Loading...
02 February 24, 2014 Western Riverside County Programs and ProjectsTIME: DATE: LOCATION: RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE MEETING AGENDA 1:30 p.m. Monday, February 24, 2014 BOARDROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside '&>-COMMITTEE MEMBERS '°" Andrew Kotyuk, Chair I Scott Miller, City of San Jacinto Frank Johnston, Vice Chair I Micheal Goodland, City of Jurupa Valley Deborah Franklin/ Art Welch, City of Banning Karen Spiegel I Eugene Montanez, City of Corona Adam Rush I Ike Bootsma, City of Eastvale Scott Mann I Wallace Edgerton, City of Menifee Tom Owings I Jesse Molina, City of Moreno Valley Berwin Hanna I Kathy Azevedo, City of Norco Daryl Busch I Al Landers, City of Perris Ben Benoit I Timothy Walker, City of Wildomar Kevin Jeffries, County of Riverside, District I Marion Ashley, County of Riverside, District V '&>-STAFF'°" Anne Mayer, Executive Director John Standiford, Deputy Executive Director '&>-AREAS OF RESPONSIBILITY '°" Air Quality, Capital Projects, Communications and Outreach Programs, lntermodal Programs, Motorist Services, New Corridors, Regional Agencies/Regional Planning, Regional Transportation Improvement Program (RTIP), Specific Transit Projects, State Transportation Improvement Program (STIP), Transportation Uniform Mitigation Fee (TUMF) Program, and Provide Policy Direction on Transportation Programs and Projects related to Western Riverside County and other areas as may be prescribed by the Commission. Comments are welcomed by the Committee. If you wish to provide comments to the Committee, please complete and submit a Speaker Card to the Clerk of the Board. COMM-WRC-00018 Alexandra Rackerby From: Sent: To: Subject: Attachments: Alexandra Rackerby Thursday, February 20, 2014 9:59 AM Alexandra Rackerby RCTC Western Riverside County Programs and Projects Committee Conflict of Interest Form.pdf; Conflict of Interest Memo.pdf Good afternoon Commissioners, The Western Riverside County Programs and Projects Committee agenda for Monday, February 24, 2014 is posted on our website at http://www.rctc.org/uploads/media items/western-riverside-county-programs-and-projects-committee- february-24-2014.original.pdf Let me know if you have any questions or concerns. Attached are the Conflict of Interest Memo and Forms for your information. Please let me know if you have any questions or concerns. Thank you. Thank you. Respectfully, Allie Rackerby Riverside County Transportation Commission P.O. Box 12008 Riverside, CA 92502 (951) 787-7141 1 Riverside County Transportation Commission TO: FROM: DATE: SUBJECT: Riverside County Transportation Commission Jennifer Harmon, Office and Board Services Manager February 19, 2014 Possible Conflicts of Interest Issues -Western Riverside County Programs and Projects Committee Agenda of February 24, 2014 The February 24, 2014 agenda of the WRC Programs and Projects Committee includes items which may raise possible conflicts of interest. A RCTC member may not participate in any discussion or action concerning a contract or amendment if a campaign contribution of more than $250 is received in the past 12 months or 3 months following the conclusion from any entity or individual listed. Agenda Item No. 9 -On-Call Property Maintenance and Repair Services Consultant(s): Braughton Construction, Inc. 10722 Arrow Route, Suite 810 Rancho Cucamonga, CA 91730 Alison Vanden Bossche, Secretary Carry-All 1601 Sherborn Street Corona, CA 92879 Johnny Carrion, Owner Joshua Grading & Excavating, Inc. P. 0. Box 292329 Phelan, CA 92329-2329 Thomas Craft, Secretary Real Estate Consulting & Services, Inc. 827 East Civic Center Drive Santa Ana, CA 92701 Harry Burnard, President RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed on the agenda l:30p.m. Monday, February 24, 2014 BOARDROOM County Administrative Center 4080 Lemon Street, First Floor Riverside, California In compliance with the Brown Act and Government Code Section 54957.5, agenda materials distributed 72 hours prior to the meeting, which are public records relating to open session agenda items, will be available for inspection by members of the public prior to the meeting at the Commission office, 4080 Lemon Street, Third Floor, Riverside, CA, and on the Commission's website, www.rctc.org. In compliance with the Americans with Disabilities Act and Government Code Section 54954.2, if you need special assistance to participate in a Committee meeting, please contact the Clerk of the Board at (951) 787-7141. Notification of at least 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. PUBLIC COMMENTS -Each individual speaker is limited to speak three {3} continuous minutes or less. The Committee may, either at the direction of the Chair or by majority vote of the Committee, waive this three minute time limitation. Depending on the number of items on the Agenda and the number of speakers, the Chair may, at his/her discretion, reduce the time of each speaker to two (2) continuous minutes. Also, the Committee may terminate public comments if such comments become repetitious. In addition, the maximum time for public comment for any individual item or topic is thirty {30) minutes. Speakers may not yield their time to others without the consent of the Chair. Any written documents to be distributed or presented to the Committee shall be submitted to the Clerk of the Board. This policy applies to Public Comments and comments on Agenda Items. Under the Brown Act, the Board should not take action on or discuss matters raised during public comment portion of the agenda which are not listed on the agenda. Board members may refer such matters to staff for factual information or to be placed on the subsequent agenda for consideration. Western Riverside County Programs and Projects Committee February 24, 2014 Page 2 5. APPROVAL OF MINUTES -NOVEMBER 25, 2013 6. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. If there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) 7. IN-LIEU FEE AGREEMENT WITH RIVERSIDE-CORONA RESOURCE CONSERVATION DISTRICT FOR COMPENSATORY MITIGATION FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT Pagel Overview This item is for the Committee to: 1) Approve Agreement No. 14-31-077-00 with Riverside-Corona Resource Conservation District (RCRCD) for compensatory mitigation for the State Route 91 Corridor Improvement Project (SR-91 CIP) in the amount of $703,300, plus a contingency amount of $70,000, for a total amount not to exceed $773,300; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work pursuant to the agreement terms up to the total amount; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee February 24, 2014 Page 3 8. MONSTER LEAD WALL AGREEMENT WITH BURLINGTON NORTHERN AND SANTA FE RAILROAD FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT Page67 Overview This item is for the Committee to: 1) Approve Agreement No. 14-31-076-00 for the Monster Lead Wall Agreement with Burlington Northern and Santa Fe Railroad (BNSF) for the State Route 91 Corridor Improvement Project (SR-91 CIP) in the amount of $73,600, plus a contingency amount of $7,400, for a total amount not to exceed $81,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total amount not to exceed as required for the agreement; and 4) Forward to the Commission for final action. 9. ON-CALL PROPERTY MAINTENANCE AND REPAIR SERVICES Page165 Overview This item is for the Committee to: 1) Approve the following agreements to provide on-call property maintenance and repair services for a three-year term plus two one-year options to extend the agreement, in an amount not to exceed an aggregate value of $1.5 million; a) Agreement No. 14-33-046-00 with Braughton Construction, Inc.; b) Agreement No. 14-33-047-00 with Carry-All; c) Agreement No. 14-33-048-00 with Joshua Grading and Excavating, Inc.; and d) Agreement No. 14-33-063-00 with Real Estate Consulting & Services, Inc. 2) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; and 4) Forward to the Commission for final action. Western Riverside County Programs and Projects Committee February 24, 2014 Page 4 10. PROPOSITION 18 FISCAL YEAR 2012/13 CALIFORNIA TRANSIT SECURITY GRANT PROGRAM -CALIFORNIA TRANSIT ASSISTANCE FUND AND SUPPORTING RESOLUTION FOR THE COMMISSION'S COMMUTER RAIL PROGRAM Page 168 Overview This item is for the Committee to: 1) Adopt Resolution No. 14-012, "Resolution of the Riverside County Transportation Commission Approving the Allocation of FY 12-13 Proposition 18-6561-0002 California Transit Security Grant Program-California Transit Assistance Funds to the RCTC Commuter Rail Program and Designation of Authorized Agent"; 2) Allocate the California Transit Security Grant Program-California Transit Assistance Funds (CTSGP-CTAF) funds totaling $355,748 for the Commission's Commuter Rail Program; and 3) Forward to the Commission for final action. 11. ELECTION OF OFFICERS Page 174 Overview This item is for the Western Riverside County Programs and Projects Committee to conduct an election of officers for 2014 -Chair and Vice Chair. 12. COMMISSIONERS/ STAFF REPORT Overview This item provides the opportunity for the Commissioners and staff to report on attended and upcoming meeting/conferences and issues related to Commission activities. 13. ADJOURNMENT The next Western Riverside County Programs and Projects Committee meeting is scheduled to be held at 1:30 p.m., Monday, March 24, 2014, Board Chambers, First Floor, County Administrative Center, 4080 Lemon Street, Riverside. RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS SIGN-IN SHEET February 24, 2014 NAME AGENCY E_MAIL ADDRESS J'Z /7c1 / /!b/f~f-1'-W-LAtit'J;!J~ /v ~ ~~·,A ~ 7 '?1' /0 c_,, > ~~<k-/- ~ \Jn-L'] 1 f ~ u J { y, c""-)'~ :r3H11n11 J c,, fk_/( (,,~ I tJ /~~ • .,__; ,1 1 A ;l' /:';: 1_,-1 J ·/~Ill/ ,'7£~.H,yf /(t'"O a>r ~ /2--_/ / .. J i2 /~TA .. L_ ~~a---~ ~flt-;:J:/;j, vHZ.~ ... l1'.l.11'7,(~,,.. /hi;_/' ff __v- /\:1 Pr fl { o/'I A s /-l L 1:..... ·y I -I ~ .---- ~ \ V ( -=:::n_ cf I /) 'C C '7fl""""'1Tf H:fU~ ~·· rJ1'tNJ_' ' ('~ ~,{//~ /~vfdl,i./ hj?~ (} \_ RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE ROLL CALL February 24, 2014 County of Riverside, District I County of Riverside, District V City of Banning City of Corona City of Eastvale City of Jurupa Valley City of Menifee City of Moreno Valley City of Norco City of Perris City of San Jacinto City of Wildomar Present % : ~ %" D D ;;!' ~ ? Absent D D D D D D ~ D D D [J AGENDA ITEM 5 MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION WESTERN RIVERSIDE COUNTY PROGRAMS AND PROJECTS COMMITTEE Monday, November 25, 2013 MINUTES 1. CALL TO ORDER The meeting of the Western Riverside County Programs and Projects Committee was called to order by Chair Andrew Kotyuk at 1:32 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. PLEDGE OF ALLEGIANCE At this time, Commissioner Adam Rush led the Western Riverside County Programs and Projects Committee in a flag salute. 3. ROLL CALL Members/ Alternates Present Marion Ashley Ben Benoit Daryl Busch Deborah Franklin Berwin Hanna Kevin Jeffries Frank Johnston Andrew Kotyuk Tom Owings Adam Rush Karen Spiegel 4. PUBLIC COMMENTS Members Absent Scott Mann There were no requests to speak from the public. RCTC WRC Programs and Projects Committee Minutes November 25, 2013 Page 2 5. APPROVAL OF MINUTES -SEPTEMBER 23, 2013 M/S/C (Benoit/Johnston) to approve the minutes as submitted. Abstain: Franklin 6. ADDITIONS/REVISIONS There were no additions or revisions to the agenda. 7. UTILITY AGREEMENTS WITH SPRINT COMMUNICATIONS COMPANY, LEVEL 3 COMMUNICATIONS, AT&T, AND VARIOUS UTILITY COMPANIES FOR FINAL ENGINEERING AND CONSTRUCTION FOR UTILITY RELOCATIONS FOR THE STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT David Thomas, Toll Project Manager, presented the scope of the utility agreements with AT&T, Level 3 Communications, and Sprint Communications Company for final engineering and construction for utility relocations for the State Route 91 Corridor Improvement Project (SR-91 CIP). In response to Chair Kotyuk's question regarding why the utility relocations were not identified previously, David Thomas clarified more information is available now that the design-builder is on board. At Commissioner Rush's request, David Thomas provided the status of the previous utility agreements and related budget for the previous and new agreements. M/S/C (Rush/ Ashley) to: 1) Approve the following agreements for final engineering and construction for utility relocations for the State Route 91 Corridor Improvement Project (SR-91 CIP): a) Agreement No. 14-31-051-00 with Sprint Communications Company (Sprint); b) Agreement No. 14-31-052-00 with Level 3 Communications (Level 3); and c) Agreement No. 13-31-045-17, Amendment No. 1 to Agreement No. 13-31-045-00, with AT&T; for a combined amount of $2,410,000, plus a contingency amount of $241,000 (10 percent), for a total amount not to exceed $2,651,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; RCTC WRC Programs and Projects Committee Minutes November 25, 2013 Page 3 3) Authorize the Executive Director to approve contingency work up to the total authorized amount as may be required for these utility relocation agreements for final engineering and construction; 4) Authorize the Executive Director to execute utility agreements and expend previously approved funds for necessary but currently unidentified utility relocation work provided the total cost of all utility relocation work with currently identified or yet to be identified utility companies is within previously approved amounts, inclusive of this new budget request, for SR-91 CIP utility work in the amount not to exceed $24,263,000; and 5) Forward to the Commission for final action. 8. CONSTRUCTION AGREEMENT WITH DALKE & SONS CONSTRUCTION, INC. FOR STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT RIGHT OF WAY PROPERTY MITIGATION PACKAGE 2 David Thomas presented the scope of the agreement with Dalke & Sons Construction, Inc. for State Route 91 Corridor Improvement Project right of way property mitigation package 2. In response to Chair Kotyuk's question regarding the mitigation packages, David Thomas responded there are 11 properties divided into five packages. Package 2 encompasses two properties. M/S/C (Johnston/Hanna) to: 1) Award Agreement No. 14-31-022-00 to Dalke & Sons Construction, Inc. (Dalke & Sons) for the construction of State Route 91 Corridor Improvement Project (SR-91 CIP) right of way (ROW) Property Mitigation Package 2 in the amount of $1,297,680, plus a contingency amount of $129,768, for a total amount not to exceed $1,427,448; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work pursuant to the agreement terms up to the total amount; and 4) Forward to the Commission for final action. At this time, Commissioner Adam Rush stepped out of the meeting due to a possible conflict of interest. RCTC WRC Programs and Projects Committee Minutes November 25, 2013 Page4 9. FUNDING REQUEST FROM THE CITY OF CORONA FOR THE FOOTHILL PARKWAY EXTENSION PROJECT Shirley Medina, Planning and Programming Director, presented the details of the funding request from the city of Corona for the Foothill Parkway extension project. Anne Mayer, Executive Director, added the Foothill Parkway extension project has always been a high priority for the region because it provides an alternative route for residents on the south side of Corona. Commissioner Karen Spiegel stated this project has been in the city's plans since 1985. M/S/C (Jeffries/Benoit) to: 1) Approve $21 million of 2009 Measure A Regional Arterial (MARA) Western County funds for the construction phase of the Foothill Parkway extension project in the city of Corona (Corona); 2) Approve Agreement No.12-72-093-02, Amendment No.1 to Agreement No. 12-72-093-00, to add $21 million of 2009 Measure A Regional Arterial (MARA) Western Riverside County funds and increase the total MARA funds from $7 million to $28 million for the construction phase of the Foothill Parkway extension project in the city of Corona (Corona); 3) Authorize the Chair or Executive Director pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 4) Forward to the Commission for final action. 10. 1989 MEASURE A FUNDING FOR COUNTY OF RIVERSIDE'S STATE ROUTE 79 WIDENING PROJECT Shirley Medina presented the details of the 1989 Measure A funding for county of Riverside's State Route 79 widening project. In response to Commissioner Spiegel's question regarding the remaining Measure A funding, Shirley Medina stated the SR-74 Curve widening project is the last project to be finished using the 1989 Measure A funds. Anne Mayer noted the SR-74 Curve widening project is also on the agenda today. If all old Measure A projects are completed and there is funding remaining in the highway or rail account, then the remaining funds will be transferred to the highway or rail component of new Measure A. Theresia Trevino, Chief Financial Officer, stated there are no 1989 Measure A funds remaining because they were allocated to the SR-91 CIP. RCTC WRC Programs and Projects Committee Minutes November 25, 2013 Page 5 M/S/C (Spiegel/Rush) to: 1) Approve $1 million of 1989 Measure A Western Riverside County Highway funds for the county of Riverside's (County) SR-79 widening project from Thompson Road to Domenigoni Parkway (SR-79 Project); 2) Approve Agreement No. 14-31-061-00 with the County for $1 million of 1989 Measure A Western County Highway funds to construct Phase 2 of the SR-79 Project; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; and 4) Forward to the Commission for final action. 11. AMENDMENT TO TRANSPORTATION UNIFORM MITIGATION FEE REGIONAL ARTERIAL AGREEMENT FOR THE RAILROAD CANYON ROAD AT INTERSTATE 15 INTERCHANGE PROJECT IN THE CITY OF LAKE ELSINORE Alex Menor, Capital Projects Manager, presented the scope of the amendment to Transportation Uniform Mitigation Fee regional arterial agreement for the Interstate 15/Railroad Canyon Road interchange project in the city of Lake Elsinore. M/S/C (Jeffries/Spiegel) to: 1) Approve Agreement No. 10-72-016-02, Amendment No. 2 to Agreement No. 10-72-016-00, with the city of Lake Elsinore (Lake Elsinore) for the Railroad Canyon Road/Interstate 15 interchange project to authorize staff to complete the project approval and environmental document (PA&ED) phase with the remaining $211,382 of the $1,206,000 TUMF funds allocated to this phase and to increase the PA&ED phase funding amount by $399,000 to $1,605,000; 2) Approve Agreement No.11-31-107-02, Amendment No. 2 to Agreement No. 11-31-107-00, with SC Engineering for the project with Lake Elsinore to authorize SC Engineering to complete the PA&ED services associated with the project in the amount of $464,000, plus an additional contingency amount of $17,000 for a total increase of $481,000, resulting in a total not to exceed amount of $705,000; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements on behalf of the Commission; 4) Authorize the Executive Director to approve release of contingency work up to the total authorized amount as may be required for the project; RCTC WRC Programs and Projects Committee Minutes November 25, 2013 Page 6 5) Authorize the Executive Director, pursuant to legal counsel review, to execute agreements with Caltrans to reflect non-funding changes related to the project on behalf of the Commission; 6) Approve an increase in FY 2013/14 budgeted expenditures of $146,000; and 7) Forward to the Commission for final action. 12. AGREEMENT WITH ALL AMERICAN ASPHALT FOR THE CONSTRUCTION OF STATE ROUTE 74 CURVE WIDENING FROM CALVERT AVENUE TO CALIFORNIA AVENUE IN THE COUNTY OF RIVERSIDE NEAR THE CITY OF HEMET Marlin Feenstra, Project Delivery Director, presented the scope of the agreement with All American Asphalt for the construction of State Route 74 Curve widening from Calvert Avenue to California Avenue in the county of Riverside near the city of Hemet. M/S/C (Rush/Hanna) to: 1) Approve Agreement No. 13-31-139-00 to All American Asphalt (All American) for the construction of State Route 74 Curve widening project from Calvert Avenue to California Avenue in the county of Riverside near the city of Hemet in the amount of $1,970,005, plus a contingency amount of $197,000 for potential change orders and supplemental work during construction, for a total amount not to exceed $2,167,005; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total authorized amount as may be required for the project; 4) Authorize the Executive Director to enter into agreements, or amendments to existing agreements, as determined appropriate, with the state of California (State) for an amount not to exceed $120,000 for Construction Zone Enhanced Enforcement Program (COZEEP), and state furnished materials, and other items; and 5) Forward to the Commission for final action. 13. COMMISSIONERS/ STAFF REPORT Anne Mayer announced: • The December Commission meeting will be held at Corona City Hall followed by the 91 Project groundbreaking ceremony at the North Main Corona Station parking structure; and RCTC WRC Programs and Projects Committee Minutes November 25, 2013 Page 7 • The Federal Transit Administration will be in Perris for the Perris Valley Line signing ceremony on December 9. 14. ADJOURNMENT AND NEXT MEETING There being no further business for consideration by the Western Riverside County Programs and Projects Committee, the meeting was adjourned at 2:07 p.m. The next meeting of the Western Riverside County Programs and Projects Committee is scheduled for February 24, 2014, at 1:30 p.m. Respectfully submitted, Jennifer Harmon Clerk of the Board AGENDA ITEM 7 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 24, 2014 TO: Western Riverside County Programs and Projects Committee FROM: David Thomas, Toll Project Manager THROUGH: Michael Blomquist, Toll Program Director In-Lieu Fee Agreement with Riverside-Corona Resource Conservation District SUBJECT: for Compensatory Mitigation for the State Route 91 Corridor Improvement Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 14-31-077-00 with Riverside-Corona Resource Conservation District (RCRCD) for compensatory mitigation for the State Route 91 Corridor Improvement Project (SR-91 CIP} in the amount of $703,300, plus a contingency amount of $70,000, for a total amount not to exceed $773,300; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work pursuant to the agreement terms up to the total amount; and 4) Forward to the Commission for final action. BACKGROUND: Approval to proceed with the SR-91 CIP was granted when the Record of Decision was issued in November 2012 by the California Department of Transportation, the lead agency under both the California Environmental Quality Act and the National Environmental Policy Act. The approved environmental impact report/statement includes a number of mitigation measures for project impacts, including compensatory mitigation for permanent impacts to riverine riparian habitat and oak trees. These compensatory mitigation measures are also conditions in project permits from the U.S. Army Corps of Engineers (USACE), Santa Ana Regional Water Quality Control Board, California Department of Fish and Wildlife, as well as the consistency determination under the Western Riverside County Multi-Species Habitat Program, and the U.S. Fish and Wildlife Service Biological Opinion. Agenda Item 7 1 Compensatory Mitigation Commitment Compensatory mitigation for activities authorized by USACE permits are governed by regulations issued by USACE and the Environmental Protection Agency. These regulations establish performance standards and criteria for the use of permittee-responsible compensatory mitigation, mitigation banks, and in-lieu fee programs. The RCRCD manages a USACE approved In-Lieu Fee (ILF) program for impacts within the Santa Ana River Watershed. Under the ILF program, RCRCD is authorized to sell mitigation credits for specific impacts resulting from USACE permitted projects. The Commission is required to mitigate for permanent impacts to riverine riparian habitat for the SR-91 CIP. This mitigation commitment can be satisfied by the purchase of three acres of mitigation credits through the RCRCD ILF program. Additionally, project impacts to oak trees can be met by replacement planting at a 3:1 ratio (14 affected trees x 3 = 42 replacement oak trees), also through the RCRCD. Participation in the RCRCD ILF program satisfies the project's compensatory mitigation requirement. This one-time payment to RCRCD relieves the Commission of any further obligations regarding these resources. RCRCD will assume all responsibility to implement, manage, monitor, and report mitigation progress to the regulatory agencies. RCRCD Fee Structure 1) Deposit: RCRCD requires payment of a $5,000 deposit prior to negotiations with the party requesting mitigation services. This deposit covers administrative and staff time, material, and legal review costs associated with preparation of a conservation agreement. The Commission paid the $5,000 deposit. 2) Mitigation Credit Purchase: RCRCD will rehabilitate three acres of suitable riverine riparian habitat at a cost of $185,000 per acre ($185,000 x 3 = $555,000). RCRCD will plant 42 oak trees on land under its control at a cost of $3,650 per tree ($3,650 x 42 = $153,300). 3} Total Cost: The total cost is $555,000 (three acres of riverine riparian habitat) + $153,300 42 oak trees)= $708,300 (total) -$5,000 (deposit) = $703,300 (mitigation credit purchase). 4) Contingency: Including a contingency amount of $70,000, the total not to exceed amount is $773,300. Staff recommends mitigating for SR-91 CIP permanent impacts to riverine riparian habitat and removal of oak trees by entering into the In-Lieu Fee Agreement for purchase and sale of credits with RCRCD in the amount of $703,300, plus a contingency amount of $70,000, for a total amount not to exceed $773,300. Agenda Item 7 2 I Financial Information I In Fiscal Year Budget: Yes Year: FY 2013/14 Amount: $703,300 N/A FY 2014/15+ $ 70,000 Source of Funds: I 2009 Measure A Sales Tax Debt Proceeds Budget Adjustment: I No N/A GLA No.: I 003028 81401 00000 0000 262 31 81301 Fiscal Procedures Approved: 1~~ I Date: I 02/13/14 Attachment: Agreement No. 14-31-077-00 with the Riverside-Corona Resource Conservation District In-Lieu Fee Program Agenda Item 7 3 AGREEMENT FOR SALE OF CREDITS FROM THE RIVERSIDE-CORONA RESOURCE CONSERVATION DISTRICTIN-LIEU FEE PROGRAM This Agreement is entered into this day of March, 2014, by and between Riverside-Corona Resource Conservation District ("RCRCD"), and the Riverside County Transportation Commission (RCTC) ("Project Proponent") (individually, a "Party," and collectively the "Parties"), as follows: RECITALS A. RCRCD has developed the RCRCD In-Lieu Fee Program (the "Program"); and B. The Program was approved by the Los Angeles District of the U.S. Army Corps of Engineers ("USACE"), Region IX of the U.S. Environmental Protection Agency ("USEPA"), and the California Regional Water Quality Control Board, Region 8 ("RWQCB") Gointly referred to as the Interagency Review Team (the "IRT")) on July 26, 2012 and is currently in good standing with the IRT; and C. RCRCD has received approval from the IRT to sell Credits from the Program to offset impacts; and D. Project Proponent is seeking to purchase Compensatory Mitigation Credits ("Credits") from the Program for impacts to the Waters of the U.S. that result from activities authorized under section 404 of the Clean Water Act and/or section 401 Clean Water Act water quality certifications [OR completed enforcement actions under the auspices of section 404 and 401 of the Clean Water Act] (Attach Permit( s) or Enforcement Action as Exhibit "A"). The number ofILF Credits to be acquired by the Project Proponent for theState Route (SR) 91 Corridor ImprovementProject (the "Project"), Assessor's Parcel Numbers ("APNs") 102-050-005, 102-091-004, 102-091-005' 102-091-006, 102-091-020, 102-092-001, 102-092-022, 102-092-023' 102-101-001, 102-101-002, 102-101-033, 102-102-020, 102-250-022, 102-250-023, 102-250-047, 102-270-010, 102-280-032, 118-050-002, 118-090-001, 118-101-014, 118-160-004, 118-160-021, 118-160-057, 118-160-058, 118-171-025, 118-171-047' 118-250-022, 118-250-027, 118-260-015, 118-270-001, 118-270-023, 118-270-024, 118-270-034, 118-270-042, 118-270-043, 118-301-010, 118-302-001, 118-302-014, 118-302-017, 115-060-015, 115-060-016, 117-041-012, 117-041-013, 117-041-016, 117-042-023, 117-070-001, 117-070-002, 117-070-003, 117-070-008, 117-070-009, 117-070-032, 117-080-011, 117-080-012, 117-080-013, 117-080-014, 117-080-016, 117-080-017, 117-080-020, 117-111-005, 117-112-001, 117-112-002, 117-112-014, 117-112-015, 117-113-001, 117-113-002, 117-113-003, 117-121-002, 117-121-003, 117-121-008, 117-121-009, 117-122-001, 117-122-029, 117-270-002, 117-270-009, 117-101-013, 117-101-019, 117-101-020, 117-102-019 ("Impact Location") is 3, as 24632.00029\ 7636514.3 1 4 described in Riparian Bird Conservation Measure #26 of the Biological Opinion FWS- OR/WRIV -08B0733-l 1F0547; Mitigation Measure 3.2 of the Streambed Alteration Agreement #1600-2011-0098-R6; and in compliance with the Natural Communities Section, No. 6 in the project Final Environmental Document (FED), which requires compensatory mitigation for affected oak trees at a replacement mitigation-to-effect ratio of 3:1. E. USACE is requiring Project Proponent to purchase 3 Rehabilitation Credits and to provide for the planting of 42 oak trees to mitigate for impacts to Waters of the U.S. and oak trees at the Impact Location by the Project, which is described in Exhibit B; and F. Project Proponent desires to purchase from RCRCD and RCRCD desires to sell and convey to Project Proponent, Credits from the Program. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. Subject to the terms and conditions herein, RCRCD agrees to sell to Project Proponent and Project Proponent agrees to purchase from RCRCD three (3) Rehabilitation Credits from the Program and RCRCD agrees to provide for the planting of forty-two ( 42) oak trees( collectively "Credits") for the total purchase price of $708,300; however, RCTC has already paid RCRCD a $5,000 deposit that reduced the amount owed to $703,300. The purchase price for said Credits shall be paid by means acceptable to RCRCD. The Parties shall mutually agree to a "Closing Date" by which the Credit sale transaction will be completed, which shall be no later than execution of this agreement. On the Closing Date, RCRCD shall transfer to Project Proponent evidence that the Credits have been allocated to the Project by Bill of Sale in the form attached as Exhibit C, and Project Proponent shall pay the purchase price specified above. 2. In the event Project Proponent has not delivered the Purchase Price to RCRCD on or before the Closing Date, this Agreement shall automatically terminate without need for any further action by RCRCD and neither party shall have any further obligations to the other Party under this Agreement. 3. The sale and transfer herein is not intended as a sale or transfer to Project Proponent of a security, license, lease, easement, or possessory or non-possessory interest in real property, nor the granting of any interest of the foregoing. 4. Project Proponent shall have no obligation whatsoever by reason of the purchase of the Credits, to support, pay, fix, monitor, report on, sustain, continue in perpetuity, or otherwise be obligated or liable for the success or continued expense or maintenance in perpetuity of the mitigation property associated with Credits sold, or the Program. 24632.00029\ 7636514.3 2 5 5. The Credits herein sold and conveyed to Project Proponent shall be non-transferable and non-assignable, and shall be used as compensatory mitigation only in connection with the Project. 6. All representations, warranties, and covenants embodied m this Agreement shall survive the transfer of the Credits hereunder. 7. RCRCD shall cooperate and assist Project Proponent by providing documentation required by the IRT, and other regulatory agencies to establish that the Credits may be used to compensate for the Project's impacts described above. RCRCD shall provide USACE with a Statement of Sale of Credit in the form of the attached Exhibit D no later than 30 days after the Closing Date of a successful sale. 8. Any notice or other written communication given pursuant to this Agreement shall be delivered to the other Party by first class U.S. mail, certified or registered U.S. mail or facsimile mail with mailed copy as follows: Agreement. Project Proponent: Riverside County Transportation Commission (RCTC) 4080 Lemon Street, Third Floor Riverside, CA 92502 Telephone: (obtain) Facsimile: (obtain) RCRCD: Shelli Lamb, District Manager 4500 Glenwood Dr, Bldg A Riverside, CA 92501-3042 Telephone: (951) 683-7691 Facsimile: (951) 683-3814 Copy To: Steve Anderson, General Counsel, RCRCD Best Best & Krieger LLP 3390 University Avenue, 5th Floor Riverside, CA 92501 Telephone: (951) 686-1450 Facsimile: (951) 686-3083 9. Time 1s of the essence for each and every provision of this 10. This Agreement shall be governed by and construed with the laws of the State of California. Venue shall be in Riverside County. 11. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 24632.00029\7636514.3 3 6 12. This Agreement may be signed in counterparts, each of which shall constitute an original. 13. This Agreement shall be binding on the successors and assigns of the Parties and shall not be assigned by either Party without the prior written consent of the other Party. 14. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement shall survive any such expiration or termination. 15. The recitals set forth above are true and correct and are incorporated into this Agreement as though fully set forth herein. 16. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties 1 7. It is agreed that all understandings and agreements heretofore had between the Parties respecting the transactions contemplated by this Agreement are merged in this Agreement, which fully and completely expresses the agreement of the Parties. There are no representations, warranties, or agreements except as specified and expressly set forth herein, in the exhibits annexed hereto, or to be set forth in the instruments or other documents delivered or to be delivered hereunder. 18. Any corporation signing this Agreement, and each agent, officer, director, or employee signing on behalf of such corporation, but in his or her individual capacity, represents and warrants that said Agreement is duly authorized by and binding upon said corporation, duly adopted by said board of directors and transcribed in full in the minutes of said corporation. Any individual signing this Agreement on behalf of a partnership or business entity other than a corporation represents that such other entity has power and authority to enter into this Agreement, and by such person's act is bound hereby. IN WITNESS WHEREOF, the Parties have executed this Agreement the day and fi t b 'tt year irs a ove wr1 en, RIVERSIDE COUNTY RIVERSIDE-CORONA RESOURCE TRANSPORTATION COMMISSION CONSERVATION DISTRICT By: By: Anne Mayer Signature Executive Director Name Title 24632.00029\ 7636514.3 4 7 I P3028-C 1-00481 EDMUND G. BROWN JA. GOVERNOR ~ MATTHEW RooF11ouEz l ............... ~ SiCR:£1ARY fOA ~ £-NV1Jh;)NM&"M141. P~OTE"CTION Santa Ana Regional Water Quality Control Board May 22, 2013 David Thomas Riverside County Transportation Commission BECHTEL INFRASTRUCTURE CORPORATION 3850 E. Vine Street, Suite 210 Riverside, CA 92507 REVISEDCLEAN WATER ACT SECTION 401 WATER QUALITY STANDARDS CERTIFICATION FOR THE SR-91 CORRIDOR IMPROVEMENT PROJECT, COUNTY OF RIVERSIDE, CALIFORNIA (ACOE REFERENCE NO. NOT AVAILABLE) (SARWQCB PROJECT NO. 332012-27) Dear Mr. Thomas: We received a request on May 21, 2013 from Elvira Gaddi of Parsons Consulting, to revise the May 15, 2013, Clean Water Act Section 401 Water Quality Standards Certification (Certification) for the subject project. We have considered this request, and have revised the Certification accordingly. This amended Certification replaces the Certification for this project dated May 15, 2013. On August 10, 2012, we received an application for Clean Water Act Section 401 Water Quality Standards Certification ("Certification"), from the Riverside County Transportation Commission for a long-term project to increase the traffic carrying capacity of the SR-91 and 1-15 corridor area, in order to more effectively serve existing and future travel demands between and within Riverside and Orange counties. This letter responds to your request for certification that the proposed project, described in your application and summarized below, will comply with State water quality standards outlined in the Water Quality Control Plan for the Santa Ana River Basin (1995) (Basin Plan) and subsequent Basin Plan amendments: Project Description: The SR-91 Corridor Improvement Project (CIP) consists of two phases, the Initial Phase and the Ultimate Project. Project implementation is planned to occur over a twenty (20) year period. The Initial Phase consists of improvements on SR-91 from approximately the Orange/Riverside County line to the 1-15 interchange (a distance of approximately 8 miles) and single- lane direct connectors to and from 1-15 south, extending CAROLE H. BEsw1cK. CHAIR I KuHr V. BERCHTOLD, EXEcur1vE 0FF1CER 3737 Main St., Suite 500, Riverside, CA 92501 I www.waterboards.ca.gov/santaana C.1 REC'YCU:O PAPER 9 EXHIBIT A 401, 1600 Streambed Alteration Agreement, and Biological Opinion ( 404 is in process) 24632.00029\ 7636514.3 5 8 David Thomas - 2 - May 22, 2013 Riverside County Transportation Commission 401 Certification No. 332012-27 Receiving waters: from SR-91 to the Ontario Avenue interchange (a distance of approximately 3 miles). Project components for the Initial Phase include the construction of two tolled express lanes, one general purpose (GP) lane, and auxiliary lanes along the SR-91. An additional tolled express lane will be constructed along the 1-15 between Ontario Avenue and SR-91. The proposed Ultimate Project (UP) is planned to be constructed by 2035 after the Initial Phase has been completed. The UP would include: improvements along SR- 91 from SR-241 to SR-71 with the construction of one GP lane in each direction; improvements on SR-91 from 1-15 to Pierce Street with the construction of one GP lane in each direction; improvements on 1-15 from Ontario Avenue to Cajalco Road with the extension of the tolled express lane access point to Cajalco Road; and, improvements on 1-15 between SR-91 and Hidden Valley Parkway with the construction of direct connectors between SR-91 eastbound to 1-15 northbound and 1-15 southbound to SR-91 westbound. The work will take place within Sections 5, 8, 16, and 17 of Township 4 South, Range 6 West, of the U.S. Geological Survey Corona South quadrangle map (33° 52' 13.64" N/ - 117° 44' 41.63" W). 27 named and unnamed watercourses tributary to Santa Ana River Reaches 2 and 3, in the area between: Gypsum Canyon Road and SR 91, on the west; Corona Avenue and 1-15, on the north; Pierce Street and SR 91 on the east;' and, Cajalco Road and 1-15 on the south. Named watercourses include: Temescal Ck. Reaches 1 and 2 Arlington Valley Channel Wardlow Wash I Fresno Canyon These watercourses are listed on Table 4. "Description of Activities, Features and Affected Acreages," and shown on the "401 Impacts Exhibit," submitted on February 13, 2013. 10 David Thomas Riverside County Transportation Commission 401 Certification No. 332012-27 Fill area: Permanent impact to Wetland Habitat Temporary impact to Wetland Habitat Permanent impact to Streambed Habitat Temporary impact to Streambed Habitat Dredge/Fill volume: N/A -3 -May 22, 2013 0.27 acre 370 linear feet 0.09 acre 64 linear feet 0.19 acre 964 linear feet 3.34 acre 3,364 linear feet Federal permit: U.S. Army Corps of Engineers Nationwide Permit No. 14 You have proposed to mitigate water quality impacts as described in your Certification application. The proposed mitigation is summarized below: Onsite Water Quality Standards Mitigation Proposed: • Standard water quality related best management practices (BMPs) will be employed during construction activities. Offsite Water Quality Standards Mitigation Proposed: • The applicant will acquire mitigation credits from the Santa Ana Watershed Association (SAWA) In-Lieu Fee Program to compensate for the impacts to waters of the U.S. at the following impact-to-mitigation ratios: 0.27 acre of permanent mitigated at 5: 1 1.35 acres impact to wetlands 0.19 of permanent impact mitigated at 3: 1 0.57 acre to non-wetlands 3.43 of temporary impacts mitigated at 1: 1 3.34 acres I to non-wetlands Should the proposed project impact state-or federally-listed endangered species or their habitat, implementation of measures identified in consultation with U.S. Fish and Wildlife Service and the California Department of Fish and Wildlife will ensure those impacts are mitigated to an acceptable level. Appropriate BMPs will be implemented to reduce construction-related impacts to Waters of the State according to the requirements of Order No. 99-06-DWQ (NPDES Permit No. CAS000003), commonly known as the CalTrans Storm Water Permit, and subsequent iterations thereof. (While the California Department of Transportation (CalTrans) is not the applicant, the project is being built for CalTrans and to their specifications. 11 David Thomas Riverside County Transportation Commission 401 Certification No. 332012-27 - 4 - May 22, 2013 CalTrans' specifications include measures to comply with Order No. 99-06-DWQ.) Upon completion, each phase of the project will be transferred to the CalTrans, which will become responsible for its operation and maintenance (O&M). Future O&M of the project will be conducted according to the requirements of Order No. 99-06-DWQ (NPDES Permit No. CAS000003) and subsequent iterations thereof. Pursuant to California Code of Regulations, Title 14, Chapter 3, Section 15096, as a responsible agency, the Regional Board is required to consider an Environmental Impact Report (EIR) or Negative Declaration prepared by the lead agency in determining whether to approve a Section 401 Certification. A responsible agency has responsibility for mitigating and avoiding only the direct and indirect environmental effects of those parts of the project which it decides to carry out, finance, or approve. Further, the responsible agency must make findings as required by Sections 15091 and, if necessary, 15093, for each and every significant impact of the project. As required by Section 15096, the Regional Board has considered the EIR prepared for the proposed project, and information provided subsequently in the Riverside County Transportation Commission's application, in approving this Certification. Based on the mitigation proposed and the conditions set forth in this Certification, Board staff has concluded that the project's impacts to water quality will be reduced to a less than significant level and beneficial uses will be protected. The Regional Board has independently considered those parts of the project's EIR that are related to the Board's jurisdiction in making this certification, and finds that changes or alterations have been required or incorporated into the proposed project which avoid impacts to water quality or which mitigate impacts to a less than significant level. This 401 Certification is contingent upon the execution of the following conditions: 1) The applicant must comply with the requirements of the applicable Clean Water Act section 404 permit. 2) Proposed mitigation shall be timely implemented. Materials documenting the purchase of necessary mitigation credits shall be provided to this office prior to the discharge of fill to, or the dredging or excavation of material from, waters of the state. 3) All materials generated from construction activities associated with this project shall be managed appropriately. This shall include identifying all potential water pollution sources within the scope of work of this project, and incorporating all necessary pollution prevention BMPs as they relate to each potential pollution source identified. 12 David Thomas Riverside County Transportation Commission 401 Certification No. 332012-27 - 5 - May 22, 2013 4) The project proponent shall utilize appropriate BMPs during project construction to minimize the controllable discharges of sediment and other wastes to drainage systems or other waters of the state and of the United States. 5) Substances resulting from project-related activities that could be harmful to aquatic life, including, but not limited to, petroleum lubricants and fuels, cured and uncured cements, epoxies, paints and other protective coating materials, portland cement concrete or asphalt concrete, and washings and cuttings thereof, shall not be discharged to soils or waters of the state. All waste concrete shall be removed. 6) Motorized equipment shall not be maintained or parked within or near any stream crossing, channel or lake margin in such a manner that petroleum products or other pollutants from the equipment may enter these areas under any flow conditions. Vehicles shall not be driven or equipment operated in waters of the state on-site, except as necessary to complete the proposed project. No equipment shall be operated in areas of flowing water. 7) This Water Quality Certification is subject to the acquisition of all local, regional, state, and federal permits and approvals as required by law. Failure to meet any conditions contained herein or any the conditions contained in any other permit or approval issued by the State of California or any subdivision thereof may result in the revocation of this Certification and civil or criminal liability. 8) Best management practices to stabilize disturbed soils must include the use of native plant species whenever feasible. 9) Construction de-watering discharges, including temporary stream diversions necessary for project construction may be regulated under Regional Board Order No. RS-2009-0003, General Waste Discharge Requirements for Discharges to Surface Waters that Pose an Insignificant (De Minimus) Threat to Water Quality. For more information, please review Order No. RS-2009- 0003 at www.waterboards.ca.gov/santaana/ 1 O)A copy of this Certification and any subsequent amendments must be maintained on site for the duration of work as a denoted element of any project SWPPP or WQMP. 11)Applicant shall ensure all procedures and policies specified within the project's WQMP shall adequately address any hydraulic conditions of concern generated during and as a result of this project. 