Rancho Cucamonga City Council
October 4, 2022

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Cucamonga is retaining, as noted previously, its share of the proceeds of the sale of the eastern portion of the current jointly owned station for economic development purposes. The City intends to develop land in the HART District to provide additional revenue to offset the anticipated and forecast public safety and infrastructure impacts of the high speed rail project. One potential option is a full service/luxury hotel and restaurant in the HART District. Additionally, the City intends to ensure that needed infrastructure improvements are paid for by new development to the extent feasible. For example, to facilitate connectivity and reduce congestion, Lewis Development will be conditioned to extend Azusa Court from its current terminus to The Resort North, as outlined in their original specific plan. Lewis Development also presently has several acres of land at the northeast corner of The Resort North zoned for Transit Related Uses which is anticipated to provide ancillary services to support transit users and visitors to the HART District.

Finally, although non-residential restaurant and retail uses in The Resort project to date are non- existent, the City anticipates working even closer with Lewis Development going forward to ensure that The Resort North and South are developed with the full scope of anticipated non-residential restaurant and retail acreage envisioned in the specific plan. Further, beyond the boundaries of The Resort, but within the larger HART District, the City is keenly focused on a 21st Century mixed use housing, employment and retail district which generates substantially more revenue than expenses and provides a focal center for southern Rancho Cucamonga.

Environmental Review
The Federal Railroad Administration (“FRA”) is conducting an environmental review pursuant to the National Environmental Policy Act (“NEPA”) for the segment of Brightline’s high-speed rail system between Victor Valley and Rancho Cucamonga, including the proposed Rancho Cucamonga station. Brightline cannot close on the property or begin construction on the Station Property until the FRA completes its NEPA review process. Brightline’s project is not subject to further review under the California Environmental Quality Act (“CEQA”) as a result of the Interstate Commerce Commission Termination Act (“ICCTA”).

In an effort to expedite railroad construction, the ICCTA preempts certain state environmental laws, including CEQA, when applied to railroad projects. In the 1800’s when railroads were key to the settlement of the western United States and the distribution of products throughout the U.S., there was a strong public push for greater regulation. The federal government initially began regulating interstate railroads in the 1800’s for several reasons. One reason was to prohibit unfair rate setting and prevent monopolies as people were increasingly frustrated at the time with the railroads impacts. In California this led to the Progressive Movement whose goal initially was to reform California’s political system by regulating the railroads. At one point the federal government took over the railroads only to later re-privatize them and significantly deregulate.

Certain amounts of regulation remain today, and the FRA and federal Surface Transportation Board (STB) are two such examples. The STB is an independent federal agency that is charged with the economic regulation of various modes of surface transportation, primarily freight rail. The STB exercises its statutory authority and resolves disputes in support of an efficient, competitive, and economically viable surface transportation network that meets the needs of its users. The FRA’s mission is to enable the safe, reliable, and efficient movement of people and goods. It has a significant budget and role related to safety matters including environmental oversight of new rail lines.

The STB has determined that Brightline’s high-speed rail system is one such project that is not subject to CEQA. Even if the project were subject to CEQA, it would qualify for a statutory exemption applicable to passenger and commuter services on rail or highway rights-of- way. (Public Resources Code Section 21080(b)(10)). Accordingly, no further environmental review is necessary once the FRA concludes it’s NEPA process, which is expected to wrap up in the fourth quarter of 2022.

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Surplus Land Act
On August 10, 2022, the California Department of Housing and Community Development determined that the City’s and SBCTA’s sale of the Station Property to Brightline is not subject to the Surplus Land Act because the sale of the property is necessary for interstate public transportation services.

General Plan Consistency
On July 27, 2022, the Planning Commission adopted Resolution 22-23 finding that the proposed disposition of the Station Property is consistent with the City’s General Plan, known as PlanRC.

PlanRC identifies the Station Property as the planned location of the high-speed rail station in order to develop the area into a regional transportation hub.

FISCAL IMPACT:

The City anticipates the impacts of the Brightline West project will be largely dependent on overall ridership. Brightline’s modeling of economic impacts is based on an optimistic assessment of ridership although their experience in Florida, admittedly skewed by COVID, does not necessarily bear out the most optimistic assessments. Similarly, SBCTA’s estimates of parking impacts are based on a worst-case assessment of ridership and assume nearly all freeway users will continue to drive to Cucamonga Station, which would seem to indicate very low Brightline ridership.

By contrast, the City’s fiscal impact modeling is not so black or white. Ridership and use of the Station could result in impacts from $250,000 per year to $1,000,000 depending on many variables and assumptions. Impacts are expected to include additional wear and tear on infrastructure due to new vehicular traffic at Cucamonga Station, potential for decreased parking revenue from Metrolink users and substantial increased law enforcement demands resulting from Cucamonga Station passengers utilizing high speed rail. Eventually, Brightline’s ridership could increase such that it causes Milliken Avenue to exceed its design criteria for maximum vehicular use and necessitating widening. The City and SBCTA are working on a joint study to examine Milliken Avenue and determine that tipping point and how it could be addressed; additionally, as noted previously the City is pursuing economic development activities throughout the HART District including hotel uses, restaurants, retail, new office, additional for-lease and for-sale housing and even shared offsite parking as needed. Ultimately the HART District is envisioned as a vital and unique community, similar to Playa Vista, that provides a destination for visitors to Western San Bernardino County. That larger scope, if developed carefully, should meet and exceed the revenue needs generated by the impacts from use of high-speed rail.

COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:

Through the construction of a unique west coast multi-modal transit facility that links commuter rail with high-speed rail with the Ontario International Airport thereby reducing GHG and congestion while improving the transit experience, this project aligns with and helps advance City Council goals to “intentionally anticipate and embrace the future”, “relentlessly pursue improvement” and “promote a safe and healthy community for all.” High speed electric zero emission rail, while in use in Europe and Asia for many years, is new to the United States and will be a cutting-edge project that reduces traffic congestion and GHG emissions. The construction of a multi-modal transit facility that combines true high-speed rail (over 125 mph) and provides a 1-stop link to an existing regional commuter rail system (Metrolink) which goes from downtown Los Angeles to San Bernardino and Redlands, a bus rapid transit system (West Valley Connector) which is under construction, the Ontario Airport (SBCTA underground tunnel) and an adjacent walkable mixed use community (The Resort) will be unique in the United States and is a quantum improvement in mass transit connectivity for the City of Rancho Cucamonga and San Bernardino

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County. This new system will improve transit connectivity in a safe, efficient and cost-effective manner while improving the environmental quality of the area. This project will form the cornerstone of the HART District for Rancho Cucamonga.

ATTACHMENTS:

1. Development and Disposition Agreement including all easements and exhibits

2. Site Plan

3. Renderings

4. SBCTA Cooperative Agreement Amendment

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DISPOSITION AND DEVELOPMENT AGREEMENT

by and between the

CITY OF R
ANCHO CUCAMONGA and the SAN BERNARDINO COUNTY
TRANSPORTATION AUTHORITY, as sellers
and

DESERTXPRESS ENTERPRISES, LLC,
a Nevada limited liability company, as buyer/developer
ATTACHMENT 1

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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the “Agreement”) is dated as of October 5, 2022 (the “Effective Date”) and is entered into by and among the CITY OF RANCHO CUCAMONGA, a Cali fornia municipal corporat ion (the “City”), the SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY, a public entity (“SBCTA”) and DESERTXPRESS ENTERPRISES, LLC, a Nevada l imited liability company d/b/a Brightline West and qualified to do business in California (“Developer”).

RECITALS
A. The City and SBCTA (collectively, “Seller” ) believe they jointly own as tenants in common the property described on Exhibit “A” and improvement s thereon (the “City/SBCTA Property”). SBCTA believes it owns the property described on Exhibit “A” and improvements thereon (the “SBCTA Property”). The City/S BCTA Property excludes the “Reserved Property” as defined in the attached Grant Deed, which shall be retained in fee by Seller.

B. Developer desires to acquire the City /SBCTA Property from Seller and the SBCTA Property from SBCTA, and additional easements from City and/or SBCTA, all for the purpose of developing a train station and re lated infrastructure (the “Project”) for a privately owned and operated publicly accessible high-speed passenger railroad, including parking facilities and related/ancillary uses; however, the term “Project” shall not include the easements or improvements thereon described in the 8th Street Easement or Aerial Easement or SBCTA Lease, as such terms are defined below. A site plan fo r the Project (“Site Plan”) is depicted on Exhibit “C” attached hereto.

C. SBCTA has separately entered into a San Gabriel Subdivision Lease Agreement Related to the Brightline West High-Speed Rail Project dated March 2, 2022 with Developer (the “SBCTA Lease”) for property necessary for the operation of the private rail line that will be served by, but is not part of, the Project.

D. A material inducement to the Seller to en ter into this Agreement is the agreement by Developer to develop the Project as provided herein.

AGREEMENT
NOW, THEREFORE, in consideration of the a bove recitals and of the mutual covenants contained in this Agreement, the Parties (defined below) hereto agree as follows:

1. DEFINITIONS.

1.1 Definitions. The following capitalized te rms used in this Agreement shall have the meanings set forth below:

1.1.1 “8th Street Easement” is defined in Section 2.1.

1.1.2 “Adjacent Property” is the Gran tor’s Property described in Exhibit A to the Aerial Easement.

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1.1.3 “Aerial Easement” is defined in Section 2.1.

1.1.4 “Agreement” means this Di sposition and Development Agreement.

1.1.5 “Applicable Requirements” is defined in Section 3.4.

1.1.6 “Approved Title Exceptions” is defined in Section 2.4.1.

1.1.7 “CC&Rs” is defined in Section 2.5.7.

1.1.8 “City” means the City of Rancho Cucamonga, a municipal corporation.

1.1.9 “City Manager” means the City Manager of the City.

1.1.10 “City/SBCTA Property” means the property described on Exhibit “A” and improvements thereon.

1.1.11 “Close of Escrow” or “Closing” is defined in Section 2.3.

1.1.12 “Default” is defined in Section 5.1.

1.1.13 “Deposit” is defined in Section 2.2.

1.1.14 “Developer Conditions” is defined in Section 2.6.

1.1.15 “Developer Designees” is defined in Section 2.8.2.

1.1.16 “Developer Fee Property” shall mean the City/SBCTA Property and the SBCTA Property, both of which are described in Exhibit “A”.

1.1.17 “Disapproved Title Exceptions” is defined in Section 2.4.1.

1.1.18 “Documents” is defined in Section 2.8.2.

1.1.19 “Due Diligence Period” is defined in Section 2.8.2.

1.1.20 “Easements” shall mean the Aerial Easement, the 8th Street Easement and the Milliken Triangle Easement. Th e legal descriptions attached to the Easements will be updated, subject to the written approval of the Parties, prior to recordation following the design process of the Improvements to use at datum elevation instead of ground level where possible.

1.1.21 “Environmental Requirements” shall mean all present and future governmental laws, regulations, ru les, orders, permits, licenses, approvals, authorizations and other requirements of any kind applicable to Hazardous Materials, including common law tort principles (such as public and private nuisanc e and strict liability for conducting abnormally dangerous activities).

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1.1.22 “Escrow” is defined in Section 2.3.

1.1.23 “Escrow Holder” means First Am erican Title Company at New York; Shelliza Lallmohamed (see notice provision). For the avoidance of doubt, documents may be delivered to a local First American office as designated by Escrow Holder.

1.1.24 “Event of Default” is defined in Section 5.1.

1.1.25 “FIRPTA Certificate” is defined in Section 2.9.1.7.

1.1.26 “Force Majeure Delay” is defined in Section 5.7.

1.1.27 “Grant Deed” is defined in Section 2.4.2.

1.1.28 “Handle,” “Handled” or “Handling” shall mean any installation, handling, generation, storing, treatment, use, disposal, disc harge, release, manufacture, refinement, emission, abatement, removal, transportation, presence or migration of any Hazardous Materials brought on the Station Property by Seller or Seller’s Representatives (as defined below), or any other activity or any type in connection with or involving Hazardous Materials.

1.1.29 “Hazardous Materials” shall mean any substance that now or in the future requires inves tigation or remediation under, or is regulated or defined as a hazardous waste or hazardous substance, by any governmental authority or instrume ntality or any law, regulation, rule or order, or any amendm ent thereto, including, w ithout limitation, the Comprehensive Environmental Response Compensa tion and Liability Act, 42 U.S.C. § 9601 et seq. and the Resource Conservation and Recovery Act, 42 U.S.C. § 9601 et seq., or that is otherwise toxic, explosive, corrosive, flammable, infectious, mutagenic, radioactive, carcinogenic, a pollutant or a contaminant, including gasoline, diesel, petroleum hydrocarbons, polychlorinated biphenyls (PCBs), asbestos, radon and urea formaldehyde foam insulation.

1.1.30 “Improvements” means all buildings, landscaping, infrastructure, utilities, and other improvements to be built on the Station Property, as described in the Scope of Development, and any improvements required as a governmental condition of approval for the Project.

1.1.31 “Indemnified Parties” is defined in Section 6.2.

1.1.32 “Metrolink” is the passenger railroad service operated and maintained by SCRRA.

1.1.33 “Milliken Triangle Easement” is defined in Section 2.1.

1.1.34 “Negotiation Period” is defined in Section 2.1.

1.1.35 “Non-Station Easements” shall mean the property described in the Aerial Easement and 8th Street Easement.

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1.1.36 “Party” means any party to this Agreement, and “Parties” means two (2) or more of the Parties to this Agreement.

1.1.37 “Permitted Exceptions” is defined in Section 2.4.2.

1.1.38 “Permitted Transfer” is defined in Section 4.1.

1.1.39 “Plans and Specifications” means all drawings, landscaping and grading plans, engineering drawings, final co nstruction drawings, and any other plans or specifications for construction of the Project.

1.1.40 “Project” has the meaning set forth in Recital B.

1.1.41 “Project Budget” is defined in Section 2.5.3.

1.1.42 “Property” shall mean collectiv ely the Station Property and the Non-Station Easements.

1.1.43 “Purchase Price” is defined in Section 2.1.

1.1.44 “Qualified Appraiser” is defined in Section 2.1.

1.1.45 “Released Parties” is defined in Section 2.8.3.

1.1.46 “Reserved Property” has the meaning set forth in Recital A.

1.1.47 “SBCTA Property” means the property described on Exhibit “A” and improvements thereon.

1.1.48 “Schedule of Performance” means the schedule attached hereto as Exhibit “B”.

1.1.49 “Scope of Development” mean s the improvements within the Station Property as generally depicted on the Site Plan.

1.1.50 “SCRRA” means the Southern California Regional Rail Authority.

1.1.51 “Seller” shall mean the City and SBCTA; wherever the Seller is to approve an item, execute a document, or gi ve consent, both City and SBCTA must give approval, execute the document, or give consen t; wherever Seller has a duty or obligation to Developer or makes a representation to Develope r then the duty, obligati on, or representation is made by City and/or SBCTA separately and as may be appropriate.

1.1.52 “Seller Conditions” is defined in Section 2.5.

1.1.53 “Station Property” shall mean the Developer Fee Property and property described in the Milliken Triangle Easement.

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1.1.54 “Survey” is defined in Section 2.4.1.

1.1.55 “Title Commitment” is defined in Section 2.4.1.

1.1.56 “Title Company” shall mean the Escrow Holder (i.e., the Title Company and the Escrow Holder are the same).

1.1.57 “Transfer” is defined in Section 4.1.

1.1.58 “Tunnel Easement” is defined in Section 2.4.2.

1.1.59 “Withholding Affidavit” is defined in Section 2.9.1.6.

2. PURCHASE AND SALE OF THE PROPERTY AND EASEMENTS;
PURCHASE PRICES; DEPOSIT.

2.1 Purchase and Sale; Purchase Prices. In accordance with and subject to the terms and conditions set forth in this Agreement: (i) the Seller agrees to sell the easement in the form attached hereto as Exhibit “F” (the “Aerial Easement”) to Developer, and Developer agrees to purchase the Aerial Easement from the Seller; ( ii) the City agrees to sell the easements in the forms attached hereto as Exhibit “E” (the “8th Street Easement”) and Exhibit “G” (the “Milliken Triangle Easement”) to Developer, and Developer agrees to purchase the 8th Street Easement and Milliken Triangle Easement from the City, (iii) SBCTA agrees to sell the SBCTA Property to Developer, and Developer agrees to purchase the SBCTA Propert y from SBCTA and (iv) Seller agrees to sell the City/SBCTA Property to Developer, and Developer agrees to purchase the City/SBCTA Property from Seller.

The purchase price for the Developer Fee Property shall be the fair market value of the Developer Fee Property, determined as described below. The allocation of the purchase price of the Developer Fee Property between the City/SBCTA Property and the SBCTA Property shall be determined by Seller.

The purchase prices for the Aerial Ease ment, the 8th Street Easement, and the Milliken Triangle Easement shall be the fair mark et value of the Aerial Easement, the 8th Street Easement, and the Milliken Triangle Easement, respectively, determined as described below. The allocation of the purchase price for the Aerial Easement shall be determined by Seller.

The purchase prices for the Developer F ee Property, the Aerial Easement, the 8 th
Street Easement, and the Milliken Triangle Easeme nt are collectively referred to herein as the “Purchase Price”.

The fair market values of the Developer Fee Property, the Aerial Easement, the 8th Street Easement, and the Milliken Triangle Easeme nt shall be determined separately, by one or more appraisals or appraisal update(s) obtained by Developer and Seller not earlier than six (6) months prior to the deadline for the Close of Escr ow and not later than three (3) months prior to the deadline for the Close of Escrow, at Develope r’s cost. A copy of th e appraisal(s) and/or update(s) shall be delivered to all Parties upon receipt.

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If Developer delivers written notice of disagreement with an appraised value, describing in reasonable detail the specific reasons for disagreement, within ten (10) days after a copy of the appraisal or appraisals or updates is delivered to Developer, then for a period of twenty (20) days after delivery of such written notice of disagreement (the “Negotiation Period”), Seller shall discuss the items in the Developer’s notice with Devel oper and attempt to agree upon appropriate revisions (but Seller shall retain the right to disagree with such items in Developer’s notice). If Seller and Developer fail to agree upon revisions w ithin the Negotiation Period, then each shall appoint a Qualified Appr aiser (as hereinafter defined) w ithin ten (10) days after the expiration of the Negotiation Period by written notice to the other. Each Qualified Appraiser shall complete and deliver to the Pa rty which appointed such Qualif ied Appraiser an independent appraisal report and a notice to Developer, Seller , and the other Qualified Appraiser that their report is complete within ninety (90) days after the expiration of the Negotiation Period. As used herein, the term “Qualified Appraiser” shall mean an appraiser that: (a) is a real estate appraiser duly licensed in the State of California; (b) has at least 10 years’ experience, on a full-time basis, in appraising commercial property within Rivers ide and/or San Bernardi no Counties; and (c) is independent and has no relationship with any or all of Seller or Developer, or any affiliates of Developer, nor may there have been any such re lationship at any time dur ing the five (5) year period immediately preceding the designation of th e appraiser. If only Developer or only Seller appoints a Qualified Appraiser within such ten ( 10)-day period or only one Qualified Appraiser delivers an appraisal report within said ninety (9 0) day period after expiration of the Negotiation Period, then the fair market value of each real pr operty interest shall be the amount noted in the appraisal report of the only Qualified Appraiser.

Provided that both Developer and Seller appoint a Qualified Appraiser as set forth above and at such time that bo th Qualified Appraisers have co mpleted their appraisal reports within ninety (90) days of the expiration of the Negotiation Period, the two Qualified Appraisers shall each notify the other in writing of their determination of the fair market value of the property interests, and the rationale therefor. If the difference between the two appraisals for any of the real property interest is less than ten percent (10%) of the higher appraised value, then the fair market value of such real property interest shall be the average of the two (2) appraisals. If the difference between the two appraisals for any of the real pr operty interest is greater than ten percent (10%) of the higher appraised value, then the two Qualified Appraisers shall then together appoint a third Qualified Appraiser (and deliver copies of their determinations of fair market value and rationale therefor to such third Qualified Appraiser) within ten (10) business days after the last Qualified Appraiser report was completed and delivered, but only to determine the fair market value with respect to any such real property interests not resolved pursuant to the preceding sentence. The third Qualified Appraiser shall be instructed to select, by written notice to each of Seller and Developer within ten (10) business days of bei ng appointed, the appraisal report prepared by the first two Qualified Appraisers which the third Qualified Appraiser believes is more accurate. The fair market value for the disputed real property interests in the appraisal so selected shall be conclusively deemed to be the fair market value for such real property interests.

If the two Qualified Appraisers fail to timely appoint a third, or if both Developer and Seller fail to appoint a Qualified Appraiser w ithin ten (10) days of the expiration of the Negotiation Period, then either Developer or Seller may apply to the American Arbitration Association (or any organization su ccessor thereto) to appoint a Qu alified Appraiser, or in its absence, refusal, failure or inability to act, may apply for a court appointment of such appraiser.

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The arbitration shall be conducted in the City of Rancho Cucamonga, County of San Bernardino, State of California and, to the ex tent applicable and consistent w ith this Agreement, shall be in accordance with the Commercial Arbi tration Rules of the American Arbitration Association or any successor body of similar function.

The fees and expenses of the Qualified Appraisers shall be shared equally by Developer and Seller, but each Party shall be responsible for the fees and disbursements of its own attorneys. Developer and Seller shall sign a ll reasonable documents and do all other things reasonably necessary to submit any such matter to arbitration by the third Qualified Appraiser.

2.2 Deposit. Within ten (10) business days after the date this Agreement is executed by the Seller and delivered to Developer, the Developer shall deposit the sum of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) with Escrow Ho lder (together with all interest thereon, the “Deposit”). The Deposit shall be held by Escrow Holder in an interest bearing account. The Deposit shall be credited to the Purchase Price at the Close of Escrow. In the event the Close of Escrow does not occur due to a defa ult by Developer, the Deposit shall be delivered to and retained by the Seller as liquidated dama ges for such default. If this Agreement is terminated by Developer pursuant to its terms prior to the Close of Escrow, then the Deposit shall be returned to Developer. DEVELOPE R AND SELLER AGREE T HAT BASED UPON THE

CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH SELLER’S DAMAGES BY REASON OF A DEFAULT BY DEVELOPER PRIOR TO THE CLOSE OF ESCROW.

ACCORDINGLY, DEVELOPER AND SELLER AGREE THAT IN THE EVENT OF A

DEFAULT BY DEVELOPER PRIOR TO THE CLOSE OF ESCROW, SELLER SHALL BE ENTITLED TO THE DEPOSIT AS LIQUIDATED DAMAGES.

Developer Initials: Seller Initials (City): Seller Initials (SBCTA):

2.3 Opening and Closing of Escrow. With in five (5) business days after the Date this Agreement is executed by the Seller and delivered to Developer, the Seller and the Developer shall cause an escrow (the “Escrow”) to be opened with Escrow Holder for the sale of the Property by the Seller to Devel oper. The Parties shall deposit with Escrow Holder a fully executed duplicate original of this Agreement as the escrow instructions for the Escrow and Developer shall wire the Deposit to Escrow Holder. The Seller and Developer shall provide such additional instructions as shall be necessary and consistent with this Agreement. Provided that each of the conditions to closing described below shall have been satisfied, Escrow shall close (the “Close of Escrow” or “Closing”) on or before December 31, 2025. If the Close of Escrow does not occur by such date, any Party not then in default may terminate this Agreement by written notice to the other and all the funds and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing Party, except that all escrow and title cancellation fees shall be paid by the Party or Parties in default.

2.4 Condition of Title; Title Insurance.

2.4.1 Title Exceptions; Survey. Within thirty (30) days following the Effective Date, Developer shall obtain one or more preliminary title reports for the Property (collectively, the “Title Commitment”) from the Title Company contemplating an owner’s title

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policy(ies) for amounts determined by Developer with hyperlinks to title exception documents, and shall email it to Seller at jason.w [email protected], [email protected], [email protected], [email protected], and [email protected]. Developer’s approval or disapproval of title ex ceptions in such preliminary report shall occur during the Due Diligence Period. Upon obtaining the title repo rt, Developer may cause one or more ALTA surveys (collectively, “Survey”) to be performed within sixty (60) days with all plottable title exceptions shown on the Survey. Developer shall promptly deliver a copy of the Survey to the Seller together with any objections (if any) to the Survey and any other title exceptions to which Developer objects, stating the re asons for the objections, all within thirty (30) days following its receipt of the Survey. Failure to timely object in writing to any such exceptions shall be deemed approval. Seller shall have ten (10) business days after delivery by Developer to Seller of a written objection to such a title exception(s) to notify De veloper in writing that Se ller will: (a) remove one or more of the objectionable exception(s) or cause them to be removed by the end of the Due Diligence Period or reasonably insured over by the Title Company; (b) decline to remove one or more exception(s) (and decline to cause them to be reasonably insured). Failure by Seller to so notify Developer in writing shall be deemed to be Seller’s election not to remove or otherwise address the title exception(s) objected to by Developer. If Seller notifies Developer that Seller will remove (or cause to be removed) one or more of such title exceptions, then Seller shall do so on or before the Close of Escrow (unless this Agreemen t is terminated by Developer under this Section or Section 2.8.2 below). If Seller fails to so notify Developer as to any exception, or declines to remove or insure over title exceptio ns, then Developer may terminate this Agreement by written notice to Seller as provided in Sectio n 2.8.2. If Developer fails to so ter minate this Agreement as provided in Section 2.8.2, Developer shall be deemed to have approved and accepted the applicable title exceptions (which, together with any title exceptions in the PTR that have been approved by Developer and any title exception created by Developer including the CC&Rs, are hereinafter referred to as th e “Approved Title Exceptions”). As used herein, the term “Disapproved Title Exceptions” shall mean any title exceptions that Seller has agreed to remove, cause to be removed or cause to be reasonabl y “insured over” by titl e policy endorsement or removal from the title policy to be issued to Developer at the Close of Escrow.

2.4.2 At the Close of Escrow, the Seller shall convey to Developer fee title to the Developer Fee Propert y by grant deed in the form at tached hereto as Exhibit “D” (collectively, the “Grant Deed”) and convey the Easements. Title to the Property shall be conveyed subject to: (i) non-delinquent assessments for the tax year during whic h the conveyance occurs, (ii) a reservation of a tunnel right of way easement under the Developer Fee Property to the benefit of Seller and described in the Grant Deed (the “Tunnel Easement”), and (iii) all Approved Title Exceptions, as referenced in the Grant Deed (c ollectively, the “Permitted Exceptions”). The Parties agree that the terms of the Tunnel Easeme nt, such as insurance and indemnity provisions, shall be determined within ninety (90) days of the Effective Date of this Agreement in each Party’s sole discretion and any Party may terminate this Agreement for failure to reach such agreement, in which event Developer shall receive a return of the Deposit.

