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HomeMy WebLinkAbout1984-03-06; City Council; 2078-4; AT& SF Railway Co supplemental agreement, 4- Q*q / @D -. CIT OF CARLSBAD - AGEND. BILL Re#- MTG. 3/6/84 TI SUPPLEMENTAL AGREEMENT WITH -d&CHISON, TOPEKA AND SANTA FE RAILWAY COMPANY FOR CONSTRUCTION AND MAINTENANCE I DEPTW (CONTRACT NO. 3079) RECOMMENDED ACTION: Adopt Resolution No. Topeka and Santa Fe approving an agreement between the City and the Atchison, Company for construction and maintenance in connection with the Poinsettia Lane Bridge. ITEM EXPANATION: In order to build the Poinsettia Lane Bridge over the railroad, it is necessary to enter into an agreement with the Railroad Company. City returned the draft agreement to the Railroad for them to sign it. The Railroad has now signed the agreement. It has taken 5 months since the The City must also obtain a permit from the Public Utilities Commission but the Railroad has delayed the hearing until the agreement has been executed. of the agreement at this time will allow the P.U.C. hearing to be scheduled so that this time-critical project can move ahead. Execution FISCAL IMPACT: Exhibit B of the agreement requires the City to pay the Railroad Company for signal and communications changes as part of the project, which are estimated to cost $45,166. The agreement must be executed before work can begin on the Poinsettia Bridge project. City to lose funds deposited by the Developers amounting to approximately $1,240,000. Failure to start the construction work by June 17, 1984, may cause the EXHI BIT: 1. Resolution No. Topeka and approving an agreement between the City and the Atchison, Railway Company for construction and maintenance in connection with the Poinsettia Lane Bridge. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOIXTTION No. 7529 A REsourrION OF 'IHE CITY CMJNCIL OF THE CITY OF CARISBAD, CZUIKIRNIA, APPROVING AN AGREEMENT BEmEN THE CITY OF CARLSBAD AND 'ME mIm, rnPEKA IWD SANTA FE: RAILMY COMPANY FOR (INSTRUCTION AND WI"CE IN OONNMTTION WITH THE EQINSETI'IA LANE BRIDGE - CDMW4CT No. 3079. The City Council of the City of Carlsbad, California, does hereby resolve as Eollows: 1. That certain agreement between the City of Carlsbad and the Atchison, Fopeka and Santa Fe Railway Cgnpany for construction and mainterne, referred tn PS Supplemental Agreement, a clapy of vhich is attached hereto and incorporated ierein by reference, is hereby approved. 2. The Mayor of the City of Carlsbad is hereby authorized and directed to 2xecute said agreement for and on behalf of the City of Carlsbad. PASSED, APPEEDVED AND AMlpTED at a regular meeting of the City Council of the :ity of Carlsbad held the 6th day of March , 1984, by the Eollowing mte, b wit: AYES: Council Members Casler, Lewis, Kulchin, Chick and Presco a t 435-Ponto Poinsettia Lane OH-56 (Supplement) / SUPPLEMENTAL AGREEMENT, made as of this 7. day of rL-, /9 p? between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY CoMpd#y, a Delaw<re corporation, hereinafter referred to as "Santa Fe", and CITY OF CARLSBAD, a political subdivision of the State of California, hereinafter, referred to as "City". R E C I T A L S: Santa Fe and City are now parties to a contract dated July 18, 1973, Santa Fe's Secretary's Contract No. 142079, being hereafter referred to as "Original Contract", under which City proposes to construct an overpass crossing of Santa Fe's San Diego - Los Angeles tracks at Poinsettia Lane by means of a reinforced concrete structure and approaches thereto to serve the new development in the City of Carlsbad, County of San Diego, State of California. The parties desire to modify the Original Contract as hereinafter provided. AGRE EHE NT: It is mutually agreed that, Article I, Paragraph 4; Article 11, Paragraphs 7 and 9; and Article 111, Paragraph 4(b) are deleted in their entirety and the following paragraphs are substituted: ARTICLE I 4. To submit to City periodic bills covering the cost of work performed by Santa Fe, and upon completion of the structure, a detailed statement of final costs segregated as to labor and materials, for each item in the recapitulation on Exhibit "B", attached hereto and made a part hereof. The rates and schedules for labor, equipment and materials, and manner of billing ehall be as set forth in the Federal Aid Highway Program Manual, U. S. Department of Transportation, and any revisions thereof or amendments thereto, which said manual is hereby incorporated in and made a part of this agreement by