13 David Thomas Riverside County Transportation Commission 401 Certification No. 332012-27 - 6 - May 22, 2013 12) Applicant shall ensure that all fees associated with this project shall be paid to each respective agency prior to conducting any on-site construction activities. Under California Water Code, Section 1058, and Pursuant to 23 CCR §3860, the following shall be included as conditions of all water quality certification actions: (a) Every certification action is subject to modification or revocation upon administrative or judicial review, including review and amendment pursuant to Section §13330 of the Water Code and Article 6 (commencing with Section 3867) of this Chapter. (b) Certification is not intended and shall not be construed to apply to any activity involving a hydroelectric facility and requiring a FERC license or an amendment to a FERC license unless the pertinent certification application was filed pursuant to Subsection §3855(b) of this Chapter and that application specifically identified that a FERC license or amendment to a FERC license for a hydroelectric facility was being sought. (c) Certification is conditioned upon total payment of any fee required under this Chapter and owed by the applicant. If the above stated conditions are changed, any of the criteria or conditions as previously described are not met, or new information becomes available that indicates a water quality problem, the Regional Board may require the applicant to submit a report of waste discharge and obtain Waste Discharge Requirements. In the event of any violation or threatened violation of the conditions of this certification, the holder of any permit or license subject to this certification shall be subject to any remedies, penalties, process or sanctions as provided for under state law. For purposes of section 401 (d) of the Clean Water Act, the applicability of any state law authorizing remedies, penalties, process or sanctions for the violation or threatened violation constitutes a limitation necessary to assure compliance with the water quality standards and other pertinent requirements incorporated into this certification. Violations of the conditions of this certification may subject the applicant to civil liability pursuant to Water Code section 13350 and/or 13385. This letter constitutes a Water Quality Standards Certification issued pursuant to Clean Water Act Section 401. I hereby issue an order certifying that any discharge from the referenced project will comply with the applicable provisions of Sections 301 (Effluent Limitations), 302 (Water Quality Related Effluent Limitations), 303 (Water Quality Standards and Implementation Plans), 306 (National St.andards of Performance), and 307 (Toxic and Pretreatment Effluent Standards) of the Clean Water Act, and with other applicable requirements of State law. 14 David Thomas Riverside County Transportation Commission 401 Certification No. 332012-27 - 7 -May 22, 2013 This discharge is also regulated under State Water Resources Control Board Order No. 2003-0017-DWQ (Order No. 2003-0017- DWQ), "General Waste Discharge Requirements for Dredge and Fill Discharges That Have Received Water Quality Certification" which requires compliance with all conditions of this Water Quality Standards Certification. Order No. 2003-0017-DWQ is available at: www.waterboards.ca.gov/board_decisions/adopted_orders/water_quality/2003/wqo/wqo 2003-0017. pdf Should there be any questions, please contact Marc Brown at (951) 321-4584, or Mark Adelson at (951) 782-3234. Sincereiy, Kurt V. Berchtold Executive Officer Santa Ana Regional Water Quality Control Board cc (via electronic mail): Parsons -Stephanie Blanco, Stepanie.blanco@parsons.com U.S. Army Corps of Engineers, Los Angeles Office -Jason Lambert Department of Fish and Wildlife -Juan J. Lopez-Torres SWRCB, Office of Chief Counsel -David Rice SWRCB, DWQ -Water Quality Certification Unit U.S. EPA -Supervisor of the Wetlands Regulatory Office WTR-8 15 CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE INLAND DESERTS REGION 3602 INLANO EMPIRE BLVD., SUITEC-220 ONTARIO, CA91764 STREAMBED ALTERATION AGREEMENT NOTIFICATION NO. 1600-2011-0098-R6 (REVISION 2) RIVERSIDE COUNTY TRANSPORTATION COMMISSION STATE ROUTE 91 CORRIDOR IMPROVEMENT PROJECT This Streambed Alteration Agreement (Agreement) is entered into between the California Department of Fish and Wildlife (CDFW) and Riverside County Transportation Commission (Permittee), represented by Anne Meyer. RECITALS WHEREAS, pursuant to Fish and Game Code (FGC) section 1602, Permittee notified CDFW on March 12, 2013, that Permittee intends to complete the project described herein. WHEREAS, pursuant to FGC section 1603, CDFW has determined that the project could substantially adversely affect existing fish or wildlife resources and has included measures in the Agreement necessary to protect those resources. WHEREAS, Permittee has reviewed the Agreement and accepts its terms and conditions, including the measures to protect fish and wildlife resources. NOW THEREFORE, Permittee agrees to complete the project in accordance with the Agreement. PROJECT LOCATION As shown in Figure 1 of the project Notification, the project is located within Wardlow Wash, Temescal Wash, Arlington Valley Wash Channel and multiple unnamed ephemeral washes all tributaries to the Santa Ana River, within the Cities of Corona, Norco, Riverside, Anaheim, and Yorba Linda, Riverside and Orange Counties, State of California. The project extends along the State Route (SR) 91 from the SR-91 and SR- 241 Interchange (33°52'03.90" N, 117°43'35.57" W) to SR-91and Pierce Street overcrossing (33°53'51.St' N, 117°28'42.30" W). The project also extends along Interstate (I) 15 from 1-15 and SR-91 interchange to the 1-15 and Ontario Avenue undercrossing (33°50'38.04"N, 117°32'6.19"W). PROJECT DESCRIPTION The project will be built using the "design-build" process. Design-build is a project delivery system that involves the final design and construction components of a project 16 Notification #1600-2011-0098-RB Streambed Alteration Agreement Page 2of16 being awarded to a single entity known as the design-builder. Permittee will be responsible for ensuring that all avoidance, minimization, and/or mitigation measures required by this Agreement are implemented. The project is limited to improvements on SR-91 from approximately the Orange/Riverside County line to the 1-15 interchange (a distance of approximately 8 miles) and single-lane direct connectors to and from 1-15 south, extending from SR-91 to the Ontario Avenue interchange (a distance of approximately 3 miles). Project components include the construction of two express lanes from Orange-Riverside County Line to 1-15, one general purpose lane between SR-71 and 1-15, auxiliary lanes along the SR-91, express lane along the 1-15 between Ontario Avenue and SR-91. The SR-91 Corridor Improvement Project (CIP) will require bridge work involving 34 structures. This work will be a combination of modifications to existing structures, replacement of existing structures and construction of new bridges. Existing bridges will be seismically retrofitted. The existing local road interchanges on SR-91 at Green River Road, Auto Center Drive, Maple Street, Lincoln Avenue, West Grand Boulevard, and Main Street will be modified to accommodate the mainline improvements on SR-91 . The existing system interchanges with SR-91 at SR-241, SR-71, and 1-15 will be modified to accommodate the improvements on SR-91. The project will require improvements of 31 cross-drainage, inlet, and contributory structures as specified in Table 2 of the Notification. Additional utility relocation, sound walls and retaining walls construction, and landscape activities will be part of this project. Permanent Best Management Practices (BMPs} will be also constructed as part of this project. Ramp metering will be provided on all the local on-ramps on SR-91 in the limits, if not present already. Where feasible, high occupancy vehicle bypass lanes will be constructed on ramps that are modified. Construction of improvements at the local road connections will implement current Americans with Disabilities Act standards for curb ramp and sidewalks. These types of modifications are planned at Auto Center Drive, Maple, Street, Lincoln Avenue, and Main Street interchanges in the City of Corona. The SR-91 CIP accommodates the existing Santa Ana River Trail and bicycle facilities on local streets. Bike lanes will be provided at Green River Drive, Smith Avenue, and Maple Street. The outside travel lane will be designed to accommodate bikes near Lincoln Avenue and Main Street in lieu of dedicated bike lanes. PROJECT IMPACTS Existing native fish and wildlife resources the project could potentially substantially adversely affect include: INSECTS -American rubyspot (Hetaerina Americana), common green darner (Anax junius), pale-faced clubskimmer (Brechmorhoga mendax), western tiger swallowtail (Papi/io rutulus), Sara orangetip (Anthocharis sara}, painted lady (Vanessa cardw), BIRDS -American crow (Corvus brachyrhynchos), American goldfinch (Cardueis tristis), wood duck (Aix sponsa), mallard (Anas platyrhynchos), California quail (Cal/ipepla californica), great blue heron (Ardea herodias), snowy egret (Egretta thu/a), black-crowned night-heron (Nycticorax nycticorax}, turkey vulture ( Cathartes aura}, white-tailed kite (Elanus leucurus), red-shouldered hawk (Buteo 17 Notification #1600-2011-D098-R6 Streambed Alteration Agreement Page 3 of 16 lineatus), red-tailed hawk (Buteo jamaicensis), American kestrel (Fa/co spa1Verius), ring-billed gull (Larus delawarensis), Forster's tern (Sterna forsteri), acorn woodpecker (Me/anerpes formicivorus), Nuttall's woodpecker (Picoides nuttallil), Hutton's vireo (Vireo huttom), warbling vireo (Vireo gi/vus), tree swallow (Tachycineta bicolor), violet- green swallow (Tachycineta thalassina), northern rough-winged swallow (Stelgidopteryx serripennis), white-crowned sparrow (Zonotrichia leucophrys), burrowing owl (Athene cunicu/aria), black-chinned hummingbird (Archi/ochus alexandn), barn owl (Tyto alba), northern flicker (Co/aptes auratus), Nuttall's woodpecker (Picoides nuttalli1), ash- throated flycatcher (Myiarchus cinerascens), Pacific slope flycatcher (Empidonax difficilis), black phoebe ( Sayornis nigricans), mourning dove (Zenaida macroura), Anna's hummingbird (Calypte anna), western kingbird (Tyrannus verticalis), western yellow warbler (Dendroica petechia brewsten), California towhee (Pipi/o crissalis), killdeer ( Charadrius vociferous), black-necked stilt (Himantopus mexicanus), Costa's hummingbird (Calypte costae), Say's phoebe (Sayornis saya), western tanager (Piranga ludoviciana), spotted towhee (Pipilo maculates); MAMMALS -desert cottontail ( Sy/vilagus audubonil), San Diego black-tailed jackrabbit (Lepus californicus bennetti1), California ground squirrel ( Spermophilus beechey1), Botta's pocket gopher (Thomomys bottae), coyote (Canis latrans), northern raccoon (Procyon Jotor), western gray squirrel (Sciurus griseus), California ground squirrel (Spermophilus beechey1); REPTILES -western fence lizard ( Sce/oporus occidentalis), side-blotched lizard (Uta stansburiana), Belding's orange-throated whiptail (Cnemidophorus hyperythrus belding1); AMPHIBIANS PLANTS-poison oak (Toxicodendron diversilobum), mugwort (Artemisia doug/asiana), broom baccharis (Baccharis sarothroides), Mexican elderberry (Sambucus mexicana), coast live oak (Quercus agrifolia var. agrifolia), western sycamore (Platanus racemosa), western cottonwood (Populus fremontil), narrow-leaved willow (Salix exigua), Goodding's black willow (Salix gooddingil), red willow (Salix laevigata), arroyo willow (Salix lasiolepis); and all other fish and wildlife resources in the project vicinity. The adverse effects the project could have on the fish and wildlife resources identified above include the permanent loss of nesting/breeding and foraging habitat, and alteration of wildlife corridors. The construction of the project will result in permanent impacts to 1. 73 acres of CDFW jurisdictional areas consisting of 0.52 acres of impacts to willow riparian woodland, 0.31 acres of unvegetated streambed, and 0.90 acres of concrete channel. The project will temporarily impact to 2.80 acres of CDFW jurisdictional areas consisting of 0.20 acres of unvegetated streambed, and 2.60 acres of concrete channel. Total project impacts of 4.53 acres of jurisdictional areas are authorized under this Agreement. If any additional impacts are anticipated to riparian habitat and/or streambed, during project activities, Permittee shall submit an application for an amendment to this Agreement for authorization of those impacts. 18 Notification #1600-2011-0098-RB Streambed Alteration Agreement Page4of 16 MEASURES TO PROTECT FISH AND WILDLIFE RESOURCES 1. Administrative Measures Permittee shall meet each administrative requirement described below. 1.1 Documentation at Project Site. Permittee shall make the Agreement, any extensions and amendments to the Agreement, and all related notification materials and California Environmental Quality Act (CEQA) documents, readily available at the project site at all times to present to CDFW personnel, or personnel from another state, federal, or local agency upon request. 1.2 Providing Agreement to Persons at Project Site. Permittee shall provide copies of the Agreement and any extensions and amendments to the Agreement to all persons who will be working on the project at the project site on behalf of Permittee, including but not limited to contractors, subcontractors, inspectors, and monitors. 1.3 Notification of Conflicting Provisions. Permittee shall notify CDFW if Permittee determines or learns that a provision in the Agreement might conflict with a provision imposed on the project by another local, state, or federal agency. In that event, CDFW shall contact Permittee to resolve any conflict. 1.4 Project Site Entrv. Permittee agrees that CDFW personnel or representatives of CDFW may enter the project site at any time to verify compliance with the Agreement. 1.5 Compliance with the MSHCP and Take of Listed Species. The issuance of this Agreement does not authorize the take of any state and/or federally listed threatened, endangered, or fully protected species. Additionally, it does not infer that the project is consistent with the Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) or that the project is a Biologically Equivalent or Superior Preservation Alternative. If modifications to the project are necessary to meet MSHCP requirements because the project is found during the MSHCP review process to be inconsistent with the MSHCP and/or the Western Riverside County Regional Conservation Authority (RCA) and/or Wildlife Agencies (CDFW and/or U.S. Fish and Wildlife Service) do not agree the project is a Biologically Equivalent or Superior Preservation Alternative, then a request for an amendment to this Agreement will be required. 1.6 Take of Nesting Birds. Sections 3503, 3503.5, and 3513 of the FGC prohibit take of all birds and their active nests, including raptors and other migratory non-game birds (as listed under the Migratory Bird Treaty Act). 19 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page 5of16 2. Avoidance and Minimization Measures To avoid or minimize adverse impacts to the fish and wildlife resources identified above, Permittee shall implement each measure listed below. 2.1 Wildlife Crossings. Bridges and culverts within jurisdictional areas that will be extended or modified by the project shall be designed to provide openness ratios suitable for wildlife depending of the size of each existing structure. Permittee shall submit to CDFW for review and approval the final design plans and openness ratio of West Prado Road Undercrossing (Sta 60+00) and Fresno Canyon Crossing (Sta 90+00), no later than 60 days prior to construction within these areas. Final plans for fencing around the B Canyon (Sta 18+40) crossings shall be submitted to CDFW for review and approval no later than 60 days prior to construction in this area. Approval of these plans is required prior to construction of these facilities. 2.2 Lighting and Noise Attenuation Plan. No lighting shall be allowed to impact jurisdictional areas. If night work is required adjacent to jurisdictional areas, no later than 60 days prior to construction, Permittee shall submit to CDFW for review and approval a Lighting and Noise Attenuation Plan. This plan shall include project-specific avoidance and minimization measures designed to allow wildlife to move within CDFW jurisdictional areas, open space, and conserved areas without hindrance. The Lighting and Noise Attenuation Plan shall be reviewed by a CDFW-approved qualified biologist prior to submission to CDFW. 2.3 Biological Monitor. A qualified biologist shall be onsite to monitor all activities that result in the clearing of sensitive habitat as well as grading, excavation, and/or other ground-disturbing activities in jurisdictional areas. Permittee shall flag the limits of grading and the jurisdictional areas, perform necessary surveys, and take photographs during the construction process, as required by this Agreement. The biological monitor is required to halt construction activities if threatened or endangered species are identified and notify the appropriate agencies immediately. 2.4 Bat Surveys. Using an appropriate combination of structure inspection, sampling, exit counts, and acoustic surveys, a CDFW-approved biologist shall survey each structure and the surrounding area that may be impacted by the project for bats. A minimum of 30 days prior to performing bat surveys Permittee shall submit qualifications of the bat biologist for CDFW approval. If bats are found using any bridges or culverts within the project area, the biologist shall identify the bats to the species level, and evaluate the colony to determine its size and significance. The bat survey shall include: 1) the exact location of all roosting sites (location shall be adequately described and drawn on a map), 2) the number of bats present at the time of visit (count or estimate), 3) each species of bat present shall be named {include how the species was identified), 4) the location, amount, distribution and age of all bat guano shall be described and pinpointed on a map, 20 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page6of16 and 5) the type of roost: night roost (rest at night while out feeding) versus a day roost (maternity colony) must also be clearly stated. The results of the bat survey shall be submitted to CDFW no later than 60 days prior to the initiation of construction activities. Reports shall be mailed to CDFW Inland Deserts Region at the address below under Contact Information. Please reference SAA# 1600-2011-0098-R6. If any structures house a maternity colony of bats, construction activities shall not occur during the recognized bat breeding season (March 1 to October 1 ). This agreement does not authorize the take of adult or juvenile bats. 2.5 Bridge-dwelling Wildlife Protection. Permittee shall comply with the following bridge-dwelling wildlife protection measures if bridge-dwelling wildlife is detected in the bridges or culverts. All contractors, subcontractors, and employees shall also comply with these measures and it shall be the responsibility of Permittee to ensure compliance. 2.5.1 A CDFW approved biologist shall design and direct implementation of exclusionary devices designed to prevent birds and bats from utilizing bridges/culverts before construction activities begin. Exclusionary devices shall be installed on all bridges prior to the initiation of nesting season {February 15). Exclusionary devices shall cover both the sides and bottom of each bridge. Passage underneath each bridge (through the channel) shall not be impeded. An acceptable example is bird block netting with W' x Y2" mesh or smaller. Exclusionary mesh netting must be thick plastic with no exposed overlap joints, applied tightly, regularly maintained, and shall only be installed seven days (or earlier) after a survey has been conducted. If bats are found using any bridge, roost entrances shall be fitted with one- way doors that allow exits but prevent entrance for a period of several days to encourage bats to relocate. 2.5.2 Bridge widening designs shall contain and be constructed with similar structural features to encourage continued roosting by bats. Replacement roosts should have comparable thermal stability and durability, the same or similar search image, and the same cryptic roosting conditions as the roosts they replace. 2.5.3 Alternate bat roosting structures (i.e., light-weight concrete panels) shall be installed within the vicinity of the project area. Construction and installation of roosting structures shall be supervised by a CDFW-approved biologist. The total length of the roosting structures shall be no less than one-half the total length of the expansion joints, or other suitable roosting structures, that will impacted during construction. The alternate roosting structures shall remain in place following construction and shall not be removed. Alternate bat roosting structures shall be installed as soon as possible and no 21 Notification #160D-2011-009B-R6 Streambed Alteration Agreement Page 7of16 later than 9 months prior to starting construction in the following structures) where recent surveys confirm that bats are present: West Prado Overhead (Bridge No. 56-0634L), Route 91/71 Connector Separation (Bridge No. 56-0635)) Prado Overhead (Bridge No. 56·0637 L/R). A plan on the construction, placement, and timing of installation of the alternative roosting structures shall be submitted to CDFW for review and concurrence no later than 90 days from the execution of this Agreement. If preconstruction surveys identify additional diurnal bat colonies within the project footprint, the CDFW-approved biologist shall submit a construction bat management plan to avoid impacts to bats for CDFW review and approval. The management plan shall be submitted with the bat survey report required by measure 2.4 of this Agreement. Please reference SAA# 1600-2011-0098-R6. 2.5.4 No gasoline or diesel engines shall be stored or operated under any bridge, unless the bridge has been cleared of all bats. 2.5.5 All night work (dusk until dawn} in the vicinity of the structure (i.e., roadway widening, resurfacing, lighting, land-closure setup, etc.} shall have concurrence from CDFW and the biological monitor prior to any work or scheduling of any work between March 1 and October 1. 2.5.6 The dimensions of existing hinges/expansion joints shall remain the same during and after construction. 2.5. 7 Construction activities on, under, or around, or within close proximity to bridges/culverts will be limited to October 1 to March 1, unless all bats have been excluded from the structure and concurrence has been received from CDFW. 2.5.8 Vegetation removal around structures shall be minimized. 2.5.9 If any roosting bats are discovered during construction activities all work shall stop on, under, around, or within 500-feet of the structure. 2.6 Best Management Practices. Permittee shall actively implement best management practices (BMPs) to prevent erosion and the discharge of sediment in to streams and lakes during project activities. BMPs shall be monitored daily and repaired if necessary to ensure maximum erosion and sediment control. All fiber rolls, straw waddles, and/or hay bales utilized within and adjacent to the project site shall be free of nonnative plant materials. Fiber rolls or erosion control mesh shall be made of loose"weave mesh that is not fused at the intersections of the weave, such as jute, or coconut (coir) fiber, or other products without welded weaves. Non-welded weaves reduce entanglement risks to wildlife by allowing animals to push through the weave, which expands when spread. 22 Notification #1600-2011-0098-RS Streambed Alteration Agreement Page 8of16 2. 7 ESA Fencing. The biological monitor shall establish Environmentally Sensitive Area (ESA) fencing around all jurisdictional areas identified in the jurisdictional delineation that will be avoided by the project. No construction work shall be allowed in areas limited by the ESA fencing. ESA fencing shall be inspected daily by the biological monitor, or project personnel working under the direction of the biological monitor. 2.8 Nesting Bird Surveys. Permittee shall not remove vegetation from the project site during the period of March 15 through September 15 to avoid impacts to nesting birds. If project construction cannot be avoided during the period of March 15 through September 15, Permittee shall have a qualified biologist survey all potential nesting vegetation within the project site for nocturnal and diurnal nesting birds, prior to commencing project activities (including construction and/or site preparation). Surveys shall be conducted at the appropriate time of day, no more than three days prior to vegetation removal and/or disturbance. Documentation of surveys and findings shall be submitted to CDFW for review and concurrence prior to conducting project activities. Please refe re nee SAA # 1600-2011-0098-R6. If no nesting birds were observed and concurrence was received from CDFW, project activities may begin. If an active bird nest is located, the nest site shall be fenced a minimum of 200 feet (500 feet for endangered, threatened, and candidate species; species of special concern; and all raptors) in all directions, and this area shall not be disturbed until after September 15 and until the nest becomes inactive. If threatened or endangered species are observed in the area, no work shall occur during the breeding season (March 15 through September 15) to avoid direct or indirect (noise) take of listed species. 2.9 Burrowing Owl. Prior to the initiation of any project activities in jurisdictional areas, Permittee shall conduct a burrowing owl habitat assessment. The assessment shall be conducted by a biologist knowledgeable of burrowing owl habitat, ecology, and field identification of the species and burrowing owl sign. The assessment shall consist of walking the project site to identify the presence of burrowing owl habitat. Burrowing owls use a variety of natural and modified habitats for nesting and foraging that is typically characterized by low growing vegetation. Burrowing owl habitat includes, but is not limited to: native and nonnative grassland, interstitial grassland with shrub lands, shrub lands with low density shrub cover, golf courses, drainage ditches, earthen berms, unpaved airfields, pastureland, dairies, fallow fields, and agricultural use areas. Burrowing owls typically use burrows made from fossorial (adapted for burrowing or digging) mammals such as ground squirrels or badgers, and often manmade structures such as earthen berms; cement culverts; cement, asphalt, rock, or wood debris piles; or openings beneath cement or asphalt pavement. A report summarizing the results of the habitat assessment shall be submitted to CDFW within 30 days following the completion of the assessment. Please note that burrowing owl habitat assessments dated more than one year prior to the construction start date will not 23 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page9of16 be accepted by CDFW. If no suitable habitat is found on-site (i.e., if the site is completely covered in chaparral habitat, cement, or asphalt), no additional surveys are necessary. If suitable habitat is found onsite, burrowing owl surveys must be conducted during the breeding season of March 1 through August 31 in accordance with the attached Burrowing Owl Survey Instructions to determine the use of the site by burrowing owls. If burrowing owls are found onsite, Permittee shall comply with the MSHCP and submit the survey results and MSHCP compliance documents at least five days prior to commencing project activities to CDFW Inland Deserts Region at the address below under Contact Information. Please reference SAA# 1600-2011-0098-R6. CDFW recommends that focused surveys be conducted over all potential suitable habitat within the entire project site, even areas outside State jurisdiction pursuant to Section 1600 of the FGC. The burrowing owl is protected under the Federal Migratory Bird Treaty Act (MBTA) of 1918 (50 C.F.R. Section 10.13) and Sections 3503, 3503.5 and 3513 of the FGC, which prohibit take of all birds and their nests, including raptors. Therefore, it is the responsibility of the project proponent to ensure compliance with these laws for the entire project site. 2.10 Nonnative plant species. CDFW recommends the use of native plants to the greatest extent feasible in the landscaped areas adjacent to and/or near mitigation/open space areas and within or adjacent to stream channels. Permittee shall not plant, seed, or otherwise introduce invasive nonnative plant species to the landscaped areas adjacent to and/or near mitigation/open space areas and within or adjacent to stream channels (minimum 100 foot setback from open space areas and 150 foot setback from stream channels and wetland/riparian mitigation sites). Invasive nonnative plant species not to be used include those species listed on the "California Invasive Plant Inventory, February 2006" and the "February 2007 Inventory Update", (which are updates to Lists A & B of the California Exotic Pest Plant Council's list of "Exotic Pest Plants of Greatest Ecological Concern in California as of October 1999"). This list includes: pepper trees, pampas grass, fountain grass, ice plant, myoporum, black locust, capeweed, tree of heaven, periwinkle, bush lupine, sweet alyssum, English ivy, French broom, Scotch broom, Spanish broom, and pepperweed. A copy of the complete list can be obtained by contacting the California Invasive Plant Council by phone at (510) 843-3902, at their website at www.cal-ipc.org, or by email at info@cal-ipc.org. 2.11 Best Management Practices. Permittee shall actively implement BMPs to prevent erosion and the discharge of sediment in to streams and lakes during project activities. BMPs shall be monitored daily and repaired if necessary to ensure maximum erosion and sediment control. All fiber rolls, straw waddles, and/or hay bales utilized within and adjacent to the project site shall be free of nonnative plant materials. Fiber rolls or erosion control mesh shall be made of loose-weave mesh that is not fused at the intersections of the weave, such as jute, or coconut (coir) 24 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page 10of16 fiber, or other products without welded weaves. Non-welded weaves reduce entanglement risks to wildlife by allowing animals to push through the weave, which expands when spread. 2.12 Pollution and Litter. Permittee shall comply with all litter and pollution laws. All contractors, subcontractors, and employees shall also obey these laws and it shall be the responsibility of Permittee to ensure compliance. 2.12.1 Permittee shall not allow water containing mud, silt, or other pollutants from grading, aggregate washing, or other activities to enter a lake, streambed, or flowing stream or be placed in locations that may be subjected to high storm flows. 2.12.2 Spoil sites shall not be located within a lake, streambed, or flowing stream or locations that may be subjected to high storm flows, where spoil shall be washed back into a lake, streambed, or flowing stream where it will impact streambed habitat and aquatic or riparian vegetation. 2.12.3 Raw cement/concrete or washings thereof, asphalt, paint, or other coating material, oil or other petroleum products, or any other substances which could be hazardous to fish and wildlife resources resulting from project related activities shall be prevented from contaminating the soil and/or entering the waters of the State. These materials, placed within or where they may enter a lake, streambed, or flowing stream by Permittee or any party working under contract or with the permission of Permittee, shall be removed immediately. 2.12.4 No broken concrete, cement, debris, soil, silt, sand, bark, slash, sawdust, rubbish, or washings thereof, oil or petroleum products, or other organic or earthen material from any construction or associated activity of whatever nature shall be allowed to enter into or be placed where it may be washed by rainfall or runoff into waters of the State. When operations are completed, any excess materials or debris shall be removed from the work area. No rubbish shall be deposited within 150 feet of the high water mark of any lake, streambed, or flowing stream. 2.12.5 No equipment maintenance shall be done within or near any lake, streambed, or flowing stream where petroleum products or other pollutants from the equipment may enter these areas under any flow. 3. Mitigation Measures To mitigate for adverse impacts to the fish and wildlife resources identified above that cannot be avoided or minimized, Permittee shall implement each measure listed below. 25 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page 11of16 3.1 Habitat Restoration -Onsite. Within 30 days of project completion, Permittee shall restore all 0.2 acres of temporary impacted areas, by recontouring to pre- existing grade and contours. 3.2 Mitigation -Offsite. Permittee shall mitigate permanent impacts to 1.73 acres of CDFW jurisdictional areas by acquiring no less than 3 acres of rehabilitation credits of the Riverside Corona Resources Conservation District in-lieu fee program. Proof of payment shall be submitted to CDFW prior to construction and no later than March 3, 2014. 3.3 Plant Palette. All plant species installed within temporary impact areas shall include only local California native container plants, cuttings, and/or seed mix, and shall be typical of the existing native plant species present in the existing riparian areas within and adjacent to the project site. CDFW recommends that plant material be installed between October 1 and April 30 to maximize the benefits of the winter rainy season. 4. Reporting Measures Permittee shall meet each reporting requirement described below. 4.1 Post-construction Report. Permittee shall submit a post-construction report to CDFW that includes before and after photographs of the temporarily impacted areas within 30 days of completing restoration activities. 4.2 Monthly Reports. Permittee shall submit monthly construction status reports to CDFW. These reports will disclose the status of the impacts to CDFW jurisdictional areas per individual jurisdictional features. Any increase on the impact areas to jurisdictional features will require a written approval from CDFW prior to construction begins within each individual feature and may require an amendment of this Agreement. 4.3 Notification to CNDDB. If any sensitive species are observed on or in proximity to the project site, or during project surveys, Permittee shall submit California Natural Diversity Data Base (CNDDB) forms and maps to the CNDDB within five working days of the sightings, and provide the regional CDFW office with copies of the CNDDB forms and survey maps. The CNDDB form is available online at: http://www. dfg. ca.gov/biogeodata/cnddb/submitting_ data_ to_ cnddb .asp. This information shall be mailed within five days to: CDFW Natural Diversity Data Base, 1807 13th Street, Suite 202, Sacramento, CA 95814, Phone (916) 324- 3812. A copy of this information shall also be mailed within five days to CDFW Inland Deserts Region at the address below under Contact Information. Please reference SAA# 1600·2011-0098-R6. 26 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page 12of16 4.4 Notification of StarUEnd of Construction. Permittee shall notify CDFW, in writing, at least five (5) days prior to initiation of project activities in jurisdictional areas, and at least five (5) days prior to completion of project activities in jurisdictional areas. Notification should be mailed to CDFW Inland Deserts Region at the address below under Contact Information. Please reference SAA# 1600- 2011-0098-R6. CONTACT INFORMATION Any communication that Permittee or CDFW submits to the other shall be in writing and any communication or documentation shall be delivered to the address below by U.S. mail, fax, or email, or to such other address as Permittee or CDFW specifies by written notice to the other. To Permittee: Ms. Anne Mayer Riverside County Transportation Commission 4080 Lemon Street, 3rd Floor Riverside, CA 92502 (951) 787-7141 amayer@rctc.org ToCDFW: California Department of Fish and Wildlife Inland Deserts Region Lake and Streambed Alteration Program Attn: Mr. Juan Lopez Torres 3602 Inland Empire Blvd., Suite C-220 Ontario, CA 91764 Notification #1600-2011-0098-R6 (909) 481-2945 (fax} Juan.Torres@wildlife.ca.gov LIABILITY Permittee shall be solely liable for any violations of the Agreement, whether committed by Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents or contractors and subcontractors, to complete the project or any activity related to it that the Agreement authorizes. This Agreement does not constitute CDFW's endorsement of, or require Permittee to proceed with the project. The decision to proceed with the project is Permittee's alone. 27 Notification #160Q..2011-0098-R6 Streambed Alteration Agreement Page 13of16 SUSPENSION AND REVOCATION CDFW may suspend or revoke in its entirety the Agreement if it determines that Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, is not in compliance with the Agreement. Before CDFW suspends or revokes the Agreement, it shall provide Permittee written notice by certified or registered mail that it intends to suspend or revoke. The notice shall state the reason(s) for the proposed suspension or revocation, provide Permittee an opportunity to correct any deficiency before CDFW suspends or revokes the Agreement, and include instructions to Permittee, if necessary, including but not limited to a directive to immediately cease the specific activity or activities that caused CDFW to issue the notice. ENFORCEMENT Nothing in the Agreement precludes CDFW from pursuing an enforcement action against Permittee instead of, or in addition to, suspending or revoking the Agreement. Nothing in the Agreement limits or otherwise affects CDFW's enforcement authority or that of its enforcement personnel. OTHER LEGAL OBLIGATIONS This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from obtaining any other permits or authorizations that might be required under other federal, state, or local laws or regulations before beginning the project or an activity related to it. This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from complying with other applicable statutes in the FGC including, but not limited to, FGC sections 2050 et seq. (threatened and endangered species), 3503 (bird nests and eggs), 3503.5 (birds of prey), 5650 (water pollution), 5652 (refuse disposal into water), 5901 (fish passage), 5937 (sufficient water for fish), and 5948 (obstruction of stream). Nothing in the Agreement authorizes Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, to trespass. 28 Notification #1600-2011-0098-R6 Streambed Alteration Agreement Page 14of16 AMENDMENT CDFW may amend the Agreement at any time during its term if CDFW determines the amendment is necessary to protect an existing fish or wildlife resource. Permittee may amend the Agreement at any time during its term, provided the amendment is mutually agreed to in writing by CDFW and Permittee. To request an amendment, Permittee shall submit to CDFW a completed CDFW "Request to Amend Lake or Streambed Alteration" form and include with the completed form payment of the corresponding amendment fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). TRANSFER AND ASSIGNMENT This Agreement may not be transferred or assigned to another entity, and any purported transfer or assignment of the Agreement to another entity shall not be valid or effective, unless the transfer or assignment is requested by Permittee in writing, as specified below, and thereafter CDFW approves the transfer or assignment in writing. The transfer or assignment of the Agreement to another entity shall constitute a minor amendment, and therefore to request a transfer or assignment, Permittee shall submit to CDFW a completed CDFW "Request to Amend Lake or Streambed Alteration" form and include with the completed form payment of the minor amendment fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). EXTENSIONS In accordance with FGC section 1605(b ), Permittee may request one extension of the Agreement, provided the request is made prior to the expiration of the Agreement's term. To request an extension, Permittee shall submit to CDFW a completed CDFW "Request to Extend Lake or Streambed Alteration" form and include with the completed form payment of the extension fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). CDFW shall process the extension request in accordance with FGC 1605(b) through (e). If Permittee fails to submit a request to extend the Agreement prior to its expiration, Permittee must submit a new notification and notification fee before beginning or continuing the project the Agreement covers (Fish & G. Code,§ 1605, subd. (f). EFFECTIVE DATE The Agreement becomes effective on the date of CDFW's signature, which shall be: 1) after Permittee's signature; 2) after CDFW complies with all applicable requirements under the California Environmental Quality Act (CEQA); and 3) after payment of the 29 Notification #1600-2011·0098·R6 Streambed Alteration Agreement Page 15of 16 applicable FGC section 711.4 filing fee listed at: http://www.dfg.ca.gov/habcon/cega/ceqa changes.html. TERM This Agreement shall expire on June 10, 2018, unless it is terminated or extended before then. All provisions in the Agreement shall remain in force throughout its term. Permittee shall remain responsible for implementing any provisions specified herein to protect fish and wildlife resources after the Agreement expires or is terminated, as FGC section 1605(a)(2) requires. AUiHORITY If the person signing the Agreement (signatory) is doing so as a representative of Permittee, the signatory hereby acknowledges that he or she is doing so on Permittee•s behalf and represents and warrants that he or she has the authority to legally bind Permittee to the provisions herein. AUTHORIZATION This Agreement authorizes only the project described herein. If Permittee begins or completes a project different from the project the Agreement authorizes, Permittee may be subject to civil or criminal prosecution for failing to notify CDFW in accordance with FGC section 1602. 30 Notificatie>n #1600-2011-0098-R6 Streambed Alteration Agreement Page 16of16 CONCURRENCE The undersigned accepts and agrees to comply with all provisions contained herein. FOR RIVERSIDE COUNTY TRANSPORTATION COMMISSION FOR DEPARTMENT OF FISH AND WILDLIFE I Program Manager Prepared by: Juan Lopez Torres Environmental· Scientist 31 7-/o--?o; 3 Date Date United States Department of the Interior FISH AND WILDLIFE SERVICE Ecological Services Carlsbad Fish and Wildlife Offtee . 6010 Hidden Valley Road. Suite 101 In Reply Refer To: FWS-ORIWRlV-OSB0733-l lF0547 · Mr. Aaron Burton DeparttnentofTransportatlon Di~trict 8 .Environmental Planning {MS 823} 464 West 4lh Street, 6th Floor Carlsbad, California 9201 l San Bernardino, California 92401-1400 Subject: Formal and Streamlined Section 7 Consultation.foi'StateRo~9J Corridor Improvement Project, Orange and Riverside Counties. CaUfomia Dear Mr. Burton: The U.S. Fish and Wildlife Service (Service) received the California Department of Transportation's (Ca1trans) request dated June 21. 2011, on June 23, 2011, toinitiate.fonnaJ . consultation for the State Route (SR) 91 Corridor Improvement Project ~oject). The c.onsultation·addresses the effects of the Project on the federa11y~gemd Braunton's m,itk~ vetch (Asttagalus brauntonii) and its designated critical habitat, l~tB~lPs vJreo (Vireo bellii pusillus, vireo). southwestern willow flycatcher (Empitionax traillii exti~). and Stephens' · kangar~<Hllt (Dipodomys stephensi, SKR); and the federalJy threatenedSanta Ana sucker (Catostomus s<mtaanae) and coastal California gnatcatcber (Polioptila califomica califomica,· · gnatcatcher) and its designated critical habitat. in accomance with section 1 of the Bndangered Species Act of 1973 {Act), as amended (16 U.S.C. 1531 etsf!q.}. The Project is receiving Federal funding through the Federal Hlghway Administration (FHW A)1 and Ca1trans has assumed FHW A• s responsibi1ities under the Act for this @nsultation in accordance with Section 6005 of the Safe, Accountable, Flexib1e, ... Effieient Transportation·Rquity Act: A Legacy for Users {SAFJITEA-LU) 2005, as described in the National Environmental Policy Act DeJegation Pilot Program Memorandum of Understanding between FHWA and Caltrans (effective July 1. 2007) and codified in 23 U.S.C. 327(a}(2)(A). Application for section 404 permJts under the Clean Water Act will be necessary for the Project. Caltrans, in concurrence with the U.S. Army Corps of Engineers (Corps), is the responsible lead Federal Agency acting on the Corps' behalf to ensure the impacts associated with the Corps' Federal action are addressed under the Act. On June 22, 2004. we issued a section to(a){l){B) permit for the Western Riverside County Multiple Species Habitat Conservation Plan {MSHCP). The MSHCP establishes a multiple 32 ~----··· Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 2 species conservation program in western Riverside County to minimize and mitigate habitat loss and the incidental take of covered species in association with activities covered under the permit. A large portion of the Project is located within the plan area boundary of the MSHCP. As a permittee under the MSHCP, Caltrans received incidental take authorization for Santa Ana sucker, vireo, southwestern willow flycatcher, gnatcatcher, and SKR through their section lO(a)(l)(B) permit for that plan. To extend the take coverage provided to Caltrans via the MSHCP, the proposed action must be consistent with the MSHCP and its associated implementation agreement and permit. A discussion of the Project's consistency with the MS HCP is discussed in the "Description of the Proposed Action" section below. The Riverside County portion of the Project is also located within the plan area boundary of the Habitat Conservation Plan for the Stephens' Kangaroo Rat in Western Riverside County, California (March 1996) (SKR HCP). Within this plan area boundary, take of SKR is addressed under the SKR HCP. While neither Caltrans nor FHWA are permittees under the SKR HCP, incidental take coverage provided to the Riverside County Habitat Conservation Agency (RCHCA) by the SKR HCP can be extended to Caltrans acting as the FHW A designee where the proposed action is consistent with the SKR HCP and its associated implementation agreement and permit. A discussion of the Project's consistency with the SKR HCP is discussed in the "Description of the Proposed Action" section below. This biological opinion is based on information provided in the following documents: Biological Assessment for the SR-91 Corridor Improvement Project (June 2011) (BA); response to Service comments on the BA for the SR-91 Project; MSHCP Consistency Determination for the SR-91 Corridor Improvement Project (April 2011); Supplemental Environmental Assessment and Addendum to Environmental Impact Report 583 for the Santa Ana River Mainstem Project Reach 9, Phase 2A (March 2011); Intra-Service Formal Section 7 Consultation/Conference for Issuance of Endangered Species Act Section 10( a)(l )( B) Permit TE-088609-0 for the Western Riverside County Multiple Species Habitat Conservation Plan dated June 22, 2004 (FWS- WRIV-870.19) (Service 2004); and various other communications between Caltrans, their consulting biologists, and Service. You have determined the Project may affect, but is not likely to adversely affect Braunton's milk-vetch and its designated critical habitat, southwestern willow flycatcher, and Santa Ana Sucker based on avoidance of occupied habitat and general construction avoidance and minimization measures to avoid indirect effects from construction. Based on the conservation measures to be implemented by Caltrans and Riverside County Transportation Commission (RCTC), we concur with your determination that the Project is not likely to adversely affect the milk-vetch and its designated critical habitat, southwestern willow flycatcher, and Santa Ana Sucker. Therefore, those species are not addressed further in this formal consultation, other than as discussed in the Conservation Measures section. Additionally, you have determined there would be no effect to vireo and SKR in Orange County based on avoidance of occupied habitat and general construction avoidance and minimization measures to avoid indirect effects from construction. Adverse impacts to the gnatcatcher in Orange County will be addressed in the 33 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) following biological opinion. Adverse impacts to the gnatcatcher, vireo, and SKR in Riverside County are addressed through compliance with the MSHCP and SKR HCP as discussed below. CONSULTATION HISTORY On February 18, 2011, we provided comments on the draft BA for the Project. On June 23, 2011, we received a letter from Caltrans requesting formal consultation, and on 3 July 19, 2011, we responded to the request and committed to completing the biological opinion by November 5, 2011. Between June 2011 and October 2011, we attended several project status meetings and worked directly with Caltrans and the biological consultant to clarify the project description and impacts to the gnatcatcher and its designated critical habitat. We provided a draft project description to your agency and the RCTC on September 13, 2011. On October 20, 2011, we attended a site visit to clarify impacts and conservation measures. We received information regarding quantification of impacts and additional conservation measures from Caltrans and Chino Hills State Park on October 24 and 28, 2011. BIOLOGICAL OPINION DESCRIPTION OF THE PROPOSED ACTION The proposed action by FHWA is the funding of capacity, operational, and safety improvements along SR-91 and Interstate 15 (I-15). The Project occurs along SR-91 from SR-241 in Anaheim and Yorba Linda to Pierce Street in the city of Riverside, a distance of approximately 14 miles, and on I-15, from the Hidden Valley Parkway interchange to the Cajalco Road interchange, a distance of approximately 6 miles. The Project encompasses a large area and passes through mostly urban settings consisting of residential, industrialized warehouses, and commercial businesses that front the existing freeways. Large undeveloped parcels of land occur at the western end of the Project Biological Study Area 1 (BSA), and agricultural fields remain in use along 1-15. The BSA supports suitable habitat for a variety of special status animal and plant species largely within or adjacent to an urban environment (see BA figures in Appendix H). The Project will add a general-purpose lane in each direction on SR-91 from the SR-91/SR-241 interchange in Anaheim and Yorba Linda to Pierce Street in Riverside. The existing high- occupancy vehicle lanes on SR-91 between the Orange/Riverside County line and Pierce Street will be converted to tolled express lanes, and an additional tolled express lane in each direction will be constructed to I-15. The existing express lanes in Orange County will also be extended east from the Orange/Riverside County line to I-15 in Corona. A single eastbound SR-91 express lane also will extend past I-15 to McKinley Street and then transition back to a high- occupancy vehicle lane at Pierce Street. 1 The BSA for the Project was determined by incorporating electronic data provided by the design engineer into a geographic information system (GIS) layout, which included areas of potential direct effect. The limits of the BSA were extended 500 feet beyond the expected Project direct effect limits to identify sensitive biological resources within and immediately adjacent to the Project limits to account for indirect effects to those resources. 