CITY OF SAN BERNARDINO
RIGHT OF ENTRY AGREEMENT
This Right of Entry Agreement (Right of Entry") is entered into this _ day of _ 2023, by the CITY OF SAN BERNARDINO, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (referred to herein as "GRANTOR") and BNSF Railway Company, a Delaware corporation ("BNSF"), referred to herein as "GRANTEE". GRANTOR and GRANTEE are sometimes individually referred to as "Party" and collectively as "Parties."
RECITALS
GRANTOR is the owner of certain real property locations, including public rights-of-way, within the City of San Bernardino, State of California, generally known as "Project Locations T101-T110" and may also be referenced by the corresponding Assessor Parcel Numbers nearest to the individual project location, as further described in Exhibit "A" attached hereto and incorporated herein (the "Property").
B. GRANTOR and GRANTEE entered into that certain Agreement Guaranteeing Completion of Conditions of Approval and Securing Maintenance Obligations (the "Completion Agreement") which requires GRANTEE to carry out SETT certain maintenance and improvement obligations associated with the City of San Bernardino Street Vacation 15.30-434, also known as the BNSF ONO Lead Track Extension Project (the "Project"). The Project is further described in the Completion Agreement attached hereto as Exhibit "B" and incorporated herein.
GRANTEE desires to obtain GRANTOR's permission to enter onto the Properties, on a temporary basis, for the purpose of completing the Project.
D. The Parties wish to enter into this Right of Entry Agreement whereby GRANTOR will allow GRANTEE to enter onto the Property, on a temporary basis, for the above stated purpose.
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
Right of Entry. GRANTOR hereby grants to GRANTEE and its agents, employees and contractors the temporary non-exclusive right to enter onto the Property solely for the Project; provided, however, that GRANTEE's use of the Property permitted hereunder shall not interfere with the reasonable use and enjoyment thereof by GRANTOR or any tenants, occupants or persons claiming through or under GRANTOR; and provided further that all persons who enter upon the Property pursuant to this Right 30316343/200017.0001
of Entry do so at their own risk and shall comply with any and all instructions and directions of GRANTOR.
2. Term. The term of this Right of Entry Agreement shall commence on the date of the last signature on this Right of Entry, assuming that the Right of Entry is executed by all the Parties hereto ("Effective Date"). This Right of Entry shall automatically terminate on _ 2028.
Indemnification. To the fullest extent permitted by law, GRANTEE, its contractors, consultants, subcontractors, subconsultants, materialmen, suppliers, workers, successors, and assigns (collectively, the "Grantee Parties") shall, and hereby does, agree to indemnify, defend, and hold harmless GRANTOR; and its elected and appointed officials, officers, directors, employees, agents, volunteers, successors, representatives, and assigns (collectively, the "Grantor Parties"), from and against all damages, claims, liabilities, settlements, penalties, tines, costs, expenses, losses, or attorney and consultant fees and costs (collectively "Damages") incurred by GRANTOR to the extent that the same arise or result from or are caused by the negligent acts or omissions of the Grantee Parties in connection with their use of this Property or the Project and/or in connection with the exercise of any other rights granted by this Right of Entry with respect to the Property or any part thereof; provided, however, that GRANTEE shall not be obligated to indemnify, defend, or hold harmless the Grantor Parties from and against any Damages to the extent that such Damages are caused by the sole negligence or willful misconduct of the Grantor Parties. Grantee's indemnification obligation herein shall include, without limitation, the following: 1) any and all claims under workers' compensation acts and other employee benefit acts with respect to GRANTEE's employees or GRANTEE's consultant's employees arising out of the Project, 2) liability for damages for death or bodily injury to person, (3) injury to, loss or theft of property; and 3) any failure or alleged failure to comply with any provision of law.
Authority to Enter Agreement. GRANTOR warrants that it is the owner of the Property and that the undersigned is authorized to grant GRANTEE permission to enter onto the Property for the use specified in this Right of Entry. GRANTEE hereby warrants that the undersigned is authorized to execute this Right of Entry on behalf of GRANTEE.
5. Liens. GRANTEE shall not permit to be placed against the Property, or any part thereof, any design professionals', mechanics', materialmen's contractors' or subcontractors' liens with regard to GRANTEE's actions upon the Property. GRANTEE agrees to hold GRANTOR harmless for any loss or expense, including reasonable attorneys' fees and costs, arising from any such liens which might be filed against the Property.
6. Compliance with Laws/Permits. GRANTEE shall, in all activities undertaken pursuant to this Right of Entry, comply and cause its contractors, agents and employees to comply with all federal, state and local laws, statutes, orders, ordinances, rules, regulations, plans, policies and decrees. Without limiting the generality of the foregoing, GRANTEE, at its sole cost and expense, shall obtain any and all permits which may be 2 30316343/200017.0001
required by any law, regulation or ordinance for any activities GRANTEE desires to conduct or have conducted pursuant to this Right of Entry.
