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HomeMy WebLinkAbout1996-01-16 City Council (24)City of Palo Alto 1V anager’s Summary Rep r TO:HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: ADMINISTRATIVE SERVICES AGENDA DATE: JANUARY 16, 1996 CMR:116:96 SUBJECT:ALMA STREET/WEST MEADOW DRIVE AND ALMA STREET/CHARLESTON ROAD EASEMENTS PURCHASE FROM PENINSULA CORRIDOR JOINT POWE~ BOARD, CIP 19073 REQUEST This report requests Council review and approval for the purchase of two easements on property owned by the Peninsula Corridor Joint Powers Board (JPB) at the intersections of Alma Street/West Meadow Drive and Alma Street/Charleston Road. RECOMMENDATION Staff recommends that Council approve and authorize the Mayor to execute the two easements. POLICY IMPLICATIONS Acquisition of the easements does not represent any changes to existing. City policy. EXECUTIVE SUMMARY On March 15, 1992, the Council approved and entered into an agreement with Southern Pacific Transportation Company and the Peninsula Corridor Joint Powers Board, for the construction of turn lanes and pedestrian crossing improvements at two intersections, Alma Street/West Meadow Drive and Alma Street/Charleston Road (CMR: 181:92 dated March 12, CMR:116:96 Page 1 of 5 1992). The temporary agreement was made with the understanding that permanent easements and payment for the use of the railroad right-of-way would be negotiated and agreed to at a later date. An independent appraiser established the market value for the easements at both intersections at $58,000. On November 2, 1995 the Board of Directors of the JPB approved the easements. The documents were signed by the JPB Executive Director and forwarded to the City for review and approval by Council. The easements are attached. FISCAL IMPACT One hundred thousand dollars was previously approved for the purchase of the easements, as part of the 1990-91 Major Intersection Capital Improvement Program (CIP) 19073 budget. The appraised value of the easements was established at $58,000. ENVIRONMENTAL IMPACT The improvements to the two intersections were previously designated as categorically exempt from the California Environmental Quality Act (CEQA) under Section 15301 of the CEQA guidelines. ATTACHMENTS/EXHIBITS Attachment 1 (Alma Street/West Meadow Drive Easement) Attachment 2 (Alma Street!Charleston Road Easement) PREPARED BY: William W. Fellman, Manager, Real Property DEPARTMENT HEAD APPROVAL: CITY MANAGER APPROVAL: Emily Harrison Deputy City Manager Administrative Services J{n~’Fleming ("/ City Manager CC:Tom Davids, JPB, Property Manager CMR:116:96 Page 2 of 5 ALMA STREET/WEST MEADOW DRIVE AND ALMA STREET/CHARLESTON ROAD EASEMENTS PURCHASE FROM PENINSULA CORRIDOR JOINT POWERS BOARD, CIP 19073 RECOMMENDATIONS This report requests Council review and approval of the purchase of two easements on property owned by the Peninsula Corridor Joint Powers Board (J-PB) at the Alma Street/West Meadow Drive and Alma Street!Charleston Road intersections. BACKGROUND In 1987, the Citywide Land Use and Transportation Study identified approximately 40 street intersections in Palo Alto in need of improvement. Alma Street/West Meadow Drive and Alma Street/Charleston Road were listed as high priority intersections. A Major Intersection Improvement CIP (19073) was established, and funds were budgeted for improvements to the two intersections in FY 1989-90 through 1992-93. The work at the two intersections was completed in December 1992, and included turn lanes, rubberized railroad grade crossings, warning devices, pedestrian gates, new traffic signals and street resurfacing. On March 15, 1992 (CMR:181:92) and on November 5, 1992 (CMR:492:92), Council approved and authorized the Mayor to execute an agreement between the City of Palo Alto, . the Southern Pacific Transportation Company and the Peninsula Corridor JPB for the installation and maintenance of automatic pedestrian gate-type signals at the Alma Street/West Meadow Drive and Alma Street/Charleston Road railroad crossings. On November 5, 1992 (CMR:494:92), Council approved and authorized the Mayor to execute a Right-of-Entry Permit issued by the JPB, thereby authorizing the City’s contractor to construct the remaining improvements in the Alma Street/West Meadow Drive railroad right- of-way. All the temporary agreements were made with the understanding that permanent easements and payment for the use of railroad right-of-way would be negotiated and agreed to at a later date. CMR:116:96 Page 3 of 5 As a condition of development, the Architectural Review Board required landscaping and fencing adjacent to the railroad tracks at the Alma Street/Charleston Road intersection. The JPB refused to allow the landscaping and fencing to be installed until the conditions of the grant of easements were resolved. Descriptions of both of the turn lanes and each of the three landscape areas were prepared by the City surveyor, and Appraisal Research Corporation (ARC) established a value of $58,000 for the easements, as of May 1, 1994. ARC’s breakdown of valuation at each of the intersections is as follows: Alma Street/West Meadow Drive Alma Street/Charleston Road Alma Street/Charleston Road (roadway) (roadway) (landscape) 2,388 sq.ft. = $15,044 3,690 sq.ft. = $23,247 3.130 sq.ft. = $19.719 Rounded to $58,000 The JPB staff accepted the valuation and eventually drained the attached easements, one for each of the two intersections. DISCUSSION Except for the descriptions and the specific value attributed to each site, the easements are identical. They are exclusively for turn lane use and do not convey the right for any other City use. They allow the JPB to convey additional uses within the same area, as long as those uses do not interfere with the City’s use. The documents also require the City to indemnify the JPB, its member agencies, Southern Pacific Transportation Company and Amtrak, from and against any and all claims, demands, losses, damages, causes of action, suits and liabilities of every kind, arising out of, or in connection with, the use as a turn lane. In addition to the standard insurance requirements, the documents require the City to obtain $2 million of railroad protective liability insurance. The easements may also be terminated for non-use, for any breach of the agreement, or the turn lanes may be relocated or modified at the expense of the City, should the JPB require the easement area or any portion of the area for expansion or modification of its facilities. FISCAL IMPACT One hundred thousand dollars was included in the 1990-91 Major Intersection CIP 19073, for the purchase of the easements. The total appraised value for both easements is $58,000. CMR:116:96 Page 4 of 5 ENVIRONMENTAL ASSESSMENT: The improvements to the two intersections were previously designated as categorically exempt fi’om the California Environmental Quality Act (CEQA), under Section 15301 of the CEQA quidelines. STEPS FOLLOWING APPROVAL Staff proposes to have the landscaping installed at the Alma Street/Charleston Road intersection within the calendar year. CMR:116:96 Page 5 of 5 ATTACHMENT 1 GRANT OF EASEMENT ALMA/WEST MEADOW TURN LANE RECORDING REQUESTED BY: This document is recorded for the benefit of the City of Palo Alto and is entitled to be recorded free of charge in accordance with Section 6103 of the Government Code. This instrument is exempt from Documentary Transfer Tax (Rev. and Tax. Code § 11922). After recordation, mail to: CITY PALO ALTO/REAL ESTATE 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 SPACE ABOVE THIS LINE FOR RECORD~R’S USE----- A.P. No.: Parcel No. Project: One Alma/West Meadow Turn Lane GRANT OF EASEMENT AND AGREEMENT THIS AGREEMENT made as of this day of , 1995 ("Effective Date"), by and between PENINSLri~ CORRIDOR JOINT POWERS BOARD, a joint powers agency formed pursuant to California law ("JPB" or "Grantor") and the CITY OF PALO ALTO, a municipal corporation ("Grantee"). RECITALS A. Grantor is the owner of that certain real property which is located in the City of Palo Alto, State of California, and is more particularly described on the map attached hereto and incorporated by this reference as Exhibit A (the "Property"). B. Grantee desires to obtain certain non-exclusive easement rights from Grantor over that certain portion of the Property more particularly described in the legal description and map attached hereto and incorporated by this reference as Exhibit B ("Easement Area") for the purposes of constructing a roadway turn lane and installing landscaping improvements (the "Project"). 196733. I C. Grantee and Grantor wish to allocate the risks of injury and damage that may result from the use of the Property as the result of the Project. D. Grantee, upon completion of the work, is willing, to assume maintenance and repair of the Project thereafter. E. Grantor is willing to grant an easement to Grantee on the terms and conditions hereinafter set forth. FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties agree as follows: i. Grant of Easement° Grantor does hereby grant and convey to Grantee, its successors and assigns, a non-exclusive easement to construct, install, maintain, repair, remove, replace and operate a roadway turn lane for use by the general public and associated landscaping improvements to be constructed on the Easement Area. The Easement is granted on the express condition that the use of the Property pursuant to this Agreement shall not interfere with Grantor’s passenger commute rail operations and nothing contained herein permits or authorizes, and this agreement expressly prohibits, any such interference. Nothing herein is intended to expand Grantee’s use of the Easement beyond those rights expressly contemplated in this Agreement. 