34 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 4 One tolled express lane also will be added to I-15 in each direction from Cajalco Road to Hidden Valley Parkway, and tolled express lane direct connectors will be constructed from northbound I- 15 to westbound SR-91, from eastbound SR-91 to southbound I-15, from eastbound SR-91 to northbound I-15, and from southbound I-15 to westbound SR-91. Table 1.7 in the BA summarizes existing conditions and potential build-out conditions along SR-91 and I-15. The Project includes ground-disturbing activities (e.g., grading, cutting, filling) and a number of modifications, replacements, or installations of bridges, retaining walls, sound walls, and major drainage structures and culverts. The Project will permanently impact approximately 348 acres (ac) and temporarily impact approximately 155 ac of land supporting the vegetation communities and developed/disturbed areas summarized in Table 1. Construction vehicle access and staging of construction materials will occur within disturbed or developed areas inside the existing Caltrans right-of-way (ROW) or proposed additional ROW. Vehicle access and materials staging during construction of walls outside and adjacent to the ROW will occur in approved designated areas. Equipment maintenance and staging will be in designated areas away from wildlife corridor entrances. All construction vehicle access, materials staging and storage, and other construction activities will occur within the defined disturbance limits for the Project. To the extent feasible, construction activities in biologically sensitive areas, MSHCP Conservation Areas, vegetated drainages, and coastal sage scrub in gnatcatcher critical habitat will be limited to the hours of 7:00 a.m. and 7:00 p.m.; if nighttime work is necessary, the contractor will be required to coordinate with the Service and California Department of Fish and Game (hereafter referred to as the Wildlife Agencies). Additionally, if construction occurs at night, lighting will be directed away from wildlife corridors and other biologically sensitive areas. To the extent feasible, nighttime construction activities will be limited to 1,000 feet (ft) from the Coal Canyon, Fresno Canyon, and Wardlow Wash underpass entrances to avoid adverse lighting and noise impacts to existing wildlife corridors. The Project will undertake a design-build approach to design and construction. The design-build approach integrates final design and construction activities so they occur simultaneously, thereby reducing the time between completion of the environmental process and the start of construction because one contractor is responsible for designing and building the entire project. The design- build process generally provides for flexibility not offered by the traditional process. Ideally, this process should minimize changes to the highway design and result in a shorter construction timeframe. Because the final design is fluid, Project impacts were based on the worst-case scenario to account for all possible impacts to listed species. Bridges The Project will involve modifications or replacement of approximately 24 bridge structures. Most of the bridge work involves widening the bridge structure to accommodate the freeway widening (20 structures). Also eight new bridges will be constructed. Some of the existing bridges that will be widened will also be seismically retrofitted. Bridge construction is summarized in Table 1.1 of the BA (pages 7-8). 35 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) T bl l Im ts V tati C d th L d F tu b c a e . tpac to eee OD omm1uu es an o er an scape ea res .. •l· ounty . Permanent Imeacts Vegetation Community Acres in Acres in Total Acres Orange County Riverside County Coastal Sue Scrub 4.25 31.20 35.45 -. 2.96 0.38 3.34 n· . Forest 0.01 0.46 0.47 - Nonnative Grassland 1.20 6.03 7.23 Oak Woodland 0.00 0.02 0.02 Mixed Ruderal and Omamenta1 3.64 113.32 116. D-. . .. 7.01 176.97 183.98 Subtotal 19.07 328.38 347.45 Temeorary Imeacts Coastal Sue Scrub 1.29 8.02 8.04 ri . 0.71 1.30 1.70 ·-· Rioarian Forest 0.34 0.72 1.29 Non.na.tive Grassland 0.67 3.63 4.16 Oak Woodland ~ 0.50 O.SO Mixed Ruderal and Ornamental 36.65 36.87 0.81 102.11 102.33 Subtotal S.40 152.93 154.89 Grand Total 24.47 481.31 502.34 Retaining Walls Several retaining walls are required to retain fill or cut slopes along the segments SR-91 and 1-15. The approximate wall locations and average heights for project-related retaining walls are listed in Table 1.2 of the BA (pages 8-10). Sound Walls Existing sound walls on the north side of SR-91 near the SR-91/SR-241/Gypsum Canyon Road interchange will remain unchanged. Several new or replacement sound walls on SR-91and1-15 are summarized in Table 1.3 of the BA (pages 10-12). Major Drainage Facilities Over 100 major drainage structures and numerous inlets and contributory structures, which contribute to the drainage structure (e.g., headwalls, drop structures, pipe inlets outlets) will 36 5 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-l 1F0547) either be protected in place, partially abandoned, or extended. The affected drainage/culvert structures and how they will be modified are summarized in Table 1.4 of the BA (pages 12-14). Utilities 6 Several known utility facilities occur within the Project limits. Some existing utility facilities will only require encasement or protection in-place during construction. However, the relocation of some existing utility facilities will be necessary to accommodate new construction. Table 1.5 in the BA (pages 15-17) summarizes the anticipated utility relocations. Soil Balance The Project will alter existing landforms due to grading and cut-and-fill slopes. Grading will be limited and retaining walls will be used in many locations to minimize cut and fill. No permanent, large cut slopes will be required. Areas where the widening will encroach into existing slopes will be accommodated by constructing new retaining walls. The soil and rock material excavated or cut during construction of the SR-91 Project will be used as fill elsewhere in the project construction. Because cut activities are expected to be minimal, up to an additional 748,000 cubic yards of soil material may need to be imported to the Project site in areas needing additional fill material. Landscaping and Irrigation Systems Caltrans Districts 8 and 12 will provide guidance on plant material selection and hardscape elements that consider water use, ease and safety of maintenance, avoidance of nonnative plants, corridor continuity, local cultural integration, and other context-sensitive factors. Planting plans will be included as part of the design-build process that incorporate these elements. For each phase of construction, the needed replacement planting will be under construction within 2 years of acceptance of the highway contract that damaged or removed the existing planting. The planting plan will consist of replacement planting for existing trees, shrubs, and groundcover and/or hydroseed that will be appropriate to the area and enhance the existing native species and plant communities. Irrigation work will consist of new irrigation systems as required for establishment of the replacement planting. Replacement planting will include no less than 3 years of plant establishment. Improvement along 1-15 will be constructed in the median. No landscaping or irrigation now exists in the median on 1-15 within the Project limits, and none is proposed for this Project. Right-of-Way Acquisition A limited number of areas located outside of the existing ROW may be used as temporary and permanent easements during and after the construction of the Project. A total of 10 temporary construction easements (TCEs) will be needed in the Orange County segment. Of the 10 parcels requiring TCEs, 2 of these parcels will also require permanent easements for continued 37 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) maintenance of project improvements. The areas needed for TCEs range from approximately 2,642 square feet (sf) to 27,769 (sf). All temporary and permanent easements are necessary for the construction of Project improvements, including proposed utility relocations and drainage improvements. Railroad A railroad agreement will be negotiated between Caltrans and the Burlington Northern Santa Fe railroad for widening of the West Prado Overhead and to accommodate the SR-91 westbound off-ramp realignment to Green River in Riverside County, including aerial easements over the railroad ROW. Falsework posts will need to be located within the railroad ROW line. The structure type has been configured to minimize the effect on the railroad. Santa Ana River 7 Because the Corps is in the process of relocating the segments of the Santa Ana River (SAR) as part of the unrelated SAR Reach 9 Phase 2B Realignment, the Project will not directly affect the SAR. The SAR Reach 9 Phase 2B Realignment is relocating segments of the SAR far enough away from the existing SR-91 to accommodate the widening of SR-91. However, perennial stream restoration through the Green River Golf Course to reestablish habitat for the Santa Ana sucker to offset adverse impacts from the SAR Reach 9 Phase 2B Realignment project will have been conducted prior to construction of the Project. Caltrans will coordinate with the Corps during construction of the Project to ensure these restoration areas will not be temporarily or permanently impacted during Project construction. Project Phasing The Project will be constructed in several phases over a 20-year period beginning with the Initial Project starting in 2015 and culminating in the Ultimate Project ending in 2035. The proposed phasing plans are based on the anticipated funding. The phasing plans provide for meaningful improvements, with each phase providing additional benefits to travelers on SR-91 and/or 1-15. Conservation measures for the entire Project will be implemented with the Initial Project starting in 2015. Table 1.6 in the BA summarizes the conceptual phasing plan and provides detailed descriptions of the Initial Project and Ultimate Project. Action Area According to 50 CFR § 402.02 pursuant to section 7 of the Act, the "action area" means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. Subsequent analyses of the environmental baseline, effects of the action, and levels of incidental take are based upon the action area. For this Project, we have defined the action area to include the 348-ac permanent and 155-ac temporary direct impact areas, and surrounding habitat within about 500 ft (approximately 343 ac) that may be exposed to project- related effects such as increased noise, light, dust levels, and human activity during Project 38 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) construction and operation of the facilities (Forman and Dehlinger 2000). The action area also includes the approximate 16-ac Chino Hills State Park restoration area in Scully Hill Canyon. General Conservation Measures 8 Caltrans and RCTC have agreed to implement the following conservation measures as part of the proposed action to avoid, minimize, and offset impacts to listed species. 1. Prior to ground disturbing activities, Caltrans will identify an individual as the Designated Biologist2 • Caltrans will ensure the Designated Biologist position is always filled for the life of the Project. Over the course of the Project, the Designated Biologist and each successive Designated Biologist (if applicable) will be approved by the Wildlife Agencies. The Designated Biologist will have the authority to ensure compliance with conservation measures and will be the primary agency contact for implementation of these measures. The Designated Biologist will have the authority and responsibility to halt activities that are in violation of the conservation measures. 2. Prior to vegetation clearing or construction, highly visible barriers (e.g., orange construction fencing) will be installed and maintained around areas such as gnatcatcher and Braunton's milk-vetch designated critical habitat, riparian and riverine communities, and wildlife movement corridors adjacent to the Project footprint to designate Environmentally Sensitive Areas (ESAs) to be avoided. No grading or fill activity of any type will be permitted within these ESAs. In addition, no construction activities, materials, or equipment will be allowed within the ESAs. All construction equipment will be operated to prevent accidental damage to ESAs. No structure of any kind, or incidental storage of equipment or supplies, will be allowed within ESAs. Silt fence barriers will be installed at the ESA boundaries to prevent accidental deposition of fill material in areas where ESAs are immediately adjacent to planned grading activities. 3. To minimize adverse effects from light intrusion from vehicle headlights and the potential threat of increased fires from the operation of SR-91 during final design, Caltrans and RCTC will work with the Service to investigate the possibility of adding features along SR-91 in the vicinity of the Coal Canyon wildlife crossing. For example, consideration will be given to the placement of k-rail, concrete walls, and/or hardscaping barriers along the shoulder of SR-91. In investigating these features, consideration must be given to motorist safety, freeway operations, vehicle headlight mitigation, and the potential fire threat. 4. To minimize adverse effects from dust, the construction contractor will ensure that all active parts of the construction site are watered a minimum of twice daily or more often when 2 A qualified Designated Biologist must have (1) a bachelor's degree with an emphasis in ecology, natural resource management, or related science; (2) 3 years of experience in field biology or current certification of a nationally recognized biological society, such as The Ecological Society of America or The Wildlife Society; (3) previous experience with applying the terms and conditions of a biological opinion; and (4) the appropriate permit and/or training if conducting focused or protocol surveys for listed species. 39 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) needed due to dry or windy conditions to prevent excessive amounts of dust. Additionally, the construction contractor will ensure that all material stockpiled is sufficiently watered or covered to prevent excessive amounts of dust. 9 5. Erosion and sediment control devices used for the Project, including fiber rolls and bonded fiber matrix, will be made from biodegradable materials such as jute, with no plastic mesh, to avoid creating a wildlife entanglement hazard. 6. All equipment maintenance, staging, and dispensing of fuel, oil, or any other similar activities will occur in developed or designated non-sensitive upland habitat areas. The designated upland areas will be located to prevent any spill runoff from entering waters of the United States. 7. To avoid effects to nesting birds, any native vegetation removal or tree (native or exotic) trimming activities will occur outside of the bird breeding season (i.e., February 15 to September 15). In the event that vegetation clearing is necessary during the nesting season, the Designated Biologist must conduct a preconstruction survey within 300 ft of construction areas, no more than 7 days prior to construction, to identify the locations of nests. Should nesting birds be found, an exclusionary buffer of 300 ft will be established by the Designated Biologist around each nest site. This buffer will be clearly marked in the field by construction personnel under guidance of the Designated Biologist, and construction or clearing will not be conducted within this zone until the Designated Biologist determines that the young have fledged or the nest is no longer active. In the event that construction must occur within the 300 foot buffer, the Designated Biologist will take steps to ensure that construction activities do not disturb or disrupt nesting activities. If the Designated Biologist determines that construction activities are disturbing or disrupting nesting activities, the Designated Biologist will notify the Resident Engineer, who has the authority to halt construction to reduce the noise and/or disturbance to the nests. Responses may include, but is not limited to, turning off vehicle engines and other equipment whenever possible to reduce noise, installing a protective noise barrier between the nest and the construction activities, or working in other areas until the young have fledged. 8. The construction contractor will be required to control noise from construction activity consistent with Caltrans Standard Specifications, Section 14-8.02, "Noise Control," and the Caltrans Standard Special Provisions S5-310. Noise levels from construction operations within the ROW between the hours of 9:00 p.m. and 6:00 a.m. will not exceed 86 A- weighted decibels (dBA) at a distance of 50 ft. The noise level requirement will apply to the equipment on the job site or related to the job, including, but not limited to trucks, transit mixers, or transient equipment that may or may not be owned by the contractor. 9. In biologically sensitive areas, MSHCP Conservation Areas, vegetated drainages, and coastal sage scrub in designated critical habitat for the gnatcatcher, the construction contractor will be required to control noise from construction activity by using an alternative warning method instead of a sound signal unless required by safety laws. In addition, the contractor 40 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-l 1F0547) 10 will equip all internal combustion engines with the manufacturer-recommended mufflers and will not operate any internal combustion engine on the job site without the appropriate mufflers. As directed by RCTC, the contractor will implement appropriate additional noise mitigation measures, including changing the location of stationary construction equipment, turning off idling equipment, rescheduling construction activity, notifying adjacent residents in advance of construction work, and installing acoustic barriers around stationary construction noise sources. 10. In accordance with the Municipal Codes of the Cities of Anaheim, Corona, Riverside, and Norco, the construction contractor will be required to limit construction activities to between the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday, excluding weekends and holidays. If construction is needed outside those hours or days, the construction contractor will be required to coordinate with the affected local jurisdiction. If the local jurisdiction approves construction hours that are different from those imposed by this measure, then the construction contractor will immediately request that RCTC consider a modification to this measure in accordance with the California Environmental Quality Act to allow construction during the new hours that the local jurisdiction approved. 11. In major wildlife movement corridors (i.e., Coal Canyon, Wardlow Wash, and Fresno Canyon) and areas adjacent to vireo and gnatcatcher occupied areas (approximately Post Mile (PM) ORA-91-R17.16 to PM ORA-91-R18.74), construction activities will be limited to the hours of 7:00 a.m. and 7:00 p.m., Monday through Friday. Should an exception to this measure be necessary, Caltrans will consult with the Wildlife Agencies to determine effective measures to avoid and minimize adverse impacts to these species and movement corridors. 12. A weed abatement program will be developed to minimize the importation of nonnative plant material during and after construction. In areas near Coal Canyon adjacent to Chino Hills State Park, the weed abatement program will be coordinated with California State Parks personnel. Eradication strategies will be employed should an invasion of nonnative weeds occur. Measures addressing invasive species abatement and eradication will be included in the project design and contract specifications will be implemented and enforced by the construction contractor. At a minimum, this program will include: • During construction, the construction contractor will inspect and clean construction equipment at the beginning and end of each day and prior to transporting equipment from one project location to another. • During construction, soil/gravel/rock will be obtained from weed-free sources. • Only certified weed-free straw, mulch, and/or fiber rolls will be used for erosion control. • After construction, affected areas adjacent to native vegetation will be revegetated with plant species approved by the Designated Biologist that are native to the vicinity. 41 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 11 • After construction, all revegetated areas will avoid the use of species listed in Cal-IPC's California Invasive Plant Inventory that have a high or moderate rating. • Eradication procedures (e.g., spraying, hand weeding) will be specified should an infestation occur; though herbicide use will be prohibited within and adjacent to native vegetation, except as specifically authorized and monitored by the Caltrans District Biologist. • After construction, revegetation sites will be monitored until achievement of the performance standards included in the weed abatement program or for a period of 2 to 3 years after installation to detect nonnative species prior to the establishment of the native vegetation. Braunton's Milk-vetch Conservation Measures 13. A pre-construction survey will be conducted prior to ground disturbing activities in the vicinity of the historical occurrence in Coal Canyon. This survey will be conducted during the appropriate time of year to optimize detection by a biologist familiar with the species and having the same qualifications as the Designated Biologist. Santa Ana Sucker Conservation Measures 14. The construction contractor will be required to comply with the provisions of the National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities, and any subsequent permit as they relate to construction activities. This compliance includes the submission of the permit registration documents, including a notice of intent, risk assessment, site map, Storm Water Pollution Prevention Plan (SWPPP), annual fee, and signed certification statement to the State Water Resources Control Board (SWRCB) at least 14 days prior to the start of construction. The SWPPP will meet the requirements of the construction general permit and will identify potential pollutant sources associated with construction activities; identify non-storm water discharges; develop a water quality monitoring and sampling plan; and identify, implement, and maintain Best Management Practices (BMPs) to reduce or eliminate pollutants associated with construction. The BMPs identified in the SWPPP will be implemented during construction. A notice of termination will be submitted to the SWRCB at the completion of construction and stabilization of the site. SWRCB Resolution No. 2001-046 requiring sampling and analysis will also be implemented during construction. 15. The construction contractor will be required to comply with SWRCB's General Waste Discharge Requirements for Discharges to Suiface Waters That Pose an Insignificant (De Minimus) Threat to Water Quality (Order No. R8-2009-0003), which includes general waste discharge requirements for discharges to surface waters that pose an insignificant threat to water quality, as they relate to discharge of non-storm water dewatering wastes. This 42 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 12 compliance includes submitting to the Santa Ana Regional Water Quality Control Board (RWQCB) a notice of intent at least 60 days prior to the start of construction, notification of discharge at least 5 days prior to any planned discharges, and monitoring reports by the 30th day of each month following the monitoring period. 16. The construction contractor will be required to follow the procedures outlined in the Caltrans Storm Water Quality Handbooks, Project Planning and Design Guide (March 2007 or subsequent issuance) for implementing Design Pollution Prevention and Treatment BMPs. This requirement includes coordination with the Santa Ana RWQCB with respect to feasibility, maintenance, and monitoring of BMPs as set forth in Caltrans' Statewide Storm Water Management Plan (May 2003 or subsequent issuance). The RCTC also must comply with other provisions identified in the NPDES Permit, Statewide Storm Water Permit and Waste Discharge Requirements for the State of California, Department of Transportation. Construction equipment and activities will not be allowed to enter or cross the SAR. 17. The Corps is in the process of constructing the SAR Reach 9 Phase 2 Green River Golf Club Embankment Protection Project within the action area. Following completion of the embankment construction, perennial stream habitat for the Santa Ana sucker will be reestablished within the construction footprint. Caltrans will coordinate with the Corps during construction of the Project to ensure these restoration areas will not be temporarily or permanently impacted during Project construction. 18. The 1988 supplemental environmental impact statement for the SAR project required the County of Orange to acquire and manage approximately 1, 100 ac of flood plain within Reach 9 to be operated and maintained for open space and wildlife habitat values. The acquisition of these lands, known as the Santa Ana River Canyon Habitat Management Area (HMA), was required to ensure that no changes (e.g., development projects) would take place within the HMA that might affect the releases from Prado Dam during the design flood event and the open-space habitat in the area. Consistent with the requirements of the SAR Project, Caltrans will coordinate with the Corps to ensure that the Project does not affect releases from Prado Dam or result in a permanent reduction of acreage within the HMA. Gnatcatcher Conservation Measures 19. The Designated Biologist will monitor construction within the vicinity of gnatcatcher designated critical habitat areas for the duration of the Project to flush any wildlife species present prior to construction and to ensure that vegetation removal, BMPs, ESAs, and all avoidance and minimization measures are properly implemented and followed. 20. RCTC will offset the permanent loss of 8.42 ac of occupied gnatcatcher habitat in Orange County, including 6.32 ac of designated critical habitat, by restoring 16.03 ac of habitat suitable for gnatcatcher breeding, dispersal, and foraging in Chino Hills State Park. 43 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 21. RCTC will offset the temporary loss of 3.01 ac of occupied gnatcatcher habitat in Orange County, including 2.09 ac of designated critical habitat, with in-kind, or better, habitat restoration onsite after the completion of the Project. 13 22. Prior to initiating Project impacts, a restoration plan will be developed for the permanent and temporary impacts to occupied gnatcatcher habitat, and all designated critical habitat areas. The plan will be submitted to the Service for review and approval. This plan will include, at a minimum, a detailed description of restoration methods, slope stabilization/erosion control, criteria for restoration to be considered successful, and monitoring and reporting protocol(s). The restoration plan will be implemented for a minimum of 5 years, unless success criteria are met earlier and all artificial water has been off for at least 2 years. 23. RCTC will provide appropriate funds, to be maintained in a non-wasting endowment, to Chino Hills State Park to provide for the long-term maintenance and management of the restored areas within the park to support gnatcatcher habitat in perpetuity. 24. Shielded lighting will be used for any nighttime construction adjacent to coastal sage scrub within gnatcatcher designated critical habitat. Riparian Bird Conservation Measures 25. During the bird breeding season (i.e., February 15 to September 15), the Designated Biologist will monitor riparian and riverine areas within 500 ft of active construction areas for the duration of the Project to survey for active nests and/or nesting activity to ensure breeding activities are not disrupted and to ensure vegetation removal, BMPs, ESAs, and all avoidance and minimization measures are properly implemented. 26. To ensure consistency with the MSHCP, prior to beginning construction of the Initial Project, a Habitat Mitigation and Monitoring Plan (HMMP) will be developed in coordination with Caltrans, RCTC, Corps, and Wildlife Agencies that ensures no net loss of riparian/riverine habitat value or acreage in Riverside County. Final details of the HMMP will be evaluated through coordination among the aforementioned agencies. Compensation options for the permanent and temporary impacts include possibly using portions of 800 ac of land in the Upper Prado Basin in Riverside County owned by the Regional Conservation Authority (RCA) that is suitable for restoration and/or enhancement opportunities, or other areas approved by the Wildlife Agencies. The offsite properties will be evaluated to demonstrate they have biologically equivalent or superior resources compared to the Project site. RCTC is in the process of obtaining access and conducting surveys on potential properties that the RCA owns. The HMMP will comply with all terms and conditions set forth in the permits and opinions issued by the Corps and Wildlife Agencies for the Project and will include, at a minimum, the following provisions: • Permanent impacts to riparian/riverine areas will be replaced on or off site at a minimum ratio of 3: 1 with in-kind habitat. Temporary impacts to native vegetation will be replaced 44 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 14 at a minimum ratio of 1: 1 with in-kind habitat restored in place within the BSA. If off site restoration is conducted, it will be done within the same watershed as the Project. • The HMMP will identify a success criterion of at least 80 percent cover of native riparian vegetation or composition structure similar to existing adjacent high quality riparian vegetation. • Further criteria specified in the HMMP, at a minimum, will include an establishment period for the replacement habitat, regular trash removal, and regular maintenance and monitoring activities to ensure the success of the restoration. After construction, annual summary reports of biological monitoring will be provided to the Corps and Wildlife Agencies documenting the monitoring effort. The duration of the monitoring and reporting will be established by resource agency permit conditions (i.e., Corps and California Department of Fish and Game). Analysis of the Project in Riverside County The BSA for the Project includes an approximately 5,371-ac area located along SR-91 and 1-15 in the Anaheim, Yorba Linda, Corona, and Riverside. Included within the 5,371-ac BSA is a 502-ac impact area where Project construction will occur, the majority of which will take place in previously developed or disturbed areas (440 ac; see Table 1). Along SR-91, the BSA falls within Subunit 1 (SAR/Santa Ana Mountains) and Subunit 2 (Prado Basin) of the Temescal Canyon Area Plan of the MSHCP. In Subunit 1, the BSA occurs within independent Criteria Cells 1702, 1704, and 1706. In Subunit 2, the BSA occurs within Criteria Cell 1612 of Cell Group B, and within independent Criteria Cell 1616. Portions of the BSA also fall within Existing Core A, Proposed Constrained Linkage (PCL) 1, and PCL 2. Along 1-15, the BSA falls within Subunit 3 (Temescal Wash West) of the Temescal Canyon Area Plan of the MSHCP and occurs within Criteria Cell 2400 of Cell Group C. In addition to the BSA occurring within the MSHCP Criteria Area and PCLs 1 and 2, the BSA overlaps with the Narrow Endemic Plant Species Survey Area (NEPSSA) 7, Additional Species Survey area for burrowing owl (Athene cunicularia hypugaea), and the SKR HCP. The Project is not located within any other MSHCP-designated survey area for criteria-area plants, mammals, or amphibians. Besides vireo, no other MSHCP designated survey area species were determined to be present within the Project impact area. As designed, the Project will be contained within the least environmentally sensitive location feasible and demonstrates consistency with the biological goals and objectives as set forth in Section 7.5 of the MSHCP, which addresses design guidelines for facilities within the Criteria Area and Public/Quasi Public (PQP) Lands. The Project has or will implement the conditions set forth in Section 7 .5 through the design and implementation processes. A small portion of the Project lies within the original PQP designation (8.8 ac), near Prado Basin. However, the RCA is now undergoing a PQP Reconciliation Process to remove the area of the Prado Basin from the PQP layer; therefore, the Project will not affect PQP lands. 45 Mr. Aaron Burton (FWS-OR/WRN-08B0733-l 1F0547) 15 Section 7 .5 .2 articulates guidelines for the siting and design of roadway features to address wildlife movement requirements. As discussed above, the Project crosses areas that are contemplated for MSHCP conservation and wildlife movement (PCL 1 and PCL 2). The Project will maintain culverts and connections under the roadway, thereby continuing the ability of wildlife presently utilizing these corridors to continue to move through the Project area. To accomplish this, the Project will place and/or enhance existing fencing near wildlife corridors to direct wildlife toward culverts and undercrossings and away from SR-91; place vegetative cover and/or natural objects within crossing facilities to create cover for wildlife and to encourage the use of crossings; maintain an openness ratio of at least 0.6 meter and at least 3 to 4 meters in height at Prado Road and Fresno Canyon undercrossings to allow for large mammal use; and revegetate PCL 1 and PCL 2 with native vegetation. Additionally, the RCTC and Caltrans, in discussions with the RCA and Wildlife Agencies, have acknowledged a need to address cumulative connectivity limitations for PCL 1 by enhancing an alternate location. The RCTC proposes to improve the existing B Canyon culvert beneath SR-91 as a wildlife crossing to replace PCL 1 as a separate, non-related project (the RCA, in conjunction with the Wildlife Agencies, have identified B Canyon as a suitable replacement location for PCL 1). The RCTC has estimated the B Canyon improvements to cost about $7.5 million and intends to use $2.35 million in transportation enhancement funds, supplemented by RCTC-controlled funding to help establish a viable wildlife crossing at B Canyon as a means of offsetting the cumulative impacts to PCL 1. In addition, the Service has applied for a $500,000 grant that will also be applied toward funding the wildlife crossing. Additional funding will be sought by the various stakeholders (i.e., Service, Caltrans, RCTC, and RCA). Based on the above commitment to B Canyon and the design features listed above related to enhancing wildlife movement, the Project addresses the objectives of Section 7.5.2 of the MSHCP. The Project will also be designed to be consistent and compliant with Section 7.5.3 of the MSHCP, which address the BMPs that will be used to minimize impacts to habitats and species. Since the Project design did consider the impacts to the MSHCP Criteria Area by proposing to improve the existing undercrossing to facilitate better wildlife movement from Existing Core A (Prado Basin and the SAR) to Existing Core B (Cleveland National Forest), the Project will not conflict with the provisions in Section 7 .5 of the MSHCP. In accordance with the Additional Survey Needs and Procedures policy of the MSHCP, focused surveys were conducted on site for burrowing owl in 2008 and 2009. No owls were found within the study area. A pre-construction presence/absence survey for burrowing owls will be performed within 30 days prior to any phase of construction with ground disturbance in potentially suitable habitat. If a burrowing owl is found during the nesting season (February 1 to August 31), an exclusionary buffer will be established by the Designated Biologist. This buffer will be clearly marked in the field by construction personnel under guidance of the biologist. No construction or clearing will be conducted within this zone until the Designated Biologist determines that the young have fledged or the nest is no longer active. If owls are found within the survey area outside of the nesting season, the burrowing owls will be passively relocated through the installation of one-way doors to exclude the owls from their burrows prior to the 46 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) collapse of the burrows. This action will ensure burrowing owls are not directly taken by construction activities. 16 In accordance with the Additional Survey Needs and Procedures policy of the MSHCP, focused surveys for endemic plants were conducted in 2008 and 2009 on the site for NEPSSA 7 species. No NEPSSA species were found within the study area. To avoid impacts to other migratory birds consistent with MSHCP section IO(a)(l)(B) permit condition 5, vegetation removal will be performed outside of the bird breeding season. If work must occur during the breeding season, a preconstruction nesting survey will be conducted in suitable habitat by the Designated Biologist within 21 days prior to ground disturbing activities. If active raptor or migratory bird nests are detected, Project activities may be temporarily halted until the Wildlife Agencies are contacted and consulted. If surveys indicate that migratory bird or raptor nests occur in the survey area identified above, a no-disturbance buffer will be established around the site to avoid disturbance or destruction of the nest site until after the breeding season or after a qualified Designated Biologist determines that the young have fledged (usually late June to mid-July). The extent of these buffers will be determined by the Designated Biologist, in coordination with Caltrans and the Wildlife Agencies, and will depend on the level of noise or construction disturbance, line-of-sight between the nest and the disturbance, ambient levels of noise and other disturbances, and other topographical or artificial barriers. Suitable buffer distances may vary between species. If construction activities are scheduled to occur within an area that supports an active nest site or within an established no-disturbance buffer, construction will be delayed until after the breeding season or until the young have fledged, as determined by the Designated Biologist. Focused vireo surveys were conducted in 2008 to determine if vireos were present in the BSA. Vireos were found at 27 locations in the BSA, and another 8 were found just outside the BSA. Vireos were found from the vicinity of the Gypsum Canyon Road Bridge to Prado Dam. All the birds were north of SR-91, except for one male heard intermittently at the mouth of Fresno Canyon near Wardlow Wash. Twenty of the locations in the BSA are judged to have been territories, and successful nesting was confirmed at six of those locations. The other seven locations in the BSA hosted singing males, but territories could not be determined. Focused vireo surveys were also conducted in 2010 in conjunction with the SR-91 Eastbound Lane Addition Project (FWS-OR/WRIV-08B0054/08F0081). Vireos were observed within the BSA, but no nesting activities were observed in the SR-91 Eastbound Lane Addition Project's impact area. Subsequent to focused surveys being conducted, construction of the SAR Reach 9 Phase 2B Realignment has removed the vireo nesting habitat in the BSA located north of SR-91 and west of SR-71. In addition, the Santa Ana River Interceptor (SARI) project is expected to begin well before any construction for the Project and will further impact areas within the BSA. To address the loss of MSHCP riparian/riverine resources and supported species, a Determination of Biologically Equivalent or Superior Preservation (DBESP) report was prepared. Approximately 86 ac of riparian/riverine resources located throughout the BSA, which generally occur in the western portions of the Project area adjacent to the SAR and associated 47 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 17 tributaries, (e.g., Fresno Canyon Wash and Wardlow Wash). In Riverside County, Project construction and operation will permanently impact up to 0.46 ac and temporarily impact up to 0.72 ac of riparian/riverine resources. Caltrans and RCTC will offset the loss of these resources by mitigating at a minimum ratio of 3: 1 for permanent impacts and 1: 1 for temporary impacts. Mitigation will be in the form of habitat creation, restoration, and/or enhancement. Mitigation options for the permanent and temporary impacts include possibly using portions of 800 ac of land in the Upper Prado Basin in Riverside County owned by the RCA that is suitable for restoration and/or enhancement opportunities, or other areas approved by the Wildlife Agencies. The offsite properties will be evaluated to demonstrate the areas have biologically equivalent or superior resources commensurate to the riparian/riverine areas to be impacted. RCTC is in the process of obtaining access and conducting surveys on potential properties the RCA owns. Once lands are identified, RCTC will ensure the restoration/enhancement is provided at the above stated ratios and a restoration/enhancement plan is prepared identifying methods, materials, success criteria and monitoring/management activities on those lands. RCTC will be responsible for preparing these documents and submitting to the RCA and Wildlife Agencies as an addendum to the DBESP. Based on the information provided, the Project will restore its temporary impacts onsite, avoid the nesting season, and mitigate off site for its permanent impacts; therefore, the Project demonstrates compliance with the requirements of MSHCP Section 6.1.2. Project impacts in Riverside County include permanent impacts to 31.2 ac of coastal sage scrub, the preferred habitat for the gnatcatcher, and 6.87 ac of vegetation communities (0.38 ac of chaparral, 0.46 ac of riparian forest, and 6.03 ac of nonnative grassland) that gnatcatchers likely use for dispersal and foraging habitat. The Project includes the MSHCP-required measures to avoid and minimize disruption of gnatcatcher nesting activity, impacts to individual birds, and impacts to coastal sage scrub outside the Project footprint. Additionally, the temporary loss of 8.02 ac of coastal sage scrub, 1.30 ac of chaparral, 0.72 ac of riparian forest, and 3.63 ac of nonnative grassland will be replaced with locally appropriate native species at the site of the impact. Based on our review of the information provided to us, we have determined the Project is consistent with relevant MSHCP policies and procedures. The status of vireo, gnatcatcher and its designated critical habitat, and the effects of implementing the MSHCP were previously addressed in our biological opinion for the MSHCP dated June 22, 2004. In the biological opinion for the MSHCP, we concluded the level of anticipated take in the plan area for the MSHCP was not likely to result in jeopardy to vireo or gnatcatcher or adversely modify designated gnatcatcher critical habitat. Given that the Project is consistent with the MSHCP, we do not anticipate any adverse effects to vireo or gnatcatcher that were not previously evaluated in the biological opinion for the MS HCP. No incidental take of vireo or gnatcatcher beyond that anticipated in the biological opinion for the MSHCP will occur. Therefore, it is our conclusion that implementation of the Project will not result in jeopardy to vireo or gnatcatcher. 48 Mr. Aaron Burton (FWS-OR/WRN-08B0733-11F0547) 18 The SKR HCP is implemented by the RCHCA on behalf of the County of Riverside and eight member cities. To establish a regional mechanism to fund implementation of the SKR HCP, Riverside County Ordinance No. 663.10 was adopted, which requires the payment of a fee for projects that are inside the SKR HCP fee area but outside of the core reserve system. This funding has been used, in part, to establish and manage a core reserve system designed to maintain the long-term survival of SKR in western Riverside County. The Project is within the SKR HCP fee area, but outside of the core reserves, and therefore will qualify to obtain take coverage through payment of fees without having to secure an individual permit. However, public works projects, such as roads, are exempt from fee payment. Additionally, construction of transportation improvement projects is identified as a covered activity in the SKR HCP biological opinion (1-6-96-FW-27). Therefore, we have determined that the Project is consistent with the SKR HCP and its associated implementing agreement and permit. The status of the SKR and the effects of implementing the SKR HCP were previously addressed in our biological opinion dated May 2, 1996. In the biological opinion for the SKR HCP, we concluded the level of anticipated take in the plan area for this HCP was not likely to result in jeopardy to SKR. Given the Project is consistent with the SKR HCP, we do not anticipate any adverse effects to SKR that were not previously evaluated in the biological opinion for the SKR HCP. No incidental take of SKR beyond that anticipated in the biological opinion for the SKR HCP will occur. Therefore, it is our conclusion that implementation of the Project will not result in jeopardy to SKR. Analysis of Project in Orange County Because effects of the Project activities in Riverside County on the gnatcatcher, vireo, and SKR are addressed in the MSHCP and SKR HCP, impacts to those species in Riverside County will not be analyzed below. Moreover, adverse impacts to vireo from the Project in Orange County are not expected because of the aforementioned conservation measures. Therefore, the analysis below only addresses the effects of the Project activities in Orange County on the gnatcatcher. STA TVS OF THE SPECIES The status of the gnatcatcher was described in detail in a biological opinion for the Caltrans- sponsored Eastbound SR-91 Lane Addition from SR-241 to SR-71 Project, Orange and Riverside Counties, California (FWS-OR/WRN-08B0054/08F0081, dated November 29, 2007); new information since that time is provided in the 5-year review for gnatcatcher (Service 2010). Additional information on gnatcatcher designated critical habitat can be found in our 2007 final rule for the revised designation of critical habitat for the gnatcatcher (72 FR 72010). Please refer to these documents for detailed information on the life history requirements, threats, and conservation needs of the gnatcatcher. 49 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) Status of Critical Habitat in the Action Area Primary Constituent Elements (PCEs) for the gnatcatcher are those habitat components that are essential for the primary biological needs of foraging, nesting, rearing of young, intra-specific communication, roosting, dispersal, genetic exchange, or sheltering (72 FR 72010). These include: (1) dynamic and successional sage scrub habitats (i.e., Venturan coastal sage scrub, Diegan coastal sage scrub, Riversidean sage scrub, maritime succulent scrub, Riversidean alluvial fan scrub, southern coastal bluff scrub, and coastal sage-chaparral scrub) that provide space for individual and population growth, normal behavior, breeding, reproduction, nesting, dispersal, and foraging; and (2) non-sage scrub habitats such as chaparral, grassland (a component of ruderal vegetation), and riparian areas, in proximity to sage scrub habitats that provide space for dispersal, foraging, and nesting. 