2.5 Seller Conditions to Close of Escrow. The obligation of the Seller to close Escrow shall be subject to the satisfaction (or express written waiver by the City Manager of City and the Executive Director of SBCTA) of each of the following cond itions (collectively, the “Seller Conditions”):

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2.5.1 All required governmental permits, licenses, and approvals for the development and construction of th e Project shall have been issued, and NEPA shall have been complied with respect to such permits, licenses, and approvals, as applicable, all as shown by reasonable evidence delivered to Seller.

2.5.2 Developer shall have entered into a stipulated sum or guaranteed maximum price construction contract for the Proj ect or a construction contract for the Project reasonably acceptable to Seller, and with respec t to which Developer provides assurance by way of payment and performance bonds, letter(s) of credit or the like that is sufficient to complete the Project, consistent with the Project descriptio n, and which is with a reputable, experienced contractor, and shall have delivered a copy to Seller.

2.5.3 Developer shall have submitted to the City Manager and the Executive Director of SBCTA a Project budget (the “Project Budget”), together with evidence in a form reasonably satisfactory to the City Manager and Executive Director demonstrating that the Developer has sufficient allocated sources of financing, including, but not limited to, grants, private activity bond allocations and taxable financing, and additional capital funds (i.e., “equity”) available and the sources of such equity have committed to pay all of the costs of development of the Project that will not be paid by secured and unsecured loans, grants or other financing sources, including cost overruns and/or a reasonable contingency.

2.5.4 The delivery by Developer of all documents and funds required to be delivered pursuant to Section 2.10 hereof.

2.5.5 Developer shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow.

2.5.6 The representations of the Developer contained in Section 7.1 of this Agreement being true and correct in all material respects.

2.5.7 On or before the date that is ninety (90) days after the Effective Date, Seller and Developer shall have approved ( each in their sole and absolute discretion) a recordable document in the natu re of “conditions, covenants, re strictions and easements” that coordinates the ownership and ope ration of the Developer Fee Prope rty being sold to Developer with the Reserved Property retained by Seller (“CC&Rs”) including, if and to the extent the Parties agree, provisions such as described on Exhibit “I” attached hereto, which shall be recorded against said property at the Close of Escrow. The CC&Rs are anticipated to include, and/or the Parties are anticipated to consider for inclusion the follo wing: (1) a pedestrian easement appurtenant in favor of and for access between the Reserved Prope rty and the Metrolink st ation site traversing the Developer Fee Property in one of the two pot ential locations shown on the Site Plan; (2) a utility easement appurtenant in, under and thro ugh the Developer Fee Prope rty in favor of the Reserved Property for mechani cal, electrical or other mis cellaneous conduit and equipment appurtenant to the operation of the Reserved Property for parking purposes; (3) an easement appurtenant in favor of the De veloper Fee Property for Brightlin e’s pillars/support beams within the Reserved Property; (4) a reciprocal use rest riction for transit purposes only on the Developer Fee Property and the Reserved Property; (5) a ri ght of first negotiation /offer for Developer to

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acquire the Reserved Property; (6) reference to the temporary reversionary right of Seller with respect to the Developer Fee Property; (7) reci procal construction and operation insurance and indemnity provisions; (8) reciprocal maintenanc e and access requirements; (9) an obligation to operate the train station at th e Station Property at all times Developer maintains a high-speed passenger rail system through Rancho Cucamonga; (1 0) a pedestrian ease ment appurtenant in, under, through, and across the Developer Fee Property in favor of the SBCTA owned railroad right of way as necessary to provide access between the Ad jacent Property and the north Metrolink platform via a pedestrian underc rossing; and (11) a temporary construction easement addressing the terms and negotiation points set forth in Section 4 of Exhib it I. The Parties hereby waive the implied covenant(s) of good faith and fair dealing with respect to the negotiation of the CC&Rs and Tunnel Easement and the approval of the CC&Rs and Tunnel Easement is subject to the sole discretion of each of the Parties.

2.5.8 Developer shall have delivered to Seller reasonable evidence that the insurance required of Developer under the CC&Rs shall have been obtained (such as insurance certificates, showing Seller as additional insureds).

2.5.9 Pursuant to the terms of Section 3.4 below, the City Manager and the Executive Director of SBCTA shall have revi ewed and approved the plans and specifications for the Project for consistency with the Site Plan and this Agreement.

2.6 Developer Conditions to Close of Escrow. The obligations of the Developer to close escrow shall be subject to the satisf action (or waiver by Developer) of the following conditions (the “Developer Conditions”):

2.6.1 There shall have been no change to the physical or environmental condition of the Property and no new title exceptions after the date of the title report that, in either case, would materially and adversely affect the development, use or operation of the Project.

2.6.2 The representation of the Seller co ntained in Section 7.2 of this Agreement being true and correct.

2.6.3 The delivery by Seller of all docum ents required to be delivered pursuant to Section 2.9 hereof.

2.6.4 The Title Company shall have committed to issue at the Close of Escrow an owner’s titl e insurance policy(ies), with any extended coverage and endorsements requested by Developer, showi ng fee simple title to the Deve loper Fee Property vested in Developer (or Developer’s assignee as permitted by this Agreement) and the Easements, subject only to the Permitted Exceptions.

2.6.5 Seller shall have performed, obse rved and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow.

2.6.6 Seller and Developer shall have approved, executed and caused to be acknowledged the CC&Rs (which shall be recorded at the Close of Escrow).

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2.6.7 Seller shall have delivered to Developer reasonable evidence that the insurance required of Seller under the CC&Rs shall have been obtained (such as insurance certificates, showing Developer as additional insured).

2.7 Costs; Escrow Holder Settlement Statement.

2.7.1 Developer will pay the cost of a standard coverage title policy; Developer will pay any additional costs of the title policy. Developer will pay the cost of all documentary transfer taxes and the Escrow fees. Any other costs will be allocated between Developer and Seller in accordance with customary practice in the County in which the Property is situated. Real property taxes and any other matters to be prorat ed will be prorated as of the Close of Escrow.

2.7.2 Escrow Holder is authorized on the Close of Escrow to pay and charge the Developer for any fees, charges and costs payable under Section 2.7.1 above as set forth on the settlement statements approved by the Partie s. Before such payments are made, Escrow Holder shall notify the Seller and Developer of the fees, charges, and costs necessary to close under the Escrow, by delivering draft settlement statements to the Parties for their mutual approval.

2.8 Condition of the Property.

2.8.1 “As-Is” Sale. Developer acknowledges and agrees that, except as expressly set forth herein, and subject to Devel oper’s rights to inspect title and the Survey described in Sections 2.4 above and the physical condition of the Developer Fee Property described in Section 2.8.2 below (and Developer’s rights to terminate this Agreement as provided therein), Developer is acquiring the Developer Fee Property in its “AS IS” condition, without representation or warranty (express or implied) and subject to all matters of record and all defects and conditions, whether patent or latent, and subj ect further to all legal requireme nts such as taxes, assessments, zoning, use permit requirements and building codes, and other laws, based solely on Developer’s own inspection, analysis and evaluation and not in reliance on any information provided by or on behalf of Seller.

2.8.2 Delivery of Document by Seller; Inspections by Developer; Due Diligence Period. Within ten (10) business days after the Effective Date, Seller shall deliver to Developer copies of all material, non-privileged documents in the possession of Seller that pertain to the Property (the “Documents”). Upon the Effective Date of this Agreement until the date that is one hundred and twenty (120) days after the Effective Date (the “Due Diligence Period”), Developer and its contractors and consultants who are designated in writing to Seller (the “Developer Designees”) shall have the right to enter onto the Property (without disturbing any occupants thereof) for the purpose of performing th e Survey (in the first thirty days), hazardous materials inspections, soils inspections and ot her physical inspections and investigations; provided, however, that: (a) Developer shall deliver copies of all inspection reports to City and/or SBCTA; (b) no inspections or i nvestigations shall damage the Property or any improvements thereon or shall be “invasive” unless the Seller has received a plan describing the scope of the inspection or investigation and has issued a noti ce to proceed with such plan in writing, which notice to proceed shall not be unr easonably withheld; (c) Develope r shall immediately repair all damage caused by or related to its inspections; and (d) neither Developer nor any of Developer

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Designees shall enter the Property unless Deve loper has provided Seller reasonable written evidence (such as insurance certificates and/or copies of policies) that the activities of Developer and the Developer Designees are covered by reas onable liability insurance naming Seller as an additional insured. Developer shall defend, indemnify and hold Seller harmless from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys’ fees and cost) arising from or caused by any such entries or inspections, including entries and inspections by Developer Designees (except that Developer shall not be liable for (i) existing conditions that are merely disc overed but not caused or contri buted to by Developer or its designated consultants/contractors/surveyor, or (ii) the gross negligence or intentional misconduct of Seller). If Developer (act ing in good faith) disapproves any condition of the Property or any Document, then Developer may terminate this Agreement by written notice to Seller given on or prior to the end of the Due Diligence Period that describes the basis for the disapproval.

2.8.3 Releases and Waivers. Develope r acknowledges and agrees that in the event Developer does not approve of the condition of the Property under Section 2.8.2, Developer’s sole right and remedy shall be to terminate this Ag reement under and in accordance with Section 2.8.2. Consequently, Developer he reby waives any and all objections to or complaints regarding the Developer Fee Propert y and its condition, includi ng, but not limited to, federal, state or common law based actions and any private right of action under state and federal law to which the Developer Fee Property is or may be subject, includi ng, but not limited to, CERCLA, RCRA, physical characteristics and existing conditions, including, without limitation, structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Developer Fee Property. Effective upon Close of Escrow, Developer further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Developer Fee Property and the risk that adverse physical charact eristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigations.

Effective upon Close of Escrow, Deve loper and anyone claiming by, through or under Developer also hereby waives its right to recove r from and fully and ir revocably releases Seller, Southern California Regional Rail Auth ority (SCRRA), and each of Seller’s (City’s and SBCTA’s) and SCRRA’s council members, board members, employees, officers, directors, representatives, agents, servants, attorneys, successors and assigns (“Released Parties”) from any and all claims, responsibility and/or liability that it may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to (i) the condition (including any defects, errors, omissions or other conditions, latent or otherwise, and the presence in the soil, air, structures and surface and subsurface waters of materials or substances that have been or may in the future be determined to be Hazardous Materials or otherwise toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Developer Fee Property under current or future federal, state and local laws re gulations or guidelines), valuation, salability or utility of the Developer Fee Prope rty, or its suitability for any purpose whatsoever, and (ii) any information furnished by the Releas ed Parties under or in connection with this Agreement. This release includes claims of whic h Developer is presently unawar e or which Developer does not presently suspect to exist which, if known by Deve loper, would materially affect Developer’s

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release to City. Effective upon Close of Escrow , Developer specifically waives the provision of California Civil Code Section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RE LEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”
In this connection and to the extent permitted by law, Developer hereby agrees, represents and warrants that Developer reali zes and acknowledges that factual matters now unknown to it may have given or ma y hereafter give rise to caus es of action, cl aims, demands, debts, controversies, damages, costs, lo sses and expenses which are presently unknown, unanticipated and unsuspected, and Developer furt her agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Developer nevertheless hereby intends to release, discharge and acquit Released Parties from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included as a material portion of the consideration given to Seller by Developer in exchange for Seller’s performance hereunder.

Developer hereby agrees that, if at any time after the Close of Escrow any third party or any governmental agency seeks to hold Developer responsible for the presence of, or any loss, cost or damage associated with, Hazardous Materials in, on, above or beneath the Developer Fee Property or emanating therefrom, then Developer waives any rights it may have against Seller in connection therewith, including, without limitation, under CERCLA, and Developer agrees that it shall not (i) implead City and/or SBCTA, (ii) bring a contribution action or similar action against City and/or SBCTA, or (iii) attempt in any way to hold Seller responsible with respect to any such matter. The provisions of this Section 2.8.3 shall survive the Close of Escrow.

Seller has given Developer material conc essions regarding this transaction in exchange for Developer agreeing to the provisions of this Section 2.8.3. Seller and Developer have each initialed this Section 2.8.3 to further indicate their awarene ss and acceptance of each and every provision hereof.
___________ ___________ ___________
CITY’S INITIALS SBCTA’S IN ITIALS DEVELOPER’S INITIALS

2.9 Deposits into Escrow by Seller.

2.9.1 The Seller hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the following instruments and documents, the delivery of each of which shall be a condition of the Close of Escrow:

2.9.1.1 The Grant Deed duly executed by the Seller and
acknowledged, in the form attached hereto as Exhibit “D”.

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2.9.1.2 The 8th Street Easement, duly executed by the City and acknowledged, in the form attached hereto as Exhibit “E”,

2.9.1.3 The Aerial Easement duly executed by the Seller and acknowledged, in the form attached hereto as Exhibit “F”,

2.9.1.4 The Milliken Triangle Easement duly executed by the City and acknowledged, in the form attached hereto as Exhibit “G.

2.9.1.5 The CC&Rs;

2.9.1.6 If required by Escrow Holder, the affidavit as
contemplated by California Revenue and Taxation Code 590 (“Withholding Affidavit”).

2.9.1.7 If required by Escrow Holder , a Certification of Non Foreign Status in accordance with I.R.C. Section 1445 (the “FIRPTA Certificate’).

2.9.1.8 Such proof of the Seller’s authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue Developer’s policy of title insurance.

2.10 Deposits into Escrow by Developer.

2.10.1 The Developer hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the foll owing instruments and documents duly executed and acknowledged where appropriate, the delivery of each of which shall be a condition of the Close of Escrow:

2.10.1.1 The Purchase Price less the Deposit plus closing (escrow/title insurance/transfer taxes) costs.

2.10.1.2 A counterpart of the 8th Street Easement, duly executed by Developer and acknowledged.

2.10.1.3 A counterpart of the Aerial Easement, duly executed by Developer and acknowledged.

2.10.1.4 A counterpart of the Milliken Triangle Easement, duly executed by Developer and acknowledged.

2.10.1.5 A counterpart of the CC&Rs, duly executed by
Developer and acknowledged.

2.11 Authorization to Record Documents a nd Disburse Funds. Escrow Holder is hereby authorized to record the Grant Deed, followed by the CC&Rs, followed by the

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Easements, and then disburse the funds and documents called for hereunder upon the Close of Escrow to the applicable Party, provided each of the following conditions has then been fulfilled:
(i) The Title Company can issue in favor of Developer an owner’s Policy of Title Insurance, with liability equal to the applicable Purchase Price (or such lesser amount as shall have been requested by Developer) , showing the Developer Fee Property vested in Developer a nd the Easements vested in De veloper subject only to the Permitted Title Exceptions.
(ii) The Seller and the Developer shal l have deposited in Escrow the documents and funds required pursuant to Sections 2.9 and 2.10. (iii) The Seller and Developer have confirmed to Escrow Holder that all Seller Conditions and Developer Conditions have been satisfied or expressly waived in writing by the Party benefited thereby.

Unless otherwise instructed in writing, Escrow Hold er is authorized to record at the Close of Escrow any instrument delivered through this Es crow if necessary or proper for issuance of Developer’s title insurance policy.

2.12 Escrow’s Closing Actions. On the Close of Escrow, Escrow Holder shall:

2.12.1 Record the Grant Deed, CC&Rs, and Easements, in that order, in the Official Records of San Bernardino County;

2.12.2 Issue the Title Policy (or cause the Title Company to issue the Title Policy);

2.12.3 Prorate assessments as of the Close of Escrow in accordance with the settlement statements approved by the Parties and pay the costs shown thereon;

2.12.4 From funds deposited by Develope r, pay the Purchase Price to Seller (less costs payable by Seller as shown on the approved Settlement Statement) by wire transfer (as instructed in writing by City), and return any excess to Developer;

2.12.5 Prepare and deliver to both Developer and the Seller one signed copy of Escrow Holder’s settlement statement s howing all receipts and disbursements of the Escrow; and

2.12.6 If applicable, deliver the FIRPTA Certificate and the Withholding Affidavit to Developer.

3. DEVELOPMENT COVENANTS.

3.1 License to Use Parking; Development of the Project. City and SBCTA shall have an irrevocable license after the Close of Escrow to use the parking spaces located on the Station Property until the completion of the development of the Project, but only to the extent that such parking is reasonably possible taking in to consideration such development of the

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Improvements. Seller shall, at Seller’s cost , obtain and provide Developer with reasonable evidence of reasonable liability insurance naming Developer as additional insured covering such license. Additionally, if and to the extent not covered by such insurance, Seller shall defend, indemnify and hold Developer harm less from and against any and all claims, liabilities, losses, damages, costs and expenses (including attorn eys’ fees and costs) incurred or suffered by Developer arising from or caused by any such entries related to the license, (except that Seller shall not be liable for (i) existing conditions that are merely discovered but not caused or contributed to by Seller or its designated consul tants/contractors/surveyor, or (ii) the gross negligence or intentional misconduct of Developer). Seller’s obligations under the preceding two sentences shall survive Closing for so long as such license is in effect.

3.2 Intentionally Omitted.

3.3 Development of Improvements. Developer shall develop the Improvements on the Station Property in acco rdance with the Scope of Development, the Schedule of Performance (as extended by Force Majeure Delays or under Section 8.12 below), all requirements of any and all applicable federal, state and local laws, rules and regulations, the Plans and Specifications, and all other terms, conditions and requirements of this Agreement.

3.4 Seller’s Right to Review Plans and Specifications and Changes to Site Plan.

In connection with construction of the Proj ect, Developer shall comply with Plans and Specifications approved by the Seller in its prop rietary capacity, and shall comply with Exhibit “H” in connection therewith. The Plans and Specifications must: (i) conform in all material respects to the Site Plan; (ii) comply with all applicable laws, build ing codes, regulations, ordinances, rules, directives, covenants, or re strictions of record (c ollectively, “Applicable Requirements”); and (iii), substantially reflect the style and quality of existing Brightline stations; however, Seller acknowledges that as of the Effective Date, the Plans and Specifications have not been completed, and that in the course of preparing them and designing the Project, changes to the Site Plan are likely to be requ ired; consequently, Seller shall not unreasonably withhold consent to non-substantial changes to the Site Plan required to accommodate the design/Plans and Specifications. Seller shall not be deemed to have reviewed any plans, drawings or specifications from an engineering or technical standpoint, and Seller shall have no lia bility whatsoever to Developer or any third party based on or arising out of any patent or latent defect in the design or construction of the Improvements and any alterations thereto. Any review and/or approval of any or all of such the Plans and Specifications or Improvements by Seller in its proprietary capacity (i) may not be relied upon by Developer (other than for the purpose of indicating that such review and approval occurred) and (ii) does not release, relieve or waive any obligation, liability or duty of Developer or any right or remedy of Seller (other than re lating to whether the review and/or approval, as applicable, has occurred).

3.5 Costs of Entitlement, Development and Construction. The Developer agrees that all costs, expenses and fees associ ated with the developmen t and construction of the Project including the costs for developing and constructing the Improvements thereon (including, but not limited to, the Station Property acquisition costs and governmental permits and approvals) shall be borne by Developer.

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3.6 Governmental Permits and Approva ls. Before commencement of construction or development of any work of improvement on the Station Property, Developer shall (at Developer’s expense) secure, or cause to be secured, any and all permits which may be required by any governmental agency having jurisdiction over such construction or development.

Developer shall, within ten (10) days after Sell er delivers written request to Developer, provide Seller with copies of all pe rmits and other documents, and other information evidencing Developer’s compliance with any Applicable Requirements specified by Seller. Developer shall promptly notify Seller in writing (w ith copies of any documents i nvolved) of any actual claim, notice, citation, complaint or re port pertaining to or involving th e failure of De veloper or the Station Property to comply with any Applicable Requirements.

3.7 No Agency Created. In performing this Agreement, Developer is an independent contractor and not the agent of the Selle r. The Seller is not an agent of Developer.

The Seller shall not have any responsibility whatsoever for payment to any contractor or supplier of Developer or its contractors. Developer shall not have any responsibility whatsoever for payment to any contractor or supplier of the Seller.

4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS.

4.1 Restrictions on Transfer of Developer’s Rights and Obligations. Except as expressly provided otherwise herein, including a Permitted Transfer as defined below, until the Project is developed and the hi gh-speed passenger rail system is operating, Developer shall not sell, assign, transfer, mortgage, lease (except for retail/restaurant space leases consistent with the Project description and cond itioned upon Project completi on), hypothecate, or convey (collectively, a “Transfer”) the Project or any part thereof or any of Developer’s rights or obligations hereunder, or agree to do so, or transfer fifty percent (50%) or more of the ownership interests in Developer in a single transaction or series of trans actions, without th e Seller’s prior written consent, which consent ma y be granted or withheld in the Seller’s sole and absolute discretion, except that the foregoi ng shall be deemed permitted a nd shall not require the consent of Seller: (i) the execution of one or more deeds of trust and related instruments securing Developer’s construction loan, or a conveyance of the Property resulting from the foreclosure thereof (or a deed in li eu of such a foreclosure); or (ii) provided Developer de livers to Seller reasonable evidence prior to the applicable transaction, assignment or transfer that the applicable transaction, assignment or transfer qualifies as a permitted transfer, then any of the following (each a “Permitted Transfer”):
(a) If Developer converts to a corporation under applicable law (but not a nonprofit corporation or other entity that may be entitled to an exemption from property taxes), and provides written evidence thereof to Seller, then an offering of Developer’s stock to the public pursuant to a registered securities offering;
(b) If Developer converts to a corporation under applicable law (but not a nonprofit corporation or other entity that may be entitled to an exemption from property taxes), and provides written evidence thereof to Seller, th e transfer of Developer’s stock on a national securities exchange or through the NASDAQ nati onal market system or other over-t he-counter market;

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(c) The transfer of any of Developer’ s stock (if Developer shall have converted to a corporation under applicable law) or membership interest to its employee, officer, or management pursuant to an employee stock owne rship plan or other a rrangement with one or more employees, officers, or management;
(d) The transfer of less than a majority of Developer’s voting shares (if Developer shall have converted to a corporation under applicable law), or the transfer of less than a majority of the membership interests in Developer provided in each case that no change of control occurs (i.e., no change in the key individuals at Brightline West curren tly responsible for the Project without the appropriate replacements thereof) as a result thereof or as a result of a series of such transfers;
(e) The transfer of a majority of Developer’s voting shares (if Developer shall have converted to a corporation) or membership interests; provided that (i) there shall be no diminution in the net worth of Developer following such transfer as compared to the net worth of Developer prior to su ch transfer, and (ii) such transf er shall not affect Developer’s ability to operate the Project because the transfer will not cause any change to the key individuals at Brightline West responsible fo r the Project without the appropriate replacements thereof and (iii) the transfer is not to a nonprofit entity or other entity that may be entitled to an exemption from property taxes;
(f) A transfer of an equity interest (i) in connection with a transaction solely with (A) a parent, subsidiary, affiliate, division, or entity controlling, controlled by, or under common control with Developer or (B) a successor entity as a resu lt of merger, consolidation, reorganization, or government action; or (ii) in c onnection with any transfer by the sole member of Developer of a portion of its ownership inte rests in Developer to any person, provided the member of Developer both retains an interest therein and maintains control of Developer; provided that neither (i) nor (ii) result in the Develope r’s becoming a nonprofit entity or other entity that may be entitled to an exemption from property taxes;
(g) The sale of the Project in connection with a sale of substantially all of the assets of Developer to an entity other th an a nonprofit entity or other entity that may be entitled to an exemption from property taxes; provid ed that (a) the net worth of assignee is equal to or greater than the net worth of Developer prior to such transfer as shown by reasonable evidence delivered to Seller prior to the assignment, and (b ) such assignee is reputa ble and has significant experience in successfully operating projects like the Project as shown by reasonable evidence delivered to Seller prior to the assignment, and has the ability to operate the Project or has engaged an operator with such qualifications to do so, as shown by reasonable evidence delivered to Seller prior to the assignment.

Developer acknowledges that the identity of Developer is of particular concern to the City, and it is because of Developer’s identity that the Seller has ente red into this Agreement with Developer. Except for any Permitted Transfers, or any other transfer approved by the Seller in writing, and except for any Holder (defined in the CC&Rs below) that has taken possession of the Property, no voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement or any rights to or interest in the Property until the train is operational. No transfer or assignment of Developer’s interest hereunder without the Seller’s prior

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written approval shall be deem ed to release Developer from the obligations of Developer hereunder. This Section 4.1 shall survive the Closing until the Project is developed and the high- speed passenger rail system is operating.

5. DEFAULT, REMEDIES AND TERMINATION.

5.1 Defaults. The occurrence of any or all of the following shall constitute a default (“Event of Default”) under this Agreement:

5.1.1 Developer’s failure to timely close the purchase of the Property;

5.1.2 Developer’s failure to timely perfo rm its other obligations in the Schedule of Performance (as extended pursuant to Section 8.12 below) within ninety (90) days after written notice from Seller specifying the nature of such failure;

5.1.3 Developer’s violation of Sec tion 4.1; provided, however, with respect to any violation of Section 4.1 that is not an assignment of this Agreement, Developer shall have thirty (30) business days after delivery of written notice from Seller of such violation to void, terminate, or reverse such violation;

5.1.4 Developer’s failure or refusal to keep in force and effect any permit or approval with respect to construction of the Project, and Developer’s failure to cure such breach within thirty (30) days after notice from the Se ller of Developer’s breach; provided, however, if such breach is not reasonably curable within such thirty (30) day period, then Developer shall be deemed in Default only if Deve loper does not commence to cure such breach within such thirty (30) day period and thereafter fails to diligently prosecute such breach to completion; or

5.1.5 Filing of a petition in bankruptcy by or against any Party or appointment of a receiver or trus tee of any property of any Part y, or an assignment by any Party for the benefit of creditors, or adjudication that su ch Party is insolvent by a court, and the failure of such Party to cause such petition, appointment , or assignment to be removed or discharged within one hundred twenty (120) days.

5.1.6 Except as otherwise provided above in this Section 5.1, a breach of any material term of this Agreement by any Party not involving the payment of money and failure of such Party to cure such breach within thirty (30) days after the non-defaulting Party has given written notice to the defaulting Party; provided, however, if such breach is not reasonably curable within such thirty (30) day peri od, then such Party shall be deemed in Default only if such Party does not commence to cure such br each within such thirty (30) da y period and thereafter fails to diligently prosecute such breach to completion;

5.2 Remedies.

5.2.1 Remedies Prior to the Close of Escrow. Upon the occurrence of any Event of Default by any Party prior to the Close of Escrow, the non-defaulting Party shall have the right to terminate this Agreement, by delivering written notice thereof to the defaulting Party, and if the defaulting Party is Developer, Seller may obtain and retain the Deposit as liquidated damages.

