(2) Grantee provides a declaration 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 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
(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 the 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 beginning of operations, as applicable. 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 subsequent 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 unavailable, Grantee shall provide 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 connected with work or operations performed by or on behalf of Grantee 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 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 tenant, contractor, subcontractor or sub-subcontractor performing work or rendering services on behalf of Grantor, in connection with the planning, development and construction of the Project. To the fullest extent permitted by law, Grantee shall require similar EXHIBIT “C”4858-4166-4037.27
378683.00002/4-7-24/eeo/mrf -7-
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 (ISO 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 policies 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 rating of A-:X or better, unless otherwise approved in writing by Grantor. Grantee shall furnish to Grantor, not less than fifteen (15) days before the date the insurance is first required to be carried by Grantee, 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 procure 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 activities related to the Project and immediately discontinue operation of the Project until Grantee 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 “C”4858-4166-4037.27
378683.00002/4-7-24/eeo/mrf -8-
EXHIBIT "G"
MILLIKEN TRIANGLE EASEMENT
[See Attached]
EXHIBIT "G"
-1-
4885-9088-6533.10
378683.00002
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 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 a train station in Rancho Cucamonga (the “Train Station”) on property DXE is acquiring from the City and the San Bernardino County 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 widened 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 right to construct, operate, and maintain an extension of the Access Road to provide access from the Easement 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 are collectively referred to herein as the “Improvements”.
B. The City’s public purposes in entering into this Agreement include facilitating the 4881-4358-1477.18
378683.00002/5-13-24//mrf -1-
development of transportation that will benefit the public, providing employment opportunities resulting from the work to be performed 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 grants 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, the 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 that a wider Driveway is needed to accommodate vehicular traffic into and out of the Train Station and will not unreasonably impact surrounding City infrastructure and Milliken Avenue (including 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 sufficiently analyze the driveway wider than sixty (60) feet or impacts on surrounding infrastructure and Milliken Avenue (including its future widening), such additional traffic study (or peer review) prepared 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/SBCTA 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, the Easement Area shall be amended to include such portion of the 20 Foot Area on which the Driveway will be located. The installation, maintenance, and operation of the Improvements shall be subordinate 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 interest 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 diligent 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 4881-4358-1477.18
378683.00002/5-13-24//mrf -2-
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 Improvements are subject to any applicable 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). In addition, 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 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, and 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 regulatory 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 exclude 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 governmental 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 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 reasonable costs of the repair work within thirty (30) days after delivery of a statement 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. 4881-4358-1477.18
378683.00002/5-13-24//mrf -3-
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 Instrument”), all of DXE’s interest 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 rights 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 remedy, nor shall a Mortgagee be liable for any defaults 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 compensation 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 in a reasonable time period. If City has not provided written notice within such ninety (90) day period, DXE shall provide written notice of the termination to City. If City does not respond within thirty (30) days of delivery of such written notice, then DXE shall have no obligation to remove the Improvements. 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 abate a nuisance, and in connection therewith, remove Improvements (if City has such a right as a governmental entity under applicable law). For the avoidance of doubt, the City acknowledges and agrees that the construction and operation of the HSR System in accordance with this Agreement and applicable law is not a nuisance.
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, attorneys 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 Milliken Avenue, and all claims of contribution and reimbursement for costs of remediating Hazardous Materials (defined in Section 10 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 CIVIL CODE SECTION 1542 (“SECTION 1542”), WHICH IS SET FORTH BELOW:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR RELEASING 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.”
4881-4358-1477.18
378683.00002/5-13-24//mrf -4-
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. Utilities. As between DXE and the City, any required relocation of a utility that interferes with DXE’s project within the Easement Area (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located) 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 reimbursable basis) for meetings with third- party utility owners to help facilitate DXE’s property access and construction and maintenance activities.
10. Hazardous Materials.
(a) DXE covenants that it will not handle or transport Hazardous Materials in the Easement Area (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located) except for removal, transportation 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 Environmental Response, Compensation, and Liability Act (CERCLA), 42 United States Code Section 9601 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 Account 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 Health and Safety Code Section 25501 et seq. (Hazardous Materials Release Response 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 state statutes are hereinafter 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 may give rise to liability under any of the above statutes or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or 4881-4358-1477.18
378683.00002/5-13-24//mrf -5-
federal court; (c) petroleum or crude oil, other than petroleum and petroleum products which are contained within regularly operated motor vehicles or passenger trains; and (d) asbestos.
Notwithstanding the foregoing, DXE may handle and transport Hazardous Materials normally and customarily used in the development, construction 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 infrastructure 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 contained 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 reasonable attorneys’ fees, investigators’ fees, litigation expenses, and mitigation costs) resulting in whole or in part 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 (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located) 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 Milliken Avenue or adjacent property. (d) City shall have the right at any time to inspect the Improvements in order to monitor DXE’s compliance with this Agreement.
11. Insurance. DXE shall obtain and maintain insurance, at its sole cost and expense, as required in Exhibit “C” attached hereto.
12. 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, losses, 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 (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located) or the construction, use, or operation of the Improvements or 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. DXE shall further defend, indemnify and hold harmless the City and its officials, officers, agents and employees from all claims, demands, lawsuits, writs of mandamus, and other actions or proceedings (brought against the City or its 4881-4358-1477.18
378683.00002/5-13-24//mrf -6-
departments, commissions, agents, officers, officials, or employees to challenge, 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 (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located) (based on noncompliance with the California Environmental Quality Act or otherwise). DXE shall defend, with counsel reasonably 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, officers, 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 incurred 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.
13. Covenant Running With Land. This Agreement shall be deemed a covenant running with the land with respect to the Easement Area (as modified to include and later exclude the portion of the 20 Foot Area on which the Driveway is located), burdening said Easement Area and benefitting and appurtenant to the real property interests owned by DXE and associated with the HSR System. All of the covenants, obligations, and provisions of this Agreement shall be binding upon and inure to the benefit of successors, legal representatives, assigns and successors- 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 said Easement Area shall be conclusively deemed to have notice of this Agreement, whether or not reference to this Agreement is contained in the instrument by which such person acquires an interest in said Easement Area. Therefore, each and every contract, deed or other instrument hereinafter executed, covering or conveying said Easement Area or any portion thereof or interest therein shall conclusively be deemed to have been executed, delivered and accepted subject to this Agreement.
14. Estoppel Certificates. Each of the Parties hereto agrees, 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.
15. Cooperation; Further Assurances. The Parties agree to execute any reasonable documents necessary to effectuate or protect a Party’s rights under this Agreement.
16. 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, 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 determine 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 4881-4358-1477.18
378683.00002/5-13-24//mrf -7-
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.
17. Miscellaneous.
(a) Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, 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 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 invalid 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 Agreement 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 subjects 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 4881-4358-1477.18
378683.00002/5-13-24//mrf -8-
District Court, Central District Court of California. The judgment in any such action may be enforced by any court of competent jurisdiction wherever located. (g) Exhibits. All exhibits attached hereto form material parts of this Time of Essence. Time is of the essence of every provision hereof in which Survival. All defense, indemnity, and payment obligations of DXE that Agreement.
(h)
time is a factor.
(i)
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 City’s or DXE’s control prevent performance of obligations relating to construction, repair, operation, maintenance, or demolition of the Improvements under 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.
(k) Limits to Remedies. Under no circumstances shall either party be liable to the other party under this Agreement for any speculative, consequential, collateral, indirect or punitive damages or for any loss of profits suffered or claimed to have been suffered; provided, however, the foregoing prohibitions shall not prohibit the recovery of any direct damages.
18. Property Taxes, Including Possessory Interest Taxes. This Agreement creates a possessory interest that may be subject to possessory interest tax (a type of California property tax), and DXE shall pay any such possessory interest taxes that may be assessed. If the Improvements are taxed as an improvement on the Easement Area, DXE shall, upon demand, pay such taxes allocable to the Improvements, as determined 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 executing any reasonably required applications or reasonable documents. DXE shall pay when due all personal property taxes levied against or relating to the Improvements.
19. Termination. If the City and/or SBCTA subsequently takes fee title to the fee property owned by DXE and described on Exhibit “D” attached hereto, this Agreement shall automatically terminate.
[Signature Page Follows]
4881-4358-1477.18
378683.00002/5-13-24//mrf -9-
The Parties have executed this Agreement as of the date first written above.