7. Inspection. GRANTOR and its representatives, employees, agents or independent contractors may enter and inspect the Property or any portion thereof or any improvements thereon at any time and from time to time at reasonable times to verify GRANTEE's compliance with the terms and conditions of this Right of Entry.
8. Not Real Property Interest. It is expressly understood that this Right of Entry is not exclusive and does not in any way whatsoever grant or convey any permanent easement, lease, fee or other interest in the Property to GRANTEE.
Revocable Licenses and Termination. Notwithstanding any sums expended by GRANTEE in furtherance of this Right of Entry, the right of entry granted herein is revocable and may be terminated by GRANTOR in accordance with the terms of this Right of Entry. In cases of an emergency or a breach of this Right of Entry, this Right of Entry may be terminated immediately.
10. Restoration of the Property. Upon the termination or revocation of this Right of Entry, GRANTEE shall, at its own cost and expense, restore the Property to the same condition in which it was prior to GRANTEE's entry. In case GRANTEE shall fail to restore the Property to its prior condition within thirty (30) business days after the effective date of the termination, the GRANTOR may proceed with such work at the expense of GRANTEE.
11. Insurance. GRANTEE shall comply with the insurance provisions attached hereto as Exhibit "C" and incorporated herein.
12. Entire Agreement. This Right of Entry is the result of negotiations between the Parties. This Right of Entry is intended by the Parties as a full and final expression of their understanding with respect to the matters contained in this Right of Entry.
13. Amendment; Modification. No supplement, modification, or amendment of this Right of Entry shall be binding unless executed in writing and signed by both Parties.
14. Attorneys' Fees, Governing Law, Venue. In the event of a dispute between the Parties with respect to the terms or conditions of this Right of Entry, the prevailing Party shall be entitled to collect from the other its reasonable attorneys' fees as established by the judge or arbitrator presiding over such dispute. This Right of Entry shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
15. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
3 30316343/200017.0001
16. Counterparts. This Right of Entry may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
SIGNATURE PAGE FOR RIGHT OF ENTRY AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND BNSF RAILWAY COMPANY
IN WITNESS WHEREOF, the Parties hereto have executed this Right of Entry on the date first written above.
GRANTOR GRANTEE
CITY OF SAN BERNARDINO BNSF RAILWAY COMPANY
APPROVED BY:
Signature
Bill Gallardo
Interim City Manager
Name
ATTESTED BY:
Title
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
4 30316343/200017.0001
EXHIBIT A
DESCRIPTION/ DEPICTION OF PROPERTY
30316343/200017.0001
THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING EAST TO BARSTOW, CA WEST TO SAN BERNARDINO.CA,
CASINO MAIN
, EXISTING MAIN 1-
PROPOSED ONO LEAD TRACK
PRUNIMATE LOCATRAY
OF EXISTING BRIDGE PIER
EXISTING BNSF ROW
EXISTING CROSS OVER TO BE REMOVED
15' TRACK CENTERS
CAJON EL VO,
TURNOUT PAR
SOFT FROMEXISTING MAN 1 right of entry to
MEDICAL CTR DR *25-FT FROM PROPOSED ONO LEAD
SEE SHEET X105 FOR REFERENCE
NO. 20 RH PVR TO
CONSTRUCTION LIMITS STA 194•49.99 - MP 78.15
EXISTING BNSF R.O.W NO. 20 UH PWR TO STA 195+49. 99 - MP 78.20
SIGNAL BUNGALOW
IN OISTANCE • 29.7° FROM E OF PROPOSEO END PAD CONSTR
EXHIBIT A
EXISTING MAIN 1
TOP OF RAIL
L SCALE IN FEET
NOTES
-ONO LEAD -51X: 185960.35
1250 1250
190-R0.78 a20 T.O. POS
PROPOSED
CRO LEAD TRAC IN- STA- 302401
ONO LEAD - STA 192+76.1 194+50.1
.1240; 420 1.0. ULT 1240..
j0 T0 POS MAIN - STA 183/22.3
EXISTING GROUND AT
¿ PROPOSED ONO LEAD
PT=106+00.00
1230 1230
1257.4 : 12556. 258.7 12400 112412 12090 1205-
182+00 183-00 184+00 185+00 186÷00 187+00 188+00 189400 191+00 192+00 193-00 194-00 195400 195100
NOT FOR CONSTRUCTION
CHE: M8 ONO LEAD TRACK EXTENSION SEAL
TRACK PLAN & PROFILE
RAILWAY LINE SEGMENI /OUL
(MP 76.54 - MP 80.61) STA: 183+22,3 TO 197+00 T101
THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING EAST TO BARSTOW, CA WEST TO SAN BERNARDINO. CA
, EXISTING MAIN 2 -
EXISTING MAIN 1*
PROPOSED ONO LEAD TRACK
MT VERNON AVE
/MP 78.27 SEE DRAINASE SHEE TO
4 EXISTING BNSF R.O.W
IS TRACK CENIER:
CAJON BLVD
tart of entry to instant
EXISTING BNSF R.O.W
EDGE SUBBALLAST
WESTERN AVEN L-121.30
CONSTRUCTION LMITS
EXISTING BRIDGE PIER
MIN DISTANCE - 19.6 FROM & OF PROPOSED
PER MATRA/ CRASH ARE I OF ADVE
1230
- EXISTING MAIN 1
... TOP OF RAIL
NOTES
TOP OF RAI , 1220
51129112
1.00% 1002 vC
PI-21Q150.00
1210 10000 1210
EXISTING GROUND AT
€ PROPOSED ONO LEAD
1200 1200.