reference. -1- 3 . ARTICLE 11 7. To require its contractor, or contractors, to notify Santa Fe 48 hours in advance of any blasting, so that proper flagging protection may be provided to prevent damage to Santa Fe's trains or property. ARTICLE I1 9. To incorporate in each prime contract for construction of structure, or the specifications therefor, the provisions, entitled "Relations with Railway Company" set forth in Exhibits "C", "C-l", and "C-Z", attached hereto and made a part hereof, and accepts responsibility of compliance by its prime contractor. ARTICLE I11 4(b) Provided, further, that all expense incurred by Santa Fe, and billed to City, for which City is obligated to reimburse Santa Fe, shall be in accordance with and subject to the terms and provisions of the Federal Aid Highway Program Manual, U. S. Department of Transportation, and any revisions therefor or amendments thereto, and in accordance with the provisions set forth in Article I, Section 4. Also, Original Contract is further amended by the insertion of the Paragraphs 12, 13 and 14 to Article 111, as follows: 12. Before entering upon Santa Fe's property for maintenance purposes, City will notify the AGM-Engineering of Santa Fe in advance, to obtain proper authorization and, if work is contracted, will require its prime contractor, to comply with the obligations in favor of Santa Fe as provided in said Exhibits "C", "C-1" and "C-2", and accepts responsibility of compliance by its prime contractor. 13. City shall indemnify and save harmless Santa Fe, its agents and employes against all liability, claims, demands, damages, or costs for (a) death or bodily injury to persons, including without limitation the employes of the parties hereto, (b) injury to property, including without limitation, the property of the parties Y -2- hereto, (c) design defects, or (d) any other loss, damage, or expense arising under either (a), (b), or (c), and all fines or penalties imposed upon or assessed against Santa Fe, and all expenses of investigating and defending against same, arising in any manner out of (1) use, occupancy or presence of City, its contractors, subcontractors, employes, or agents in, on, or about the construction and/or maintenance site, (2) the performance, or failure to perform, by the City, its contractors, subcontractors, employes, or agents, its work or any obligation under this agreement, or (3) the sole or contributing acts or omissions of City, its contractors, subcontractors, employes, or agents in, on, or about the construction site. Nothing contained in this provision is intended to, nor shall be deemed or construed to indemnify Santa Fe from its sole negligence or willful misconduct, or that of its agents, servants or independent contractors who are directly responsible to it, as provided in California Civil Code Section 2782. 14. In the event that construction has not begun for a period of three years from date of signing agreement, this agreement shall be null and void. 15. City agrees that, notwithstanding any provision herein to the contrary, if City shall deem it necessary or desirable in the future to widen the structure herein contemplated, it shall do so at its sole cost and expense and at no cost nor expense to Santa Fe. EXHIBITS Exhibits A, B, C, C-1 and C-2 are hereby revised and attached hereto. X X X -3- I 3 IN WITNESS WlEIUOF, the parties hereto have duly executed this agreement the day and year first above written. TEE ATCHISOIO, TOPEKA AlsD,SARTA FE RAILWAY COMPANY LL APPRO ED3 Asst. General Manager-Engineering The Atchison, Topeka and Santa Fe Ra: :\my Coin pa ny A ,‘JGeneral Attorney Its DECUTIVE VlCE PRESDENT CITY OF CILlztSBAD BY Its 1 85 6 1C R* -4 - I 1 .* 38056 SECY'S NO. EX H I B I T "A" ATTACHED TO CONTRACT BETWEEN AND THE ATCHISON, TOPEKA AND SANTA FE. RAILWAY COMPANY CITY OF CARLS8AD CHICAGO, ILLINOIS SCALE: 1 IN. TO 100 FT. .kwh DIV. .