2. Term. The term of this Easement shall commence upon the Effective Date of this Agreement. The Easement shall be perpetual in term, unless terminated under the terms of this Agreement° Grantor may terminate this Agreement for cause upon giving Grantee 90 days written notice of termination. Valid cause for termination shall include, but not be limited to, interference with rail operations, the impairment of the safety of rail service, or other activities which constitute a public or private nuisance° This easement shall terminate upon the expiration of the 90 notice period unless Grantee, to the reasonable satisfaction of Grantor, cures the situation causing the nuisance or other disruption within that period, or, if the resolution of the situation requires a period of more than 90 days to remedy, promptly initiates the cure and diligently proceeds to complete the remedy of the situation to the reasonable satisfaction of Grantor.. Upon termination, Grantor shall refund to Grantee the consideration paid under Section 14 herein° In the event Grantee, its successors or assigns abandon said Easement or said Project or fail to use such Easement for the purposes contemplated herein for a period of one (i) year, the right hereby given shall cease to the extent of the use so abandoned or discontinued. Upon termination or abandonment, Grantors shall have the right, in addition to but not in qualification of the rights hereinabove reserved, to resume exclusive possession of said Property or part thereof, the use of which is so discontinued or abandoned. Upon termination or abandonment of the rights and privileges hereby granted, Grantee, at its own cost and expense, agrees to remove any improvements made in furtherance of the Project and restore the Property as nearly as practicable to the same state and condition in which it existed prior to the construction of the Project. Should Grantee in such event fail, neglect or refuse to remove the Project and restore the Property, such removal or restoration may be performed by Grantor, at the expense of Grantee, which expense Grantee agrees to pay to Grantor upon demand. 3. Use by Grantee. The Easement is limited to the following uses: the right to construct, install, maintain, repair, remove, replace and operate a roadway turn lane for use by the general public and associated landscaping improvements to be constructed on the Easement Area. Grantee’s use of the Easement shall not materially interfere with Grantor’s use of the Property, including its operation of its passenger commute rail service. Prior to engaging in activities that could affect the track area, Grantee agrees to give Grantor 20 days written notice. Grantee agrees to keep the Property and the Project in good and safe condition, free from waste, so far as affected by Grantee’s operations, to the reasonable satisfaction of Grantor. If Grantee fails to keep the Property and the Project in good and safe condition, free from waste, then after giving Grantee reasonable notice of the situation and a right to cure it in a reasonable time, Grantor may perform the necessary work at the expense of Grantee, which expense Grantee agrees to pay to Grantor upon demand. 4. Permit Fees. Prior to the execution of this Agreement, Grantee shall pay to Grantor the standard processing fee of $900.00. 5. Prior Riqhts. This grant is made subject and subordinate to the prior and continuing right and obligation of Grantor, its successors, assigns and permittees to use all of the Property in the performance of its transportation operations. There is reserved unto Grantor, its successors, assigns and permittees, the right to construct, reconstruct, maintain, use, repair, renew, change, modify or relocate existing and future facilities andappurtenances, including, without limitation, transportation, communication (including fiber optic telecommunication systems), railroad and pipeline facilities and appurtenances in, upon, over, under, across and along the Property. This grant is made subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, 196733. I - 3 - liens and claims of title which may affect the Property in effect as of the Effective Date° The word "grant" shall not be construed as a covenant against the existence of any of these. The Easement includes incidental rights of maintenance, repair and replacement over the Easement Area. In exercising these rights, Grantee must use reasonable care and may not increase the burden on the Property or make any other material changes to the Property not consistent with Grantee’s uses of the Property set forth in sections 1 and 3 of the Agreement. It is expressly agreed by the parties that Grantor, its successors and assigns, may, in the future, construct additional railroad tracks or other transportation facilities on the right of way, which may require the use of all or a portion of the Property including the Easement area, that this work may increase Grantee’s costs of repair and/or replacement of the Project, and that any additional costs resulting from such construction shall be borne by Grantee° 6. Relocation/Modification of Project, Easement.Grantee agrees that in the event Grantor determines that the expansion or modification of Grantor’s facilities in the transit corridor require relocation and/or modification of the Project, in whole or in part, Grantee shall, as appropriate, relocate or modify (or both) the Project at the sole cost of Grantee. Grantor agrees that in the event an alternative or realigned easement is required as the result of the relocation, it shall grant to Grantee such alternative or realigned easement of property, but only to the extent Grantor actually owns or controls such rights, pursuant to a recordable instrument on the same terms and conditions as provided herein° Grantee shall quitclaim its interest in that portion of the prior Easement to Grantor concurrently with the grant of the alternative easement, if any° In the event sufficient Grantor-owned property is not available for the relocation of Grantee’s facilities, Grantor shall have no further obligation to Grantee to provide property for the Project° 7. Fiber Optics Systems and Underqround Facilities° The rights granted by this Agreement are subject to the rights of Grantor (or anyone acting with the permission of Grantor) to construct, reconstruct, maintain and operate fiber optic and other telecommunications systems, pipelines and other utility systems in, upon, along, across and beneath the Property and rights-of-ways of Grantor, including the property through which the Project shall be constructed. Since there is the possibility of the existence of the JPB’s signal lines, fiber optics systems, pipelines or other structures beneath the property, if Grantee should excavate or drill, then Grantee’s forces shall identify such structures and explore such structures in a non-destructive manner. Potholing shall be done by vacuum removal, by means of Softdig, Inc. or equivalent contractor. As an alternative, Grantee may explore facilities with hand tools to a depth of at least eight feet (8’) below the surface of the ground or, at Grantee’s option, use suitable detection equipment prior to drilling or excavating with mechanized equipment. Absence of markers does not constitute a warranty by Grantor of no subsurface installations. Prior to Grantee’s commencement of work upon the Project, Grantor shall notify Grantee of any underground structures of which Grantor has actual knowledge, without engaging in independent investigation. Notwithstanding the foregoing, it shall be Grantee’s responsibility to determine the existence .of any underground facilities and Grantee shall call Underground Service Alert at 1- 800-642-3444 prior to beginning any work on the Property. Grantee shall contact any utility or carrier who has installed markers on the property° In addition Grantee shall also contact Grantor’s passenger service operator, Amtrak, which can determine the location of railroad signal wires. If there are such underground facilities, Grantee will contact the owner of such facilities and make satisfactory arrangements for relocation or other protection for the system prior to beginning any work on the Property° Grantee agrees to reimburse Grantor and/or the owner(s) of the fiberoptic systems or other facilities which are present on the Property as of the date of this Agreement for all expenses which either may incur, which expenses would not have been incurred except by reason of the use of said premises by Grantee, its agents, employees or invitees, including relocation costs or any damages incurred by such owner due to the injury to the systems. 8. Claims. Claims, injuries, deaths, property damages and losses arising out of or connected with the Easement shall be investigated, adjusted, defended and, if required, paid by Grantee° 9. Indemnification. Grantee agrees to and shall indemnify, defend and hold harmless JPB, its member agencies (the San Mateo County Transit District, the City and County of San Francisco and the Santa Clara County Transit District), Southern Pacific Transportation Company and the Nationa! Railroad Passenger Corporation ("Amtrak"), their respective directors, officers, agents, and employees (hereinafter collectively referred to as "Indemnitees") from and against any and all claims, demands, losses, damages, causes of action, suits, and liabilities of every kind (including reasonable attorney’s fees, court costs, and other expenses related thereto) arising out of or in connection with the use of the Property by Permittee, its contractors, invitees, agents or employees under this Agreement. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH GRANTEE AND JPB, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH 196T~3. I - 5 - INDEMNIFIES THE INDEMNITEES FOR THEIR OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS ACTIVE OR PASSIVE, OR IS THE SOLE OR A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE PROVIDED THAT SAID INDEMNITY SHALL NOT PROTECT INDEMNITEES FROM LIABILITY FOR DEATH, INJURY OR DAMAGE ARISING SOLELY OUT OF THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF INDEMNITEES. i0. Insurance. Any person, firm or corporation Grantee authorizes to work upon the Property, including any subcontractor, shall be deemed to be Grantee’s agent and shall be subject to all the applicable terms of this Agreement. Prior to entry upon the Property by such agents, Grantee shall provide Grantor with satisfactory evidence (e.g. in the form of a Certificate of Insurance) that it and/or its contractors or other agents who will obtain access to the Property pursuant to this Agreement are insured in accordance with the following, which insurance shall remain in effect throughout the term of this Agreement and shall be at the sole cost and expense of Grantee (or its agents). Prior to the start of the work or entry onto the Property, Grantee agrees to procure and maintain, and/or to require its contractor(s) to procure and maintain, at its (or its contractors’) sole cost and expense (and to prove to Grantor’s reasonable satisfaction that it remains in effect throughout the work), the kinds of insurance described below: (a) Insurance. Workers’ Compensation and Employers’ Liability Grantee shall procure and maintain and shall require its contractor(s) to procure the payment of Workers’ Compensation and/or Federal Employers’ Liability Act Coverage (FELA) (whichever is applicable) to its employees, as required by the Federal Employers’ Liability Act of 1908 applying to instate railroad employees or as required by Section 1860 of the California Labor Code (Chapter i000, Statutes of 1965), or any subsequent amendments or successor acts thereto governing the liability of employers to their employees. If Workers’ Compensation applies, it shall be in accordance with the provisions of Section 3700 of the California Labor Code (and any amendments thereto or successor acts or statutes) and the Grantee shall furnish Licensor with a certificate evidencing such coverage together with a verification thereon as follows: "I am aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against a liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of work under this Agreement." If the California Labor Code requiring Workers’ Compensation applies, the Grantee shall also maintain Employer’s Liability coverage with minimum limits of $5,000,000.00. If FELA applies, it shall be in accordance with federal statutes and have minimum limits of $5,000,000 per occurrence. The Grantee shall provide evidence of coverage or self-insurance together with a verification thereon as follows: "I am aware of the provisions of the Federal Employers’ Liability Act, and I will comply with such provisions before commencing the performance of work under this Agreement." Whether FELA or Workers’ Compensation applies, the Grantee shall furnish the Grantor with the Certificate(s) of Insurance required hereunder prior to the commencement of work° The Certificate shall also provide that the Grantee’s policy will not be cancelled or have coverage reduced without thirty (30) days’ prior written notice. (b) Commercial General Liability Insurance. Grantee shall, at its own cost and expense, also procure and maintain and/or require its contractors, at their own cost and expense, to procure and maintain Commercial General Liability insurance which shall include as additional insureds the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the Santa Clara County Transit District, the San Mateo County Transit District, the~Southern Pacific Transportation Company, the National Railroad Passenger Corporation ("Amtrak") and their respective directors, officers, employees and agents while acting in such capacity, and their successors or assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally. Insurance shall provide bodily injury and property damage coverage with a combined single limit of at least $2,000,000.00 each occurrence or claim and a general aggregate limit of at least $2,000,000.00. This insurance shall include but not be limited to premises and operations; contractual liability covering the indemnity provisions contained in this Agreement; personal injury; explosion, collapse, and underground coverage, products and completed operations, and broad form property damage° Prior to commencing work or entering onto~the Property, Grantee shall file a Certificate(s) of Insurance with the Assistant to the Executive Director of the JPB evidencing coverage, and upon request, a certified duplicate original of the policy. Said Certificate(s) shall stipulate: (i) The insurance company(ies) issuing such policy(ies) shall give written notice to the Assistant to the Executive Director of the JPB of any material alteration, or reduction in aggregate limits, if such limits apply, and provide at least thirty (30) days’ notice of cancellation° (2) That the policy(ies) is Primary Insurance and the insurance company(ies) providing such policy(ies) shall be liable thereunder for the full amount of any loss or claim which Grantee is liable for under this Section, up to and including the total limit of liability, without right of contribution from any other insurance effected or which may be effected by the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the San Mateo County Transit District, the Santa Clara County Transit District, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak")o (3) Thepolicy shall also stipulate: Inclusion of the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the San Mateo County Transit District, the Santa Clara County Transit District, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak") as additional insureds shall not in any way affect its rights either as respects any claim, demand, suit or judgment made, brought or recovered against the Grantee° Said policy shall protect Grantee and the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the Santa Clara Transit District, the San Mateo County Transit District, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak") in the same manner as though a separate policy had been issued to each, but nothing in said policy shall operate to increase the insurance company’s liability as set forth in its policy beyond the amount or amounts shown or to which the insurance company would have been liable if only one interest had been named as an insured° Required:(C) Railroad’s Protective Liability Insurance° Yes x__~_ No The Grantee shall provide and/or require its contractors to provide, with respect to the operations it or any of its contractors perform above the railroad tracks or within fifty (50) feet horizontally of the railroad tracks, Railroad’s Protective Liability Insurance with either the AASHO policy form or the ISO/RIMA form with pollution coverage for job site fuels and lubricants° The named insured shall be the Peninsula Corridor Joint Powers Board, the San Mateo County Transit District, the Santa Clara County Transit District, the City and 196733.1 - 8 - County of San Francisco, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak") and shall cover all other railroads operating on the right-of-way. The policy shall have limits of liability of not less than $ 2,000,000.00 per occurrence, combined single limit, for Coverages A and B, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, including the loss of use thereof. A $6,000,000 annual aggregate will apply. Prior to commencing work or entering onto the Property, Grantee shall file an original or a duplicate original of the policy for Railroad Protective Liability with the Assistant to the Executive Director of the JPB. This coverage can be purchased by Grantee under Grantor’s blanket railroad protective policy. Required:(d) Automobile Liability Insurance. Yes__x No Grantee shall, at its own cost and expense, procure and maintain and/or require its contractor(s), at their own cost and expense, to procure and maintain Automobile Liability insurance providing bodily injury and property damage with a combined single limit of at least $2,000,000.00 per occurrence for all owned, non-owned and hired automobiles. This insurance shall provide contractual liability covering all motor vehicles and mobile equipment to the extent coverage may be excluded from general liability insurance. Such insurance shall include as additional insureds the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the Santa Clara County Transit District, the San Mateo County Transit District, the Southern Pacific Transportation Company, the National Railroad Passenger Corporation ("Amtrak") and their respective directors, officers, employees and agents while acting in such capacity, and their successors or assignees, as they now or as they may hereafter be constituted, singly, jointly or severally. Required:(e) Property Insurance. Yes x No Grantee shall, at its own cost and expense, procure and maintain and/or require its contractor(s), at their own cost and expense, to procure and maintain property insurance to protect its interest in the equipment to be used in performance of this Agreement and the Grantor’s interest in materials or property to be installed, covering all risks of physical loss or damage to such equipment. The coverage under such policy shall have limits of liability adequate to protect the value of the equipment and property to be installed° If desired, Grantee may choose to self-insure this exposure, but in no instance shall the Grantor be responsible for such loss or damage, unless caused by its sole negligence. 