DXE: CITY:
DESERTXPRESS ENTERPRISES, LLC, a
Nevada limited liability company
CITY OF RANCHO CUCAMONGA,
a California municipal corporation
_______________________________
By: ____________________, Mayor
By: _______________________________
Sarah Watterson
President
ATTEST:
______________________________
_________________, City Clerk
APPROVED AS TO FORM:
Nicholas Ghirelli,
City Attorney
4881-4358-1477.18
378683.00002/5-13-24//mrf -10-
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,
Notary Public, personally appeared
,
,
(insert name and title of the officer)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument 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)
4881-4358-1477.18
378683.00002/5-13-24//mrf -11-
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,
Notary Public, personally appeared
,
,
(insert name and title of the officer)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument 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)
4881-4358-1477.18
378683.00002/5-13-24//mrf -12-
(;+,%,7µ$¶
/HJDO'HVFULSWLRQof Easement
Area
$31
7KDWSRUWLRQRI3DUFHORI3DUFHO0DS1RLQ
WKH&LW\RI5DQFKR&XFDPRQJD
&RXQW\RI6DQ%HUQDUGLQR6WDWHRI&DOLIRUQLDILOHG
LQ%RRNSDJHVWKURXJK
LQFOXVLYHRI3DUFHO0DSVLQWKH2IILFHRIWKH&RXQW\
5HFRUGHURIVDLG&RXQW\WRJHWKHU
ZLWKWKRVHSRUWLRQVRI0LOOLNHQ$YHQXHDVVKRZQRQ
VDLG3DUFHO0DS1RDQG
3DUFHO0DS1RLQVDLG&LW\ILOHGLQ%RRN
SDJHVDQGRI3DUFHO0DSVLQ
WKH2IILFHRIWKH&RXQW\5HFRUGHURIVDLG&RXQW\WRJH
WKHUZLWKWKH5DQFKR&XFDPRQJD
0HWUROLQN6WDWLRQ3KDVH,LQWKH*UDQW'HHGUHFRUGH
G2FWREHUDV'RFXPHQW
1RRI2IILFLDO5HFRUGVRIVDLG&RXQW\
GHVFULEHGDVIROORZV
&RPPHQFLQJDWWKHQRUWKHDVWFRUQHURI6HFWLRQRI
7RZQVKLS6RXWK5DQJH:HVW
6DQ%HUQDUGLQR0HULGLDQDVVKRZQRQVDLG3DUFHO0DS
1R7KHQFHDORQJWKHHDVWHUO\OLQHRIVDLG6HFWLRQ6R XWK¶´(DVWIHHWWRWKH
3RLQWRI%HJLQQLQJ
7KHQFHFRQWLQXLQJDORQJVDLGHDVWHUO\OLQH6RXWK
¶´(DVWIHHWWRWKH
LQWHUVHFWLRQRIWKHHDVWHUO\SURORQJDWLRQRIWKHQRU
WKHUO\OLQHRIVDLG5DQFKR&XFDPRQJD
0HWUROLQN6WDWLRQ3KDVH,7KHQFHDORQJVDLGHDVWHUO\SURORQJDWLRQOLQH6RXWK ¶:HVWIHHWWRWKH
QRUWKHDVWHUO\FRUQHURIVDLG5DQFKR&XFDPRQJD0HWU
ROLQN6WDWLRQ3KDVH,7KHQFHFRQWLQXLQJDORQJVDLGQRUWKHUO\OLQH6R XWK¶:HVWIHHW
7KHQFHOHDYLQJVDLGQRUWKHUO\OLQH6RXWK
¶´:HVWIHHW
7KHQFH1RUWK¶´(DVWIHHWWRVD
LGHDVWHUO\OLQHRI6HFWLRQ7KHQFHFRQWLQXLQJ1RUWK¶´(DVWIHHW WRWKHEHJLQQLQJRIDQRQWDQJHQW
FXUYHFRQFDYHVRXWKHDVWHUO\KDYLQJDUDGLXVRI
IHHWDOLQHUDGLDOWRVDLG
EHJLQQLQJEHDUV1RUWK¶´:HVW7KHQFHQRUWKHDVWHUO\DORQJVDLGFXUYHDQDUFOHQJW KRIIHHWWKURXJKDFHQWUDO
DQJOHRI¶´WRWKHVRXWKHUO\6$1%$*IRUPHUO\$
76)5DLOURDG5LJKWRI
:D\DVVKRZQRQVDLG3DUFHO0DS1R
3DJHRI
7KHQFHDORQJVDLGVRXWKHUO\OLQH6RXWK¶´
:HVWIHHWWRWKH3RLQWRI
%HJLQQLQJ
3DUFHOFRQWDLQVVTXDU
HIHHWPRUHRUOHVV
7KHEHDULQJVDQGGLVWDQFHVXVHGLQWKHDERYHGHVFULS
WLRQDUHEDVHGRQWKH&DOLIRUQLD
&RRUGLQDWH6\VWHPRI&&6=RQH
HSRFK'LYLGHGLVWDQFHVVKRZQE\
WRREWDLQJURXQGGLVWDQFH6HH([KLELWµ$ꢀꢁ¶DWWDFKHGKHUHWRD QGPDGHDSDUWKHUHRI
7KLVUHDOSURSHUW\GHVFULSWLRQKDVEHHQSUHSDUHGE\
PHRUXQGHUP\GLUHFWLRQLQ
FRQIRUPDQFHZLWKWKH3URIHVVLRQDO/DQG6XUYH\RU¶V$F
W%XV3URI&RGH
6LJQDWXUHBBBBBBBBBBBBB
BBBBBBBBB
6HDQ06PLWK3/
6'DWHBB9B/B2B2B/2B0B2B2BBBBBBBBBB
B
3DJHRI
EXHIBIT 'A-1'
9/27/2022
(;+,%,7µ%¶
/HJDO'HVFULSWLRQof 20
Foot Area
$311$
7KDWSRUWLRQRI³$GGLWLRQDO:LGHQLQJWR0LOOLNHQ$YHQ
XH´VKRZQRQ3DUFHO0DS1R
LQWKH&LW\RI5DQFKR&XFDPRQJD&RXQW\RI6DQ
%HUQDUGLQR6WDWHRI&DOLIRUQLD
ILOHGLQ%RRNSDJHVDQGRI3DUFHO0DSVL
QWKH2IILFHRIWKH&RXQW\5HFRUGHU
RIVDLG&RXQW\GHVFULEHGDVIROORZV
&RPPHQFLQJDWWKHQRUWKHDVWFRUQHURI6HFWLRQ7
RZQVKLS6RXWK5DQJH:HVW
6DQ%HUQDUGLQR0HULGLDQDVVKRZQRQVDLG3DUFHO0DS
7KHQFHDORQJWKHHDVWHUO\OLQHRIVDLG6HFWLRQ6R
XWK¶´(DVWWRWKH
VRXWKHUO\OLQHRI$76)5DLOURDG5LJKWRI:D\DV
VKRZQRQVDLG3DUFHO0DS
7KHQFHDORQJVDLGVRXWKHUO\OLQH1RUWK¶´(DV
WIHHWWRWKHEHJLQQLQJRID
QRQWDQJHQWFXUYHFRQFDYHVRXWKHDVWHUO\KDYLQJD
UDGLXVIHHWDUDGLDOOLQHWR
VDLGEHJLQQLQJEHDUV1RUWK¶´:HVWVDLGEHJLQ
QLQJDOVREHLQJWKH3RLQWRI
%HJLQQLQJ
7KHQFHVRXWKZHVWHUO\DORQJVDLGFXUYHDQDUFOHQJWK
RIIHHWWKURXJKDFHQWUDO
DQJOHRI¶´
7KHQFHOHDYLQJVDLGFXUYH1RUWK¶´(DVW
IHHWWRWKHEHJLQQLQJRIDQRQ
WDQJHQWFXUYHFRQFDYHVRXWKHDVWHUO\KDYLQJDUDGL
XVRIIHHWDUDGLDOOLQHWR
VDLGEHJLQQLQJEHDUV1RUWK¶´:HVWVDLGFXUYH
EHLQJFRQFHQWULFZLWKDQGGLVWDQW
IHHWVRXWKHDVWHUO\DVPHDVXUHGUDGLDOO\WR
ODVWVDLGFXUYHFRXUVH
7KHQFHQRUWKHDVWHUO\DORQJVDLGFXUYHDQDUFOHQJW
KRIIHHWWKURXJKDFHQWUDO
DQJOHRI¶´WRVDLGVRXWKHUO\OLQH
7KHQFHDORQJVDLGVRXWKHUO\OLQH6RXWK¶´:HV
WIHHWWRWKH3RLQWRI
%HJLQQLQJ
3DUFHOFRQWDLQVVTXDUHIHHWPRUHRUOHVV
7KHEHDULQJVDQGGLVWDQFHVXVHGLQWKHDERYHGHVFULS
WLRQDUHEDVHGRQWKH&DOLIRUQLD
&RRUGLQDWH6\VWHPRI&&6=RQH
HSRFK'LYLGHGLVWDQFHVVKRZQE\
WRREWDLQJURXQGGLVWDQFH
3DJHRI
6HH([KLELWµ%¶DWWDFKHGKHUHWRDQGPDGHDSDUW
KHUHRI
7KLVUHDOSURSHUW\GHVFULSWLRQKDVEHHQSUHSDUHGE\
PHRUXQGHUP\GLUHFWLRQLQ
FRQIRUPDQFHZLWKWKH3URIHVVLRQDO/DQG6XUYH\RU¶V$F
W%XV3URI&RGH
6LJQDWXUHBBBBBBBBBBBBB
BBBBBBBBB
6HDQ
06PLWK3/6
'DWHBB9B/2B7B/B2B0B2B2BBBBBBBBBB
B
3DJHRI
EXHIBIT 'B-1'
9/28/2022
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 and 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 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 the primary policy. Such CGL must 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. Commercial 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 million dollars ($300,000,000) providing coverage for bodily injury, property damage, and personal injury through any combination of primary and excess or umbrella liability insurance policies with 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 insurance 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 accompanied by 20 37 or equivalent forms with approval from City providing coverage to the additional 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 remove 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. Completed operations coverage must extend for as long as there is any exposure to liability under a statute of repose or any other applicable statute of limitations. If completed operations coverage through the end of statutory exposure is not commercially available, completed operations coverage 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.
EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -1-
(2) Commercial Automobile Insurance. During all phases of the Project, DXE shall 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 one million dollars ($1,000,000) for each accident. Such insurance must cover liability arising out of any auto (including 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 million dollars ($1,000,000). During all phases of the Project, DXE 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 approval from City, substitute form providing equivalent liability coverage) with a limit not less than twenty-five million dollars ($25,000,000) for each accident. Such insurance must cover liability 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, DXE shall provide evidence 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 liability 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.
b.
c.
A waiver of subrogation in favor of City and the Indemnified Parties; A provision extending coverage to all states’ operations; 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;
f. Coverage for liability under Title 46 of the U.S.C. § 688 (“Jones Act”) on EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -2-
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 professional 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 lead design contractor for the improvements 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 engineers and civil engineers relating to the Project, the coverage must not be less than five million dollars ($5,000,000) per claim and in the aggregate. DXE shall also require 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 ensure 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. DXE 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 liability of design and construction professionals. Such coverage must include coverage for claims filed directly against DXE by third-parties alleging negligence (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), unless 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 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 commencement of revenue service or to purchase 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 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.
EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -3-
(5) Contractor’s Pollution Liability. DXE 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 million dollars ($25,000,000) per occurrence and twenty-five million dollars ($25,000,000) in the aggregate 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 media 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-party 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-sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, 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 liability imposed by off-site disposal of materials at a third-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 the disposal site operator for losses arising from the insured facility accepting the materials, with 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 facilities or property. Such policy shall be effective during the period any construction is being performed 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.
(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 owned by City 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 cover all property, roads, 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 portions or elements of the Project, and the works of improvement, including permanent and temporary works and on-site materials, and including goods intended for EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -4-
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, 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;
• 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 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 contractor and its subcontractors to procure and maintain (and shall ensure that they do procure and maintain) coverage for tools and equipment EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -5-
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 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 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 for 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 time 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 policy or policies under which coverage required by this Agreement is provided 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 funds 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
(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 EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -6-
Area, before commencing 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 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 DXE starting work on the Project, including all subsequent renewal policies. Certificates of insurance are required for all other lines of insurance. If, through no fault of DXE, any of the coverage required becomes unavailable, DXE shall provide good faith alternative 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. All 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 arising out of or connected 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 endorsements must not limit the scope 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 (ISO Form CG 24 04 05 09). Such insurance and coverages provided must not prohibit DXE from waiving the right of subrogation prior to a loss or claim. (i) Eligible Insurers. If policies 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 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, 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 City. 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, 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.