19 The Project occurs within Units 7 and 9 of the 2007 final critical habitat designation. Unit 7 includes 4,309 ac of lands under private ownership that contain core gnatcatcher populations and sage scrub within the Orange County Central-Coastal Natural Community Conservation Plan/ Habitat Conservation Plan (NCCP/HCP) Subregion. However, these areas are not included in the permit area covered by the NCCP/HCP. Habitat within this unit was occupied at the time of listing, remains occupied, and contains all of the features essential to the conservation of the gnatcatcher (PCEs 1 and 2). Habitat within this unit contains high-quality habitat and dense populations of gnatcatchers. This unit also serves to link populations located in Unit 6 with those in northern Orange and Riverside counties (e.g., Unit 9). Unit 9 includes 17,552 ac of lands, the majority of which are under private ownership, that contain core gnatcatcher populations and sage scrub within the Montebello Hills, Puente-Chino Hills, and West Coyote Hills areas. Habitat within this unit contains large blocks of high-quality habitat and was occupied at the time of listing, remains occupied, and contains all of the features essential to the conservation of the species. The unit also provides connectivity and genetic interchange among core populations of gnatcatchers between Units 6, 10, and 12. Specific information for each of the remaining critical habitat units can be found within the final rule designating critical habitat for the gnatcatcher (72 FR 72010). ENVIRONMENTAL BASELINE Regulations implementing the Act (50 CFR § 402.02) define the environmental baseline as the past and present impacts of all Federal, State, or private actions and other human activities in the action area. Also included in the environmental baseline are the anticipated impacts of all proposed Federal projects in the action area that have undergone section 7 consultation, and the impacts of State and private actions that are contemporaneous with the consultation in progress. Site Characteristics and Surrounding Land Use The Project action area is located within the SAR watershed in the eastern-most portion of Orange County, immediately downstream of Prado Dam. Within Orange County, the Project area is a heavily traveled transportation corridor with the landscape varying from natural so Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 20 undeveloped to pockets of commercial and residential development on either side. Two large blocks of open space bisect SR-91; Chino Hills State Park (CHSP) to the north, and the Cleveland National Forest to the south. Within Orange County, the action area includes approximately 846 ac, which includes the 500-ft buffer surrounding the area directly impacted by the Project. The action area contains 123.56 ac of coastal sage scrub; 64.74 ac of chaparral; 72.24 ac of riparian forest/scrub; 24.44 acres of oak woodland; 90.83 ac of nonnative grassland; 13.82 ac of deepwater aquatic; 113.79 ac of mixed ruderal and ornamental; and 342.53 ac of developed lands. Subsequent to vegetation mapping conducted in 2008, the Freeway Complex fire in November 2008 burned large areas of CHSP, including a small part of the coastal sage scrub in the action area. Because these small burned areas are located west of Coal Canyon, coastal sage scrub occupied by gnatcatchers in Coal Canyon was not impacted by the fire. The coastal sage scrub and other vegetation communities in the action area burned by the fire have been recovering. These burned areas appear to be returning to pre-fire conditions, although there appears to be a higher percentage of nonnative grasses, e.g., black mustard (Brassica nigra) and foxtail chess (Bromus madritensis) (E. Hohertz, LSA Associates, pers. comm. 2011). Chino Hills State Park This 12,500-ac State park is located near the northern end of the Peninsular Ranges and is within Orange, Riverside, and San Bernardino counties. The Chino Hills are part of the group of hills that include the Puente Hills to the northwest. These hills form a roughly triangular area of approximately 35 square miles of valleys, canyons, hills, and steep slopes. The park serves a valuable function as a large open space preserve in a wildlife linkage that extends over 30 miles from the Santa Ana Mountains to the southeast to the Whittier Hills to the northwest. Moreover, the Coal Canyon undercrossing, which provides a wildlife crossing under SR-91 between the Santa Ana Mountains south of SR-91 and the Puente-Chino Hills north of SR-91, is in park. The CHSP supports a number of native plant communities including coastal sage scrub, riparian, chaparral, grasslands, and oak woodland communities. Approximately 95 percent of the area in the park was burned in the 2008 Freeway Complex Fire. Habitat restoration activities in the Coal Canyon area, just north of SR-91, have been ongoing in the park since 2004 to restore coastal sage scrub and other habitats suitable to support gnatcatcher breeding, feeding, and sheltering requirements. These restoration areas have met stated success criteria and gnatcatchers were recently observed within these areas (F. Sirchia, Service biologist, personal observation during the October 20, 2011, site visit). Coal Canyon Undercrossing Landscaping Coal Canyon and the associated SR-91 undercrossing are considered one of the most important remaining wildlife connections between the Santa Ana Mountains and the Puente-Chino Hills and Prado Basin (LSA 2010). As such, State officials and other stakeholders have been working nearly two decades to preserve and enhance Coal Canyon as a viable wildlife corridor. Towards 51 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 21 that end, a landscaping project to enhance the Coal Canyon crossing under SR-91 is proposed to begin mid-2012. Caltrans District 12 is proposing to conduct planting in the Caltrans right-of-way at Coal Canyon. The purpose of this planting is to beautify the site and attract more wildlife to this vital crossing. The proposed planting area is composed of compacted gravel and nonnative grasses and ornamental vegetation. Caltrans District 12 has anticipated the Project may impact the Coal Canyon Wildlife Corridor Planting area. Because of this potential impact, a plant palette is being selected (in coordination with Caltrans biologists, landscape architects, and the Service) that would facilitate gnatcatcher dispersal but is unlikely to be used as nesting habitat. Status of and Factors Affecting Gnatcatcher and its Critical Habitat in the Action Area A number of projects have reduced and degraded gnatcatcher habitat in the vicinity of the Project. Roads and urban development have degraded upland habitat and have led to the loss and isolation of remaining coastal sage scrub. Specific past actions that have adversely affected gnatcatchers and/or designated critical habitat in the vicinity of the Project include (1) the SR-91 Eastbound Lane Addition Project, (2) widening of SR-91 between SR-241 and SR-71, (3) SAR Reach 9 Flood Control Projects, (4) Eastern Transportation Corridor (SR-241), and (5) SARI project. In general, all of these projects have decreased and fragmented the amount of suitable gnatcatcher habitat containing PCEs within the Project vicinity. In addition, since 1980, the Coal Canyon area has experienced 25 separate wildland fires, burning a total of 82,734 acres (OCFA 2008). A number of these wildland fires were large, burning thousands of acres, including the 2008 Freeway Complex Fire (30,305 ac), 2006 Sierra Peak Fire (10,506 ac), 1982 Gypsum Fire (19,986 ac), and 1980 Owl Fire (18,332 ac). As stated above, though areas burned in the most Freeway Complex Fire are recovering to pre-fire conditions, an increase in percent cover of nonnative grasses is apparent. This observation may indicate some burned areas may be experiencing type conversion to nonnative grasslands, which may decrease the amount of suitable habitat for the gnatcatcher in the action area (Service 2010). Based on the Carlsbad Fish and Wildlife Office (CFWO) species occurrence database, the action area within Orange County has supported at least two breeding pairs of gnatcatchers dating back to 1998 (survey reports 3015, 5259, 7717, and 0517). Protocol surveys conducted in 2006 for the SR-91 Eastbound Lane Addition Project detected two breeding pairs and one juvenile in the vicinity of Coal Canyon within or near the Caltrans ROW. Protocol surveys in 2008 for the Project detected one breeding pair of gnatcatchers and at least two juveniles on several occasions just south of the Coal Canyon underpass within or near the ROW, which is in the Project impact area. Gnatcatchers were observed primarily in vegetation community types dominated by California sagebrush (Artemisia californica) and California buckwheat (Eriogonum fasciculatum). During the October 20, 2011, site visit, within CHSP, one gnatcatcher was observed in the Scully Hill area, and at least two were observed in the restoration area north of the Coal Canyon underpass. These 2011 observations in areas north of the Coal Canyon underpass were not expected to be directly impacted by Project construction activities. 52 Mr. Aaron Burton (FWS-OR/WRN-08B0733-11F0547) 22 The segment of the Project in Orange County includes small portions of Units 7 and 9 of gnatcatcher designated critical habitat and suitable gnatcatcher habitat outside of designated critical habitat (Figure 1). The action area includes 182.09 ac of gnatcatcher designated critical habitat. Outside critical habitat, the action area includes 85.67 ac of coastal sage scrub, the preferred habitat for gnatcatchers, and another 100.75 ac of vegetation communities that gnatcatchers likely use for dispersal and foraging habitat (Table 3). As stated above, the ecological functions and values of these critical habitat units include sage scrub used for individual and population growth, breeding, reproduction, nesting, dispersal, and foraging (PCE 1); and non-sage scrub communities (e.g., chaparral, grassland, riparian areas) in proximity to sage scrub that provide space for dispersal, foraging, and nesting (PCE 2) and serve as linkages between populations of gnatcatchers in the Santa Ana Mountains and Puente-Chino Hills and Prado Basin. Moreover, the land contained within Units 7 and 9 in the action area may require special management considerations or protection to minimize impacts associated with habitat type conversion and degradation occurring in conjunction with freeway widening and other development projects (72 FR 72040). Table 2: Gnatcatcher Habitat in Orange County Action Area Inside and Outside of Designated Critical Habitat Amount Outside of Amount in Critical Habitat Habitat Type Total Habitat Critical Habitat Unit7 Unit9 Total Coastal Sage Scrub 85.67 16.28 21.61 37.89 123.56 Chaparral 14.53 46.70 3.51 50.21 64.74 Riparian Forest 31.38 0.41 37.49 37.90 69.28 Riparian Scrub 2.16 0.80 0.00 0.80 2.96 Nonnative Grassland 52.68 6.44 31.71 38.15 90.83 Mixed Ruderal and Ornamental 4.78 12.36 17.14 17.14 Total 186.42 75.41 106.68 182.09 368.51 EFFECTS OF THE ACTION Effects of the action refer to the direct and indirect effects of an action on the species, together with the effects of other activities that are interrelated and interdependent with that action, which will be added to the environmental baseline. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. Indirect effects are those that are caused by the proposed action, are later in time, and still reasonably certain to occur. Direct Effects Habitat Loss The Project in Orange County will result in the permanent loss of 4.25 ac of coastal sage scrub, and 4.17 ac of vegetation communities (2.96 ac of chaparral, 0.01 ac of riparian forest, and 1.20 ac of nonnative grassland) used by gnatcatchers for dispersal and foraging (Campbell et al. 53 Mr. Aaron Burton (FWS-OR/WRN-08B0733-l 1F0547) 23 1998). The loss of habitat associated with Project construction will be distributed over a linear distance of approximately 4.2 miles and a width of approximately 50 to 100 ft from the edge of existing structures. To offset this loss, RCTC will restore 16.03 ac of habitats suitable for gnatcatcher breeding, dispersal, and foraging in CHSP, which will increase the amount of conserved habitat available for gnatcatchers in the action area. The Project will result in the temporary loss of 1.29 ac of coastal sage scrub and 1.72 ac of other vegetation communities (0.71 ac of chaparral, 0.34 ac of riparian forest, and 0.67 ac of nonnative grassland) used by gnatcatchers for dispersal and foraging. This habitat will be unavailable for gnatcatcher foraging and breeding activities until it is successfully restored. RCTC will restore temporarily impacted habitat with in-kind or better vegetation after the completion of the Project. Also, the proposed restoration of the temporarily impacted areas will help ensure there is no long-term loss or degradation of the habitat as a result of invasion by nonnative plant species. Based on recent surveys, the Project impact area supports part of at least one gnatcatcher pair or territory. We do not have specific information on the size or shape of this territory, but breeding season territories vary greatly in size from less than 2.5 ac to 25 ac (Atwood et al. 1998; Preston et al. 1998) and fluctuate given the time of year. The permanent and temporary loss of 5.54 ac of coastal sage scrub and the permanent and temporary loss of 5.89 ac of other habitat could significantly reduce the amount of habitat available to this gnatcatcher pair for breeding, foraging, and dispersal activities within their existing territory. Gnatcatchers are expected to be displaced by grading activities during and after construction disturbance and forced to shift or move their territory location. The displacement of this pair and reestablishment of all or part of their territory in another location could involve increased competition with other gnatcatchers for nesting, roosting, and foraging sites, and displaced gnatcatchers will likely be more vulnerable to predation while seeking new habitat. Therefore, we expect that one pair of gnatcatchers will be killed or injured because of impacts to a potentially significant portion of an existing territory and the subsequent displacement of the pair. Construction activities are not anticipated to result in the death or injury of any gnatcatchers or destruction of nests. The Designated Biologist will be present to ensure that gnatcatchers are not killed or injured during vegetation removal and other construction activities, and the clearing and grubbing of suitable gnatcatcher habitat will be conducted outside of the breeding season (i.e., February 15 to September 15). Indirect Effects Noise, vibrations, increased activity, and night lighting associated with the use of heavy equipment during construction of the proposed facilities have the potential to disrupt gnatcatcher behaviors in adjacent habitat by masking intraspecific communication and startling birds (e.g., see Dooling and Popper (2007) for a discussion of observed effects of highway noise on birds). However, gnatcatchers that occupy habitats adjacent to the existing SR-91 freeway are subjected to existing noise and vibration and continue to occupy the habitat, and the addition of lanes is not expected to increase noise and vibration above existing levels (Caltrans 2011). Additionally, 54 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-l 1F054 7) 24 measures to avoid and minimize construction impacts include seasonal restrictions on vegetation removal, noise control, biological monitoring, and shielded night lighting. Operation of existing roadways can affect species and habitats through factors such as increased noise and lighting, increased fire risk, invasion of exotic plants, road mortality, and barriers to wildlife movement (e.g., Conard and Weise 1998; Forman and Dehlinger 2000; Forman et al. 2003). Given the potentially broad-reaching, long-term nature of the aforementioned impacts, they are difficult to quantitatively assess. However, the gnatcatchers that occupy habitats adjacent to the existing SR-91 freeway are subjected to existing adverse road effects from freeway operations and continue to occupy suitable habitat adjacent to the freeway; moreover, some of these impacts (noise and lighting) will not increase with implementation of the Project. Therefore, SR-91 widening is not expected to have significant adverse impacts on the gnatcatchers due to noise and lighting, invasion of exotic plants, road mortality, and barriers to wildlife movement. In addition, measures to avoid and minimize these impacts, like restoration of native habitats, native landscaping in the Coal Canyon underpass, and weed abatement, will help to offset some of these impacts. As stated previously, wildland fire is a significant threat to gnatcatchers due to habitat type conversion and the temporary destruction of habitat the gnatcatcher depends on for foraging, sheltering, dispersal, and nesting. The Project is not anticipated to significantly increase the threat of wildlife fire in the action area but Caltrans has agreed to coordinate with the Service to identify locations along SR-91 where placement of k-rail or other barriers would help to minimize the threat of fire ignitions. Restoration Some restoration activities may disturb resident gnatcatchers and biological monitors are anticipated to disturb gnatcatchers as part of their monitoring efforts. The frequency and level of disturbance by the biological monitors is not anticipated to substantially affect the gnatcatchers' ability to acquire sufficient resources to survive and reproduce. Furthermore, the restoration plan will include measures to avoid and minimize impacts to resident gnatcatchers such as pre- restoration surveys and avoidance of the breeding season. Critical Habitat This biological opinion does not rely on the regulatory definition of "destruction or adverse modification" of critical habitat at 50 CFR § 402.02. Instead, we have relied upon the statutory provisions of the Act to complete the following analysis with respect to critical habitat. Implementation of the Project will result in the permanent loss of 6.32 ac of designated critical habitat, including 1.24 ac of coastal sage scrub, located in Units 7 and 9 (2.48 ac in Unit 7 and 3.84 ac in Unit 9). This loss represents 0.02 percent of the gnatcatcher designated critical habitat within Unit 7 and 0.02 percent in Unit 9. Additionally, the Project will result in the temporary loss of 2.09 ac of designated critical habitat, including 0.72 ac of coastal sage scrub, located in SS Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 25 Units 7 and 9 (1.02 ac in Unit 7 and 1.07 ac in Unit 9). This temporary loss represents a small fraction of the habitat available within Units 7 and 9, and the impacted area will be restored after construction. As stated above, the primary function of these units is to provide sage scrub for individual and population growth, breeding, reproduction, nesting, dispersal, and foraging (PCE 1); and non-sage scrub communities (e.g., chaparral, grassland, riparian areas) in proximity to coastal sage scrub that provide space for dispersal, foraging, and nesting (PCE 2). Because the Project will temporarily impact only a small portion of gnatcatcher critical habitat, which will be revegetated immediately following Project completion, the temporary impacts associated with the Project will have negligible impacts on the ability of Units 7 and 9 to support core gnatcatcher populations and on connectivity between critical habitat units. Also the permanent impacts to critical habitat are small and will primarily affect non-breeding habitat (i.e., vegetation communities other than coastal sage scrub). Therefore, the Project will not have a substantial impact on the ability of Units 7 and 9 to support core populations of gnatcatchers, and affected critical habitat would remain functional to serve its intended conservation role for the species. Habitat loss will occur within the Coal Canyon wildlife corridor. Loss of PCEs within this corridor could result in an incremental decrease in connectivity and increase the isolation of gnatcatcher populations in Unit 9. To offset this potential adverse impact, RCTC will minimize permanent impacts in the Coal Canyon underpass area to the extent possible and restore landscaped areas in and around the Coal Canyon underpass to facilitate gnatcatcher dispersal. Additionally, 16.03 ac of gnatcatcher habitat that would support PCEs 1and2 would be restored in Unit 9 within CHSP, and 2.50 ac of mixed ruderal and ornamental vegetation in the Coal Canyon underpass will be replanted with native species per the Coal Canyon Planting Plan to facilitate gnatcatcher dispersal between critical habitat units 7 and 9. In addition to maintaining connectivity, the proposed restoration will result in a net increase in the amount of coastal sage scrub (PCE 1) in gnatcatcher critical habitat, likely leading to a slight increase in the ability of Unit 9 to support core gnatcatcher populations. Thus, the affected critical habitat would remain functional to serve its intended conservation role for the species. Recovery The Project is not anticipated to impede recovery of the gnatcatcher. Conservation and recovery of the gnatcatcher has largely been accomplished through the development and implementation of regional conservation plans (i.e., HCP/NCCPs). Much of the range of the gnatcatcher today within southern California is covered by these plans. Furthermore, although no recovery plan exists for the gnatcatcher, the Project is consistent with the general recovery goals of maintaining core gnatcatcher populations and maintaining connectivity between them, because restoration of 16.03 ac is expected to increase the available habitat in the action area to support core gnatcatcher populations and restoration in the Coal Canyon underpass area will facilitate dispersal and maintain connectivity. 56 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 26 CUMULATIVE EFFECTS Cumulative effects include the effects of future State, tribal, local, or private actions that are reasonably certain to occur in the action area considered in this biological opinion. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to section 7 of the Act. We have no information on any non-Federal actions affecting listed species that are reasonably certain to occur in the action area considered by this opinion. CONCLUSION After reviewing the current status of the gnatcatcher, environmental baseline for the action area, effects of the proposed action, and the cumulative effects, it is our biological opinion the proposed action is not likely to jeopardize the continued existence of the gnatcatcher and is not likely to result in the destruction or adverse modification of gnatcatcher designated critical habitat. Our conclusion is based on the following reasons: 1. Although 8.42 ac of gnatcatcher habitat ( 4.25 ac of coastal sage scrub, and 4.17 ac of vegetation communities used by gnatcatchers for dispersal and foraging), including designated critical habitat, will be permanently impacted in Orange County, this will affect only a small fraction of available habitat in the action area and an even smaller fraction range wide. 2. Although 3.01 ac of gnatcatcher habitat (1.29 ac of coastal sage scrub, and 1.72 ac of vegetation communities used by gnatcatchers for dispersal and foraging), including designated critical habitat, will be temporarily impacted in Orange County, this habitat will be restored, and within 4 to 5 years will again be suitable for gnatcatcher breeding and foraging. 3. Permanent impacts to suitable gnatcatcher habitat and designated critical habitat will be offset by restoring 16.03 ac of gnatcatcher habitat in Unit 9 within CHSP to be managed and preserved in perpetuity as part of the CHSP. This restoration will result in a net gain of potential breeding, foraging, dispersal, and sheltering habitat for the gnatcatcher locally and within Unit 9 of designated critical habitat. 4. With implementation of the proposed conservation measures, the Project is not expected to a have a long-term effect on the gnatcatcher or its habitat in the action area or rangewide, and is not anticipated to impede recovery of the species or the function and value of its critical habitat. INCIDENTAL TAKE STATEMENT Section 9 of the Act prohibits the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, 57 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 27 trap, capture, collect, or attempt to engage in any such conduct. Harm is further defined by us to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. We defined harass as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and 7(o)(2) of the Act, taking that is incidental to and not intended as part of the agency action is not considered a prohibited taking provided that such taking is in compliance with the terms and conditions of this incidental take statement. The measures described below are non-discretionary, and must be undertaken by Caltrans so that they become binding conditions of any grant or permit issued to the permittee, as appropriate, for the exemption in section 7(o)(2) to apply. Caltrans has a continuing duty to regulate the activity covered by this incidental take statement. If Cal trans ( 1) fails to assume and implement the terms and conditions or (2) fails to require RCTC or any contractor discussed above to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit or grant document, the protective coverage of section 7(o)(2) may lapse. To monitor the impact of the incidental take, Caltrans must report the progress of the action and its impact on the species to the Palm Springs Fish and Wildlife Office (PSFWO) at 777 East Tahquitz Canyon Road, Palm Springs, California 92262 (760-322-2070) as specified in the incidental take statement [50 CFR § 402.14(i)(3)]. AMOUNT OR EXTENT OF TAKE Incidental take of the gnatcatcher in Orange County for the Project is authorized as follows: • Incidental take in the form of harm, as defined in 50 CFR § 17. 3, of one gnatcatcher pair is authorized due to the permanent removal of 4.25 ac of coastal sage scrub and 4.17 ac of vegetation communities used by gnatcatchers for essential behaviors, including nesting, roosting, foraging, and dispersal, and the temporary removal of 1.29 ac of coastal sage scrub and 1.72 ac of vegetation communities used by gnatcatchers for foraging and dispersal. The take threshold will be exceeded if more than the amount of habitat identified above is graded or grubbed or if more than one pair of gnatcatchers is killed or injured. No direct death or injury of nestlings or eggs from habitat clearing and construction activities is anticipated; therefore, none is exempted from the section 9 take prohibitions under the Act. EFFECT OF THE TAKE In the accompanying biological opinion, the PSFWO determined that this level of anticipated take is not likely to result in jeopardy to the species. 58 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 28 REASONABLE AND PRUDENT MEASURES Caltrans will implement conservation measures as part of the proposed action to minimize the incidental take of gnatcatchers. In addition to these conservation measures, the following reasonable and prudent measures are necessary to monitor and report the effects of the incidental take on gnatcatchers: 1. Caltrans shall monitor and report on compliance with the established take thresholds for gnatcatchers associated with the proposed action. TERMS AND CONDITIONS To be exempt from the prohibitions of section 9 of the Act, Caltrans must comply with terms and conditions which implement the reasonable and prudent measures described above. 1. Prior to initiating the Project, three preconstruction surveys will be conducted within all suitable gnatcatcher habitat within the footprint for the Project, within 30 days prior to initiation of vegetation removal activities to verify that no more than one gnatcatcher pair will be taken as a result of the Project. Prior to initiating the Project, Caltrans will provide to the PSFWO a map showing the distribution of gnatcatchers relative to the Project footprint, an estimate of the number of gnatcatchers territories that will be impacted by the Project, and the cumulative total of gnatcatcher territories impacted by the Project, or confirm in writing that maps, distribution information, and the number of territories that will be impacted by the Project as shown in the BA remain correct. 2. Caltrans will notify the PSFWO within 30 days of completing removal of gnatcatcher- occupied habitat. The purpose of this notification is to ensure that impacts to gnatcatcher- occupied habitat from the Project do not exceed the take thresholds. DISPOSITION OF SICK, INJURED, OR DEAD SPECIMENS Upon locating dead, injured, or sick individuals of threatened or endangered species, initial notification must be made to our Division of Law Enforcement in either San Diego, California, at 619-557-5063 or in Torrance, California, at 310-328-6307 within 3 working days. Notification should also be sent by telephone and writing to the PSFWO at 760-322-2070 at the address detailed above. Written notification must be made within 5 calendar days and include the collection date and time, the location of the animal, and any other pertinent information. Care must be taken in handling sick or injured animals to ensure effective treatment and care and in handling dead specimens to preserve biological material in the best possible state. Remains shall be placed with the San Diego Natural History Museum, San Diego. Arrangements regarding proper disposition of potential museum specimens shall be made with the institution by the designated biologist prior to implementation of the action. 59 Mr. Aaron Burton(FWS-OR/WlUV..08B0733-llF0547) CONS,ERVATION RECOMMENDATIONS Section 7(a)(1) of the Act· djrects Fed~ agencies to utilize their authorities to further the purposes of the Act by ~ng out conservation programs fur the benefit of endangered and threatened species. Conservation recommendations are discretionary ageney activities to minimize or avoid adverse effects of a proposed action on listed species or critieal habitat, to "" help implement recovery plans, or to develop information. . 1. Becattse dati are laekingrrepding the rate of exchange between gnatcateher poptW\tions on either.~deof'S~'l.%w~iecommen.d Caltrans fund.a study to examine the rate of exchange ·~::':!between j'los~:gnatcatcher populations to determine the permeability of SR'--91 for the bit¢ >+ 2. To further minimize the risk of fire from operation of SR·91, we recommend Caltran~!:\ monitor and map fire ignitions along SR-91 and coordinate with the Service to develop· .. · potential measuresto re<:t.ucethis risk. Measures would include monitoring of the roadway by Caitrnns personnel duiin~ extreme 'fire danger conditions, placement of additional . bau;lefi' or maintemmce of a defined fire management zone adjacent to the roadway. · REINITIATION NOTICE This concludes formal consultation for the SR-91 Corridor Improvement Project as ontl~ed in materials submitted to us. As provided in 50 CF'R § 402.16 reinitjation of formal cott$1ltation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) 1.llld .if (1) the amount. or extent of incidental take is exceed~~ (2) newi~ation rev~sdfeets of the agency action that may affect listed spteies or ~ca1i'J' habitat ina manner,ortoan extent not considered in this opinion; (3) the agency action is .. · sub~uently m04.ified ina manner that causes an effect to the listed species-0r critical ba~tat not,~on.sidered in:this opinion; or (4) a new species is listed or critical habitat designated .. tbat maybe affected by the action. In instances where the amount or extent of incidental take is ~itceeded. any operations causing $uch take must cease pending reinitiation. If you have any questions or comment$"about this opinion, please contact Felicia Sirthia ()~]itle Palm Spriqgs Fish and Wildlife Office, 777 E. Tabquitz Way. Suite 208, Palm Springs. · California 92262 at760·322-2070. Sincerely, ~B-WV'lt.¥ Field Supervisor cc: Cathy Bechtel, Riverside County Transportation Commission 60 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) LITERATURE CITED Atwood, J., D. Bontrager, and A. Gorospe. 1998. Use of refugia by California gnatcatchers displaced by habitat loss. Western Birds 29:406-412. Caltrans. 2007. SR-91 Eastbound lane addition between SR-241 and SR-71 biological assessment. Unpublished document submitted to the CFWO. June 2007. Caltrans. 2011. SR-91 Corridor Improvement Project biological assessment. Unpublished document submitted to the CFWO. June 2011. Campbell, K., R. Erickson, W. Haas, and M. Patten. 1998. California gnatcatcher use of habitats other than coastal sage scrub: Conservation and management implications. Western Birds 29: 421-433. Conard, S. G. and D.R. Weise. 1998. Management of fire regime, fuels, and fire effects in southern California chaparral: Lessons from the past and thoughts for the future. Tall Timbers Fire Ecology Conference Proceedings 20:342-350. Dooling, R. J. and A. N. Popper. 2007. The effects of highway noise on birds. Prepared by Environmental BioAcoustics LLC for the California Department of Transportation, Sacramento, California. 74 pp. 30 Forman, R. T. T. and R. D. Dehlinger. 2000. The ecological road-effect zone for transportation planning and Massachusetts (USA) suburban highway. Conservation Biology 14:36-46. Forman, R.T.T., D. Sperling, J.A. Bissonette, A.P. Clevenger, C.D. Cutshall, V.H. Dale, L. Fahrig, R. France, C.R. Goldman, K. Heanue, J.A. Jones, F.J. Swanson, T. Turrentine, T.C. Winter. 2003. Road ecology: Science and solutions. Island Press, Washington, DC. Orange County Fire Authority (OCFA). 2008. After action report Freeway Complex Fire: A report to the Orange County Fire Authority Board of Directors. Orange County, CA. Preston, K., P. Mock, M. Grishaver, E. Bailey, and D. King. 1998. California gnatcatcher territorial behavior. Western Birds 29:242-257. U.S. Fish and Wildlife Service (Service). 2004. Intra-Service Formal Section 7 Consultation/Conference for Issuance of Endangered Species Act Section 10( a)( 1 )(B) Permit TE-088609-0 for the Western Riverside County Multiple Species Habitat Conservation Plan dated June 22, 2004 (FWS-WRIV-870.19). U.S. Fish and Wildlife Service (Service). 2010. Coastal California gnatcatcher (Polioptila californica californica) 5-year Review: Summary and Evaluation. U.S. Fish and Wildlife Service Carlsbad Fish and Wildlife Office, Carlsbad, California. 61 Mr. Aaron Burton (FWS-OR/WRIV-08B0733-11F0547) 31 Personal Communications Ho hertz, E. September 1, 2011. Electronic mail correspondence regarding status of vegetation recovery in Chino Hills State Park, Orange County, CA. 62 Exhibit B PROJECT DESCRIPTION The SR-91 Corridor Improvement Project (CIP) is proposed to construct one additional general purpose (GP) lane and extend existing tolled Express Lanes. This project would construct one GP lane in each direction on SR-91 from the SR-91/SR-241 interchange in Anaheim to Pierce Street in Riverside. The existing SR-91 Express Lanes in Orange County would be extended east from the Orange/Riverside county line to Interstate 15 (I-15) in Corona. The existing high- occupancy vehicle (HOV) lanes would be converted to tolled Express Lanes, and one additional tolled Express Lane would be added in each direction on SR-91 from the Orange/Riverside county line to I-15, resulting in two tolled Express Lanes past I-15 to McKinley Street and transition to an HOV lane at Pierce Street. Westbound at Pierce Street, the existing HOV lane would transition into a tolled Express Lane east of McKinley Street and join a second tolled Express Lane at the I-15 interchange. The new eastbound GP lane would join a newly constructed collector-distributor road, providing access to the eastbound Pierce Street and Magnolia A venue exit ramps. In the westbound direction, the existing HOV lane would transition to a GP lane west of Pierce Street, and a new tolled Express lane would be added in the median near McKinley Street, joining a second tolled Express Lane just west ofl-15. Two single-lane tolled Express Lane direct connectors between I-15 and SR-91 would provide access from northbound I-15 to westbound SR-91 and from eastbound SR-91 to southbound I-15, extending as a single tolled Express lane in each direction on I-15 to Cajalco Road. Additionally, single-lane tolled Express Lane direct connectors would be constructed from eastbound SR-91 to northbound I-15 and from southbound I-15 to westbound SR-91, extending as a single-lane tolled Express Lane in each direction north on I-15 to the Hidden Valley Parkway interchange. The direct connectors would allow Express lane drivers to travel from the tolled Express Lanes on one corridor onto the tolled Express Lanes on another corridor without having to transition through the GP. Implementation of the project is proposed in phases over a 20-year period beginning with the Initial Phase and culminating in the Ultimate Project. Construction of the Initial Phase of the project is anticipated to begin in 2014 and will be completed by 2017. The Ultimate Project will be completed by 2035. 24632.00029\ 7636514.3 6 63 Exhibit C BILL OF SALE Contract No. -------- In consideration of the payment of $ , receipt of which is hereby acknowledged, RCRCD does hereby recognize that (the "Project Applicant"), has acquired [Enter Number and Type] Credits from the RCRCD In-Lieu Fee Program (the "Program"), developed and approved by the Los Angeles District of the U.S. Army Corps of Engineers, Region IX of the U.S. Environmental Protection Agency and the California Regional Water Quality Control Board, Region 8. RCRCD, administrator of the Program, represents and warrants that it has good title to the credits, has good right to sell the same, and that they are free and clear of all claims, liens, or encumbrances. DATED: ------------- By: District Manager 24632.00029\ 7636514.3 7 64 24632.00029\ 7636514.3 Exhibit D Statement of Sale of Credit 8 65 RCRCD letterhead [date] U.S. Army Corps of Engineers Los Angeles District -Regulatory Division 915 Wilshire Blvd. Los Angeles, CA 90017 Subject: Statement of Sale for [Number] Credits from the RCRCD In-Lieu Fee Program to [Permittee Name] The Riverside-Corona Resource Conservation District has an agreement with the U.S. Army Corps of Engineers -Los Angeles District to operate an In-Lieu-Fee Program. This letter confirms the sale of [Number of Credits] credits of [Resource Type A], and [Number of Credits] credits of [Resource Type B]. These credits are being used as compensatory mitigation for [Number of Acres] acres of impact to [Resource Type A], and [Number of Acres] acres of impact to [Resource Type B] in the [Impact HUC] as authorized by DA permit [DA permit number]. By selling credits to the above permittee, RCRCD is the party responsible for fulfilling the mitigation aspect of Special Condition(s) of the Permit(s) listed above. Signed 24632.00029\ 7636514.3 9 66 AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 24, 2014 TO: Western Riverside County Programs and Projects Committee FROM: David Thomas, Toll Project Manager THROUGH: Michael Blomquist, Toll Program Director SUBJECT: Monster Lead Wall Agreement with Burlington Northern and Santa Fe Railroad for the State Route 91 Corridor Improvement Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Agreement No. 14-31-076-00 for the Monster Lead Wall Agreement with Burlington Northern and Santa Fe Railroad (BNSF) for the State Route 91 Corridor Improvement Project (SR-91 CIP) in the amount of $73,600, plus a contingency amount of $7,400, for a total amount not to exceed $81,000; 2) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreement on behalf of the Commission; 3) Authorize the Executive Director to approve contingency work up to the total amount not to exceed as required for the agreement; and 4) Forward to the Commission for final action. BACKGROUND INFORMATION: 10-Year Delivery Plan and Tolling In 2002, voters passed the 30-year extension of the Measure A program (2009-2039). In December 2006, the Commission adopted the 2009 Measure A Western County Highway 10-Year Delivery Plan (10-Year Delivery Plan). The 10-Year Delivery Plan calls for the development of tolled express lane corridors on SR-91 and Interstate 15. Development of the SR-91 Corridor Improvement Project (CIP) The SR-91 CIP widens SR-91 through Corona, extends the existing 91 Express Lanes from the Orange County line to 1-15, improves five local interchanges, reconstructs a portion of the 15/91 interchange, and constructs other general purpose lane and toll express lane improvements within the corridor. Environmental approval for the SR-91 CIP was obtained in November 2012. Final design and construction is being accomplished via a design-build contract approved by the Commission on May 8, 2013. Corridor construction is planned to start in early 2014 with lanes open to traffic in 2017. Agenda Item 8 67 Construction Impacts to BNSF The SR-91 CIP crosses over the BNSF in four locations and directly impacts (i.e., shortens) the BNSF tracks in one location, the Monster Lead. The BNSF Monster Lead is a side track, off the Main Line, and serves the Monster Beverage Corporation Distribution Center, which is located on the north side of the SR-91 between Maple Street and Auto Center Drive. The widening of the freeway requires the shortening of the Monster Lead track by 90 feet (to be performed by BNSF), the acquisition of 0.05 acre of right of way in fee and a permanent footing easement for a retaining wall to be constructed as part of the SR-91 CIP, and a temporary construction license required for the construction of the retaining wall. These elements are depicted in Attachment 1. Over the past six months, staff has been working with the design-builder in the development of the SR-91 CIP highway plans to ascertain the extent of the impacts to the BNSF Monster Lead tracks. In that same time period, staff has been working with BNSF and Caltrans in the development of a three party agreement that would formalize the scope of work, obligations of each party and costs for the respective work, and right of way required for the widening associated with the SR-91 CIP. A copy of the final agreement concurred with by all three parties is included as Attachment 2. The total cost associated with the BNSF track work and right of way cost is $73,600 as follows: 1. Commission will pay BNSF $43,680 for the acquisition of right of way. 2. Commission will pay BNSF $2,120 for a temporary construction license. 3. Commission will pay BNSF $2,800 for a perpetual easement for the retaining wall footing and future maintenance access. 4. Commission will pay BNSF $25,000 for removal of 90 feet of track to make room for widening of SR-91. Staff is seeking authorization for the Chair or Executive Director to execute, on behalf of the Commission, the Monster Lead Wall Agreement, pursuant to legal counsel review and authorization for the Executive Director to approve contingency work up to $7,400 for a total amount not to exceed $81,000. Financial Information In Fiscal Year Budget: I Yes I Year: I FY2013/14 Amount: I $81,000 Source of Funds: 12009 Measure A Sales Tax Debt Proceeds Budget Adjustment: I No GL/Project Accounting No.: 003028 81301262 3181401 Fiscal Procedures Approved: ~~ I Date: I 02/13/14 Attachments: 1) Location and Impacts Plan 2) Monster Lead Wall Agreement Agenda Item 8 68 C"I '° FORT WORTH, TX SCALE AS NOTED MAY2013 CALIFORNIA DIVISION SAN BERNARDINO SUBDIVISION LINE SEGMENT 7602 EXHIBIT'A" ATTACHED TO A CONSTRUCTION AGREEMENT BETWEEN BNSF RAILWAY COMPANY AND SANFORD C, SEX HUS VICE PRESIDENT ' I I I .l I ! ' ' RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND ~-~~--~-~--~*--------~~-----------·------~----------------------------~~· STATE OF CALIFORNIA TO FULLERTON NEXT STATION WEST CORONA "' ..., .., ., ,., "" ... u + .. ~ .r= •-'* ~~. I"' --··-··-··--··· .. #1$ LH -h•••••n•u••t•u•••.,•••"••it•u-! U:G€HIL ; -l i i i i I u • I « I oco ? ~~~ ! ~<j'-1~ t ~~~ 'i 000 : "-0 J g~ : 0. 1 u • j --INDUSTRY OWNED TRACK --BNSF TRACK -REMOVE TRACK --PROPOSED RIGHT-OF-WAY !R/W) ... z i3 0. a: +i~ ... u --TEMPORARY CONSTRUCT I ON EASEMENT I TCE I --FOOTING EASEMENT .. -.. -EXISTING BNSF RIGHT-OF-WAY IR/Wl ----PARCEL BOUNDARIES ·-··-ROAD RIGHT-OF-WAY IR/Wl NEAR WEST CORONA CORONA, CA ••••'*'••tt•n.,t:iwn-PERMANENT FOOTING EASEMENT '1_ TRACK ftlf•l•Hlllli:*llliil'.l•:t,r•--i <i LEAD TRACK 4365 806' PROPOSED STORAGE CAPAC I TY AIN I I I .... ·1 'j I I • ' I f RELOCATED BUMPER 11 -"' ---..; w R/W !y: . ~ ::=O PLAN -1 "=80' VPROP R/W LINE l EXIST R/W • : ~LINE ~ PROP RETAINlNG 'f" I (WALL i i REMOVED ; : r TRACK J EXIST BUMPE~,. _nX!ST T.RACK W.wiw&:.tiW••i f ~TO BE REMOVcv ~ 2 ·'i:.:::::1 ; ELEVATION 1 "=40' ,. ·r ,.-...., --"' PROP R/W FOOTING EASEMENT _____. Q) : TEMPORARY CONSTRUCTION EASEMENT C TCE l MSf sc.m: er gg REMOVE 90 T. F. ANO BUMPER REINSTALL BUMPER ON TRACK 4365 MONSTER LEAD TRACK BNSF LEAD TRACK 4365 INDUSTRY TRACKS 4368 & " )> -I ~ (') I ~ m z -I _,, A I I AGHMl::.N I "L. MONSTER LEAD WALL AGREEMENT BNSF Agreement No. BF-10004505 STATE Contract No. XXXXXXXX RCTC Agreement No.X-X-XXXX Monster Lead Track No. 4365 San Bernardino Subdivision LS 7602 MP 27.50 This Agreement ("Agreement"), is executed to be effective as of this day of ~----2014 ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF"}, the STATE OF CALIFORNIA, acting through the Department of Transportation, hereinafter referred to as ("STATE"), and the RIVERSIDE COUNTY TRANSPORTATION COMMISSION hereinafter referred to as ("RCTC"), a political subdivision of the State of California. RECITALS: WHEREAS, BNSF owns and operates a line of railroad in and through the City of Corona, County of Riverside, State of California, hereinafter referred to as ("Rail Corridor"); WHEREAS, RCTC has adopted a project to extend the existing tolled express lanes on State Route 91 between the Riverside/Orange County line and Interstate Highway 1-15 ("SR-91 Improvement Project"); WHEREAS, the SR-91 Improvement Project will involve the modification of four existing overheads that cross BNSF's Rail Corridor: East Porphyry Overhead (1-15) DOT No. 026595H, West Porphyry Overhead {Temescal) DOT No. 026522X, Prado Overhead DOT No. 026532D, and West Prado Overhead DOT No. 026533K, including the shortening of BNSF's Monster Lead Track No. 4365 ("Monster Lead"); WHEREAS, RCTC and STATE desire to proceed with removal of 90 feet of the Monster Lead and the construction of a retaining wall footing ("Structure") on BNSF's Monster Lead right of way to accommodate the SR-91 Improvement Project; WHEREAS, RCTC will fund the cost to design and construct the SR-91 Improvement Project using a design build contractor ("Contractor"); WHEREAS, STATE is the owner of State Route 91 and Interstate Highway 1-15; WHEREAS RCTC and STATE have entered into a Cooperative Agreement permitting RCTC to acquire property on behalf of STATE and to design and construct the SR-91 Improvement Project; WHEREAS, upon completion and acceptance of the SR-91 Improvement Project by STATE, STATE will thereafter own and maintain all highway improvements made by RCTC under this Agreement; WHEREAS, pursuant to this Agreement, RCTC will acquire from BNSF a temporary construction license; and l 7336.02100\7956478.10 Page 1 of 16 Monster Lead Wall Agreement February 12, 2014 70 WHEREAS, pursuant to this Agreement, RCTC will acquire a permanent easement ("Easement"), and will purchase a portion of the Monster Lead right of way, both on behalf of the ST ATE, as required for the SR-91 Improvement Project; NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1-SCQPE OF WORK I. The term "Project" as used herein includes any and all work related to, the construction of the Structure, removal of a portion of the Monster Lead, more particularly described and depicted on Exhibit 8. which is attached hereto and incorporated herein, including but not limited to, any and all changes to telephone, telegraph, signal and electrical lines, other utilities and appurtenances, alterations to or new construction of drainage facilities, preliminary and construction engineering, construction management, and contract preparation. ARTICLE 11-BNSF OBLIGATIONS In consideration of the covenants of STATE and RCTC set forth herein and the faithful performance thereof, BNSF agrees as follows: 1. Upon RCTC's payment to 8NSF of the Purchase Price in the amount of Forty Three Thousand Six Hundred Eighty and No/100 dollars ($43,680.00) and the satisfaction of the other conditions of sale as defined and set forth in the REAL ESTATE PURCHASE AND SALE AGREEMENT attached hereto as Exhibit A-1, 8NSF shall deliver to STATE a Quitclaim Deed for 1631 square feet of its Monster Lead right of way as described in the Legal Description Exhibit A-2 and shown on Parcel Map Exhibit A-3 to the REAL ESTATE PURCHASE AND SALE AGREEMENT ("Monster Lead ROW"). 2. Following transfer to STATE of the Monster Lead ROW, and upon RCTC's payment to 8NSF of an administration fee in the sum of Two Thousand and No/100 DOLLARS ($2,000.00) and the payment of One Hundred and Twenty and No/100 Dollars ($120.00) as compensation for a temporary construction license fee, 8NSF hereby grants to RCTC, its successors and assigns, upon and subject to the terms and conditions set forth in this Agreement, a temporary non-exclusive license (hereinafter called, "Temporary Construction License") to construct the Project across or upon the portion of 8NSF's Rail Corridor as described further in the Legal Description, Exhibit 8-2 and shown on Parcel Map Exhibit 8-3, excepting and reserving 8NSF's rights, and the rights of any others who have obtained, or may obtain, permission or authority from 8NSF, to do the following: (a) Operate, maintain, renew and/or relocate any and all existing railroad track or tracks, wires, pipelines and other facilities of like character upon, over or under the surface of said Rail Corridor. (b) Construct, operate, maintain, renew and/or relocate upon said Rail Corridor, without limitation, such facilities as BNSF may from time to time deem appropriate, provided such additional facilities do not materially interfere with RCTC's construction of the Project; (c) Use or operate the Rail Corridor as 8NSF may from time to time deem appropriate, provided such use or operations does not materially interfere with STATE's use of the Structure. 17336.02100\79564 78.10 Page 2of16 Monster Lead Wall Agreement February 12, 2014 71 The term of the Temporary Construction License shall begin on the Notice to Commence Construction date as set forth hereinafter in Article Ill, Section 13 and ends on the earlier of (i) substantial completion of the Project, or (ii) Twelve (12) months following the Notice to Commence Construction. The Temporary Construction License and related rights to be given by BNSF to RCTC shall be without warranty of title of any kind, express or implied, and no covenant of warranty of title will be implied from the use of any word or words therein contained. The Temporary Construction License shall be for the Project and for no other purpose. In the event STATE or RCTC is evicted by anyone owning, or claiming title to or any interest in said Rail Corridor, other than BNSF in breach of this Agreement, BNSF will not be liable to STATE or RCTC for any damages, losses or any expenses of any nature whatsoever. BNSF shall not grant similar rights to others, subsequent to the date of this Agreement, that impair or interfere with the rights granted to RCTC pursuant to the Temporary Construction License. 3. State or RCTC shall pay BNSF the additional sum of Two Thousand Eight Hundred and No/100 DOLLARS ($2,800.00) as compensation for the permanent Easement, such payment to be made upon execution of this Agreement. Within thirty (30) days of BNSF's final inspection of the completed Structure, BNSF shall deliver to STATE the executed Easement Agreement in the form attached hereto as Exhibit B-1 and incorporated herein by reference, providing STATE, its successors and assigns, a perpetual easement to enter upon and use that portion of the Rail Corridor described therein as is necessary to use and maintain the Structure. 4. BNSF will furnish all labor, materials, tools, and equipment for railroad work required for the construction of the Project, such railroad work and the estimated cost thereof being as shown on Exhibit Q attached hereto and made a part hereof. In the event construction on the Project has not commenced within six (6) months following the Effective Date, BNSF may, in its sole and absolute discretion, revise the cost estimates set forth in said Exhibit D. In such event, the revised cost estimates will become a part of this Agreement as though originally set forth herein. Any item of work incidental to the items listed on Exhibit D not specifically mentioned therein may be included as a part of this Agreement upon written approval of RCTC, which approval will not be unreasonably withheld. Construction of the Project will include the following principal elements of railroad work by BNSF: (a) Procurement of materials, equipment and supplies necessary for the railroad work in accordance with the federal Buy America requirements as set forth herein in Exhibit G; (b) Preliminary engineering, design, and contract preparation; (c) Removal of Ninety (90) feet of rail and fastenings for the Monster Lead; (d) Removal and reinstallation of the bumping post; (e) Furnishing of flagging services necessary for the safety of BNSF's property and the operation of its trains during construction of the Project as set forth in further detail on Exhibit C, attached to this Agreement and made a part hereof; (f) Furnishing of engineering and inspection as required in connection with the construction of the Project; and (g) Providing a contract project coordinator, at RCTC's expense, to serve as a project manager for the Project. 