-, DIST. DATE : December 14, f 983 ffiM&---- GEF ENGINEER DESCRIPTION APPROVED A reinbced coIllcrcfc structure locatedon the Railway Company5 Right of way as shown boH. -Land covered by tbis confrad shown shaded. C.E. DRAWING NO. 1 -O/OOO 7 I L DIV. DWQ. NO. DIV. FILE NO. O.M. FILE NO. 935-u - C.E. FILE NO.W7-aY)I1Z, AM3 Fb?set&LamoH THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY - COAST LINES EXHIBIT "B" Estimated cost of Labor and Material required for Engineering, Inspection, and Flagging, and make temporary and permanent changes in Communication and Signal Systems for construction of Poinsettia Lane Overpass crossing of Lo8 Angeles Division, 4th District track at Mile Post 233+3841 at Ponto. Office of A.G.M. - Engineering Lo8 Angeles, January 5, 1984 File: 435-~onto (Poinsettia Lane) ESL6/1856C 8 I THE ATCnISON, TOPEKA AND SANTA FE RAILWAY COMPANY E XHI BIT " B" MATERIAL: Temporary Signal Material Corn. Material Permanent Signal Material Comm. Material Handling at Storehouse Use Taxes Transportation to Site of Job Equipment Renta 1 Estimated Cost of Material LABOR : Engineering, Inspection and Flagging Comm. Engineering (Preliminary) Comm. Engineering (Construction) Temporary Work Signal Engineering Signal Labor Communication Labor Permanent Work Signal Engineering Signal Labor Communication Labor $ 3,854 1,314 6,351 1,085 6 30 794 298 1,105 $15,431 $5,000 78 78 180 1,803 2,066 2 70 2,705 2,066 Payroll Associated Costs (Vacation, Paid Holiday, Retirement, Unemployment Tax, Health d Welfare Benefits, Group Life Insurance, Workman's Comp. & Liab. Ins., and Excise Tax) 6,639 Ins ur anc e 1,037 Expenses 3,908 Billing and Accounting 413 Estimated Cost of Labor Total Estimated Cost of Labor and Material $41,674 Contingency Credit for Materia 1 Recovered 4,167 (675) Total Estimated Cost of Work to be performed by Santa Fe . forces and paid for by the City of Carslbad $45,166 $26,243 Office of AGM-Engineering .Lo6 Angeles, January 3, 1984 File: 435-Ponto Poinsettia Lane O.H. 5634E/ 18564CH 4 EXH t B IT "C" RELATIONS WITH RAILWAY COMPANY -1.01 General.--The Contractor, as n prerequisite for award, shall he satisfactory as to his respnnsihility and ahility to perform the work over and across the prophrty and over or under the tracks of 'The Atchison, Topeka and Santa Fe Railway Company. It is expected that The Atchison, Topeka and Santa Fe Railway Company will cooperate with the Contractor to the end that the work may be handled in an efficient manner, but the Contractor shall have no claim For damages or extra compensation in the event his work is held up by the work of the Railway Company forces. -1.02 Agrcement.--Before doing any work on Railway right of way, or property, the Contractor will he required to execute and deliver to The Atchison, Topeka and Santa Fe Railway Company a letter agrerment, in the form attached hereto, obligating the Contractor Co provide and keep in full force and effect the insurance called for under "insurance" of these special provisions. -1.03 Railway Requirements.--The Contractor shall cooperate with The Atchison, Topeka and Santr Pc Railway Company where work is over or under the tracks, or within the limits of Railway property in order to exprdite the work and to avoid interference with the operation of Railway equipment. The Contractor shall comply with tha. rules and rrgiilations of Railwav or thr insrructions of its rrliir*riitat iv4.s ill r4bIntion LI~ tlw prop~l~ rnaniicr of protecting the trncks atid property of Railway and thi. itaffic moving on such tracks, as wrll as the wires, signals and other property of Railway, its tenants or licensees, at and in the vicinity of the work during the period of construction. The Contractor shall perform his work in such manner and at such times as shall not endanger or interfere with the safe and timely operation of the tracks and property of Railway and the traffic moving on such tracks, as well as wires, signals and other property of Railway, its tenants or licensees, at or in the vicinity of the work. I The Contractor slinll take protective measures necessary to keep Railroad facilities, including track hallast, free of sand or debris resulting from his operations. Any damage to Railroad facilities resulting from Contractor's operations will be repaired or replaced by Railroad and the cost of such repairs or replacement shall be deducted from the Contractor's progress and final pay estimaces. The Contractor shall not pile or store any materials, park or use his equipment closer to the * center of the nearest Railway track, or overhead lines, than permitted by the following clearances: lU'-O'' Horizontally from centerline of track 2'L'-h" Vertically ahove top of rail 27'-0" Vertically ahove top of rail for electric wires carrying less than 750 volts 28'-0" Vertically above top of rail for electric wires .arrying 750 volts to 15,000 volts IO - I)" v,.Vr ic;illy :ihovc- top of r;iil ftir elvctvic wircs * arryirlR I5,OOO vo11.1 III 20,0()(1 volts V('-O'' Any infringement on the above clearances or walkways due to the Contractor's operations shall be' Vertically above top of rail €or electric wires '.arrying more than 20,000 volts suhrnitted to the Railway and to the Engineer and shall not be undertaken until approved by the Railway, and until the Engineer has obtained any necessary authorization from the Puhlic Utilities Commission for thr infriliffement. No extra compcnsation will hc allowed iii the event the Contractor's work is del aycrl punditlg Railway approval, and I'ublic Utilities Commission authorization. In the case of impaired vertical clearance above top of rail, Railway shall have the option of inst.3lling tell-tales or other protective devices Railway deems necessary for protection of Railway trainmen or rail traffic. 