EXHIBIT “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -7-
(j) Cure. If DXE fails to procure 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, 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, ten (10) days for non-payment, to require DXE to immediately discontinue all construction activities 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 “C”4881-4358-1477.18
378683.00002/4-7-24//mrf -8-
EXHIBIT ‘D1’
Legal Description of the DXE Property
APN: 0209-272-11, 0209-272-22, & 0209-143-21
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 SANBAG (formerly A.T. & S.F.) Railroad Right-of-Way, as shown on said Parcel Map, filed in the Office of said County Recorder, within Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, 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 568.51 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 northwesterly, 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; Preliminary
05/23/2024 11:38:22 AM Page 1 of 2
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 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; Excepting therefrom only that certain eight-foot-high parcel described in Exhibit B1 to that that certain Conditions, Covenants, Restrictions and Easements between the parties recorded concurrently herewith.
Parcel contains 225,143 square feet, more or less.
See Exhibits ‘D2’ 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: ____________________
Preliminary
05/23/2024 11:38:26 AM
D2
PARCEL
Preliminary
described
05/23/2024 11:38:27 AM
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
DesertXpress Enterprises, LLC
8329 W. Sunset Road, Suite 150
Las Vegas, NV 89113
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
Free Recording Requested per Government Code 27383.
CONDITIONS, COVENANTS, RESTRICTIONS AND
EASEMENTS
(RANCHO CUCAMONGA HSR STATION)
These Conditions, Covenants, Restrictions and Easements (RANCHO CUCAMONGA HSR STATION) (this “Agreement”) are entered into by and among the CITY OF RANCHO CUCAMONGA, a California municipal corporation (the “City”), the SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY, a public entity (“SBCTA”), and together with the City, the “Public Agencies”, and DESERTXPRESS ENTERPRISES, LLC, a Nevada limited liability company d/b/a Brightline West and qualified to do business in California (“Developer”). The City, SBCTA, and the Developer may hereinafter be referred to individually as a “Party” and collectively as the “Parties”.
R E C I T A L S :
A. Concurrently herewith, Developer acquired from the Public Agencies that certain real property legally described on Exhibit A attached hereto (the “Station Property”) for the purpose of developing a train station and related infrastructure for a privately owned and publicly ATTACHMENT 24877-5650-6677.28
378683.00002/4-12-24/amc/mrf -1-
accessible high-speed passenger railroad and local rail service, including station parking facilities and related station uses, subject to easements reserved by the Public Agencies (the “Reserved Easements”) in the grant deed, recorded immediately prior hereto, whereby Developer acquired the Station Property (the “Grant Deed”), all in accordance with the terms and conditions of that certain Disposition and Development Agreement, dated October 5, 2022, entered into between the Parties (as amended by the first, second, third and fourth amendments, the “DDA”). The Station Property expressly excludes the Surface Property (defined below).
B. The Public Agencies retained ownership of that certain real property legally described on Exhibit B attached hereto (the “Surface Property”) for the purpose of continuing to operate surface parking separate and distinct from the HSR Station (defined below).
C. The Station Property and the Surface Property (each individually a “Property” and collectively, the “Properties”) are adjacent to a transit center owned and operated by the Public Agencies and which currently includes public parking and connections to the passenger railroad service operated and maintained by SCRRA (“Metrolink”) and public buses (collectively, “Transit Center”). The Transit Center includes without limitation the real property on which the Transit Center is located as legally described on Exhibit C attached hereto.
D. The Station Property and the Surface Property are two legally independent separate interests in real property. The Station Property is above and below the Surface Property, there are easements that travel through specific limited areas of the Surface Property that permit columns and specific utilities adjacent to such columns to traverse through and exist within such specific limited areas of the Surface Property to support the HSR Station and the Surface Property requires certain easements over the Station Property to connect with the adjacent Transit Center, all as further described herein. The Parties are entering into this Agreement to establish easements, covenants and restrictions, all intended to establish and protect the estates, general plan of ownership, use and enjoyment of each Party’s Property.
E. The Public Agencies and the Developer intend that this Agreement be a covenant running with the land pursuant to Section 1468 of the California Civil Code.
NOW, THEREFORE, for good and valuable consideration, the Parties hereby confirm the accuracy of the foregoing recitals, and covenant and agree as follows:
A G R E E M E N T :
1. DEFINITIONS. The following is not an exhaustive list of all defined terms in this Agreement and excludes many defined terms used in only one Section hereof, but instead includes certain key defined terms that are used throughout this Agreement.
1.1 Agreement. As set forth in the preamble above, Agreement means these Conditions, Covenants, Restrictions and Easements, as amended from time to time.
1.2 City. As set forth in the preamble above, City means the City of Rancho Cucamonga, California.
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -2-
1.3 Developer Permittee. Developer Permittee means employees, agents, visitors, contractors, patrons, guests or invitees of Developer.
1.4 1.5
DDA. DDA is defined in Recital A.
HSR Station. HSR Station means that certain private, but publicly accessible, passenger train station, including all train platforms, common areas, and parking areas located on the Station Property and columns within easements within the Surface Property, but otherwise expressly excluding the Surface Property, including:
1.5.1 the shell (including the exterior skin) and core of the HSR Station;
1.5.2 all structural support elements existing in, on, under and throughout the HSR Station shell and core, including all footings, girders, columns, braces, foundations, load- bearing walls, utility-bearing walls and other standard support elements, and every wall, column, floor, ceiling, footing, foundation or other vertical or horizontal improvement in the HSR Station;
1.5.3 the elevators, including the elevator shafts, elevator cabs, doors, elevator lobbies, and related machinery and equipment rooms, if any, in, to and serving the HSR Station;
1.5.4 area drains, scuppers, stairways, vaults, mechanical shafts, pipes, lines, mains, conduits, flues, risers, auxiliary generator room, clarifier, and any other equipment, fixtures, machinery, system or apparatus in, to and which benefit the HSR Station; and
1.5.5 any fire and life safety and sprinkler systems in, to and serving the HSR Station, including alarms, fire sprinkler pipes, and the sensors, pipes and fire sprinkler heads.
1.6 Metrolink. Metrolink is defined in Recital C.
1.7 Official Records. Official Records means the Official Records of San Bernardino County, California.
1.8 Party. Party is defined in the preamble.
Permittee. Permittee means either a Developer Permittee or a Public1.9 Agency Permittee.
1.10 Properties. Properties is defined in Recital C.
1.11 Public Agencies Permittee. Public Agencies Permittee means employees, agents, visitors, contractors, patrons, guests or invitees of either or both of the Public Agencies.
1.12 San Gabriel Subdivision Lease Agreement. San Gabriel Subdivision Lease Agreement means that certain San Gabriel Subdivision Lease Agreement entered into between SBCTA and Developer, dated March 2, 2022.
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -3-
1.13 SBCTA. As set forth in the preamble above, SBCTA means San Bernardino County Transportation Authority.
1.14 Station Property. Station Property is defined in Recital A and legally described on Exhibit A attached hereto.
1.15 Surface Property. Surface Property is defined in Recital B and legally described on Exhibit B attached hereto. For purposes of interpreting the maintenance rights and obligations described in this Agreement, the actual boundaries of the Surface Property shall be deemed to extend to the interior unfinished surfaces of the walls, floors, and ceilings that surround the ground floor level (first floor) of the HSR Station and shall exclude all components of the HSR Station described below.
1.16 Transit Center. Transit Center is defined in Recital C; and the Transit Center includes the real property on which it is located, as legally described on Exhibit C attached hereto.
2. USE RESTRICTIONS.
2.1 Use Restrictions. The Properties shall only be operated for transit and transit-related purposes, including without limitation appurtenances and appurtenant uses thereto.
2.2 Maintenance and Security. To the extent permitted by any applicable law, each Party hereby covenants and agrees to use commercially reasonable efforts to limit loitering, smoking, panhandling, vagrancy and other nuisance and/or unlawful conduct in and on its respective Property, including, without limitation, posting and maintaining signs that prohibit such activities in reasonable locations; however, (a) the Public Agencies’ obligations under this Section shall be satisfied by enforcing the prohibitions for the Surface Property with the same level of security services that the Public Agencies obtain and provide for the Transit Center, and (b) the Developer’s obligations under this Section shall be satisfied by enforcing the prohibitions for the Station Property with the level of security services required by this Section 2.2 or the highest level that Developer obtains and provides for any the other train station that is owned or operated by Developer within the State of California.
2.2.1 Repair and Maintenance of Vehicles and Equipment. Except for short-term emergency situations, repair or maintenance of vehicles or mechanical equipment shall not be permitted within/in or on the Properties.
2.2.2 Security. Each Party shall hire and maintain all such security services, including, without limitation, the presence of onsite security personnel and the placement of security cameras or devices within their respective Properties, as such Party reasonably determines may be appropriate.
2.2.3 Ceiling, Wall, Column and Floor Penetrations. The Public Agencies and Public Agency Permittees shall be permitted to install signs, lighting, traffic safety mirrors, security systems and other parking related equipment on interior facing walls, floors and ceilings surrounding the Surface Property and columns within the Surface Property, and in connection therewith, reasonably bolt or otherwise affix and install items on the walls, columns, 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -4-
floors, and ceilings that surround, or are within, the Surface Property; provided, however, that in connection with the foregoing, the Public Agencies shall not adversely impact the structural integrity of the HSR Station or any improvements therein. If a necessary repair or property improvement requires a penetration that would be reasonably likely to adversely affect the HSR Station, then the Public Agencies and/or Public Agency Permittee(s) shall reasonably coordinate such repairs or property improvements with the Developer. Notwithstanding the foregoing, nothing contained herein shall be deemed to prohibit the Public Agencies and Public Agency Permittees from reasonably painting or repainting (as necessary) parking stripes, parking stalls or directional signage on the interior facing walls, paved floors, and columns that enclose, or are within, the Surface Property. The Parties shall reasonably cooperate regarding the design and installation of exterior directional signage to the Surface Property, which shall be consistent in style with the directional signage into the parking for the HSR Station except to the extent necessary to incorporate the official seals or logos of the Public Agencies or Metrolink.
3. MAINTENANCE AND OPERATIONAL OBLIGATIONS.
3.1 Maintenance and Repair. Except to the extent any damage is caused by another Party or Parties, in which event the damaging Party or Parties shall be responsible for such repair, each Party or Parties (that is, the Public Agencies) shall be solely responsible to perform all maintenance and repair obligations with respect to its or their respective Property, such that each Property is maintained in good condition and repair, including ensuring that its or their Property is on a reasonable periodic basis cleaned, swept and otherwise kept reasonably free of all trash, debris and standing water. For the avoidance of doubt, subject to the proviso at the beginning of the first sentence of this Section 3.1, Developer shall be solely responsible for maintaining the Station Property, including, without limitation, (a) the HSR Station, (b) the structural integrity of the columns which traverse the Surface Property and (c) any utilities serving the HSR Station that traverse the Surface Property adjacent to the columns while the Public Agencies shall be solely responsible for maintaining the Surface Property, including without limitation the interior surfaces of each of the walls, columns, floors, and ceilings that surround the Surface Property, including graffiti removal. For the purposes of clarity, subject to the proviso at the beginning of the first sentence of this Section 3.1 and except for periods in which Developer is installing subterranean improvements under the Surface Property such that maintenance by the Public Agencies would interfere therewith, if the paved floor is damaged, the Public Agencies shall have the right and the obligation to repair said floor and sufficient access is hereby granted by Developer to the Public Agencies to perform such repair work. The Public Agencies’ right and obligation to make such repairs to the paved floor shall automatically terminate upon the Developer’s installation of any subterranean improvements (other than utilities or other similar installations) under the Surface Property, if ever. For the avoidance of doubt, when a Party is responsible for repair or maintenance under this Section 3.1, such responsibility shall include all costs relating thereto.
