HomeMy WebLinkAbout05 APV PIPELN LIC # 05-29690 10-16-06
AGENDA REPORT
Agenda Item
Reviewed:
City Manager
Finance Director
MEETING DATE: OCTOBER 16, 2006
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
SUBJECT: APPROVAL OF PIPELINE LICENSE NO. 05-29690 BETWEEN THE
CITY OF TUSTIN AND THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY FOR THE EDINGER AVENUE WIDENING
PROJECT (CIP NO. 7147)
SUMMARY
The proposed Pipeline License 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
traffic signal interconnect facility across the BNSF right-of-way on Edinger Avenue, east of
Del Amo Avenue.
RECOMMENDATION
It is recommended that the City Council approve Pipeline License No. 05-29690 between
the City of Tustin and the Burlington Northern and Santa Fe Railway Company (BNSF) for
the construction and maintenance of a traffic signal interconnect facility across the BNSF
right-of-way on Edinger Avenue and authorize the Mayor and City Clerk to execute the
Pipeline License on behalf of the City.
FISCAL IMPACT
The one-time fee for the Pipeline License is $2,500. The annual required Railroad
Protective Liability Policy will be purchased through BNSF at a cost of $1,000 per year. The
cost for the traffic signal interconnect facility will be funded by the Edinger Avenue Widening
Project (CIP No. 7147).
BACKGROUND
As part of the Edinger Avenue Widening Project (CIP No. 7147), a new traffic signal
interconnect facility is being installed on Edinger Avenue between Parkway Loop in the City
of Tustin to Auto Mall Drive in the City of Santa Ana. The section between Del Amo Avenue
and the SR-55 Freeway will be constructed as part of the Newport Avenue Extension/SR-55
Ramp Reconfiguration Project (CIP No. 7130). This will allow coordination of traffic signals
along this entire segment of Edinger Avenue. The traffic signal interconnect facility is
required to cross under the BNSF right-of-way.
Approval of Pipeline License No. 05-29690 between the City of Tustin and the Burlington
Northern and Santa Fe Railway Company for the Edinger Avenue Widening Project (CIP
No. 7147)
October 16, 2006
Page 2
The City has been working with BNSF and their contract representative, Staubach, Inc., to
prepare the attached Pipeline License for the City to construct and maintain the traffic
signal interconnect facility on Edinger Avenue within the BNSF right-of-way. The License is
now ready for City Council approval. The City Attorney has signed the License "Approved
as to Form".
Tim D. Serlet
Director of Public Works/City Engineer
Dana R. Kasdan
Engineering Services Manager
TDS: DRK: ccg: Approval of Pipeline License #05-29690.doc
Attachment: Location Exhibit for Pipeline License No. 05-29690
Pipeline License No. 05-29690
05-29690
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
THIS LICENSE ("License"), made as of the _ day of , 2006 C'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. 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, maintain, and use in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process ("the
Drawings and Specifications") an electric supply line containing a maximum of One (1)
conductors, together with its supporting or containing structures ("Electric Supply Line")
across or along the premises of Licensor at or near the station of Santa Ana ( Tustin),
County of Orange, State of California, Line Segment 7600, Mile Post 177.73, shown by
bold line upon the Drawing No. 1-37927 dated December 20, 2005, marked "Exhibit A",
attached hereto and made a part hereof ("Premises").
2. 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, maintenance, and use of an
Electric Supply Line in accordance with the Drawings and Specifications. Licensee shall
not use the Premises for any other purpose. Licensee shall not use or store hazardous
substances, as defined by the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended ("CERCLAJI) or petroleum or oil as defined by applicable
Environmental Laws on the Premises.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in
the Premises, Licensor shall not be liable to refund Licensee any compensation paid
hereunder or for any damage Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the Electric Supply Line 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.
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.
Form 42 J; Rev 04/26/05
05-29690
COMPENSATION
7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Two
Thousand Five Hundred and No/100 Dollars ($2500) as compensation for the
use of the Premises.
(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills
therefore) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction, maintenance, and
use of the Electric Supply Line. including but not limited to the furnishing of
Licensor's Flagman and any vehicle rental costs incurred. The cost of f1agger
services provided by the Railway, when deemed. necessary by the Railway's
representative, will be borne by the Licensee. The estimated cost for one (1)
flagger is $600.00 for an eight (8) hour basic day with time and one-half or
double time for overtime, rest days and holidays. The estimated cost for each
flagger includes vacation allowance, paid holidays, Railway and unemployment
insurance, public liability and property damage insurance, health and welfare
benefits, transportation, meals, lodging and supervision. Negotiations for
Railway labor or collective bargaining agreements and rate changes authorized
by appropriate Federal authorities may increase actual or estimated flagging
rates. The flagging rate in effect at the time of performance by the Contractor
hereunder will be used to calculate the actual costs of flagging pursuant to this
paragraph.
(c) All invoices are due thirty (3D) 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
(3D) 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 3D, the
prime rate la'st 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, restrictions, or decisions of any court of
competent jurisdiction ("Legal Requirements") relating to the construction,
maintenance and use of the Electric Supply Line and the use of the Premises.