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5.2.2 Remedies for Default After the Close of Escrow. Upon an Event of a Default after the Close of Escrow, each Party shall be entitled to all damages, costs and losses incurred, and may seek against th e defaulting Party or Parties any available remedies at law or equity, and if an Event of Default by Developer occurs with respect to Section 4.1, or Developer fails to comply with any of the deadlines in the Schedule of Performan ce (as extended by Force Majeure Delays or under Secti on 8.12 below), Seller shall also have a right of termination exercisable upon notice to Developer, and may r eenter and take possession of the Developer Fee Property and all Improvements ther eon, and revest in Seller title to the Developer Fee Property theretofore conveyed to the Developer (or its successors in interest) and the Improvements, subject to the payment of the applicable amount descri bed in the following paragraph. Developer shall acknowledge and deliver a grant deed to effectuate the foregoing reversionary right free and clear of all liens and encumbrances cr eated by or with the consent of Developer. Notwithstanding anything to the contrary in Section 5.2.3, if Seller must pay more than such purchase price, less its costs, to cause a reconveyance/termination of any deed of trust or other lien, then Seller shall have the right to recover such amount, with interest at the rate applicable to judgments, from Developer.

If Developer obtains one or more construc tion loan(s) or other financing secured by any of the Developer Fee Property, Seller will execute and deliv er a duly acknowledged subordination agreement(s) in a form(s) acceptable to Seller (in its sole discretion) to subordinate its rights of reversion to the construction loan deed(s) of trust if required by the lender; provided, however, that such subordination agreement is limited to secured obligations relating to the construction of the Project (such that Seller’s exercise of the reversionary right shall cause the trustee of such deeds of trust to partially reco nvey the deed of trust from the Developer Fee Property, prior to the commencement of constr uction, upon payment of the Purchase Price hereunder and, following the comm encement of construction, upon pa yment to the lender of the hard and soft costs expended by such lender as of such date with respect to the construction of the Project); provided, however, in no event shall a ny funds paid by Seller hereunder to such lender to cause the partial reconveyance of the deed of trust go to Developer.

5.2.3 Limits. Subject to and except as pr ovided in the last sentence of the first paragraph of Section 5.2.2 above, under no circumstances shall any Party be liable to any other Party under this Agreement for any speculative, punitive or indirect damages or for any loss of profits suffered or claimed to have been suffered; provided, however, the foregoing limitations shall not prohibit the recovery of any direct damages and shall not apply to damages covered by insurance (or that should have been covered by insurance if the insurance required hereunder had been maintained). For the avoidance of doubt, this Section 5.2.3 applies only to this Agreement and not to the CC&Rs. For the purpose of clar ification and avoidance of doubt, the Parties acknowledge and agree that the following are, without limitation, examples of recoverable direct damages and unrecoverable indi rect damages: If the build ing façade from one Party’s improvements falls onto another Party’s improved property, which improved property may include a parking area, lot or structure, and someone is injured, real or personal property is damaged, or the other party loses some or all of its ability to park and/or charge for parking or receive parking revenue until the property is repaired, all three of those damages are direct damages and therefore are recoverable, including any (and all) cost(s) and expense(s) of leasin g a replacement parking lot(s); however, if the other Party leases such a replacement parking lot and someone gets injured there or if someone is injured during the cleanup of the damaged property, those would be indirect damage events and not recoverable unless it is otherwise direct damages due to some other direct

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cause, such as an additional act or omission, includi ng negligence or willful act or failure to act, of the one Party. The Parties acknowledge and agree that a Party cannot recover twice for the same losses.

5.3 No Speculation. The rights established in this Article are to be interpreted in light of the fact that the Seller will convey the Property to Developer for development and operation of the Project thereon and not for speculation in the Property or for construction of different improvements.

5.4 No Personal Liability. The obligations of the Parties under this Agreement shall not constitute personal obligations of any Party’s councilmembers, directors, principals, officers, employees or affiliates, and no Party shall seek recourse against any other Party’s individual councilmembers, directors, principals, officers, employees or affiliates, or any of their personal assets for such satisfaction.

5.5 Rights and Remedies are Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by any Pa rty of one or more of such rights or remedies shall not preclude the exercise by it , at the same time or different times, of any other rights or remedies for the same default or any other default by another Party; provided, however, that liquidated damages specified herein shall constitute the sole damages recoverable for the default giving rise to such liquidated damages.

5.6 Inaction Not a Waiver of Default. A ny failures or delays by any Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such Party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. The acceptance by a Party of less than the full amount due from the other Party or Parties shall not constitute a waiver of such Pa rty’s right to demand and receive the full amount due, unless such Party executes a specific accord and satisfaction.

5.7 Force Majeure. Following the Clos e of Escrow, and notwithstanding anything to the contrary in this Agreement, nonperformance shall be excused when performance by a Party or Parties is prevente d or delayed by reason of any of the following forces reasonably beyond the control of such Party or Parties (a “Force Majeure Delay”): (i) failure to perform by a Party attributable to any strike, lockout or other labor or industrial disturbance (whether or not on the part of the employees of any Party hereto), civil disturbance, future order claiming jurisdiction, act of the public enemy, war, riot, sabotage, blockade, embargo, inability to secure customary materials, supplies or labor through ordinary sources by reason of new regulation or order of any government or regulatory body; and (ii) delay attributable to severe weather, lightning, earthquake, fire, storm, hurricane, tornado, flood, was hout, explosion, or any other cause beyond the reasonable control of the Party or Parties from whom performan ce is required, or any of its contractors or other representatives. Any prevention, delay or stoppage due to any Force Majeure Delay shall excuse the performance of the Party or Parties affected for a period of time equal to any such prevention, delay or stoppage (except the obligations of either party to pay money to the other party or to close escrow) provided that the Party or Parties claiming the Force Majeure Delay notifies the other Party or Parties of the Force Majeure Delay within a reasonable time (not to exceed twenty (20) business days) after the commencement of the Force Majeure Delay.

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6. INSURANCE; INDEMNITY.

6.1 Insurance.
(a) Prior to Close of Escrow. On or before Developer’s entry onto the Property for the purpose of insp ections or any construction-rela ted activities for the Project, Developer shall procure and maintain, at its sole cost and expense, the following insurance:
(1) Commercial General Liability (CGL) with a limit not less than two million dollars ($2,000,000) per each occurrence and a general aggregate limit of not less than five million dollars ($5,000,000) providing coverage for bodily injury, property damage, and personal injury through any combination of prima ry and excess or umbrella liability insurance policies with limits restating annually. The CGL insurance must be written on an ISO occurrence form CG 00 01 04 13 or (with appr oval from Seller) substitute form s at least as broad as CG 00 01 04 13 coverage. All excess or umbrella policie s must be “follow form” and afford no less coverage than the primary policy. Such CGL must provide coverage to the Indemnified Parties (defined in the indemnity provisions below) as additional insureds using ISO Additional Insured Endorsement CG 20 10. Coverage shall be pr ovided to the Indemnifie d Parties for claims proximately caused by reason of construction activities and the location and placement of improvements within the Property, unless caused by an Indemnified Party's gross negligence or willful misconduct.

6.2 Indemnity. From and af ter the execution of this Agreement, Developer hereby agrees to indemnify, defend, protect, and hold harmless the Seller and any and all agents, employees, representatives, council members, board members, cons ultants, and officers of each Seller (all such indemnitees being referred to as the “Indemnified Parties”), from and against all losses, liabilities, claims, damages (including foreseeable or unfores eeable consequential damages), penalties, fines, forfeitures, costs an d expenses (including all reasonable out of pocket litigation costs and reasonable attorneys’ fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with:
(i) the validity of this Agreement under th e California Environmental Quality Act and the National Environmental Policy Act;
(ii) any of Developer’s activities on the Property (or the activities of Developer’s agents, employees, lessees, representati ves, licensees, guests, invitees, contractors, subcontractors, or independent co ntractors on the Property) prior to the Closing, regardless of whether such losses and liabilities shall accrue or are discovered before or after termination or expiration of this Agreement, except to the extent such losses or liabilities are caused by the gross negligence or willful misconduct of the City. Th e Seller may in its discretion, and at their own cost, participate in the defense of any legal action naming the City. The provisions of this Section shall survive the Close of Escrow or the termination of this Agreement; (iii) any claims that the Seller is liable for prevailing wages not paid in connection with the Project.

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7. REPRESENTATIONS AND WARRANTIES.

7.1 Developer Representations. Developer represents and warrants to the Seller as of the Effective Date and as of the Close of Escrow that:
(i) Developer is a limited liability company validly existing and in good standing under the laws of the State of Nevada and qualified to do business in California. (ii) Developer has duly authorized the execution and performance of this Agreement and the execution and performance of all of the closing documents set forth herein.
(iii) Developer’s execution and performance of this Agreement and the closing documents will not violate any pr ovision of the Developer’s operating/LLC agreement or any deed of trust, lease, contract, agreement, instrument, order, judgment or decree by which Developer is bound.
(iv) Brokers. The Developer has not engaged a broker with respect to the purchase of the Property contemplated here in. Developer shall be solely responsible for any payments due any br oker claiming a right to a co mmission based on actions by Developer.
(v) No Corruption/Solicitation. The Developer represents and warrants that to the current actual know ledge of its Presid ent, without invest igation or inquiry, neither it nor its affiliates, nor either of th eir respective officers, di rectors, employees or agents have ever given, promised to give, received or solicited, anything of value, directly or indirectly, to or from any person for the purpose of inducing any such person, including any government official (domestic or foreign), to take any action to the benefit of the Developer in connection with this Agreement, or as an inducement for the Developer to take any action to the benefit of such other person in connection with this Agreement. The Developer covenants and agrees that it shall not give, promise to give, receive or solicit, anything of value, directly or indirectly, to or from any person for the purpose of inducing any such person, including any government offi cial (domestic or fo reign), to take any action for the benefit of the De veloper or the benefit of its affiliates or their respective officers, directors, employees or agents in connection with this Agreement, or as an inducement for the Developer or its affiliates or their respective officers, directors, employee or agents to take a ny action to the benefit of such other person in connection with this Agreement.

7.2 Seller Representations. With the understanding that neither Seller shall be liable for a misrepresentation or br each of covenant by the other Seller under this Section, each Seller hereby represents and warrants to Developer as of the Effective Date and as of the Close of Escrow that:
(i) Brokers. It has not engaged a broker with respect to the purchase of the Property as contemplated herein. It sha ll be solely responsible for any payments due any broker claiming a right to a commission based on actions by it.

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(ii) Litigation. There is no litigation, arbitration or other legal or administrative suit, action, proceeding or investigation of any kind pending or, to the actual current knowledge of the City Manager or Executive Director, without inquiry or investigation (hereinafter, “knowledge”), threatened against it relating to the ownership or operation of the Property or any part thereo f, including any condemnation action relating to the Property or any part thereof.
(iii) Environmental Matters. It has not received written notice from any governmental entity alleging that it is in violation of any environmental laws with respect to the Property and it has not, and to its knowledge, no other person or tenant has used, generated, processed, stored, released, discharged, transpor ted or disposed hazardous substances on the Property except for use and storage in compliance with all applicable environmental laws. There is no environmen tal claim pending and served, or, to its knowledge, pending and unserved or threatened with regard to the Property. It has provided to Developer all writte n assessments, reports, data, re sults of investigations or audits, or other information that is in its po ssession or reasonable control relating to the environmental matters at or the environmental condition of the Property. (iv) No Contracts or Leases. There ar e no leases, licenses, unrecorded contracts or other unrecorded agreements (whether verbal or written) affecting the Property that will survive the Closing. It shall terminate any and all leases or occupancy agreements to which it is a party and cause any and all tenants occupying the Pr operty thereunder to vacate the Property on or before the Closi ng Date. It shall deliver possession of the Property to Developer on the Close of Escr ow free of any and all leases, licenses, unrecorded contracts and other unrecorded agreements (whether verbal or written) and free of all parties in possession a nd personal property owned by thir d parties. From and after the Effective Date, it shall not enter into an y new lease, contract or other agreement (whether verbal or written) affecting the Pr operty that would expire after the Close of Escrow without the prior written consent of Developer, in its sole and absolute discretion. (v) Operation of Property. From a nd after the Effective Date and continuing until the Closing Date (provided the Agreement has not been terminated), it (i) shall operate and maintain the Property in substantially the same manner as heretofore, including weed abatement, reasonable wear and tear excepted, (ii) shall maintain in effect all insurance policies now maintained on th e Property, or similar policies, up to and including the Closing Date, and (iii) except as expressly provided in this Agreement, shall not transfer or grant, create or consent to the imposition of any new lien or encumbrance upon the Property without the prior written co nsent of Developer, in its reasonable discretion.
(vi) Documents and Materials. All documents and materials delivered or made available by it to De veloper pursuant to this Agreem ent, are true, accurate and complete copies of such documents and materials in its possession. (vii) No Violation of Law. It has not received any written notice from any governmental agency that the Property or any condition existing thereon or any present

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use thereof violates any law or regulations applicable to the Property, which remains outstanding and uncured.
(viii) No Options. It has not granted to any party any option, rights of first refusal, license or other similar agreement with respect to a purchase or sale of the Property or any portion thereof or any interest therein.
(ix) No Corruption/Solicitation. Each Seller represents and warrants that to the current actual knowledge of the City Manager or the Executive Director, without investigation or inquiry, neither it nor its officers, directors, employees or agents have ever given, promised to give, received or solicited, anything of value, directly or indirectly, to or from any person for the purpose of inducing any such person, including any government official (domestic or foreign), to take any action to the benefit of it in connection with this Agreement, or as an inducement for it to take any action to the benefit of such other person in connection with this Agreement. It covenants and agrees that it shall not give, promise to give, receive or solicit, anything of value, directly or indirectly, to or from any person for the purpose of inducing any such person, including any government official (domestic or foreign), to take any action for its benefit or the benefit of its affiliates or their respective officers, directors, employees or agents in connection with this Agreement, or as an inducement for it or its affiliates or their respective officers, directors, employee or agents to take any action to the benefit of such other person in connection with this Agreement.

8. GENERAL PROVISIONS.

8.1 Notices. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by reputable overnight messenger. Notices shall be considered given upon the earlier of (a) on e business day following deposit or delivery with a nationally recognized overnight courier delivery charges prepaid, or (b) upon delivery or attempted delivery as shown on the return receipt if sent by certified mail, or if no delivery date is shown, the postmark thereon. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day. Notices shall be addressed as provided below for the respective Party; provided that if any Party gives notice in writing of a change of name or address, notices to such Party shall thereafter be given as demanded in that notice:

City: City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Attn: City Manager

SBCTA: San Bernardino Count y Transportation Authority
1170 W. Third Street, 2nd Floor
San Bernardino, CA 92410
Attn: Director of Transit & Rail Programs
With a copy to SBCTA General Counsel
At the SBCTA address above

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Developer: DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118
With a copy to Developer’s Legal Counsel
At the Developer address above
Escrow Holder: First American Title Insurance Company
666 Third Ave 5th Floor
New York, NY 10017
Attn: Shelliza Lallmohamed
Direct: 212.551.9452
Email: [email protected]

8.2 Construction. The Parties agree that each Party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. This Ag reement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties.

8.3 Interpretation. In this Agreement th e neuter gender in cludes the feminine and masculine, and singular number (including any reference to “Party”) includes the plural (such as Parties), as applicable or appropriate, and the words “person” and “party” (including Party or Parties) include corporation, part nership, firm, trust, or associat ion where ever the context so requires. Unless otherwise required by a specific provision of this Agreement, time hereunder is to be computed by excluding the first day and including the last day. If the date for performance falls on a day which is not a regular business da y, where a “business day” is any day excepting Saturday, Sunday, or a legal holiday, the date for performance shall be extended to the next business day. All references in this Agreement to a number of days in which any Party or Parties shall have to consent approve or perform shall mean calendar days unless specifically stated to be business days.

8.4 Time of the Essence. Time is of the essence of each provision of this Agreement in which time is a factor.

8.5 Warranty Against Payment of Consider ation for Agreement. Developer warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as archit ects, engineers and attorneys, and payment to a broker, if applicable.

8.6 Attorneys’ Fees. In the event any Party or Parties brings a suit, action, or other proceeding against the other Pa rty or Parties that in any way relates to or arises out of this Agreement, each Party shall bear its own legal costs and expenses.

8.7 Entire Agreement. This Agreement, together with all attachments and exhibits hereto, and all agreements executed pursuant hereto, constitutes the entire understanding

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and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between or among the Parties with respect to the subject matter hereof.

8.8 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the applica tion of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shal l be enforced to th e extent permitted by law.

8.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties, and there are no third party beneficiaries of this Agreement. Except as otherwise provided herein, no other person shall have any right of action based upon any provision of this Agreement.

8.10 Governing Law; Jurisdiction; Servi ce of Process. Except on subjects preempted by federal law, this Agreement and the rights of the Parties shall be governed by California law. Nothing herein is meant to be or will be interpreted to be a waiver of principles of legal preemption or preclusion that may apply to Developer because of its status as a common carrier regulated by the federal government. Venue for any legal action between the Parties related to this Agreement will be in the Superior Court of San Bernardino County, California or the United States District Court, Central District of California.

8.11 Survival. Except as expressly set fort h herein, the provisions hereof shall merge into, and not survive, the Closing. Prov ided, however, each Party’s representations and warranties shall survive the Closing for one (1) year.

8.12 City Manager/Executive Director Actions. In addition to any provisions of this Agreement that give the City Manager and Executive Director the authority to make decisions and grant approvals, the City he reby authorizes the City Manager and SBCTA hereby authorizes the Executive Director to execute and deliver such documents, approvals, and consents as are contemplated by this Agreement, waive requireme nts under this Agreement, and modify this Agreement, on behalf of the City and SBCTA, re spectively, provided that the applicable waiver or modification is not substantial (i.e., does no t change the fundamental business transaction between the Developer and the Seller, as determined by the City Manager and Executive Director in their reasonable discretion). Nothing herein shall obligate the City Manager or Executive Director to act in any way or to comply with any standard of “good faith”, and the City Manager and Executive Director may in th eir sole and absolute discretion, refer any matter to the City Council or SBCTA Board of Directors for approval.

8.13 Counterparts. This Agreement ma y be executed in one or more counterparts, each of which shall be deemed as orig inal but all of which t ogether shall constitute one and the same instrument.

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8.14 Electronic Delivery. This execut ed Agreement may be delivered electronically by electronic means to the Parties noted above. [Signature Page Follows]

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IN WITNESS WHEREOF, the Parties hereto ha ve entered into this Agreement as of the day and year first above written.

DEVELOPER:

DESERTXPRESS ENTERPRISES, LLC,
a Nevada limited liability company

B y :

Sarah Watterson, President

APPROVED AS TO LEGAL FORM:

_____________________________
David M. Pickett, Associate General Counsel

CITY:

CITY OF RANCHO CUCAMONGA

B y :

Print Name: L. Dennis Michael
Title: Mayor
APPROVED AS TO LEGAL FORM:

_____________________________
Nicholas Ghirelli, City Attorney
SBCTA:

SAN BERNARDINO COUNTY

TRANSPORTATION AUTHORITY

B y :

Art Bishop,
Board President

APPROVED AS TO LEGAL FORM:

_______________________________
Julianna K. Tillquist, General Counsel

EXHIBIT “A”
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EXHIBIT “A”

LEGAL DESCRIPTION OF DEVELOPER FEE PROPERTY

SBCTA PROPERTY:
[SEE ATTACHED]

EXHIBIT ‘A1’
Legal Description

APN: 0209-143-21

That portion of the SANBAG (formerly A.T. & S.F.) Railroad Right-of-Way, as shown on Parcel Map No. 14647, filed in Book 177, pages 90 through 96, inclusive of Parcel Maps, in the Office of the County Recorder of San Bernardino County, within Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, in the City of Rancho Cucamonga, County of San Bernardino, State of California, described as follows:

Commencing at the northeast corner of said Section 13;

Thence along the easterly line of said Section 13 South 00°29’50” East 50.00 feet to the easterly prolongation of the northerly line of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County;

Thence along said easterly prolongation South 89°43’55” West 30.00 feet to the northeasterly line of said Rancho Cucamonga Metrolink Station Phase I;

Thence continuing along said northerly line South 89°43’55” West 12.83 feet to the Point of Beginning ;

Thence continuing along said northerly line South 89°43’55” West 346.26 feet;

Thence leaving said easterly prolongation North 00°10’37” West 33.38 feet;

Thence North 87°50’29” East 346.61 feet;

Thence South 00°00’00” East 44.81 feet to the Point of Beginning ;

Parcel contains 13,539
square feet, more or less.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.0 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘A-2’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233

Date: ____________________

9/27/2022

9/27/2022
 
 

EXHIBIT “A”
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CITY/SBCTA PROPERTY:
[SEE ATTACHED]

EXHIBIT ‘A-3’
Legal Description
APN: 0209-272-11 & 0209-272-22
That portion of Parcel 15 of Parcel Map No. 14647 in the City of Rancho Cucamonga, County of San Bernardino, State of California, filed in Book 177, pages 90 through 96, inclusive of Parcel Maps, in the Office of the County Recorder of said County, together with a portion of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County, described as follows:

Commencing at the northeast corner of Section 13, of Township 1 South, Range 7 West, San Bernardino Meridian, as shown on said Parcel Map;
Thence along the easterly line of said Section 13, South 00°29’50” East 50.00 feet to the intersection of the easterly prolongation of the northerly line of said Rancho Cucamonga Metrolink Station Phase I;
Thence along said easterly prolongation line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I; Thence continuing along said northerly line South 89°43’55 West 12.83 feet to the Point of Beginning;
Thence South 00°00’00” West 311.62 feet;
Thence South 89°36’24” West 273.01 feet;
Thence South 00°00’06” East 243.01 feet;
Thence North 89°36’24” East 273.00 feet;
Thence South 00°00’00” West 13.88 feet to the southeasterly line of Parcel 15 per said Parcel Map;
Thence along said southeasterly line South 46°46’47” West 23.71 feet to the southerly line of said Parcel 15;

Thence along said southerly line South 89°36’24” West 269.11 feet to the beginning of a tangent curve, concave northeasterly, having a radius of 117.00 feet; Thence northeasterly, along said curve, being the southwesterly line of said Parcel 15, through a central angle of 29°43’39” an arc length of 60.70 feet; Thence leaving said southerly line North 00°10’37” West 569.98 feet to said northerly line of the Rancho Cucamonga Metrolink Station Phase I; Thence along said northerly line North 89°43’55 East 346.26 feet to the Point of Beginning;
Parcel contains 135,265 square feet, more or less.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83) , Zone 5, 2010.00 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘A-4’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700) .

Signature: ______________________
Sean M. Smith, PLS 8233
Date: ____________________
9/27/2022

9/27/2022
A-4
 
 

EXHIBIT ‘A-5’
Legal Description
APN: 0209-272-22
That portion of Parcel 15 of Parcel Map No. 14647, in the City of Rancho Cucamonga, County of San Bernardino, State of California, filed in Book 177, pages 90 through 96, inclusive, of Parcel Maps, in the Office of the County Recorder of said County, described as follows:

Commencing at the northeast corner of Section 13, of Township 1 South, Range 7 West, San Bernardino Meridian, as shown on said Parcel Map;
Thence along the easterly line of said Section 13, South 00°29’50” East 50.00 feet to the intersection of the easterly prolongation of the northerly line of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County; Thence along said easterly prolongation line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I; Thence continuing along said northerly line South 89°43’55 West 12.83 feet; Thence leaving said easterly prolongation line and northerly line South 00°00’00” West 311.62 feet to the Point of Beginning;
Thence South 89°36’24” West 273.01 feet;
Thence South 00°00’06” East 243.01 feet;
Thence North 89°36’24” East 273.00 feet;
Thence North 00°00’00” East 243.01 feet to the Point of Beginning.

Parcel contains 66,341 square feet, more or less.

Reserving to the City of Rancho Cucamonga and San Bernardino County Transportation Authority the air space above the above-described land, contained between a horizontal plane eight (8) feet above the existing ground surface and existing ground surface.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.0 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibits ‘A-6’ and 'A-7’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233
Date: ____________________
9/27/2022

9/27/2022
A-6
 
 

APN
0209-27 2-22
f
8'
l

EXHIBIT ' '

TYPE OF ESTATE AREA
FEE 66,341 SF
AREA DESCRIBED IN 11Cl 11
HORIZONTAL PLANE 8' ABOVE HIGHEST
C

GROUND SURFACE ELEVATION WITHIN
PROPERTY DESCRIBED IN 11Cl 11
RESERVED DESCRIBED IN 11Cl 11

L GROUND SURFACE WITHIN
PROPERTY DESCRIBED IN 11Cl 11
AREA DESCRIBED IN 11Cl 11
AIR SPACE RESERVATION PBOEII E DETAIi

CITY OF RANCHO CUCAMONGA

COUNTY OF SAN BERNARDINO
PREPARED BY:

PSOMAS
1650 Spruce Street, Suite 400
Riverside, California 92507
(9511787-842/ www.psomos.com

PREPARED
BY
TKR
SCALE SHEET NO.
1 11 =/00' 2
TOTAL
SHEETS
2 A-7

EXHIBIT “B”
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EXHIBIT “B”

SCHEDULE OF PERFORMANCE

Action Date / Deadline

Items 1 – 2 Relate to Developer Actions and Requirements Prior to the Close of Escrow

1. Opening of Escrow. The Parties shall
open escrow with the Escrow Holder.

Within five (5) business days after the date of
the DDA.

2. Developer Deposit. The Developer
shall deposit the Developer Deposit
with Escrow Holder.

Within five (5) business days after opening of
escrow.

Items 3 – 7 Relate to the Conveyance of the Property and Developer Actions and Requirements After the Close of Escrow

3. Close of Escrow. The Developer shall
purchase the Property from the City,
subject to the satisfaction of the
conditions to closing stated to be
Developer conditions to closin
g.

On or before December 31, 2025.

4. Commencement of Construction.

Developer shall substantially
commence the Improvements.

No later than three (3) years after the Close of
Escrow.

5. Prosecution of Construction of Project. Once construction/grading shall have commenced, Developer shall diligently
prosecute the construction of the Project to
completion.

6. Completion of Project. The Project
shall be completed.

No later than seven (7) years after the Close of
Escrow.

7. Commencement of HSR Line.

Substantially commence construction
on the high-speed rail line between
Rancho Cucamonga and Victor Valley
that is separate from, but to be served in
part b
y, the Project.

No later than three (3) years after the Close of
Escrow.

8. Prosecution of Construction of HSR
Line.

Once construction/grading shall have
commenced for the HSR Line, Developer shall
diligently prosecute the construction of the HSR
Line to completion.

9. Commencement of Revenue Service of
HSR Line.

No later than eighteen (18) months after the
Completion of the Project.

This Schedule of Performance is subject to Force Majeure Delays pursuant to Section 5.7 above.