3.2 Cooperation. The Developer and the Public Agencies shall reasonably cooperate with one another in good faith in the performance of their obligations under this Section 3.
3.3 Operation of HSR Station. Developer shall operate the HSR Station at the Station Property at all times Developer maintains a high-speed passenger rail system in Southern California so as to ensure that all regularly scheduled passenger trains stop at the Station 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -5-
Property in accordance with the San Gabriel Subdivision Lease Agreement. Express, special event, and charter train services are not required to stop at the Station Property; however, Developer may not provide only express, special event and/or charter train services.
3.4 Modifications After Initial Construction. Following the completion of the HSR Station by Developer and the surface parking improvements by the Public Agencies, neither Party shall materially alter, renovate, modify or add to the exterior of any improvements without the prior written consent of the other Party, which consent is not to be unreasonably withheld, conditioned or delayed.
4. EASEMENTS.
4.1 Easements for the Benefit of the Surface Property. The Public Agencies and Public Agency Permittees shall benefit from, and there are hereby established and granted for the benefit of the Public Agencies and Public Agency Permittees, the following easements over portions of the Station Property, which shall be appurtenant to the Surface Property:
4.1.1 Access Easements. Nonexclusive access easements over and across those portions of the Station Property for the purposes described below and subject to Public Agencies’ approval of plans as described in DDA Section 3.4:
(a) a pedestrian access easement under, through and across those portions of the Station Property as necessary or appropriate to provide for free, unrestricted and contiguous ingress and egress between the Surface Property and the Transit Center. For the avoidance of doubt, such pedestrian access easement shall include adjacent access from the Surface Property to a passenger elevator (“Primary Elevator”) and stairs (of similar quality as other elevators and stairs within the HSR Station) leading from the Surface Property (i.e., P1) to the P3 level (i.e., the second level above P1 that connects to the exterior ramp referenced below) of the HSR Station, which Primary Elevator and stairs will pass through and be shared with the P2 level (i.e., the mezzanine parking level between P1 and P3) of the HSR Station, and such Primary Elevator and stairs shall connect with a walkway on the P3 level of at least six (6) feet in width within the Station Property leading from such Primary Elevator and stairs to the top of the exterior ramp leading down from the HSR Station to the Transit Center, which walkway will not cross any garage drive aisles. Additionally, when the Primary Elevator is inoperable or under maintenance or repair, the pedestrian access easement in this Section 4.1.1(a) shall include necessary and appropriate alternative access to the Public Agencies and Public Agency Permittees via access to and from and use of the elevators serving the Station Property until such Primary Elevator is operable, as referenced on the site plan attached to the DDA. For the avoidance of doubt, Developer is responsible for the initial construction of the HSR Station and the exterior ramp and, following such construction (and acceptance of the exterior ramp by the Public Agencies), Developer shall maintain all portions of such pedestrian access easement within the interior portions of the HSR Station and the Public Agencies shall maintain the exterior ramp leading from the HSR Station to the Transit Center. The Public Agencies are hereby granted an additional easement on the Station Property as necessary or appropriate to maintain such exterior ramp.
Following the completion of the HSR Station on the Station Property, Developer and the Public Agencies shall modify the CC&Rs to revise this Section 4.1.1(a) and/or to add an Exhibit D describing such access easement, which shall conform with the as-built improvements. 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -6-
(b) a pedestrian access easement over and across those portions of the Station Property designated by Developer, including stair and elevator access, that provides reasonable ingress and egress between the Surface Property and the communications building on adjacent property owned by the City (“Communications Building”). For equipment trucks that are too large to fit in the Surface Property, or which are necessary to be located within close proximity to the Communications Building when performing work on or inside of the Communications Building, and for fire and/or emergency vehicle access, Developer shall designate and maintain reasonable vehicular and parking access for such vehicles within the loading area off of Milliken Avenue or the drop off/pick up area on the main floor of the Station Property, together with pedestrian access designated by Developer that provides reasonable ingress and egress between such parking area and the Communications Building. Additionally, Developer shall provide and maintain an access gate through the existing fence between the San Gabriel Subdivision right of way and the Communications Building and a gate through any other Developer owned physical barrier that would block access to the Communications Building, as applicable.
(c) For the avoidance of any doubt, the Grant Deed reserves to the Public Agencies additional utility, access, construction, and use easements over portions of the Station Property, as described and depicted in the Grant Deed.
4.2 Easements for the Benefit of the Station Property. The Developer and the Developer Permittees shall benefit from, and there are hereby established and granted for the benefit of the Developer and the Developer Permittees, the following easements over portions of the Surface Property, which shall be appurtenant to the Station Property:
4.2.1 Developer Maintenance Obligations. Nonexclusive easements within, through and across the Surface Property as reasonably necessary for the purpose of performing the maintenance obligations described herein. The rights of Developer and Developer’s Permittees under this easement are subject to the obligation not to unreasonably interfere with the use or operation of the Surface Property, and, except in an “Emergency Situation” (as that term is defined below), to notify the Public Agencies at least thirty (30) days in advance of the dates, times and scope of maintenance and to cooperate in good faith with the Public Agencies in minimizing interference with the use and operation of the Surface Property; provided, however, if such maintenance or repair work does not impact access to or parking at the Surface Property, then Developer shall only be obligated to provide the Public Agencies with at least five (5) business days advance notice. At all times Developer shall ensure that a minimum of four hundred (400) parking spaces total across the Surface Property and Transit Center (or such lesser amount if less than 400 parking spaces total exist at such time), including sufficient ADA compliant parking stalls to satisfy ADA requirements, are available to Public Agencies’ Permittees. Anytime Developer reasonably determines that immediate maintenance or repair work is required to address an imminent threat to public health or safety (each, an “Emergency Situation”), Developer shall give notice of such Emergency Situation to the Public Agencies as soon as possible after such determination and shall have the right to immediately act on providing such maintenance and repair work as is required to address the Emergency Situation; provided, however, that the foregoing language shall not be in denigration of any obligation, liability or duty of Developer under or pursuant to this Agreement or as provided by law, and the foregoing right 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -7-
shall not release or relieve Developer from any responsibility, liability or indemnification obligations arising out of, resulting from or relating to this Agreement.
4.2.2 Public Easements. Fire, police, health and sanitation and other public service personnel and vehicles shall have a permanent and perpetual easement for ingress and egress over and across the HSR Station for the performance of their respective duties.
Additionally, easements are hereby reserved in favor of all Parties for emergency ingress and egress over, through and across all portions of the HSR Station.
4.2.3 Support Columns, Utilities, and Beams Serving HSR Station.
Exclusive easements within, through and across only those portions of the Surface Property expressly and specifically designated and developed with columns and beams and specified utilities (i.e., only the following utilities: storm drain; water; sewer; electrical; telecommunication; and data, including similar future technologies) adjacent to such columns and beams per plans approved in advance and in writing by the Public Agencies which plans specifically show such beams, columns and utilities, for the purpose of installing, constructing, inspecting, placing, maintaining, repairing, replacing, and removing the structural columns, support beams, utilities within or adjacent to such columns, footings and any other structural components or support elements existing in, on, under and throughout the HSR Station, including incidental access as necessary to access such columns, utilities and beams for such purposes (“Column and Beam Easement”). Developer and the Public Agencies shall reasonably cooperate to designate the locations of such columns, utilities and beams on such plans to facilitate the optimal, but commercially reasonable, parking and vehicular and pedestrian circulation within the Surface Property. Developer, at Developer’s sole cost and expense, shall ensure that, at all times, the columns, beams and utilities are located to provide at least 210 parking stalls available to Public Agencies’ Permittees within the Surface Property, including sufficient ADA compliant parking stalls to satisfy ADA requirements. For the avoidance of doubt, Developer, at Developer’s sole cost and expense, shall ensure that the Surface Property and the adjacent Transit Center, upon delivery by Developer to the Public Agencies following the initial construction of the Station Property by or for the benefit of Developer and temporary use and reconfiguration of the Transit Center pursuant to Section 4.2.4 below, collectively provide at least 650 parking stalls.
Additionally, Developer, at Developer’s sole cost and expense, shall ensure that the beams and any utilities adjacent to such beams are located to provide and maintain at least eight (8) feet of clear height space throughout the Surface Property. Except in an Emergency Situation, Developer shall notify the Public Agencies in writing at least thirty (30) days in advance for maintenance and at least sixty (60) days in advance for any construction, placing, repairing or removing work, of the dates, times and scope of maintenance or other work, and to cooperate in good faith with the Public Agencies in minimizing interference with the use and operation of the Surface Property; provided, however, if such maintenance or repair work does not impact parking at the Surface Property, then Developer shall only be obligated to provide the Public Agencies with at least five (5) business days advance notice. For the avoidance of doubt, if Developer desires to modify or add utilities in the future, the Public Agencies shall have reasonable review and approval rights with respect to any such modification or addition. Consistent with Section 4.2.1 above, anytime Developer reasonably determines that there is an Emergency Situation, Developer shall give notice of such Emergency Situation to the Public Agencies as soon as possible after such determination and shall have the right to immediately act on providing such maintenance and repair work as is required to address the Emergency Situation; provided, however, that the foregoing language shall 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -8-
not be in denigration of any obligation, liability or duty of Developer under or pursuant to this Agreement or as provided by law, and the foregoing right shall not release or relieve Developer from any responsibility, liability or indemnification obligations arising out of, resulting from, or relating to this Agreement.