1190002 1293.1 212 80 211.2 12190.
197+00 198-00 199+00 200+00 201+00 202+00 203+00 204÷00 205+00 206+00 207+00 209-00 209-00 210+00 211400.
NOT FOR CONSTRUCTION
ONO LEAD TRACK EXTENSION
TARAN CAJON SUBDIVISION TRACK PLAN & PROFILE
LINE SEGMENI YOUU
(MP 76.54 - MP 80.61) STA: 197+00 TO 212+00 T102
THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF NSF SYSTEM ENGINEERING EAST TO BARSTOW, CA WEST TO SAN BERNARDINO. CA,
EXISTING SECURITY WALL TO REMAN
NEW 30° CULVERT
IN 40° CASING PIPE
SEE DRAINAGE PLANS.
EXISTING MAIN 3
CASTING MAIN &
CASTRO SP
PROPOSEU ONU LEAD TRACK
EXISTING BNSF R.O.W
MORAND AVE
PROPOSED BNSF ROW
TEMPORARY GRADING
EASEMENT
EXISTING CRASH WALL EATING FENCE TO
VIN DISTANCE - 13.3 FROM Y OF PROPOSED
EDGE SUBBALLAST
CONSTRUCTION UMITS
.. 1210
TOP OF RAIL
LAL SCALE MA FET
NOTES
1200. , 1200
+ -770815
1190 1190
PT=221÷38.1- EL-118528
EXISTING GROUND AT
E PROPOSED ONO LEAD
1180 1180
1.18%
1200- 119455 190.5 1780.2 1720 251170
212+00 213-00 214+00 215+00 216+00 217+00 218+00 219+00 220+00 221+00 222+00 223400 224÷00 225+00 226-00 227000
NOT FOR CONSTRUCTION
ONO LEAD TRACK EXTENSION
MEN: CAJON SUBDIVISION
TRACK PLAN & PROFILE
LINE SEGMENI YOUU - 103
(MP 76.54 - MP 80.61) STA: 212+00 TO 227+00
EAST TO BARSTOW. CA THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING WEST TO SAN BERNARDINO, CA
CAST MAS
EXISTING MAIN 2
EXISTING MAIN 1
PROPOSED ONO LEAD TRACK
1S TRACK CENTERS
EXISTING BASE RON
PROPOSED SOUND WALL
CONCRETE CHANNEL EDGE SUBBALLAST
BEGIN STA: 232+86.64
PROPOSED BNSF ROW
NEW SECURITY FENCE, MATCH SOUND WAL ME AGE IT
PROPOSED SOUND WALL
21000
EXISTING CRASH WALL
IN DISTANCE • 22.8 FROM € OF PROPOSED CONSTRUCTION LIMITS LEND TRAUR TO PAGE bE CRASH WALL
ROOSED RON
1190., 1190.
10 CATICAL SCALE N FET
NOTES
1180 L1180
C-229+88.18 01=720+FA+ CASING MAIN
• PROSED NO LEAD TRACK
1170 1170.
1=240+18.1
1160
EXISTING GROUND AT
¡ PROPOSED ONO LEAD
1150 g 1120- 17.00 116.2 165.5 1166.60 ฿ 11500
227+00 228-00 229+00 230+00 231+00 232+00 233+00 234÷00 235+00 236+00 237+00 238+00 239-00 240+00 241÷00 242÷00.
NOT FOR CONSTRUCTION
ONO LEAD TRACK EXTENSION
BALAN CAJON SUBDIVISION TRACK PLAN & PROFILE
LINE SEGMENI YOUU STA: 227+00 TO 242+00 - 7104
(MP 76.54 - MP 80.61)
THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING EAST TO BARSTOW. CA WEST TO SAN BERNARDINO. CA,
PROPOSED ONO LEAD TRACK CURVE F2
EXISTING MAN 1S D-217
EXISTING MAIN 2
EXISTING BNSF ROW
EDGE SUBBALLAST
/CONSTRUCTON LIMITS MUS
PROPOSED BNSF ROW
IS SINVA consPud
SE NUTCAL PLAN SET NEW SECURITY FENCE, MATCH SOUND VAND 12 ACCESS AT
EXISTING BRIDGE PIER
LEAD TRACK TO FACE OF BRIDGE MIER
REQUIRED BASED ON CURRENT ALIGNUENT
EXISTING MAN 1
GONSAL SCALE REFER _... 1160.