EXHIBIT “C”
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EXHIBIT “C”

SITE PLAN
[SEE ATTACHED]

Rancho Cucamonga Station - Site Plan
METROLINK PARKING - 325 SPACES
METROLINK PARKING - 105 SPACES
METROLINK PARKING - 194 SPACES

PICK UP LOOP

DROP OFF LOOP

PARKING ACCESS LANES & RAMPS

BRIGHTLINE STATION

METROLINK PLATFORMS

EXISTING BUS LOOP

MILLIKEN AVE

AZUSA COURT
20’ OFFSET TO ALLOW FOR

MILLIKEN AVE WIDENING

EXTENSION OF AZUSA COURT AS PART OF THE
RESORT NORTH PROJECT. (NOT PART OF THE

BRIGHTLINE WEST FUNDED IMPROVEMENTS)

ELEVATED VIADUCT CARRYING

TRAIN LINES AND PLATFORMS

Rancho Cucamonga Station - P2-P8 Typical Parking

BRIGHTLINE PARKING

BRIGHTLINE STATION

PARKING RAMPS

GENERAL PLAN - EXHIBIT
8TH STREET/RANCHO STATION VIADUCT
DATE
09/19/2022
PLAN
DRAFT
2 4
3 '
4 6
'
174'
3 9
'
60' 3
3 '
1"=60'
254'91'
2 7
3 '
2 0
'
2 2
3 '
3 0
'
74'273'
The location to be determined in final design.
will be provided for access to Azusa Court.

A 30' wide easement across this hatched area
3 7
9 '
346'
651'

EXISTING CURB
20' OFFSET FROM be confirmed in design
Milliken Avenue at location to
Access Rights for driveway from
Parcel Boundaries
Proposed Building Extents
at location to be confirmed in design
Access Rights for driveway from Milliken Avenue
Underground tunnel easement
Proposed pedestrian crossing easement
Potential alternative pedestrian crossing easement
Brightline aerial easement from SBCTA/City
Brightline purchase of fee from SBCTA
Brightline easement from city
above 8ft above surface
Brightline purchase of fee everything below surface and SBCTA/City retained surface to 8ft above surface area;
Brightline purchase of fee from SBCTA/City
ONT Tunnel station and tunnel footprint
Brightline Aerial Easement from City
Brightline Aerial Easement from SBCTA
funded improvements).
of the Brightline West
North project (not part
as part of The Resort
Extension of Azusa Court
32231 sqft
131373 sqft sqft
46432
13530 sqft
66340 sqft
SHEET NO.

DRAWING NO.

CONTRACT NO.APPLE VALLEY - RANCHO CUCAMONGA

BRIGHTLINE WEST HIGH-SPEED RAIL
STRUCTURE LOCATION NO.

TRACK MILE POST
CALTRANS BRIDGE ASSET NO.

CALTRANS POST MILE

TRAIN SPEED
P
O
E
1 1
5 9
9 +
2 3
.6
1 ONTARIO, CA 91764
3633 INLAND EMPIRE BLVD, SUITE 750
ASPH
CONC
ASPH
CONC
ASPH
CONC
VC
CONC
CONC
CONC
CONC
CONC
CONC
CONC
CONC
CONC
CONC
VC
VC
VC
VC
VC
VC
VC
VC
VC
CONC
CONC
UB
T
UB
M
I
L
L
I
K
E
N

A
V
E

RANCHO CUCAMUNGA CT
M
ILLIK
E
N

A
V
E
.
30'
60'
50'
35'
25'
APN: 209-272-22

CITY OF RANCHO CUCAMONGA
APN: 209-272-11

CITY OF RANCHO CUCAMONGA
APN: 209-143-21

SAN BERNARDINO GOVERNMENT
APN: 209-272-23

FAIRWAY BUSINESS CENTRE LLC
APN: 209-272-24

FAIRWAY BUSINESS CENTRE LLC
APN: 229-111-20

SAN BERNARDINO COUNTY TRANSPORTATION
P.M. 177/90-96
PARCEL MAP NO. 14647
PARCEL 15
PARCEL 10
33'
33'
33'
33'

AZUSA COURT

AZUSA COURT
VARIES
60'
30'
60'
33' 33'
SANBAG (FORMERLY A.T. & S.F. R.R.)
SANBAG (FORMERLY A.T. & S.F. R.R.)
60'
VARIES
VARIES
VARIES
SANBAG (FORMERLY A.T. & S.F. R.R.)
8TH ST.
50'
50'
30'
30'
M
ILLIK
EN
A
V
E.

VARIES
VARIES
12 13 7
18 30'
30'
8TH ST.

VARIES
50'
20' SEWER EASEMENT TO CUCAMONGA COUNTY WATER DISTRICTPER DOC NO. 90-394371 O.R.

REC 10/02/1990
10' PIPELINE EASEMENT TOCHINO BASIN MUNICIPAL WATER DISTRICTPER DOC NO. 90-394371 O.R.

REC 10/02/1990
4' AND 25' WIDE EASEMENT TO SCEPER DOC REC 11/27/1961 IN BOOK 5595, PAGE 15 EASEMENT TO CITY OF RANCHO CUCAMONGA FOR BRIDGE PURPOSESPER RESOLUTION 83-99, DOC NO. 83-148882 O.R.REC 7/05/1983 25' WIDE WASTEWATER EASEMENT TO CHINO BASIN WATER DISTRICTPER RESOLUTION 83-99, DOC NO. 83-148882 O.R.REC 7/05/1983 25' WIDE EASEMENT TO CHINO BASIN WATER DISTRICTPER RESOLUTION 83-99, DOC NO. 83-148882 O.R.REC 7/05/1983 10' WIDE EASEMENT TO GENREAL TELEPHONE CO.PER RESOLUTION 83-99, DOC NO. 83-148882 O.R.REC 7/05/1983 DOC NO. 83-14882
25' SCE EASEMENT PER
DOC NO. 82-199900
25' SCE EASEMENT PER
DOC NO. 19950139143
40' MWD EASEMENT PER
DOC. NO. 81-048883
40' MWD EASEMENT PER

RIGHT OF WAY LINE
FORMERLY MILLIKEN AVE.

DOC NO. 20010405038
25' SCE EASEMENT PER
DOC NO. 89-202499
10' SCE EASEMENT PER
TO MILLIKEN AVE.

ADDITIONAL WIDENING

EXHIBIT “D”
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EXHIBIT “D”

FORM OF GRANT DEED

RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO,
AND MAIL TAX STATEMENTS TO:

DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118

APN(s):
(Space above for Recorder’s Use) Exempt From Recording Fee Per Government Code Section 27383 Documentary transfer tax is $ , based on the purchase price of the property conveyed. [NOTE: BASED ON THE FMV OF THE PROPERTY]

GRANT DEED
The undersigned grantor(s) declare(s):

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF RANCHO CUCAMONGA (“City”) and the SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY (“SBCTA”), collectively the “Grantor, hereby GRANT to ______________, a Nevada limited liab ility company (“Grantee” ) the land described on Exhibit “A-1”, Exhibit “B-1” and Exhibit “C-1” and depicted on Exhibit “A-2”, Exhibit “B-2” and Exhibit “C-2” and any improvements thereon (the “Property”) EXCEPTING THEREFROM AND RESERVING UNTO GRANTOR in fee a portion of the Property described on Exhibit “C-1” and depicted on Exhibit “C-3” attached hereto (“Reserved Property”).

EXCEPTING THEREFROM AND RESERVING UNTO GRANTOR an access and utility easement appurtenant over that portion of the Prope rty shown on Exhibit D” attached hereto in favor of the Reserved Property for access and utilities to and from Azusa Court for a driveway and mechanical, electrical or other miscellaneous conduit and equipment appurtenant to the operation of the Reserved Property for parking purposes.

EXCEPTING THEREFROM AND RESERVI NG UNTO GRANTOR an easement [in gross/appurtenant to the adjacent property owne d by Grantor, or once developed, appurtenant to only the tunnel station site developed on such adjacent property], for the construction, maintenance, and operation of one or more tunnels, including appur tenant facilities necessary or convenient thereto, described on Exhibit “E” attached hereto and subject to the terms and provisions of Schedule 1 attached hereto (“Tunnel Easement”).

SUBJECT TO, all matters of record and all matters visible upon a diligent inspection.

FORM OF

GRANT DEED

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1. This grant of the Property is subject to the terms of a Disposition and Development Agreement entered into by and between Grantor and Grantee dated as of October 5, 2022 (the “DDA”), which includes an irrevocable parking licen se in favor of Grantor to the extent and for so long as the Property can be used for pa rking pending the required and contemplated development of the Property pursuant to the DDA.

2. As provided in, and subject to the provi sions contained in, Section 5.2.2 of the DDA, the Grantor shall have the right, at its option, to reenter and take possession of the Property hereby conveyed, with a ll improvements thereon and to term inate and revest in Grantor the Property hereby conveyed to the Grantee (or its successors in interest).

3. Section 4.1 of the DDA contains specific and reasonable restrictions on transfer of the Property and on transfer of interests in Developer until completion of the Project, with certain specific exceptions. The Grantee covenants, for its elf and its successors and assigns, to comply with such restrictions, which are hereby incorporated herein by reference.

4. Upon written request by Grantee, the City Manager of the City and the Executive Director of the SBCTA shall execute a “Certificate of Completion” in recordable form, cause it to be acknowledged and deliver it to Grantee for reco rding to confirm that such development has been timely completed in accordance with the DDA.

5. The covenants and restrictions in this Grant Deed shall bind, benefit and burden the Property, the Grantor and the Grantee and their respective successors, assigns and successors in interest to all or any portion of or interest in the Property.

IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of the date set forth below.

Dated: ________________, 202__

CITY OF RANCHO CUCAMONGA
B y :

Print Name:

Title:

ATTEST:
__________________________________________
City Clerk

FORM OF

GRANT DEED

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SAN BERNARDINO COUNTY

TRANSPORTATION AUTHORITY
B y :

Print Name:

Title:

ATTEST:
__________________________________________

State of California )
County of San Bernardino )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)

A notary public or other officer completing
this certificate verifies only the identity of
the individual who signed the document to
which this certificate is attached, and not
the truthfulness, accuracy, or validity of
that document.

FORM OF

GRANT DEED

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State of California )
County of San Bernardino )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)

A notary public or other officer completing
this certificate verifies only the identity of
the individual who signed the document to
which this certificate is attached, and not
the truthfulness, accuracy, or validity of
that document.

FORM OF

GRANT DEED

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EXHIBIT A-1 TO GRANT DEED

PROPERTY DESCRIPTION
[SEE ATTACHED]

EXHIBIT ‘A1’
Legal Description

APN: 0209-143-21

That portion of the SANBAG (formerly A.T. & S.F.) Railroad Right-of-Way, as shown on Parcel Map No. 14647, filed in Book 177, pages 90 through 96, inclusive of Parcel Maps, in the Office of the County Recorder of San Bernardino County, within Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, in the City of Rancho Cucamonga, County of San Bernardino, State of California, described as follows:

Commencing at the northeast corner of said Section 13;

Thence along the easterly line of said Section 13 South 00°29’50” East 50.00 feet to the easterly prolongation of the northerly line of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County;

Thence along said easterly prolongation South 89°43’55” West 30.00 feet to the northeasterly line of said Rancho Cucamonga Metrolink Station Phase I;

Thence continuing along said northerly line South 89°43’55” West 12.83 feet to the Point of Beginning ;

Thence continuing along said northerly line South 89°43’55” West 346.26 feet;

Thence leaving said easterly prolongation North 00°10’37” West 33.38 feet;

Thence North 87°50’29” East 346.61 feet;

Thence South 00°00’00” East 44.81 feet to the Point of Beginning ;

Parcel contains 13,539
square feet, more or less.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.0 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘A-2’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233

Date: ____________________

9/27/2022

FORM OF

GRANT DEED

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EXHIBIT A-2 TO GRANT DEED

PROPERTY DEPICTION
[SEE ATTACHED]

9/27/2022
 
 

FORM OF

GRANT DEED

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11231-0001\2708118v2.doc
EXHIBIT B-1 TO GRANT DEED

PROPERTY DESCRIPTION (CONTINUED)
[SEE ATTACHED]

EXHIBIT ‘B1’
Legal Description

APN: 0209-272-11 & 0209-272-22

That portion of Parcel 15 of Parcel Map No. 14647 in the City of Rancho Cucamonga, County of San Bernardino, State of California, filed in Book 177, pages 90 through 96, inclusive of Parcel Maps, in the Office of the County Recorder of said County, together with a portion of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County, described as follows:

Commencing at the northeast corner of Section 13, of Township 1 South, Range 7 West, San Bernardino Meridian, as shown on said Parcel Map;

Thence along the easterly line of said Section 13, South 00°29’50” East 50.00 feet to the intersection of the easterly prolongation of the northerly line of said Rancho Cucamonga Metrolink Station Phase I;

Thence along said easterly prolongation line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I;

Thence continuing along said northerly line South 89°43’55 West 12.83 feet to the Point of Beginning ;

Thence South 00°00’00” West 311.62 feet;

Thence South 89°36’24” West 273.01 feet;

Thence South 00°00’06” East 243.01 feet;

Thence North 89°36’24” East 273.00 feet;

Thence South 00°00’00” West 13.88 feet to the southeasterly line of Parcel 15 per said Parcel Map;

Thence along said southeasterly line South 46°46’47” West 23.71 feet to the southerly line of said Parcel 15;

Thence along said southerly line South 89°36’24” West 269.11 feet to the beginning of a tangent curve, concave northeasterly, having a radius of 117.00 feet;

Thence northeasterly, along said curve, being the southwesterly line of said Parcel 15, through a central angle of 29°43’39” an arc length of 60.70 feet;

Thence leaving said southerly line North 00°10’37” West 569.98 feet to said northerly line of the Rancho Cucamonga Metrolink Station Phase I;

Thence along said northerly line North 89°43’55 East 346.26 feet to the Point of Beginning;

Parcel contains 135,265 square feet, more or less.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.00 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘B-2’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233

Date: ____________________

9/27/2022

FORM OF

GRANT DEED

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11231-0001\2708118v2.doc
EXHIBIT B-2 TO GRANT DEED

PROPERTY DEPICTION (CONTINUED)
[SEE ATTACHED]

9/27/2022
 
 

FORM OF

GRANT DEED

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EXHIBIT C-1 TO GRANT DEED

PROPERTY DESCRIPTION (CONTINUED) AND DESCRIPTION OF THE

RESERVED PROPERTY
[SEE ATTACHED]

EXHIBIT ‘C1’
Legal Description

APN: 0209-272-22

That portion of Parcel 15 of Parcel Map No. 14647, in the City of Rancho Cucamonga, County of San Bernardino, State of California, filed in Book 177, pages 90 through 96, inclusive, of Parcel Maps, in the Office of the County Recorder of said County, described as follows:

Commencing at the northeast corner of Section 13, of Township 1 South, Range 7 West, San Bernardino Meridian, as shown on said Parcel Map;

Thence along the easterly line of said Section 13, South 00°29’50” East 50.00 feet to the intersection of the easterly prolongation of the northerly line of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County;

Thence along said easterly prolongation line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I;

Thence continuing along said northerly line South 89°43’55 West 12.83 feet;

Thence leaving said easterly prolongation line and northerly line South 00°00’00” West 311.62 feet to the Point of Beginning;

Thence South 89°36’24” West 273.01 feet;

Thence South 00°00’06” East 243.01 feet;

Thence North 89°36’24” East 273.00 feet;

Thence North 00°00’00” East 243.01 feet to the Point of Beginning.

Parcel contains 66,341 square feet, more or less.

Reserving to the City of Rancho Cucamonga and San Bernardino County Transportation Authority the air space above the above-described land, contained between a horizontal plane eight (8) feet above the existing ground surface and existing ground surface.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.0 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibits ‘C-2’ and 'C-3’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233
Date: ____________________
9/27/2022

FORM OF

GRANT DEED

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EXHIBIT C-2 TO GRANT DEED

PROPERTY DEPICTION (CONTINUED)
[SEE ATTACHED]

9/27/2022
 
 

FORM OF

GRANT DEED

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EXHIBIT C-3 TO GRANT DEED

DEPICTION OF THE RESERVED PROPERTY
[SEE ATTACHED]

 
 

FORM OF GRANT DEED

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EXHIBIT D TO GRANT DEED

DESCRIPTION OF DRIVEWAY AND UTILITY EASEMENT
[TO BE FINALIZED DURING THE DESIGN PROCESS PRIOR TO RECORDATION]

FORM OF GRANT DEED

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EXHIBIT E TO GRANT DEED

DESCRIPTION OF TUNNEL EASEMENT
[SEE ATTACHED]

FORM OF GRANT DEED

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SCHEDULE 1 TO GRANT DEED

TERMS AND CONDITIONS OF TUNNEL EASEMENT

[TO BE FINALIZED WITHIN 90 DAYS OF SIGNING THE DDA]

EXHIBIT “E”
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EXHIBIT “E”

FORM OF 8TH STREET EASEMENT
[SEE ATTACHED]

1 RECORDING REQUEST BY,
AND WHEN RECORDED RETURN TO:

DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118
Attn: David Pickett, Esq.

With a copy to:

City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Attn: City Manager

SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY
Free Recording Requested per Government Code 27383.

EASEMENT FOR HIGH-SPEED RAIL OVERPASS
(8TH STREET)
THIS EASEMENT FOR HIGH-SPEED RAIL OVERPASS (“Agreement”) is dated as of ____________ ___, 20__ and is entered into by a nd between the CITY OF RANCHO CUCAMONGA, a California municipal corporation (“ City”), and DESERTXPRESS ENTERPRISES, LLC, a Nevada limited liability company d/b/a Brightline West and qualified to do business in California (“ DXE”). City and DXE are sometimes hereinafter referred to individually as “Party” and collectively as the “Parties.”

RECITALS
A. DXE plans to construct a high-speed passenger rail system from Las Vegas, Nevada to Rancho Cucamonga, California (“HSR System”). One portion of this system will include an elevated track structure along a portion of 8th Street in the City of Rancho Cucamonga and requires an easement from the City in order to construct, operate, and maintain this elevated track structure.

The location of the easement is described in Exhibit “A” (the “Easement Area”), and the elevated high-speed rail track structure a nd ground-level supporting facilities is described in Exhibit “B” (the “Improvements”).

B. The City’s public purposes in entering into this Agreement include facilitating the development of transportation that will benefit the public, pr oviding employment opportunities resulting from the work to be pe rformed by DXE and the operation of a high-speed rail project, and obtaining fair market compensation for the easement interest granted herein (and such compensation shall become part of the general funds of the City and in turn used for public purposes).

2 AGREEMENT

1. Grant of Easement; Consideration . City hereby grants to DXE a nonexclusive perpetual easement (“Easement”) in and through the Easement Area for the purpose of installing, maintaining, and operating the Improvements and operating passenger rail service thereon, subject to all applicable laws, it bei ng understood that the non-vacated por tion of 8th Street is a public street that will continue to be used by the public at the risk of DXE. The installation, maintenance, and operation of the Improvements shall be subo rdinate to any existing easements, covenants, conditions, restrictions, reservat ions, rights of way, liens, encumb rances, and other matters of record on or under 8th Street. As a condition precedent to DXE’s occupancy or use of the Easement Area, DXE will pay to City the one-time sum equal to the fair market price of the easement interest and rights described herein, as determined by an appraisal obtained by City.

2. AS-IS. DXE accepts the Easement Area in its current “AS-IS” condition, without representation or warranty, express or implied, and subject to all existing matters of record and all matters that would be revealed by a diligent inspection of the Easement Area. DXE also acknowledges that City makes no representations, express or implied, as to the physical condition of or title to the Easement Area. This Agreement does not constitute, nor grant permission to use or occupy property not belonging to, or under the control of City, and permission to use or occupy such property must be obtained from the owner or controller of such property, separate from and in addition to this Agreement.

3. Authorized Improvements; Street Closures . The rights of DXE to install, maintain, and operate the Impr ovements are subject to any a pplicable laws and permitting requirements and conditions (and the City does not waive any of its rights or powers in its governmental capacity in that regard to the extent applicable). City will review and approve all such Improvement plans in its proprietary capacity as property owner prior to construction of the Improvements only to ensure consistency a nd no material interference with the Public Improvements (as defined below) and not to review the HSR System. In addition, the location of any columns that support the elevated track structure within the Easement Area will be determined by DXE through its design process, provided that the locations are approved in writing by the City Engineer after finding that the locations will no t unreasonably impact the Public Improvements, including 8th Street and Rochester Avenue. The precise location of the columns approved by the City Engineer pursuant to the foregoing sentence will be described in a new Exhibit “A-2” to be attached to this Agreement pr ior to recordation. Any and a ll street closures required for installation, maintenance, or repairs of the Improvements must be approved in advance in writing by the City Manager, and DXE shall pay or reimburse City within thirty (30) days after written demand for all costs incurred by City in connection with any such closures.

4. Standards for Rail Facilities. City acknowledges that standards promulgated by and decisions issued by the Federal Railroad Administration (“FRA”) and Surface Transportation Board (“STB”) govern the design, construction, operation, and maintenance of railroad facilities within their jurisdiction and that such regulations, standards, a nd decisions might as a matter of law preempt and supersede requirements that may otherwise apply under state or local laws. City acknowledges that it is not a regu latory agency under federal law or with respect to California utilities regulated by the California Public Utilities Commission, and the Parties agree that the City will have no liability for not in specting rail facilities or operations on the Easement Area for

3 purposes of enforcing compliance with laws and re gulations within the jurisdiction of the STB, the FRA, or the California Public Utilities Commission. Notwithstanding this Section 4, City reserves all of its governmental rights and power s, and DXE acknowledges that City is entering into this Agreement solely in its proprietary capacity.

5. Repair of Damage.
(a) Damage to Public Improvements. DXE shall promptly notify the City in writing if it becomes aware of any damage to 8th Street or Public Improvements (as defined below). Whether or not DXE notifies the City, if any damage is caused to 8th Street or Public Improvements directly or indirectly by DXE or its contractors, such repair work will be conducted by the City at DXE’s sole cost and expense, or if so authorized in writing by City, may be repaired by DXE at its sole cost and expense (whereupon DXE shall promptly coordinate with City on any necessary street closures, and promptly perform the repairs). (b) If City elects to perform repair work for which DXE has some or all responsibility, DXE shall reimburse City for its share of the reasona ble costs of the repair work within thirty (30) days after delivery of a stat ement from City describing the costs, including a statement detailing such costs and expenses. In the event payment is not made within said thirty (30) day period, said payment shall include interest at a rate of ten percent (10%) per annum from the end of said thirty (30) day period until paid.

6. Encumbrance. DXE may, at any time and from time to time, encumber to any bank, insurance company or other institutional lender, herein called “Mortgagee,” by one or more deeds of trust (the “Security In strument”), all of DXE’s intere st under this Agreement and the interest created hereunder provided that (i) such Security Instrument is subject to the terms of this Agreement and all interests of the City hereunder, (ii) such Security Instrument shall not constitute in any way a lien or encumbrance on the City’s interests, and (iii) the Security Instrument shall not encumber any obligations that do not relate to the HSR System. No Mortgagee shall be liable to City as the successor to the righ ts and obligations of DXE under this Agreement unless and until such Mortgagee acquires the easement interest hereunder through foreclosure or other proceedings in the nature of foreclosure or as a result of an assignment in lieu of foreclosure or other assignment, action or reme dy, nor shall a Mortgagee be liable for any defaul ts that occur after it conveys its interest in the property associated with the Easement hereunder.

7. Ownership of Improvements. All Improvements shall be owned by DXE during the duration of this Agreement, and upon the termination of this Agreement, shall become the sole property of City without compen sation to DXE, or, if City so elects and upon written notice to DXE within ninety (90) days of termination, shall be demolished and removed by DXE from the Easement Area at DXE’s sole expense within twel ve (12) months from the date of said notice (subject to extension for Force Ma jeure Events or by written agre ement of the Parties), and the foregoing (and defense and indemnity obligations of DXE under this Agreement) shall survive the termination of this Agreement. Nothing herein affects City’s rights or remedies as a governmental entity, such as the right to cause DXE to abat e a nuisance, and in conn ection therewith, remove Improvements (if City has such a right as a gove rnmental entity under applicable law). For the avoidance of doubt, the City ackno wledges and agrees that the c onstruction and operation of the HSR System in accordance with this Agreement and applicable law is not a nuisance.

4 8. Waiver and Release. DXE expressly waives, releases and relinquishes any and all claims, causes of action, rights and remedies DXE may now or hereafter have against City, and its officials, officers, employees, consultants, atto rneys and agents (collectively, “City Entities”), whether known or unknown, arising prior to the date of this Agreement and relating to the condition of the Easement Area, or 8th Street or adjacent property, and all claims of contribution and reimbursement for costs of remediating Haza rdous Materials (defined in Section 12 below) released or existing prior to the date of this Agreement in, on or near the Easement Area.

DXE HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVI L CODE SECTION 1542 (“SECTION 1542”), WHICH IS SET FORTH BELOW:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RE LEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”

BY INITIALING BELOW, DXE HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
___________
DXE’s Initials
The waivers and releases by DXE contained herein shall survive the termination of this Agreement and shall be binding upon the assignees, transferees, and successors-in-interest of DXE.

9. Access. DXE acknowledges that 8th Street contains certain City-owned public facilities collectively and hereinafter referred to as “Public Improvements” as well as publicly and privately owned utilities, including storm drains, water, sewer, gas, electrical, cable television, fiber optics and other public and privately owned u tilities and facilities. Except for access to the elevated high-speed rail track structure or associated facilities relating thereto (“ Restricted Facilities”), which access is covered in the following sentence, the City and utility providers shall have access at any time to the Easement Area. Except in the event of an emergency, in which event telephonic notice as soon as practical is acceptable in lieu of five (5) business day advance written notice, if the City (1) desires to do any digging or trenching in the Easement Area, (2) desires to operate a crane in the Easement Area, or (3) desires access to the Restricted Facilities, the City shall notify DXE either in writing at least five (5) busin ess days prior to such desired entry. In such event, DXE shall cooperate with the City to determine how to safely provide access to 8
th Street for purposes of the work to be perfo rmed. DXE shall have the right, but not the obligation, to add appropriate signa ge to the Restricted Facilities, includi ng, without limitation, signs prohibiting access and requiring advance noti ce and permission prior to entry. Under no

5 circumstances shall the City be liable in damage s to DXE, or to any assignee or Mortgagee, for City’s failure to provide advance notice of entry and DXE covenants on behalf of itself and its successors in interest not to sue for or claim damage s against City as a result of City’s breach of the notice requirements in this Section 9.