(b) 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.
2
Form 42) ; Rev. 04/26/05
05-29690
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 excepts and reserves the
right, to be exercised by Licensor and any other parties who may obtain written
permission or authority from Licensor:
(a) to maintain, renew, use, operate, change, modify and relocate any existing pipe,
(except the Electric Supply Line) power, communication lines and appurtenances
and other facilities or structures of like character upon, over, under or across the
Premises;
(b) 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
(c) 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 OPERA nONS
11. (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 construction of the Electric Supply Line and prior to
entering the Premises for any subsequent maintenance thereon.
(b) In performing the work described in Section 3, Licensee shaJl use only public
roadways to cross from one side of Licensor's tracks to the other.
12. (a) Licensee shall. at its sole cost and expense, construct and at all times maintain
the Electric Supply Line in accordance with the National Electric Code.
(b) If the operation or maintenance of said Electric Supply Line shall at any time
cause interference, including but not limited to physical interference from
electromagnetic induction, electrostatic induction, or from stray or other currents,
with the facilities of the Licensor or of any lessee or Licensee of the Licensor, or
in any manner interfere with the operation, maintenance, or use by the Licensor
of its right-of-way, tracks, structures, pole lines. signal and communication lines,
radio, or other equipment. devices, other property or appurtenances thereto,
Licensee agrees immediately to make such changes in its Electric Supply Line
and furnish such protective devices and/or replacement equipment to Licensor
and its lessees or Licensees as shall be necessary, in the judgment of the
3
Fonn 421; Rev. 04/26/05
05-29690
Licensor's representative, to eliminate such interference. The cost of such
protect.ive devices and their installations shall be borne solely by Licensee. If any
of the interference covered by this paragraph shall be, in the judgment of the
Licensor, or such importance to the safety of the Licensor's operations as to
require immediate corrective action, Licensee, upon notice from the Licensor,
shall either, at the Licensor's election, cease using said Electric Supply Line for
any purpose whatsoever and remove same, or reduce the voltage or load on said
Electric Supply Line, or take such other interim protective measures as the
Licensor may deem advisable, until the protective devices and/or replacement
equipment required by this paragraph have been installed, put in operation,
tested, and found to be satisfactory to correct the interference.
13. (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 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.
b) Licensee shall, at its sole cost and expense, and subject to the supervision of
Licensor's Roadmaster, locate, construct and maintain the Electric Supply Line 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.
Further, the Electric Supply Line shall be constructed. installed and maintained in
conformity. with the plans and specifications shown on the print attached hereto
as Exhibit A and made a part hereof (which, if present, are to be deemed part of
the Drawings and Specifications). Licensor may direct one of its field engineers
to observe or inspect the construction and/or maintenance of the Electric Supply
Line at any time for compliance with the Drawings and Specifications. If ordered
at any time to halt construction or maintenance of the Electric Supply Line 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 Electric Supply Line, it
being solely Licensee's responsibility to ensure that the Electric Supply Line is
constructed in strict accordance with the Drawings and Specifications and in a
safe and workmanlike manner in compliance with alf 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
Form 42); Rev. 04/.26/05
4
05-29690
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.
14. Licensee shall, at its sole cost and expense, remove all combustible material from
around wooden poles and will at all times keep the space around such poles free of such
material, and if removal of such combustible material shall not be attended to with fifteen
(15) days after having been requested by Licensor to do so, Licensor shall have the right
itself to perform the work and Licensee hereby agrees to reimburse Licensor for the
expense so incurred.
15. During the construction and any subsequent maintenance performed on Electric Supply
Line, 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 Electric Supply Line shall be completed within one (1) year of the Effective Date.
Upon completion of the construction of the Electric Supply Line 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.
16. 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 Electric Supply Line, Licensee shall, at its sole expense, within ninety (90) days
after receiving written notice from Licensor to such effect, make such changes in the
Electric Supply Line as in the sole 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 Electric Supply Line.
17. (a) 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
(S!&:., 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 Electric Supply Line, Licensor wiJI provide Licensee
any information that Licensor's Engineering Department has in its possession
concerning the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed Electric Supply Line.
Prior to conducting any such boring work, the Licensee will review all such
material. Licensor does not warrant the accuracy of information relating to
subsurface conditions and Licensee's operations will be subject at all times to the
liability provisions herein.
5
Form 421; Rev. 04/26/05
05-29690
(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.
18. 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
(b) otherwise secured or retired in accordance with any applicable Legal
Requirement. All excavated materials shall not remain on Licensor's property for
more than ten (10) days and shall be properly disposed of by Licensee in
accordance with applicable Legal Requirements.
19. Upon termination of this License, Licensee shall, at its sole cost and expense:
(a) remove all of its equipment from the Premises;
(b) remove the Electric Supply Line at Licensor's sole discretion;
(c) report and restore any damage to the Premises arising from. growing out of, or
connected with Licensee's use of the Premises;
(d) remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
(e) leave the Premises in the condition which existed as of the Effective Date of this
License.