196733. I -- 9 - All insurance specified above shall remain in force until all work to be performed is satisfactorily completed, all of Grantee’s personnel and equipment have been removed from the railroad property, and the workhas been formally accepted. The failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement. If any insurance specified above shall be provided on a claim-made basis, then in addition to coverage requirements above, such policy shall provide that: (a) Policy retroactive date coincides with or precedes the Grantee’s start of work (including subsequent policies purchased as renewals or replacements)° (b) Grantee will make every effort to maintain similar insurance during the term of the Agreement following project completion, including the requirement of adding all additional insuredso (c) If insurance is terminated for any reason, Grantee agrees to purchase an extended reporting provision of at least two years to report claims arising from work performed in connection with this Agreement or Permit. (d) Policy allows for reporting of circumstances or incidents that might give rise to future claims. In addition to the requirements described above, any additional coverages required by the United States Department of Transportation, the Environmental Protection Agency and/or related state and local laws, rules and regulations shall be complied with. The Grantee and/or its contractors shall obtain all permits, licenses and other forms or documentation which are required and forward them to the Assistant to the Executive Director of the JPB with the required evidence of insurance. All policies will be issued by insurers acceptable to Grantor° Upon evidence of financial capacity satisfactory to Licensor, Grantee’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insuranceo iio Construction, Repair and Maintenance. Grantee, at Grantee’s sole cost and expense, shall cause all work in connection with the construction, use, repair and maintenance of the Project within the Easement area to be performed in a good and workerlike manner and in compliance with all applicable approved plans, approved specifications, laws and lawful ordinances, regulations and orders of any federal, state, county or municipal authority. Grantee agrees that all work upon or in connection with the Project shall be done at such times and in such manner as not to interfere in any way whatsoever with the operations of Grantor. The plans for and the construction of the Project shall be subject to the approval of Grantor, whose approval shall not be unreasonably withheld or delayed. Approval by Grantor shall not constitute a warranty by Grantor that such plans conform with applicable federal, state, and/or local codes and regulations° Any open holes shall be satisfactorily covered or fenced at all times when Grantee’s forces are not physically working in the actual vicinity. Upon completion of work, all holes will be filled in to meet the surrounding ground level with clean, compacted, earthen material and the property left in a neat and safe condition reasonably satisfactory to Grantor° Under no condition shall Grantee be permitted to place or store any mechanized equipment, tools or other materials within fifteen feet (15’) of the center line of Grantor’s nearest railroad tracks. Grantee shall not be permitted to cross Grantor’s tracks located on or adjacent to the Property to gain access to and from the Project. Access shall be by use only of designated public streets or crossings° Grantee agrees to reimburse Grantor for the reasonable costs and expenses to Grantor or Amtrak of furnishing any materials or performingany labor in connection with the construction and maintenance or removal of the Project, including, but not limited to, the installation and removal of such false work and other protection beneath or along the railroad tracks, and the furnishing of suoh security persons, flaggers and inspectors as Grantor deems necessary° Prior to incurring any cost or expense, Grantor shall reasonably notify Grantee of the same. The presence of an inspector or flagger from Grantor may be required when Grantee or any of Grantee’s contractors are working. The reasonable cost of such inspector or flagger shall be payable to Grantor within 30 days after presentation of a billo Grantee shall cooperate with Grantor in making any tests Grantor requires of any installation or condition which in Grantor’ reasonable judgment may have an adverse effect on any of the facilities of Grantor. All costs incurred by the tests, or any corrections, shall be borne by Grantee° 12. Damaqe and Destruction° In the event that the whole or any part of the tracks, signal facilities or operating equipment of Grantor, the wires, cables, fiber optics or other facilities of the communications carriers with facilities located 196733.1 --ii- on the Property, or the other improvements of Grantee are damaged or destroyed by any cause related to the presence of the Project on the Property not the result of the intentional misconduct of Grantor, its agents, contractors or assigns, Grantee at its cost and expense, shall restore the said tracks, signals facilities, operating equipment, wires, cables, fiber optics, or other communication facilities, box culvert, levee, bank, channel or improvements to their pre-existing condition. 13o Compliance With Law; Hazardous Materials°Grantee shall, at its expense, comply with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal and waste and air quality, and furnish satisfactory evidence of such compliance upon request of Grantor. No hazardous materials shall be handled by Grantee or its agents at any time upon the Property except in compliance with all applicable laws, regulations, rules and orders° Should any discharge, leakage, spillage, emission or pollution of any type occur upon or arise on the easement area covered herein as a result of Grantee’s use, presence, operations, or exercise of the rights herein granted, Grantee shall at its expense be obligated to repair all property affected thereby. With respect to any property owned or controlled by Grantor, Grantor may, at their sole option, clean Grantor’s property; if the Grantor elects to do so, Grantee shall pay the cost of such cleanup promptly upon the receipt of a bill therefor. Grantee agrees to investigate, release, indemnify and defend Indemnitees from and against all liability, cost and expense (including without limitation, any fines, penalties, judgments, litigation costs and attorney fees) incurred by Indemnitees as a result of any such discharge, leakage, spillage, emission or pollution arising from use of the Property by Grantee, its officers, agents or employees, regardless of whether such liability, cost or expense arises during the time this Agreement is in effect or thereafter, unless such liability, cost or expense is proximately caused solely and .exclusively by the active negligence of the Grantor, its officers, agents or employees° 14. Consideration; Costs. Upon execution hereof, in consideration for this easement, Grantee shall pay the Grantor Seventeen Thousand Four Hundred and Fifty Seven Dollars ($17,457o00) o In the event all or any portion of the said premises of Railroad shall be taken or condemned for public use including conveyance by deed in lieu of or in settlement of condemnation proceedings, Grantee shall receive compensation only for the taking and damaging of Grantee’s improvements. Any other compensation or damages arising out of such taking or condemnation awarded to Grantee shall be assigned by Grantee to Grantor. 196~3.1 -12- 15. Notices. All notices required or permitted to be given hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery, or by overnight courier, to the appropriate address indicated below or at such place or places as either Grantor or Grantee may, from time to time, respectively, designate in a written notice given four (4) days after the date of mailing thereof or upon personal delivery. To Grantee:City of Palo Alto Attention: city Clerk PoO. Box 10250 Palo Alto, CA 94303 with copy to: To JPB: City of Palo Alto Attention: Chief Transportation Official P.O. Box 10250 Palo Alto, CA 94303 Peninsula Corridor Joint Powers Board c/o San Mateo County Transit District PoOo~BOx 3006 San Carlos, CA 94070 Attn: Executive Director with copy to:Hanson, Bridgett, Marcus, Vlahos & Rudy 333 Market Street, Suite 2300 San Francisco, California 94105-2173 Attn: David Jo Miller Notices shall be effective on the date of personal delivery if given by personal delivery, on the next business day if given by express mail or commercial overnight courier, or four business days after mailing is sent by registered or certified mail. 16. Governinq Law° The rights and liability of the parties under this Agreement shall be interpreted in accordance with the laws of the State of California° 17. Inteqrationo This Agreement constitutes the complete expression of the agreement between the parties and supersedes any prior agreements, whether written or oral, concerning the subject of this Agreement, which are not fully expressed in this Agreement. Any modification of or addition to this Agreement must be in a writing signed by both parties. 18o Headinqso The headings of the paragraphs of this Agreement are inserted for convenience only and do not constitute part of this Agreement and shall not be used in its construction. 196T33.1 -13- 19. Severability. Each provision of this Agreement is intended to be severable. If any term of provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. 20. No Waiver. No waiver of any default or breach of any covenant of this Agreement by either party shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and then the waiver shall be operative only for the time and to the extent stated° Waivers of any covenant, term or condition by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by either party requiring further consent or approval shall not be deemed to waive or render unnecessary their consent or approval to or of any subsequent similar acts° 21o Condition to Effectiveness. As conditions precedent to the effectiveness of this Agreement: (i) Grantee shall have paid Grantor the consideration described in Section 14 and the permit fee specified in Section 4o 22° Successors and Assigns Bound. This agreement shall inure to the benefit and be binding upon the successors and assigns of the parties hereto° Grantee shall not assign nor sublet, in whole or in part, any rights covered by this Agreement, or permit any other person, firm or corporation to use, in whole or in part, any of the rights or privileges granted pursuant to this Agreement, without first obtaining the written consent of the Licensor° 23. Attorneys’ Fees° If any legal proceeding should be instituted by either of the parties to enforce the terms of this Agreement or to determine .the rights of the parties under this Agreement, the prevailing party in the proceeding shall receive, in addition to all court costs, reasonable attorneys’ fees° 24° Survivability of Indemnity Obligations. The provisions of Sections 8, 9, and 13 shall survive the termination of this Agreement. 