10. Safety Protocols. DXE and the City will comply in good faith w ith all safety procedures and protocols mutually developed by the parties, as the same may be amended in writing from time to time. It is contemplated that such procedures and protocols will address both planned and emergency access needs for access by City and utility companies. Either party can at any time present draft safety procedures and protocols to the other party for its reasonable review and approval and the parties shall thereafter reasonably cooperate to finalize such procedures and protocols.

11. Utilities. As between DXE and the City, any required relocation of a utility that interferes with DXE’s project within the Easement Area is the sole responsibility of DXE. Upon written request by DXE, City will provide utility contact information known to City and make its right-of-way utility staff available (on a reimbursabl e basis) for meetings w ith third-party utility owners to help facilitate DXE’s property access and construction and maintenance activities.

12. Termination. In the event DXE fails to use the Easement Area for rail transportation purposes for a period of five (5) consecutive years (“Abandonment”), the City may, after thirty (30) days written notice to DXE, d eem the easement aband oned and terminate this Agreement; provided, however, the City may not terminate this Agreement if DXE cures the Abandonment by using the Easement Area for rail transportation purposes during the thirty (30) day period after written notice by the City. Additionally, City may terminate this Agreement if DXE fails to comply with this Agreement and then fails to cure such default within thirty (30) days after written notice from City, and then continues to fail to cure such default within five (5) business day following a second wr itten notice from the City sent af ter the initial 30-day period, with each such notice (i) sent via certified mail or another delivery method requiring a signature by the recipient and (ii) stating in all capital and bolded letters of at least 12 point font: “FAILURE TO CURE SHALL RESULT IN TERMINATION” ; provided, however, the City may not terminate this Agreement if DXE commences to cure the default during the applicable cure period after written notice by the City and thereafter diligently prosecutes the cure to completion. (a) Right of Mortgagee to Cure Defaults. Each Mortgagee will have the same period, commencing upon written notice to each such Mortgagee of such de fault, to remedy or cause to be remedied the default complained of as DXE has hereunder to cure such default, plus an additional ninety (90) days in the case of any other default which is capable of being cured by the Mortgagee (and such ninety (90) day period will be extended for a reasonable period of time to gain possession of the interest of DXE un der the Agreement through legal proceedings if necessary to cure such default provided the Mortgagee commences the proceedings within one hundred eighty (180) days after th e initial written notice by the C ity and thereafter diligently prosecuting such proceedings) whic h period will be extended as necessary for a Mortgagee to obtain relief from any stay in a bankruptcy proceeding in whic h DXE is a debtor, provided the Mortgagee is diligently prosecuting such relief and has assumed the obligations of this Agreement in writing (and such written assumption shall have been delivered to City), and City will accept performance by such Mortgagee within the time specified herein as timely performance by DXE;

6 provided, however, that (i) nothing containe d herein will be deemed to impose upon any Mortgagee the obligation to perform any obligati on of DXE under this Agreement or to remedy any default by DXE hereunder, and (ii) in the even t that the Mortgagee or a third party succeeds to DXE’s interest under this Agreement pursuant to foreclosure of the Security Agreement, exercise of a power of sale ther eunder or a deed in lieu thereo f, City waives, as against the Mortgagee or such third party, any default by DXE that is not susceptible to cure by the Mortgagee.

Any provision of this Agreement to the contrary notwithstanding, no performance by or on behalf of a Mortgagee will cause it to become a “mortg agee in possession” or othe rwise cause it to be deemed to be in possession of the Property or bound by or liable under this Agreement, unless the Mortgagee is actually in possession of the Property. In addition, the parties agree that if there is more than one (1) Mortgagee (or collateral assign ee), then all cure periods provided in this paragraph will run concurrentl y. Upon the full and timely performance by Mortgagee of the obligation or obligations the nonpe rformance of which was the subj ect of the notice of default given to Mortgagee pursuant to this Section, such default shall be deemed cured and shall no longer give rise to any rights and re medies of City; provided, however, that Mortgagee’s cure of any default under this Agreement by DXE shall not ex cuse or waive any future default under this Agreement by DXE or preclude or limit the exercise of any rights or remedies afforded City under this Agreement as a result of such future default. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, City will not have the right to terminate this Agreement or re-enter the Property by reason of a default by DXE that is re asonably susceptible of cure by Mortgagee, during the period specified in this Section 12 in which a Mortgagee is entitled to cure a default by DXE.

13. Hazardous Materials.
(a) DXE covenants that it will not handle or transport Hazardous Materials in the Easement Area except for removal, transp ortation and disposal in compliance with laws regarding excavated soils that are or may be contaminated with Hazardous Materials. As used in this Agreement, the term “Hazardous Materials” means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmenta l Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9 601 et seq.; the Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1801 et seq.; the Clean Water Act, 33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance A ccount Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California H ealth and Safety Code Section 25501 et seq. (Hazardous Materials Release Respons e Plans and Inventory); or the California Porter-Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended (the above cited California stat e statutes are hereinafte r collectively referred to as “the State Toxic Substances Law”); or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance,

7 product, waste or other material of any nature whatsoever which ma y give rise to liability under any of the above statutes or under any statut ory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liab ility or under any reported decisions of a state or federal court; (c) petroleum or crude oil, othe r than petroleum and petroleum products which are contained within regularly opera ted motor vehicles or passenge r trains; and (d) asbestos.

Notwithstanding the foregoing, DXE may handle and transport Hazardous Materials normally and customarily used in the development, construc tion and operation of ra ilroad infrastructure, including passenger stations, that are used, stored, transported and disposed of in accordance with all applicable laws, building codes, regulations, ordinances, rules, directives, covenants, or restrictions of record. As an example only, train infrastruct ure typically entails refueling maintenance vehicles or using cleaning supplies for routine maintenance. (b) DXE further agrees that at City’s request it will furnish City with proof, satisfactory to City, that DXE is in compliance with all such laws, rules, regulations, orders, decisions and ordinances regarding Hazardous Materials. (c) Notwithstanding anything else containe d in this Agreement, DXE shall indemnify, defend and hold harmless City from and against any and all claims, liabilities, losses, damages, costs and expenses arising from or relating to injuries to any person, including wrongful death, or damage to property, including without limitation, property of City and DXE, or otherwise (including without limitation reason able attorneys’ fees, investigators’ fees, litigation expenses, and mitigation costs) resulting in whole or in pa rt from DXE’s failure to comply with DXE’s obligations under this Agreement with respect to Hazardous Materials, provided, however, that the foregoing shall not apply to releases of Hazardous Materials by City Entities’ active negligence or willful misconduct or to Hazardous Materials not brought onto the Easement Area by DXE or its contractors. DXE agrees to reimburse City for all reasonable costs of any kind incurred as a result of the DXE’s failure to comply with this Section, including, but not limited to, judicial or administrative fines, penalties, clean-up and disposal costs, and legal costs incurred as a result of DXE’s handling, transporting, or disposing of Hazardous Materials on, over, or across the Improvements and/or 8th Street or adjacent property.
(d) City shall have the right at any time to inspect the Improvements, 8th Street and Public Improvements in order to monitor DXE’s compliance with this Agreement, subject to the provisions of Section 9 above.

14. Insurance. DXE shall obtain and maintain insurance, at its sole cost and expense, as required in Exhibit “C” attached hereto.

15. Indemnity. DXE shall defend, indemnify and hold City and its officials, officers, agents, employees and contractors free and harmless from and against any and all claims, demands, causes of action, costs, liabilities, expenses, losse s, damages or injuries of any kind in law or equity, to persons or property, including wrongful death, in any manner arising out of or incident to any acts, omissions or willful misconduct of DXE, its partners, affiliates, agents officials, officers, employees or contractors in performance of this Agreement, use of the Easement Area or the construction, use, or operation of the Improvemen ts or the failure to co mply (or failure of its contractors to comply) with California Labor Code Section 1720 et seq., including without limitation Labor Code Section 1781. DXE shall further defend, indemnify and hold harmless the

8 City and its officials, officers, agents and empl oyees from all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings (b rought against the City or its departments, commissions, agents, offi cers, officials, or employees to cha llenge, attack seek to modify, set aside, void or annul any City decision made in connection with this Agreement or DXE’s use of the Easement Area (based on noncompliance with the California Environm ental Quality Act or otherwise). DXE shall defend, with counsel reas onably acceptable to City and at DXE’s sole expense, any and all aforesaid suits, actions or proceedings, legal or affirmative, that may be brought or instituted against City, its officials, o fficers, agents, employees or contractors. DXE shall pay and satisfy any judgment, award or decree that may be rendered against City, its officials, officers, agents, employees or contractors. DXE shall reimburse such parties for any and all legal expenses and costs incurre d by one or all of them in connection with this Agreement or the indemnity herein provided. DXE’s obligations hereunder shall survive termination or expiration of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City or its officials, officers, agents or, employees or contractors.

16. Covenant Running With Land . This Agreement shall be deemed a covenant running with the land with respect to the Easement Area, burde ning the Easement Area and benefitting the real property interests associated with the HSR System. All of the covenants, obligations, and provisions of this Agreement sh all be binding upon and inure to the benefit of successors, legal representatives, assigns and succe ssors-in-interest to the Parties. Every person who now or hereafter owns or acquires any right, title, or interest in and to any portion of the Easement Area shall be conclusively deemed to have notice of this Agreement, whether or not reference to this Agreement is contained in th e instrument by which su ch person acquires an interest in the Easement Area. Therefore, eac h and every contract, deed or other instrument hereinafter executed, covering or conveying the Ea sement Area or any portion thereof or interest therein shall conclusively be deemed to have been executed, delivered and accepted subject to this Agreement.

17. Estoppel Certificates. Each of the Parties hereto agree, promptly upon request from the other Party hereto, to furnish from time to time in writing certificates containing truthful estoppel information and/or confirmations of the agreements, obligations and easements contained in this Agreement and otherwise in a form and substance reasonably satisfactory to the Party from whom such certificate is sought.

18. Cooperation; Further Assurances. The Parties agree to execute any reasonable documents necessary to effectuate or protect a Party’s rights under this Agreement.

19. Attorneys’ Fees. In the event either Party brings a suit, action, or other proceeding against the other Party that in a ny way relates to or arises out of this Agreement, the prevailing Party (meaning the Party that obtains substantially the relief sought by it) shall be entitled to have and recover from the other Party all reasonable costs and expenses of the suit, action or proceeding, including attorneys’ fees, from the commencement of the suit, action or proceeding through the entry of judgment. The trial court shall determin e which Party is the prevailing Party as well as the amount of attorneys’ fees and costs to be awarded immediately following the entry of judgment (and without awaiting any appeal) in a post-trial proceeding, such as is conducted when a cost bill is submitted. If an appeal is timely filed and if the awarding or amount of attorneys’ fees and costs is at issue in the appeal, then the appellate court (or the trial court, acting pursuant to an order of

9 the appellate court) shall determine such issue, and the recoverable attorneys’ fees and costs shall include those incurred through the entry of final judgment following the appeal.

20. Miscellaneous.
(a) Notices. All notices permitted or re quired under this Agreement shall be given to the respective Parties at the following addr ess, or at such other address as the respective Parties may provide in writing for this purpose:

DXE: DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118
Attn: General Counsel
City: City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Attn: City Manager
Such notice shall be deemed made when delivered by certified mail, return receipt requested, first class postage prepaid, or by reputable overnight messenger delivery service, and addressed to the Party at its applicable address a nd shall be deemed delivered on the date of delivery or refusal to accept or inability to delivery shown on the return receipt, or one (1) business day after delivery to the messenger service for overnight delivery, as applicable. (b) Entire Understanding. This Agreement constitutes the entire understanding between the Parties, and supersedes all offers, negotiations, and other agreements concerning the subject matter contained herein.
(c) Invalidity. If any provision of this Agreement is invalid or unenforceable with respect to any Party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held in valid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(d) Successors and Assigns. This Agreemen t shall be binding on and inure to the benefit of the successors of the respective Parties. Except as set forth in Section 6 above, this Agreement may not be assigned by either Party without the prior written consent of the other Party. (e) Governing Law. Except on subject s preempted by federal law, this Agreement will be governed by and construed in accordance with the laws of the State of California. Nothing herein is meant to be or will be interpreted to be a waiver of principles of legal preemption or preclusion that may apply to DXE because of its status as a common carrier regulated by the federal government.
(f) Venue. Venue for any legal action between the Parties related to this Agreement will be in the Superior Court of San Bernardino County, California or the United States

10 District Court, Central District Court of California. The judgm ent in any such action may be enforced by any court of competent jurisdiction wherever located. (g) Exhibits. All exhibits attached he reto form material parts of this Agreement.
(h) Time of Essence. Time is of the essence of every provision hereof in which time is a factor.
(i) Survival. All defense, indemnity, and payment obligations of DXE that arise or relate to events occurring prior to the termination of this Agreement shall survive such termination.

21. Property Taxes, Including Possessory Interest Taxes . This Agreement creates a possessory interest that may be subject to posse ssory interest tax (a type of California property tax), and DXE shall pay any such possessory in terest taxes that ma y be assessed. If the Improvements are taxed as an improvement on the Easement Area, DXE shall, upon demand, pay such taxes allocable to the Improvement, as de termined by the taxing authority. City shall cooperate and assist DXE, at no costs to City, in any efforts to obtain a separate assessment for the Improvements, including execu ting any reasonably required a pplications or reasonable documents. DXE shall pay when due all personal pr operty taxes levied against or relating to the Improvements.

22. Encroachment Permit(s) . DXE shall obtain encroachment permits from City, which City shall not unreasonably de ny (upon written applic ation at least forty -five (45) days in advance, but City shall endeavor to process such permits more quickly if possible), in areas outside of but adjacent to the Easement Area as needed for: (i) temporary constr uction staging; (ii) any public improvements thereon that will be affected (including closure of areas open to the public) or need to be altered or repaired as a result of work done by DXE; or (iii) or access for the foregoing purposes. DXE shall pay all related permit fees and reimburse City within ten (10) business days after written demand for costs of processing the applications. [Signature Page Follows]

11 The Parties have executed this Agreement as of the date first written above.

DXE:

DESERTXPRESS ENTERPRISES, LLC, a
Nevada limited liability company

By: _______________________________
Sarah Watterson
President
CITY:

CITY OF RANCHO CUCAMONGA,
a California municipal corporation
_______________________________
By: ____________________, Mayor

ATTEST:
______________________________
_________________, City Clerk
APPROVED AS TO FORM:

Nicholas Ghirelli,
City Attorney

12 A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)

13 A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of _____________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)

A-1

EXHIBIT “A”

DESCRIPTION OF EASEMENT AREA
[SEE ATTACHED]

EXHIBIT ‘A’
Legal Description

APN: 0209-272-11, 0229-262-35 & 0229-262-36

Those portions of Milliken Avenue and Parcel 1, as shown on Parcel Map No. 7555, in the City of Rancho Cucamonga, County of San Bernardino, State of California, filed in Book 77, pages 42 and 43 of Parcel Maps, in the Office of the County Recorder of said County, together with that portion of Parcel 1 of Parcel Map No. 7797, in said City, filed in Book 80, pages 29 through 32, inclusive of Parcel Maps, in the Office of the County Recorder of said County, together with that portion lying within 8 th Street Right-of-Way,
as shown on the Record of Survey filed in Book 118, pages 77 and 78, in the Office of the County Recorder of said County, together with a portion of the land in said City described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County, State of California, described as follows:

Parcel “A”

Commencing at the northeast corner of Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, as shown on Parcel Map No. 14647 filed in Book 177, pages 90 through 96, inclusive, of Parcel Maps, in the Office of the County Recorder of said County, said point being on the westerly line of Section 18, Township 1 South, Range 6 West, San Bernardino Meridian, as shown on said Parcel Map No. 7555;

Thence along the westerly line of said Section 18 South 00°29’50” East 3.79 feet to the Point of Beginning ;

Thence leaving said westerly line North 87°50’29” East 509.29 feet;

Thence North 87°48’05” East 258.95 feet;

Thence North 86°59’53” East 149.87 feet;

Thence North 10°47’55” East 1.81 feet;

Thence North 55°47’55” East 1.41 feet;

Thence South 79°12’05” East 8.00 feet;

Thence South 36°17’13” East 0.62 feet;

Thence North 86°34’19” East 148.67 feet;

Thence North 42°11'39" East 1.43 feet;

Thence North 86°34’31” East 8.00 feet;

Thence South 48°28’38” East 1.38 feet;

Thence North 86°18’40” East 79.13 feet;

Thence North 87°14’34” East 85.84 feet;

Thence North 88°08’53” East 93.15 feet;

Thence North 87°54’53” East 419.57 feet;

Thence North 02°05’07” West 3.00 feet;

Thence North 87°54'53" East 106.18 feet;

Thence South 02°05'07" East 3.00 feet;

Thence North 87°54'53" East 1,377.58 feet;

Thence North 88°01'32" East 46.56 feet;

Thence North 88°41'30" East 46.74 feet;

Thence South 89°45'16" East 31.17 feet;

Thence North 88°28'08" East 146.29 feet;

Thence South 85°51'37" East 8.00 feet;

Thence South 87°58'21" East 107.78 feet;

Thence South 74°01'15" East 8.00 feet;

Thence South 89°40'47” East 116.04 feet;

Thence South 44°38'23" East 6.21 feet to a point hereinafter referred to as Point “A”, said point being on the southerly line of the Railroad Right-of-Way as shown on said Record of Survey;

Thence continuing South 44°38'23" East 21.59 feet;

Thence South 87°56'20" East 76.88 feet to the easterly line of Rochester Road as shown on said Record of Survey;

Thence along said easterly line South 00°09'46" West 53.26 feet;

Thence leaving said easterly line North 88°01'57" West 77.71 feet;

Thence North 87°41’11” West 22.86 feet;

Thence North 84°42’33” West 129.75 feet;

Thence North 80°18'23" West 107.04 feet;

Thence North 85°57’27” West 23.10 feet;

Thence North 86°57'43" West 47.82 feet;

Thence North 88°21'24" West 48.91 feet;

Thence South 87°51'40" West 44.94 feet;

Thence South 87°52'16" West 15.79 feet;

Thence South 87°54'53" West 2,029.24 feet;

Thence South 86°56'35" West 23.54 feet;

Thence South 86°33'18" West 33.69 feet;

Thence South 79°10'13" West 53.07 feet;

Thence South 79°13'27" West 89.48 feet to the northerly line of said Section 18;

Thence South 79°13'27" West 24.46 feet;

Thence South 87°50'06" West 8.00 feet;

Thence South 81°58'53" West 137.33 feet;

Thence South 87°55'09" West 943.00 feet to the westerly line of said Section 18;

Thence along said westerly line North 0°29'50" West 60.02 feet to a point hereinafter referred to as Point “B”, said point being on the southerly line of the Railroad Right-of- Way as shown on said Record of Survey;

Thence continuing North 0°29'50" West 13.25’ to the Point of Beginning .

Excepting therefrom that portion lying northerly of the following described line:

Commencing at the above-described Point “A” ;

Thence South 87°55’10” West 3,762.19 feet to the above referenced Point “B .

Reserving all that portion below a level plane 16.00 feet above the existing ground, except that portion occupied by viaduct columns at locations described on Exhibit ‘A-2’ attached hereto.

Parcel contains 131,094 square feet, more or less.

Parcel “B”

Commencing at said northeast corner of said Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, as shown on said Parcel Map No. 14647;

Thence along the easterly line of said Section 13 South 00°29’50” East 50.00 feet to the easterly prolongation of the northerly line of said Rancho Cucamonga Metrolink Station Phase I, said point also being the Point of Beginning ;

Thence along said easterly prolongation line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I;

Thence continuing along said northerly line South 89°43’55 West 12.83 feet;

Thence leaving said northerly line South 00°00’00” West 28.43 feet;

Thence North 87°55’10” East 13.09 feet to the easterly line of said Rancho Cucamonga Metrolink Station Phase I;

Thence North 87°55’10” East 30.01 to the easterly line of said Section 13;

Thence along said easterly line of Section 13 North 00°29’50” West 27.07 feet to said easterly prolongation and the Point of Beginning .

Parcel contains 1,192 square feet, more or less.

Reserving all that portion below a level plane 16.00 feet above the existing ground, except that portion occupied by viaduct columns at a location described on Exhibit ‘A-2’ attached hereto.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.0 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘A-1’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233

Date: ____________________

9/28/2022

9/28/2022

 
 

 
 

 
 

 
 

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EXHIBIT "B"

DESCRIPTION OF IMPROVEMENTS

The Improvements will consist of an elevated railroad viaduct and approximately twenty-one (21) associated support columns located in the Easement Area.

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EXHIBIT “C”
Required Insurance
(a) Prior to Construction. On or before DXE’s entry onto the Easement Area, DXE shall procure and maintain, at its sole cost and expense, the following insurance:

(1) Commercial General Liability (CGL) with a limit not less than twenty-five million dollars ($25,000,000) per each occurrence an d a general aggregate limit of not less than twenty-five million dollars ($25,000,000) providing coverage for bodily injury, property damage, and personal injury through any combination of primary and excess or umbrella liability insurance policies with limits restating annually. The CGL insurance must be written on an ISO occurrence form CG 00 01 04 13 or (with a pproval from City) substitute forms at least as broad as CG 00 01 04 13 coverage. All excess or umbrella policies must be "follow form" and afford no less coverage than th e primary policy. Such CGL mu st provide coverage to the Indemnified Parties as additional insureds using ISO Additional Insured Endorsement CG 20 10.

Coverage shall be provided to the Indemnified Parties for claims proximately caused by reason of the uses authorized by this Agreement and the location and placement of improvements within the Easement Area, unless caused by an Indemnified Party's gross negligence or willful misconduct.

(b) Insurance During Construction. Prior to commencing physical construction within the Easement Area, DXE shall procure or cause to be procured and maintained throughout construction the following insurance coverage:

(1) Liability Insurance. Comme rcial General Liability (CGL) with a limit not less than three hundred million dollars $300,000,000 each occurrence, three hundred million dollars ($300,000,000) products and completed operations aggregate, and a general aggregate limit of not less than three hundred mil lion dollars ($300,000,000) providing coverage for bodily injury, pr operty damage, and personal inju ry through any combination of primary and excess or umbrella liability insu rance policies with one reinstatement general aggregate limit for the period of the policy(ies) term. Such policies must be project-specific with dedicated limits to the Project. The CGL insura nce must be written on an ISO occurrence form CG 00 01 04 13 or (with approval from City) substitute forms providing equivalent coverage. All excess or umbrella policies must be "follow form " and afford no less coverage than the primary policy. Such CGL must cover the Indemnified Parties as additional insureds using ISO Additional Insured Endorsement CG 20 26 or 20 10 and acco mpanied by 20 37 or equivalent forms with approval from City providing coverage to the ad ditional insured for completed operation losses.

Coverage must be provided to the Indemnified Parties for claims proximately caused by reason of the uses authorized by this Agreement, unless caused by an Indemnified Party’s gross negligence or willful misconduct.

The policy or policies shall be endorsed to remo ve exclusions pertaining to any railroads.

There must not be any endorsement or modification of the CGL limiting the scope of coverage for liability assumed under an insured contract. Comp leted operations coverage must extend for as long as there is any exposure to liability under a st atute of repose or any other applicable statute of limitations. If completed ope rations coverage through the en d of statutory exposure is not commercially available, completed operations cove rage must extend for at least ten (10) years

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from the completion date of the Project. All excess or umbrella policies must contain a drop-down clause in the event of exhaustion of primary limits and provide coverage for primary CGL.

(2) Commercial Automobile Insurance. During all phases of the Project, DXE shall provide eviden ce of commercial business auto coverage written on ISO form CA 00 01 10 01 (or, with approval from City, s ubstitute form providing equivalent liability coverage) with a limit not less than one mi llion dollars ($1,000,000) for each accident. Such insurance must cover liability arising out of any auto (inc luding owned, hired, and non-owned autos). The policy must contain an endorsement for coverage to operations in connection with a railroad and an endorsement to cover liabilities arising out of the Motor Carrier Act - Hazardous materials clean up (MCS-90) with a sublimit of no less than one mil lion dollars ($1,000,000).

During all phases of the Project, DXE shall requi re its general contractor to provide (and shall ensure that its general contractor does provide ) evidence of commercial business auto coverage written on ISO form CA 00 01 10 01 (or, with approval from City, substitute form providing equivalent liability coverage) with a limit not less than twen ty-five million dollars ($25,000,000) for each accident. Such insurance must cover liab ility arising out of any auto (including owned, hired, and non-owned autos) and can be satisfied by a combination of primary and excess and/or umbrella policies. The policy(ies) must contain an endorsement for coverage to operations in connection with a railroad and an endorsement to cover liabilities arising out of the Motor Carrier Act - Hazardous materials clean up (MCS-90) with a sublimit of no less than one million dollars ($1,000,000). All excess or umbrella policies shall contain a drop-down clause in the event of exhaustion of primary limits and provide coverage for primary auto liability.

(3) Workers' Compensation and Em ployers Liability Insurance.

During all phases of the Project, DXE shall provide evidence of Workers' Compensation insurance as required under California statut e including coverage for Employer' s Liability with limits of at least one million dollars ($1,000,000) each ac cident, one million dollars ($1,000,000) each employee by disease, and a policy limit of one million dollars ($1,000,000) by disease. The excess liability policy must include employer's liability coverage limits to at le ast twenty-five million dollars ($25,000,000) and can be satisfied by a combination of primary and excess and/or umbrella policies.

The workers' compensation policies must provide the following:

a. A waiver of subrogation in favor of City and the Indemnified Parties;

b. A provision extending coverage to all states' operations;

c. A voluntary compensation endorsement;

d. An alternative employer endorsement, if applicable to DXE operations;

e. Coverage for liability under the United States Longshore and Harbor Workers' Compensation Act on an "if any" basis or as otherwise appropriate;

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f. Coverage for liability under Title 46 of the U.S.C. § 688 ("Jones Act") on an "if any" basis or as otherwise appropriate; and

g. An endorsement extending the policy to cover the liability of the insureds under the Federal Employer's Liability Act on an "if any" basis or as otherwise appropriate.

(4) Professional Liability Insurance. During all phases of the Project, DXE shall provide evidence of professi onal liability insurance, including prior acts coverage sufficient to cover all claims arising out of any professional services, including without limitation engineering, architectural, or land surveying work required in constructing the Project on the Easement Area, procured, and maintained by those third parties performing such work for or on behalf of DXE. For the l ead design contractor for the imp rovements in privity with DXE, the coverage must not be less than ten million dollars ($10,000,000) per claim and in the aggregate.