20.. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License
at all times while on the Premises.
LIABILITY
21. (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
Form 421; Rev. 04/26/05
6
05-29690
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) 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) THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS
ENVIRONMENTAL PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE,
(in) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(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
LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO
THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b) FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 21(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 THE ELECTRIC SUPPLY LINE 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
Fonn 421; Rev. 04/26/05
7
05-29690
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
REGULA nONS, INCLUDING BUT NOT LIMITED TO THE SAFETY
APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL
HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANV 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 assume liability for and/or save and hold harmless any Indemnitee.
Licensee shall pay all 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
22. ALL PERSONAL PROPERTY OF LICENSEE, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL
BE AT THE RISK OF LICENSEE ONl V, 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
23. 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 rimit of a minimum of $2,000,000 each
occurrence and an aggregate limit of at least $4,000,000. 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
Form 421; Rev. 041.26/05
8
05-29690
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
. It is agreed that any workers' compensation exclusion does not apply to
Licensor's payments related to the Federal Employers Liability Act or a
Licensor Wage Continuation Program or similar programs and any payments
made are deemed not to be either payments made or obligations assumed
under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
. The 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.
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. Workers Compensation and Employers Liability Insurance, This insurance shall
include coverage for, but not limited to:
. Licensee's statutory liability under the worker's compensation laws of the
5tate(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.
. Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability Insurance. This insurance shalf name only the
Licensor as the Insured with coverage of at least $2,000,000 per occurrence and
$6,000,000 in the aggregate. The coverage obtained under this policy shall only
be effective during the initial installation and/or construction of the Electric Supply
Une.. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE
COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further
maintenance of the Electric Supply Line ;s 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 28 31
10 93)
. 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 $800 00.
Form 421; Rev. 04/26/05
9
05-29690
o I elect to participate in Licensor's Blanket Policy;
o 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.
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 shan 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.
Form 421; Rev. 04/26/05
10
05-29690
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.
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 inc;temnity 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
24. (a) 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 "~nvironmenta' 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.
(b) 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.
11
Form 421; Rev, 04/26/05
05-29690
(c) In the event that Licensor has notice from Licensee or otherwise of a release or
violation ot Environmental Laws arising in any way with respect to the Electric
supply Line 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-ot-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;
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on it by this License. Licensee
shaff promptly respond to Licensor's request for information regarding said
conditions or activities..
ALTERATIONS
25. 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
26. 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
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
27. 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
28. 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
(90) days to remove its Electric supply Line in the event of termination. Any waiver by
12
Form 421; Rev. 04/26/05
05-29690
Licensor of any default or defauJts shall not constitute a waiver of the right to terminate
this License for any subsequent default or defaults, nor shalf any such waiver in any way
affect Licensors ability to enforce any Section of this License. The remedy set forth in
this Section 28 shalf be in addition to, and not in limitation of, any other remedies that
Licensor may have at law or in equity.
LIENS AND CHARGES
29, Licensee shall promptly pay and discharge any and all liens anslng out of any
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
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 faHure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this
Section 29 or any other Section of this License.. Licensee shall pay when due any taxes,
assessments or other' charges (collectively, "Taxes") levied or assessed upon the
Improvements by any governmental or quasi-governmental body or any Taxes levied or
assessed against Licensor or the Premises that are attributable to the Electric Supply
Line.
TERMINATlON
30. 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.
31. 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 shalf 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
32. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of
LicellSee, 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
33. 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.
13
Fonn 421; Rev 04/26/05
05-29690
If to Licensor:
Staubach Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131-2800
AUn: Licenses/Permits
with a copy to:
BNSF Railway Company
2500 Lou Menk Dr. - AOB-3
Fort Worth, TX 76131-
AUn: Manager - Land Revenue Management
If to Licensee:
City of Tustin
Attn: Public Works Director
300 Centennial Way
Tustin, California 92780
SURVIVAL
34. Neither termination nor expiration wiIJ 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 Electric Supply Line and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
RECORDATION
35. It is understood and agreed that this License shall not be recorded in the official records
of the County of Orange.
APPLICABLE LAW
36. All questions concerning the interpretation or appfication 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
37. 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
38. 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. aU other agreements between the parties hereto relating to Licensee's use of the
Premises.. However, nothing herein is intended to terminate any surviving obligation of
14
Form 421; Rev 04/26/05
05-29690
Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior
written agreement between the parties.
MISCELLANEOUS
39. 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.
40. 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.
41. Staubach Global Services - RR, Inc. is acting as representative for BNSF Railway
Company and has full authority to act on BNSF's behalf with respect to this License.
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 7616-0050
By:
Stephen M. Kuzma
Title: Manager Land Revenue Management
CITY OF TUSTIN
300 Centennial Way
Tustin, Califronia 92780
By:
TitJe~ Mayor
APPROVE~~j TO FORM:
Douglas C. Holland, City Attorney
15
Form 421; Rev 04/26/05