5. BNSF will construct all railroad work set forth in Article II, Section 4 above on an actual cost basis, when BNSF, in its sole discretion, determines it is required by its labor agreements to perform such work with its own employees working under applicable collective bargaining agreements or by contractor(s) if necessary. In conducting the work hereunder, for any work that BNSF subcontracts, 17336.02100\7956478.10 Page 3of16 Monster Lead Wall Agreement February 12, 2014 72 BNSF shall comply with all applicable State prevailing wage requirements. BNSF subcontracts for work under this Agreement shall be with the lowest qualified bidder, selected by BNSF pursuant to its normal and customary bidding processes. BNSF shall require any contractors completing work under this Agreement to obtain insurance sufficient to cover the risks associated with such work, as determined by BNSF. 6. RCTC agrees to reimburse BNSF for work of an emergency nature caused by RCTC or RCTC's Contractor in connection with the Project which is reasonably necessary for the immediate restoration of railroad operations, or for the protection of persons or BNSF property. Such work may be performed by BNSF with notification provided to RCTC as soon as practicable and RCTC agrees to fully reimburse BNSF for all such emergency work. 7. BNSF may charge RCTC for insurance expenses, including self-insurance expenses, when such expenses cover the cost of Employer's Liability {including, without limitation, liability under the Federal Employer's Liability Act) in connection with the construction of the Project. Such charges will be considered part of the actual cost of the Project, regardless of the nature or amount of ultimate liability for injury, loss or death to BNSF's employees, if any. 8. During the construction of the Project, BNSF will send RCTC progressive invoices detailing the costs of the railroad work performed by BNSF under this Agreement. RCTC must reimburse BNSF for completed force-account work within forty-five {45) calendar days from the date of RCTC's receipt of the invoice for such work. Upon completion of the Project, BNSF will send RCTC a detailed invoice of final costs, segregated as to labor and materials for each item in the recapitulation shown on Exhibit D. Pursuant to this Section, RCTC will verify such final costs. All undisputed costs set forth in the final invoice shall be paid within ninety {90) calendar days from the date of the final invoice. The Parties agree to take reasonable efforts to resolve any disputed cost in a timely manner. BNSF will assess a finance charge of 0.033% per day {12% per annum) on any unpaid sums or other charges due under this Agreement which are past its credit terms. The finance charge continues to accrue daily until the date of the payment is received by BNSF, not the date that payment is made or the date postmarked on the payment. Finance charges will be assessed on delinquent sums and other charges as of the end of the month and will be reduced by amounts in dispute and any un-posted payments received by the month's end. Finance charges will be noted on invoices sent to RCTC under this Section 8. For purposes of computing the time limits prescribed by Section 911.2 of the CALIFORNIA GOVERNMENT CODE for the presentment of a claim against the RCTC, the cause of action for failure to reimburse BNSF for the cost of the railroad work performed bv it pursuant to this Agreement shall be deemed to have accrued one hundred eighty (180) days from the date of the final invoice. ARTICLE 111-RCTC OBLIGATIONS In consideration of the covenants of STATE and BNSF set forth herein and the faithful performance thereof, RCTC agrees as follows: 1. RCTC shall furnish to BNSF and STATE plans and specifications for the Structure together with calculations with the railroad clearances expressed in English Units. One complete reduced size 11" x 17" paper copy shall be submitted to BNSF's Director Bridge Engineering. A PDF copy of the plans and specifications should be sent to BNSF's Manager Public Projects and BNSF's Director Bridge Engineering. The PDF copy with a file size of two (2) megabytes or less should be sent via an email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD {Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF offices. The email and mailing addresses are included in Article V, Section 20. Sets of said plans shall be submitted to BNSF and STATE for approval prior to commencement of any construction. BNSF will give RCTC final written approval of the plans and specifications substantially in the form of Exhibit E, 17336.02100\7956478.IO Page 4of16 Monster Lead Wall Agreement February 12, 2014 73 attached to this Agreement and made a part hereof. Upon BNSF's final written approval of the plans and specifications, said plans and specifications will become part of this Agreement and are hereby incorporated herein. Any approval of the plans and specifications by BNSF shall in no way obligate BNSF in any manner with respect to the finished product design and/or construction. Any approval by BNSF shall mean only that the plans and specifications meet BNSF standard specifications, and such approval by BNSF shall not be deemed to mean that the plans and specifications or construction is structurally sound and appropriate or that such plans and specifications meet applicable regulations, laws, statutes or local ordinances and/or building code. 2. RCTC must provide for and maintain minimum vertical and horizontal clearances, as required and approved by BNSF as part of the plans and specifications for the Structure. 3. RCTC will make any and all arrangements, in compliance with BNSF's Utility Accommodation Manual (http://www.bnsf.com/communities/faqs/pdf/utility.pdf), for the installation or relocation of wire lines, pipe lines and other facilities owned by private persons, companies, corporations, political subdivisions or public utilities other than BNSF which may be necessary for the construction of the Structure. 4. RCTC must construct the Structure as shown on the attached Exhibit A and do all work provided for in the plans and specifications for the Structure, except railroad work that will be performed by BNSF herein. RCTC must furnish all labor, materials, tools and equipment for the performance of RCTC's work. The principal elements of RCTC's work are as follows: (a) Preliminary and final Engineering; (b) Design and the Construction of the Structure; (c) Removal of any track material not previously removed by BNSF; (d) Providing of suitable drainage, both temporary and permanent; (e) All other necessary grading and paving, including backfill of excavations and restoration of disturbed vegetation on the Rail Corridor; ' (f) Providing of pedestrian and trespasser control during construction; and (g) Job site cleanup within Project area including removal of all construction materials, concrete debris, surplus soil, refuse, disturbed contaminated soils, asphalt debris, litter and other waste materials to the satisfaction of BNSF. 5. RCTC will acquire all properties and/or easement rights or construction licenses required to construct and/or maintain the Project. 6. RCTC's Work must be performed by RCTC or RCTC's Contractor in a manner that will not endanger or interfere with the safe and timely operations of BNSF and its facilities. 7. RCTC must require its Contractor(s) to notify BNSF's Roadmaster at least thirty (30) calendar days prior to requesting a BNSF flagman in accordance with the requirements of Exhibit C attached hereto. Additionally, RCTC must require its Contractor(s) to notify BNSF's Manager Public Projects thirty {30) calendar days prior to commencing work on BNSF property or near BNSF tracks. 8. RCTC or its Contractor(s) shall submit one reduced size 11" x 17" paper copy, including calculations, expressed in English Units of the plans and specifications for proposed shoring, or cribbing Page 5of16 Monster Lead Wall Agreement February 12, 2014 17336.02100\7956478.10 74 to be used over, under, or adjacent to BNSF's tracks to BNSF's Director Bridge Engineering. RCTC or its Contractor(s) shall submit a PDF copy of the plans and specifications for the proposed shoring, or cribbing to both BNSF's Manager Public Projects and BNSF's Director Bridge Engineering. The PDF copy with a file size of two (2) megabytes or less should be sent via an email attachment. Should the PDF copy of the plans and specifications exceed two (2) megabytes, a CD (Compact Disk) of the plans and specifications should be sent via overnight mail service to both BNSF offices for approval. The email and mailing addresses are included in Article V, Section 20. The shoring, or cribbing used by RCTC's Contractor shall comply with the BNSF Bridge Requirements set forth on Exhibit F, attached to this Agreement and incorporated herein, and all applicable requirements promulgated by state and federal agencies, departments, commissions and other legislative bodies. 9. RCTC must include the following provisions in any contract with its Contractor(s) performing work on the Project: (a) The Contractor is placed on notice that fiber optic, communication and other cable lines and systems (collectively, the "Lines") owned by various telecommunications companies may be buried on BNSF's property or Rail Corridor. The locations of these Lines have been included on the plans based on information from the telecommunications companies. The Contractor will be responsible for contacting BNSF's OneCall (telephone number (800) 533-2891) and the telecommunications companies and notifying them of any work that may damage these Lines or facilities and/or interfere with their service. The Contractor must also mark all Lines shown on the plans or marked in the field in order to verify their locations. The Contractor must also use all reasonable methods when working in the BNSF Rail Corridor or on BNSF property to determine if any other Lines (fiber optic, cable, communication or otherwise) may exist. (b) Failure to mark or identify these Lines will be sufficient cause for any BNSF Representative to stop construction at no cost to the RCTC or BNSF until these items are completed. (c) In addition to the liability terms contained elsewhere in this Agreement, the Contractor hereby indemnifies, defends and holds harmless BNSF for, from and against all cost, liability, and expense whatsoever (including, without limitation, attorney's fees and court costs and expenses) arising out of or in any way contributed to by any act or omission of the Contractor, its subcontractors, agents and/or employees that cause or in any way or degree contribute to (1) any damage to or destruction of any Lines by the Contractor, and/or its subcontractors, agents and/or employees, on BNSF's property or within BNSF's Rail Corridor, (2) any injury to or death of any person employed by or on behalf of any telecommunications company, and/or its contractor, agents and/or employees, on BNSF's property or within BNSF's Rail Corridor, and/or (3) any claim or cause of action for alleged loss of profits or revenue by, or loss of service by a customer or user of such telecommunication company(ies). THE LIABILITY ASSUMED BY THE CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY, DEATH, CAUSE OF ACTION OR CLAIM WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE WHOLLY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. (d) The Contractor will be responsible for the rearrangement of any facilities or Lines determined to interfere with the construction. The Contractor must cooperate fully with any telecommunications company(ies) in performing such rearrangements. l 7336.02100\7956478. lO Page 6of16 Monster Lead Wall Agreement February 12, 2014 75 10. RCTC must incorporate in each prime contract for construction of the Project, or the specifications therefor (i) the provisions set forth in Articles Ill and IV, and (ii) the provisions set forth in Exhibit C, Exhibit C-1, and Exhibit F, attached hereto and by reference made a part hereof. 11. Except as otherwise provided below in this Section 11, all construction work performed hereunder by RCTC for the Project will be pursuant to a contract or contracts to be let by RCTC, and all such contracts must include the following: (a) All work performed under such contract or contracts within the limits of BNSF's Rail Corridor must be performed in a good and workmanlike manner in accordance with plans and specifications approved by BNSF; (b) Changes or modifications during construction that affect safety or BNSF operations must be subject to BNSF's approval; (c) No work will be commenced within BNSF's Rail Corridor until each of the prime contractors employed in connection with said work must have (i) executed and delivered to BNSF an agreement in the form of Exhibit C-1, and (ii) delivered to and secured BNSF's approval of the required insurance; (d) If it is in RCTC's best interest, RCTC may direct that the construction of the Project be done by day labor under the direction and control of RCTC, or if at any time, in the opinion of RCTC, the Contractor has failed to prosecute with diligence the work specified in and by the terms of said contract, RCTC may terminate its contract with the Contractor and take control over the work and proceed to complete the same by day labor or by employing another contractor(s) provided; however, that any contractor(s) replacing the original contractor(s) must comply with the obligations in favor of BNSF set forth above and, provided further, that if such construction is performed by day labor, RCTC will, at its expense, procure and maintain on behalf of BNSF the insurance required by Exhibit C-1; (e) To facilitate scheduling for the Project, RCTC shall have its Contractor give BNSF's Project Engineer at telephone number 909 386 4079 eight (8) weeks advance notice of the proposed times and dates for work windows. BNSF and RCTC's Contractor will establish mutually agreeable work windows for the Project. RCTC shall inform its Contractor that any request for work windows with less than eight (8) weeks advance notice will have a reduced probability of approval. BNSF has the right at any time to revise or change the work windows, due to train operations or service obligations. BNSF will not be responsible for any additional costs and expenses resulting from a change in work windows. Additional costs and expenses resulting from a change in work windows shall be accounted for in the Contractor's expenses for the Project; and (f) If applicable, the plans and specifications for the Structure must be in compliance with the Bridge Requirements set forth in said Exhibit F. 12. RCTC must give BNSF's Manager Public Projects written notice to proceed ("Notice to Proceed") with the railroad work and advance the funds for the estimated cost of the Project to BNSF as set forth in said Exhibit D. BNSF will not begin the railroad work (including, without limitation, procurement of supplies, equipment or materials) until written Notice to Proceed and funds for construction of the Project are received from RCTC. The Notice to Proceed must reference BNSF's Agreement No. BF-10004505. 13. The construction of the Structure will not commence until RCTC gives BNSF's Manager Public Projects thirty (30) days written notice to commence construction ("Notice to Commence Construction") Page 7of16 Monster Lead Wall Agreement February 12, 2014 17336.02100\7956478.10 76 when the Contractor has satisfied the requirements set forth hereinabove in Article Ill, Section 11 (c) and will enter BNSF Rail Corridor to begin construction. The Notice to Commence Construction must reference BNSF's Agreement No. BF-10004505 and must state the time that construction activities will begin. 14. RCTC must advise BNSF's Manager Public Projects, in writing, of the completion date of the Structure within thirty (30) days after such completion date ("Notification of Completion"). Additionally, RCTC must notify BNSF's Manager Public Projects, in writing, of the date on which RCTC, and/or STATE and/or RCTC's Contractor will meet with BNSF for the purpose of making final inspection of the Structure. 15. RCTC HEREBY RELEASES, INDEMNIFIES, DEFENDS AND HOLDS HARMLESS BNSF, ITS AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENAL TIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND ATTORNEYS' FEES) OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE EMPLOYEES OF THE PARTIES HERETO} OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART} (I) THE USE, OCCUPANCY OR PRESENCE OF RCTC, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (II} THE PERFORMANCE, OR FAILURE TO PERFORM BY RCTC, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS, ITS WORK OR ANY OBLIGATION UNDER THIS AGREEMENT, (Ill) THE SOLE OR CONTRIBUTING ACTS OR OMISSIONS OF RCTC, ITS CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR AGENTS IN, ON, OR ABOUT THE CONSTRUCTION SITE, (IV) RCTC'S BREACH OF THE TEMPORARY CONSTRUCTION LICENSE GRANTED TO RCTC PURSUANT TO ARTICLE II OF THIS AGREEMENT, (V) ANY RIGHTS OR INTERESTS GRANTED TO RCTC PURSUANT TO THE TEMPORARY CONSTRUCTION LICENSE DISCUSSED IN ARTICLE II OF THIS AGREEMENT, (VI} RCTC'S OCCUPATION AND USE OF BNSF'S PROPERTY OR RAIL CORRIDOR AS CONTEMPLATED IN THIS AGREEMENT, OR (VII} AN ACT OR OMISSION OF RCTC OR ITS OFFICERS, AGENTS, INVITEES, EMPLOYEES OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER AS RELATES TO THIS AGREEMENT. THE LIABILITY ASSUMED BY RCTC WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DAMAGE, DESTRUCTION, INJURY OR DEATH WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF BNSF, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, UNLESS SUCH CLAIMS ARE WHOLLY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF BNSF. ARTICLE IV-STATE OBLIGATIONS In consideration of the covenants of BNSF and RCTC herein contained and the faithful performance thereof, STATE agrees: 1. To permit RCTC to act as the responsible lead agency to design and construct the Project. 2. In addition to the terms and conditions set forth elsewhere in this Agreement, including, but not limited to, the terms and conditions stated in ~it F, BNSF and STATE agree to the following terms upon completion of construction of the Project: (a) BNSF will own and maintain, at its sole cost and expense, its roadbed, track, railroad drainage, and all other railroad facilities; 17336.02100\7956478,IO Page 8 of 16 Monster Lead Wall Agreement February 12, 2014 77 (b) STATE will, at its sole cost and expense, maintain the Structure, street improvements, including any retaining walls, highway drainage, lighting, the highway approaches, and appurtenances thereto; however, nothing herein contained shall relieve BNSF of any liability it would otherwise have with respect to damage caused to said Structure by negligent act or omission of BNSF or its employees. (c) STATE must, at STATE's sole cost and expense, keep the Structure painted and free from graffiti. (d) It is understood by STATE that the right to install utilities is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, footings and/or run through the deck of the Structure. Under no circumstances will utilities be allowed to hang from the Structure. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities. (e) Upon request from BNSF, STATE shall remove all trash and debris associated with the Structure from BNSF's property. (f) STATE must keep the Structure and surrounding areas clean and free from birds, pigeons, scavengers, vermin, creatures and other animals; {g) In conformance with and limited to the applicable effect of California Laws insofar as the indemnity and insurance provisions set forth in any of the preceding sections or any rider, amendment or addendum hereto, STATE is self-insured. If STATE performs (i) alterations or modifications to the Structure, or (ii) any maintenance or other work on the Structure with heavy tools, equipment or machinery at ground surface level horizontally within 25'-0" of the centerline of the nearest track, or (iii) any maintenance or other work outside the limits of the deck of the Structure vertically above the top of the rail, then STATE, shall provide BNSF defense and indemnification at least equal to the defense, indemnification and insurance provisions contained in Exhibit C-1 in accordance with California Government Code section 14662.5. Nothing herein shall be deemed to insure BNSF against its sole negligence or willful misconduct. Notwithstanding the foregoing, STATE agrees not to commence such alterations, modifications, maintenance, or other work to the Structure with day labor, until such time as (i) BNSF has procured, at STATE's sole cost and expense, a Railroad Protective Liability insurance policy naming BNSF as the insured, as required by Exhibit C-1, and (ii) STATE has reimbursed BNSF for the costs to obtain the Railroad Protective Liability insurance policy. 3. STATE must notify and obtain prior authorization from BNSF's Manager Public Projects to perform (i) inspection, (ii), alterations or modifications to the Structure, or (iii) any maintenance or other work on, over or under the Structure before entering BNSF's Rail Corridor or for work located a minimum distance of 25'-0" measured horizontally from the center line of the nearest track or a greater distance specified by BNSF's Manager Public Projects and must procure and maintain the insurance coverage required by Exhibit C-1 and comply with the obligations set forth in Exhibit C and Exhibit F, as the same may be revised from time to time. In the event any of the work to be done on behalf of STATE upon BNSF's Rail Corridor is to be done by a contractor, STATE will be responsible for its contractor(s) compliance with such obligations. l 7336.02100\7956478. !0 Page 9of16 Monster Lead Wall Agreement February 12, 2014 78 4. PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 14662.5, STATE HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS BNSF FROM, AND TO REPAIR OR PAY FOR ANY DAMAGE PROXIMATELY CAUSED BY REASON OF THE USES AUTHORIZED BY THIS AGREEMENT AND THE EASEMENT AGREEMENT. ARTICLE V-JOINT OBLIGATIONS IN CONSIDERATION of the premises, the parties hereto mutually agree to the following: 1. All work contemplated in this Agreement must be performed in a good and workmanlike manner and each portion must be promptly commenced by the party obligated hereunder to perform the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. Furthermore, any changes or modifications during construction which affect BNSF will be subject to BNSF's approval prior to the commencement of any such changes or modifications. BNSF will notify RCTC of potential impacts to the Project at the time said impacts are known subject to the provisions of Article II, Section 6. 2. The work hereunder must be performed in accordance with the Bridge Requirements set forth in Exhibit F and the detailed plans and specifications approved by BNSF. 3. RCTC must require its Contractor(s) to reasonably adhere to the Project's construction schedule for all Project work. At BNSF's discretion, any work that would affect train operations shall be scheduled at night. The parties hereto mutually agree that BNSF's failure to complete the railroad work in accordance with the construction schedule due to inclement weather or unforeseen railroad emergencies will not constitute a breach of this Agreement by BNSF and will not subject BNSF to any liability. Regardless of the requirements of the construction schedule, BNSF reserves the right to reallocate the labor forces assigned to complete the railroad work in the event of an emergency to provide for the immediate restoration of railroad operations of either BNSF or its related railroads, or to protect persons or property on or near any BNSF owned property. BNSF will not be liable for any additional costs or expenses resulting from any such reallocation of its labor forces. The parties mutually agree that any reallocation of labor forces by BNSF pursuant to this provision and any direct or indirect consequences or costs resulting from any such reallocation will not constitute a breach of this Agreement by BNSF. 4. BNSF shall have the right to request any RCTC employee, or STATE employee, who enters BNSF's Rail Corridor and because of their incompetence, neglect of duty, unsafe conduct or misconduct and/or they adversely affected BNSF's operations or facilities, be removed from the Rail Corridor. In the event RCTC or STATE elects not to honor such request, BNSF may stop work within its Rail Corridor until the matter has been fully resolved to BNSF's satisfaction. The party whose employee has been asked to leave the Rail Corridor will indemnify BNSF and the other parties against any claims arising from such removal. 5. BNSF will have the right to stop construction work on the Project if any of the following events take place ("Event of Default"): (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by BNSF; (ii) Contractor (or any of its subcontractors), in BNSF's opinion, prosecutes the Project work in a manner that is hazardous to BNSF property, facilities or the safe and expeditious movement of railroad traffic; (iii) any RCTC employee or State Employee because of their incompetence, neglect of duty, unsafe conduct or misconduct and/or they adversely affect BNSF's operations or facilities as described in Article V, Section 4 above, or (iv) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (v) RCTC or State breach any other provision of this Agreement. Prior to commencing any work stoppage for an Event of Default described under (iv) above, BNSF will first provide to RCTC thirty (30) days prior written notice of an Event of Default, and opportunity to cure. If RCTC fails to cure such Event of Default within the thirty (30) day period, the work stoppage may commence and will continue until all necessary actions [ 7336.02100\7956478.10 Page 10 of 16 Monster Lead Wall Agreement February 12, 2014 79 are taken by RCTC, Contractor or its subcontractor to rectify the situation to the satisfaction of BNSF's Division Engineer or until proof of additional insurance has been delivered to and accepted by BNSF. For an Event of Default as described in (i), (ii), (iii), or (iv) above, BNSF may commence the work stoppage immediately, and shall provide notice to RCTC of such stoppage at the earliest time feasible. Any work stoppage under this provision will not give rise to any liability on the part of BNSF. BNSF's right to stop the work is in addition to any other rights BNSF may have including, but not limited to, actions or suits for damages or lost profits. In the event that BNSF desires to stop construction work on the Project, BNSF agrees to immediately notify the following individual in writing: Michael Blomquist Toll Program Director RIVERSIDE COUNTY TRANSPORTATION COMMISSION 480 Lemon Street, 3rd. Floor Riverside, CA 92502-2208 Office: (951) 778-1098 Fax (951) 787-7920 m b!Omguist@rctc.org 6. RCTC's or STATE's employees, agents, contractors, representatives and invitees shall wear Personal Protective Equipment ("PPE") when on the BNSF's Rail Corridor during construction of the Project or performing subsequent maintenance after completion of construction. The PPE shall meet applicable OSHA and ANSI specifications. Current BNSF PPE requirements are listed on the web site, www.BNSFContractor.com. A partial list of BNSF's PPE requirements include; a) safety glasses: permanently affixed side shields; no yellow lenses, b) hard hats with high visibility orange cover, c) safety shoes: hardened toe, above-the-ankle lace-up with a defined heel, and d) high visibility retro-reflective orange vests are required as specified by BNSF's representative in charge of the Project. PPE requirements as defined on the web site, will be amended from time to time, and shall take precedence over the Partial list of requirements outlined in this Section 6 of Article V. Hearing protection, fall protection and respirators will be worn as required by State and Federal regulations. 7. RCTC must supervise and inspect the operations of all RCTC contractors to ensure compliance with the plans and specifications approved by BNSF, the terms of this Agreement and all safety requirements of BNSF. If BNSF determines that proper supervision and inspection are not being performed by RCTC personnel or RCTC project and construction management consultants at any time during construction of the Project, BNSF has the right to stop construction (within or adjacent to its operating Rail Corridor). Construction of the Project will not proceed until RCTC corrects the situation to BNSF's reasonable satisfaction. If BNSF feels the situation is not being corrected in an expeditious manner, BNSF will immediately notify RCTC's Toll Program Director for appropriate corrective action. 8. Pursuant to this and Article II, Section 8 herein, RCTC must reimburse BNSF in full for the actual costs of all work performed by BNSF under this Agreement (including taxes, such as applicable sales and use taxes, business and occupation taxes, and similar taxes). 9. In any action brought under this Agreement, the prevailing Party shall be entitled to recover its actual costs and attorneys fees pursuant to California Civil Code Section 1717, as well as other litigation costs, including expert witness fees. The prevailing Party shall also be entitled to recover all actual attorneys fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. 10. All expenses detailed in statements sent to RCTC pursuant to Article II, Section 8 herein will comply with the terms and provisions of the Title 23 U.S. Code, Title 23 Code of Federal Regulations, and the Federal-Aid Policy Guide, U.S. Department of Transportation, as amended from time to time, which manual is hereby incorporated into and made a part of this Agreement by reference. The parties mutually 17336.02100\7956478,10 Page 11 of 16 Monster Lead Wall Agreement February 12, 2014 80 agree that BNSF's preliminary engineering, design, and contract preparation costs described in Article II herein are part of the costs of the Project even though such work may have preceded the date of this Agreement and the issuance of Notice to Proceed as more particularly described in Article Ill, Section 12. 11. Within 90 days of the conclusion of the Project and final acceptance by BNSF, RCTC must provide BNSF with a complete electronic set of the bridge plans with the railroad clearances (prepared in English Units). BNSF will also accept a marked up paper copy of the bridge plans labeled "As Built". The marked up copy of those plans will reflect any and all deviations from the original plans that occurred during construction. The electronic set of bridge plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. The "As Built" plans shall show actual measured "as constructed" clearances as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. The "As Built" plans must comply with the Bridge Requirements set forth on Exhibit F and depict all information in BNSF engineering stationing and mile post pluses. The "As Built" plans must also include plan and profile, structural bridge drawings and specifications, and drainage plans. All improvements and facilities must be shown. It is understood that BNSF prefers to receive the "As Builf' plans in an electronic format. 12. [Intentionally Deleted] 13. STATE may, at ST AT E's sole expense, alter or reconstruct the Structure if necessary or desirable, due to traffic conditions or pedestrian or other recreational traffic, provided, however, that any such alteration or reconstruction, must receive BNSF's prior written approval as evidenced by either a supplement to this Agreement, or execution of a new agreement that provides for the termination of this Agreement. · 14. Any books, papers, records and accounts of the parties hereto relating to the work hereunder or the costs or expenses for labor and material connected with the construction will at all reasonable times be open to inspection and audit by the agents and authorized representatives of the parties hereto and the Federal Highway Administration, for a period of three (3) years from the date of the final BNSF invoice under this Agreement. 15. The covenants and provisions of this Agreement are binding upon and inure to the benefit of the successors and assigns of the parties hereto. Notwithstanding the preceding sentence, no party hereto may assign any of its rights or obligations hereunder without the prior written consent of the other party. 16. In the event construction of the Project does not commence within three (3) years of the Effective Date, this Agreement will become null and void. 17. Neither termination nor expiration of this Agreement will release any party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 18. To the maximum extent possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is prohibited by, or held to be invalid under, applicable law, such provision will be ineffective solely to the extent of such prohibition or invalidity and the remainder of the provision will be enforceable. 19. This Agreement (including exhibits and other documents, manuals, etc. incorporated herein), together with previously acquired and recorded property rights if any, is the full and complete agreement between BNSF, STATE, and RCTC with respect to the subject matter herein and supersedes any and all other prior agreements between the parties hereto. 17336.02100\7956478. lO Page 12 of 16 Monster Lead Wall Agreement February 12, 2014 81 20. Any notice provided for herein or concerning this Agreement must be in writing and wilt be deemed sufficiently given when sent by certified mail, return receipt requested, to the parties at the following addresses: BNSF: RCTC: STATE: BNSF's Manager Public Projects 740 E. Carnegie Drive San Bernardino, CA 92408 Email: Melvin.Thomas@bnsf.com Director Bridge Engineering 4515 Kansas Avenue Kansas City, KS 66106 Email: Ronald. Berrv@bnsf.com BNSF's Project Engineer 740 E. Carnegie Drive San Bernardino, CA 92408 Email: Greg.Rousseau@bnsf.com Michael Blomquist Toll Program Director Riverside County Transportation Commission 480 Lemon Street, 3rd. Floor Riverside, CA 92502-2208 Office: (951) 778-1098 Fax (951) 787-7920 Email: mblomquist@rctc.org Department of Transportation Suzette Shellooe, Chief Office of Utilities and Railroads Division of Right of Way & Land Surveys 1120 N. Street Sacramento, CA 95814-5690 Email: Suzette Sheffooe@dot.ca.gov IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. 17336.02100\7956478.IO (Signature pages to follow) Page 13of16 Monster Lead Wall Agreement February 12, 2014 82 17336.02100\7956478.10 BNSF RAILWAY COMPANY By: _______ ....;,_ ______ -"-- Printed Name: Melvin Thomas Manager Public Projects Title: Page 14 of 16 Monster Lead Wall Agreement February 12, 2014 83 17336.02100\7956478. IO RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Name and Title REVIEWED AND RECOMMENDED FOR APPROVAL: By:, ___ ~-~--------- Name and Title REVIEWED FOR FISCAL IMPACT: By:~~-------------~ Chief Financial Officer APPROVED AS TO FORM: By: _______________ _ Page 15of16 Monster Lead Wall Agreement February 12, 2014 84 Best Best & Krieger LLP Counsel to the Riverside County Transportation Commission By: Attorney Department of Transportation Approval Recommended By: Denny FOng, P.E. Railroad Agreements Engineer 17336.02100\7956478. lO STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By:~~~~~~~~~~~~~~~~ Printed Name: Suzette Shellooe Title: Chief. Utilities and Railroads Division of Right of Way & Land Surveys Page 16of16 Monster Lead Wall Agreement February 12, 2014 85 DO O"I FORT WORTH, TX SCALE AS NOTEO MAY2013 CALIFORNIA OIVISION SAN BERNARDINO SUBDIVISION LINE SEGMENT 7602 EXHIBIT"A" ATTACHED TO A CONSTRUCTION AGREEMENT BETWEEN BNSF RAILWAY COMPANY AND SANFORD C. SEXHUS VlCE PRESIDENT RIVERSIDE COUNTY TRANSPORTATION COMMISSION AND ~~-----------------------------------~·-----~-----------· STATE OF CALIFORNIA !!!!!£ ~ TO FULLERTON NEXT STATION WEST CORONA "' "' ..... ~ ~ q •>< "' R/W 1 "=40' :,~.,, OU U "'"' "' +a:+a:: _ ........ !~TRY TRi\t!(S LEctloC> ';' ... om cu:!~ "'-o.o "'..., ""'"' Za:io ON "o>-~og UV'l :::>:::> ()._ '-' ,.i'! .... 0 fi. TRACK ij LEAD TRACK 4365 656' PROPOSED STORAGE CAPAC I TY PLAN -, "=80' --INDUSTRY OWNED TRACK I."~ --BNSF TRACK Q/:irf!!(i I; -REMOVE TRACK ~~~flt vl'ROP R/W LINE !VEX I ST F-WAY IR/Wl j ; LINE -·--PROPOSED RIGHT-0 NT (TCEI PROP RETAINING --TEMPORARY CONSTRUCTION EASEME~ iALL --FOOTING EASEMENT EXIST TRACK t REMOVED ING BNSF RIGHT-OF-WAY IR/W) ..£1· TO REMAIN l ! TRACK • EXIST ··-··-EXIST l ~TOBE PARCEL BOUNDARIES RELOCATED z , ----BUMPER • ' .. ROAORIGHT-OF-WAYIR/WI . l ! ' t:.t:MilwW. . c.::::; NEAR WEST CORONA CORONA, CA ELEVATION 1 "=40' R/W BUMPER REMOVED TEMPORARY CONSTRUCTION EASEMENT C TCE l SEE DETAIL •A• llNSf' .SCDP£. OF -REMOVE 90 T. F. ANO BUMPER REINSTALL BUMPER ON TRACK 4365 E!I © I -"' .I .~ I MONSTER LEAD TRACK BNSF LEAD TRACK 4365 INDUSTRY TRACKS 4368 & 4369 BNSF RAILWAY COMPANY REALESTATEPURCHASEANDSALEAGREEMENT This Real Estate Purchase and Sale Agreement ("Agreement") is entered into as of the Effective Date (defined below) between RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency existing under the authority of the laws of the State of California ("Buyer") and BNSF RAILWAY COMPANY ("Seller"). This Agreement shall not be binding upon either party unless and until both parties have executed and delivered this Agreement. The submission of this document by Seller to Buyer shall not constitute an offer to sell by Seller. In consideration of the mutual covenants set forth in this Agreement and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Buyer agree as follows: GENERAL TERMS AND DEFINITIONS 1. The following terms shall have the meanings set forth below: Closing. The consummation of the transaction contemplated by this Agreement, which shall be deemed to have occurred when both parties have delivered the items contemplated in Section 4 of this Agreement. Closing Date Notwithstanding, anything herein, this sale shall close on or before May 19, 2014. Seller shall have the right to extend the closing up to ninety (90) days, at Seller's sole judgment. Earnest Money Effective Date The date of Seller's execution of this Agreement as indicated below Seller's signature hereto. Property That parcel of land situated in or near the City of Corona; County of Riverside and State of California, shown hatched black on map marked Exhibit A dated attached hereto and made a part hereof, subject to revision as set forth ....__~~~~~~~- below in Section 3. Purchase Price The sum of Forty-Three Thousand Six Hundred and Eighty No/100 Dollars ($43,680.00). Review Period The period commencing on the Effective Date and expiring at 5 :00 p.m. central time on the date that is 3 days after the Effective Date. PURCHASE AND SALE 2. (a) Subject to the terms and conditions set forth in this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to purchase and accept from Seller, for the Purchase Price, all of Seller's right, title and interest (if any), in and to the Property. Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 - 1 ... 87 r------------------------------------------------------ (b) Seller may assign its rights (but not its obligations) under this Agreement to Goldfinch Exchange Company LLC, (Goldfinch) an exchange intermediary, in order for Seller to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Seller shall provide Buyer with a Notice of Assignment, attached as Exhibit B, and Buyer shall execute an acknowledgement of receipt of such notice. Buyer may also assign its rights (but not its obligations) under this Agreement to an exchange intermediary in order for Buyer to effect an exchange under Section 1031 of the Internal of Revenue Code. ( c) Upon submission by Buyer to Seller of this Agreement signed by Buyer, Buyer shall deposit the Earnest Money with Goldfinch as escrow agent. Goldfinch shall hold the Earnest Money in escrow pursuant to the terms and conditions of this Agreement. The Earnest Money shall be refunded to Buyer if this Agreement is not executed and delivered by Seller within forty five ( 45) days after the date Buyer delivers this agreement fully executed by Buyer and deposits the Earnest Money. Buyer shall not be entitled to any interest on the Earnest Money held by Goldfinch pursuant to this Agreement. Buyer acknowledges that receipt by Goldfinch of the Earnest Money shall not constitute acceptance of this Agreement or Buyer's offer provided, however, that Goldfinch shall return the Earnest Money to Buyer if Seller does not execute and deliver this Agreement within forty-five (45) days after Buyer deposits the Earnest Money. Goldfinch shall deliver the Earnest Money to the party entitled thereto pursuant to this Agreement, provided, however if there is a dispute between Buyer and Seller as to who is so entitled, Goldfinch may deposit the Earnest Money with a court of competent jurisdiction pending resolution of such dispute. (d) The balance of the Purchase Price shall be paid at Closing as provided below. INSPECTION 3. (a) Seller will prepare a legal description of the Property and will forward such description to Buyer for Buyer's review. Buyer shall have ten (10) days following such delivery to notify Seller in writing if Buyer objects to such description. If Buyer does not so object then the description of the Property prepared by Seller shall be the definition of the Property for all pwposes under this Agreement. If Buyer does so object then Buyer shall cause to be prepared a survey of the Property certified to Seller, Buyer and such other parties as Buyer may choose showing the boundaries of the Property and any improvements located thereon (the "Survey"). If Seller does not agree that the description of the Property contained on the Survey is the Property Seller wishes to sell or otherwise objects to the Survey then Seller may terminate this Agreement by written notice to Buyer in which case the Earnest Money shall be refunded to Buyer and neither party shall have any further obligation hereunder except those that expressly survive termination. If Seller agrees in writing that the Survey description is accurate then the description thereon shall be the definition of the Property for all pwposes under this Agreement. In the event a city, county, or other governing authority where the Property is located (a "Municipality") requires a survey or plat to convey the Property (a "Plat"), the Buyer shall obtain, at Buyer's sole cost and expense, such Plat and the approval of such Municipality. Seller's obligations hereunder are conditioned upon Seller's approval of the Plat approved by the Municipality. Buyer shall provide the proposed Plat to Seller prior to submission to the Municipality and prior to the expiration of the Review Period. (b) Buyer shall have until the end of the Review Period to examine title to the Property. If Buyer elects to obtain a title commitment for the Property Buyer may deliver to Seller no later than the expiration of the Review Period written notice of any objections to the status of title or matters reflected on the Survey that Buyer may have together with a copy of such title commitment, Survey and all matters referenced therein. Seller shall have no obligation to cure any such objection. If Seller notifies Buyer in writing that Seller will cure any such objection Seller (a) shall make good faith efforts to cure such matter by the Closing Date Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -2- 88 ,---- and if not cured by such date Buyer may terminate this Agreement in which case the Earnest Money shall be refunded to Buyer and neither party shall have any further obligation hereunder except those that expressly survive termination, and (b) may effect such cure by causing the title company issuing the title commitment to remove such matter as an exception from coverage by paying additional premium therefor or otherwise. If Seller at any time notifies Buyer in writing that Seller is not willing or able to cure any of the such objections (including those which Seller has previously endeavored to cure) then Buyer or Seller may terminate this Agreement by written notice to the other delivered within five (5) days after Seller so notifies Buyer that Seller is unwilling or unable to cure such objection. In the event of such termination, the Earnest Money shall be refunded to Buyer and neither party shall have any further obligation hereunder except those that expressly survive termination. If this Agreement is not so terminated, the parties shall proceed to Closing according to the remaining provisions of this Agreement. ( c) Prior to any entry upon the Property by Buyer, the surveyor preparing the Survey or other individuals on behalf of Buyer, Buyer shall execute and deliver to Seller an Entry and Confidentiality Agreement in the form attached hereto as Exhibit C and incorporated herein (the "Entry Agreement"). The terms and provisions of the Entry Agreement are incorporated herein, shall survive the Closing, shall not be merged into the Deed or any document delivered at Closing and shall survive any termination of this Agreement. Any breach by Buyer of its obligations under the Entry Agreement shall be deemed a breach by Buyer under this Agreement. Notwithstanding anything in this Agreement to the contrary, including the provisions of Section 6(a), nothing in this Agreement or the exercise of any remedy by Seller under this Agreement shall limit or affect in any manner any remedy available to Seller under the Entry Agreement in the event of a breach of Buyer's obligations under the Entry Agreement. (e) Notwithstanding the foregoing provisions of Section 3(b), Buyer shall not be entitled to object to any judgment against Seller which may appear of record as a lien against the Property. Seller shall pay such lien if and when it is judicially determined to be valid, and Seller hereby indemnifies the Buyer for all loss arising out of Seller's failure to have a judgment lien so settled and satisfied. CLOSING 4. (a) Subject to the terms of this Agreement, the Closing shall occur on the Closing Date. On or before the Closing Date Buyer shall (1) pay the Purchase Price, less the Earnest Money to Seller in cash, by certified check made payable to The Bank of New York Mellon or by wire transfer to Seller's account as designated by Seller and the Earnest Money shall become the property of Seller and no longer subject to the terms of this Agreement , and (2) such other affidavits or certificates as is reasonably necessary or customary to consummate the transaction. After Buyer has delivered the foregoing items, Seller shall deliver to Buyer (I) a Quitclaim Deed in recordable form, subject to all matters ofrecord and restating the exceptions and reservations set forth in Section 8 (the "Deed") conveying to Buyer Seller's interest, if any, in and to the Property, (2) counterparts of the Exchange Assignment, and (3) such other affidavits and certificates as is reasonably necessary or customary to consummate the transaction in form and substance acceptable to Seller. PRORATIONS AND CLOSING COSTS 5. (a) Real estate taxes and assessments payable or paid in the year of Closing shall be prorated by Seller and Buyer as of the Closing Date on the basis of the most recent ascertainable taxes assessed against the Property. If the Property is not separately assessed for tax purposes then there shall be no proration of taxes between Buyer and Seller, the parties shall cooperate post-Closing to cause the Property to be separately assessed and each party shall indemnify the other for any failure to pay real estate taxes and assessments due with respect to the properties constituting the tax parcel to which the Property is a part. Notwithstanding the foregoing, there shall be no proration for taxes to the extent the payment of Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 89 same has been assumed by a tenant under an existing lease to be assigned to Buyer. All outstanding assessments on the Property levied or due in the year of Closing and afterward shall be paid by Buyer. (b) The parties shall cooperate so that utilities serving the Property that are not the responsibility of a tenant under a lease to be assigned to Buyer at Closing, to the extent feasible, shall be switched into the name of Buyer as of the Closing Date, so that a final statement can be issued to Seller for the billing period ending on the Closing Date, and so that the first day of the first billing cycle in Buyer's name can begin on the Closing Date. If, however, the final statement covering the final period of ownership by Seller also includes periods of ownership by Buyer, Buyer shall pay Seller at Closing the amount attributable to Buyer's period of ownership. Buyer shall be responsible to pay all utilities serving the Property due after Closing. ( c) Buyer shall pay all closing costs associated with Closing including, but not limited to, any escrow fees, documentary stamps and other recording costs associated with this transaction, excise taxes, the cost of any state, county or local transfer taxes, the cost of the Survey, and the costs associated with any title insurance obtained by Buyer. ( d) If any real estate broker or agent can establish a valid claim for commission or other compensation as a result of Buyer having used their services in connection with the purchase of the Property, all such commission or other compensation shall be paid by Buyer. Seller shall not be liable for any real estate commissions or fmders fees to any party with respect to the sale of the Property, except amounts due to Jones Lang LaSalle Brokerage Inc. ("Broker") pursuant to a separate agreement. Buyer acknowledges that Broker has advised, and hereby advises, Buyer that the Broker is acting as on behalf of the Seller, with the duty to represent Seller's interest, and Broker is not the agent of the Buyer. If a policy of title insurance is to be obtained, Buyer should obtain a commitment for title insurance which should be examined prior to closing by an attorney of Buyer's choice. Prior to the execution of this Agreement, Broker has advised and hereby advises the principals of this transaction, that this Agreement