For environmental assessments, land surveying work and any other site work, the coverage must not be less than two million dollars ($2,000,000) per claim and in the aggregate. For architectural, geotechnical engineers, and electrical engineers, the coverage must not be less than two million dollars ($2,000,000) per claim and in the aggregate. For structural engine ers and civil engineers relating to the Project, the coverage must not be less than five mill ion dollars ($5,000,000) per claim and in the aggregate. DXE shall also re quire any member of its design build team, any subconsultant, or any subcontractor performing professional design services for any portion of the Project, to obtain and maintain (and shall ensu re that they do obtain an d maintain) professional liability insurance providing the same coverage, with limits of at least one million dollars ($1,000,000) per claim and in the aggregate. DXE sh all procure and maintain a project specific Owner's Protective Professional Indemnity (OPPI) policy that provides coverage with limits of at least twenty-five million dollars ($25,000,000) per claim and in the aggregate for claims arising out of the liability of design and construction professionals. Such coverage must include coverage for claims filed directly against DXE by th ird-parties alleging neg ligence (arising from professional services of design firms).

No self-insured retention for DXE or any lead design entity is permitted to exceed five hundred thousand dollars ($500,000), unl ess commercially unavailable and without prior written approval from City, in its good faith discretion. Coverage must apply specifically to professional activities performed or contracted by DXE in support of the Project. The policy(ies) must have a retroactive date consistent with the inception of the first date of design or project or construction management activities, and no later than the date on which any contract or subcontract was issued.

DXE agrees to maintain or to require its desi gn professionals, subconsu ltants, or design-build subcontractors to maintain (and shall ensure that they do maintain), as appropriate, this required coverage for a period of no less than three years after the commencement of revenue service or to purchase an extended reporting pe riod for no less than three year s after the commencement of revenue service. If the contractor is working with a separate lead design entity, contractor must (and DXE shall ensure that contractor does) require the lead design entity to agree to maintain this coverage for a period of no less than three (3) years after the commencement of revenue service or to purchase an extended reporting period for no less than three (3) years after the commencement of revenue service.

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(5) Contractor's Pollution Liabil ity. DXE shall procure or cause to be procured contractor’s pollution liability ("CPL") c overage throughout the period of construction. Coverage must be provided by a stand-alone policy with Project dedicated limits of no less than twenty-five milli on dollars ($25,000,000) per occurr ence and twenty-five million dollars ($25,000,000) in the aggregat e per policy period dedicated to the Project. Coverage must be written on an occurrence basis and extended for a minimum ten (10) year period with a separate limit available exclusively to the Project. The CPL policy must include coverage for investigation, removal, and remediation costs including monitoring or disposal of contaminated soil, surface water, groundwater or other me dia to the extent required by environmental laws caused by pollution conditions resulting from or exacerbated by covered operations; third-party bodily injury and property damage, provided that the third-part y property damage liability coverage includes loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by or from conditions exacerbated by covered operations. The policy must have no exclusions or limitations for loss occurring over water including but not limited to a navigable waterway or for lead or asbestos. Coverage as required in this Section shall apply to sudden and non-sudde n pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alka lis, toxic chemicals, li quids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL policy must also provide coverage for losses due to loading, unloading or transportation and liabil ity imposed by off-site disposal of materials at a thir d-party disposal site including testing, monitoring, measuring operations or laboratory analysis and remediation. If the scope of work includes the disposal of any hazardous or non-hazardous materials from the job site, DXE shall furnish City evidence of pollution legal liability insurance maintained by th e disposal site operator for losses arising from the insured facility accepting the materials, wi th coverage in minimum amounts of five million dollars ($5,000,000) per loss and an annual aggregate of five million dollars ($5,000,000).

(6) Railroad Protective Liability. DXE shall provide, or cause to be maintained, any coverage as may be required by any railroad as a condition of the railroad's consent for entry onto railroad fa cilities or property. Such polic y shall be effective during the period any construction is being pe rformed within 50 feet of any railroad ROW. Coverage shall be written on Insurance Services Office occurrence Form CG 00 35 (or, with approval from City, substitute form providing equivalent coverage) on behalf of any railroad as a named Insured, with a limit specified by any railroad. 20.2.1.7. Aircraft Liability. If applicable, DXE shall procure, or cause to be procured and maintain ed, aircraft liability insurance with a limit of not less than ten million dollars ($10,000,000) per occurrence in all cases where any aircraft is used on the Project that is owned, leased or chartered by any contractor-related entity or its subcontractors of any tier, protecting against claims for damages resulting fro m such use. Any aircraft intended for use in performance of the work, the aircraft crew, flig ht path and altitude, including landing of any aircraft on the Project or on any property owned, rented or leased by City or any of the Indemnified Parties is subject to review and written acceptance by City prior to occurrence of any such usage.

If any aircraft are leased or chartered with crew and/or pilot, evidence of non-owned aircraft liability insurance is acceptable in lieu of the coverage listed above but must be provided prior to use of the aircraft.

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(7) Builder's Risk Insurance. DXE shall, upon commencement of construction and with approval of City, obtain and maintain a policy of builder's risk insurance for the Project. Coverage shall be written on an "all risk" basis and provided through a stand-alone policy dedicated solely to the Project. The insureds must include the contractor, all subcontractors (excluding those solely responsible for design work) of any tier, suppliers, and SBCTA, and City.

Coverage must include property ow ned by City and the Indemnified Parties that is part of the Project and must not be limited by use of the phr ase "as their interests may appear." The policy must cover all property, roads, buildings, bridge structures, other structur es, fixtures, materials, supplies, foundations, pilings, machinery and equipm ent (excluding contractor's equipment) that are part of or related to the por tions or elements of the Projec t, and the works of improvement, including permanent and temporary works and on-site materials, and including goods intended for incorporation into the works located at the Easement Area, in storage or in the course of transit to the Easement Area and all improvements that are within the Easement Area.

The builder's risk policy must include coverage for:

a. Any ensuing loss from faulty workmanship or nonconforming work, including L.E.G. 3 wording;

b. Machinery accidents and operational testing involving equipment covered by the policy;

c. Removal of debris, with a sublimit of twenty-five percent (25%) of the loss subject to a limit of twenty-five million dollars ($25,000,000) and insuring the buildings, structures, machinery, equipment, materials, fa cilities, fixtures and all other properties constituting a part of the Project;

d. Transit, including ocean marine coverage (unless insured by the supplier or through a separate marine cargo policy), with sub-limits sufficient to insure the full replacement value of any key equipment item;

e. Replacement value of any property or equipment stored either on or off the Easement Area;

f. Coverage limits sufficient to insure for the following perils subject to applicable sub-limits for these perils based on the probable maximum loss of the insured property:

• Collapse;
• Terrorism;
• Earthquake;
• Flood;

g. Plans, blueprints and specifications; and

h. Demolition and increased cost of construction as required by law or

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ordinance subject to applicable sub-limits.

There must be no coinsurance penalty provision in any such policy. All deductibles or self- insured retentions must be the sole responsibility of DXE.

The policy must provide a "severability of interests provision," "multiple insured's clause" or similar wording that the policy is to apply to each insured as if a separate policy had been issued to each insured except as to limits.

DXE shall also require the general contract or and its subcontractors to procure and maintain (and shall ensure that they do procur e and maintain) coverage for tools and equipment owned, leased or used by the general contractor or subcontractors in the performance of their work under this contract.

Upon completion of construction of the Project and prior to commencing operations of the Project within the Easement Area, DXE shall pr ovide evidence of "all risk" property insurance covering the Project/Improvements, with coverage sufficient to cover the probable maximum loss of such improvements and alterations made by DXE pursuant to the terms hereof, which must include "all risk" coverage using the ISO Causes of Loss - Special Form or (with approval from City) its equivalent, as well as flood insurance, subject to applicable sub-limits for natural hazard exposures based on the probable maximum loss of such improvements.

(c) Insurance During Operations. Upon the commencement of revenue service operations, DXE shall procure and maintain, at its sole cost and expense, Commercial General Liability (CGL) with a limit not less fo r personal injury, death, and property damage in an amount not less than three hundred twenty-three million dollars ($323,000,000), or such other limit of liability as Congress may establish from tim e to time applicable to DXE's passenger rail operations. Such policy or policies must provide coverage to all Indemnified Parties as additional insureds. All excess or umbrella policies must be "follow form" and afford no less coverage than the primary policy and the policies up to three hundred twenty-three million dollars $323,000,000 must include one reinstatement limit for the period of the policy(ies) term.

(d) Self Insurance. The polic y or policies under which coverage required by this Agreement is provi ded may include a deductible or self-insured retention not in cumulative excess of ten million dollars ($10,000,000) on the condition that:

(1) Each insurance policy expressly provides that the obligations of the policy issuer to City as an additional insured are not to be diminished in any way by DXE’s failure to pay its deductible or self-insured retention obligation for any reason;

(2) DXE provides a declaration under penalty of perjury by a Certified Public Accountant (CPA) acceptable to City and who shall apply a Fiduciary Standard of Care, certifying the accountant has applied Generally Accepted Accounting Principles (GAAP) guidelines confirming that DXE has sufficient f unds and resources to cover any self-insured retentions if the cumulative self-insured retentions from all required insured policies are in excess of one million dollars ($1,000,000); and

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(3) DXE promptly pays any and all amounts due under such deductible or self-insured retention in lieu of insurance proceeds that would have been payable if the insurance policies had not included a deductible or self-insured retention amount.

(e) Definition of “Self Insurance”. As used in this Agreement, “self insurance” means that DXE is itself acting as if it were the insurance company providing the insurance required under the provisions of this Agreement.

(f) Evidence of Insurance. In accordance with the insurance requirements above, DXE shall furnish evidence of insurance reasonably acceptable to City before DXE enters the Easement Area, before commenci ng physical construction of the Project within the Easement Area, and before the beginning of operations, as applicable. DXE shall provide City with satisfactory evidence of renewal or replacement insurance no later than thirty (30) days after the expiration or termination of such insurance. DXE shall submit full copies of the commercial general liability policy, excess/umbrella liabil ity policy, builder's risk policy, and the project- specific professional liability polic y or binders with fu ll specimen copies of the forms for each policy until such time as full copies of the policies are available. This requirement applies prior to DXE starting work on the Project, including all s ubsequent renewal policie s. Certificates of insurance are required for all ot her lines of insurance. If, th rough no fault of DXE, any of the coverage required becomes unavailable, DXE sh all provide good faith a lternative insurance packages and programs, subject to prior approval by City, with the goal of reaching agreement on a package providing coverage equivalent to that specified herein.

(g) Additional Insured Coverage. Al l policies, except those for Workers’ Compensation and Professional Liability insurance, must be endorsed by ISO Form CG 20 10 11 85, or if not available, then ISO Form CG 20 38, to name the Indemnified Parties as additional insureds. With respect to general liability ar ising out of or conne cted with work or operations performed by or on behalf of DXE under this Agreement, coverage for such additional insureds must not extend to liability to the extent prohibited by section 11580.04 of the Insurance Code. The additional insured endo rsements must not limit the sc ope of coverage for City to vicarious liability but shall allow coverage for City to the full extent provided by the policy. (h) Waiver of Subrogation Rights. To the fullest extent permitted by law, DXE hereby waives all rights of recovery under subrogation against the additional insureds named herein, and any other tenant, contractor , subcontractor or sub- subcontractor performing work or rendering services on behalf of City, in connection with the planning, development and construction of the Project. To the fullest extent permitted by law, DXE shall require similar written express waivers and insurance clauses from each of its subcontractors of every tier. DXE shall require all of the policies and coverages required in this Section to waive all rights of subrogation against the additional insureds (I SO Form CG 24 04 05 09). Such insurance and coverages provided must not prohibit DXE from waiv ing the right of subrogation prior to a loss or claim.

(i) Eligible Insurers. If policie s are written by insurance carriers authorized and admitted to do business in the state of California, then the insurance carriers must have a current A.M. Best rating of A-VIII or better and if policies are written by insurance carriers

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that are non-admitted but authorized to conduct business in the state of California, then they must meet the current A.M. Best rating of A-:X or better, unless otherwise approved in writing by City.

DXE shall furnish to City, not less than fifteen (15) days before the date the insurance is first required to be carried by DXE, and thereafter before the expiration of each policy, true and correct certificates of insurance, usi ng the appropriate ACORD form of certificate or its equivalent, evidencing the coverages required under this Secti on, with a copy of each policy, if requested by City. Such certificates must provide that should any policies described therein be cancelled before the expiration date thereof, notice is to be de livered to the certificate holder by the insurer in accordance with the policy provisions regarding sa me. Further, DXE agrees that the insurance coverage required hereunder is not to be terminated or modified in any material way without thirty (30) days advance written notice from DXE to City.

(j) Cure. If DXE fails to procure a nd maintain insurance required under this Agreement or fails to meet its obligations with respect to any deductible or self-insured retention amount under this Agreement, subject to the provisions herein, City is entitled, after thirty (30) days prior written notice to DXE of DXE’s default hereunder and DXE's failure to cure such default within said thirty (30) days, te n (10) days for non-paymen t, to require DXE to immediately discontinue all construction activ ities related to the Project and immediately discontinue operation of the Project until DXE has provided City reasonably satisfactory evidence that the required insurance has been obtained and the other obligations of DXE under this Section have been met. No cessation of construction or operations required by City under this Section releases or relieves DXE of any of its other obligations under this Agreement.

EXHIBIT “F”
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11231-0001\2708118v2.doc
EXHIBIT “F”

FORM OF AERIAL EASEMENT
[SEE ATTACHED]

4858-4166-4037.20
378683.00002/9-21-22/eeo/mrf 1

RECORDING REQUEST BY,
AND WHEN RECORDED RETURN TO:

DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118
Attn: David Pickett, Esq.

With a copy to:

City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Attn: City Manager
San Bernardino County Transportation
Authority
1170 W. Third Street, 2nd Floor
San Bernardino, CA 92410
Attn: Director of Transit and Rail

SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY
Free Recording Requested per Government Code 27383.

EASEMENT FOR AERIAL PLATFORM
(Brightline West Platform)
THIS EASEMENT FOR AERIAL PLATFORM (“Agreement”) is dated as of _________________ 20__ (“Effective Date”) and is entered into by and between the CITY OF RANCHO CUCAMONGA, a Califor nia municipal corporation (“ City”) and SAN BERNARDINO COUNTY TRAN SPORTATION AUTHORITY, a California municipal corporation (“ SBCTA”) (City and SBCTA, collectively, “ Grantor”), and DESERTXPRESS ENTERPRISES, LLC, a Nevada limited liability company d/b/a Brightline West and qualified to do business in California (“ Grantee”). City, SBCTA and Grantee are sometimes hereinafter referred to individually as “Party” and collectively as the “Parties.” Decisions of Grantor under this Agreement shall require the joint consent or approval of both SBCTA and City, with the manner of providing such consent or approval determined by each agency.

RECITALS
A. Grantee plans to construct a high-speed passenger rail system from Las Vegas, Nevada to Rancho Cucamonga, California (“ HSR System ”). One portion of this system will include an elevated track and passenger platform structure within a portion of property jointly owned by SBCTA and the City that is improved with parking and trans it improvements, said property being more particularly described on Exhibit A attached hereto and made a part hereof (“Grantor’s Property”).

4858-4166-4037.20
378683.00002/9-21-22/eeo/mrf 2

B. Grantee desires that it be granted an aer ial easement for the elevated track and platform structure for passenger rail (the “Elevated Structure”) over the portion of the Grantor’s Property legally described and depicted in Exhibit B attached hereto and made a part hereof (the “Aerial Easement Area”), and a surface and subsurface easement for the columns supporting the Elevated Structure (collectively, the “ Columns” and, together with the Elevated Structure, the “Improvements”) on, over, under, through, above and across the por tions of the Grantor’s Property legally descri bed and depicted in Exhibit C attached hereto and made a part hereof (collectively, the “ Ground Easement Area ”, and with the Aerial Easement Area, hereinafter collectively referred to as the “Easement Area”).

C. Grantor’s public purposes in entering into this Agreement include facilitating the development of transportation that will benefit the public, pr oviding employment opportunities resulting from the work to be performed by Grantee and the operation of a high-speed rail project, and obtaining fair market compensation for the easement interest granted herein (and such compensation shall become part of the general funds of the City, in part, and SBCTA, in part, and in turn used for public purposes).

D. Any elevation described in this Agreement is given in [NAVD 88] datum.

AGREEMENT

1. Grant of Easement; Term; Consideration.
(a) Exclusive Easement for Improvements. Subject to the terms and conditions of this Agreement, Grantor does hereby grant, bargain, sell and convey to Grantee, its successors and assigns, the following: (i) an exclusive, permanent aerial easement for the purpose of constructing, installing, inspecting, maintainin g, repairing, replacing, removing, using and operating the Elevated Structure over the portion of the Grantor’s Property within the Aerial Easement Area (the “Aerial Easement”); and (ii) a permanent exclusive easement on, over, under, above, through and across the Ground Easement Ar ea for the purpose of constructing, installing, inspecting, maintaining, repairing, replacing, and removing the Columns supporting the Elevated Structure (collectively, the “ Ground Easement ”, and with the Aerial Easement, hereinafter collectively referred to as the “Easements”).
(b) Non-Exclusive Access Easement. In addition, the Grantor hereby grants to Grantee, its contractors, subcontractors, agen ts, employees, lessees, licensees, successors and assigns, a permanent and non-exclusive easement for vehicular and pedestrian ingress, egress and access on, over, across and upon the Grantor’s Pr operty, as the same may be developed and redeveloped from time to time provided that in all events access to the Easement Area is provided, as reasonably necessary for the purpose of performing such inspection and minor maintenance and repair of the Improvements. For purposes of this Section 1(b), minor maintenance and repair of Improvements involves any maintenance and repair work that does not require the closure of any parking spaces or materially impact Grantor’s access through Grantor’s Property. (c) Access for Construction and Installation. Any access to Grantor’s Property for the initial construction and installation of the Improvements within the Easement Area shall be pursuant to the temporary construction easement provided for in the Disposition and Development

4858-4166-4037.20
378683.00002/9-21-22/eeo/mrf 3

Agreement between Grantor and Grantee and dated October 5, 2022 (“ DDA”). Any additional construction or installations shall be covered by Section 1(e) belo w and shall require the consent of Grantor. Grantee acknowledges and agrees that it is not permitted to construct or install any improvements outside the Easement Area.
(d) Access for Major Maintenance and Repair. Except for minor maintenance and repair covered by Section 1(b) above, any access to Grantor’s Property for maintenance and repair shall require the prior written approval of Grantor, not to be unreasonably withheld, conditioned or delayed, and which request sh all be reviewed and granted or denied administratively within ten (10) business days of the written reque st, and Grantor shall endeavor to deliver approval of such request within five (5) business days when possible. Grantee shall tailor its request for access so that it does not unreasonably interfere with Grantor’s rights to or use of Grantor’s Property. Any such access must be consistent with the safety protocols described in Section 12.
(e) Access for Replacement and Removal. Any access to Grantor’s Property for construction, installation, replacement or removal of the Improvements after initial construction and installation under Section 1(b) above shall require an encroachment agreement or other temporary construction easement fro m Grantor, not to be unreasonably withheld, conditioned, or delayed.
(f) Adjustments to Easement Area. Construction of the Improvements must be within the boundaries of the Easement Area, howe ver, the Parties acknowle dge that final design and construction of the Elevated Structure and Columns may require a non-material adjustment of the description of the Easement Area; provided, however, Grantor and Gran tee shall coordinate the location of the Columns in final design and construction so as to maximize Grantor’s ability to use the surface area below the Aerial Easement Area for parking, pedestrian access, and any legally permitted purposes that does not materially inte rfere with the Easements granted herein. Upon completion of the construction of the Elevated Structure and Columns, Grantee shall provide an as-built survey to Grantor, an d Grantor and Grantee agree to amend this Agreement (which amendment shall be recorded) to replace (but not materially enlarge) the descriptions of the applicable Easement Area attached to this Agreement with the de scriptions for the same as set forth in the as-built survey by mutually executing and recording such amendment in the Official Records of the County of San Bernardino. In connection with the fo regoing, the Parties acknowledge and Grantee agrees that the area be low the Aerial Easement Area, excluding the Ground Easement Area, is retained by the Grantor and may continue to be used by the public for transportation and related purposes as well as supporting and an cillary purposes and uses (which may include without limitation parking) or any other valid legal use, provided such other use does not unreasonably interfere with Grantee’s use of the Ground Easement Area for the purposes set forth in this Agreement.

2. Compensation. As a condition precedent to Grantee’s occupancy or use of the Easement Area, Grantee will pay to Grantor the one-time sum equal to the fair market value of the easement interest and rights described herein, as determined by an appraisal obtained by Grantor, with one half of such sum payable directly to SBCTA and the other half payable directly to City.

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3. AS-IS. Grantee accepts the condition of the Grantor’s Property, including without limitation the Easement Area, in its current “AS-IS,” “WHERE IS” and “WITH ALL FAULTS” condition, without representation or warranty, express or implie d, and subject to all existing matters of record and all matters that would be revealed by a diligent inspection of the Easement Area. Grantee agrees that its rights and remedi es under this Agreement, including the Easement as well as its rights and intere sts in the Easement Area, includi ng with respect to the installation, maintenance, and operation of the Improvements, are subject and subordinate to any (and all) existing easement(s), covenant(s), condition(s), restriction(s), reservations, rights of way, liens, encumbrances, and other matters of record on, under, affecting or relating to the Easement Area.

Grantee also acknowledges that Grantor makes no representations, express or implied, as to the legal compliance, including compliance with laws governing Hazardous Materials (defined below) and other environmental laws, the physical cond ition, including the environmental condition, of or title to the Easement Area. This Agreement does not constitute, nor grant permission to use or occupy property, including property rights or interests, not belongi ng to, in the possession of or under the control of Grantor, and permission to use or occupy such property must be obtained from every owner, holder, user, possessor and controller of such property, separate from and in addition to this Agreement.

4. Authorized Improvements. The rights of Grantee to install, maintain, and operate the Improvements are subject to the terms of this Agreement, including Grantor’s right to review and approve any and all Improvement plan(s), in its proprietary capacity as outlined below, as well as any applicable laws and li cense, permitting and approval re quirements and conditions (and Grantor does not waive or release, and shall continue to have, any and all of its right(s) or power(s) in its governmental capacity in that regard to the extent applicable). In addition, any review and/or approval of any or all of such Improvement plan(s) by Grantor in its proprietary capacity as property owner prior to construction of the Improve ments (i) shall not be d eemed to be a review of any plans, drawings or specifications from an engineering or technical standpoint, (ii) may not be relied upon by Grantee (other than for the purpose of indicating that such review and approval occurred) and (iii) does not release, relieve or waive any obligation, liability or duty of Grantee or any right or remedy of Grantor (o ther than relating to whether th e review and/or approval, as applicable, has occurred). Grantor’s review shall be to determine that there is no material interference with Grantor’s rights to and use of Grantor’s Property and not to review the HSR System.

5. Standards for Rail Facilities. Grantor acknowledges that standards promulgated by and decisions issued by the Fe deral Railroad Administration (“ FRA”) and Surface Transportation Board (“ STB”) govern the design, constructi on, operation, and maintenance of railroad facilities within their jurisdiction and that such regulations, standards, and decisions might as a matter of law preempt and supersede requi rements that may otherw ise apply under state or local laws. Grantor acknowledges that it is not a regulatory agency under federal law or with respect to California utilities regulated by the California Pub lic Utilities Commission, and the Parties agree that Grantor will ha ve no liability for not inspecting or any failure to inspect rail facilities or operations on the Easement Area for purposes of enforcing compliance with laws and regulations within the jurisdiction of the STB, the FRA, or the California Public Utilities Commission. Notwithstanding this Section 5, Grantor reserves and does not waive or release any (or all) of its governmental right(s) and power(s ), and Grantee acknowledges that Grantor is entering into this Agreement solely in its proprietary capacity.

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6. Repair of Damage.
(a) Damage to Public Improvements. Grantee shall promptly notify Grantor in writing if it becomes aware of any damage to or destruction of Public Improvements (as defined below). Whether or not Grantee notifies Grantor, if any damage is caused to Public Improvements directly or indirectly by Gran tee (including, without limitation, Grantee’s officers, directors, agents, representatives, employees, partners, managers, contractors, or subcontractors (collectively “Grantee Parties”)) such repair work may be conducted by Grantor at Grantee’s sole cost and expense or, if so authorized in writing by Grantor, may be repair ed by Grantee at Grantee’s sole cost and expense (whereupon Grantee shall promp tly coordinate with Grantor on any necessary closures, and promptly perform the repairs). Grantee acknowledges and agrees that the foregoing terms of this Agreement, including their operation, will not waive, relieve or release Grantee from liability for damage or destruc tion, including any cla im, demand, loss, liabili ty, damage, cost or expense, including attorneys’ fees, incurred or suffered by Grantor or others, including damage to any property or injury to, including death of, an y person, arising out of, resulting from or related to such damage or destruction caused directly or indirectly by Grantee or the Grantee Parties. (b) If Grantor elects to perform repair work for which Grantee has some or all responsibility, Grantee shall reimbur se Grantor for its share of the reasonable costs of the repair work within thirty (30) days after delivery of a statement from Grantor describing the costs, including a statement detailing such costs and expenses. In the event payment in full is not made within said thirty (30) day period, the outstandi ng balance shall accrue in terest at the maximum legal rate or a rate of twelve percent (12%) per annum, whichever is less, compounding monthly from the end of said thirty (30) day period until paid to cover ad ministrative and other costs and expenses.

7. Encumbrance. Grantee may, at any time and from time to time, encumber to any bank, insurance company or other institutional lender, herein called “Mortgagee,” by one or more deeds of trust (the “ Security Instrument ”), all of Grantee’s easem ent interest under this Agreement, provided that (i) such Security Instrument is subject and subordinate to this Agreement and all other interests of the Grantor hereunder, (ii) such Security Instrument shall not constitute in any way a lien or encumbrance on Grantor’s rights or interests, and (iii) the Security Instrument shall not encumber any obligations that do not relate to the HSR System. No Mortgagee shall be liable to Grantor as the successo r to the rights and obligations of Grantee under this Agreement unless and until such Mortgagee acquires the eas ement interest hereunder through foreclosure or other proceedings in the nature of foreclosure or as a result of an assignment in lieu of foreclosure or other assignment, action or remedy, nor shall a Mortgagee be liable for any defaults that occur after it conveys the easement interest hereunder.

8. Ownership of Improvements . The Improvements shall be owned by Grantee during the duration of this Agreement. Upon the termination of this Agreement by Grantor pursuant to (and subject to) Section 14, or otherwise by Grantee, the Improvements shall become the sole property of Grantor without compensation to Grantee or any Mortgagee, or, if Grantor so elects and upon written no tice to Grantee within ninety (90) days of termination, shall be demolished and removed by Grantee from the Ease ment Area at Grantee’s sole expense within twelve (12) months from the date of said notice (subject to extension for Force Majeure Events or by written agreement of the Parties), and the foregoing (and defense and indemnity obligations of

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Grantee under this Agreement) shall survive the termination of this Agreement. Nothing herein affects Grantor’s rights or remedies as a governmental entity, such as the right to cause Grantee to abate a nuisance, and in connection therewith, remove Improvements (if Grantor has such a right as a governmental entity under applicable law). Except as expressly limited by the terms of this Agreement, including, but not limi ted to, Section 14 of this Agreem ent, in the event of a breach, default or failure of performance by Grantee, Gran tor shall have such rights and remedies as are provided under applicable law or in equity, incl uding the right or remedy of declaratory relief, specific performance, injunction and restitu tion. For the avoidance of doubt, Grantor acknowledges and agrees that th e construction and operation of the HSR System in accordance with this Agreement and applicable law and in a commercially reasonable manner is not a nuisance.