1~733.1 -14- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Grantee: City of Palo Alto Mayor ATTEST: Grantor: !Executive Digectdr~ AT: Clerk Sec] APPROVED AS TO FORM: City Attorney APPROVED AS TO FORM: Attorney APPROVED: City Manager Director of Planning and Community Environment Director of Finance Risk Manager 196733.1 -15- 196733. I EXHIBIT "A" PREPARED BY: J. KIEHL CHECKED BY: J. BOURQUIN APPROVED BY: J. REMLEY DATE: MARCH 9, 1993 LEGAL DESCRIPTION EASEMENT FOR ROAD PURPOSES AT ALMA STREET AND WEST MEADOW DRIVE PARCEL 5 Being a parcel of land located in the City of Palo Alto, County of Santa Clara, State of california, more particularly described as follows: Beginning at the most Easterly corner of that certain parcel of land conveyed by the Southern Pacific Company to the City of Palo Alto Recorded December 5, 1960 in Book 5022 at Page 220 of Santa Clara County Official Records; Thence South 51° 45’ 00" East 141.90 feet; Thence South 38° IE’ 00" West 16.00 feet; Thence North 51° 45’ 00" West 156.56 feet; Thence North 80° 45’ 00" East 21.70 feet to the Point of Beginning. Said easement is shown on attached map "EXHIBIT B5" and made a part hereof. Containing an area of z~8s square feet, more or less. EXHIBIT A5 END OF LEGAL DESCRIPTION. JDK:jdk RH7PAR05/H7 SPRR LANDS EXHIBIT B 1967~3. I __ I EXHIBIT "B" TRAC’T NO. 947WALNUT GARDENS P.n.B. PARCEL 5 N 80" 45’ 00" E\ LOT i PARCEL 5 REC~D OF SURVEY LEGEND / NOTES: LOT ~ LOT 3 15’ 00" V 16.00’ DRAWN BY, J.D.KIEHL CHECKED BY, J. BDURQUIN REVIEWED BY: J. REMLEY DATE, 3-9-93 FILENAME: H7OIO5.DVG PARCEL S EASEMENT FOR RDAD PURPOSES AT ALMA STREET AND WEST MEADOW DRIVE CITY OF PALO ALTO, CALIFORNIA APPROVE.I):-1993 REVISION: =CALE, I’ = 60’ ATTACHMENT 2 GRANT OF EASEMENT ALMA/CHARLESTON TURN LANE RECORDING REQUESTED BY: This document is recorded for the benefit of the City of Palo Alto and is entitled to be recorded free of charge in accordance with Section 6103 of the Government Code. This instrument is exempt from Documentary Transfer Tax (Rev. and Tax. Code § 11922). After recordation, mail to: CITY PALO ALTO/REAL ESTATE 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 ~PACE ABOVE THIS LINE FOR RECORDER’S US~-- A.P. No.: Parcel No. One Project: Alma/Charleston Turn Lane GRANT OF EASEMENT AND AGREEMENT THIS AGREEMENT made as of this day of , 1995 ("Effective Date"), by and between PENINSULA CORRIDOR JOINT POWERS BOARD, a joint powers agency formed pursuant to California law ("JPB" or "Grantor") and the CITY OF PALO ALTO, a municipa! corporation ("Grantee"). RECITALS A. Grantor is the owner of that certain real property which is located in the City of Palo Alto, State of California, and is more particularly described on the map attached hereto and incorporated by this reference as Exhibit A (the "Property"). B. Grantee desires to obtain certain non-exclusive easement rights from Grantor over that certain portion of the Property more particularly described in the legal description and map attached hereto and incorporated by this reference as Exhibit B ("Easement Area") for the purposes of constructing a roadway turn lane and installing landscaping improvements (the "Project"). 217552.1 C. Grantee and Grantor wish to allocate the risks of injury and damage that may result from the use of the Property as the result of the Project. D. Grantee, upon completion of the work, is willing to assume maintenance and repair of the Project~thereafter. E. Grantor is willing to grant an easement to Grantee on the terms and conditions hereinafter set forth. FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties agree as follows: Io Grant of Easement. Grantor does hereby grant and convey to Grantee, its successors and assigns, a non-exclusive easement to construct, install, maintain, repair, remove, replace and operate a roadway turn lane for use by the general public and associated landscaping improvements to be constructed on the Easement Area° The Easement is granted on the express condition that the use of the Property pursuant to this Agreement shall not interfere with Grantor’s passenger commute rail operations and nothing contained herein permits or authorizes, and this agreement expressly prohibits, any such interference. Nothing herein is intended to expand Grantee’s use of the Easement beyond those rights expressly contemplated in this Agreement° 2° Term. The term of this Easement shall commence upon the Effective Date of this Agreement. The Easement shall be perpetual in term, unless terminated under the terms of this Agreement° Grantor may terminate this Agreement for cause upon giving Grantee 90 days written notice of termination° Valid cause for termination shall include, but not be limited to, interference with rail operations, the impairment of the safety of rail service, or other activities which constitute a public or private nuisance° This easement shall terminate upon the expiration of the 90 notice period unless Grantee, to the reasonable satisfaction of Grantor, cures the situation causing the nuisance or other disruption within that period, or, if the resolution of the situation requires a period of more than 90 days to remedy, promptly initiates the cure and diligently proceeds to complete the remedy of the situation to the reasonable satisfaction of Grantor. Upon termination, Grantor shall refund to Grantee the consideration paid under Section 14 herein° In the event Grantee, its successors or assigns abandon said Easement or said Project or fail to use such Easement for the purposes contemplated herein for a period of one (i) year, the right hereby given shall cease to the extent of the use so abandoned or discontinued°’ Upon termination or abandonment, Grantors shal! have the right, in addition to but not in qualification of the rights hereinabove reserved, to resume 217552.1 exclusive possession of said Property or part thereof, the use of which is so discontinued or abandoned. Upon termination or abandonment of the rights and privileges hereby granted, Grantee, at its own cost and expense, agrees to remove any improvements made in furtherance of the Project and restore the Property as nearly as practicable to the same state and condition in which it existed prior to the construction of the Project. Should Grantee in such event fail, neglect or refuse to remove the Project and restore the Property, such removal or restoration may be performed by Grantor, at the expense of Grantee, which expense Grantee agrees to pay to Grantor upon demand. 3. Use by Grantee. The Easement is limited to the following uses: the right to construct, install, maintain, repair, remove, replace and operate a roadway turn lane for use by the general public and associated landscaping improvements to be constructed on the Easement Area. Grantee’s use of the Easement shall not materially interfere with Grantor’s use of the Property, including its operation of its passenger commute rail service. Prior to engaging in activities that could affect the track area, Grantee agrees to give Grantor 20 days written notice. Grantee agrees to keep the Property and the Project in good and safe condition, free from waste, so far as affected by Grantee’s operations, to the reasonable satisfaction of Grantor. If Grantee fails to keep the Property and the Project in good and safe condition, free from waste, then after giving Grantee reasonable notice of the situation and a right to cure it in a reasonable time, Grantor may perform the necessary work at the expense of Grantee, which expense Grantee agrees to pay to Grantor upon demand. 4. Permit Fees. Prior to the execution of this Agreement, Grantee shall pay to Grantor the standard processing fee of $900.00. 5. Prior Riqhts. This grant is made subject and subordinate to the priorand continuing right and obligation of Grantor, its successors, assigns and permittees to use all of the Property in the performance of its transportation operations. There is reserved unto Grantor, its successors, assigns and permittees, the right to construct, reconstruct, maintain, use, repair, renew, change, modify or relocate existing and future facilities and appurtenances, including, without limitation, transportation, communication (including fiber optic telecommunication systems), railroad and pipeline facilities and appurtenances in, upon, over, under, across and along the Property. This grant is made subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, 217552.1 --3- liens and claims of title which may affect the Property in effect as of the Effective Date. The word "grant" shall not be construed as a covenant against the existence of any of these. The Easement includes incidental rights of maintenance, repair and replacement over the Easement Area. In exercising these rights, Grantee must use reasonable care and may not increase the burden on the Property or make any other material changes to the Property not consistent with Grantee’s uses of the Property set forth in sections 1 and 3 of the Agreement. It is expressly agreed by the parties that Grantor, its successors and assigns, may, in the future, construct additional railroad tracks or other transportation facilities on the right of way, which may require the use of all or a portion of the Property including the Easement area, that this work may increase Grantee’s costs of repair and/or replacement of the Project, and that any additional costs.resulting from such construction shall be borne by Grantee° 6o Relocation/Modification of Project, Easement° Grantee agrees that in the event Grantor determines that the expansion or modification of Grantor’s facilities in the transit corridor require relocation and/or modification of the Project, in whole or in part, Grantee shall, as appropriate, relocate or modify (or both) the Project at the sole cost of Grantee. Grantor agrees that in the event an alternative or realigned easement is required as the result of the relocation, it shall grant to Grantee such alternative or realigned easement of property, but only to the extent Grantor actually owns or controls such rights, pursuant to a recordable instrument on the same terms and conditions as provided herein° Grantee shall quitclaim its interest in that portion of the prior Easement to Grantor concurrently with the grant of the alternative easement, if any° In the event sufficient Grantor-owned property is not available for the relocation of Grantee’s facilities, Grantor shall have no further obligation to Grantee