NOTES
1150 1150
EXISTING GROUND AT
€ PROPOSED ONO LEAD
1140 1140...
1130_
- 100 150. 1241
242-00 243-00 244+00 245+00 246+00 247400 248+00 249+00 250+00 251+00 252+00 253÷00 254-00 255+00 256+00 257+00
NOT FOR CONSTRUCTION
ONO LEAD TRACK EXTENSION
MEN: CAJON SUBDEVISION
TRACK PLAN & PROFILE CRAMNG NO.
LINE SEGMENI YOUU
(MP 76.54 - MP 80.61) STA: 242+00 TO 257+00 T105
EAST TO BARSTOW. CA THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING WESTITO SAN BERNARDINO. CA 4215 EXISTING MAIN 3
EXISTING MAIN 1
PROPOSED OND LEAD TRACK
EXISTING ANSF ROW - NEW CULVERT
CURB CUT FOR
SINAL ACCES
CONCRETE CHANNEL/APRON
BEGIN STA: 264+69.20 SEE SAUCES LATE.
TO TRAGA CENTERE
NEW CULVERT.
TRONAGE PLANS
260+C0
PROPOSED SIGNAL CANTILEVER.
NORTH I STREET
lEDGE SUBBALLAST PROPOSED SOUND TALL RELOCATED PRIVATE
DRIVEWAY
PROPOSED BNSF ROW
PROPOSED PRIVATE DRIVE CONSTRUCTION LIMITS REPLACE ENTER WITH BASE DRAINAGE PLANS. CONTRACTOR TO GRADE TO DRAIN,
15 * END STA: 258•11.74
right of entry to instal
right of entry to install
HOME AVE W
HORZONTAL SCALE IN FEET
1150 TOP OF RAIL 1150
258-30. Ra00031
1140] S00 90 .1140
PT=267+49.95 EL1124.03 TOP ON LEND TRACH
0.79%
2.23%
1130 .1130.
¿ PROPOSED ONO LEAD
112011 1420 314.20 3 119.20 113600- 13฿.2 1134.31 231120. 257+00 258-00 259+00 260+00 261+00 262+00 263+00 264+00 265+00 266+00 267+00 268400 269-00 270+00 271i0.00 272:00
NOT FOR CONSTRUCTION
TATE NO. ONO LEAD TRACK EXTENSION
TALLMAY CAJON SUBDIVISION TRACK PLAN & PROFILE MANNO NO.
LINE SCOMENI YOUU
(MP 76.54 - MP 80.61) STA: 257+00 TO 272+00 T106
EAST TO BARSTOW, CA THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING WEST TO SAN BERNARDINO, CA EXISTING MAIN 3•
• PROPOSED SOUND WALL Co SEE DRAINAGE PLANS.
EXISTING MAN 1- SEE STRUCTURAL, PLANS
PROPOSED OND LEAD TRACK PROPOSED SIGNAL CANTILEVER
LEGATE PATCH SOUND WALL HEIGHT (MIN, 5 HIGH. J
З4СO 284400
- PROPOSED SIGNAL BUNGALOWI
KA LINE S IMP 18.85
MAJNTAINING FLOW TO THE SOUTHEAST.
STEEL PENGE AND GATE
EXISTING BRIDGE ABUTMENT PROPOSED & HIGH TUBULAR
MIN DISTANCE " 15.4' FROM Ł OF PROPOSED - NEW SECURITY FENCE, MATCH SOUND WALL HEIGHT (MIN. 8' HIGH) (NE CLEAR OPENING)
REECE ST
EXİSTING MAN 1
TOP OF RAIL
PROPOSED ONO LEAD TRACK
TOP OF RAIL
_1140
NOTES
PT-278+73.90 EL=1127.70
1130 1130
EXISTING GROUND AT
R=0.0000 E PROPOSED ONO LEAD
1120 a 1120
1S016 1135 1270 HES- H2L2 122. 1204 1110
272+00 273+00 274+00 275+00 276+00 277+00 278+00 279+00 280+00 281+00 282400 283+00 284400 285÷00 286÷00
NOT FOR CONSTRUCTION
ONO LEAD TRACK EXTENSION CONU MOOD
CAJON SUBDIVISION TRACK PLAN & PROFILE GRANNONA
LINE SEGMENI /DUU
HOUST SCALES ACCOPERAT (MP 76.54 - MP 80.61) STA: 272+00 TO 287+00 T107 EAST TO BARSTOW. CA THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING
EATIN AN E
CASTING MAIN 2
EXISTING MAIN 1
NEW CULVERTS PROPOSED ONO LEAD TRACK
SEE DRENCH TERES
EXISTING BNSF ROW
15 TRACK CENTERS T
NEW SECURITY FENCE, MATCH SOUND WALL HEIGHT (MIN. 8' HIGH).