9. Waiver and Release. Grantee expressly waives, releases and relinquishes (a) any and all claims, causes of action, rights and remedi es Grantee may now or hereafter have against Grantor, and its officials, officers, employees, consultants, contractors, attorneys and agents (collectively, “Grantor Entities”), whether known or unknown for all events and circumstances arising prior to the date of this Agreement, with respect to liability for any (and all) claim(s), demand(s), loss(es), liability(ies), damage(s), cost(s) and expense(s), including damage to or loss, upon, above, beneath, or across the Easement Area or adjacent property owned by Grantor or either of them, unless and except to the extent such damage or loss is caused by the gross negligence or willful misconduct of Grantor Entities, and (b) all claims of contribution and reimbursement for costs of remediating Hazardous Materials (defined in Section 15 below) released or existing prior to the date of this Agreement in, on or near the Easement Area.

GRANTEE HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (“SECTION 1542”), WHICH IS SET FORTH BELOW:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RE LEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”

BY INITIALING BELOW, GRANTEE HERE BY WAIVES THE PROVISIONS OF SECTION 1542 IN CONNECTION WITH TH E MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
_______________
Grantee’s Initials
The waivers and releases by Grantee contained in this Agreement shall survive the termination of this Agreement and shall be binding upon the assignees, transferees, and successors- in-interest of Grantee.

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10. Grantor’s Access. Grantee acknowledges that th e Grantor’s Property, including without limitation the Easement Area, may contain certain Gran tor-owned facilities, whether public, enterprise, proprietary or otherwise as we ll as publicly and/or priv ately owned utilities, including, without limitati on, storm drains, water, sewer, gas, electrical, cable television, fiber optics and appurtenant facilities, hereinafter referred to collectively as “Public Improvements”.

Except for access to the Improvements, which access is covered in the following sentence, Grantor and utility providers shall have access at any time, from time to time and without notice or liability to the Easement Area. Except in the event of an emergency, in which event telephonic notice as soon as practical is acceptable in lieu of advance written approval, if Grantor (being either or both SBCTA and City, as the case may be) desires acce ss to the Improvements, Grantor shall request Grantee’s prior written approval, not to be unr easonably withheld, condi tioned or delayed, and which request shall be reviewed and granted or denied within ten (10) business days of the written request, and Grantee shall endeavor to deliver a pproval of such request within five (5) business days when possible. Grantor sh all tailor its request for access so that it does not unreasonably interfere with Grantee’s rights to or use of the Easement Area. Any such access must be consistent with the safety protocols described in Section 12 and Grantee shall cooperate with Grantor to determine how to safely provide access to the Ea sement Area for purposes of the work to be performed. Grantee shall have the right, but not the obligation, to add appropriate signage to the Improvements, including, without limitation, signs prohibiting access and requiring advance notice and permission prior to entry. Under no circumstances shall Grantor be liable in damages to Grantee, or to any successor, assign, assignee or Mortgagee, including any successor in interest, for Grantor’s failure to request or obtain Grantee’s permission, and Grantee covenants on behalf of itself and its successors and assigns, including successors in interest and any Mortgagee, not to sue for or claim damages against Grantor as a result of Grantor’s breach of the notice requirements in this Section 10.

11. Coordination of Grantor Construction Activities . If Grantor (being either or both SBCTA and City, as the case may be) desires to (i) do any digging or trenching on its property within twenty-five (25) feet of any of Grantee’s Columns or below the Improvements (other than minor digging for sprinklers, sign posts, or similar non-substantive digging), or (ii) operate a crane or other equipment in a location and/or configuration which is capable of extending into or above the Aerial Easement Area or within twenty-five (25) horizontal feet of such Aerial Easement Area, then the Grantor shall give Grantee notice of such intent no later than forty-five (45) days before such work is to commence, and Grantee shall ha ve fifteen (15) days in which to review and comment on the intended work. Grantor shall reasonably consider Grantee’s concerns, but Grantor shall not be prevented from operation, use, or construction on Grantor’s Property, so long as Grantor complies with all applicable standards, laws, regulations, and policies in order to reasonably safeguard the Improvements and rail operations.

12. Safety Protocols. Grantee and Grantor will comply in good faith with all written safety procedures and protocols mutually developed by the Parties, as the same may be amended by the Parties in writing from time to time, and in all events to be prepared prior to the start of construction and rail operations. The Parties acknowledge that a dditional agencies, including the Federal Railroad Administration and emergency responders, will participate in the development of safety protocols and procedures.

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13. Utilities. As between Grantee and Grantor, any required relocation of a utility that interferes with Grantee’s project within the Easeme nt Area is the sole responsibility of Grantee.

Upon written request by Grantee, Grantor will provide utility contact information known to Grantor and make its right-of-way utility staff, if any, reasonably available on a reimbursable basis and Grantee shall pay or reimburse Grantor (within thirty (30) days after delivery (including deemed receipt pursuant to Section 21(a) below) of written demand) for said reasonable cost(s) and expense(s) incurred by Grantor. Grantee sh all also be subject to the interest upon late payments as described in Section 6.

14. Termination. In the event (i) Grantee fails to commence construction of either the Improvements within the Easement Area or the adjacent train station within three (3) years of the Effective Date (as will be extended by Grantor if Grantee has made material progress toward meeting the requirements to commence construction) , (ii) Grantee fails to complete construction within seven (7) years of the Effective Date (subject to a Force Majeure Event or any extension by written agreement of the Parties) or (iii) if, after commencement or re-commencement of passenger rail service, Grantee fails to actively operate the Improvements for a period of eighteen (18) consecutive months (any period of non-operation due to construction or maintenance work which Grantee is performing with reasonable diligence, or subject to a Force Majeure Event or any extension by written agreement of the Parties is d eemed to be operating for the purposes of this item iii) (“Abandonment”), Grantor may, subject to Section 14( a) below, after thirty (30) days written notice to Grantee, deem the Easements abandoned and terminate this Agreement; provided, however, Grantor may not ter minate this Agreement if Gr antee cures the Abandonment by resuming daily passenger rail service within the Easements within the thirty (30) day period after written notice by Grantor. Additionally, Grantor may terminate this Agreement if Grantee fails to comply with this Agreement and then fails to cure such default within thirty (30) days after written notice from Grantor, and then continues to fail to cure such default within five (5) business days following a second written notice from the Grantor se nt after the initial 30-day period, with each such notice stating in all capital and bolded letters of at least 12 point font: “FAILURE TO CURE SHALL RESULT IN TERMINATION”; provided, howev er, the Grantor may not terminate this Agreement if Grantee commences to cure the default during the applicable cure period after written notice by the Grantor and thereafter diligently prosecutes the cure to completion. (a) Right of Mortgagee to Cure Defaults. Provided that Mortgagee or Grantee has provided Grantor in writing the address for sending notices to the Mortgagee and satisfactory documentation of its status as a Mortgagee, each Mortgagee who has been so identified to the Grantor as a Mortgagee will have the same period, commencing upon written notice to each such Mortgagee of such default, to remedy or cause to be remedied the default complained of as Grantee has hereunder to cure such default, plus an add itional ninety (90) days in the case of any other default which is capable of being cured by the Mortgagee (and such ninety (90) day period, upon written notice provided to Grantor within said ninety (90) day peri od, will be extended for a reasonable period of time to gain possession of the interest of Grantee unde r the Agreement through legal proceedings if necessary to cure such default, provided the Mortgagee commences the proceedings within one hundred eighty (180) da ys after the initial wr itten notice by Grantor and thereafter diligently prosecutes such proceedings) which period will be extended as necessary for a Mortgagee to obtain relief from any stay in a bankruptcy pr oceeding in which Grantee is a debtor, provided the Mortgage e is diligently prosecuting such relief and has assumed the obligations of this Agreement in writing (and such written assumption shall have been delivered

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to Grantor), and Grantor will accept performance by such Mortgagee within the time specified herein as timely performance by Grantee; provided, however, that (i) nothing contained herein will be deemed to impose upon any Mo rtgagee the obligation to perform any obligation of Grantee under this Agreement or to remedy any default by Grantee hereunder, and (ii) in the event that the Mortgagee or a third party succeeds to Grant ee’s interest under this Agreement pursuant to foreclosure of the Security Agreement, exercise of a power of sale ther eunder or a deed in lieu thereof, Grantor waives, as against the Mortgagee or such third party, any default by Grantee that is not susceptible to cure by said Mortgagee or third party due to the de fault being personal to Grantee, including without limitation and as an example only, an obligation of Grantee to provide a financial statement. For avoidance of doubt, any default that can be cured with the payment of money is susceptible to cure. Any provision of this Agreement to the contrary notwithstanding, no performance by or on behalf of a Mortgagee will cause it to become a “mortgagee in possession” or otherwise cause it to be deemed to be in possession of the Property or bound by or liable under this Agreement, unless the Mortgagee is actually in possession of the Property. In addition, the Parties agree that if there is more than one (1) Mo rtgagee (or collateral assignee), then all cure periods provided in this paragra ph will run concurrently. Upon the full and timely performance by Mortgagee of the obligation or obligations the nonperformance of which was the subject of the notice of default gi ven to Mortgagee pursuant to this Section, such default shall be deemed cured and shall no longer give rise to any ri ghts and remedies of Grantor; provided, however, that Mortgagee’s cure of any default under this Agreement by Grantee shall not excuse or waive any future default under this Agreement by Grantee or preclude or limit the exercise of any rights or remedies afforded Grantor under this Agreement as a result of such future default.

Notwithstanding any provision to the contrary cont ained elsewhere in this Agreement, Grantor will not have the right to terminate this Agreement or re-enter the Property by reason of a default by Grantee that is reasonably susceptible of cure by Mortgagee, during the period specified in this Section 14 in which a Mortgagee is entitled to cure a default by Grantee. (b) In each instance of a default, Gran tor may in its reasonable discretion determine that no party with a right to cure is diligently prosecuting a cure to completion; provided, however, that where cure of the subject default has not been completed within three hundred (300) days of Grantor’s first notice to Grantee to cure said default, such a determination shall be deemed reasonable under this Agreement. Should Grantor reasonably determine that no party is diligently prosecuting a cure to completion, subject to the prior sentence, then all cure periods for the default subject to Grantor’s determination shall be deemed to have run their course and Grantor has the right to immediately terminate this Agreement.

15. Hazardous Materials.
(a) Grantee covenants that it will not ha ndle or transport Hazardous Materials in the Easement Area except for removal, transpor tation and disposal in compliance with laws regarding excavated soils which are or may be contaminated with Hazardous Materials. As used in this Agreement, the term “Hazardous Materials” means: (a) any substance, products, waste, or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmenta l Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9 601 et seq.; the Resources Conservation and Recovery Act, 42 United States Code Section 6901 et seq.; the Hazardous Materials Transportation Conservation and Recovery Act, 42 United States Code Section 1801 et seq.; the Clean Water Act,

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33 United States Code Section 1251 et seq.; the Toxic Substances Control Act, 15 United States Code Section 2601 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the Hazardous Substance A ccount Act, Health and Safety Code Section 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Section 25249.5 et seq.; California Health and Safety Code Section 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Section 25170.1 et seq.; California H ealth and Safety Code Section 25501 et seq. (Hazardous Materials Release Respons e Plans and Inventory); or the California Porter-Cologne Water Quality Control Act, Water Code Section 13000 et seq., all as amended (the above cited California stat e statutes are hereinafte r collectively referred to as “the State Toxic Substances Law”); or any other federal, state, or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, now or at any time hereinafter in effect; (b) any substance, product, waste or other material of any nature whatsoever which ma y give rise to liability under any of the above statutes or under any statut ory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liab ility or under any reported decisions of a state or federal court; (c) petroleum or crude oil, othe r than petroleum and petroleum products which are contained within regularly opera ted motor vehicles or passenge r trains; and (d) asbestos.

Notwithstanding the foregoing, Grantee may handle and transport Hazardous Materials normally and customarily used in the development, cons truction and operation of railroad infrastructure, including passenger stations, that are used, stored, transported and disposed of in accordance with all applicable laws, building codes, regulations, ordinances, rules, directives, covenants, or restrictions of record. As an example only, train infrastruct ure typically entails refueling maintenance vehicles or using cleaning supplies for routine maintenance. (b) Grantee further agrees that, at Grantor’s request, it will furnish Grantor with proof, satisfactory to Grantor, that Grantee is in compliance with all such laws, rules, regulations, orders, decisions and ordinances regarding Hazardous Materials. (c) Notwithstanding anything else containe d in this Agreement, Grantee shall indemnify, defend and hold harmless Grantor En tities from and against any and all claims, demands, liabilities, losses, damages, costs and expenses arising out of, resulting from or relating to injuries to any person, including wrongful d eath, or damage to property, including without limitation, property of Grantor and Grantee, or otherwise (including without limitation reasonable attorneys’ fees, investigators’ fees, litigation expenses, and mitigation costs) resulting in whole or in part from Grantee’s acts or omissions with respect to Hazardous Materials; provided, however, that the foregoing shall not apply to the extent which a release of Hazardous Materials is the result of Grantor Entities’ negligence or willful misconduct following the Effective Date. Grantee agrees to reimburse Grantor for all reasonable costs of any kind incurred as a result of the Grantee’s failure to comply with this Sec tion, including, but not limited to, j udicial or administrative fines, penalties, clean-up and disposal co sts, and legal costs incurred as a result of Grantee’s handling, transporting, or disposing of Hazardous Materi als on, over, or across the Improvements and or adjacent property.
(d) Grantor shall have the ri ght at any time to inspect the Improvements and Public Improvements in order to monitor Grantee’s compliance with this Agreement, subject to the provisions of Section 10 above.

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16. Insurance. Grantee shall obtain and maintain insurance, at its sole cost and expense, as required in Exhibit “D” attached hereto.

17. Indemnity. Grantee shall defend, indemnify and hold Grantor Entities free and harmless of, from and against any and all claims, demands, causes of action, costs, liabilities, expenses, losses, damages or injuries of any ki nd, including attorneys’ fees and costs, in any manner arising out of, resulting from or relating to any acts, omissions or willful misconduct of or by Grantee or the Grantee Parties in performance of this Agreement, breach, default or failure of performance of this Agreement, including failure of timely performance, use of the Easement Area or the construction, use, or oper ation of the Improveme nts or the failure to comply with law, including the failure to comply (or failure of its contractors to comply) with California Labor Code Section 1720 et seq., including without limitation Labor Code Section 1781, which are (a) suffered or incurred by or alleged against Grantor, Grantor Entities and/or any of the Grantee Parties, in law or equity, and/or (b) to pe rsons or property, including deat h. Grantee shall further defend, indemnify and hold harmless Grantor Entities from any and all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings brought against the Grantor Entities to challenge, attack, seek to modify, set aside, void or annul any Grantor decision made in connection with this Agreement or Grantee’s use of the Easement Area (based on nonc ompliance with the California Environmental Quality Act or otherwise). Grantee shall defend, with counsel reasonably acceptable to Grantor and at Grantee’s sole expe nse, any and all aforesaid suits, actions or proceedings, legal or affirmative, which may be brought or instituted against any Grantor Entities.

Grantee shall pay and satisfy a ny judgment, award or decree that may be rendered against any Grantor Entities. Grantee shall reimburse such parties for any and all legal expenses and costs incurred by one or more of them in connection with this Agreement or the indemnity and/or related rights, remedies and other prot ections herein provided. Grante e’s obligations hereunder shall survive termination or expiration of this Agreem ent, and shall not be restricted to insurance proceeds, if any, received by Grantor Entities.

18. Covenant Running With Land. This Agreement shall be deemed a covenant running with the land with resp ect to the Easement Area, bur dening the Easement Area and benefitting the real property interests associated with the HSR System. All of the covenants, obligations, and provisions of this Agreement sh all be binding upon and inure to the benefit of successors, legal representatives, assigns and succe ssors-in-interest to the Parties. Every person who now or hereafter owns or acquires any right, title, or interest in and to any portion of the Easement Area shall be conclusively deemed to have notice of this Agreement, whether or not reference to this Agreement is contained in th e instrument by which su ch person acquires an interest in the Easement Area. Therefore, eac h and every contract, deed or other instrument hereinafter executed, covering or conveying the Ea sement Area or any portion thereof or interest therein shall conclusively be deemed to have been executed, delivered and accepted subject to this Agreement.

19. Estoppel Certificates. Each of the Parties hereto agrees, promptly following a request from the other Party hereto, to furnish from time to time in writing certificates containing truthful estoppel information and/ or confirmations of the agreem ents, obligations and easements contained in this Agreement, or otherwise appurtenant to this Agreement, in a form and substance reasonably satisfactory to the Party from whom such certificate is sought.

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20. Attorneys’ Fees. In the event either Party brings a suit, action, or other proceeding against the other Party that in any way relates to or arises out of this Agreement, each Party shall bear its own legal costs and expenses.

21. Miscellaneous.
(a) Notices. All notices permitted or re quired under this Agreement shall be given to the respective Parties at the following addr ess, or at such other address as the respective Parties may provide in writing for this purpose:

Grantee: DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118
Attn: Legal Department
City: City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Attn: City Manager
SBCTA San Bernardino County Transportation Authority
1170 W. Third Street, 2nd Floor
San Bernardino, CA 92410
Attn: Director of Transit and Rail
Such notice shall be deemed made when delivered by certified mail, return receipt requested, or by reputable overnight messenger de livery service, and addressed to the Party at its applicable address and shall be deemed delivered on the date of delivery or refusal to accept or inability to effect delivery shown on the return receipt, or one (1) business day after delivery to the messenger service for overnight delivery, as applicable.
(b) Entire Understanding. This Agreement constitutes the entire understanding between the Parties, and supersedes all offers, negotiations, and other agreements concerning the subject matter contained herein.
(c) Invalidity. If any provision of this Agreement is invalid or unenforceable with respect to any Party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held in valid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(d) Successors and Assigns. This Agreemen t shall be binding on and inure to the benefit of the successors of the respective Parties. Except as set forth in Section 7 above, this Agreement may not be assigned by either Party without the prior written consent of the other Party. (e) Governing Law. Except on subject s preempted by federal law, this Agreement will be governed by and construed in accordance with the laws of the State of California. Nothing herein is meant to be or will be interpreted to be a waiver of principles of

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legal preemption or preclusion that may apply to Grantee because of its status as a common carrier regulated by the federal government.
(f) Venue. Venue for any legal action between the Parties related to this Agreement will be in the Superior Court of San Bernardino County, California or the United States District Court, Central District Court of California. The judgm ent in any such action may be enforced by any court of competent jurisdiction wherever located. (g) Exhibits. All exhibits attached he reto form material parts of this Agreement.
(h) Time of Essence. Time is of the essence of every provision hereof in which time is a factor.
(i) Survival. All defense, indemnity, and payment obligations of Grantee that arise or relate to events occurring prior to the termination of this Agreement shall survive such termination.
(j) Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, should any fire or other casualty, act of nature, earthquake, flood, hurricane (or tropical cyclone), lightning, tornado, epidemic, landslide , war, terrorism, riot, civil commotion, general unavailability of materials, strike, slowdown, labor dispute, governmental laws or regulations, or other occurrence beyond Grantee’s or Grantor’s control prevent performance of this Agreement in accordance with its provisions, provided that such event does not arise by reason of the negligence or misconduct of the performing Party, (a “ Force Majeure Event ”) then performance of this Agreement by either Party will be suspended or excused to the extent and for a period commensurate with such occurrence.

22. Property Taxes, Including Possessory Interest Taxes. This Agreement creates a possessory interest that may be subject to posse ssory interest tax (a type of California property tax), and Grantee shall pay any such possessory interest taxes that may be assessed. If the Improvements are taxed as an improvement on the Easement Ar ea, Grantee shall, upon demand, pay such taxes allocable to the Improvements, as determined by the taxing authority. Grantor shall reasonably cooperate and assist Gran tee, at no costs to Grantor, in efforts to obtain a separate assessment for the Improvement s, including executing any reasona bly required applications or reasonable documents. Grantee shall pay when due all personal property taxes levied against or relating to the Improvements.

[Signature Page Follows]

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The Parties have executed this Agreement as of the date first written above.

CITY: SBCTA: Grantee:

CITY OF RANCHO

CUCAMONGA,
a California municipal
corporation

SAN BERNARDINO
COUNTY

TRANSPORTATION

AUTHORITY,
a California county
transportation authorit
y

DESERTXPRESS

ENTERPRISES, LLC,
a Nevada limited liability
corporation

By:

L. Dennis Michael
Mayor
City of Rancho Cucamonga

By:

Art Bishop
Board President
San Bernardino County
Transportation Authority

By:

Sara Watterson
President
DesertXpress Enterprises, LLC

ATTEST:

By:

Janice C. Reynolds
City Clerk
City of Rancho Cucamonga

APPROVED AS TO FORM

APPROVED AS TO FORM

APPROVED AS TO FORM

By:

Nicholas R. Ghirelli,
City Attorney
Richards, Watson & Gershon

By:

Julianna K. Tillquist
General Counsel
San Bernardino County
Transportation Authority

By:

David Pickett
Associate General Counsel
DesertXpress Enterprises, LLC

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of _____________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of _____________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evid ence to be the person(s) whose name(s) is/are subscribed to the within instru ment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature

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EXHIBIT “A”
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EXHIBIT “A”
DESCRIPTION OF GRANTOR’S PROPERTY
[SEE ATTACHED]

EXHIBIT ‘A’
Legal Description
APN: 0209-272-11 & 0209-272-22
That portion of Parcel 15 of Parcel Map No. 14647 in the City of Rancho Cucamonga, County of San Bernardino, State of California, filed in Book 177, pages 90 through 96, inclusive, of Parcel Maps, in the Office of the County Recorder of said County, together with that portion of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of said County, described as follows:

All that portion of said Parcel 15, together with all that portion of said Rancho Cucamonga Metrolink Station Phase I;
Excepting therefrom that portion lying easterly of the following described line:

Commencing at the northeast corner of Section 13, of Township 1 South, Range 7 West, San Bernardino Meridian, as shown on said Parcel Map;
Thence along the easterly line of said Section 13, South 00°29’50” East 50.00 feet to the intersection of the easterly prolongation of the northerly line of said Rancho Cucamonga Metrolink Station Phase I;
Thence along said easterly prolongation of said northerly line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I; Thence continuing along said northerly line South 89°43’55 West 359.10 feet to the Point of Beginning;
Thence South 00°10’37” West 569.98 feet to the southerly line of said Parcel 15, also being the Point of Terminus;
Parcel contains 227,529 square feet, more or less.

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.00 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘A-1’ attached hereto and made a part hereof.

T
his real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233
Date: ____________________
9/23/2022

9/23/2022

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EXHIBIT “B”
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EXHIBIT “B”

DESCRIPTION OF AERIAL EASEMENT AREA
[SEE ATTACHED]

EXHIBIT ‘B’
Legal Description
APN: 0209-272-11
That portion of the land described as Rancho Cucamonga Metrolink Station Phase I, in the Grant Deed recorded October 06, 1994, as Document No. 1994-0409793, of Official Records of San Bernardino County, in the City of Rancho Cucamonga, in said County, State of California, described as follows:

Commencing at the northeast corner of said Section 13 of Township 1 South, Range 7 West, S.B.M., as shown on Parcel Map No. 14647, filed in Book 177, pages 90 through 96, inclusive of Parcel Maps, in the Office of the County Recorder of said County; Thence along the easterly line of said Section 13, as shown on said Parcel Map, South 00°29’50” East 50.00 feet to the easterly prolongation of the northerly line of said Rancho Cucamonga Metrolink Station Phase I;
Thence along said easterly prolongation of said northerly line South 89°43’55 West 30.00 feet to the northeasterly corner of said Rancho Cucamonga Metrolink Station Phase I; Thence along said northerly line South 89°43’55 West 359.10 feet to the Point of Beginning;
Thence continuing along said northerly line South 89°43’55 West 651.28 feet; Thence leaving said northerly line South 02°09’27” East 60.00 feet; Thence North 87°54’30” East 649.57 feet;
Thence North 00°10’37” West 39.29 feet to said northerly line and the Point of Beginning.

Parcel contains 32,283 square feet, more or less.

Reserving to the City of Rancho Cucamonga and San Bernardino County Transportation Authority all that portion below a level plane 16.00 feet above the existing ground.

Preliminary

The bearings and distances used in the above description are based on the California Coordinate System of 1983, (CCS83), Zone 5, 2010.0 epoch. Divide distances shown by

0.9999392898 to obtain ground distance.

See Exhibit ‘B-1’ attached hereto and made a part hereof.

This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyor’s Act (Bus. & Prof. Code §8700).

Signature: ______________________
Sean M. Smith, PLS 8233
Date: ____________________
9/26/2022

9/23/2022

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EXHIBIT “C”

DESCRIPTION OF GROUND EASEMENT AREA
[TO BE FINALIZED DURING THE DESIGN PROCESS]

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EXHIBIT “D”
Required Insurance
(a) Prior to Construction. On or before Grantee’s entry onto the Easement Area, Grantee shall procure and maintain, at its sole cost and expense, the following insurance:

(1) Commercial General Liability (CGL) with a limit not less than twenty-five million dollars ($25,000,000) per each occurrence an d a general aggregate limit of not less than twenty-five million dollars ($25,000,000) providing coverage for bodily injury, property damage, and personal injury through any combination of primary and excess or umbrella liability insurance policies with limits restating annually. The CGL insurance must be written on an ISO occurrence form CG 00 01 04 13 or (with approval from Grantor) substitute forms at least as broad as CG 00 01 04 13 coverage. All excess or umbrella policies must be “follow form” and afford no less coverage than th e primary policy. Such CGL mu st provide coverage to the Indemnified Parties as additional insureds usi ng ISO Additional Insured Endorsement CG 20 26 and CG 20 24, or their equivalent. Coverage shall be provided to the Indemnified Parties for claims proximately caused by reason of the uses author ized by this Agreement and the location and placement of improvements within the Easement Area, unless caused by an Indemnified Party’s gross negligence or willful misconduct.