to provide property for the Project° 7° Fiber Optics Systems and Underground Facilities. The rights granted by this Agreement are subject to the rights of Grantor (or anyone acting with the permission of Grantor) to construct, reconstruct, maintain and operate fiber optic and other telecommunications systems, pipelines and other utility systems in, upon, along, across and beneath the Property and rights-of-ways of Grantor, including the property throughwhich the Project shall be constructed° Since there is the possibility of.the existence of the JPB’s signal lines, fiber optics systems, pipelines or other structures beneath the property, if Grantee should excavate or drill, then Grantee’s forces shall identify such structures and explore such structures in a non-destructive manner. Potholing 217552.1 -4- shall be done by vacuum removal, by means of Softdig, Inc. or equivalent contractor. As an alternative, Grantee may explore facilities with hand tools to a depth of at least eight feet (8’) below the surface of the ground or, at Grantee’s option, use suitable detection equipment prior to drilling or excavating with mechanized equipment. Absence of markers does not constitute a warranty by Grantor of no subsurface installations. Prior to Grantee’s commencement of work upon the Project, Grantor shall notify Grantee of any underground structures of which Grantor has actual knowledge, without engaging in independent investigation. Notwithstanding the foregoing, it shall be Grantee’s responsibility to determine the existence of any underground facilities and Grantee shall call Underground Service Alert at 1- 800-642-3444 prior to beginning any work on the Property. Grantee shall contact any utility or carrier who has installed markers on the property° In addition Grantee shall also contact Grantor’s passenger service operator, Amtrak, which can determine the location of railroad signal wires. If there are such underground facilities, Grantee will contact the owner of such facilities and make satisfactory arrangements for relocation or other protection for the system prior to beginning any work on the Property° Grantee agrees to reimburse Grantor and/or the owner(s) of the fiberoptic systems or other facilities which are present’ on the Property as of the date of this Agreement for all expenses which either may incur, which expenses would not have been incurred except by reason of the use of said premises by Grantee, its agents, employees or invitees, including relocation costs or any damages incurred by such owner due to the injury to the systems° 8. Claims. Claims, injuries, deaths, property damages and losses arising out of or connected with the Easement shall be investigated, adjusted, defended and, if required, paid by Grantee. 9. Indemnification. Grantee agrees to and shall indemnify, defend and hold harmless JPB, its member agencies (the San Mateo County Transit District, the City and County of San Francisco and the Santa Clara County Transit District), Southern Pacific Transportation Company and the National Railroad Passenger Corporation ("Amtrak"), their respective directors, officers, agents, and employees (hereinafter collectively referred to as "Indemnitees") from and against any and all claims, demands, losses, damages, causes of action, suits, and liabilities of every kind (including reasonable attorney’s fees, court costs, and other expenses related thereto) arising out of or in connection with the use of the Property by Permittee, its contractors, invitees, agents or employees under this Agreement. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO, BOTH GRANTEE AND JPB, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH 217552.1 -5- INDEMNIFIES THE INDEMNITEES FOR THEIR OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS ACTIVE OR PASSIVE, OR IS THE SOLE OR A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE PROVIDED THAT SAID INDEMNITY SHALL NOT PROTECT INDEMNITEES FROM LIABILITY FOR DEATH, INJURY OR DAMAGE ARISING SOLELY OUT OF THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF INDEMNITEES. i0o Insurance. Any person, firm or corporation Grantee authorizes to work upon the Property, including any subcontractor, shall be deemed to be Grantee’s agent and shall be subject to all the applicable terms of this Agreement. Prior to entry upon the Property by such agents, Grantee shall provide Grantor with satisfactory evidence (e.g. in the form of a Certificate of Insurance) that it and/or its contractors or other agents who will obtain access to the Property pursuant to this Agreement are insured in accordance with the following, which insurance shall remain in effect throughout the term of this Agreement and shall be at the sole cost and expense of Grantee (or its agents). Prior to the start of the work or entry onto the Property, Grantee agrees to procure and maintain, and/or to require its contractor(s) to procure and maintain, at its (or its contractors’) sole cost and expense (and to prove to Grantor’s reasonable satisfaction that it remains in effect throughout the work), the kinds of insurance described below: (a) Insurance. Workers’ Compensation and Employers’ Liability Grantee shall procure and maintain and shall require its contractor(s) to procure the payment of Workers’ Compensation and/or Federal Employers’ Liability Act Coverage (FELA) (whichever is applicable) to its employees, as required by the Federal Employers’ Liability Act of 1908 applying to instate railroad employees or as required by Section 1860 of the California Labor Code (Chapter i000, Statutes of 1965), or any subsequent amendments or successor acts thereto governing the liability of employers to their employees. If Workers’ Compensation applies, it shall be in accordance with the provisions of Section 3700 of the California Labor Code (and any amendments thereto or successor acts or statutes) and the Grantee shall furnish Licensor with a certificate evidencing such coverage together with a verification thereon as follows: "I am aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against a liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing 217552.1 -6- the performance of work under this Agreement." If the California Labor Code requiring Workers’ Compensation applies, the Grantee shall also maintain Employer’s Liability coverage with minimum limits of $5,000,000°00. If FELA applies, it shall be in accordance with federal statutes and have minimum limits of $5,000,000 per occurrence. The Grantee shall provide evidence of coverage or self-insurance together with a verification thereon as follows: "I am aware of the provisions of the Federal Employers’ Liability Act, and I will comply with such provisions before commencing the performance of work under this Agreement." Whether FELA or Workers’ Compensation applies, the Grantee shall furnish the Grantor with the Certificate(s) of Insurance required hereunder prior to the commencement of work. The Certificate shall also provide that the Grantee’s policy will not be cancelled or have coverage reduced without thirty (30) days’ prior written notice° (b) Commercial General Liability Insurance. Grantee shall, at its own cost and expense, also procure and maintain and/or require its contractors, at their own cost and expense, to procure and maintain Commercial General Liability insurance which shall include as additional insureds the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the Santa Clara County Transit District, the San Mateo County Transit District, the Southern Pacific Transportation Company, the National Railroad Passenger Corporation ("Amtrak") and their respective directors, officers, employees and agents while acting in such capacity, and their successors or assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally. Insurance shall provide bodily injury and propertydamage coverage with a combined single limit of at least $2,000,000.00 each occurrence or claim and a general aggregate limit of at least $2,000,000.00. This insurance shall include but not be limited to premises and operations; contractual liability covering the indemnity provisions contained in this Agreement; personal injury; explosion, collapse, and underground coverage, products and completed operations, and broad form property damage. Prior to commencing work or entering onto the Property, Grantee shall file a Certificate(s) of Insurance with the 217552.1 --7- Assistant to the Executive Director of the JPB evidencing coverage, and upon request, a certified duplicate original of the policy. Said Certificate(s) shall stipulate: (i) The insurance company(ies) issuing such policy(ies) shall give written notice to the Assistant to the Executive Director of the JPB of any material alteration, or reduction in aggregate limits, if such limits apply, and provide at least thirty (30) days’ notice of cancellation. (2) That the policy(ies) is Primary Insurance and the insurance company(ies) providing such policy(ies) shall be liable thereunder for the full amount of any loss or claim which Grantee is liable for under this Section, up to and including the total limit of liability, without right of contribution from any other insurance effected or which may be effected by the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the San Mateo County Transit District, the Santa Clara County Transit District, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak")o (3) The policy shall also stipulate: Inclusion of the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the San Mateo County Transit District, the Santa Clara County Transit District, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak") as additional insureds shall not in any way affect its rights either as respects any claim, demand, suit or judgment made, brought or recovered against the Grantee. Said policy shall protect Grantee and the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the Santa Clara Transit District, the San Mateo County Transit District, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak") in the same manner as though a separate policy had been issued to each, but nothing in said policy shall operate to increase the insurance company’s