PROPOSED BNSF ROW PROVIDE 12 ACCESS GATE
PROPOSED & HIGH TUBULAR
STEEL FENCE AND GATE
SEE MUNICIPAL PLAN SET
CONSTRUCTION LIMITS
• SCALE IN FEE
EXISTING MAIN 1
ALN FUL
a PROPOSEO ONO LEAD TRACK •
TOP OF RAIL NOTES
1110 1110
€ PROPOSED ONO LEAD
1100 PC=299+74.00
1090 1090
10RO 11031
1205 1.0.
167.5 112.12 EE 123.0 1111
287+00 288+00 289+00 290+00 291+00 292+00 293+00 294-00 295+00 296+00 297+00 298÷00 2994100 300400 301i+00
NOT FOR CONSTRUCTION
IcH ме ONO LEAD TRACK EXTENSION
CAJON SUBDIVISION TRACK PLAN & PROFILE
VERY SCHES LINE SCOMENI /OUL
(MP 76.54 - MP 80.61) STA: 287+00 + 301+00 T108
EAST TO BARSTOW. CA THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING WEST SAN BERNARDINOCA EXISTING MAIN 3
CASTING BUN &
EXISTING MAIN 1
PROPOSED ONO LEAD TRACK
NEW SECURITY FENCE, MATCH SOUND WALL HEIGHT (MIN 8 HIGH) BELIE PROVIDE 12 ACCESS GATE EXISTING BNSF ROW
- PROPOSED SIGNAL CANTILEVER NEW CULVERTS
SEE DRAINAGE PLANS
15 TRACK CENTERS SEE DRAINAGE PLANS
STU700
NIST ST
EDGE SUBBALLAST
GATE IN SOUND WALL
SEE STAROETURA FLANS
CONSTRUCTION LIMITS
STREET MODIFICATIONS.
MIN DISTANCE = 31.5 FROM € OF PROPOSED SEE MUNIC PAL PLAN SET
LOAD TRAGA TO PACE OF BRO ADOTMENT
CASH MAIN 1
TOP OF RAIL
TOP OF RD ON LEAD TRACK P1*305+29.94
0 - 305-7.33
1100
MA TOSTA 31570-11 TO. LL
2s0% o
• PROTECTINPLACE.
EXISTING GROUND AT
NO SEE EXISTING ULITY SHEETS (ONO LEAD
1080 1080
1070 1 110202 1100 100.4 094.54 094. 093. 093. 38 1070
301-00 502U0 3U3+W0 304+00 305+00 306+00 307+00 308+00 309+00 310+00 STIMUL 312•00 313-00 316+00 315+00 316C0
NOT FOR CONSTRUCTION
TATE NO. ONO LEAD TRACK EXTENSION
TARAN CAJON SUBDIVISION TRACK PLAN & PROFILE
LINE SEGMENI /OUL
(MP 76.54 - MP 80.61) STA: 301,00 TO 316+00 T109
EAST TO BARSTOW, CA THIS PLAN MUST NOT BE MODIFIED WITHOUT THE APPROVAL OF BNSF SYSTEM ENGINEERING
WEST TO SAN BERNARCINO, CA P
EXISTING MAIN 3
ONO LEAD TRACK
EXISTING BNSF ROW
TO BE REMOVED
NEW SECURITY GATE, NATCH FENCE MERSMI
TRANSITION STRUCTURE
SEE DRAINAGE PLANS
EDGE SUBBALLAST NEW SEGURITY ENCE (MI HEIGHT T
• STA. 317+06.72 - MP 80.56 END GRAVEL CONSTRUCTION W 8TH ST NEVE SECURITY FENCE. MATCH SOUND WALL HEIGHE (MIN. S HEROI
SEE STRUCTURAL PLANS
EXISTING SIGNAL BUNGALOW
CONSTRUCTION LIMITS
1110, 1110
NOTES
PROPOSED ONO LEAD TRACK
TOP OF RAIL
1100
EL-1088.55
ROOSEDOND LEAD.
N20 T.O. FOS
300447 1090.
MAIN - STA: 318+08.10
1080 1080.