4.2.4 Temporary Construction Easement on Transit Center and Milliken Site during the Initial Construction. In connection with development of the HSR Station by Developer and during the construction thereof, the Public Agencies hereby grant to Developer a temporary construction easement for construction parking and staging purposes on the Transit Center, as well as the construction of ramps and stairs on the Transit Center, per plans approved by Public Agencies in accordance with Section 3.4 of the DDA, to facilitate ingress and egress between the Station Property and the Transit Center and the reconfigured pedestrian ramp for access to the Pedestrian Tunnel, and the City hereby grants to Developer a temporary construction easement for construction parking on the adjacent parking lot owned by the City on Anaheim Place, abutting Azusa Court and Milliken Avenue (“Milliken Site”) until the completion of the HSR Station, but in any event no later than seven (7) years after Close of Escrow. However, with respect to the Milliken Site, the City may terminate the temporary construction easement no earlier than six (6) months after written notice from the City to Developer indicating that the City has reached agreement with a buyer for the sale of all of the Milliken Site (or for a material portion of the Milliken Site that requires termination of such temporary construction easement), subject only to City Council approval of the agreement, if such date is earlier than the completion of the HSR Station. Developer shall ensure that the design and construction of the long ramp from the Station Property to the Transit Center is in accordance with all ADA requirements. Additionally, Developer shall ensure that the design and construction of such ramp includes and utilizes drains and non-slip surfaces; provided, however, that Developer shall ensure that such design and construction also provides for and is conducive to the commercially reasonable subsequent addition of an overhead covering to shield the ramp from rain. The Public Agencies shall assume responsibility for the ramps and stairs on the Transit Center following (i) the initial construction by Developer, at the sole cost of Developer, (ii) the inspection and acceptance thereof by the Public Agencies, at the sole cost of the Public Agencies, and (iii) the inspection and approval by a CASp certified inspector as part of the Inspector of Record process, at the sole cost of Developer. The Public Agencies and Developer shall coordinate regarding the location(s) and scope(s) of such construction parking and staging such that the combined Transit Center and Milliken Site continue to provide at least 400 parking stalls are available to Public Agencies’ Permittees, at least four bus drop off locations (including on Azusa Court if necessary), pedestrian access between such parking and bus drop off locations and the Metrolink platforms and legally compliant ADA parking, all in a manner reasonably acceptable to the Public Agencies. Prior to exercising any such rights described within this Section 4.2.4, Developer shall provide the Public Agencies with thirty (30) days’ notice of Developer’s plans for any occupancy or use of the easement, and the Developer must demonstrate to the reasonable satisfaction of the Public Agencies that safe and adequate circulation of pedestrian, vehicular, and bus movements are and will be provided for at all times during the term(s) of the easement. Developer shall provide the Public Agencies at least thirty (30) days’ notice of any changes to the affected area, to enable the Public Agencies to provide notice to Metrolink and/or its patrons, and such changes must otherwise be in accordance with the terms of this Agreement. Commencing on the date which Developer takes possession of any temporary construction easement area, Developer shall compensate the Public Agencies for the temporary construction easement by paying them, on a monthly basis, on or before the first business day of 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -9-
each calendar month, without offset or deduction, a sum of money which is equal to the product of the following factors: (i) the total number of square feet then affected by the temporary construction easement, (ii) the affected property’s fee value per square foot, multiplied by (iii) one third of a percent (1/3%). The fee value per square foot of the affected property shall first be established by an appraisal no older than six months at the time Developer first takes possession of any temporary construction easement area and shall be scaled by a factor of one and four hundredths (1.04) each year on the anniversary of said appraisal’s date of valuation. If payment is not made within ten (10) business days after written notice from the City, then the outstanding sum shall immediately begin to accrue interest at the rate identified in Section 7 until paid. During the term of the temporary construction easement, Developer shall maintain the temporary construction easement area in good condition and repair. Following the termination of the temporary construction easement, Developer shall promptly return the portion of the Transit Center and Milliken Site used for the temporary construction easement to their condition immediately prior to the easement term.
For all facilities that the Public Agencies will own and control, Developer shall obtain customary and usual construction and installation warranties, shall assign all such warranties, on a non-exclusive basis and to the extent assignable, to the Public Agencies with respect thereto, and shall, whether or not such warranties are assigned, reasonably cooperate with the Public Agencies to enforce such warranties as necessary, including filing and pursuing warranty claims on behalf of the Public Agencies for non-assignable warranties.
4.2.5 Future Construction. During the redevelopment of the Station Property, Developer on advance written notice, including without limitation the prior written approval of the Public Agencies of replacement parking as provided below, of not less than twelve (12) months, shall have the right to temporarily close the Surface Property for a reasonable period of time not exceeding thirty-six (36) months (as the same may be extended by force majeure, but not otherwise) during the actual construction on the Station Property and subject to the terms of this Section 4.2.5. If, as a consequence of Developer’s future construction, the Public Agencies would not have at least 400 parking spaces available during the period of construction, Developer shall provide reasonable replacement parking, compliant with ADA and all other applicable law, taking into account both then existing ADA parking areas located on the Transit Center and ADA requirements relating to the replacement parking, as applicable, and otherwise reasonably acceptable to the Public Agencies during the construction period and thereafter until the Surface Property is returned to its prior condition. The amount of such replacement parking provided by Developer shall ensure that the Public Agencies would have (i) 400 parking spaces if the Public Agencies had 400 or more parking spaces just prior to Developer’s construction, or (ii) if the Public Agencies had less than 400 parking spaces just prior to Developer’s construction, an amount equal to such lesser amount. Following such construction, Developer shall promptly return the Surface Property to its prior condition as of the date Developer took possession. As an example only, if Developer develops a larger HSR station with below grade parking and the Surface Property, at the time of such construction, is used as a gated surface parking lot, Developer shall restore the Surface Property to a surface parking lot, including striping, lighting, and gates, as applicable (including any equipment that was previously installed by the Public Agencies).
4.2.6 Baggage Elevator Access. Developer may in the future, without any obligation to do so or to continue such service once commenced, build a baggage elevator 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -10-
entirely on the Station Property that would open onto the Pedestrian Tunnel via a vestibule, also entirely on the Station Property, between the Pedestrian Tunnel and such elevator, to enable baggage service between BLW trains and Metrolink Trains. As part of the work to reconfigure the ramps and stairs providing access to the Pedestrian Tunnel, Developer shall construct the vestibule per plans approved in advance and in writing by the Public Agencies and gate such vestibule from the Pedestrian Tunnel to prevent access and vagrancy issues when not in use; said gate to be located entirely on the Station Property. Developer shall coordinate with the Public Agencies regarding the design thereof to maximize the continued functionality of the tunnels and any construction work relating thereto to minimize impacts to the Transit Center.
5. INSURANCE.
5.1 Public Agency Insurance Requirements. With respect to the Surface Property, at all times the Public Agencies (or one of them) shall maintain property insurance coverage in amounts and types consistent with the coverage and amounts maintained on the Transit Center. To the extent both possible and reasonably available at commercially reasonable rates, Developer will be named as an Additional Insured on said insurance coverage and the Public Agencies will provide Developer reasonable evidence of said insurance upon request.
5.2 Developer Insurance Requirements. Developer at all times shall maintain the following insurance coverage:
5.2.1 Commercial General Liability (CGL). Developer shall maintain the insurance coverage set forth below in this Section 5.2.1 when the provisions of Section 5.3 do not apply. Commercial General Liability (CGL) with a limit not less than twenty-five million dollars ($25,000,000) per each occurrence and 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 the Public Agencies) 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 the primary policy. Such CGL must provide coverage to the Insured Party as additional insureds using ISO Additional Insured Endorsement CG 20 10 and CG 20 26.
Coverage shall be provided to the Insured Party for all claims arising from the Property of the Insured Party (as defined in Section 5.4.4 below), respectively, or proximately caused by reason of construction activities and the location and placement of improvements within the Property, unless caused by an Insured Party's gross negligence or willful misconduct.
5.3 Insurance During Construction. Developer shall maintain the following insurance coverage at all times during which it is performing construction work within either of the Properties:
5.3.1 Commercial General Liability (CGL). Commercial General Liability (CGL) with a limit not less than fifty million dollars ($50,000,000) each occurrence, fifty million dollars ($50,000,000) products and completed operations aggregate, and a general aggregate limit of not less than fifty million dollars ($50,000,000) providing coverage for bodily injury, property damage, and personal injury through any combination of primary and excess or 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -11-
umbrella liability insurance 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 HSR Station. The CGL insurance must be written on an ISO occurrence form CG 00 01 04 13 or (with approval from the Public Agencies) 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 Insured Party as additional insureds using ISO Additional Insured Endorsement CG 20 26 or and 20 10 and accompanied by 20 37 or equivalent forms with approval from the Public Agencies providing coverage to the Insured Party for completed operation losses.
Coverage must be provided to the Insured Party for claims proximately caused by reason of the uses authorized, unless caused by the gross negligence or willful misconduct of the Insured Party.
The policy or policies shall be endorsed to remove 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. Completed operations coverage must extend for as long as there is any exposure to liability under a statute of repose or any other applicable statute of limitations. If completed operations coverage through the end of statutory exposure is not commercially available, completed operations coverage must extend for at least ten (10) years from the completion date of such improvements. 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.
5.3.2 Commercial Automobile Insurance. Developer shall provide evidence of commercial business auto coverage written on ISO form CA 00 01 10 01 (or, with approval from the Public Agencies, substitute form providing equivalent liability coverage) with a limit not less than one million dollars ($1,000,000) for each accident. Such insurance must cover liability arising out of any auto (including 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 million dollars ($1,000,000). Developer 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 approval from the Public Agencies, substitute form providing equivalent liability coverage) with a limit not less than twenty-five million dollars ($25,000,000) for each accident. Such insurance must cover liability 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.
5.3.3 Workers’ Compensation and Employers Liability Insurance.
Developer shall provide evidence of Workers’ Compensation insurance as required under California statutes 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 liability coverage limits to at least twenty-five million dollars ($25,000,000) 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -12-
and can be satisfied by a combination of primary and excess and/or umbrella policies. The workers’ compensation policies must provide the following:
(a)
Permittees of the Insured Party;
A waiver of subrogation in favor of the Insured Party and the (b)
(c)
A voluntary compensation endorsement;
An alternative employer endorsement, if applicable to the Insured Party’s operations;
(d) Coverage for liability under the United States Longshore and Harbor Workers’ Compensation Act on an "if any" basis or as otherwise appropriate; (e) Coverage for liability under Title 46 of the U.S.C. § 688 on an “if any” basis or as otherwise appropriate; and
(f) 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.
5.3.4 Professional Liability Insurance. The Developer shall provide evidence of professional 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 connection with such construction, procured, and maintained by those third parties performing such work for or on behalf of Developer. For the lead design contractor for the improvements in privity with Developer, 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 engineers and civil engineers relating to such construction, the coverage must not be less than five million dollars ($5,000,000) per claim and in the aggregate. Developer shall also require any member of its design build team, any subconsultant, or any subcontractor performing professional design services for any portion of such construction work, to obtain and maintain (and shall ensure 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. Developer 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 liability of design and construction professionals. Such coverage must include coverage for claims filed directly against Developer by third-parties alleging negligence (arising from professional services of design firms).
No self-insured retention for Developer or any lead design entity is permitted to exceed five hundred thousand dollars ($500,000), without prior written approval from the Public Agencies, in their good faith discretion (which shall factor in whether such insurance is commercially available). Coverage must apply specifically to professional activities performed or 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -13-
contracted by Developer in support of the construction. 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. Developer agrees to maintain 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 commencement of revenue service or to purchase 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 Developer 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 completion of such construction.
