or expiration, or, if later,
the date when the PIPELINE and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
RECORDATION
33.
It is understood and agreed that this License shall not be recorded in the official records
of the County of Orange.
APPLICABLE LAW
34.
All questions concerning the interpretation or application of provisions of this License
shall be decided according to the substantive laws of the State of Texas without regard
to conflicts of law provisions.
SEVERABILITY
35.
To the maximum extent possible, each provision of this License shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
License shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this License.
INTEGRATION
36.
This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Premises as described herein. However, nothing herein is intended to terminate any
surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor
harmless in any prior written agreement between the parties.
MISCELLANEOUS
37.
In the event that Licensee consists of two or more parties, all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
38.
The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
14 of 15
Form 424; Rev01115/03
05-28641
IN WITNESS WHEREOF, this License has been duly executed, in duplicate, by the
parties hereto as of the day and year first above written.
BNSF RAILWAY COMPANY
P.O Box 961050
FortWorth,TX 76161-0050
By:
Stephen M. Kuzma
Manapef Land Revenue Manapement
Title:
APP~V~D AS TO FORM:
@d¿ 2. '7!ffiþ/
City Attorney ()
CITY OF TUSTIN
300 Centennial Way
Tustin, California 92780
By:
Title:
150' 15
eorm 42" KevO1!1510:
TRACKING NO.05-28641
EXH I BIT II A II
A TT ACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
CITY
OF
TUSTIN
00
EXISTING RCR
._-----_..__\!..ðJ.£t:iCLA_AY..E...__=-=-=
'II,II"UI'III' ' ,!I,d "I~"'q,:m,i"'I"~'lli:,, :~II,'UI'J';QI
v- CA-7&.B
SCALE: 1 IN.=100 FT. MAP~
(AI IFORNIA DIV. " ,.1-" !.'f, ."_.'~!~~~:~~l~~~...,~!~I~!!:;'-" PARCEL -=-
SAN DIEGO SUBDIV. L.S. 7600 r ' -"'--"",,-.,
DATE 06/07/2005 ' '::,.. I
J~~~:~:-,""l,l~ I ~ I!~II~J() (1'rll' 61:,~c:id If"'1'.SI,~"" hilI. (~OO
TO MAIN TRK. :~ II ' PROPERTY LINE
@ MP 178 ~~I' I ",
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.jl-_.!:~I~I~:II..~~I~.'..!I~~!I~t._~~::!:' ~~;----"._---'"._-----------_.
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LEAD TRK.15,,¡,¡¡,)'\i:!,I'c~,,':"!:I:I,JI"" TO END
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DESCRIPTION OF PIPELINE
P I PEL I NE SHDWN BDLD
"'-........-...-,-..
"
"
CARR I ER CAS I NG CARRIER CAS I NG
PIPE P] PE PIPE PIPE
SIZE: ~ 2-60" LENGTH ON R/W: ?-51 ' 2-51 '
CONTENTS: STORM WATER WORK I NG PRESSURE: GRAVITY
PIPE MATERIAL: ~ STEEL BURY: BASE/RAIL TO TOP OF CASING 6.25'
SPECIFICATION / GRADE: ~ GR B 8URY: NATURAL GROUND 6.25'
WALL THICKNESS: ~ 0.781 " BURY: ROADWAY DITCHES 6.25'
COATING: ~ N/A CATHODIC PROTECTION N/A
VENTS: NUMBER ...!::iLA.. SIZE --=- HE I GHT OF VENT ABOVE GRDUND--=-
NOTE: CASING TO BE JACKED OR DRY BORED ONLY
AT IRVINE (TUSTIN)
COUNTY OF ORANGE
STATE OF CA
CTF
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