1070 1070
316+00 317+00 318+00 319+00 320+00 3214+00 322+00 323-00 324+00 325+00 {325480.52
NOT FOR CONSTRUCTION
CHE: M8
BALAN TRACK PLAN & PROFILE
LINE SEGMENI /OUU
(MP 76.54 - MP 80.61) STA: 316+00 TO 325+80,52 T110
EXHIBIT B
DESCRIPTION OF ACTIVITY TO BE CONDUCTED ON PROPERTY
COMPLETION AGREEMENT - FINAL
[ATTACHED]
30316343/200017.0001
EXHIBIT B
AGREEMENT GUARANTEEING COMPLETION OF CONDITIONS OF
APPROVAL AND SECURING MAINTENANCE OBLIGATIONS
(STREET VACATION 15.30-0434 BNSF ONO LEAD TRACK EXTENSION PROJECT) Thie gregain Agreeinen Cons erioned icon disor Approval and securin
RECITALS
BNSF intends to install a fourth lead track extending BNSF's San Bemardino Intermodal Facility lead track ("Lead Track") to the two existing Ono Storage Sidings ("Lead Track Project"). Tho Lcad Track Project involves the installation of track components and facilities within and along approximately 4.3 miles of the existing BNSF corridor, generally from the BNSF overpass at State Street/University Parkway on the north to the existing San Bernardino Internodal Facility at West 5th Street on the south. The Lead Track Project is not intended to incrcase train capacity, but would close the existing gap between the two existing Ono Storagc Sidings, creating a continuous lead track and improving the flow of trains in and out of the San Berardino Intennodal Facility.
On June 1, 2022, the City acting through its City Council certified the Environmental Impact Report prepared for the Onu Lead Track Project ("EIR"), approved the associated Mitigated Monitoring and Reporting Program ("MMRP")and approved Resolution No. 2022-103, thereby approving Real Property Street Vacation 15.30-0434 to vacate portions of "I" and "" Streets necessary to facilitate the Lead Track Project ("Required Street Vacations").
The MMRP and the conditions of approval set forth in approvod Resulution No. 2022-103 require BNSF to complete certain stormwater drainage/treatment, circulation/roadway (including sidewalks and strect lights), signal, sound wall, landscaping, stel fencing and utility improvements/modifications that are ancillary and related to the rail facilities. The purpose of thi:
Agreement is to set forth the agreement of the Parties revarding these improvements and the schedule for commencement and completion of the Lead Track Project.
Section 7 of Resolution No. 2022-103 requires BNSF to execute an agreement approved by the City Manager to ensure that all conditions and mitigation measures identified in the EIR, MMRP and Resolution No. 2022-103 are completed. This agreement in intended to satisfy the Section 7 requirement.
Improvements. BNSF promises and agrees to construct or install or to cause to be constructed or installed, at BNSF's sole cost and expense, (a) all improvements as described in Resolution No. 2022-103 and the MIMRP and sct forth and attached hereto as Exhibit "A," (b) certain strects and associated curb and gutter, sidewalks and lighting as conceptually described ir and attached hereto as Exhibit "B," (c) sound wall improvements as conceptually described it 27870505.112000:7.0001
and attached hereto as Exhibit "C," and (d) stormwater drainage improvements as conceptually described in and attached hereto as Exhibit "D." Items described in Exhibits A, B, C and D may be collectively referred to as the "Improvements," BNSF promises and agrees to pay all applicable fees and expenses associated with construction of the Improvements, including, but not limited to, any of the City's actual costs of all planning checking, report reviews, engineering, inspection and testing services or other service fees rendered or required.
Landscaping. BNSF shall install drought-tolerant landscaping ("Landscaping") along portions of the sound wall improvements (Exhibit "E") on property owned by BNSF or the City and which are visible from residential properties, subject to limitations on vegetation imposed by 49 CFR 213.37 and California Public Utilities Commission General Order No. 118-A. BNSF shall maintain the Landscaping at its sole cost and expense. If BNSF fails to maintain the Landscaping after City provides notice and at least fourteen (14) business days to comply, ther City may repair, reinstall or provide required maintenance and BNSF shall be responsible for all actual and administrative costs incurred by the City.
withal hity miy days of service dra died may or payment. or payroses or Cy provision and Section 3 only, notice shall be given as follows:
Placing a call to:
Facilities Management
(JLL) - Call Center: (866) 637-0251
and electronically contacting, by the below site maintained by BNSE:
htpp://www.bnsf.com/about-bnsf/contact/us/form.page.
Notice will be deemed given as of the later of the above notifications.
Graffiti Maintenance. BNSF promises and agrees to maintain the sound wall improvements described in Exhibit "C'" and to ensure that all graffiti is removed from the sound /alls within 48-hours. If BNSF fails to have the graffiti removed after City provides notice an t least fourteen (14) business days to comply, then City may remove the graffiti and BNSF sha be responsible for all actual and administrative costs incurred by the City. BNSF shall make payment to City for these costs within thirty (30) days of service of a written demand for payment.
For purposes of this provision and the failure to maintain provisions of Section 2 only, notice shall Placing a call to:
Facilities Management
(JLL) - Call Center: (866) 637-0251
and electronically contacting, by the below site maintained by BNSE:
htpp://www.bnsf.com/about-bnsf/contact/us/form.page.
2 27870505.1/200017,0001
Notice will be deemed given as of the later of the above notifications.
Responsibility for Cost. BNSF shall be responsible for the cost of the required Improvements.
federal or state law.
Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be personally delivered (including use of personal couriers, such as FedEx), or sent by facsimile (with confirmation of receipt being required) to the Parties named below and shall be deemed received upon the date of confirmed receipt or rejection:
If to BNSF: If to City:
BNSF Railway Company City Clerk
2500 Lou Menk Drive, AOB-3 City of San Bernardino
Fort Worth, TX 76131 215 North D Street
Attn: Sr. General San Bemardino, CA 92401
Attorney - Environmental
With Copy to: With Copy to:
Fennemore LP City Attorney
550 East Hospitality Lane, Suite 350 City of San Bernardino San Bernardino, CA 92408 290 North D Street
Attn: Mark A. Ostoich San Bernardino, CA 92401
Modification. No supplement, amendment, or modification of any provision of this Agreement will be effective unless it is signed by all the Parties.
No Partnership or Joint Venture. Nothing in this Agreement will be construed to create a partnership or joint venture of any kind among the Parties.
Counterpart Originals and Electronic Signatures. This Agreement may be signed in multiple counterparts, each of which is deemed to be an original, but all of which, together, will constitute one and the same instrument. Facsimile or electronic signatures may be used in place of original signatures on this Agreement; provided, however, that the Parties shall execute and provide to each other original signatures, upon request made by either Party to the other.
Applicable Law. Subject to the provisions of this Agreement, this Agreement will be governed and construed in accordance with the laws of the State of California. 3 27870505.1/200017.0001
Delay" shall mean delays that affect NSF's ability to perform and that are beyond the reasonable atrol of BNSF including, without limitation: (a) acts of God; (b) terrorism; (c) strike, picketi other labor dispute: (d) enidemic or pandemic; or (e) train derailment and other interruptions Authority. Each signatory to this Agreement represents that he has been duly authorized to sign this Agreement and thereby legally bind the Party on whose behalf he has
ISIGNATURES FOLLOWI
27870505.1/200017.0001
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and ycar first above written.
BNSF RAILWAY COMPANY, a Delaware
corporation
By: T.M. Hudde
Name: Trent M Hudak
Its: Director Engineering Services
CITY OE SAN BERNARDINO
By: V41) tell
Name: Robert D. Field
Its: City Manager
ATTEST loan
By:eron
Name: Genovercert Rocha
Cilg
5 27870505.1/200017.0001
EXHIBIT "A"
Project Schedule
Construction
Construction Start: October 2022
Construction Complete: December 2024
27870505.1/200017.0001
EXHIBIT "B"
Conceptual Description of Street Realignments
In connection with the Required Street Vacations, BNSF shall realign five existing streets. The streets shall be constructed per City standards, including curb and gutter, sidewalk and street lights where feasible. On certain locations where City standard is not feasible, BNSF shall submit request for setback waiver and design variance as required.
Going from North to South, BNSF shall realign the follow streets:
I. BNSF shall realign the comer of 17" Street and J Street.
2. BNSF shall realign the existing N I Strect between Evans Street and 15 Street.
3. BNSF shall realign the existing N I Street between Magnolia Ave. and 14" Street.
BNSF shall realien the existing N I Street between Olive Street and 10t Street.
5. BNSP shall realign the existing NI Street between 8'h Street and 7' Street.
6. BNSF shall convert the existing N I Street between Olive and 11'h Street to Private 27870505.1/200017,0001
EXHIBIT ""
Conceptual Description of Sound Wall
BNSF shall construct Sound Wall Improvements at the following locations along the west side of the proposed Ono Lead track extension, where a significant impact has been identified in the EIR for the Project. Specifically, going north to south, the sound wall shall be constructed at the following locations:
I. BNSF shall construct approximately 200 linear feet of sound wall from 16'h Street to Evans
2. BNSF shall construct approximately 500 linear feet of sound wall from Magnolia Ave. to
3. BNSF shall construct approximatcly 670 lincar feet of sound wall from 11 Street to 10' Street.
4. BNSF shall construct approximately 430 linear feet of sound wall from approximately 100 feet north of 8h Street and 300 feet south of 8th Street.
5. NSF shall construct approximately 330 linear feet of sound wall approximately 140 linea eet north of 7" street and approximately 140 linear feet south of 7th street In addition, going north to south, BNSF shall voluntarily construct Sound Wall Improvements at the following locations along the west side of the Ono Lead Track extension:
BNSF shall construct approximately 2,820 linear feet of sound wall from Highland Ave. to 16'h Street.
2. BNSF shall construct approximately 700 linear feet of sound wall between Evans Street and Magnolia Avenue.
3. BNSF shall construct approximately 1,600 linear feet of sound wall between Home Ave. and 11" Street
4. BNSF shall construct approximately 900 linear feet of sound wall from 10"h Street to approximately 100 linear fect north of 8 Street.
5. BNSF shall construct approximately 250 linear feet of sound wall between approximately 140 linear feet south of gth Street and 140 linear feet north of 7h Street.
6. BNSF shall construct approximately 450 linear feet of sound wall approximately 140 linear feet south of 7* Street and 6* Street.