5.3.5 Contractor's Pollution Liability. Developer 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 dedicated limits of no less than twenty-five million dollars ($25,000,000) per occurrence and twenty-five million dollars ($25,000,000) in the aggregate per policy period dedicated to the Property. 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 Property. The CPL policy must include coverage for investigation, removal, and remediation costs including monitoring or disposal of contaminated soil, surface water, groundwater or other media 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-party 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-sudden pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids, alkalis, toxic chemicals, liquids, 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 liability imposed by off-site disposal of materials at a third-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, Developer shall furnish the Insured Party evidence of pollution legal liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting the materials, with coverage in minimum amounts of five million dollars ($5,000,000) per loss and an annual aggregate of five million dollars ($5,000,000).
5.3.6 Railroad Protective Liability. Developer 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 facilities or property. Such policy shall be effective during the period any construction is being performed within 50 feet of any railroad ROW. Coverage shall be written on Insurance Services Office occurrence Form CG 00 35 (or, with approval from the railroad requiring such insurance, substitute form providing equivalent coverage) on behalf of any railroad as a named Insured, with a limit specified by any railroad. 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -14-
5.3.7 Builder's Risk Insurance. Developer shall, upon commencement of construction, obtain and maintain a policy of builder’s risk insurance for the construction.
Coverage shall be written on an “all risk” basis and provided through a stand-alone policy dedicated solely to the Property. The insureds must include the contractor, all subcontractors (excluding those solely responsible for design work) of any tier, suppliers, and the Insured Party.
The policy must cover all property, roads, 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 portions or elements of the construction, 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 Property, in storage or in the course of transit to the Property and all improvements that are within the Property. 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, facilities, fixtures and all Properties (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 Property;
(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:
(i) Collapse;
(ii) Terrorism;
(iii) Earthquake;
(iv) Flood;
(g)
(h)
Plans, blueprints and specifications; and
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 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -15-
self-insured retentions must be the sole responsibility of Developer.
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.
Developer shall also require the general contractor and its subcontractors to procure and maintain (and shall ensure that they do procure 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, Developer shall provide evidence of “all risk” property insurance covering the improvements, with coverage sufficient to cover the probable maximum loss of such improvements and alterations made by Developer pursuant to the terms hereof, which must include “all risk” coverage using the ISO Causes of Loss - Special Form or (with approval from the Public Agencies) 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.
5.4 General Insurance Requirements.
5.4.1 Self Insurance/Deductible. The policy or policies under which coverage is provided by Developer may include a deductible or self-insured retention not in cumulative excess of ten million dollars ($10,000,000) on the condition that:
(a) Each insurance policy expressly provides that the
obligations of the policy issuer to the Insured Party an additional insured are not to be diminished in any way by Developer failure to pay its deductible or self-insured retention obligation for any reason;
(b) Developer provides a declaration under penalty of perjury by a Certified Public Accountant (CPA) acceptable to the Insured Party and who shall apply a Fiduciary Standard of Care, certifying the accountant has applied Generally Accepted Accounting Principles (GAAP) guidelines confirming that Developer has sufficient funds 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 (c) Developer 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.
5.4.2 Definition of “Self Insurance”. As used in this Section, “self insurance” means that Developer is itself acting as if it were the insurance company providing the insurance required.
5.4.3 Evidence of Insurance. Developer shall furnish evidence of insurance reasonably acceptable to the Insured Party before Developer commences physical construction within the Properties. Developer shall also provide the Insured Party with satisfactory evidence of renewal or replacement insurance no later than thirty (30) days after the expiration or 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -16-
termination of such insurance. Developer 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 Developer starting work on the Properties, including all subsequent renewal policies. Certificates of insurance are required for all other lines of insurance. If, through no fault of Developer, any of the coverage required becomes unavailable, Developer shall provide good faith alternative insurance packages and programs, subject to prior approval by the Public Agencies, with the goal of reaching agreement in good faith on a package providing coverage equivalent to that specified herein.
5.4.4 Additional Insured Coverage. All Developer policies including property, except those for Workers’ Compensation and Professional Liability insurance, must name the Insured Party as additional insured. Commercial General Liability policies must be endorsed by ISO Form CG 20 10 11 85, or if not available, then ISO Form CG 20 38, to name the Insured Party as additional insureds. With respect to general liability arising out of or connected with work or operations performed by or on behalf of Developer on the Property, 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 endorsements must not limit the scope of coverage for the Insured Party to vicarious liability but shall allow coverage for the Insured Party to the full extent provided by the policy. Insured Party means the Public Agencies and their directors, council members, officers, employees, contractors and agents.
5.4.5 Waiver of Subrogation Rights. To the fullest extent permitted by law, Developer hereby waives all rights of recovery under subrogation against the Insured Party, and any other tenant, contractor, subcontractor or sub-subcontractor performing work or rendering services on behalf of the Insured Party, in connection with the planning, development and construction of any improvements. To the fullest extent permitted by law, Developer shall require similar written express waivers and insurance clauses from each of its subcontractors of every tier.
Developer shall require all of the policies and coverages required in this Section to waive all rights of subrogation against the additional insureds (ISO Form CG 24 04 05 09). Such insurance and coverages provided must not prohibit Developer from waiving the right of subrogation prior to a loss or claim.
5.4.6 Eligible Insurers. If policies 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 rating of A-:X or better, unless otherwise approved in writing by the Public Agencies.
5.5 Coverage Amounts. All insurance coverage amounts hereunder shall be increased every five (5) years based on increases, if any, in the consumer price index. 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -17-
6. INDEMNITY.
6.1 Indemnity. Subject to the provisions of Section 6.2 below, Developer shall protect, indemnify, defend, and hold harmless the Public Agencies from and against all claims, demands, expenses, liabilities, losses, damages, and costs, including without limitation any actions or proceedings in connection therewith and reasonable attorneys’ fees related thereto, incurred in connection with, arising from, due to or as a result of the death of, or any accident, injury, loss, or damage, howsoever caused, to, any person or loss or damage arising as a result of Developer’s or Developer’s Permittees’ acts or omissions on or related to the Station Property, including without limitation, the Tunnel Easement Area as defined in the Grant Deed and the Temporary Construction Easement described in Section 4.2.4. Subject to the provisions of Section 6.2 below, the Public Agencies shall protect, indemnify, defend, and hold harmless the Developer from and against all claims, demands, expenses, liabilities, losses, damages, and costs, including without limitation any actions or proceedings in connection therewith and reasonable attorneys’ fees related thereto, incurred in connection with, arising from, due to or as a result of the death of, or any accident, injury, loss, or damage, howsoever caused, to, any person or loss or damage arising as a result of the Public Agencies’ or their Permittees’ acts or omissions on or related to the Surface Property.
6.2 General Provisions. Notwithstanding anything to the contrary in this Section 6, neither Party shall be entitled to indemnification for damage to the extent caused by or arising from its negligence or willful misconduct or the negligence or willful misconduct of its Permittees.
7. ENFORCEMENT AND REMEDIES. If any Party defaults in the performance of any obligation under this Agreement (“Defaulting Party” with respect to each individual instance of such default), and if such default remains uncured thirty (30) days after written notice from the other Party (“Nondefaulting Party” with respect to each such individual instance of such default), stating with particularity the nature and extent of such default, then Nondefaulting Party shall have the right to (i) perform such obligation on behalf of such Defaulting Party, (ii) be reimbursed by such Defaulting Party within thirty (30) days of written demand therefor, together with interest at the lesser of the rate of twelve percent (12%) per annum or the maximum rate permitted by law, and/or (iii) commence an action against the Defaulting Party for injunctive relief (including mandatory injunction or specific performance) and/or damages; and nothing in this Agreement, including without limitation the foregoing language and including that a cure period is provided and that a cure may timely occur, shall limit or be in denigration of the rights and remedies of the Nondefaulting Party, including the right to damages and/or other legal or equitable remedies or relief. The failure of the Nondefaulting Party to insist, in any one or more cases, upon the strict performance of any provision of this Agreement shall not be construed as a waiver of the future breach of such provision or any other provision of this Agreement.
8. APPROVALS AND DISPUTE RESOLUTION. Except as otherwise specifically provided herein, no approval shall be unreasonably withheld or delayed. If the Parties are not able to agree on any matter which is to be approved by Party or Parties pursuant to this Agreement, the matter shall, upon demand of any Party, be determined pursuant to the provisions set forth below.
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -18-
8.1 Meet and Confer. If the Parties are unable to resolve a dispute within ten (10) days of written notice of a dispute, the Parties will, at the written request of any Party, require that the matter be reviewed by a senior level executive of each Party (in the case of Developer, by a Senior Vice President or higher, and in the case of the Public Agencies, by the Assistant City Manager or higher or the Deputy Executive Director or higher, as applicable). If senior level executives cannot reach a resolution within ten (10) days of commencing their meet and confer then any Party may seek judicial resolution.
8.2 Costs. Each Party will bear its own costs, including attorneys’ fees, which it incurs. In the event the parties use a mediator or arbitrator, they will share equally in the costs of the mediator's services.
9. REVERSIONARY RIGHT.
9.1 Reversionary Right. Reference is hereby made to the reversionary right of the Public Agencies with respect to the Station Property as set forth in Section 5.2.2 of the DDA.
With respect to such reversionary right, as a matter of clarification, the Parties agree that, if the Public Agencies repay the amount set forth in Section 5.2.2 of the DDA, and there is any secured loan or lien encumbering the Station Property, then the amount paid shall be paid to the secured lender or lienholder to the extent necessary to require a reconveyance/release of the applicable deed of trust or other lien under California law. Additionally, the reversionary right shall no longer apply following the completion of the required improvements set forth in the DDA by Developer and commencement of revenue service on the high speed rail line from the HSR Station.
10. RIGHT OF FIRST NEGOTIATION.
10.1 First Negotiation. If the Public Agencies elect to sell all or a portion of the Surface Property (which shall be subject to easements and/or licenses provided to Developer), or the Public Agencies receive a bona fide offer to buy all or a portion of the Surface Property from a purchaser which is acceptable to the Public Agencies, Developer shall have the right of first negotiation to purchase the Surface Property from the Public Agencies pursuant to the following terms and conditions:
10.1.1 Sale Notice. If the Public Agencies elect to sell all or a portion of the Surface Property, the Public Agencies shall first notify Developer (or its successor owner of the Station Property) in writing before the Surface Property (or such portion) becomes available for sale to third parties, or if the Public Agencies receive the bona fide offer described above, the Public Agencies shall notify Developer that the Public Agencies have received such an offer (“Sale Notice”). Pursuant to such Sale Notice, the Public Agencies shall then negotiate with Developer to sell the Surface Property (or such portion) to Developer. The Sale Notice shall set forth the proposed economic terms (including, without limitation, purchase price) and conditions upon which the Public Agencies are willing to sell the Surface Property (or such portion) (collectively, the “Economic Terms”).