'The details of construction affecting the Railway tracks and property not included in the contract plans shall be suhmitted to the Railway For approval before such work is undertaken. If the Contractor desires to move his equipment or materials across Railway's tracks he shall obtain permission from Railway and, should it be required, the Contractor shall obtain a private crossing agreement. The crossing installation for the use of the Contractor, if required, shall be at the expense of the Contractor. 1. The Contractor shall, upon completion of the work covered by this contract to be performed by the Contractor upon the premires or over or beneath the tracks of Railway, promptly remove from the premises of Railway a11 of Contractor's tools, implements and other materials, whether brought upon said premises by said Contractor or any Subcontractor, employ.* or agent of Contractor or of any S,ibcontractor, and cause said premises to be left in a clean md presentable condition. -1.04 Protection of Railroad Facilities:- (1) Upon nclvnnce notification of not lrss than 24 hours by Contractor, Railroad representatives, contliictors, llapmrn or watchmen will be provided by Railroad to protect its facilities, property and movements of its trains or engines. In general, Railroad will furnish such personnel or other protective aervices: (a) When any part of any equipment is standing or being operated within 10 feet, measured horizontally, from centerline of any track on which trains may operate, or when any erection or construction activities are in progress within such limits, regardless of elevation above or below track. For any excavation below elevation of track subgr.de if, in the opinion of Railroad's representative, track or other railroad facilities may be subject to rettlement of movement. (b) (c) For any clearing, grubbing, grading, or blasting in proximity to Railroad facilities which, in the opinion of Hailroad's representative. may endanger Railroad facilities or operationr. (2) Railroad will furnish such personnel or other protective services when, in the opinion of Railroad's representative, Railroad facilitieq, including, but not limited to, tracks, buildings, signals, wire lines or pipelines, may be endaiigered. (3) Information as to the Railroad employes which may be required to provide protection to Railroad facilities is as follows: Maximum Rase poy NiiinIwr (IO Claun i I irat ia)ib ( e) for 8 Iiours (c) Headquarters (D) 3 Pilot Conductors 115.02 Full erton 1 Yard Engine Foreman -- -- 2 Yard Engine Helpers -- -- 2 Sect ion Foreman 82.34 Ful lerton Trackmen 70.08 Full erton 1 868 Foreuan 84.26 Oceans i de 2 B6B Carpenters 78.79 Oceans i de In general, a flagging crew consists of three men, as indi:ated in the above grouping, although under some conditions less than three men may be sufficient. Rates of pay, payment for overtime, number of hoiirs to be paid for, and travel, meal and Lodging allowances will be in accordance with lahor union agreements in effect at the time the work is pqxrformed. To all direct labor costs, there shall be added additional charges for Vacation Allowance; Holiday Pay; Health and Welfare; Railroad Retirement and Unemployment Taxes; Public Liability, Property Damage, and Workman's Compensation Insurance; and Accounting and Billing. For estimating purposes only, these additives collectively may he considered as approximately h5Z of a11 direct labor costs. The above rates are for information only, and rates in effect at the time of construction will be iised. The cost of all Railroad personnel, equipment, and facilities deemed necessary by the Railway and provided hy the Railway for the protection of Railroad facilities and trains. during the period of construction within Railway right of way and the cost of installing protective devices in the case of impairrd clearance, shall be borne by the Contractor. The Contractor shall be responsible for payment of all costs incurred for any damages to Railroad roadbed, track and/or property resulting Prom use, occupancy, presence of its employer or agents on or about the construction site. (4) Railroad will submit its final bills for flagging and re1ni:ed services to City/- after completion of the project. -1.05 Work by Railway Company.