29504206/200044.0011
CONDITIONAL WAIVER AND RELEASE OF ANY CLAIM TO RIGHTS PURSUANT TO AN AGREEMENT COVERING THE CONSTRUCTION OF A VIADUCT AT BARSTOW, CALIFORNIA, DATED NOVEMBER, 16, 1928
PARTIES
1. This CONDITIONAL WAIVER AND RELEASE OF ANY CLAIM TO RIGHTS PURSUANT TO AGREEMENT COVERING THE CONSTRUCTION OF A VIADUCT AT BARSTOW, CALIFORNIA, DATED NOVEMBER, 16 1928 (“Release”) is entered into between the City of Barstow, California (“City”), on the one hand, and BNSF Railway Company (“BNSF”), on the other.
RECITALS
A. WHEREAS, by way of a document titled AGREEMENT BETWEEN THE ATCHISON, TOPEKA, AND
SANTA FE RAILWAY COMPANY, DEPARTMENT OF PUBLIC WORKS OF THE STATE OF CALIFORNIA AND
COUNTY OF SAN BERNARDINO COVERING THE CONSTRUCTION OF A VIADUCT AT BARSTOW, CALIFORNIA dated November 16, 1928 (the “1928 Agreement”), the Atchison, Topeka, and Santa Fe Railway Company granted to the State of California (“State”) rights over and across its station grounds for an overhead crossing in the City of Barstow (the “First Avenue Viaduct”). A true and correct copy of the 1928 Agreement is attached hereto as Exhibit “A”.
B. WHEREAS, following construction of the First Avenue Viaduct in 1930, the State relinquished all right, title, and interest in the First Avenue Viaduct to the City by way of the following recorded documents: (i) Resolution for the “Relinquishment of State Highway in the City of Barstow, Road VIII-SBd1-Bsw,” recorded on August 14, 1961 in Book 5509 Page 447 (“Resolution”); and (ii) The State of California Department of Public Works Division of Highways Index and Detail Maps of Relinquishment recorded on October 26, 1960 in Book 4 Pages 75-80 (collectively the “Relinquishment Maps”).
C. WHEREAS, the City is presently acquiring real property interests west of the First Avenue Viaduct for a bridge to replace the First Avenue Viaduct (the “Replacement Bridge”).
D. WHEREAS, BNSF asserts that it is the successor-in-interest to Atchison, Topeka, and Santa Fe Railway Company’s rights and obligations under the 1928 Agreement.
E. WHEREAS, pursuant to an agreement titled NORTH FIRST AVENUE BRIDGE OVER BNSF RAILROAD CONSTRUCTION AND MAINTENANCE AGREEMENT dated March 31, 2021 (the “C&M Agreement”), the City has agreed to secure releases from parties with rights under the 1928 Agreement, relinquishing their rights and obligations under the 1928 Agreement, effective once travel is redirected from the First Avenue Viaduct to the Replacement Bridge (the “Open Date”).
IT IS THEREFORE AGREED, in consideration of the mutual promises, covenants, conditions, and provisions expressed herein, each of the parties hereto agree to be legally bound as follows:
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29504206/200044.0011
AGREEMENT
1. The City waives any and all rights they may have originating under the 1928 Agreement. The City further agrees to release BNSF from any and all obligations it may have which originate under the 1928 Agreement. The waiver and release discussed in this paragraph shall be effective upon the Effective Date of this Release.
2. The City hereby releases and relinquishes to BNSF any and all right, title or interest it has in the 1st Avenue Viaduct and any easement or right of way under which the 1st Avenue Viaduct was constructed, improved or maintained, effective as of the Open Date. It is the intent that any such easements or rightsof way shall then be extinguished.
3. BNSF agrees to waive any and all rights it may have originating under the 1928 Agreement. BNSF further agrees to release the City from any and all obligations they may have which originate under the 1928 Agreement. The waiver and release discussed in this paragraph shall not be effective until the Open Date.
4. This Release constitutes the entire agreement between the parties hereto with respect to the subject matter of this Release and may not be modified except by an instrument in writing signed by the party to be bound thereby.
5. If any term or provision of this Release shall be held to be invalid or unenforceable, the remainder of the Release shall remain in full force and effect.
6. Each individual executing this Release on behalf of an entity represents and warrants that he or she has been authorized to do so by the entity on whose behalf he or she executes this Release and that said entity will thereby be obligated to perform the terms of this Release.
7. This Release may be executed in counterparts, including by facsimile and/or e-mail, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original, and all such counterparts together shall constitute one and the same instrument.
8. The recitals set forth above are material to this Release and are incorporated by reference as though fully set forth herein. Additionally, the 1928 Agreement, C&M Agreement, Resolution and Relinquishment Maps defined in the recitals above are material to this Release and are incorporated by reference as though fully set forth herein.
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signatures follow
29504206/200044.0011
IN WITNESS HEREOF, BNSF and CITY have executed this Release as of _____________, 2023 (the “Effective Date”). Individuals signing on behalf of a principal, warrant that they have the authority to bind their principals.
Date:___________________________________
CITY OF BARSTOW
By: ____________________________________
Paul Anthony Courtney, Mayor
Date:___________________________________
BNSF RAILWAY COMPANY
By: ____________________________________
Name: _________________________________
Its: ____________________________________
Cary Hutchings
Director, Corporate Real Estate
9/14/2023