10.1.2 Procedure for Acceptance. If Developer wishes to exercise Developer’s right of first negotiation, then within ten (10) business days of the delivery of the Sale Notice to Developer, Developer shall deliver a written notice to the Public Agencies of 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -19-
Developer’s exercise of its right of first negotiation, whereupon the Public Agencies and Developer shall then negotiate the terms of the sale for a period of sixty (60) days (“Negotiation Period”). Developer must elect to exercise its right of first negotiation to purchase all of the Surface Property offered (not less than what is offered). If Developer does not so notify the Public Agencies within the ten (10) business day period, or terms acceptable to the staff of the Public Agencies (which they would recommend to decision-makers for approval) are not reached during the Negotiation Period, then the Public Agencies shall be free to sell the portion of the Surface Property offered to Developer to anyone the Public Agencies desire on any terms the Public Agencies desire, and Developer shall no longer have any right to purchase such portion of the Surface Property; provided, however, if the Public Agencies desire to sell such portion of the Surface Property (i) for less than ninety percent (90%) of the purchase price, or (ii) later than the date which is one year after the Negotiation Period, then the Public Agencies shall be obligated to give another Sale Notice to Developer in accordance with the terms of this Section 10.1.1 above.
10.1.3 Agreement. If Developer and the Public Agencies agree on the terms of Developer’s purchase of the Surface Property (or a portion thereof), then the Public Agencies and Developer shall, within ninety (90) days thereafter, execute a purchase agreement upon which Developer shall agree to purchase the Surface Property (or a portion thereof) with the following terms: (a) Developer shall complete its due diligence review of the Surface Property within thirty (30) days following the date of the purchase agreement, (b) the close of escrow under the purchase agreement shall not occur later that thirty (30) days following expiration of the due diligence period, and (c) all remaining terms of the purchase and sale of real property that are in the DDA and not specified in this Section 10.1 shall apply to the purchase and sale transaction.
11. TRAFFIC SIGNAL IMPROVEMENTS AND MAINTENANCE/REPAIR.
11.1 Azusa Court/Milliken Avenue Intersection. Developer shall construct a traffic signal and associated intersection improvements at the intersection of Milliken Avenue and Azusa Court (“Intersection”) as part of the development and operation of the HSR Station.
11.2 Milliken Avenue/Station Property Driveway. Developer intends to utilize a right-in, right-out movement at the driveway entrance to the Station Property from Milliken Avenue (“Driveway”) as part of the development and operation of the HSR Station. With this configurations, the City is not requiring a traffic signal to control traffic at the Driveway.
However, Developer may not utilize a left-in, left-out movement at the Driveway unless and until a fully signalized T-intersection is constructed and installed at the Driveway in accordance with Section 11.4, unless otherwise agreed to by the City.
11.3 Anaheim Place/Azusa Court Intersection and Azusa Court/Surface Property Driveway. Developer completed a traffic study to determine whether any additional traffic improvements are required at the intersection of Anaheim Place and Azusa Court and at the driveway entrance to the Surface Property from Azusa Court. The study concluded that no traffic signal is required at the intersection and that a two-way stop and added turn lanes will handle the traffic flow in the area and the driveway entrance. Developer shall construct and install the recommended traffic improvements in the traffic study prior to opening passenger service operation at the HSR Station. The City shall process the permits for such improvements in accordance with the process set forth in Section 11.3.
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -20-
11.4 Permitting Process for Traffic Improvements. Prior to beginning design of any traffic improvements, Developer’s engineer shall meet with the City Engineer’s traffic engineering staff to determine the appropriate design approach and operational characteristics for each traffic improvement. Developer will submit to the City a complete “Right-of-Way Application,” including plans and specifications (the “Application”) for approval of the construction and installation of each traffic improvement. The City will fairly and, in accordance with the City’s customary practices, promptly process (i) the Application within one hundred twenty (120) calendar days of receipt of the Application from Developer (or its agents, representatives, or designees) and all additional applications by Developer (or its agents, representatives, or designees) for City permits necessary for the construction and installation of each traffic improvement, including not limited to, any requisite construction permits, grading permits, building permits, mechanical permits, electrical permits, drainage permits, permits, and requests for inspections and approvals. The City reserves all rights and inherent duties in processing the Application to conduct a good faith review of the Application and to perform its obligation to not approve an incomplete Application if the Application is missing required technical information or is not in compliance with permit approval requirements. The City agrees to promptly notify Developer in writing of any incomplete items, missing information, and the City permit requirements. Developer shall construct and install all traffic improvements in accordance with then existing City standards. Provided the traffic improvements are accepted and completed in accordance with the foregoing (including applicable permits), the City agrees to accept and maintain all traffic improvements once complete.
12. USE OF CITY-OWNED PROPERTY. Developer and the Public Agencies cooperatively negotiated the DDA and associated easements to facilitate the development of the HSR Station. As a result thereof and as of the effective date of this Agreement, Developer acknowledges that the only City-owned property to be used for the HSR Station and any related facilities is identified in the DDA. Except as expressly set forth otherwise in the DDA, Developer shall not use or attempt to use the following City-owned property for transit uses as part of the initial development of the HSR Station without the prior written consent of the City in its sole and absolute discretion: (1) the Transit Center described in Exhibit C; (2) the Milliken Site; (3) the City-owned property adjacent to the I-15 Freeway and identified as APNs 0229-021-81-0000 and 0229-021-80-0000; and (4) property to be dedicated to the City for public use within the area governed by the Resort Specific Plan on the now-closed Empire Lakes Golf Course located north of Sixth Street, south of the BNSF/Metrolink rail line, west of Milliken Avenue, and east of Utica/Cleveland Avenues. Developer further acknowledges and agrees that if it needs additional City-owned property as part of the initial development of the HSR Station, it shall cooperatively negotiate directly with the City regarding the acquisition of such additional property. The foregoing shall not constitute a waiver of Developer’s condemnation powers beyond the initial construction of the HSR Station (i.e., does not limit future use for expansions or reconstruction after the initial HSR Station is constructed and operational).
13. PUBLIC ART. If Developer receives approval of the Consolidated Rail Infrastructure and Safety Improvements grant (“Grant Approval”), Developer shall design, procure, fabricate, and install public art on the exterior facade of the parking garage as part of the HSR Station subject to the reasonable approval of the City (“Art Installation”), in an amount equal to 1.5% of the amount of such Grant Approval, not to exceed One Million Five Hundred Thousand Dollars ($1,500,000.00). If the City desires to enhance the design, procurement, fabrication or 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -21-
installation costs beyond Developer’s funding commitment as outlined above, the City shall be responsible for any such additional costs. If Developer does not receive Grant Approval, Developer shall have no obligation to install the Art Installation or bear any costs relating thereto; provided, however, Developer shall include in the design of the HSR Station the future potential installation of the Art Installation by the City and shall reasonably cooperate, at no out-of-pocket cost to Developer, with the City regarding with the design, fabrication and installation of the Art Installation.
14. MISCELLANEOUS.
14.1 Notices. Except as otherwise provided herein, notice to be given to a Party must be in writing and may be delivered to the Party by nationally reputable overnight courier, charges prepaid, or by certified mail, return receipt requested, to the address below (or alternative address subsequently noted by such Party). Such notice is deemed delivered the first business day after delivery to such courier or, if sent by certified mail, the date of delivery or refusal to accept delivery or inability to deliver shown on the return receipt. A party may change its address(es) for notices by a notice given pursuant to this Section.
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 & Rail Programs
With a copy to SBCTA General Counsel
At the SBCTA address above
Developer: DesertXpress Enterprises, LLC
8329 W. Sunset Road, Suite 150
Las Vegas, NV 89113
Attn: President
With a copy to Developer’s Legal Department
At the Developer address above
14.2 Interpretation. This Agreement is not intended to create, nor shall it be construed to create, a joint venture, a partnership, or any other similar relationship among any of the parties. The captions of the various provisions of this Agreement are for convenience and identification only and shall not be deemed to limit or define the contents thereof. Any references to “Section” or “Sections” contained in this Agreement shall refer to that “Section” or those “Sections” contained in this Agreement. This Agreement shall be construed in accordance with the laws of the State of California. Time is of the essence in this Agreement. 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -22-
14.3 Entire Agreement. This Agreement supersedes all prior written or verbal representations or declarations of the parties with respect to the subject matter hereof. For the sake of clarity, the subject matter of the Reserved Easements are separate and distinct from this Agreement and, as such, this Agreement does not apply to, cover or address the Reserved Easements. In the event of any conflict or inconsistency, the Reserved Easements shall control.
14.4 Amendments. No addition, modification, amendment or waiver of any part of this Agreement shall be binding or enforceable unless executed in writing by the Parties and recorded in Official Records.
14.5 Remedies Cumulative. All remedies provided in this Agreement are cumulative. Therefore, notwithstanding the exercise by a Party of any remedy hereunder, such Party shall have recourse to all other remedies as may be available at law or in equity. The failure of a Party to insist upon strict performance of any provision of this Agreement shall not be deemed a waiver of any rights or remedies that such Party may have and shall not be deemed a waiver of any subsequent breach or default of any provision hereof by the same or any other Party.
14.6 Covenants Running with Land. The covenants contained in this Agreement shall constitute covenants running with the land; shall be binding upon, and shall inure to the benefit of and appurtenant to, the Station Property, the Surface Property, and any portion thereof or interest therein; and shall be binding upon, and shall inure to the benefit of, the Developer, City, SBCTA and any person having or acquiring any interest therein and their successive owners and assigns.
14.7 Recordation; Effective Date. This Agreement shall be recorded in the Official Records and shall be effective upon the date thereof.
14.8 Estoppel Certificate. Each Party to this Agreement shall endeavor to issue to the requesting Party, or to any prospective purchaser of such requesting Party’s parcel, within fifteen (15) days after the written request of any other Party, but in all events prior to thirty (30) days after such written request, an estoppel certificate stating (i) whether the Party to whom the request has been directed knows of any default under this Agreement and, if there are known defaults, specifying the nature thereof, (ii) whether this Agreement has been modified or amended in any respect and specifying the nature thereof, and (iii) whether this Agreement is, at that time, in full force and effect.