--Railroad will rearrange its tracks, telephone, telegraph, and City/- will pay a11 flagging charges. signal liner and appurtenancer, and will perform any other work in connection therewith, except grading to be done by others. E18b/0937P 2. agreement betwecli THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND THE CONTRACTOR IN CONNECTION WITH The Atchison, Topeka and Santa Fe Railway ConpanY One Santa Fe Plaza, 5200 E. Sheila Street Los Angeles, CA 90040 Attention: General Manaqer Gentlemen: The undersigned has entered into a contract dated , 19-, with the , for the performance of certain work in connection with - in the -G&rfonnanr:i- of which work the underrsigned will necessarily bc required to conduct operations wit.tiin your riqliL of way and IJro[,crty. The Contract provides that no work shall be commenced within your right of way or property until the contractor employed in connection with said work for shall have executed and delivered to you a letter agreement in the form hereof and shall have provided insurance of the coverage and limits specified in said contract. If this letter agreement is executed by other than the Owner, General Partner, President or Vice President of the undersigned firm, evidence is furnished to you herewith certifying that the signatory is empowered to execute this agreenant for the firm. Accordingly, as one of the inducements to and ae part of the consideration for your qranting per- mission to the undersigned to enter upon your right of way or property for the performance of so much of the work as is necessary to be done within your right of way or property, the undersigned, effective on the date of the contract with the , has agreed and does hereby agree with you as follows: 1. The undersigned shall indenmify and save harmless the Santa Fe, its agents and enployees against all liability, claims, demands, damages, or costs for (a) death or bodily injury to persons, including without limitation the employees of the parties hereto, (b) injury to property, including without limi- tation, the property of the parties hereto, (c) design defects, or (d) any other loss, damage, or expense arising under either (a), (b), or (c), and all fines or penalties imposed upon or assessed against Santa Fe, and all expenses of investigating and defending against am, arising in any mnner out of (1) use, occupancy or presence of the undersigned, sub-contractors, employees, or agents in, on, or about the construction site,(2) the performance, or failure to perform, by the undersigned, its subcontractors, employees, or agents, its work or any obligation under this agreement, or (3) the sole or contributing acts or omissions of the undersigned, its subcontractors, employees, or agents in, on, or about the construction site. to, indenmify Santa Fe from its sole negligence or willful misconduct, or that of its agents, servants or independent contractors who are directly re6ponsible to it. Nothing contained in this provision is intended to, nor shall be deemed or construed 2. That the undersigned will procure, and maintain in force, insurance meeting all of the requirements outlined in the special provisions for and in contract referred to in the second paragraph above, and there is handed you herewith: (1) Original Policy in Railroad Protective Liability Form, favor of The Atchison, Topeka and Santa Fe Railway Company, One Santa Fe Plaza, 5200 Eaet Sheila Street, Lo. Angeles, CA 90040, and Certificate reflecting the existence of Contractor’s Public Liability and Property Damage Liability Insurance and Contractor’s Protective Public Liability and Property Damage Liability Insurance, (2) meeting such requirements. It is further distinctly understood and agreed by the undersigned that its liability to the Railway Conpany herein under Paragraph 1, will not in any way be limited to the armunt of insurance obtained and carried by the undersigned in connection with said contract. That the undersigned will observe and comply with all the provisions, obligations and limita- 3. tions to be observed by Contractor which are contained in tha sub-division of the specifications