liability as set forth in its policy beyond the amount or amounts shown or to which the insurance company would have been liable if only one interest had been named as an insured. Required:(C) Railroad’s Protective Liability Insurance. Yes x No The Grantee shall provide and/or require its contractors to provide, with respect to the operations it or any of its contractors perform above the railroad tracks or within fifty (50) feet horizontally of the railroad tracks, Railroad’s Protective Liability Insurance with either the AASHO policy form or the ISO/RIMA form with pollution coverage for job site fuels and lubricants. The named insured shall be the Peninsula Corridor Joint Powers Board, the San Mateo County Transit District, the Santa Clara County Transit District, the City and 21~552.1 " --8- County of San Francisco, the Southern Pacific Transportation Company, and the National Railroad Passenger Corporation ("Amtrak") and shall cover all other railroads operating on the right-of-way. The policy shall have limits of liability of not less than $ 2,000,000.00 per occurrence, combined single limit, for Coverages A and B, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, including the loss of use thereof. A $6,000,000 annual aggregate will apply° Prior to commencing work or entering onto the Property, Grantee shall file an original or a duplicate original of the policy for Railroad Protective Liability with the Assistant to the Executive Director of the JPB. This coverage can be purchased by Grantee under Grantor’s blanket railroad protective policy° Required:(d) Automobile Liability Insurance. Yes~x No Grantee shall, at its own cost and expense, procure and maintain and/or require its contractor(s), at their own cost and expense, to procure and maintain Automobile Liability insurance providing bodily injury and property damage with a combined single limit of at least $2,000,000.00 per occurrence for all owned, non-owned and hired automobiles. This insurance shall provide contractual liability covering all motor vehicles and mobile equipment to the extent coverage may be excluded from general liability insurance. Such insurance shall include as additional insureds the Peninsula Corridor Joint Powers Board, the City and County of San Francisco, the Santa Clara County Transit District, the San Mateo County Transit District, the Southern Pacific Transportation Company, the National Railroad Passenger Corporation ("Amtrak,,) and their respective directors, officers, employees and agents while acting in such capacity, and their successors or assignees, as they now or as they may hereafter be constituted, singly, jointly or severally o Required:(e) Property Insurance° Yes__~_x No__ Grantee shall, at its own cost and expense, procure and maintain and/or require its contractor(s), at their own cost and expense, to procure and maintain property insurance to protect its interest in the equipment to be used in performance of this Agreement and the Grantor’s interest in materials or property to be installed, covering all risks of physical loss or damage to such equipment. The coverage under such policy shall have limits of liability adequate to protect the value of the equipment and property to be installed. If desired, Grantee may choose to self-insure this exposure, but in no instance shall the Grantor be responsible for such loss or damage, unless caused by its sole negligence. 217552.1 -9- All insurance specified above shall remain in force until all work to be performed is satisfactorily completed, all of Grantee’s personnel and equipment have been removed from the railroad property, and the work has been formally accepted. The failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement° If any insurance specified above shall be provided on a claim-made basis, then in addition to coverage requirements above, such policy shall provide that: (a) Policy retroactive date coincides with or precedes the Grantee’s start of work (including subsequent policies purchased as renewals or replacements)° (b) Grantee will make every effort to maintain similar insurance during the term of the Agreement following project completion, including the requirement of adding all additional insuredso (c) If insurance is terminated for any reason, Grantee agrees to purchase an extended reporting provision of at least two years to report claims arising from work performed in connection with this Agreement or Permit° (d) Policy allows for reporting of circumstances or incidents that might give rise to future claims° In addition to the requirements described above, any additional coverages required by the United States Department of Transportation, the Environmental Protection Agency and/or related state and local laws, rules and regulations shall be complied with. The Grantee and/or its contractors shall obtain allpermits,licenses and other forms or documentation which are required and forward them to the Assistant to the Executive Director of the JPB with the required evidence of insurance. All policies will be issued by insurers acceptable to Grantor° Upon evidence of financial capacity satisfactory to Licensor, Grantee’s obligation hereunder may be satisfied in whole or in part by adequately funded self-insuranceo iio Construction, Repair and Maintenance. Grantee, at Grantee’s sole cost and expense, shall cause all work in connection with the construction, use, repair and maintenance of the Project within the Easement area to be performed in a good and workerlike manner and in compliance with all applicable approved plans, approved specifications, laws and lawful ordinances, regulations and orders of any federal, state, county or municipal authority. Grantee agrees that all work upon or in connection with the Project shall be done at such times and in 217552.1 -i0- such manner as not to interfere in any way whatsoever with the operations of Grantor. The plans for and the construction of the Project shall be subject to the approval of Grantor, whose approval shall not be unreasonably withheld or delayed. Approval by Grantor shall not constitute a warranty by Grantor that such plans conform with applicable federal, state, and/or local codes and regulations° Any open holes shall be satisfactorily covered or fenced at all times when Grantee’s forces are not physically working in the actual vicinity. Upon completion of work, all holes will be filled in to meet the surrounding ground level with clean, compacted, earthen material and the property left in a neat and safe condition reasonably satisfactory to Grantor° Under no condition shall Grantee be permitted to place or store any mechanized equipment, tools or other materials within fifteen feet (15’) of the center line of Grantor’s nearest railroad tracks. Grantee shall not be permitted to cross Grantor’s tracks located on or adjacent to the Property to gain access to and from the Project. Access shall be by use only of designated public streets or crossings. Grantee agrees to reimburse Grantor for the reasonable costs and expenses to Grantor or Amtrak of furnishing any materials or performing any labor in connection with the construction and maintenance or removal of the Project, including, but not limited to, the installation and removal of such false work and other protection beneath or along the railroad tracks, and the furnishing of such security persons, flaggers and inspectors as Grantor deems necessary. Prior to incurring any cost or expense, Grantor shall reasonably notify Grantee of the same. The presence of an inspector or flagger from Grantor may be required when Grantee or any of Grantee’s contractors are working° The reasonable cost of such inspector or flagger shall be payable to Grantor within 30 days after presentation of a bill. Grantee shall cooperate with Grantor in making any tests Grantor requires of any installation or condition which in Grantor’ reasonable judgment mayhave an adverse effect on any of the facilities of Grantor. All costs incurred by the tests, or any corrections, shall be borne by Grantee. 12o Damaqe and Destruction. In the event that the whole or any part of the tracks, signal facilities or operating equipment of Grantor, the wires, cables, fiber optics or other facilities of the communications carriers with facilities located 21755~.1 -ii- on the Property, or the other improvements of Grantee are damaged or destroyed by any cause related to the presence of the Project on the Property not the result of the intentional misconduct of Grantor, its agents, contractors or assigns, Grantee at its cost and expense, shall restore the said tracks, signals facilities, operating equipment, wires, cables, fiber optics, or other communication facilities, box culvert, levee, bank, channel or improvements to their pre-existing condition. 13o Compliance With Law; HazardousMaterialso Grantee shall, at its expense, comply with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal and waste and air quality, and furnish satisfactory evidence of such compliance upon request of Grantor. No hazardous materials shall be handled by Grantee or its agents at any time upon the Property except in compliance with all applicable laws, regulations, rules and orders. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or arise on the easement area covered herein as a result of Grantee’s use, presence, operations, or exercise of the rights herein granted, Grantee shall at its expense be obligated to repair all property affected thereby. With respect to any property owned or controlled by Grantor, Grantor may, at their sole option, clean Grantor’s property; if the Grantor elects to do so, Grantee shall pay the cost of such cleanup promptly upon the receipt of a bill therefor. Grantee agrees to investigate, release, indemnify and defend Indemnitees from and against all liability, cost and expense (including without limitation, any fines, penalties, judgments, litigation costs and attorney fees) incurred by Indemnitees as a result of any such discharge, leakage, spillage, emission or pollution arising from use of the Property by Grantee, its officers, agents or employees, regardless of whether such liability, cost or expense arises during the time this Agreement is in effect or thereafter, unless such liability, cost or expense is proximately caused solely and exclusively by the active negligence of the Grantor, its officers, agents or employees. 