The Sound Wall Improvements will be approximately 8.0 feet high above the top of rail and will be sufficient to block the line-of-sight from the residents. 27870S05.1/200017.0001
EXHIBIT D
Conceptual Description of Stormwater Drainage Improvements
1. BNSF shall construct new storm sewer crossings at the locations listed below, and connect to the existing storm sewer system,
Massachusetts Avenue
Base Line Street
West 11° Street
f. West Olive Street
g. West 104 Street
h. West 9" Street
i. West 8% Street
West 7% Street
IN shall construct channels generally parallling their track on the west side, flowing in a north
2. to south direction.
3. BNSF shall construct a storm water basin located between Base Line Street and West 11" Street, on BNSF property.
4. BNSF shall construct drainage openings within the noise wall for emergency overflows. 27870505.1/200017.0001
EXHIBIT "E"
Conceptual Description of Public Utility Relocations
In connection with the Required Street Vacations, BNSF shall clocate Public Utilitics required for street realignment. BNS! shall relocate Public Utilities required on five existing streets. The Public Utilitios shall be constructed per the City standard where teasiblc.
Going from North to South, BNSF shall relocate Public Utilities in the following streets:
1. BNSF shall relocate Public Utilities on the portion of the street at the intersection of 17% Strect and J Street.
BNSF shall relocate Public Utilitics on the existing N I Strect betwen Evans Strect and 15" Strect BNSF shall relocate Public Utilities on the existing N I Street between Magnolia Ave and 14" BNSF shall relocate Public Utilities on the existing NI Strcet between Olive Street and 10% Strees.
5. BNSF shall relocate Public Utilities on the existing NI Street betwen 8th Strect and 7ih Street.
6. BNSF shall relocate Public Utilities betseen I4* Street and Baseline Stree
7. BNSF shall relocate Public Utilities on proposed private driveway between 11" Street and Oliv Strect.
8. BNSF shall relocate Public Utilities on the existing NI Street between g" Street and 7* Strect. 27870505. 1/200017.0001
EXHIBIT C
INSURANCE PROVISIONS
The GRANTEE shall obtain, and shall require any consultant or contractor entering the Property on its behalf to obtain insurance of the types and in the amounts described below and satisfactory to the GRANTOR.
A. Commercial General Liability Insurance. The GRANTEE shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than one million dollars ($2,000,000) per occurrence and the general aggregate limit not less than two million dollars ($4,000,000). Such insurance shall:
1. Include the GRANTOR its officials, officers, employees, agents, and consultants as additional insureds with respect to the use of the as aditfor Property and shall contain no special limitations on the scope of coverage or the protection afforded to the additional insureds;
Be primary with respect to any insurance or self-insurance programs covering the GRANTOR, its officials, officers, employees, agents and consultants; and
3. Contain standard separation of insured provisions.
4. Contain a waiver of subrogation that waives any right the insurer has against GRANTOR for any claims or suits.
B. Federal Employers' Liability Act Insurance. GRANTEE shall maintain coverage for employees injured in the scope of their employment consistent with requirements under the Federal Employers' Liability Act.
C. Automobile Liability. GRANTEE shall maintain automobile liability insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City with limits of not less than $1,000,000 combined single limit.
D. Privacy/Network Security (Cyber). GRANTEE shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial for the privacy bran, or loss of service, and (4) the introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to GRANTOR with limits of not less than $1,000,000 per occurrence and aggregate.
E. Aviation and/or Drone Liability. If the proposed use of the Licensed Property will involve drones, GRANTEE shall maintain Aviation and/or Drone Liability insurance for bodily injury and property damage, in a form and with insurance companies acceptable to the GRANTOR, with $1,000,000 per occurrence limit.
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F. Certificates of Insurance. The GRANTEE shall, prior to entering the Property, furnish the GRANTOR with properly executed certificates of insurance and, if requested by the GRANTOR, certified copies of endorsements and policies, which clearly evidence all insurance required under this Right of Entry and provide that such insurance shall be not canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days' prior written notice to the GRANTOR. The GRANTOR shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Right of Entry.
G. Coverage Maintenance. The GRANTEE shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Right of Entry. Unless otherwise provided for in this Right of Entry, the GRANTEE shall maintain such insurance from the execution of this Right of Entry until completion of the agreed use of the GRANTOR's property is complete and the Property is fully restored, except as otherwise provided in this Right of Entry.
H. Licensed Insurer. The GRANTEE shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California, unless otherwise approved, in writing, by the GRANTOR. l. Self-Insurance. GRANTOR recognizes that GRANTEE is self- insured and that GRANTEE is allowed to self-insure without the prior written consent of GRANTOR. GRANTEE shall directly cover any self-insured retention or other financial responsibility for claims in lieu of insurance. Any and all GRANTEE liabilities that would otherwise be covered by insurance in accordance with the provisions of this Agreement will be covered as if GRANTEE elected not to include a deductible, self-insured retention or other financial responsibility for claims.
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