(b) Insurance During Construction. Prior to commencing physical construction within the Easement Area, Grantee shall procure or cause to be procured and maintained throughout construction the following insurance coverage:

(1) Liability Insurance. Comme rcial General Liability (CGL) with a limit not less than three hundred million dollars $300,000,000 each occurrence, three hundred million dollars ($300,000,000) products and completed operations aggregate, and a general aggregate limit of not less than three hundred mil lion dollars ($300,000,000) providing coverage for bodily injury, pr operty damage, and personal inju ry through any combination of primary and excess or umbrella liability insu rance policies with one reinstatement general aggregate limit for the period of the policy(ies) term. Such policies must be project-specific with dedicated limits to the Project. The CGL insura nce must be written on an ISO occurrence form CG 00 01 04 13 or (with approval from Grantor) s ubstitute forms providing equivalent coverage.

All excess or umbrella policies must be “follow form” and afford no less coverage than the primary policy. Such CGL must cover the Indemnified Parties as additional insureds using ISO Additional Insured Endorsement CG 20 26 (or CG 20 26, CG 20 24, and 20 10 with the restriction that the work is being done for or on behalf of an additional insured removed from the endorsement accompanied by 20 37 or equivalent forms and subj ect to market availability with approval from SBCTA providing coverage to the additional insured for completed operation losses with the restriction that the work is being done for or on behalf of an additional insured removed from the endorsement). Coverage must be provided to the Indemnified Pa rties for claims proximately caused by reason of the uses authorized by this Agreement, unless caused by an Indemnified Party’s gross negligence or willful misconduct.

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The policy or policies shall be endorsed to remo ve exclusions pertaining to any railroads.

There must not be any endorsement or modification of the CGL limiting the scope of coverage for liability assumed under an insured contract. Comp leted operations coverage must extend for as long as there is any exposure to liability under a st atute of repose or any other applicable statute of limitations. If completed ope rations coverage through the en d of statutory exposure is not commercially available, completed operations cove rage must extend for at least ten (10) years from the completion date of the Project. All excess or umbrella policies must contain a drop-down clause in the event of exhaustion of primary limits and provide coverage for primary CGL.

(2) Commercial Automobile Insurance. During all phases of the Project, Grantee shall provide evidence of commercial business auto coverage written on ISO form CA 00 01 10 01 (or, with approval from Grantor, substitute form providing equiva lent liability coverage) with a limit not less than one mi llion dollars ($1,000,000) for each accident. Such insurance must cover liability arising out of any auto (inc luding owned, hired, and non-owned autos). The policy must contain an endorsement for coverage to operations in connection with a railroad and an endorsement to cover liabilities arising out of the Motor Carrier Act - Hazardous materials clean up (MCS-90) with a sublimit of no less than one mil lion dollars ($1,000,000).

During all phases of the Project, Grantee shall require its general contractor to provide (and shall ensure that its general contractor does provide ) evidence of commercial business auto coverage written on ISO form CA 00 01 10 01 (or, with a pproval from Grantor, substitute form providing equivalent liability coverage) with a limit not less than twen ty-five million dollars ($25,000,000) for each accident. Such insurance must cover liab ility arising out of any auto (including owned, hired, and non-owned autos) and can be satisfied by a combination of primary and excess and/or umbrella policies. The policy(ies) must contain an endorsement for coverage to operations in connection with a railroad and an endorsement to cover liabilities arising out of the Motor Carrier Act - Hazardous materials clean up (MCS-90) with a sublimit of no less than one million dollars ($1,000,000). All excess or umbrella policies shall contain a drop-down clause in the event of exhaustion of primary limits and provide coverage for primary auto liability.

(3) Workers’ Compensation and Employers Liability Insurance.

During all phases of the Project, Grantee shall provide eviden ce of Workers’ Compensation insurance as required under California statute including coverage for Employer’s Liability with limits of at least one million dollars ($1,000,000) each accident, one million dollars ($1,000,000) each employee by disease, and a policy limit of one million dollars ($1,000,000) by disease. The excess liability policy must include employer’s liab ility coverage limits to at least twenty-five million dollars ($25,000,000) and can be satisfied by a combination of primary and excess and/or umbrella policies.

The workers’ compensation policies must provide the following:

a. A waiver of subrogation in favor of Grantor and the Indemnified Parties;

b. A provision extending coverage to all states’ operations;

c. A voluntary compensation endorsement;

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d. An alternative employer endorsement, if applicable to Grantee operations;

e. Coverage for liabil ity under the United States Longshore and Harbor Workers’ Compensation Act on an “if any” basis or as otherwise appropriate;

f. Coverage for liability under Title 46 of the U.S.C. § 688 (“Jones Act”) on an “if any” basis or as otherwise appropriate; and

g. An endorsement extending the policy to cover the liability of the insureds under the Federal Employer’s Liability Act on an “if any” basis or as otherwise appropriate.

(4) Professional Liability Insurance. During all phases of the Project, Grantee shall provide evidence of profe ssional liability insurance, including prior acts coverage sufficient to cover all claims arising out of any professional services, including without limitation engineering, architectural, or land surveying work required in constructing the Project on the Easement Area, procured, and maintained by those third parties performing such work for or on behalf of Grantee. For the lead design c ontractor for the improve ments in privity with Grantee, the coverage must not be less than ten million dollars ($10,000,000) per claim and in the aggregate. For environmental assessments, land surveying work and any other site work, the coverage must not be less than two million dollars ( $2,000,000) per claim and in the aggregate.

For architectural, geotechnical engi neers, and electrical engineers, the coverage must not be less than two million dollars ($2,000,000) per claim and in the aggregate. For structural engineers and civil engineers relating to the Project, the covera ge must not be less than five million dollars ($5,000,000) per claim and in the aggregate. Grantee shall also require any member of its design build team, any subconsultant, or any subcontractor performing pr ofessional design services for any portion of the Project, to obt ain and maintain (and shall en sure that they do obtain and maintain) professional liability insurance providing the same coverage, with limits of at least one million dollars ($1,000,000) per claim and in the aggregate. Grantee shall procure and maintain a project specific Owner’s Protective Professional Indemnity (OPPI) policy that provides coverage with limits of at least twenty-five million dollars ($25,000,000) per claim and in the aggregate for claims arising out of the liabili ty of design and construction prof essionals. Such coverage must include coverage for claims filed directly agai nst Grantee by third-parties alleging negligence (arising from professional services of design firms).

No self-insured retention for Grantee or any lead design entity is permitted to exceed five hundred thousand dollars ($500,000), unl ess commercially unavailable and without prior written approval from Grantor, in its good faith disc retion. Coverage must apply specifically to professional activities performed or contracted by Grantee in support of the Project. The policy(ies) must have a retroactive date consistent with the inception of the first date of design or project or construction management activities, and no later than the date on which any contract or subcontract was issued. Grantee agrees to ma intain or to require its design professionals, subconsultants, or design-build subcontractors to maintain (and shall ensure that they do maintain), as appropriate, this required coverage for a period of no less than three years after the

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commencement of revenue service or to purchas e an extended reporting period for no less than three years after the commencement of revenue service. If the contractor is working with a separate lead design entity, contractor must (and Grantee shall ensure that contractor does) require the lead design entity to agree to maintain this coverage for a period of no less than three (3) years after the commencement of revenue service or to purchas e an extended reporting period for no less than three (3) years after the commencement of revenue service.

(5) Contractor’s Pollution Liabil ity. Grantee shall procure or cause to be procured contractor ’s pollution liability (“CPL”) coverage throughout the period of construction. Coverage must be provided by a stand-alone policy with Project dedicated limits of no less than twenty-five milli on dollars ($25,000,000) per occurr ence and twenty-five million dollars ($25,000,000) in the aggregat e per policy period dedicated to the Project. Coverage must be written on an occurrence basis and extended for a minimum ten (10) year period with a separate limit available exclusively to the Project. The CPL policy must include coverage for investigation, removal, and remediation costs including monitoring or disposal of contaminated soil, surface water, groundwater or other me dia to the extent required by environmental laws caused by pollution conditions resulting from or exacerbated by covered operations; third-party bodily injury and property damage, provided that the third-part y property damage liability coverage includes loss of use of damaged property or of property that has not been physically injured or destroyed, resulting from pollution conditions caused by or from conditions exacerbated by covered operations. The policy must have no exclusions or limitations for loss occurring over water including but not limited to a navigable waterway or for lead or asbestos. Coverage as required in this Section shall apply to sudden and non-sudde n pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alka lis, toxic chemicals, li quids, or gases, waste materials, or other irritants, contaminants, or pollutants. The CPL policy must also provide coverage for losses due to loading, unloading or transportation and liabil ity imposed by off-site disposal of materials at a thir d-party disposal site including testing, monitoring, measuring operations or laboratory analysis and remediation. If the scope of work includes the disposal of any hazardous or non-hazardous materials from the job site, Grantee shall furnish Grantor evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, wi th coverage in minimum amounts of five million dollars ($5,000,000) per loss and an annual aggregate of five million dollars ($5,000,000).

(6) Railroad Protective Liability. Grantee shall provide, or cause to be maintained, any coverage as may be required by any railroad as a condition of the railroad’s consent for entry onto railroad fa cilities or property. Such polic y shall be effective during the period any construction is being pe rformed within 50 feet of any railroad ROW. Coverage shall be written on Insurance Services Office occu rrence Form CG 00 35 (or, with approval from Grantor, substitute form providing equivalent c overage) on behalf of any railroad as a named Insured, with a limit specified by any railroad. 20.2.1.7. Aircraft Liability. If applicable, Grantee shall procure, or cause to be procured and mainta ined, aircraft liability insurance with a limit of not less than ten million dollars ($10,000,000) per o ccurrence in all cases wh ere any aircraft is used on the Project that is owned, leased or ch artered by any contractor -related entity or its subcontractors of any tier, protecting against cl aims for damages resulting from such use. Any aircraft intended for use in perfor mance of the work, the aircraft crew, flight path and altitude, including landing of any aircraft on the Project or on any propert y owned, rented or leased by

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Grantor or any of the Indemnified Parties is su bject to review and written acceptance by Grantor prior to occurrence of any such usage. If any aircraft are leased or chartered with crew and/or pilot, evidence of non-owned aircraft liability insurance is acceptable in lieu of the coverage listed above but must be provided prior to use of the aircraft.

(7) Builder’s Risk Insurance. Grantee shall, upon
commencement of construction and with approval of Grantor, obtain and maintain a policy of builder’s risk insurance for the Project. Covera ge shall be written on an “all risk” basis and provided through a stand-alone policy dedicated solely to the Project. The insureds must include the contractor, all subcontractors (excluding those solely responsible for design work) of any tier, suppliers, and Grantor. Coverage must include property owned by Granto r and the Indemnified Parties that is part of the Project and must not be limited by use of the phrase “as their interests may appear.” The policy must co ver all property, road s, buildings, bridge structures, other structures, fixtures, materials, supplies, foundations, pilings, machinery and equipment (excluding contractor’s equipment) that are part of or related to the port ions or elements of the Project, and the works of improvement, includi ng permanent and temporary work s and on-site materials, and including goods intended for incorporation into the works located at the Easement Area, in storage or in the course of transit to the Easement Area and all improvements that are within the Easement Area.

The builder’s risk policy must include coverage for:

a. Any ensuing loss from faulty workmanship or nonconforming work, including L.E.G. 3 wording;

b. Machinery accidents and operational testing involving equipment covered by the policy;

c. Removal of debris, with a sublimit of twenty-five percent (25%) of the loss subject to a limit of twenty-five mil lion dollars ($25,000,000) and insuring the buildings, structures, machinery, equipment, materials, facilities, fixtures and all other properties constituting a part of the Project;

d. Transit, including ocean marine coverage (unless insured by the supplier or through a separate marine cargo policy), with sub- limits sufficient to insure the full replacement value of any key equipment item;

e. Replacement value of any property or equipment stored either on or off the Easement Area;

f. Coverage limits sufficient to insure for the following perils subject to applicable sub- limits for these perils based on the probable maximum loss of the insured property:

• Collapse;
• Terrorism;
• Earthquake;

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• Flood;

g. Plans, blueprints and specifications; and

h. Demolition and increased cost of construction as required by law or ordinance subject to applicable sub-limits.

There must be no coinsurance penalty provision in any such policy. All deductibles or self- insured retentions must be the sole responsibility of Grantee.

The policy must provide a “severability of interests provision,” “multiple insured’s clause” or similar wording that the policy is to apply to each insured as if a separate policy had been issued to each insured except as to limits.

Grantee shall also require the general contra ctor and its subcontra ctors to procure and maintain (and shall ensure that they do procur e and maintain) coverage for tools and equipment owned, leased or used by the general contractor or subcontractors in the performance of their work under this contract.

Upon completion of construction of the Project and prior to commencing operations of the Project within the Easement Area, Grantee shall provide evidence of “all risk” property insurance covering the Project/Improvements, with coverage sufficient to cover the probable maximum loss of such improvements and alterations made by Grantee pursuant to the terms hereof, which must include “all risk” coverage using the ISO Causes of Loss - Special Form or (with approval from Grantor) its equivalent, as well as flood insurance, subject to app licable sub-limits for natural hazard exposures based on the probable maximum loss of such improvements.

(c) Insurance During Operations. Upon the commencement of revenue service operations, Grantee shall procure and mainta in, at its sole cost and expense, Commercial General Liability (CGL) with a limit not less fo r personal injury, death, and property damage in an amount not less than three hundred twenty-three million dollars ($323,000,000), or such other limit of liability as Congr ess may establish from time to time applicable to Grantee’s passenger rail operations. Such policy or po licies must provide coverage to all Indemnified Parties as additional insureds. All excess or umbrella policies must be “f ollow form” and afford no less coverage than the primary policy and the policies up to three hundred twenty-three million dollars $323,000,000 must include one reinstatement limit for the period of the policy(ies) term.

(d) Self Insurance. The polic y or policies under which coverage required by this Agreement is provi ded may include a deductible or self-insured retention not in cumulative excess of ten million dollars ($10,000,000) on the condition that:

(1) Each insurance policy expressly provides that the obligations of the policy issuer to Grantor as an additional insured are not to be diminished in any way by Grantee’s failure to pay its deductible or self-insured retention obligation for any reason;

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(2) Grantee provides a declarati on under penalty of perjury by a Certified Public Accountant (CPA) acceptable to Grantor and who shall apply a Fiduciary Standard of Care, certifying the accountant has applied Generally Accepted Accounting Principles (GAAP) guidelines confirming that Grantee has sufficient funds and re sources to cover any self-insured retentions if the cumulative self-insured retentions from all required insured policies are in excess of one million dollars ($1,000,000); and

(3) Grantee promptly pays any and all amounts due under such deductible or self-insured retention in lieu of insurance proceeds that would have been payable if the insurance policies had not included a deductible or self-insured retention amount.

(e) Definition of “Self Insurance”. As used in this Agreement, “self insurance” means that Grantee is itself acting as if it were th e insurance company providing the insurance required under the provisions of this Agreement.

(f) Evidence of Insurance. In accordance with the insurance requirements above, Grantee shall furnish evidence of insurance reasonably acceptable to Grantor before Grantee enters the Easement Area, before commencing physical construction of the Project within the Easement Area, and before the beginn ing of operations, as ap plicable. Grantee shall provide Grantor with satisfactory evidence of renewal or replacement insurance no later than thirty (30) days after the expiration or termination of such insurance. Grantee shall submit full copies of the commercial general liability policy, excess/umbrella liability policy, builder’s risk policy, and the project-specific professional liability policy or binders with full specimen copies of the forms for each policy until such time as full copies of the policies are available. This requirement applies prior to Grantee starting work on the Project, including all subseque nt renewal policies.

Certificates of insurance are required for all other lines of insurance. If, through no fault of Grantee, any of the coverage required becomes unavailab le, Grantee shall provid e good faith alternative insurance packages and programs, subject to prior approval by Grantor, with the goal of reaching agreement on a package providing coverage equivalent to that specified herein.

(f) Additional Insured Coverage. All policies, except those for Workers’ Compensation and Professional Liability insurance, must be endorsed by the ISO Form CG 20 10 11 85, CG 20 37, CG 20 24 and CG 20 26 as outlined in Paragraphs (a) and (b) above, to name the Indemnified Parties as additional insureds. The additional insured endorsements must not have any restriction requiring that the work is being done for or on behalf of an additional insured. With respect to general liability arising out of or conne cted with work or operations performed by or on behalf of Grantee under this Agreement, coverage for such additional insureds must not extend to liab ility to the extent prohibited by Section 11580.04 of the Insurance Code.

The additional insured endorsements must not limit the scope of coverage for Grantor to vicarious liability but shall allow coverage for Grantor to the full extent provided by the policy.

(h) Waiver of Subrogation Rights. To the fullest extent permitted by law, Grantee hereby waives all rights of recovery under subrogation against the additional insureds named herein, and any other tena nt, contractor, subcontractor or sub-subcontractor performing work or rendering services on behalf of Granto r, in connection with the planning, development and construction of the Project. To the fullest extent permitted by law, Grantee shall require similar

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EXHIBIT “D”
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written express waivers and insurance clauses from each of its subcontractors of every tier. Grantee shall require all of the policies and coverages required in this Section to waive all rights of subrogation against the additional insureds (I SO Form CG 24 04 05 09). Such insurance and coverages provided must not prohibit Grantee from waiving the right of subrogation prior to a loss or claim.

(i) Eligible Insurers. If policie s are written by insurance carriers authorized and admitted to do business in the state of California, then the insurance carriers must have a current A.M. Best rating of A-VIII or better and if policies are written by insurance carriers that are non-admitted but authorized to conduct business in the state of California, then they must meet the current A.M. Best ra ting of A-:X or better, unless otherwise approved in writing by Grantor. Grantee shall furnish to Grantor, not le ss than fifteen (15) days before the date the insurance is first required to be carried by Gran tee, and thereafter before the expiration of each policy, true and correct certificates of insurance, using the appropriate ACORD form of certificate or its equivalent, evidencing the coverages required under this Section, with a copy of each policy, if requested by Grantor. Such certificates must provide that should any policies described therein be cancelled before the expiration date thereof, notice is to be delivered to the certificate holder by the insurer in accordance with the policy provisions regarding same. Further, Grantee agrees that the insurance coverage required hereunder is not to be terminated or modified in any material way without thirty (30) days advance written notice from Grantee to Grantor.

(j) Cure. If Grantee fails to proc ure and maintain insurance required under this Agreement or fails to meet its obligations with respect to any deductible or self-insured retention amount under this Agreement, subject to the provisions herein, Grantor is entitled, after thirty (30) days prior written notice to Grantee of Grantee’s default hereunder and Grantee’s failure to cure such default within said thirty (30) days, ten (10) days for non-payment, to require Grantee to immediately discontinue all construction activ ities related to the Project and immediately discontinue operation of the Project until Grante e has provided Grantor reasonably satisfactory evidence that the required insurance has been obtained and the other obligations of Grantee under this Section have been met. No cessation of construction or operations required by Grantor under this Section releases or relieves Grantee of any of its other obligations under this Agreement.

EXHIBIT “G”
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11231-0001\2708118v2.doc
EXHIBIT “G”

FORM OF MILLIKEN TRIANGLE EASEMENT
[SEE ATTACHED]

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RECORDING REQUEST BY,
AND WHEN RECORDED RETURN TO:

DesertXpress Enterprises, LLC
3920 W. Hacienda Ave.

Las Vegas, NV 89118
Attn: David Pickett, Esq.

With a copy to:

City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga, CA 91730
Attn: City Manager

SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY
Free Recording Requested per Government Code 27383.

EASEMENT
(RAMPS AND DRIVEWAYS)

THIS EASEMENT (“Agreement”) is dated as of ________, 202__ and is entered into by and between the CITY OF RANCHO CUCAMONG A, a California muni cipal corporation (“City”), and DESERTXPRESS ENTERPRISES, LLC, a Nevada limited liability company d/b/a Brightline West and qualified to do business in California (“DXE”). City and DXE are sometimes hereinafter referred to individually as “Party” and collectively as the “Parties.”

RECITALS
A. DXE plans to construct a high-speed passenger rail system from Las Vegas, Nevada to Rancho Cucamonga, California (“ HSR System”). One portion of this system will include a train station in Rancho Cucamonga (the “Train Station”) on property DXE is acquiring from the City and the San Bernardino C ounty Transportation Authority (“SBCTA”) (the “Station Site”).

DXE desires an easement over a portion of property owned by the City adjacent to the Station Site for transit purposes, including without limitation, the right to construct, operate, and maintain (i) an access road (the “Access Road”) to provide access between the Station Site and the Driveway (as defined below) and Milliken Avenue when wide ned to the boundary of the Access Road and (ii) vehicle ramps (the “ Ramp” and together with the Access Road, “ Road and Ramp Improvements”) to service the parking structure to be constructed as part of the Train Station on the Station Site, both within the area described in Exhibit “A” attached hereto (the “ Easement Area”). Further, DXE desires the ri ght to construct, operate, and maintain an extension of the Access Road to provide access from the Ease ment Area to Milliken Avenue (the “ Driveway”) within a separate area described in Exhibit “B” attached hereto (the “20 Foot Area”). The Road and Ramp Improvements and the Driveway ar e collectively referred to herein as the “Improvements”.

B. The City’s public purposes in entering into this Agreement include facilitating the

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development of transportation that will benefit the public, pr oviding employment opportunities resulting from the work to be pe rformed by DXE and the operation of a high-speed rail project, and obtaining fair market compensation for the easement interest granted herein (and such compensation shall become part of the general funds of the City and in turn used for public purposes).

AGREEMENT

1. Grant of Easement; Term; Consideration . City hereby gr ants to DXE an exclusive perpetual easement (“ Easement”) in and through the Easement Area for transit purposes, including, without limitation and subject to all applicable laws, th e right to construct, operate, and maintain the Road and Ramp Improvements and appurtenant to the Easement the right to construct, operate, and maintain the Driveway within the 20 Foot Area. For the avoidance of doubt, the Road and Ramp Improvements are only allowed within the Easement Area and not the 20 Foot Area and only the Driveway is permitted within the 20 Foot Area. The location of the Driveway within the 20 Foot Area will be determined by DXE through its station design process, provided that the Driveway shall be no wider than sixty (60) feet unless a larger width is approved in writing by the City Engineer after finding th at a wider Driveway is needed to accommodate vehicular traffic into and out of the Train St ation and will not unreasonably impact surrounding City infrastructure and Milliken Avenue (includi ng its future widening). The analysis regarding further widening of the Driveway shall involve the traffic study for the Train Station that DXE is currently preparing to assist the City Engineer in making any such finding and to the extent the pending traffic study does not suff iciently analyze the driveway wi der than sixty (60) feet or impacts on surrounding infrastructure and Milliken Avenue (including its future widening), such additional traffic study (or peer review) prepar ed in cooperation between DXE and City/SBCTA (at DXE’s expense) that is necessary for the City Engineer to make the finding. DXE shall coordinate the pending traffic study with the City/S BCTA in an effort to ensure that the pending traffic study is sufficient to avoid the necessity of an additional traffic study. Upon the determination of the location of the Driveway, th e Easement Area shall be amended to include such portion of the 20 Foot Area on which th e Driveway will be located. The installation, maintenance, and operation of th e Improvements shall be subordin ate to any existing easements, covenants, conditions, restrictions , reservations, rights of way, liens, encumbrances, and other matters of record on or under the Easement Area and the 20 Foot Area, as applicable. If the City widens Milliken Avenue, the City shall be responsible at its cost to modify the Driveway to the extent necessary to accommodate such widening and the Easement Area shall be automatically modified to exclude any portion of the Easement Area that included the Driveway affected by the widening of Milliken Avenue. As a condition precedent to DXE’s occupancy or use of the Easement Area and the limited use of the 20 Foot Area, DXE will pay to City the one-time sum equal to the fair market price of the easement inte rest and rights described herein, as determined by an appraisal obtained by City.

2. AS-IS. DXE accepts the Easement Area (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located) in its current “AS-IS” condition, without representation or warranty, express or implied, and subject to all existing matters of record and all matters that would be revealed by a dilige nt inspection of the Easement Area and the 20 Foot Area. DXE also acknowledges that City makes no representations, express or implied, as to the physical condition of or title to the Easement Area or the 20 Foot Area. This Agreement does

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not constitute, nor grant permission to use or occupy property not belonging to, or under the control of City, and permission to use or occupy such property must be obtai ned from the owner or controller of such property, separate from and in addition to this Agreement.

3. Authorized Improvements; Street Closures . The rights of DXE to install, maintain, and operate the Impr ovements are subject to any a pplicable laws and permitting requirements and conditions (and the City does not waive any of its rights or powers in its governmental capacity in that regard to the extent appli cable). In addition, C ity will review and approve all such Improvement plans in its propr ietary capacity as pr operty owner prior to construction of the Improvements only to ensure consistency and no material interference with the Public Improvements (as defined below) and not to review the HSR System. Any and all street closures required for installation, maintenance, or repairs of the Improvements must be approved in advance in writing by the City Manager, and DXE shall pay or reimburse City within thirty (30) days after written demand for all costs incurred by City in connection with any such closures.

4. Standards for Rail Facilities. City acknowledges that standards promulgated by and decisions issued by the Federal Railroad Administration (“FRA”) and Surface Transportation Board (“STB”) govern the design, construction, operation, and maintenance of railroad facilities within their jurisdiction and that such regulations, standards, a nd decisions might as a matter of law preempt and supersede requirements that may otherwise apply under state or local laws. City acknowledges that it is not a regu latory agency under federal law or with respect to California utilities regulated by the California Public Utilities Commission, and the Parties agree that the City will have no liability for not inspecting access facilities or operations on the Easement Area (as modified to include and later ex clude the portion of the 20 Foot Area on which the Driveway is located) for purposes of enforcing compliance with laws and regulations within the jurisdiction of the STB, the FRA, or the California Public Utilities Commission. Notwithstanding this Section 4, City reserves all of its govern mental rights and powers, and DXE acknowledges that City is entering into this Agreement solely in its proprietary capacity.

5. Repair of Damage.
(a) Damage to Public Improvements. DXE shall promptly notify the City in writing if it becomes aware of any damage to Milliken Avenue or public utilities near the location of the Driveway (“Public Improvements”). Whether or not DXE notifies the City, if any damage is caused to Milliken Avenue or Public Improv ements directly or indirectly by DXE or its contractors, such repair work will be conducted by the City at DXE’s sole cost and expense, or if so authorized in writing by City, may be repaired by DXE at its sole cost and expense (whereupon DXE shall promptly coordinate with City on any necessary street closures, and promptly perform the repairs).
(b) If City elects to perform repair work for which DXE has some or all responsibility, DXE shall reimburse City for its share of the reasona ble costs of the repair work within thirty (30) days after delivery of a stat ement from City describing the costs, including a statement detailing such costs and expenses. In the event payment is not made within said thirty (30) day period, said payment shall include interest at a rate of ten percent (10%) per annum from the end of said thirty (30) day period until paid.