14o Consideration; Costs. Upon execution hereof, in consideration for this easement, Grantee shall pay the Grantor Forty Thousand Five Hundred and Forty Three Dollars ($40,543.00). In the event all or any portion of the said premises of Railroad shall be taken or condemned for public use including conveyance by deed in lieu of or in settlement of condemnation proceedings, Grante~ ~h&ll receive compensation only for the taking and damaging of Grantee’s improvements° Any other compensation or damages arising out of such taking or condemnation awarded to Grantee shall be assigned by Grantee to Grantor. 217552.1 -12- 15. Notices. All notices required or permitted to be given hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery, or by overnight courier, to the appropriate address indicated below or at such place or places as either Grantor or Grantee may, from time to time, respectively, designate in a written notice given four (4) days after the date of mailing thereof or upon personal delivery. To Grantee:City of Palo Alto Attention: City Clerk P.O. Box 10250 Palo Alto, CA 94303 with copy to: To JPB : City of Palo Alto Attention: Chief Transportation Official P.Oo Box 10250 Palo Alto, CA 94303 Peninsula Corridor Joint Powers Board c/o San Mateo County Transit District P.O. Box 3006 San Carlos, CA 94070 Attn: Executive Director with copy to:Hanson, Bridgett, Marcus, Vlahos & Rudy 333 Market Street, Suite 2300 San Francisco, California 94105-2173 Attn: David Jo Miller Notices shall be effective on the date of personaldelivery if given by personal delivery, on the next business day if given by express mail or commercial overnight courier, or four business days after mailing is sent by registered or certified mail. 16. Governing Law. The rights and liability of the parties under this Agreement shall be interpreted in accordance with the laws of the State of California° 17. !nteqration. This Agreement constitutes thecomplete expression of the agreement between the parties and supersedes any prior agreements, whether written or oral, concerning the subject of this Agreement, which are not fully expressed in this Agreement. Any modification of or addition to this Agreement must be in a writing signed by both parties° ?.8. Headings° The headings of the paragraphs of this Agreement are inserted for convenience only and do not constitute part of this Agreement and shall not be used in its construction. 217552.1 -13- 19. Severability. Each provision of this Agreement is intended to be severable. If any term of provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. 20. No Waiver. No waiver of any default or breach of any covenant-of this Agreement by either party shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and then the waiver shall be operative only for the time and to the extent stated. Waivers of any covenant, term or condition by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by either party requiring further consent or approval shall not be deemed to waive or render unDecessary their consent or approval to or of any subsequent similar acts. 21. Condition to Effectiveness. As conditions precedent to the effectiveness of this Agreement: (i) Grantee shall have paid Grantor the consideration described in Section 14 and the permit fee specified in Section 4o 22. Successors and Assiqns Bound° This agreement shall inure to the benefit and be binding upon the successors and assigns of the parties hereto. Grantee shall not assign nor sublet, in whole or in part, any rights covered by this Agreement, or permit any other person, firm or corporation to use, in whole or in part, any of the rights or privileges granted pursuant to this Agreement, without first obtaining the written consent of the Licensor. 23. Attorneys’ Fees° If any legal proceeding should be instituted by either of the parties to enforce the terms of this Agreement or to determine the rights of the parties under this Agreement, the prevailing party in the proceeding shall receive, in addition to all court costs, reasonable attorneys’ fees. 24° Survivability of Indemnity Obligations. The provisions of Sections 8, 9, and 13 shall survive the termination of this Agreement. 21~52.1 -14- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Grantee: City of Palo Alto Grantor: Peninsula Corridor Mayor ATTEST:ATTEST Clerk APPROVED AS TO FORM: City Attorney APPROVED AS TO FORM: Attorney APPROVED: City Manager Director of Planning and Community Environment Director of Finance Risk Manager 217552.1 -15- 217552.1 PREPARED BY: J. KIEHL CHECKED BY: J. BOURQUIN~ APPROVED BY J. REMELYJ~ DATE: MARCH 9, 1993 LEGAL DESCRIPTION EASEMENT FOR ROAD PURPOSES AT ALMA STREET AND CHARLESTON ROAD PARCEL 1 Being a parcel of land located in the City of Palo Alto, County of .Santa Clara, State of California, more particularly described as fol!ows: Beginning at the most easterly corner of that certain parcel of land conveyed by the Southern Pacific Company to the City of Palo Alto Recorded November 28, 1960 in Book 4994 at Page 672 of Santa Clara County Officia! Records; Thence South 51° 45’ 00" East 366.00 feet; Thence North 57° 04’ 49" West 28.01 feet; Thence North 51° 45’ 00" West 340.66 feet; Thence North 82° 37’ 33" East 3.64 feet to the Point ofBeginning. Said easement is shown on attached map "EXHIBIT BI" and made a part hereof. Containing an area of 919 square feet, more or less. EXHIBIT AI END OF LEGAL DESCRIPTION. JDK:jdk RH7PAR01/H7 SPRR LANDS EXHIBIT A-2 PREPARED BY: J. KIEHL CHECKED BY: J. BOURQUIN DATE: MARCH 9, 1993 LEGAL DESCRIPTION EASEMENT FOR LANDSCAPE PURPOSES AT ALMA STREET & CM~ARLESTON ROAD PARCEL 2 Being a parcel of land located in the City of Palo Alto, County of Santa Clara, State of California, more particularly described as follows: Beginning at a point South 82° 37’ 33" West 3.64 feet from the most easterly corner of "that certain parcel of land conveyed by the Southern Pacific Company to the City of Palo Alto Recorded November 28, 1960 in Book 4994 at Page 672 of Santa Clara County Official Records; Thence South 51° 45’ 00" East Thence South 57° 04’ 49" East Thence South 38° 15’ 00" West Thence North 51° 45’ 00" West Thence North 82° 37’ 33" East Beginning. 340.66 feet; 28.01 feet; 7.60 feet; 373.43 feet; 6.99 feet to the Point of Said easement is shown on attached map "EXHIBIT B2" and made a part hereof. Containing an area of 1890 square feet, more or less. EXHIBIT A2 END OF LEGAL DESCRIPTION. JDK:jdk RH7PAR02/H7 SPRR LANDS EXHIBIT A-3 PREPARED BY: J. KIEHL CHECKED BY: J. BOURQUIN APPROVED BY: J. REMLEY~ DATE: MARCH 9, 1993 LEGAL DESCRIPTION EASEMENT FOR ROAD PURPOSES AT ALMA STREET AND CHARLESTON ROAD PARCEL 3 Being a parcel of land located in the City of Palo Alto, County of Santa Clara, State of California, more particularly described as follows: Beginning at the most northerly corner of that certain parcel of land conveyed by the Southern Pacific Company to the City of Palo Alto Recorded November 28, 1960 in Book 4994 at Page 672 of Santa Clara County Official Records; Thence North 51° 45’ 00" West 228.37 feet; Thence South 35° 08’ 46" East 45.29 feet; Thence South 51° 45’ 00" East 199.88 feet; Thence North i0° 48’ 25" West 19.75 feet to the Point of Beginning. Said easement is shown on attached map "EXHIBIT B3" and made a part hereof. Containing an area of 2771 square feet, more or less. EXHIBIT A3 END OF LEGAL DESCRIPTION. JDK:jdk RH7PAR03/H7 SPRR LANDS EXHIBIT A-4 PREPARED BY: J. KIEHL CHECKED BY: J. BOURQUIN DATE: MARCH 9, 1993 / LEGAL DESCRIPTION EASEMENT FOR LANDSCAPE PURPOSES AT ALMA STREET & CHARLESTON ROAD PARCEL 4 Being a parcel of land located in the City of Palo Alto, County of Santa Clara, State of California, more particularly described as follows: Beginning at a point South i0° 48’ 25" East 19.75’ from the most northerly corner of that certain parcel of land conveyed by the Southern Pacific Company to the City of Palo Alto Recorded November 28, 1960 in Book 4994 at Page 672 of Santa Clara County Officia! Records; Thence North 51° 45" 00" West Thence North 35° 08’ 46" West Thence South 38° 15’ 00" West Thence South 35° 08’ 46" East Thence South 51° 45’ 00" East 199.88 feet; 45.29 feet; 5.22 feet; 44.53 feet; 206.38 feet; Thence North i0° 48’ 25" West 7.63 feet to the Point of Beginning. Said easement is shown on attached map "EXHIBIT B4" and made a part hereof. Containing an area of 1240 square feet, more or less. EXHIBIT A4 END OF LEGAL DESCRIPTION. JDK:jdk RH7PAR04/H7 SPRR LANDS EXHIBIT B 217552.1 EXHIBIT B-1 DETAIL "A"INTS P.D.B. PARCEL BB" 37’ 33" E 41.979 ,p.rl.B. PARCEL 1 DETAIL "A" IDETAIL "BI NTS DRAWN BY, J.D.KIEHL CHECKED BY, J. BOURQUIN REVIEWED BY: J. REMLEY DATE, 3-9-93 FILENAME, H7OIOLDWG / 41.97’) ; DETAIL "A" PARCEL EXHIBIT BI DRAWN BY, J.D.KIEHL CHECKrD BY, J. BnURQUIN REVIEWED BY, J. REMLEY DATE; 3-9-93 FILENAMr, H7OIO2.DVG I DETAIL "Bi N.T.S. APPROVE])=__-1993 REVISInN:CITY OF PALO ALTO, CALIFORNIA~ P ARCE’V EASEMENT FOR LANDSCAPE PURPOSES AT ALMA STREET & CHARLESTON ROAD EXHIBIT B-3 " Ir PARCEL TRACT NO. 795 CHARLESTON MEADOWS LEGEND /- NOTES TRACT MAP NUMBER 840 [03 S~.R.R. SOUTHERN PACIFIC RAILROAD S~.R.R. DRAVING NUMBER 29770 o BOOK 4994 PAGE 676 EASEMENT FOR LANDSCAPING PURPOSESI~ EASEMENT FOR ROAD PURPDSES:~ EXH!31T 33 DRAWN BY’ J.D.KIEHL CHECKED BY, J. REVIEWED BY= J. REMLEY DATE, 3-9-93 FILENAMD H7OIO3.DVG PARCEL£ EASEMENT FOR ROAD PURPOSES AT ALI’4A STREET 8, CHARLESTON ROAD A~’~’ROVE~ ............. REVISION: CITY OF PALO ALTO, CALIFORNIA sCALE, I" = 60’ EXHIBIT B-4 / / LEGEND I NOTES TRACT MAP NUMBER 840 [0] ’S~.R.R. SOUTHERN PACIFIC RAILROA])1S.P,R.R. DRAWING NLIMBER 29770 0 I ,B,OOK 4994 PAGE 676 EASEMENT FnR LANDSCAPING PURPOSES, i’?/.’i’??i".".".’""’"". . .... EASEMENT FOR ROAD PURPOSES: I ........... EXHIBIT B3 DRAWN BY, J.D.KIEHL CHECKED BY, J. BOURQUIN REVIEWED BY, J. REMLEY DATE, 3-9-93 FILENAME; H7OIO4.DVG EASEMENT FOR LANDSCAPE PURPOSES AT ALMA STREET & CHARLESTON ROAD SCALE, 1" = 60’ REVISION:CITY DF PALFI ALTO, CALIFORNIA