is binding on them, and the principals hereby acknowledge that they have been so advised. Broker has no authority to execute any document on behalf of Seller, make representations on behalf of Seller or bind Seller in any manner. (e) The obligations of the parties in this Section 5, to the extent incurred, shall survive any termination of this Agreement. DEFAULT AND REMEDIES 6. (a) In the event of a default by Buyer under the terms of this Agreement, Seller's sole and exclusive remedies shall be: (a) terminate this Agreement whereupon the parties shall have no further obligations hereunder except those that expressly survive termination, or (b) waive such default and proceed Closing, or ( c) obtain specific performance of this Agreement. If Seller terminates this Agreement as provided in the previous sentence Seller shall be entitled to retain the Earnest Money. Notwithstanding the foregoing, nothing contained herein shall waive or diminish any right or remedy Seller may have at law or in equity for Buyer's default or breach of any obligation hereunder to be performed by Buyer after Closing. It is hereby agreed that Seller's damages in the event of a default by Buyer hereunder are uncertain and difficult to ascertain, and that the Earnest Money constitutes a reasonable liquidation of such damages and is intended not as a penalty, but as liquidated damages. (b) In the event of a default by Seller under the terms of this Agreement, Buyer's sole and exclusive remedies hereunder shall be to terminate this Agreement and receive a refund of the Earnest Money plus an additional amount from Seller not to exceed ten percent of the Purchase Price equal to the out-of- pocket expenses (including attorneys' fees) incurred by Buyer in connection with this Agreement as Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 90 evidenced by copies of third party invoices delivered to Seller. Upon such termination and the payment of such swns by Seller the parties shall have no further obligations hereunder except those that expressly survive termination. Notwithstanding the foregoing, nothing contained herein shall waive or diminish any right or remedy Buyer may have at law or in equity for Seller's default or breach of any obligation hereunder to be performed by Seller after Closing. NATURE OF SALE 7. Buyer has been allowed to make an inspection of the Property. BUYER IS PURCHASING THE PROPERTY ON AN "AS-IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM SELLER AS TO ANY MATTERS CONCERNING THE PROPERTY, including, but not limited to the physical condition of the Property; zoning status; tax consequences of this transaction; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (defined below) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (defined below), wetlands, asbestos, lead, lead-based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any of the above ground or underground structures or improvements, including tanks and transformers in, on or under the Property; the condition of title to the Property, and the leases, easements, permits, orders, licenses, or other agreements, affecting the Property (collectively, the "Condition of the Property"). Buyer represents and warrants to Seller that Buyer has not relied and will not rely on, and Seller is not liable for or bound by, any warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Seller, the manager of the Property, or any real estate broker or agent representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing. Buyer assumes the risk that Hazardous Substances or other adverse matters may affect the Property that were not revealed by Buyer's inspection and indemnifies, holds harmless and hereby waives, releases and discharges forever Seller and Seller's officers, directors, shareholders, employees and agents (collectively, "lndemnitees") from any and all present or future claims or demands, and any and all damages, Losses, injuries, liabilities, causes of actions (including, without limitation, causes of action in tort or asserting a constitutional claim) costs and expenses (including, without limitation fines, penalties and judgments, and attorneys' fees) of any and every kind or character, known or unknown, arising from or in any way related to the Condition of the Property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or under the Property. Losses shall include without limitation (a) the cost of any investigation, removal, remedial, restoration or other response action that is required by any Environmental Law, that is required by judicial order or by order of or agreement with any governmental authority, or that is necessary or otherwise is reasonable under the circumstances, (b) capital expenditures necessary to cause the Seller remaining property or the operations or business of the Seller on its remaining property to be in compliance with the requirements of any Environmental Law, ( c) Losses for or related to injury or death of any person, ( d) Losses for or related to injury or damage to animal or plant life, natural resources or the environment, and ( e) Losses arising under any Environmental Law enacted after transfer. The rights of Seller under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or otherwise. This indemnity specifically includes the obligation of Buyer to remove, close, remediate, reimburse or take other actions requested or required by any governmental agency concerning any Hazardous Substances on the Property. The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law relating in any way to human health, Real Estate Purchase and Sale Agreement Fonn 603; Rev12/22/09 91 occupational safety, natural resources, plant or animal life or the environment, including without limitation, principles of common law and equity, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions. The provisions of this Section 7 shall be binding on Buyer, and its heirs, successors and assigns, shall be included in the Deed and shall be covenants running with the land. RESERVATIONS 8. The obligations in this Section 8 shall be binding upon Buyer and its heirs, successors and assigns, shall be included in the Deed and shall be covenants running with the land benefiting Seller and Seller's successors and assigns. For purposes of this Section 8, Grantor shall mean Seller and Grantee shall mean Buyer. Buyer may object to the reservations set forth in Section 8(a) below in accordance with the provision of Section 3 and if Seller is unwilling or unable to cure such objection either party may terminate this Agreement as set forth in Section 3. (a) Grantee's interest shall be subject to the rights and interests of Grantor, Grantor's licensees, permittees and other third parties in and to all existing driveways, roads, utilities, fiber optic lines, tracks, wires and easements of any kind whatsoever on the Property whether owned, operated, used or maintained by the Grantor, Grantor's licensees, permittees or other third parties and whether or not of public record. Grantor shall have a perpetual easement on the Property for the use of such existing driveways, roads, utilities, fiber optic lines, tracks, wires and ·easements by Grantor and Grantor's licensees, permittees and customers. Grantor shall have a non-exclusive easement for the construction, maintenance and operation of one or more pipelines or fiber optic lines and any and all communications facilities as may be located in the future on the Property within 60 feet of the center line of any Main Track on or adjacent to the Property and as may be presently located on the Property. (b) Grantee's interest shall be subject to a reservation to Grantor of all coal, oil, gas, casing-head gas and all ores and minerals of every kind and nature including sand and gravel underlying the surface of the Property, together with the full right, privilege and license at any and all times to explore, or drill for and to protect, conserve, mine, take, remove and market any and all such products in any manner which will not damage structures on the surface of the Property, together with the right of access at all times to exercise said rights. ( c) Any improvements constructed or altered on the Property after the date Grantor quitclaims its interest to Grantee shall be constructed or altered in such a manner to provide adequate drainage of water away from any of Grantor's railroad tracks on nearby property. (d) Grantor reserves unto itself, its successors and assigns, in perpetuity, any and all non- riparian water and water rights associated with the Property, including but not limited to, any and all ditches and ditch rights, water wells, springs, diversion works, water lines, pipes, pumps, motors, generators, electrical gear and wires, and any related equipment and improvements whatsoever, historically used upon or associated with the Property, including all mutual water company shares, ditch shares, water service agreements and contracts, and water claims, and including but not limited to, all unappropriated, undeveloped or unused water and water rights associated with or underlying the Property, and the exclusive right to develop and take water from the Property by any means, and including all appropriations, priorities, permits and certificates which are appurtenant to, associated with, used upon, flowing over, under, or lying on, in, or under the Property, together with the perpetual right to construct, install, operate, replace, rework, Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -6- 92 reconstruct, rehabilitate and maintain any and all water diversion, production, and transportation structures, equipment, improvements and piping, including but not limited to, beadgates, diversion structures, water wells, water well houses, water well casing, water well screens, spring collection galleries, sumps, water pipes, and related electrical gear and wires, and to construct, install, operate and maintain water pumps and hydroelectric generation equipment and all equipment necessary, convenient or related to the production, transportation or delivery of water from, on, under or across the Property, or any portion thereof. (e) Grantee acknowledges and affirms that Grantor may not hold fee simple title to the Property, that Grantor's interest in all or part of the Property, if any, may rise only to the level of an easement for railroad purposes. Grantee is willing to accept Grantor's interest in the Property, if any, on this basis and expressly releases Grantor, its successors and assigns from any claims that Grantee or its successors may have as a result of an abandonment of the line of rail running over or adjacent to any portion of the Property. In light of Grantor's disclosure that it may not hold a fee interest in all or part of the Property, Grantee agrees to indemnify, defend and hold Grantor harmless from any suit or claim for damages, punitive or otherwise, expenses, attorneys' fees, or civil penalties that may be imposed on Grantor as the result of any person or entity claiming an interest in any portion of the Property or claiming that Grantor did not have the right to transfer all or part of the Property to Grantee. REPRESENTATIONS 9. Buyer represents and warrants to Seller that if Buyer is other than a natural person or persons that it is a validly formed public agency under the laws of the State of California; that it is in good standing in the state of its organization and in the state in which the Property is located; that it has all requisite authorizations to enter into this Agreement; and that the parties executing this Agreement on behalf of Buyer are duly authorized to so do. Buyer represents and warrants to Seller that it is not subject to any bankruptcy proceeding. Seller represents and warrants to Buyer that it is a validly formed corporation under the laws of the State of Delaware; that it is in good standing in the state of its organization and in the state in which the Property is located; that it is not subject to any bankruptcy proceeding; that it has all requisite corporate authorizations to enter into this Agreement; and that the parties executing this Agreement on behalf of Seller are duly authorized to so do. It shall be a condition of each party's obligations to Close this transaction that the representations and warranties of the other party contained herein are true and accurate as of Closing, provided, however that if one party waives such condition by proceeding to Close with knowledge that any of the second party's representations or warranties are inaccurate, the second party shall have no liability with respect to such inaccuracy known by the first party. MISCELLANEOUS 10. (a) Any notice under this Agreement must be written. Notices must be either (i) hand-delivered; (ii) placed in the United States certified mail, return receipt requested, addressed to the recipient; (iii) deposited with a nationally recognized overnight delivery service, addressed to the recipient as specified below; or (iv) telecopied by facsimile transmission to the party at the telecopy number listed below, provided that such transmission is followed with a copy sent by overnight delivery or regular mail to the address specified below. Any notice is effective upon deposit with the U.S. Postal Service or with the overnight delivery service, as applicable; all other notices are effective when received. All notices shall be addressed to the address of the recipient indicated below the signature of such party below. Either party may change its address for notice by proper notice to the other party. (b) If the approval of any governmental agency is required for the sale of Seller's interest (if any) in the Property, it is understood and agreed that Seller's obligations under this Agreement are conditioned upon obtaining such approval and that both parties shall use good faith efforts to obtain such approval. If Real Estate Purchase and Sale Agreement Forni 603; Revl2/22/09 -7- 93 such approval cannot be obtained by the Closing Date, Seller may elect to extend the Closing Date to a date no later than ninety (90) days after the original Closing Date. In the event said approval cannot be obtained by such extended date, either party may terminate this Agreement without liability to the other, except that the Earnest Money shall be refunded to Buyer and thereafter neither party shall have any obligation hereunder except those that expressly survive termination. (c) Nothing in this Agreement shall prevent Seller from discontinuing service over any railroad line or lines by which rail service may be provided to the Property. ( d) If, prior to Closing, the Property or any portion thereof is destroyed or damaged, or becomes subject to a taking by virtue of eminent domain to any extent whatsoever then either party may terminate this Agreement by written notice to the other within thirty (30) days after notice of such fact (but in any event prior to Closing). If so terminated, the Earnest Money shall be refunded to Buyer and neither party shall have any further obligations hereunder except those that expressly survive termination. If not so terminated the parties shall proceed with the Closing. (e) Time is of the essence of each of the party's respective obligations under this Agreement. Whenever a date specified in this Agreement falls on a Saturday, Sunday, or federal holiday, the date will be extended to the next business day. (f) This Agreement and, to the extent executed, the Entry Agreement, contains the entire Agreement between Seller and Buyer with respect to the Property. Oral statements or prior written matters not specifically incorporated into this Agreement are superceded hereby. No variation, modification, or change to this Agreement or the Entry Agreement shall bind either party unless set forth in a document signed by both parties. No failure or delay of either party in exercising any right, power or privilege hereunder shall operate as a waiver of such party's right to require strict compliance with any term of this Agreement. The captions above the section numbers of this Agreement are for reference only and do not modify or affect this Agreement. Each party has had the opportunity to have counsel review this Agreement and the Entry Agreement and, therefore, no rule of construction that any ambiguities are to be resolved against the drafting party must not be employed to interpret this Agreement, the Entry Agreement or any closing document. This Agreement and the Entry Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute the same Agreement. This Agreement and the Entry Agreement are intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any term or provision of this Agreement or the Entry Agreement or the application thereof to any person or circumstance shall for any reason and to any extent be held to be invalid or unenforceable, then such term or provision shall be ignored, and to the maximum extent possible, this Agreement and the Entry Agreement (to the extent executed) shall continue in full force and effect, but without giving effect to such term or provision. (g) Buyer may not assign its interest in this Agreement or the Entry Agreement without Seller's prior written consent. The provisions of this Agreement and, to the extent executed, the Entry Agreement, shall bind Seller, the Buyer, and their heirs, executors, administrators, successors and assigns and shall and inure to the benefit of the Seller, the Buyer and their heirs, executors, administrators, permitted successors and assigns. If Buyer is more than one person or entity, Buyer's obligations under this Agreement and, to the extent executed, the Entry Agreement, shall be joint and several. (h) This Agreement relates only to land. Unless otherwise herein provided, any conveyance shall exclude Seller's railroad tracks and appurtenances thereto, Seller's buildings and any other improvements on the Property, all of which may be removed by Seller within 90 days following conveyance of the Property, and if not removed, shall be deemed abandoned by the Seller without obligation on the Seller's part and shall thereafter be and become the Property of the Buyer in place. Notwithstanding the Real Estate Purchase and Sale Agreement Form 603; Rev12/22/09 94 foregoing, Seller shall not have to remove any improvements or fixtures for which an easement has been reserved hereunder or in the deed. (i) Seller is not a foreign person as the term is used and defined in Section 1445 of the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder. Seller shall, upon request of Buyer, complete an affidavit to this effect and deliver it to Buyer on or before closing of said sale. (j) The provisions of Sections 5-8 and Section 10 of this Agreement shall survive Closing and shall not be merged into the Deed or any other document delivered at Closing. The provisions of Section 2 of this Agreement shall survive Closing for a period of one year and shall not be merged into the Deed or any other document delivered at Closing. Nothing in this section shall alter any requirement in any other Section of this Agreement for the provisions of such section to be incorporated into the Deed, such as Sections7 and 8. (k) If any action at law or in equity is necessary to enforce or interpret this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, costs, and discovery or investigation expenses in addition to any other relief to which that party may be entitled. (I) SELLER AND BUYER IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO, THIS AGREEMENT. ADMINISTRATIVE FEE 12. Buyer acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between Buyer and Seller, that the Buyer shall pay upon return of this Agreement signed by Buyer to Seller's Broker a processing fee in the amount of $2,000.00 over and above the agreed upon Purchase Price. Said fee shall be made payable to BNSF Railway Company by a separate check. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Real Estate Purchase and Sale Agreement Form 603; Rev12/22/09 95 IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement to be effective as of the Effective Date. Real Estate Purchase and Sale Agreement BUYER: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency existing under the authority of the laws of the State of California Buyer's name as it is to appear on deed (PRINTED/TYPED) By:·-~~~~~~~~~~~~ Print Name:.~~--~----~-~ Titl~---~-------------- Buyer• s Address: Attn:.~---------~----Fax: ______________ _ Phone: ~------------- Buyer's SSN or EIN: ________ _ SELLER: BNSF RAILWAY COMPANY B~·---------~---- Print Name:.~----------~ 'Title:. _____________ _ Seller's Address: c/o Jones Lang LaSalle Brokerage Inc. 4300 Amon Carter Blvd., Suite 100 Fort Worth, TX 76155 Attn: Justin M. Moon Fax: 817-306-8129 Phone: 817-230-2623, Form 603; Revl2/22/09 -10 - 96 Date of Seller's Execution (Effective Date) Real Estate Purchase and Sale Agreement Fonn 603; Revl2/22/09 -11 - 97 EXHIBIT A [Attach Map showing Property cross-hatched in black] Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -12 - 98 '° '° "" u <t ~ a: ,_ .,,r #8 LH. HR HOR~,lnc. #8 "" u <[ 0: ,_ ONE COMPANY Mu! Soluti0111 HOR Engl--., Inc. =.~<>&-.-· BNSF INDUSTRY 't_ TRACK 4369 ~ TRACK 4368 ~ LEAD TRAtjK 4365 856' PRtjPOSED STORAGE C~PAC!TY LEOEND --INDUSTRY DllNED TRACK --BNSF TRACK --·· PROPOSED RIOHT-OF-WAY LEAD TRACK 4365 4368 I 4369 TRACKS PROPOSED RIGHT-OF-WAY TEMPORARY V· CONSTRUCTION Ll EASEMENT f! INDUSTRY TRACKS >-:·-~· .. ., , h'· -..it <' ,..:jlt , .. ~>.;;,,,;!$ r,.;__'*::ft;..~·p!!.· .; ~. :e'.'~=~-~.-!;~ ~~ '-> 'J I~~~ ":/"' ~ ~ i f J . LL-ut INSF SCOPE OF llCRK REMOVE 90 T ,F. AND BUMPER REINSTALL BUMPER ON TRACK ~365 e=-t.:.7 ..... ::··· ·---····~··-··--{ ,. _____ """ i l ' I ) l ! ! ~~l.._~-v-· -,~~-. . . . .. l' ' !'.<' ) .. ;; .......... ~ ~ '·., . ~ 1!!!I $ I I I I I I I I I I I I I I I I } I I I I I T.i I I I I I I I I - --TEMPORARY CONSTRUCTION EASEMENT GRAPHIC SCALE ~ !C If ---FOOTING EASEMENT •---EXISTING RIGHT-OF-WAY SCALE: 1'• BO' 01 /24/2012 EXHIBIT "B" NOTICE OF ASSIGNMENT Real Estate Purchase and Sale Agreement Fonn 603; Rev12/22/09 -13 - 100 Goldfinch Exchange Company LLC A Delaware limited liability company 40 Lake BeUevue Drive, Suite 275 BeUevue, WA 98005 425-646-4020 425-637-2873 fax NOTICE OF ASSIGNMENT TO: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency existing under the authority of the laws of the State of California and any assignees or exchange intermediaries of Buyer You and BNSF Railway Company ("BNSF") have entered into the Real Estate Purchase and Sale Agreement, dated . 2014 for the sale of the real property described therein. You are hereby notified that BNSF has assigned its rights as Seller, but not its obligations, to Goldfinch Exchange Company LLC for the purpose of effecting a tax deferred exchange under Internal Revenue Code Section 1031. This is an assignment of rights only and BNSF will deed the property directly to you. ACKNOWLEDGED: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency existing under the authority of the laws of the State of California Real Estate Purchase and Sale Agreement Fonn 603; Rev12/22/09 -14 - 101 EXHIBIT "C" ENTRY AND CONFIDENTIALITY AGREEMENT Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -15 - 102 ENTRY AND CONFIDENTIALITY AGREEMENT TIDS ENTRY AND CONFIDENTIALITY AGREEMENT ("Agreement") is made as of the Effective Date (defined below) by BNSF RAILWAY COMPANY, a Delaware corporation ("Railroad") and RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency existing under the authority of the laws of the State of California ("Permittee"). WHEREAS, Permittee as Buyer and Railroad as Seller have entered into that certain Real Estate Purchase and Sale Agreement {the "Sale Contract") dated as of concerning the property set forth therein (the "Property"). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Sale Contract. WHEREAS, in order to evaluate the acquisition of the Property, Permittee has requested access to the Property to inspect the condition of the Property. WHEREAS, Railroad is willing to permit such access only on the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the foregoing recitals, which are incorporated herein, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following: 1. RIGHT OF ENTRY. In accordance with the provisions of this Agreement, Railroad hereby grants Permittee a non-exclusive, revocable license, subject to all rights, interests, and estates of third parties including, without limitation, any leases, licenses, easements, liens, or other encumbrances, to enter the Property for the purpose of inspecting the Property for said potential acquisition and for no other purpose or use. 2. RESTRICTIONS CONCERNING ENTRY. (a) Permittee shall enter the Property only during normal business hours and may inspect the condition thereof and conduct such surveys and to make such engineering and other inspections, tests and studies as Permittee shall determine to be reasonably necessary, all at Permittee's sole cost and expense. Notwithstanding the foregoing, Permittee shall not conduct or allow any physically intrusive testing of, on or under the Property and under no circumstances shall Permittee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Property unless Permittee has obtained prior written approval from Railroad, which approval may be withheld in Railroad's sole discretion. (b) Pennittee agrees to give Railroad notice at least five (5) business days prior to any such entry, examinations or surveys and Railroad has the right to be present during any such entry, examination or survey. Such notice shall be made to Railroad's Roadmaster at 740 Carnegie Drive, San Bernardino, CA 94208 (909-386-4061). Pennittee agrees to conduct all examinations and surveys of the Property in a manner that will not interfere with the operations or improvements of Railroad or other lessees, Permittees or license holders and in such a manner and not at any time to be a source of danger to or interference with the existence or use of present of future tracks, roadbed or property of Railroad, or the safe operation and activities of Railroad. Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -16 - 103 ( c) Permittee shall comply with, and cause its agents to comply with, any and all laws, statutes, regulations, ordinances, rules, orders, common law, covenants or restrictions ("Legal Requirements") applicable to the Property and their activities thereon and any and all safety requirements of Railroad and if ordered to cease any activities upon the Property by Railroad's personnel Permittee shall immediately do so. Notwithstanding the foregoing right of Railroad, the parties agree that Railroad has no duty or obligation to monitor Permittee's activities on the Property to determine the safe nature thereof, it being solely the Permittee's responsibility to ensure that Permittee's activities on the Property are safe. Neither the exercise nor failure by Railroad to exercise any rights granted in this Section will alter the liability allocation provided by this Agreement. (d) Railroad. Permittee shall not harm or damage the Property or cause any claim adverse to (e) Permittee shall promptly reimburse Railroad for any additional costs/expenses incurred by Railroad in connection with such safety requirements (including, but not limited to, furnishing a flagman if Railroad determines that furnishing a flagman is necessary during any such examinations or surveys). (f) Permittee shall not contact any governmental or quasi governmental authorities concerning the Property without Railroad's prior written consent and Railroad shall have the right to be present during any such contacts. (g) Permittee will not have more than 5 persons present on any individual Property at a one time. Any officer, employee, agent, contractor, consultant, lender, surveyor or attorney entering the Property on behalf of or at the direction of Permittee, shall be deemed agents of Permittee for purposes of this Agreement. · 3. TERM. This Agreement shall commence on the date Railroad executes this Agreement as indicated below its signature (the "Effective Date") and shall be in effect until the earlier of the date the Sale Contract is terminated pursuant to its terms, or the Closing Date. No expiration or termination of this Agreement shall release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events occurring prior to the date of termination or expiration. 4. INSURANCE. Permittee shall obtain and maintain the insurance required below: A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $1,000,000 each occurrence and an aggregate limit of at least$ 2,000,000. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limited to, the following: + Bodily Injury and Property Damage + Personal Injury and Advertising Injury + Fire legal liability + Products and completed operations Real Estate Purchase and Sale Agreement -17 - 104 Form 603; Rev12/22/09 B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: • Permittee's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. Other Requirements: Permittee agrees to waive its right of recovery against Railroad and lndemnitees (defined below) for all Liabilities (defined below) that could be insured against by the insurance required to be maintained hereby. In addition, its insurers, through the terms of the policy or policy endorsement, must waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Permittee further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under Permittee' s care, custody or control. All policy(ies) required above (excluding Workers Compensation) shall include a severability of interest endorsement and Railroad and Jones Lang LaSalle Global Services, Inc. shall be named as an additional insured with respect to work performed under this agreement. Severability of interest and naming Railroad and Jones Lang LaSalle Global Services, Inc. as additional insured shall be indicated on the certificate of insurance. Prior to commencing the Work or entering the property, Permittee shall furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Permittee .will make available any required policy covering such claim or lawsuit. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Permittee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Permittee shall not be deemed to release or diminish the liability of Permittee including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. For purposes of this section, Railroad shall mean "Burlington Northern Santa Fe Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. Real Estate Purchase and Sale Agreement Foml 603; Revl2/22/09 -18 - 105 5. COMPLETION OF INSPECTION. Upon completion of any inspection by Permittee or its agents on the Property or upon the expiration or termination of this Agreement, whichever shall occur first, Permittee shall, at its sole cost and expense: (a) remove all of its equipment from the Property; (b) report any damage to the Property arising from, growing out of, or connected with Permittee's entry upon the Property and restore the Property to their condition immediately prior to such entry by Permittee or its agents; ( c) remedy any unsafe conditions on the Property created by Permittee or its agents; and 6. INDEMNITY. TO THE FULLEST EXTENT PERMITTED BY LAW, PERMITTEE SHALL INDEMNIFY, RELEASE, DEFEND AND HOLD HARMLESS RAILROAD AND RAILROAD'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENAL TIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION) (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (a) ANY BREACH OF THIS AGREEMENT BY PERMITTEE INCLUDING, BUT NOT LIMITED TO, PERMITTEE'S OBLIGATION TO COMPLY AND CAUSE ITS AGENTS TO COMPLY WITH LEGAL REQUIREMENTS INCLUDING, BUT NOT L™ITED TO, WORKERS' COMPENSATION AND CERCLA, (b) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO TIDS AGREEMENT, (c) PERMITTEE'S OR ITS AGENTS ACTIVITIES UPON OR USE OF ANY OF THE PROPERTY, OR (d) ANY ACT OR OMISSION OF PERMITTEE OR PERMITTEE'S AGENTS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES Wim RESPECT TO WHICH PERMITTEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 7. CONFIDENTIALITY. Except to the extent otherwise required by Legal Requirements, Permittee shall not disclose to any third parties any information Permittee discovers or obtains concerning the Property as a result of any inspections, surveys, tests or other activities conducted with respect to the Property ("Confidential Information") including, but not limited to, any oral, electronic or written information provided by Railroad or on Railroad's behalf. Notwithstanding the foregoing, Buyer may Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -19 - 106 disclose Confidential Information to those of Buyer's agents directly involved with Permittee with respect to the acquisition of the Property, provided such individuals and firms have agreed to maintain the confidentiality of Confidential Information pursuant to this Agreement and provided further that Permittee shall be liable hereunder for any breach by such parties of such obligation. Confidential Information shall not include information that is or becomes in the public domain other than as a result of a breach by Permittee or its agents. If Permittee or any of it's agents receive a request to disclose any part of the Confidential Information, Permittee shall (a) notify Railroad immediately of the existence, terms and circumstances of such request, (b) consult with Railroad on the advisability of taking legally available steps to resist or narrow such requests, and (c) if disclosure of such Confidential Information is required to prevent Permittee being held in contempt or subject to other penalty, shall (i) furnish only such information as is legally required to be so disclosed, and (ii) use its best efforts to obtain an order or other reliable assurance that confidential treatment will be afforded to the disclosed Confidential Information. If the transaction contemplated in the Sale Contract does not close for any reason then Permittee shall, promptly upon Railroad's request, forward to Railroad all Confidential Information without keeping any copies thereof. 8. DEFAULT. Permittee acknowledges and agrees that in the event of a breach of this Agreement, Railroad would be irreparably harmed and could not be made whole by monetary damages. Accordingly, in addition to any other remedy to which it may be entitled at law, in equity or under this Agreement, Railroad shall be entitled to injunctive relief (without the posting of any bond and without proof of actual damages) to prevent such breach and/or to compel specific performance. Permittee and its agents shall not oppose the granting of such relief. In the event of any breach by Permittee or its agents under this Agreement, Railroad may terminate this Agreement and shall be entitled to any other remedy available at law, in equity or under this Agreement. No failure or delay of either party in exercising any right, power or privilege hereunder shall operate as a waiver of such party's right to require strict compliance with any term of this Agreement. 9. GOVERNING LAW. JURY WAIVER. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the laws of the State of Texas without regard to principles of conflicts of law. Any action relating to this Agreement may be brought in the courts of Tarrant County, Texas, Permittee hereby consenting to the jurisdiction and venue of such courts. PERMITTEE AND RAILROAD IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUITE OR COUNTERCLAil\.1 ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO, THIS AGREEMENT. 10. SALE CONTRACT. The provisions of this Agreement shall be deemed incorporated into the Sale Contract, shall survive the closing thereunder and shall not be merged into the deed conveying the Property or any other closing document, provided, however that nothing in the Sale Contract shall limit or modify any remedy available to Railroad under this Agreement for a breach by Permittee of its obligations under this Agreement. All notices hereunder shall be delivered in the manner set forth in the Sale Contract. Real Estate Purchase and Sale Agreement Form 603; Revl2/22/09 -20- 107 IN WITNESS WHEREOF, this Agreement has been duly executed as of the Effective Date. PERMIITEE: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency existing under the authority of the laws of the State of California B~·-~~~~~~~~~~- Print Name:. __ ~~------Title:._._. __________ _ Real Estate Purchase and Sale Agreement RAILROAD: BNSF RAILWAY COMPANY B~~· ~~~~~~~~~~~ Print Nam~.__ ________ _ Title:...._ __________ _ Date of Execution by Railroad (Effective Date) Fonn 603; Rev12/22/09 -21 - 108 EXHIBITD QUITCLAIM DEED RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Riverside County Transportation Commission Attention: Anne Mayer P.O. Box 12208 Riverside, CA 92502-2208 SPACE ABOVE THIS LINE FOR RECORDER'S USE No Recording Fee Pursuant to Gov't Code§ 27383 No Documentary Transfer Tax Pursuant to California Revenue & Taxation Code§ 11922 QUITCLAIM DEED The Grantor, BNSF RAILWAY COMPANY, a Delaware corporation, (formerly known as The Burlington Northern and Santa Fe Railway Company and successor by merger to The Atchison, Topeka and Santa Fe Railway Company}, of 2500 Lou Menk Drive, Fort Worth, Texas 76131-2830, hereinafter called "Grantor", for a valuable consideration, the receipt of which is hereby acknowledged, does hereby remise, release and forever quitclaim to RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency of the State of California, hereinafter called "Grantee", without any covenants of warranty whatsoever and without recourse to the Grantor, its successors and assigns, all its right, title and interest, if any, in and to the following described real property (exclusive of any improvements thereon), subject, however, to all existing interests, including but not limited to all reservations, rights-of-way and easements of record or otherwise, in the State of California, County of Riverside, hereinafter called "Property", being more particularly described on EXHIBIT "A" attached hereto and by this reference made a part hereof. Grantee covenants and agrees as follows: (a) Grantee's interest shall be subject to the rights and interests of third parties in and to all existing driveways, roads, utilities, fiber optic lines, tracks, wires and easements of any kind whatsoever on the Property, whether or not of public record. (b) Grantor reserves unto itself, its successors and assigns, in perpetuity, all coal, oil, gas, casing-head gas and all ores and minerals of every kind and nature including sand and gravel underlying the surface of the Property, together with the right, privilege and license at any and all times to explore, or drill for and to protect, conserve, 17336.02100\8460058.1 Exhibit D 109 -----, ! mine, take, remove and market any and all such products, together with the right of access at all times to exercise said rights, provided, however, that Grantor expressly waives any right to use the surface or the first one hundred (100) feet of the subsurface of the Property to explore for the minerals herein reserved. {c) Any improvements constructed or altered on the Property after the date Grantor quitclaims its interest to Grantee shall be constructed or altered in such a manner to provide adequate drainage of water away from any of Grantor's railroad tracks on nearby property. (d) Granter reserves unto itself, its successors and assigns, in perpetuity, any and all non-riparian water and water rights associated with the Property. However, Grantor does not reserve any surface right over the Property and this reservation is subject to the reasonable and necessary use of the Property by Grantee and any of Grantee's assignees. {e) Grantee acknowledges and affirms that Granter may not hold fee simple title to the Property, that Grantor's interest in all or part of the Property, if any, may rise only to the level of an easement for railroad purposes. Grantee is willing to accept Grantor's interest in the Property, if any, on this basis and expressly releases Grantor, its successors and assigns from any claims that Grantee or its successors may have as a result of an abandonment of the line of rail running over or adjacent to any portion of the Property. In light of Grantor's disclosure that it may not hold a fee interest in all or part of the Property, Grantee agrees t~ indemnify, defend and hold Grantor harmless from any suit or claim for damages, punitive or otherwise, expenses, attorneys' fees, or civil penalties that may be imposed on Grantor as the result of any person or entity claiming an interest in any portion of the Property or claiming that Grantor did not have the right to transfer all or part of the Property to Grantee. (f) Grantee has been allowed to make an inspection of the Property. ' GRANTEE IS PURCHASING THE PROPERTY ON AN 11AS-IS WITH ALL FAUL TS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM GRANTOR AS TO ANY MATTERS CONCERNING THE PROPERTY, including, but not limited to the physical condition of the Property; zoning status; tax consequences of this transaction; utilities; operating history or projections or valuation; compliance by the Property with Environmental Laws (defined below) or other laws, statutes, ordinances, decrees, regulations and other requirements applicable to the Property; the presence of any Hazardous Substances (defined below}, wetlands, asbestos, lead, lead"based paint or other lead containing structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under, or in proximity to the Property; the condition or existence of any of the above ground or underground structures or improvements, including tanks and transformers in, on or under the Property; the condition of title to the Property, and the leases, easements, permits, orders, licenses, or other agreements, affecting the Property (collectively, the "Condition of the Property"). Grantee represents and warrants to 17336.02100\8460058.1 Exhibit D 110 Grantor that Grantee has not relied and will not rely on, and Grantor is not liable for or bound by, any warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Granter, the manager of the Property, or any real estate broker or agent representing or purporting to represent Grantor, to whomever made or given, directly or indirectly, orally or in writing. Grantee assumes the risk that Hazardous Substances or other adverse matters may affect the Property that were not revealed by Grantee's inspection and indemnifies, holds harmless and hereby waives, releases and discharges forever Grantor and Grantor's officers, directors, shareholders, employees and agents (collectively, "lndemnitees") from any and all present or future claims or demands, and any and all damages, losses, injuries, liabilities, causes of actions (including, without limitation, causes of action in tort or asserting a constitutional claim) costs and expenses (including, without limitation fines, penalties and judgments, and attorneys' fees) of any and every kind or character, known or unknown, arising from or in any way related to the Condition of the Property or alleged presence, use, storage, generation, manufacture, transport, release, leak, spill, disposal or other handling of any Hazardous Substances in, on or under the Property. Losses shall include without limitation (i) the cost of any investigation, removal, remedial, restoration or other response action that is required by any Environmental Law, that is; required by judicial order or by order of or agreement with any governmental authority,·or that is necessary or otherwise is reasonable under the circumstances, (ii) capital expenditures necessary to cause Grantor's remaining property or the operations or business of Grantor on its remaining property to be in compliance with the requirements of any Environmental Law, (iii) losses for or related to injury or death of any person, (iv) losses for or related to injury or damage to animal or plant life, natural resources or the environment, and (v) Losses arising under any Environmental Law enacted after transfer. The rights of Grantor under this section shall be in addition to and not in lieu of any other rights or remedies to which it may be entitled under this document or otherwise. This indemnity specifically includes the obligation of Grantee to remove, close, remediate, reimburse or take other actions requested or required by any governmental agency concerning any Hazardous Substances on the Property. The term "Environmental Law" means any federal, state or local statute, regulation. code, rule, ordinance, order, judgment, decree, injunction or common law relating in any way to human health, occupational safety, natural resources, plant or animal life or the environment, including without limitation, principles of common law and equity, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation petroleum oil and any of its fractions. The covenants and agreements set forth in paragraphs (a) through (f), above, shall be binding upon Grantee and its heirs, successors and assigns, and shall be covenants running with the land benefiting Grantor and its heirs, successors and assigns. 17336.02100\8460058. l ExhibitD 111 TO HAVE AND TO HOLD the Property unto the said Grantee, its successors and assigns 1 forever. IN WITNESS WHEREOF, the said Grantor has caused this instrument to be signed by its authorized representative, attested by its Assistant Secretary, and its corporate seal to be affixed hereto on the day of ... 20_. STATE OF TEXAS COUNTY OF TARRANT BNSF RAILWAY COMPANY By: Carrie Thompson Manager-Land Revenue Management ATTEST: By: I SS. § Patricia Zbichorski Assistant Secretary On , 20 before me, _ ............ __ ......_ ________ _ a Notary Public in and for said County and State, personally appeared, David P. Schneider and Patricia Zbichorski, 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 PENAL TY 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: (Notary Seal) 17336.02 l 00\8460058.1 ExhibitD 112 .f < STATE OF CALIFORNIA COUNTY OF California ACCEPTED: RIVERSIDE COUNTY TRANSPORTATION COMMISSION By: Name: __________ _ Title: ATTEST: By: Name: __________ ___. Title: § §SS. § On , 20_ before me, ---------------------------- a Notary Public in and for said County and State, 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 PENAL TY 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: (Notary Seal) 17336.02100\84600S8. I Exhibit D 113 RIVERSIDE COUNTY TRANSPORTATtON COMMISSION CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Quitclaim Deed to which this Certificate of Acceptance is attached from: BNSF Railway Company, a Delaware Corporation ("Grantor") to: RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency of the State of California ("Grantee") is hereby accepted by the undersigned officer on behalf of Grantee pursuant to authority conferred by the Grantee's governing board, and Grantee hereby consents to recordation of said Quitclaim Deed. 17336.02100\8460058.1 RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public agency of the State of California By: Exhibit D 114 Anne Mayer Executive Director l 7336.02100\8460058. l EXHIBIT "A" [TO Exhibit 11 0"1 LEGAL DESCRIPTION [Insert Approved Legal Description] Exhibit D 115 PSOMAS EXHIBIT A-2 I 2 LEGAL DESCRIPTION 3 4 CaJtms Parullftt 22126:1 s lu Agggitioa 6 APN lf>Z·040 .. 022 7 8 In the City of Corona, County of Riverside, State of California, being a strip ofland 20 9 feet wide across a portion of the land described in the Deed recorded October 21, 1968 as IO document No. 105708 of Official Records of said County, described as follows: 11 12 Coni.menclng at the northeasterly comer of Parcel 4, Parcel Map No. 24150, as shovm on 13 the map filed in Book 158, Pages 99 to 101, of Parcel Maps, records of said County, said 14 northeasterly comer also being a point on the westerly line of said document No. 105708; IS thence along said westerly line and the easterly line of said Parcel 4 South 7°06'02" West 16 330.23 feet to the True Point of Beginning; thence South 81°02'48" East 20.01 feet to 17 the easterly line of said Document No. l 05708; thence along said easterly line 18 South 7°06'02" West 82.28 feet to the northerly line of Parcel I, as described in Deed to 19 the State of California recorded May 6, 1968, as document No. 41753 of said Official 20 Records and the beginning of a non-tangent curve concave northerly having a radius of 21 3000.00 feet, a radial line to said point bears South 12°52t02" West; thence w~terly 22 along said curve 20.11 feet through a central angle of 00°23 '03" to said westerly line of 23 said document No. 105708; thence along said westerly line North 7°06'02" East 24 · 80,84 feet to the True Point of Beginning. 2S 26 Containing 1631 square feet. 27 28 See Exhibit 'A3' attached hereto and made a part hereof. 29 30 31 M:\2PT0010501\SURVEY\LEOALS\22126 APN 102-040·022 AT&Sf\LEOALS\22126·1.doc 3/812013 - - - Page I of2 116 PSOMAS 2 The distances described herein are grid distances and are based on California Coordinate 3 System of 1983, Zone 6, 2007 .00 epoch. Ground distances may be obtained by dividing 4 gdd distances by the mean combination factor of the courses being described. The mean 5 combination factor fo1· this conversion is 0.99997476. 6 7 This conveyance is made for the purpose of a freeway and the Grantor hereby releases 8 and relinquishes to the Grantee any and all abutter's rights 01· access, appurtenant to 9 Grantor's remaining property, in and to said freeway. 10 ll )2 13 Prepared under the direction of: 14 15 16 J~(_t:J(ity4 17 Jeremy L. Evans, PLS 5282 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ~·6· 'ZC··1' Date M:\21'TG010501\SURVEY\I.EGALS\22126 APN 102-040·022 AT&SF\LEGALS\22126-1.doe 3/812013 --- 117 Page2of2 EXHIBIT A3 PARCEL# TITLE GRANTOR AREA APN 22126-1 FEE AT & SF RR 1 631 SO .FT 102-040-022 ·~~~~~~~~~~~~~-'-~~~~-'-~~~~~~~~~~~~~~ 1102-420-0521 PCL 5 1102-420-0361 POC. · PCL L} PJJVL 2-4J50 M.8. ]58/99-IOJ ENT -20' ,..... 0 . .