14.9 Mechanics’ Liens. If a Party to this Agreement (the “Responsible Party”) shall permit any mechanics’ liens to be filed against another Party’s parcel (an “Affected Party”), the Responsible Party shall either pay the same and have it discharged of record promptly, or take such action as may be required to reasonably and legally object to such lien and the placing of same against such Affected Party’s parcel. In all events, the Responsible Party shall cause the lien to be discharged prior to the entry of judgment for foreclosure of such lien. Upon request of an Affected Party, the Responsible Party shall furnish such security, bond or indemnity to and for the benefit of such Affected Party as may be required to permit a title endorsement or title policy to be issued relating to such Affected Party’s Parcel without showing thereon the effect of such lien. 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -23-
14.10 Duration. Unless terminated by agreement of the Parties, including without limitation execution, acknowledgement and recording in the Official Record of an instrument confirming or otherwise reflecting such termination, this Agreement and each term, easement, covenant, restriction and undertaking contained herein will remain in effect for a term of ninety-nine (99) years following recordation hereof and will automatically be renewed for successive ten (10) year periods thereafter. Termination of this Agreement shall not discharge or excuse any unpaid obligation, and the rights and remedies for collection of any unpaid obligation shall survive the Agreement’s termination. Notwithstanding any election by the Parties to terminate this Agreement, each easement created hereby which benefits the Station Property and/or the Surface Property and its respective owner or owners and Permittees shall be deemed to exist in perpetuity unless it is quitclaimed, or otherwise terminated and extinguished by each Party benefited by such easement. Any Party may request that such easement be documented by separate documentation in the event of a termination of this Agreement.
14.11 Severability. If any clause, sentence, or other portion of this Agreement shall become illegal, null, or void for any reason, or shall be held by any court of competent jurisdiction to be so, the remaining portions thereof shall remain in full force and effect.
14.12 Governmental Powers. Nothing in this Agreement shall be construed as a waiver or modification of any governmental rights or powers of the Public Agencies.
14.13 Force Majeure. Provided that the Party or Parties claiming such delay gives written notice to the other Party or Parties of the nature of the cause of delay within ten (10) business days after the inception of the delay, and not otherwise, if any Party or Parties shall be delayed or hindered in or prevented from the performance of any construction or maintenance obligation required to be performed by such Party or Parties under this Agreement by reason of acts of God, natural disaster (including earthquake, hurricane, flood or severe prolonged adverse weather conditions), the outbreak of a pandemic virus or other pandemic disease, strikes, lockouts, unavailability of materials, failure of power, governmental laws or regulations, a declaration of a national, state or local emergency, directives or orders by a Governmental Authority (including orders by the federal Centers for Disease Control or its successor, or any state, county, or local public health department), riots, insurrections, adverse weather conditions preventing the performance of work as certified to by the licensed architect, engineer, or other individual overseeing the performance of the relevant work, war or other reason beyond such Party’s or Parties’ control, then the time for performance of such act shall be extended for a period equal to the period of such delay. Lack of adequate funds or financial inability to perform is not and shall not be deemed to be a cause beyond the control of a Party or Parties.
14.14 Effect of Agreement; Binding Covenants; Equitable Servitudes. Except as otherwise expressly provided herein, no rights or privileges conferred by this Agreement upon the Parties hereto shall inure to the benefit of any Permittee or other person or entity other than the Developer, City, SBCTA, or their respective successors and assigns, nor shall any such other person be deemed to be a third-party beneficiary of any of the provisions contained herein. Each and all of the restrictions, covenants, and easements of this Agreement (i) shall constitute equitable servitudes which shall apply to and be binding on the Parties hereto and each and all of their respective successors, assigns, and Permittees; and (ii) are imposed pursuant to a general plan for 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -24-
the improvement and use of the HSR Station and are designed for the mutual benefit of the Parties to this Agreement.
14.15 Time of Essence. Time is of the essence of every provision hereof in which time is a factor.
14.16 City Manager Authority. The City Manager of the City may give all approvals and make all elections described herein on behalf of the City provided they are in writing.
[SIGNATURES ON FOLLOWING PAGE]
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -25-
The Parties have executed this Agreement as of the date first written above.
DEVELOPER: CITY:
DESERTXPRESS ENTERPRISES, LLC,
a Nevada limited liability company
CITY OF RANCHO CUCAMONGA
By:
L. Dennis Michael Mayor
By: APPROVED AS TO LEGAL FORM:Sarah Watterson, President APPROVED AS TO LEGAL FORM: _____________________________ Nicholas Ghirelli, City Attorney
_____________________________
David M. Pickett,
Associate General Counsel
SBCTA:
SAN BERNARDINO COUNTY
TRANSPORTATION AUTHORITY
By:
Art Bishop,
Board President
APPROVED AS TO LEGAL FORM:
_______________________________
Julianna K. Tillquist, General Counsel
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -26-
NOTARY ACKNOWLEDGEMENTS
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,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument 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.
(Seal)
Signature
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,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument 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.
(Seal)
Signature
NOTARY ACKNOWLEDGEMENTS
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -27-
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,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument 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.
(Seal)
Signature
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,
(here insert name and title of the officer)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument 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.
(Seal)
Signature
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf -28-
EXHIBIT A
LEGAL DESCRIPTION OF STATION PROPERTY
[See Attached]
EXHIBIT A
-1-
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf
EXHIBIT ‘A1’
Legal Description of the Station Property
APN: 0209-272-11, 0209-272-22, & 0209-143-21
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 SANBAG (formerly A.T. & S.F.) Railroad Right-of-Way, as shown on said Parcel Map, filed in the Office of said County Recorder, within Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, 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 568.51 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 northwesterly, 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; Preliminary
05/23/2024 11:38:22 AM Page 1 of 2
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 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; Excepting therefrom only that certain eight-foot-high parcel described in Exhibit B1 attached hereto.
Parcel contains 225,143 square feet, more or less.
See Exhibits ‘A2’ 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: ____________________
Preliminary
05/23/2024 11:38:26 AM
Preliminary
described
05/23/2024 11:38:27 AM
EXHIBIT B
LEGAL DESCRIPTION OF SURFACE PROPERTY
[See Attached]
EXHIBIT B
-1-
4877-5650-6677.28
378683.00002/4-12-24/amc/mrf
EXHIBIT ‘B1’
Legal Description of the Surface Property
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, within Section 13, Township 1 South, Range 7 West, San Bernardino Meridian, described as follows:
That certain 8-foot-high portion of land, of the real property described herein, being the air space above the above-described land, bounded above by a horizontal plane 8 feet above the highest ground surface elevation, and as depicted in Exhibit B3; 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 220.19 feet;
Thence South 90°00’00” West 10.47 feet to the Point of Beginning; Thence South 90°00’00” West 248.00 feet;
Thence South 00°00’00” East 348.75 feet;
Thence North 90°00’00” East 248.00 feet;
Thence North 00°00’00” East 348.75 feet to the Point of Beginning.
Preliminary Page 1 of 2
05/22/2024 7:32:39 AM
Parcel contains 86,490 square feet, more or less.
See Exhibits ‘B2’ and ‘B3’ 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: ____________________
Preliminary
04/16/2024 3:50:51 PM
Preliminary
04/16/2024 3:50:53 PM
Preliminary
02/26/2024 5:04:10 PM
EXHIBIT ‘C-1’ TO CC&Rs
DESCRIPTION AND DEPICTION OF THE ADJACENT TRANSIT CENTER 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” East 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 ‘C-2’ attached hereto and made a part hereof.
Preliminary
05/13/2024 11:04:12 AM
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: ____________________
Preliminary
05/13/2024 11:04:19 AM
C-2
Preliminary
05/23/2024 10:38:23 AM
TABLE OF CONTENTS
Page
DEFINITIONS..................................................................................................................21.
1.1 1.2
1.3 1.4
1.5 1.6
1.7 1.8
1.9 Agreement.............................................................................................................2 City........................................................................................................................2 Developer Permittee..............................................................................................3 DDA......................................................................................................................3 HSR Station ..........................................................................................................3 Metrolink...............................................................................................................3 Official Records....................................................................................................3 Party......................................................................................................................3 Permittee ...............................................................................................................3
1.10 Properties ..............................................................................................................3
1.11 Public Agencies Permittee....................................................................................3
1.12 SBCTA..................................................................................................................3
1.13 Station Property ....................................................................................................4
1.14 Surface Property....................................................................................................4
1.15 Transit Center........................................................................................................4 USE RESTRICTIONS......................................................................................................42.
3. 2.1
2.2 Use Restriction......................................................................................................4 No Interference .....................................................................................................4 MAINTENANCE AND OPERATIONAL OBLIGATIONS...........................................5
3.1 3.2
3.3 3.4
Maintenance and Repair .......................................................................................5 Cooperation...........................................................................................................5 Operation of HSR Station.....................................................................................5 Modifications After Initial Construction ..............................................................5 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf (i)
Page
EASEMENTS...................................................................................................................54.
5. 4.1
4.2 Easements for the Benefit of the Surface Property...............................................5 Easements for the Benefit of the Station Property................................................5 INSURANCE....................................................................................................................6
5.1 5.2
5.3 5.4
Insurance Requirements........................................................................................6 Insurance During Construction.............................................................................7 General Insurance Requirements........................................................................12 Coverage Amounts..............................................................................................13
6. INDEMNITY..................................................................................................................13
6.1 6.2
Indemnity............................................................................................................13 General Provisions..............................................................................................13
7. 8.
ENFORCEMENT AND REMEDIES ............................................................................14 APPROVALS AND DISPUTE RESOLUTION............................................................14
8.1 8.2
8.3 8.4
8.5 Dispute Resolution..............................................................................................14 Meet and Confer .................................................................................................14 Mediation............................................................................................................14 Admissibility.......................................................................................................14 Costs....................................................................................................................15
9. REVERSIONARY RIGHT ............................................................................................15
9.1 Reversionary Right .............................................................................................15
10. 11.
RIGHT OF FIRST NEGOTIATION..............................................................................15
10.1 First Negotiation .................................................................................................15 MISCELLANEOUS .......................................................................................................16
11.1 Davis-Stirling Act, Commercial and Industrial Common Interest Development Act Inapplicable ...........................................................................16 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf (ii)
Page
11.2 Notices ................................................................................................................16
11.3 Interpretation.......................................................................................................17
11.4 Entire Agreement................................................................................................17
11.5 Amendments .......................................................................................................17
11.6 Remedies Cumulative.........................................................................................17
11.7 Covenants Running with Land............................................................................17
11.8 Recordation; Effective Date................................................................................17
11.9 Estoppel Certificate.............................................................................................17
11.10 Mechanics’ Liens................................................................................................17
11.11 Duration ..............................................................................................................18
11.12 Severability .........................................................................................................18
11.13 Attorneys’ Fees; Court Costs..............................................................................18
11.14 Force Majeure.....................................................................................................18
11.15 Effect of Agreement; Binding Covenants; Equitable Servitudes .......................18
11.16 Boundaries of Parcels .........................................................................................19 4877-5650-6677.28
378683.00002/4-12-24/amc/mrf (iii)