-' ...... ~ "1""~ 0 f"') ~ PCL I P.JVJ, 22009 JV!. 8.. J ·42/96-98 f 102-040-0241 DOC. NO. 105708 O.R. REC'D 10-21 -68 . N12o52'02"E (RAO) ROUTE 91 RIVERSIDE FREEWAY 205 206 LEGEND POB Indicates Point Of Beginning TPOB lndic<Jtes True Point Of Beginning (R) [ndic<Jtes Radial Bearing c:::) Title to State LI I I I Access Prohibited NOTES Coordinates and bearings ore on CCS 1983(2007 .00) Zone 6. Distances and stationing ore grid distances. Divide by 0.99997476 to obtain ground distances. Al I distances or-e in feet unless other-wise noted. FEET 0 29~1----~---~+1----- ROUTE 91 RIVERSIDE FREEWAY CIL STA TIONJNG 22126-1 Fff. ACOUJSJ T/ON 25 50 100 8 150 PREPARED BY: DATE: 11-01-11 REV.: 03-08-13 EA: OF540 FA#: PSOMAS 3 Hutten Ccntr"i!' Or-ivP., Ste, il'OO Sonto Ano, Cofi(ornio 92707 ( 71•1751·7 3 731(714 )S<S-8883 iroxl Df STR!CT COUNTY ROUTE SHEET PM SHEET NO. TOTAL SHEETS 8 RIV 91 ll. 0 118 2 3 PSOMAS LEGAL DESCRIPTION 4 Caltrans Parcel No. 22126-2 s Permanent Wall Footing Easement 6 APN 102-040-022 7 8 In the City of Corona, County of Riverside, State of California, being a strip of land 20 9 feet wide across a portion of the land described in the Deed recorded October 21, 1968 as 10 document No. l 05708 of Official Records of sald County, described as follows: 11 12 Commencing at the northeasterly comer of Parcel 4, Parcel Map No. 24150, as shown on 13 the map filed in Book 158, Pages 99 to 101, of Parcel Maps, records of said County, said 14 northeasterly comer also being a point on the westerly line of said document No. 105708; JS thence along said westerly line and the easterly line of said Parcel 4 South 7°06'02" West 16 323.22 feet to the True Point of Beginning; thence South 81°02'48" East 20.01 feet to 17 the easterly line of said Document No. 105708; thence along sajd easterly line 18 South 7°06'02" West 7.00 feet; thence North 81°02'48" West 20.01 feet to said westerly 19 line of document No. 105708; thence along said westerly line Nqrth 7°06'02" East 20 7.00 feet to the True Point of Beginning. 21 22 Containing 140 square feet. 23 24 See Exhibit 'BS, attached hereto and made a part hereof. 25 26 The distances described herein a1·e grid distances and are based on California Coordinate 27 System of 1983, Zone 6, 2007.00 epoch. Ground distances may be obtained by dividing 28 grid distances by the mean combination factor of the courses being described. The mean 29 combination factor for this conversion is 0.99997476. 30 31 M:\2PTG010501\SURVEY\l..EOAI..S\22126_APN_102-040-022_AT&SF\LEOALS\22126·2.doc 31812013 119 Page I of2 l l ! I I PSOMAS I I 2 Prepared under the direction of: 3 4 5 l~b~fb4 6 l Jeremy L. Evans, PLS 5282 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Date M:\2PTGO I 050l ISURVEY\LEGALS\22126_APN_ I 02-040-022_AT&SF\l.EOALS\22126-2.doc 31812013 120 Page 2 of2 EXHIBIT 85 PARCEL TITLE GRAN TOR 22126-2 ESMT AT & SF RR 1102-420-0521 PCL S 1102-420-0361 PCL 4 P .. JVJ. 24150 JVL8. 158/99-JOJ AREA 140 SO.FT. 3: N 0 APN 1 02-040-022 PCL J PJJVJJ 22009 JVl.BJ 142/96~98 f102-040-0241. S81°02 1 48"£ 20.01' No. L}J 7 ~?. 0-..:i) 507°06 '02"W 7 .00' . N12°52'02"E (RAO} 0 r;J R!V[S/0£ FR[ EWA y ..;. 97 J r, J 205 POB Indicates Point Of Beginning TPOB Indicates True Point Of Beginning (R) Indicates Radial Bearing c:::; Title to State I I I I I Access Prohibited NOTES i------... ~----Coordinotes and bearings are on 2?"1-+ -----....---1-1 -- 8 22126--2 CCS 1983(2007 .00) Zone 6. Di stances and stationing are grid distances. Divide by 0.99997476 to obtain ground distances, Alt distances ore in feet unless otherwise noted. PERMANENT WALL FOOTING EASEMENT F FEET 0 25 50 100 150 PREPARED BY: DATE: 11-01-11 REV.: 03-08-13 EA: OF540 F Att: PSOMAS DISTRICT COUNTY ROUTE SHEET PM SHEET NO. TOTAL SHEET 8 RIV 91 4.0 121 EASEMENT FOR_~~~~----~~~ (C&M Agreement) THIS EASEMENT FOR ("Easement") is made and entered into as of the __ _ day of 20_ ("Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), and STATE OF CALIFORNIA, through its DEPARTMENT OF TRANSPORTATION, ("STATE"). A. Grantor owns or controls certain real property situated at or near the vicinity of ------------County of State of . at Mile Post . [Project # ____ __,, as described or depicted on Exhibit "A" attached hereto and made a part hereof (the "Premises"). B. Grantor and STATE have entered into that certain Construction and Maintenance Agreement dated as of-----------------concerning improvements on or near the Premises (the "C&M Agreement"). C. GRANTOR agrees to grant to STATE, its successors and assigns an Easement over the Premises for the Easement Purpose subject to the reservations, covenants, terms and conditions defined below and subject to the terms and conditions of the C&M Agreement dated XXX, which is incorporated herein as if fully set forth in this instrument. NOW, THEREFORE, for and in consideration of the foregoing recitals which are incorporated herein, the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1 Granting of Easement. 1.1 Easement Purpose. The "Easement Purpose" shall be for the purposes set forth in the C&M Agreement namely the constructing, reconstructing, upgrading, replacing, removing, inspecting, maintaining, repairing and operating an overhead bridge and highway only for use as a public crossing at the location identified herein, along with all necessary supporting columns, footings and appurtenances thereon (hereinafter collectively, "Structure"). Structure shall be constructed, located, configured and maintained by STATE, its successors and assigns in strict accordance with the terms of this Easement and the C&M Agreement. 1.2 Grant. Grantor does hereby grant unto STATE a non-exclusive easement ("Easement") over and above the Premises for the Easement Purpose and for no other purpose. The Easement is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record, if any, relating to the Premises and subject to all with all applicable federal and state laws, regulations, ordinances, restrictions, covenants and applicable court or administrative decisions and orders, including Environmental Laws (defined below) (collectively, "Laws"). Grantor may not make any alterations or improvements or perform any maintenance or repair activities within the Premises except in accordance with the terms and conditions of the C&M Agreement. 1.3 Reservations by Granter. Grantor excepts and reserves the right, to be exercised by Granter and any other parties who may obtain written permission or authority from Grantor: (a) to install, construct, reconstruct, upgrade, maintain, renew, alter, repair, inspect, replace, use, operate, change, modify, improve, and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises; and Form 704CM; Rev. 08/17/11 1 122 (c) to use the Premises in any manner as the Grantor in its sole discretion deems appropriate, provided Grantor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by STATE for the Easement Purpose. Section 2 Term of Easement. The term of the Easement, unless sooner terminated under provisions of this Easement, shall be perpetual. [If this is a temporary easement, replace the preceding sentence with the following: The term of this Easement, unless sooner terminated under provisions of this Easement, shall expire on the date that is after the Effective Date.] Section 3 No Warranty of Any Conditions of the Premises. ST ATE acknowledges that Grantor has made no representation whatsoever to STATE concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Grantor's ownership interest in the Premises. STATE has not relied on any statement or declaration of Grantor, oral or in writing, as an inducement to entering into this Easement, other than as set forth herein. GRANTOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. GRANTOR SHALL NOT BE RESPONSIBLE TO STATE OR ANY OF STATE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. STATE ACCEPTS ALL RIGHTS GRANTED UNDER THIS EASEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO ALL LIMITATIONS ON GRANTOR'S RIGHTS, INTERESTS AND TITLE TO THE PREMISES. STATE has inspected or will inspect the Premises, and enters upon Grantor's rail corridor and property with knowledge of its physical condition and the danger inherent in Grantor's rail operations on or near the Premises. STATE acknowledges that this Easement does not contain any implied warranties that STATE or STATE'S Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4 Nature of Grantor's Interest in the Premises. GRANTOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND STATE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. In case of the eviction of STATE by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Grantor of the affected rail corridor, Grantor shall not be liable to refund STATE any compensation paid hereunder. Section 5 Improvements. STATE shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Structure, including such actions as may be necessary to obtain any required permits, approvals or authorizations from applicable governmental authorities. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Structure shall be made and maintained in such manner, form and extent as will provide adequate drainage of and from the adjoining lands and premises of the Grantor; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from such lands and premises of the Granter, the STATE shall construct and maintain such culverts or drains as may be requisite to preserve such natural and pre-existing drainage, and shall also wherever necessary, construct extensions of existing drains, culverts or ditches through or along the premises of the Granter, such extensions to be of adequate sectional dimensions to preserve the present flowage of drainage or other waters, and of materials and workmanship equally as good as those now existing. In the event any construction, repair, maintenance, work or other use of the Premises by STATE will affect any Lines, fences, buildings, improvements or other facilities (collectively, "Other Improvements"), STATE will be responsible at STATE's sole risk to locate and make any adjustments necessary to such Other Improvements. STATE must contact the owner(s) of the Other Improvements notifying them of any work that may damage these Other Improvements and/or interfere with their service and obtain the owner's written approval prior to so affecting the Other Improvements. STATE or STATE's contractors or consultants must mark all Other Improvements on the Plans and Specifications and mark such Other Improvements in the field in order to verify their locations. STATE must also use all reasonable methods when working on or near Granter property to determine if any Other Improvements (fiber optic, cable, Form 704CM; Rev. 08/17/11 2 123 communication or otherwise) may exist. The STATE agrees to keep the above-described premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and vegetation on said premises during the construction of the Structure. Said work of cutting and removal to be done at such times and with such frequency as to comply with STATE and local laws and regulations and abate any and all hazard of fire. Section 6 Taxes and Recording Fees. Where applicable, STATE shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the STRUCTURE by any governmental or quasi-governmental body or any Taxes levied or assessed against Grantor or the Premises that are attributable to the STRUCTURE as permited by State statute. STATE agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the Memorandum of Easement. In the event of STATE's failure to do so, if Grantor shall become obligated to do so, STATE shall be liable for all costs, expenses and judgments to or against Grantor, including all of Grantor's legal fees and expenses. Section 7 Environmental. 7.1 Compliance with Environmental Laws. Except where it is exempted, State shall strictly comply with all federal and state I environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). STATE shall not maintain a "treatment," "storage," "transfer" or "disposal" facility, or "underground storage tank," as those terms are defined by Environmental Laws, on the Premises. STATE shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 7.2 Notice of Release. STATE shall give Granter immediate notice to Grantor's Resource Operations Center at (800) 832-5452 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection· or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to STATE's use of the Premises. STATE shall use its best efforts to promptly respond to any release on or from the Premises. STATE also shall give Granter immediate notice of all measures undertaken on behalf of STATE to investigate, remediate, respond to or otherwise cure such release or violation. 7.3 Remediation of Release or Violation caused by use of Easement. In the event that Granter has notice from ST ATE or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this Easement, and which was caused by STATE or STATE's contractor. Granter may require STATE, at STATE's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises. If during the construction or subsequent maintenance of the STRUCTURE, soils or other materials considered to be environmentally contaminated are exposed, STATE will remove and safely dispose of said contaminated soils. Determination of soils contamination and applicable disposal procedures thereof, will be made only by an agency having the capacity and authority to make such a determination. 7.4 Preventative Measures. STATE shall promptly report to Grantor in writing any conditions or activities upon the Premises known to STATE which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that STATE's reporting to Granter shall not relieve STATE of any obligation whatsoever imposed on it by this Easement. STATE shall promptly respond to Grantor's request for information regarding said conditions or activities. Section 8 8.1 Default and Termination. Grantor's Performance Rights. If at any time Grantee, or Grantee's Contractors, fails to properly Form 704CM; Rev. 08/17/11 3 124 perform its obligations under this Easement, Grantor, in its sole discretion, may: (i} seek specific performance of the unperformed obligations, or (ii) at Grantee's sole cost, may arrange for the perlormance of such work as Granter deems necessary for the safety ,of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Granter, or anyone or anything present on the rail corridor or property with the authority or permission of Granter. Grantee shall promptly reimburse Granter for all costs of work performed on Grantee's behalf upon receipt of an invoice for such costs. Grantor's failure to perform any obligations of Grantee or Grantee's Contractors shall not alter the liability allocation set forth in this Easement. 8.2 Abandonment. Granter may, at its option, terminate this Easement by serving five (5) days' notice in writing upon Grantee if Grantee should abandon or cease to use the Premises for the Easement Purpose. Any waiver by Granter of any default or defaults shall not constitute a waiver of the right to terminate this Easement for any subsequent default or defaults, nor shall any such waiver in any way affect Grantor's ability to enforce any section of this Easement. 8.3 Effect of Termination or Expiration. Neither termination nor expiration will release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, if later, the date the Premises are restored as required by Section 9. 8.4 Non-exclusive Remedies. The remedies set forth in this Section 8 shall be in addition to, and not in limitation of, any other remedies that Granter may have under the C&M Agreement, at law or in equity. Section 9 Surrender of Premises. 9.1 Removal of Improvements and Restoration. Upon termination of this Easement, whether by abandonment of the Easement or by the exercise of Grantor's termination rights hereunder, Grantee shall, at its sole cost and expense, immediately perform the following: (a) remove all or such portion of Grantee's Improvements and all appurtenances thereto from the Premises, as Grantor directs at Grantor's sole discretion; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Grantee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Grantee; and (d) leave the Premises in the condition which existed as of the Effective Date. 9.2 Limited License for Entry. If this Easement is terminated, Grantor may direct Grantee to undertake one or more of the actions set forth above, at Grantee's sole cost, in which case Grantee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Granter. The terms of this limited license include all of Grantee's obligations under this Easement. Termination will not release Grantee from any liability or obligation under this Easement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Grantee's Improvements are removed and the Premises are restored to the condition that existed as of the Effective Date. If Grantee fails to surrender the Premises to Grantor upon any termination of the Easement, all liabilities and obligations of Grantee hereunder shall continue in effect until the Premises are surrendered. Section 10 Liens. Subject to the laws and statutes of the State of California pertaining to its exposure if any to liens, STATE shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by STATE on the Premises or attributable to Taxes that are the responsibility of STATE pursuant to Section 6. Granter is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Premises; provided, however, that failure of Grantor to take any such action shall not relieve STATE of any obligation or liability under this Section 10 or any other section of this Easement. Form 704CM; Rev. 08/17/11 4 125 Section 11 Tax Exchange. Granter may assign its rights (but not its obligations) under this Easement to Goldfinch Exchange Company LLC, an exchange intermediary, in order for Grantor to effect an exchange under Section 1031 of the Internal Revenue Code. In such event, Grantor shall provide STATE with a Notice of Assignment, attached as Exhibit C, and STATE shall execute an acknowledgement of receipt of such notice. Section 12 Notices. Any notice required or permitted to be given hereunder by one party to the other shall be delivered in the manner set forth in the C&M Agreement. Notices to Granter under this Easement shall be delivered to the following address: BNSF Railway Company, Real Estate Department, 2500 Lou Menk Drive, Ft. Worth, TX 76131, Attn: Permits, or such other address as Granter may from time to time direct by notice to STATE. Section 13 Recordation. It is understood and agreed that this Easement shall not be in recordable form and shall not be placed on public record and any such recording shall be a breach of this Easement. Grantor and STATE shall execute a Memorandum of Easement in the form attached hereto as Exhibit "B" (the "Memorandum of Easement") subject to changes required, if any, to conform such form to local recording requirements. The Memorandum of Easement shall be recorded in the real estate records in the county where the Premises are located. If a Memorandum of Easement is not executed by the parties and recorded as described above within 60 days of the Effective Date, Grantor shall have the right to terminate this Easement upon notice to STATE. Section 14 Miscellaneous. 14.1 All questions concerning the interpretation or application of provisions of this Easement shall be decided according to the substantive Laws of the State of California without regard to conflicts of law provisions. 14.2 If any action at law or in equity is necessary to enforce or interpret the terms of this Easement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. 14.3 If any provision of this Easement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this Easement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this Easement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. 14.4 This Easement is the full and complete agreement between Grantor with respect to all matters relating to STATE's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to STATE's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of STATE or STATE's obligation to defend and hold Granter harmless in any prior written agreement between the parties. 14.5 Time is of the essence for the performance of this Easement. ADMINISTRATIVE FEE 15. STATE acknowledges that a material consideration for this agreement, without which it would not be made, is the agreement between STATE and Grantor, that the STATE shall pay upon return of this Agreement signed by STATE to Grantor's Broker a processing fee in the amount of $2.000.00 over and above the agreed upon Acquisition Price. Said fee shall be made payable to BNSF Railway Company by a separate check. Witness the execution of this Easement as of the date first set forth above. Form 704CM; Rev. 08/17/11 5 126 --------------------------- GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: ~~~~~~~~~~~~~ Title: STATE: By: Name: ~~~~~~~~~~~~~ Title: Form 704CM; Rev. 08/17/11 6 127 EXHIBIT "A" Premises 128 !-> 1-...J '° "'u.··r· ·co ,,.,Ill . <D 'll)+l"l ,...,..., .... l'-«t + "" l"l>c: u ~·u ..,, .. 0:: ~ >-..... #8 Ll-J HR llDR E...-.., Inc. #8 "" u <l 0:: >-BNSF INDUSTRY it_ TRACK 4369 <t_ TRACK 4368 i £ LEAD TRAqK 4365 856' PRqPOSED STORAGE c+PACITY LE GENO --INDUSTRY OWNED TRACK --BNSF TRACK ..... ~ ..... -PROPOSED RIGHT-OF-WAY LEAD TRACK 4365 TRACKS 4368 & 4369 INDUSTRY TRACKS L-------· ~ ! L o.os l ! lj I I 1 I I l l II · I ! I I I I I I I I I I I . o . I"' lji ' "' .. ·~ . :!!·~4 .. b .. ·:1<.11*-.r, ~ . . . . lh .,,~~~~::!:;"!*1~"' ,·, :~ .. ~~. '.~:_,__,,~;~··~~fj;je1'1ft --·-· •• .. • --. ... I I .. , ! '* r i ' v .L ' i l . -~1 ~~-,/''h.·· · ... > ~, .r ., ' ' I I I I l j l!llSF SCOPE or -It REMOVE 90 T .F. AND BUMPER REINSTALL BUMPER ON TRACK 4365 '11!!!1$ 7 x -TEW'ORARY CONSTRUCTION EASEMENT ~e$CAl.t ~·tr ---FOOTING EASEMENT · -• -EXISTING RIGHT-OF-WAY ~fl'•·&¢' 01124/201:: EXHIBIT "B" MEMORANDUM OF EASEMENT 130 MEMORANDUM OF EASEMENT THIS MEMORANDUM OF EASEMENT is hereby executed this day of 201_, by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Grantor"), whose address for purposes of this instrument is 2500 Lou Menk Drive, Fort Worth, Texas 76131, and a _________ ("STATE"), whose address for purposes of this instrument is --------------' which terms "Granter" and "STATE" shall include, wherever the context permits or requires, singular or plural, and the heirs, legal representatives, successors and assigns of the respective parties: WITNESSETH: WHEREAS, Granter owns or controls certain real property situated in County, ----as described on Exhibit "A" attached hereto and incorporated herein by reference (the "Premises'); WHEREAS, Granter and STATE entered into an Easement, dated ------------201_ (the "Easement") which set forth, among other things, the terms of an easement granted by Granter to STATE over and across the Premises (the "Easement"); and WHEREAS, Grantor and STATE desire to memorialize the terms and conditions of the Easement of record. For valuable consideration the receipt and sufficiency of which are hereby acknowledged, Granter does grant unto STATE and ST ATE does hereby accept from Granter the Easement over and across the Premises. The term of the Easement, unless sooner terminated under provisions of the Easement, shall be perpetual. All the terms, conditions, provisions and covenants of the Easement are incorporated herein by this reference for all purposes as though written out at length herein, and both the Easement and this Memorandum of Easement shall be deemed to constitute a single instrument or document. This Memorandum of Easement is not intended to amend, modify, supplement, or supersede any of the provisions of the Easement and, to the extent there may be any conflict or inconsistency between the Easement or this Memorandum of Easement, the Easement shall control. Page 1 of3 131 IN WITNESS WHEREOF, Granter and STATE have executed this Memorandum of Easement to as of the date and year first above written. STATE OF TEXAS § § COUNTY OF TARRANT § GRANTOR: BNSF RAILWAY COMPANY, a Delaware corporation By: Name: -------~~-------Title: This instrument was acknowledged before me on the ___ day of ______ __, 201_, by ------------(name) as (title) of BNSF RAILWAY COMPANY, a Delaware corporation. Notary Public My appointment expires:'--------- (Seal) Page 2of3 132 STATE OF~~~~~-§ § § STATE: By: Name: ~------------Tit I e: This instrument was acknowledged before me on the day of ________ _ 201_, by (name) as ____________ (title) of _______________ __, a Notary Public My appointment expires:...._._._ __ _...... __ _ (Seal) Page 3 of3 133 2 3 PSOMAS EXHIBITB-2 LEGAL DESCRIPTION 4 Caltrus Panel Net 22129 s Jemuma QnstmtJion Lieegse 6 APN 102-040..022 7 8 In th.e City of Corona, County of Riverside, State of California, being a strip of land 20 9 feet wide across a portion of the land described in the Deed recorded October 21, 1968 as Io docwnent No. l 05708 of Official Records of said County, described as follows: 11 12 Commencing at the northeasterly comer of Parcel 4, Parcel Map No. 24150, as shown on 13 the map filed in Book 158, Pages 99 to 101, of Parcel Maps, records of said County, said 14 northeasterly comer also being a point on the westerly line of said document No. 105708; 15 thence along said westerly line and the easterly line of said Parcel 4 South 7°06'02" West 16 323.23 feet to the True Point of Beginning; thence South 81°02'48" East 20.01 feet to 17 the easterly line of said Document No. 105708; thence along said easterly line 18 North 7°06'02 11 East3.00 feet; thence North 81°02'48" West 20.01 feet to said westerly 19 line of document No. 105708; thence along said westerly line South 7°06'02" West 20 3.00 feet to the True Point of Beginning. 21 22 Containing 60 square feet. 23 24 See Exhibit 'B3' attached hereto and made a part hereof. 2S 26 The distances described herein are grid distances and are based on California Coordinate 27 System of 1983, Zone 6, 2007.00 epoch. Ground distances may be obtained by dividing 28 grid distances by the mean combination factor of the courses being described. The mean 29 combination factor for this conversion is 0.99997476. 30 31 M;\2PTOOI OS01\SURVEY\LEGALS\22 l26_APN_l02-0<I0·022_AT &Sf\LEOALS\22126-3.doc 31812013 134 Page lor2 PSOMAS 2 Prepared under the direction of: 3 4 5 6 1 Jeremy L. Evans, PLS 5282 ! 7 8 9 ' 10 H 12 13 14 15 16 11 18 19 20 21 22 23 24 25 26 27 28 29 I 30 31 Date M:l2PTG010501\SURVIlY\LEGALS\22126 APN 102·040-022 AT&SF\l.EOALS\22126·3.doc 31812013 --- 135 Page2 of2 EXHIBIT B3 PARCEL# TITLE GRAN TOR AREA 22126-3 TCL AT & SF RR 60 SO.FT. ) 102-4 20-os2l PCL 5 POC §2-420-036, PCL 4 P.JVL 24150 M .. BJ J58/99-JOJ TPOB EASEMENT 205 . -....;.._ $ "N--- DOC. NO. 105708, O.R. ~?-:,... ~~~~~~~~--~.,_..;'--" \.0 ~ REC'D 10-21-68 o co N73015'05"t (. PJ.\Rc:::-1 RAO) 0 • f'--r- l/) 00 --l > 1 N~-r u " No" 206 s: N 0 ' s: co·= NN .o 0)' 00 \.0 0 APN 102-040-022 PCL J P, JVL 22009 MJBJ JL}2/9b-98 '102-040-0241 SEE SHEET-2 DE TAil-A N12o52'02"E (RAD) LEGEND POB Indicates Point Of Beginning 2Q~7----------b---f . I TPOB Indicates True Point Of Beginning (R) Indicates Radial Bearing c:=J Title to State I I I I I Access Pr-ohibited NOTES Coordinates and bearings ore on CCS 1983(2007.00) Zone 6. Distances and stationing are grid distances. Divide by 0.99997476 to obtain ground distances. All distances ore in feet unless otherwise noted. FEET 0 PREPARED BY: DA TE: 02-29-12 8 22126-3 TEMPORARY CONSTRUCTION LICENSE 25 50 100 150 REV.: 03-08-13 EA: OF540 FA#: PSOMAS DISTRICT COUNTY ROUTE SHEET PM SHEET NO. TOTAL SHEETS "1 11t~t h:ri teritre (kivP., Stf:. :>oo Son to Ano, Col i<cwnto 92707 (71<)751-7Yl31(714)5<5-8~BJ IFo;l 8 RIV 136 91 4.0 2 EXI-IIBIT B3 PARCEL# TITLE GRAN TOR AREA APN 22126-3 TCL AT & SF RR 60 SO.FT. 102-040-022 ,.__,,_,,_. _"' __ ....___.___. __________ ~--~-------------------1 [02-420-0361 PCL ..:} PJJVL 24150 NL 8 J J 58/99-lo J N• PCL J P J JVL 22009 JVLBJ J42/96~98 j 102-040-024j 0 ~ 22126-3; 581°02'LJB"E LEGEND POB Indicates Point Of Beginning TPOB Indicates True Point Of Beginning (R) Indicates Radial Bearing ~Title to State I I I I I Access Prohibited NOTES Coordinates and bearings ore on CCS 1983(2007 .00) Zone 6. Distances and stationing ore grid distances. Divide by 0.99997476 to obtain ground distances. All distances ore in feet unless otherwise noted. .!-LI ~ -0) N, 0 !'-- ' co tO ~J FEEf 0 /,r N81°02 '4 8"W 20.01' N07° 06 '02"E 3.00' DOC. NO. 105708, O.R. 00 ?=~ REC'D 10-21-68 NN .o (J) ' 00 tO 0 j~ DETAIL-A 22126-3 TEMPORARY CONSTRUCTION LICENSE 10 20 40 60 PREPARED BY: DATE: 02-29-12 REV.: 03-08-1 3 EA:OF540 FA#: PSOMAS 3 Hut ten Centre 01-ivP-1 'Sle. 200 Son to Ano, Coli rornio 92707 (71<)751-73'131(714)5<5·8883 «iroxl DISTRICT COUNTY 8 RIV 137 SHEET PM SHEET NO. TOTAL SHEETS 9 '1. 0 2 2 1.01 General: EXHIBIT C To Monster Lead Wall Agreement CONTRACTOR REQUIREMENTS MONSTER LEAD WALL AGREEMENT • 1.01.01 The Contractor must cooperate with BNSF RAILWAY COMPANY, hereinafter referred to as "Railway" where work is over or under on or adjacent to Railway property and/or right-of-way, hereafter referred to as "Railway Property", during RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public corporation of the State of California, hereinafter referred to as ("RCTC") in the construction of a retaining wall and footing, including the removal of a portion of the Monster Lead Track No. 4365, BNSF's Milepost 27.50, and Line Segment 7602 on BNSF' s San Bernardino Subdivision. • 1.01.02 The Contractor must execute and deliver to the Railway duplicate copies of the Exhibit C-1 Agreement, in the form attached hereto, obligating the Contractor to provide and maintain in full force and effect the insurance called for under Section 3 of said Exhibit C-1. Questions regarding procurement of the Railroad Protective Liability Insurance should be directed to Rosa Martinez at Marsh, USA, 214-303-8519. • 1.01.03 The Contractor must plan, schedule and conduct all work activities so as not to interfere with the movement of any trains on Railway Property. • 1.01.04 The Contractor's right to enter Railway's Property is subject to the absolute right of Railway to cause the Contractor's work on Railway's Property to cease if, in the opinion of Railway, Contractor's activities create a hazard to Railway's Property, employees, and/or operations. Railway will have the right to stop construction work on the Project if any of the following events take place: (i) Contractor (or any of its subcontractors) performs the Project work in a manner contrary to the plans and specifications approved by Railway; (ii) Contractor (or any of its subcontractors), in Railway's opinion, prosecutes the Project work in a manner which is hazardous to Railway property, facilities or the safe and expeditious movement of railroad traffic; (iii) the insurance described in the attached Exhibit C-1 is canceled during the course of the Project; or (iv) RCTC fails to pay Railway for the Temporary Construction License or the Easement. The work stoppage will continue until all necessary actions are taken by Contractor or its subcontractor to rectify the situation to the satisfaction of Railway's Division Engineer or until additional insurance has been delivered to and accepted by Railway. In the event of a breach of (i) the Construction and Maintenance Agreement, (ii) the Temporary Construction License, or (iii) the Easement, Railway may immediately terminate the Temporary Construction License or the Easement. Any such work stoppage under this provision will not give rise to any liability on the part of Railway. Railway's right to stop the work is in addition to any other rights Railway may have including, but not limited to, actions or suits for damages or lost profits. In the event that Railway desires to stop construction work on the Project, Railway agrees to immediately notify the following individual in writing: ExhibitC Monster Lead Wall Agreement Page 1 of13 138 Michael Blomquist Toll Program Director RIVERSIDE COUNTY TRANSPORTATION COMMISSION 480 Lemon Street, 3rd Floor Riverside, CA 92502-2208 Office: (951) 778-1098 Fax (951) 787-7920 mblomguist@rctc.org • 1.01.05 The Contractor is responsible for determining and complying with all Federal, State and Local Governmental laws and regulations, including, but not limited to environmental laws and regulations (including but not limited to the Resource Conservation and Recovery Act, as amended; the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA}, and health and safety laws and regulations. The Contractor hereby indemnifies, defends and holds harmless Railway for, from and against all fines or penalties imposed or assessed by Federal, State and Local Governmental Agencies against the Railway which arise out of Contractor's work under this Agreement. • 1.01.06 The Contractor must notify RCTC'S Toll Program Director (951-778-1098) and Railway's Manager Public Projects, telephone number 909-386-4472 at least thirty (30) calendar days before commencing any work on Railway Property. Contractor's notification to Railway must refer to Railway's file BF-10004505. • 1.01.07 For any bridge demolition and/or falsework above any tracks or any excavations located with any part of the excavations located within, whichever is greater, twenty-five (25) feet of the nearest track or intersecting a slope from the plane of the top of rail on a 2 horizontal to 1 vertical slope beginning at eleven (11) feet from centerline of the nearest track, both measured perpendicular to center line of track, the Contractor must furnish the Railway five sets of working drawings showing details of construction affecting Railway Property and tracks. The working drawing must include the proposed method of installation and removal of falsework, shoring or cribbing, not included in the contract plans and two sets of structural calculations of any falsework, shoring or cribbing. For all excavation and shoring submittal plans, the current "BNSF-UPRR Guidelines for Temporary Shoring" must be used for determining the design loading conditions to be used in shoring design, and all calculations and submittals must be in accordance with the current "BNSF- UPRR Guidelines for Temporary Shoring". All submittal drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. All calculations must take into consideration railway surcharge loading and must be designed to meet American Railway Engineering and Maintenance-of-Way Association (previously known as American Railway Engineering Association) Coopers E-80 live loading standard. All drawings and calculations must be stamped by a registered professional engineer licensed to practice in the state the project is located. The Contractor must not begin work until notified by the Railway-that plans have been approved. The Contractor will be required to use lifting devices such as, cranes and/or winches to place or to remove any falsework over Railway's tracks. In no case will the Contractor be relieved of responsibility for results obtained by the implementation of said approved plans. • 1.01.08 Subject to the movement of Railway's trains, Railway will cooperate with the Contractor such that the work may be handled and performed in an efficient manner. The Contractor will have no claim whatsoever for any type of damages or for extra or additional compensation in the event his work is delayed by the Railway. ExhibitC Monster Lead Wall Agreement Page 2 of13 139 1.02 Contractor Safety Orientation • 1.02.01 No employee of the Contractor, its subcontractors, agents or invitees may enter Railway Property without first having completed Railway's Engineering Contractor Safety Orientation, found on the web site www.bnsfcontractor.com. The Contractor must ensure that each of its employees, subcontractors, agents or invitees completes Railway's Engineering Contractor Safety Orientation through internet sessions before any work is performed on the Project. Additionally, the Contractor must ensure that each and every one of its employees, subcontractors, agents or invitees possesses a card certifying completion of the Railway Contractor Safety Orientation before entering Railway Property. The Contractor is responsible for the cost of the Railway Contractor Safety Orientation. The Contractor must renew the Railway Contractor Safety Orientation annually. Further clarification can be found on the web site or from the Railway's Representative. 1.03 Railway Requirements • 1.03.01 The Contractor must take protective measures as are necessary to keep railway facilities, including track ballast, free of sand, debris, and other foreign objects and materials resulting from his operations. Any damage to railway facilities resulting from Contractor's operations will be repaired or replaced by Railway and the cost of such repairs or replacement must be paid for by RCTC. • 1.03.02 The Contractor must notify the Railway's Division Engineer at 909-386-4504 and provide blasting plans to the Railway for review seven (7) calendar days prior to conducting any blasting operations adjacent to or on Railway's Property. • 1.03.03 The Contractor must abide by the following temporary clearances during construction: • 15' -0" Horizontally from centerline of nearest track • 21 '-6" Vertically above top of rail • 27'-0" Vertically above top ofrail for electric wires carrying less than 750 volts • 28'-0" Vertically above top of rail for electric wires carrying 750 volts to 15,000 volts • 30'-0" Vertically above top ofrail for electric wires carrying 15,000 volts to 20,000 volts • 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 volts • 1.03.04 Upon completion of construction, the following clearances shall be maintained: • Not Applicable for the Monster Lead Wall Agreement Project. • 1.03.05 Any infringement within State statutory clearances due to the Contractor's operations must be submitted to the Railway and to RCTC and must not be undertaken until approved in writing by the Railway, and until RCTC has obtained any necessary authorization from the State Regulatory Authority for the infringement. No extra compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and/or the State Regulatory Authority's approval. ExhibitC Monster Lead Wall Agreement Page 3of13 140 ,----------- • • • • • 1.03.06 In the case of impaired vertical clearance above top of rail, Railway will have the option of installing tell-tales or other protective devices Railway deems necessary for protection of Railway operations. The cost of tell-tales or protective devices will be borne by RCTC. 1.03.07 The details of construction affecting the Railway's Property and tracks not included in the contract plans must be submitted to the Railway by RCTC for approval before work is undertaken and this work must not be undertaken until approved by the Railway. 1.03.08 At other than public road crossings, the Contractor must not move any equipment or materials across Railway's tracks until permission has been obtained from the Railway. The Contractor must obtain a "Temporary Construction Crossing Agreement" from the Railway prior to moving his equipment or materials across the Railways tracks. The temporary crossing must be gated and locked at all times when not required for use by the Contractor. The temporary crossing for use of the Contractor will be constructed and, at the completion of the project, removed at the expense of the Contractor. 1.03.09 Discharge, release or spill on the Railway Property of any hazardous substances, oil, petroleum, constituents, pollutants, contaminants, or any hazardous waste is prohibited and Contractor must immediately notify the Railway's Resource Operations Center at 1 (800) 832-5452, of any discharge, release or spills in excess of a reportable quantity. Contractor must not allow Railway Property to become a treatment, storage or transfer facility as those terms are defined in the Resource Conservation and Recovery Act or any state analogue. 1.03.10 The Contractor upon completion of the work covered by this contract, must promptly remove from the Railway's Property all of Contractor's tools, equipment, implements and other materials, whether brought upon said property by said Contractor or any subcontractor, employee or agent of Contractor or of any Subcontractor, and must cause Railway's Property to be left in a condition acceptable to the Railway's representative. 1.04 Contractor Roadway Worker on Track Safety Program and Safety Action Plan: • 1.04.01 Each Contractor that will perform work within 25 feet of the centerline of a track must develop and implement a Roadway Worker Protection/On Track Safety Program and work with Railway Project Representative to develop an on track safety strategy as described in the guidelines listed in the on track safety portion of the Safety Orientation. This Program must provide Roadway Worker protection/on track training for all employees of the Contractor, its subcontractors, agents or invitees. This training is reinforced at the job site through job safety briefings. Additionally, each Contractor must develop and implement the Safety Action Plan, as provided for on the web site www.bnsfcontractor.com, which will be made available to Railway prior to commencement of any work on Railway Property. During the performance of work, the Contractor must audit its work activities. The Contractor must designate an on-site Project Supervisor who will serve as the contact person for the Railway and who will maintain a copy of the Safety Action Plan, safety audits, and Material Safety Datasheets (MSDS), at the job site. • 1.04.02 Contractor shall have a background investigation performed on all of its employees, subcontractors and agents who will be performing any services for Railway under this Agreement which are determined by Railway in its sole discretion a) to be on Railway's property, or b) that require access to Railway Critical Infrastructure, Railway Critical Information Systems, Railway's Employees, Hazardous Materials on Railway's property or is being transported by or otherwise in ExhibitC Monster Lead Wall Agreement Page4of13 141 the custody of Railway, or Freight in Transit involving Railway. The required background screening shall at a minimum meet the rail industry background screening criteria defined by the e-RAILSAFE Program as outlined at http://www.e-railsafe.com, in addition to any other applicable regulatory requirements. Contractor shall obtain written consent from all its employees, subcontractors or agents screened in compliance with the e-RAILSAFE Program to participate in the Program on their behalf and to release completed background information to Railway's designee. Contractor shall be subject to periodic audit to ensure compliance. Contractor subject to the e-RAILSAFE Program hereunder shall not permit any of its employees, subcontractors or agents to perform services hereunder who are not first approved under e- RAILSAFE Program standards. Railway shall have the right to deny entry onto its premises or access as described in this section above to any of Contractor's employees, subcontractors or agents who do not display the authorized identification badge issued by a background screening service meeting the standards set forth in the e-RAILSAFE Program, or who in Railway's opinion, which may not be unreasonable, may pose a threat to the safety or security of Railway's operations, assets or personnel. Contractors shall be responsible for ensuring that its employees, subcontractors and agents are United States citizens or legally working in the United States under a lawful and appropriate work VISA or other work authorization. 1.05 Railway Flagger Services: • 1.05.01 The Contractor must give Railway's Roadmaster (telephone 909-386-4061) a minimum of thirty (30) calendar days advance notice when flagging services will be required so that the Roadmaster can make appropriate arrangements (i.e., bulletin the flagger's position). If flagging services are scheduled in advance by the Contractor and it is subsequently determined by the parties hereto that such services are no longer necessary, the Contractor must give the Roadmaster five (5) working days advance notice so that appropriate arrangements can be made to abolish the position pursuant to union requirements. • 1.05.02 Unless determined otherwise by Railway's Project Representative, Railway flagger will be required and furnished when Contractor's work activities are located over, under and/or within twenty-five (25) feet measured horizontally from centerline of the nearest track and when cranes or similar equipment positioned beyond 25 feet from the track centerline could foul the track in the event of tip over or other catastrophic occurrence, but not limited thereto for the following conditions: • 1.05.02a When, upon inspection by Railway's Representative, other conditions warrant. • 1.05.02b When any excavation is performed below the bottom of tie elevation, if, in the opinion of Railway's representative, track or other Railway facilities may be subject to movement or settlement. • 1.05.02c When work in any way interferes with the safe operation of trains at timetable speeds. ExhibitC Monster Lead Wall Agreement Pages of13 142 • 1.05.02d When any hazard is presented to Railway track, communications, signal, electrical, or other facilities either due to persons, material, equipment or blasting in the vicinity. • 1.05.02e Special permission must be obtained from the Railway before moving heavy or cumbersome objects or equipment which might result in making the track impassable. • 1.05.03 Flagging services will be performed by qualified Railway flaggers. • 1.05.03a Flagging crew generally consists of one employee. However, additional personnel may be required to protect Railway Property and operations, if deemed necessary by the Railways Representative. • 1.05.0Jb Each time a flagger is called, the minimum period for billing will be the eight (8) hour basic day. • 1.05.0Jc The cost of flagger services provided by the Railway will be borne by RCTC. The estimated cost for one (1) flagger is approximately between $800.00-$1,600.00 for an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays. The estimated cost for each flagger includes vacation allowance, paid holidays, Railway and unemployment insurance, public liability and property damage insurance, health and welfare benefits, vehicle, transportation, meals, lodging, radio, equipment, supervision and other costs incidental to performing flagging services. Negotiations for Railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase actual or estimated flagging rates. THE FLAGGING RATE IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF FLAGGING PURSUANT TO THIS PARAGRAPH. • 1.05.03d The track will be removed from service for the duration of the Project. Train timetable speeds are: 10 MPH Freight 1.06 Contractor General Safety Requirements • 1.06.01 Work in the proximity of railway track(s) is potentially hazardous where movement of trains and equipment can occur at any time and in any direction. All work performed by contractors within 25 feet of any track must be in compliance with FRA Roadway Worker Protection Regulations. • 1.06.02 Before beginning any task on Railway Property, a thorough job safety briefing must be conducted with all personnel involved with the task and repeated when the personnel or task changes. If the task is within 25 feet of any track, the job briefing must include the Railway's flagger, as applicable, and include the procedures the Contractor will use to protect its employees, subcontractors, agents or invitees from moving any equipment adjacent to or across any Railway track(s). • 1.06.03 Workers must not work within 25 feet of the centerline of any track without an on track safety strategy approved by the Railway's Project Representative. When authority is provided, every contractor employee must know: (1) who the Railway flagger is, and how to contact the tlagger, (2) limits of the authority, (3) the method of communication to stop and resume work, and ( 4) location of the designated places of safety. Persons or equipment entering flag/work limits that ExhibitC Monster Lead Wall Agreement Page 6of13 143 were not previously job briefed, must notify the flagger immediately, and be given a job briefing when working within 25 feet of the center line of track. • 1.06.04 When Contractor employees are required to work on the Railway Property after normal working hours or on weekends, the Railway's representative in charge of the project must be notified. A minimum of two employees must be present at all times. • 1.06.05 Any employees, agents or invitees of Contractor or its subcontractors under suspicion of being under the influence of drugs or alcohol, or in the possession of same, will be removed from the Railway's Property and subsequently released to the custody of a representative of Contractor management. Future access to the Railway's Property by that employee will be denied. • 1.06.06 Any damage to Railway Property, or any hazard noticed on passing trains must be reported immediately to the Railway's representative in charge of the project. Any vehicle or machine which may come in contact with track, signal equipment, or structure (bridge) and could result in a train derailment must be reported immediately to the Railway representative in charge of the project and to the Railway's Resource Operations Center at 1(800) 832-5452. Local emergency numbers are to be obtained from the Railway representative in charge of the project prior to the start of any work and must be posted at the job site. • 1.06.07 For safety reasons, all persons are prohibited from having pocket knives, firearms or other deadly weapons in their possession while working on Railway's Property. • 1.06.08 All personnel protective equipment (PPE) used on Railway Property must meet applicable OSHA and ANSI specifications. Current Railway personnel protective equipment requirements are listed on the web site, www.bmfcontraettr.som, however, a partial list of the requirements include: a) safety glasses with permanently affixed side shields (no yellow lenses); b) hard hats c) safety shoe with: hardened toes, above-the-ankle lace-up and a defined heel; and d) high visibility retro-reflective work wear. The Railway's representative in charge of the project is to be contacted regarding local specifications for meeting requirements relating to hi-visibility work wear. Hearing protection, fall protection, gloves, and respirators must be worn as required by State and Federal regulations. (NOTE .... Should there &>ea discrepancy between the information contained on the web site and the htformadon fu this oaragraph, th-e web sit~ will govem.) • 1.06.09 THE CONTRACTOR MUST NOT PILE OR STORE ANY MATERIALS, MACHINERY OR EQUIPMENT CLOSER THAN 25'-0" TO THE CENTER LINE OF THE NEAREST RAILWAY TRACK. MATERIALS, MACHINERY OR EQUIPMENT MUST NOT BE STORED OR LEFT WITHIN 250 FEET OF ANY HIGHWAY/RAIL AT-GRADE CROSSINGS OR TEMPORARY CONSTRUCTION CROSSING, WHERE STORAGE OF THE SAME WILL OBSTRUCT THE VIEW OF A TRAIN APPROACHING THE CROSSING. PRIOR TO BEGINNING WORK, THE CONTRACTOR MUST ESTABLISH A STORAGE AREA WITH CONCURRENCE OF THE RAILWAY'S REPRESENTATIVE. • 1.06.10 Machines or vehicles must not be left unattended with the engine running. Parked machines or equipment must be in gear with brakes set and if equipped with blade, pan or bucket, they must be lowered to the ground. All machinery and equipment left unattended on Railway's Property must be left inoperable and secured against movement. (See internet Engineering Contractor Safety Orientation program for more detailed specifications) ExhibitC Monster Lead Wall Agreement Page 7 of13 144 • 1.06.11 Workers must not create and leave any conditions at the work site that would interfere with water drainage. Any work performed over water must meet all federal, state and local regulations. • 1.06.12 All power line wires must be considered dangerous and of high voltage unless informed to the contrary by proper authority. For all power lines the minimum clearance between the lines and any part of the equipment or load must be; 200 KV or below -15 feet; 200 to 350 KV -20 feet; 350 to 500 KV -25 feet; 500 to 750 KV -35 feet; and 750 to 1000 KV -45 feet. If capacity of the line is not known, a minimum clearance of 45 feet must be maintained. A person must be designated to observe clearance of the equipment and give a timely warning for all operations where it is difficult for an operator to maintain the desired clearance by visual means. 1.07 Excavation: • 1.07.01 Before excavating, the Contractor must determine whether any underground pipe lines, electric wires, or cables, including fiber optic cable systems are present and located within the Project work area. The Contractor must determine whether excavation on Railway's Property could cause damage to buried cables resulting in delay to Railway traffic and disruption of service to users. Delays and disruptions to service may cause business interruptions involving loss of revenue and profits. Before commencing excavation, the Contractor must contact BNSF's Field Engineering Representative (909-386-4079). All underground and overhead wires will be considered HIGH VOLTAGE and dangerous until verified with the company having ownership of the line. It is the Contractor's responsibility to notify any other companies that have underground utilities in the area and arrange for the location of all underground utilities before excavating. • 1.07.02 The Contractor must cease all work and notify the Railway immediately before continuing excavation in the area if obstructions are encountered which do not appear on drawings. If the obstruction is a utility and the owner of the utility can be identified, then the Contractor must also notify the owner immediately. If there is any doubt about the location ofunderground cables or lines of any kind, no work must be performed until the exact location has been determined. There will be no exceptions to these instructions. • 1.07.03 All excavations must be conducted in compliance with applicable OSHA regulations and, regardless of depth, must be shored where there is any danger to tracks, structures or personnel. • 1.07 .04 Any excavations, holes or trenches on the Railway's Property must be covered, guarded and/or protected when not being worked, on. When leaving work site areas at night and over weekends, the areas must be secured and left in a condition that will ensure that Railway employees and other personnel who may be working or passing through the area are protected from all hazards. All excavations must be back filled as soon as possible. 1.08 Hazardous Waste, Substances and Material Reporting: • 1.08.01 If Contractor discovers any hazardous waste, hazardous substance, petroleum or other deleterious material, including but not limited to any non-containerized commodity or material, on or adjacent to Railway's Property, in or near any surface water, swamp, wetlands or waterways, while performing any work under this Agreement, Contractor must immediately; (a) notify the Railway's Resource Operations Center at 1(800) 832-5452, of such discovery: (b) take safeguards Exhibit c Monster Lead Wall Agreement Page 8of13 145 necessary to protect its employees, subcontractors, agents and/or third parties; and (c) exercise due care with respect to the release, including the taking of any appropriate measure to minimize the impact of such release. 1.09 Personal Injury Reporting • 1.09.01 The Railway is required to report certain injuries as a part of compliance with Federal Railroad Administration (FRA) reporting requirements. Any personal injury sustained by an employee of the Contractor, subcontractor or Contractor's invitees while on the Railway's Property must be reported immediately (by phone m_ail if unable to contact in person) to the Railway's representative in charge of the project. The Non-Employee Personal Injury Data Collection Form contained herein is to be completed and sent by Fax to the Railway at 1(817) 352-7595 and to the Railway's Project Representative no later than the close of shift on the date of the injury. ExhibitC Monster Lead Wall Agreement Page9 of13 146 RA/.t.llYAY NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION (If injuries are in connection with rail equipment accident/incident, highway rail grade crossing accident or automobile accident, ensure that appropriate information is obtained, forms completed and that data entry personnel are aware that injuries relate to that specific event.) Injured Person Type: n Passenger on train (C) n Non-employee (N) n Contractor/safety (ie., emp of another railroad, or, non-BNSF emp involved in vehicle accident, including company vehicles) n Contractor/non-safety sensitive (G) 0 Volunteer/safety D Volunteer/other non-safety sensitive (I) . . c:;pnc:;itivP f H) D Non-trespasser (D) -to include highway users involved in highway rail grade crossinq accidents who did not qo around or throuqh qates D Trespasser (E) -to include highway users involved in highway rail grade · crossinq accidents who went around or throuqh qates D Non-trespasser (J) -Off Railway Property If train involved, Train ID: Transmit attached information to Accident/Incident Reporting Center by: Fax 1-817-352-7595 or by Phone 1-800-697-6736 or email to: Accident- Reporting.Center@B NSF .com Officer Providing Information: ExhibitC Monster Lead Wall Agreement Page 10of13 147 (Name) (Employee No.) (Phone#) REPORT PREPARED TO COMPLY WITH FEDERAL ACCIDENT REPORTING REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490 NON-EMPLOYEE PERSONAL INJURY DATA COLLECTION INFORMATION REQUIRED TO BE COLLECTED PURSUANT TO FEDERAL REGULATION. IT SHOULD BE USED FOR COMPLIANCE WITH FEDERAL REGULATIONS ONLY AND IT IS NOT INTENDED TO PRESUME ACCEPTANCE OF RESPONSIBILITY OR LIABIITY 1. Accident City/St: _____________ ___.. 2: Date,_: ---------- Time:: ________ _ County:---------------3. Temperature:~-----4. Weather:--------- (if non BNSF location) Mile Post I Line Segment------------------ 5. Driver's License No. (and state) or other ID: SSN(reguired): 6. Name (last, first, mi): 7. Address: ______________ City: ____________ st: ----Zip: _____ _ 8 Date of Birth:--------------and/or Age: ___ _ ExhibitC Monster Lead Wall Agreement Page 11 of13 148 Gender: (If available) Phone Number:------------ Employer:, _________ ------------- 9. Injury:------------------10. Body Part: (i.e. laceration, etc.) (i.e. Hand, etc.) 11. Description of Accident (To include location, action, result, etc.>-------------------------- 12. Treatment: D First Aid Only D Required Medical Treatment D Other Medical Treatment Date: 14: Dr. Address: Street; _________________ (itY:----------'-'-----"St: __ Zip: ___ _ 15: Hospital Name: ExhibitC Monster Lead Wall Agreement Page 12of13 149 16: Hospital Address: Street; _________________ City: .__ ___________ __,...t: __ Zip: __ _...__ 17: Diagnosis: REPORT PREPARED TO COMPLY WITH FEDERAL ACODENT REPORTllNG REQUIREMENTS AND PROTECTED FROM DISCLOSURE PURSUANT TO 49 U.S.C. 20903 AND 83 U.S.C. 490 ExhibitC Monster Lead Wall Agreement Page 13 ofl3 150 EXHIBITC-1 Agreement Between BNSF RAILWAY COMPANY and the CONTRACTOR BNSFRAILWAYCOMPANY Attention: Manager Public Projects Railway File: BF-10004505 Agency Project: Monster Lead Wall Agreement Gentlemen: The undersigned (hereinafter called, the "Contractor"), has entered into a contract (the "Contract") dated 2014, with RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a public corporation of the State of California, hereinafter referred to as ("RCTC") for the perfonnance of certain work in connection with the following project: Construction of a retaining wall and footing, including the removal of a portion of the Monster Lead Track No. 4365, BNSF's Milepost 27.50, and Line Segment 7602 on BNSF's San Bernardino Subdivision. Perfonnance of such work will necessarily require contractor to enter BNSF RAILWAY COMPANY ("Railway") right of way and property ("Railway Property"). The Contract provides that no work will be commenced within Railway Property until the Contractor employed in connection with said work for the RCTC (i) executes and delivers to Railway an Agreement in the fonn hereof, and (ii) provides insurance of the coverage and limits specified in such Agreement and Section 3 herein. If this Agreement is executed by a party who is not the Owner, General Partner, President or Vice President of Contractor, Contractor must furnish evidence to Railway certifying that the signatory is empowered to execute this Agreement on behalf of Contractor. Accordingly, in consideration of Railway granting pennission to Contractor to enter upon Railway Property and as an inducement for such entry, Contractor, effective on the date of the Contract, has agreed and does hereby agree with Railway as follows: Section 1. RELEASE OF LIABILITY AND INDEMNITY Contractor hereby waives, releases, indemnifies, defends and holds hannless Railway for all judgments, awards, claims, demands, and expenses (including attorneys' fees), for injury or death to all persons, including Railway's and Contractor's officers and employees, and for loss and damage to property belonging to any person, arising in any manner from Contractor's or any of Contractor's subcontractors' acts or omissions or any work performed on or about Railway's ExhibitC-1 Monster Lead Wall Agreement Page 1 of8 152 property or right-of-way. THE LIABILITY ASSUMED BY CONTRACTOR WILL NOT BE AFFECTED BY THE FACT, IF IT IS A FACT, THAT THE DESTRUCTION, DAMAGE, DEATH, OR INJURY WAS OCCASIONED BY OR CONTRIBUTED TO BY THE NEGLIGENCE OF RAILWAY, ITS AGENTS, SERVANTS, EMPLOYEES OR OTHERWISE, EXCEPT TO THE EXTENT THAT SUCH CLAIMS ARE PROXIMATELY CAUSED BY THE WILLFUL MISCONDUCT OR SOLE NEGLIGENCE OF RAILWAY. THE INDEMNIFICATION OBLIGATION ASSUMED BY CONTRACTOR INCLUDES ANY CLAIMS, SUITS OR JUDGMENTS BROUGHT AGAINST RAILWAY UNDER THE FEDERAL EMPLOYEE'S LIABILITY ACT, INCLUDING CLAIMS FOR STRICT LIABILITY UNDER THE SAFETY APPLIANCE ACT OR THE LOCOMOTIVE INSPECTION ACT, WHENEVER SO CLAIMED. Contractor further agrees, at its expense, in the name and on behalf of Railway, that it will adjust and settle all claims made against Railway, and will, at Railway's discretion, appear and defend any suits or actions oflaw or in equity brought against Railway on any claim or cause of action arising or growing out of or in any manner connected with any liability assumed by Contractor under this Agreement for which Railway is liable or is alleged to be liable. Railway will give notice to Contractor, in writing, of the receipt or dependency of such claims and thereupon Contractor must proceed to adjust and handle to a conclusion such claims, and in the event of a suit being brought against Railway, Railway may forward summons and complaint or other process in connection therewith to Contractor, and Contractor, at Railway's discretion, must defend, adjust, or settle such suits and protect, indemnify, and save harmless Railway from and against all damages, judgments, decrees, attorney's fees, costs, and expenses growing out of or resulting from or incident to any such claims or suits. In addition to any other provision of this Agreement, in the event that all or any portion of this Article shall be deemed to be inapplicable for any reason, including without limitation as a result of a decision of an applicable court, legislative enactment or regulatory order, the parties agree that this Article shall be interpreted as requiring Contractor to indemnify Railway to the fullest extent permitted by applicable law. THROUGH THIS AGREEMENT THE PARTIES EXPRESSLY INTEND FOR CONTRACTOR TO INDEMNIFY RAILWAY FOR RAILWAY'S ACTS OF NEGLIGENCE. It is mutually understood and agreed that the assumption ofliabilities and indemnification provided for in this Agreement survive any termination of this Agreement. Section 2. TERM This Agreement is effective from the date of the Contract until (i) the completion of the project set forth herein, and (ii) full and complete payment to Railway of any and all sums or other amounts owing and due hereunder. ExhibitC-1 Monster Lead Wall Agreement Page 2 of8 153 Section 3. INSURANCE Contractor must, at its sole cost and expense, procure and maintain during the life of this Agreement the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000 but in no event less than the amount otherwise carried by the Contractor. Coverage must be purchased on a post 1998 ISO occurrence form or equivalent and include coverage for, but not limit to the following: + Bodily Injury and Property Damage + Personal Injury and Advertising Injury + Fire legal liability + Products and completed operations This policy must also contain the following endorsements, which must be indicated on the certificate of insurance: + The definition of insured contract must be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. + Waver of subrogation in favor of and acceptable to Railway. + Additional insured endorsement in favor of and acceptable to Railway. + Separation of insureds. + The policy shall be primary and non-contributing with respect to any insurance carried by Railway. It is agreed that any workers' compensation exclusion does not apply to Railway payments related to the Federal Employers Liability Act or a Railway Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. No other endorsements limiting coverage as respects obligations under this Agreement may be included on the policy with regard to the work being performed under this agreement. B. Business Automobile Insurance. This insurance must contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: • Bodily injury and property damage + Any and all vehicles owned, used or hired ExhibitC-1 Monster Lead Wall Agreement Page3 of8 154 The policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: + Waiver of subrogation in favor of and acceptable to Railway. + Additional insured endorsement in favor of and acceptable to Railway. + Separation of insureds. + The policy shall be primary and non-contributing with respect to any insurance carried by Railway. C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: + Contractor's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. + Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. This policy shall also contain the following endorsements or language, which shall be indicated on the certificate of insurance: + Waiver of subrogation in favor of and acceptable to Railway. D. Railroad Protective Liability insurance naming only the Railroad as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy Must be issued on a standard ISO form CG 00 35 I 0 93 and include the following: + Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 IO 93) + Endorsed to include the Limited Seepage and Pollution Endorsement. + Endorsed to remove any exclusion for punitive damages. + No other endorsements restricting coverage may be added. + The original policy must be provided to the Railway prior to performing any work or services under this Agreement In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to contractor. ExhibitC-1 Monster Lead Wall Agreement Page4 of8 155 Other Requirements: All policies (applying to coverage listed above) must not contain an exclusion for punitive damages and certificates of insurance must reflect that no exclusion exists. Contractor agrees to waive its right of recovery against Railway for all claims and suits against Railway. In addition, its insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Railway for all claims and suits. The certificate of insurance must reflect the waiver of subrogation endorsement. Contractor further waives its right of recovery, and its insurers also waive their right of subrogation against Railway for loss of its owned or leased property or property under contractor's care, custody or control. Contractor is not allowed to self-insure without the prior written consent of Railway. If granted by Railway, any deductible, self-insured retention or other financial responsibility for claims must be covered directly by contractor in lieu of insurance. Any and all Railway. liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by contractor's insurance will be covered as if contractor elected not to include a deductible, self- insured retention or other financial responsibility for claims. Prior to commencing the Work, contractor must furnish to Railway an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) must contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railway in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision must be indicated on the certificate of insurance. Upon request from Railway, a certified duplicate original of any required policy must be furnished. Contractor should send the certificate(s) to the following address: BNSF Railway Company P.O. Box 140528 Kansas City, MO 64114 Toll Free: 877-576-2378 Fax number: 817-840-7487 Email: BNSF@certfocus.com www.certfocus.com Any insurance policy must be written by a reputable insurance company acceptable to Railway or with a current Best's Guide Rating of A-and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide. Contractor represents that this Agreement has been thoroughly reviewed by contractor's insurance agent(s)/broker(s), who have been instructed by contractor to procure the insurance coverage required by this Agreement. Allocated Loss Expense must be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Railway ExhibitC-1 Monster Lead Wall Agreement Pages of8 156 may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by contractor, contractor must require that the subcontractor provide and maintain the insurance coverages set forth herein, naming Railway as an additional insured, and requiring that the subcontractor release, defend and indemnify Railway to the same extent and under the same terms and conditions as contractor is required to release, defend and indemnify Railway herein. Failure to provide evidence as required by this section will entitle, but not require, Railway to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section will not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by contractor will not be deemed to release or diminish the liability of contractor including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railway will not be limited by the amount of the required insurance coverage. For purposes of this section, Railway means "Burlington Northern Santa Fe Corporation", "BNSF RAILWAY COMP ANY" and the subsidiaries, successors, assigns and affiliates of each. Section 4. EXHIBIT C CONTRACTOR REQUIREMENTS The Contractor must observe and comply with all provisions, obligations, requirements and limitations contained in the Contract, and the Contractor Requirements set forth on Exhibit C attached to the Contract and this Agreement, , including, but not be limited to, payment of all costs incurred for any damages to Railway roadbed, tracks, and/or appurtenances thereto, resulting from use, occupancy, or presence of its employees, representatives, or agents or subcontractors on or about the construction site. Section 5. TRAIN DELAY Contractor is responsible for and hereby indemnifies and holds harmless Railway (including its affiliated railway companies, and its tenants) for, from and against all damages arising from any unscheduled delay to a freight or passenger train which affects Railway's ability to fully utilize its equipment and to meet customer service and contract obligations. Contractor will be billed, as further provided below, for the economic losses arising from loss of use of equipment, contractual loss of incentive pay and bonuses and contractual penalties resulting from train delays, whether caused by Contractor, or subcontractors, or by the Railway performing work under this Agreement. Railway agrees that it will not perform any act to unnecessarily cause train delay. Exhibit C-1 Monster Lead Wall Agreement Page 6 of8 157 For loss of use of equipment, Contractor will be billed the current freight train hour rate per train as determined from Railway's records. Any disruption to train traffic may cause delays to multiple trains at the same time for the same period. Additionally, the parties acknowledge that passenger, U.S. mail trains and certain other grain, intermodal, coal and freight trains operate under incentive/penalty contracts between Railway and its customer(s). Under these arrangements, if Railway does not meet its contract service commitments, Railway may suffer loss of performance or incentive pay and/or be subject to penalty payments. Contractor is responsible for any train performance and incentive penalties or other contractual economic losses actually incurred by Railway which are attributable to a train delay caused by Contractor or its subcontractors. ·· The contractual relationship between Railway and its customers is proprietary and confidential. In the event of a train delay covered by this Agreement, Railway will share information relevant to any train delay to the extent consistent with Railway confidentiality obligations. Damages for train delay are currently $382.20 per hour per incident. THE RATE THEN IN EFFECT AT THE TIME OF PERFORMANCE BY THE CONTRACTOR HEREUNDER WILL BE USED TO CALCULATE THE ACTUAL COSTS OF TRAIN DELAY PURSUANT TO THIS AGREEMENT. Contractor and its subcontractors must give Railway's representative (BNSF Project Engineer, 909-386-4079) eight (8) weeks advance notice of the times and dates for proposed work windows. Railway and Contractor will establish mutually agreeable work windows for the project. Railway has the right at any time to revise or change the work windows due to train operations or service obligations. Railway will not be responsible for any additional costs or expenses resulting from a change in work windows. Additional costs or expenses resulting from a change in work windows shall be accounted for in Contractor's expenses for the project. Contractor and subcontractors must plan, schedule, coordinate and conduct all Contractor's work so as to not cause any delays to any trains. ExhibitC-1 Monster Lead Wall Agreement Page 7 of8 158 Kindly acknowledge receipt of this letter by signing and returning to the Railway two original copies of this letter, which, upon execution by Railway, will constitute an Agreement between us. Contractor BNSF Railway Company By: _____________ _ By: _____________ __. Printed Name:------------ Manager Public Projects Accepted and effective this ____ day of 201_. Contact Person: ________ ...,.._ __ _ Address: -------------- City: _______________ _ State:-----Zip:-------- Phone:--------------- E-mail: ______________ _ ExhibitC-1 Monster Lead Wall Agreement Page8 of8 159 EXHIBIT D MONSTER LEAD WALL AGREEMENT TRACK WORK Remove 90 ft. of the Monster Lead Track No. 4365 Relocate Bumping Post Engineering Inspection TOTAL ESTIMATED COST BNSF WORK: 160 $25,000 1 RAILWAY Date: Michael Blomquist Toll Program Director Exhibit E RIVERSIDE COUNTY TRANSPORTATION COMMISSION 480 Lemon Street, 3rd. Floor Riverside, CA. 92502-2208 MelvfnThoma• Manager Public Projects ISNSF Railway Company 7 40 East Carnegie Drive San Bernardino, CA 92408 (909) 386-4472 (office) (909) 631-8199 (cell) (909) 366-4479 (fax) Melvln.Thomas@bnsf.com Re: Final Approval of Plans and Specifications dated....__ __________ by (consultant) (hereinafter called, the "Plans and Specifications") Dear Mr. Blomquist: This letter serves as BNSF RAILWAY COMPANY'S ("BNSF") final written approval of that portion of the Plans and Specifications covering the Project's concept for the construction of a retaining wall and footing, including the removal of a portion of the Monster Lead Track No. 4365 that will be constructed on or adjacent to BNSF's Rail Corridor. This final written approval is given to RIVERSIDE COUNTY TRANSPORTATION COMMISSION ("RCTC") pursuant to Article Ill, Section 1 of that certain Construction and maintenance Agreement between BNSF, STATE OF CALIFORNIA, and RCTC, which this Exhibit E is attached to and made a part thereof. If the Plans and Specifications are revised by RCTC subsequent to the date set forth above, this letter shall no longer serve as final written approval of the Plans and Specifications and RCTC must resubmit said Plans and Specifications to BNSF for final written approval. It is understood that the approvals contained in this letter do not cover, the approvals of plans and specifications for any falsework, shoring, and demolition that may be subsequently submitted to BNSF by RCTC or its contractor for approval. BNSF has not reviewed the design details or calculations for structural integrity or engineering accuracy. BNSF accepts no responsibility for errors or omissions in the design of the project. Respectfully, Melvin Thomas Manager Public Projects BNSF Railway 161 Exhibit F BNSF Bridge Requirements BRIDGE DESIGN, PLANS & SPECIFICATIONS: Except for the design of temporary falsework and shoring, BNSF review of the Structure plans will be limited to the vertical and horizontal clearances, sight distance for existing train signals, foundation dimensions and drainage characteristics as they relate to existing and future tracks. BNSF will not review structural design calculations for the pennanent Structure unless a member or members are influenced by railroad live loads. Temporary falsework and shoring plans and calculations must be reviewed and approved by BNSF prior to beginning construction. RCTC shall perform an independent review of the design calculations for temporary falsework and shoring prior to submitting them to BNSF for approval. Temporary construction clearances must be no less than 15 feet measured horizontally from the centerline of the nearest track and 21 feet-6 inches measured vertically from the top of rail of the most elevated track to the bottom oflowest temporary falsework member. State regulatory agencies may have more restrictive requirements for temporary railroad clearances. For the pennanent Structure, RCTC will submit plans showing the least horizontal distance from the centerline of existing and future tracks to the face of the nearest member of the proposed Structure. The location of the least horizontal distance must be accurately described such that BNSF can determine where it will occur in both the horizontal and vertical plane. . For the permanent Structure, RCTC will submit plans showing the least vertical clearance from top of paving to bottom the deck of the proposed Structure. Prior to beginning construction of the permanent Structure, the top of rail elevations should be checked and verified that they have not changed from the assumed elevations utilized for the design of the bridge. The general policy of BNSF with regard to bridge and related crash wall construction is to follow the current recommendations of the American Railway Engineering and Maintenance-of-Way Association (AREMA) Current AREMA recommended practice in Manual for Railway Engineering Chapter 8 (Art. 2.1.5.1). Prior to issuing any invitation to bid on construction of the Structure, RCTC should conduct a pre-bid meeting where prospective Contractors have the opportunity to communicate with BNSF personnel regarding site specific train speeds, train density, and general safety requirements for men and equipment working near live tracks. Any invitation to bid and specifications for the Structure must be submitted to BNSF for review and approval prior to letting of bids for the Project. BRIDGE CONSTRUCTION: After awarding the bid, but prior to the Contractor entering BNSF's railroad corridor or property, RCTC should conduct a pre-construction meeting with BNSF personnel in attendance to reiterate the safety requirements of construction activity adjacent to live tracks. During construction, BNSF may require an independent engineering inspector to be present during certain critical activities of the Project, including but not limited to: driving foundation piles, erecting falsework, construction of shoring and retaining walls, placing concrete, placing soil backfill and compaction processes. RCTC shall reimburse BNSF for all costs of supplemental inspection services. Within 90 days of the conclusion of the Project and final acceptance by BNSF and ST ATE, RCTC will provide BNSF with a complete electronic set of the bridge plans. BNSF will also accept a marked up paper copy of the Fonn 0105 Rev. 4/07/08 Page 1 of2 Monster Lead Wall Agreement 162 bridge plans labeled "As Built". The marked up paper copy of the plans will reflect any and all deviations from the original plans that occurred during construction. The electronic set of the bridge plans will be submitted in Micro Station *.dgn electronic format (preferred) or AutoCAD *.dwg format. Electronic plans are to be submitted in the original format used for CAD plan preparation and not converted to another format prior to submission. The "As Built" plans shall show actual measured "as constructed" clearances shall be shown as well as depth, size and location of all foundation components. The plans shall show dimensioned locations of existing and relocated utilities. It is understood that BNSF prefers to receive the "As Built" plans in an electronic format. BRIDGE MAINTENANCE: STATE will be responsible for maintenance and repair of the Structure including the earth retention components, embankment slopes, erosion control, surface drainage, fencing, deck drains, landscaping, paint, walkways, handrails, lighting, and other improvements associated with the Project. Fencing and other pedestrian access controls within BNSF's rail corridor and incorporated into the Project shall be designed and maintained by RCTC through construction. Trespasser control shall be the responsibility of RCTC through construction. Graffiti removal will be the responsibility of ST ATE. BRIDGE INSPECTION: STATE will conduct annual routine structural inspections. In the event of an earthquake, fire, flood, damage from vehicular impacts or other emergent situations, ST ATE will provide an immediate inspection by qualified personnel and notify BNSF of damage that may affect safe passage of trains. If necessary ST ATE will embargo weights or provide lane closures or other such measures to protect the structural integrity of the Structure such that there can be continuous safe passage of trains until repairs are made. BRIDGE ALTERATIONS: Except as provided otherwise by this Agreement, there will be no alterations made to the Structure that will alter the railroad vertical or horizontal clearances provided by the original design. It is expressly understood by RCTC and STATE that the right to install utilities is restricted to the placement of underground utilities beneath BNSF's tracks located a minimum of fifty (50) feet from abutments, piers, piles, or footings with the exception that upon BNSF's prior approval BNSF will permit selected utilities to be installed closer to the abutments, piers, piles, footings and/or run through the deck of the Structure. Under no circumstances will utilities be allowed to hang from the Structure. All utility crossings within the limits of BNSF's Rail Corridor will be covered by separate agreements between BNSF and each of the owners of the utilities. Page 2 of2 Monster Lead Wall Agreement Form 0105 Rev. 4/14/05 163 EXHIBIT "G" BUY AMERICA REQUIREMENTS BNSF agrees to comply and to require its contractors to comply with the "Buy America" requirements set forth in the lntermodal Surface Transportation Efficiency Act of 1991 (ISTEA) Sections 1041(a) and 1048(a), 23 U.S.C. 313 and 23 C.F.R. Part 635.410, which are incorporated into this Agreement by reference, and which require that all steel, iron, and manufactured products used in FHWA-funded projects are produced in the United States, unless a waiver has been granted by FHWA or the product is subject to a general waiver. In conformance with the foregoing specified laws and regulations, all manufacturing processes for steel and iron materials furnished for incorporation into the Work shall occur in the United States; with the exception that pig iron and processed, pelletized and reduced iron ore manufactured outside of the United States may be used in the domestic manufacturing process for such steel and iron materials. The application of coatings, such as epoxy coating, galvanizing, painting, and other coating that protects or enhances the value of steel or iron materials shall be considered a manufacturing process subject to the "Buy America" requirements. The Buy America requirements do not prevent a minimal use of foreign steel and iron materials if the total combined cost of the materials used does not exceed one-tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever is greater. BNSF shall maintain documentation of the quantity and value of the foreign steel and iron prior to incorporating the materials into the work, if any. 164 AGENDA ITEM 9 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 24, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Mark Lancaster, Acting Right of Way Manager THROUGH: Marlin Feenstra, Project Delivery Director SUBJECT: On-Call Property Maintenance and Repair Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve the following agreements to provide on-call property maintenance and repair services for a three-year term plus two one-year options to extend the agreement, in an amount not to exceed an aggregate value of $1.5 million; a) Agreement No. 14-33-046-00 with Braughton Construction, Inc.; b) Agreement No. 14-33-047-00 with Carry-All; c) Agreement No. 14-33-048-00 with Joshua Grading and Excavating, Inc.; and d) Agreement No. 14-33-063-00 with Real Estate Consulting & Services, Inc. 2) Authorize the Executive Director, or designee, to execute task orders awarded to contractors under the terms of the agreements; 3) Authorize the Chair or Executive Director, pursuant to legal counsel review, to execute the agreements, including option years, on behalf of the Commission; and 4) Forward to the Commission for final action. BACKGROUND IN FORMATION: The Commission's Right of Way Department is responsible for the maintenance and management of over 600 real estate parcels throughout Western Riverside County varying in size from one to fifty-five acres. Certain parcels are developed and others are vacant land. The Commission-owned properties must be maintained in accordance with relevant codes, regulations, and local ordinances including timely responses to local code enforcement citations and scheduled seasonal fire abatement requirements. The Commission requires the services of one or more qualified contractors to provide a variety of maintenance and repair services for Commission-owned properties, parcels, and appurtenances. The agreements for the current on-call bench of contractors are set to expire in April 2014. In order to maximize competitive pricing and provide adequate resources to address the sizeable and varied workload, staff recommends the establishment of a new on-call bench to provide weed abatement, vegetation control, litter and debris removal, and fence and sign repair services. Agenda Item 9 165 A task order type of contract was chosen because the nature and scope of the anticipated services are clear; however, the timing, quantity, and delivery of the required services are uncertain. Further, the competitive task order format ensures the Commission is receiving a fair and reasonable price for services provided under each task order awarded by the Commission. Procurement Process This procurement was conducted in accordance with established Commission procurement policies and procedures. Staff determined the competitively negotiated procurement method was appropriate for these services as it allows the Commission to identify the most advantageous proposal with price and technical factors considered. Minimum qualifications required of each potential proposer were established, and staff developed a weighted evaluation criterion, including price. Non-price elements of the evaluation criteria included experience in performing similar work, relative qualifications of project staff, proposed work plan, and the proposer's ability to respond to the requirements set forth under the terms of the request for proposal (RFP). RFP No. 14-33-046-00 was released and advertised by staff on October 24, 2013. Staff responded to all questions submitted by potential proposers prior to the November 21 deadline date. Four firms -Braughton Construction, Inc.; Carry-All; Joshua Grading and Excavating, Inc.; and Real Estate Consulting & Services, Inc. -submitted responsible and responsive proposals prior to the December 5 submittal deadline. Utilizing the evaluation criteria set forth in the RFP, all firms were evaluated and scored by an evaluation committee comprised of Commission and Bechtel staff. Based on their overall score according to the evaluation criteria listed in the RFP, the evaluation committee recommends all four firms for award of property maintenance and repair services. Conclusion Multiple award, on-call, and task order type contracts do not guarantee work to any of the awardees; therefore, no funds are guaranteed to any consultant. Consultants will be selected for specific tasks based on the information contained in their proposals. Services will be provided through the Commission's issuance of contract task orders to the consultants on an as-needed basis. Staff oversight of the contract will work to maximize the effectiveness of the consultant and minimize the costs to the Commission. The recommended awardees' labor rates were competitively established and considered fair and reasonable based upon adequate price competition under the above referenced procurement process and staff evaluation of historical costs paid by the Commission for the same or similar services. Staff is confident the recommended firms will provide the Commission with quality service at a fair price. Agenda Item 9 166 Staff recommends the award of Agreement No. 14-33-046-00 to Braughton Construction, Inc.; Agreement No. 14-33-047-00 to Carry-All; Agreement No. 14-33-048-00 with Joshua Grading and Excavating, Inc.; and Agreement No. 14-33-063-00 with Real Estate Consulting & Services, Inc. to provide on-call property maintenance and repair services for a three-year term plus two one-year options, in an amount not to exceed an aggregate value of $1.5 million. Financial Information In Fiscal Year Budget: Yes Year: FY 2013/14 Amount: $ 150,000 N/A FY 2014/15+ $ 1,350,000 Source of Funds: I Meaure A, Federal, and State Budget Adjustment: I No N/A 332402 733XX 221 33 73301 GL/Project Accounting No.: 622402 733XX 262 31 73301 312402 733XX 222 31 73301 Fiscal Procedures Approved: ~~ I Date: I 02/13/14 Agenda Item 9 167 AGENDA ITEM 10 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 24, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Henry Nickel, Staff Analyst Sheldon Peterson, Rail Manager THROUGH: Robert Yates, Multi modal Services Director Proposition lB Fiscal Year 2012/13 California Transit Security Grant SUBJECT: Program -California Transit Assistance Fund and Supporting Resolution for the Commission's Commuter Rail Program STAFF RECOMMENDATION: This item is for the Committee to: 1) Adopt Resolution No. 14-012, "Resolution of the Riverside County Transportation Commission Approving the Allocation of FY 12-13 Proposition 18-6561-0002 California Transit Security Grant Program-California Transit Assistance Funds to the RCTC Commuter Rail Program and Designation of Authorized Agent''; 2) Allocate the California Transit Security Grant Program-California Transit Assistance Funds (CTSGP-CTAF) funds totaling $355,748 for the Commission's Commuter Rail Program; and 3) Forward to the Commission for final action. BACKGROUND INFORMATION: The Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006, approved by the voters as Proposition lB in November 2006, includes a program of funding in the amount of $1 billion to be deposited in the Transit System Safety, Security, and Disaster Response Account (TSSSDRA). Sixty percent of those funds are being made available for eligible transit system safety and security projects under the CTSGP-CTAF. The CTSGP-CTAF is administered by the Governor's Office of Homeland Security (OHS). Of these funds, 50 percent shall be allocated by the State Controller to eligible transit agencies using the formula in Section 99314 of the Public Utilities Code (operator allocation), and 50 percent shall be allocated by the State Controller to regional transportation agencies such as the Commission using the formula in Section 99313 of the Public Utilities Code (population allocation), subject to the provisions governing funds allocated under those sections. For the current fiscal year, the Commission expects to receive $1,553,822 in total population funds per Section 99313. The Commission is responsible for calculating eligible amounts for Agenda Item 10 168 each project sponsor under its authority. The transit agencies within Riverside County will receive the CTSGP-CTAF non-discretionary operator funds totaling $231,221, as identified in Attachment 2, directly from the State Controller per Section 99314. These funds are designated to be used for transit capital projects that provide increased protection against a security or safety threat including, but not limited to, the following: • Construction or renovation projects that enhance security of public transit stations or other transit facilities; • Explosive device mitigation and remediation equipment; • Chemical, biological, radiological, and nuclear explosives search, rescue, or response equipment; • Interoperable communications equipment; • Physical security enhancement equipment; • Installation of fencing, barriers, etc. to improve security at transit stations or other transit facilities; • Capital expenditures to increase the capacity of transit operators to develop disaster response transportation systems that can move people, equipment, etc. in the aftermath of a disaster; or • Other security related projects approved by the OHS. Funds will be allocated directly to the project sponsors upon Commission approval. Project sponsors have three years to complete all eligible projects. The OHS is requiring a resolution from the Commission regarding the allocation of population funds for Western Riverside County rail per Section 99313. This resolution is needed in order to successfully complete the grant submittal process for the Commission's rail program. Attachment 1 is Resolution No. 14-012 to approve and authorize the Commission, as the rail project sponsor, to apply for the CTSGP-CTAF population funds through the OHS. Subsequent resolutions for the bus transit operators will be submitted following approval by their Boards or city councils. Financial Impact Since the funds are directly allocated to the project sponsor, the only Commission financial impact is for the allocation of funds to the Commuter Rail Program in Riverside County, estimated at $355, 748, comprised of $271, 728 of population funds per Section 99313 and $84,020 of operator funds per Section 99314. These funds will be included in the FY 2014/15 Commission budget and shall be used to provide updated security and surveillance capabilities at the Commission's Metrolink stations. Agenda Item 10 169 Financial Information In Fiscal Year Budget: I N/A Vear: I FY 2014/15 Amount: $355,748 Source of Funds: I Prop lB CTSGP-CTAF Funds Budget Adjustment: I N/A GLA No.: 1004012 415 41507 265 33 41502 Fiscal Procedures Approved: 1~~ I Date: I 02/13/14 Attachments: 1) Resolution 14-012 of Approval and Authorization 2) Recommended Prop lB-Security Fund Distribution by Operator Agenda Item 10 170 ATIACHMENT 1 RESOLUTION NO. 14-012 RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION APPROVING THE ALLOCATION OF FY 12-13 PROPOSITION lB-6561-0002 CALIFORNIA TRANSIT SECURITY GRANT PROGRAM- CALIFORNIA TRANSIT ASSISTANCE FUNDS TO THE RCTC COMMUTER RAIL PROGRAM AND DESIGNATION OF AUTHORIZED AGENT WHEREAS, the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006 authorizes the issuance of general obligation bonds for specified purposes, including, but not limited to, funding made available for capital projects that provide increased protection against security and safety threats, and for capital expenditures to increase the capacity of transit operators to develop disaster response transportation systems; and WHEREAS, the California Governor's Office of Emergency Services (Cal OES) administers such funds deposited in the Transit System Safety, Security, and Disaster Response Account under the California Transit Security Grant Program (CTSGP); and WHEREAS, the Riverside County Transportation Commission (RCTC) is eligible to receive CTSGP funds; and WHEREAS, RCTC will apply for FY 12-13 CTSGP funds in an amount up to $355,748 for a Digital Camera Conversion to provide updated security and surveillance capabilities at all Riverside County Metrolink Stations; and WHEREAS, RCTC recognizes that it is responsible for compliance with all Cal OES CTSGP grant assurances, and state and federal laws, including, but not limited to, laws governing the use of bond funds; and WHEREAS, Cal OES requires RCTC to complete and submit a Governing Body Resolution for the purposes of identifying agents authorized to act on behalf of RCTC to execute actions necessary to obtain CTSGP funds from Cal OES and ensure continued compliance with Cal OES CTSGP assurances, and state and federal laws. NOW, THEREFORE IT BE RESOLVED THEREFORE, IT IS HEREBY RESOLVED BY THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION THAT SHELDON PETERSON, RAIL PROGRAM MANAGER, AND/OR HIS DESIGNEE, is hereby authorized to execute for and on behalf of RCTC, a public entity established under the laws of the State of California, any actions necessary for the purpose of obtaining financial assistance provided by the California Governor's Office of Emergency Services under the CTSGP. 171 APPROVED AND ADOPTED this 12th day of March 2014. Marion Ashley, Chair Riverside County Transportation Commission ATTEST: Jennifer Harmon, Clerk of the Board Riverside County Transportation Commission 172 ATTACHMENT 2 FY 2012/13 California Transit Security Program (Prop 1 B) Funding Allocation California Emergency Management Agency (A) (B) (A+B) City of Banning City of Beaumont City of Corona City of Riverside Riverside Transit Aqencv City of Banning City of Beaumont City of Corona City of Riverside Riverside Transit Aaencv Issued: November, 2012 Western Riverside* Bus 963,401 18,016 18,016 36,995 46,147 844,228 74,455 1,182 717 2,577 2,327 67,652 $1,037,856 I Rail 271,728 84,020 $355,748 Coachella Valley 300,062 71,808 $371,870 Population Source: California Department of Finance, Demographic Research Unit (1/1/11) Area Population % Western Riverside 1,762,906 79.49% Coachella Valley 428,280 19.31% Palo Verde Valley 26,592 1.20% Total 2,217,778 100.00% *For Western Riverside: Bus Services (78%), Rail Services (22%) jsc: updated 11/5/12 173 Palo Verde Valley Total 18,631 1,553,822 938 231,221 $19,569 $1,785,043 AGENDA ITEM 11 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: February 24, 2014 TO: Western Riverside County Programs and Projects Committee FROM: Jennifer Harmon, Office and Board Services Manager THROUGH: John Standiford, Deputy Executive Director SUBJECT: Election of Officers STAFF RECOMMENDATION: This item is for the Western Riverside County Programs and Projects Committee to conduct an election of officers for 2014 -Chair and Vice Chair. BACKGROUND INFORMATION: The election of officers for the full Commission and its Committees are held on an annual basis. Commissioners Andrew Kotyuk and Frank Johnston were elected as the Western Riverside County Programs and Projects Committee's officers in March 2013. Once the election has been conducted, the new Chair and Vice Chair will immediately assume the positions. Past Chairs of the Western Riverside County Programs and Projects Committee are as follows: 2013 -Andrew Kotyuk, City of San Jacinto 2012 -Adam Rush, City of Eastvale 2011-Darcy Kuenzi, City of Menifee 2010 -Karen Spiegel, City of Corona Past Chairs of the Plans and Programs Committee are as follows: 2009 -Bob Botts, City of Banning 2008 -Frank West, City of Moreno Valley 2007 -Patrick Mullany, City of Indian Wells 2006 -Daryl Busch, City of Perris 2005 -Michael H. Wilson, City of Indio 2004 -Frank Hall, City of Norco 2003 -Dick Kelly, City of Palm Desert 2002 -Daryl Busch, City of Perris 2001-Percy L. Byrd, City of Indian Wells 2000 -Robin Lowe, City of Hemet Agenda Item 11 174