of the contract referred to in the second paragraph hereof, entitled “Rchtions with Railway Company”, and shall include, but not be limited to, payment of all costs incurred for any damages to milroad roadbed, tracks, and/or property, resulting from use, occupancy, presence of its employees or agents on or about the construction site. 1. A Kindly acknowledge receipt of this letter and of the insurance policies herein provided to be furnished to you by signing and returning to the undersigned a copy of this letter, which shall there- upon constitute an agreement betwen us. Yours truly, Its Receipt of the foregoing letter and of the policies and certificates of insurance herein provided to be furnished is hereby acknowledged this day of ,19-, THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY 2. 13 .. EXHIBIT "C-2" RAILROAD PROTECTIVE INSURANCE In addition to and specilicationa, the hereinaftt.r specified. ani other form of insurance or bonds required under the terms of the contract Contractor will be required to carry insurance of the kinds and in the amountr Such insurance shall be approved by: THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY hertinaftrr called "Railroad" before any work is perfomed on Railroad property and shall be carried until a11 work required to be performed on or adjacent to the Railroad's property under the terms of the contract is satisfactorily completed as determined by the Engineer, and thereafter until a11 tools, equipment and material have been removed from Railroad's property and such property is left in a clean and presentable condition. The insurance herein required shall be obtained by the successful bidder, and the original and certified copies of all policies as hereinafter specified shall be furnished to the Engineer. 'I'he Contractor dial1 furnish the Ensincsr with one (1) crrtifiod copy of each of tho oxecuted policicv iequired Ily 1, 2, snd 3 below, and in addition, shcill furnirh Railroad through the Lagiaoor, onv (I) ccrtificatr reflecting the existence of the executed policies required by 1 and 2 and the original policies of the insurance required by 3 below. A certification of such copies of insurance shall guarantee that the policy under 1 and 2 will not be amended, altered, modified, or cancelled insofar as the coverage contemplated hereunder is concernrd, without at least thirty (30) days' notice mailed by registered mail to the Engineer and to Rai Iroad. Full crnnpcnsation for all premiums which the Contractor is required to pay on a11 the insurance described hereinafter shall be considered as included in the pricc.s paid for the varioua itcms of work to bc perforked under the contract, and no additional allowance will be made therefor or for additional premium which may be required by extenoions of the policies of insurance. The approximate ratio of the estimated cost of the work over or under or within 50 feet of Railroad's tracks to the total estimated contract cost is 0.--. 1. Contractor's Public Liability and Property Damage Liability Insurance Tl~e Contractor shall, with respect to the operations he performr within or adjacent to Railroad's property, carry regular contractor's Public Liability and Property Damage Liability Insurance providing €or the same limits as specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnirhed for and in behalf of Railroad a0 hcreinaftar provided. If any part of the work within or adjacent to Railroad's property is subcontracted, Contractor in addition to carrying the above insurance, shall provide the above insurance in the siibcont ractors to cover their operations. 2. Contractor's Protective Public Liability and Property Damage Liability Insurance the behalf of The Contractor shall, with respect to the operations performed for him by subcontractors who do work within or adjacent to Railroad's property, carry in his own behalf regular Contractor's Protective Public Liability and Property Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and Property Damage Liability Insurance to be furnished for and in behalf of Railroad as hereinafter provided. 3. Railroad's Protective Public Liability and Property Damage Liability Insurance The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property or that of any of his subcontractors who do work within or adjacent to Railroad'r property, have issued and furnished separately, policy or policies of insurance in the Railroad Protective Liability Form as hereinafter specified in favor of The Atchison, Topeka and Santa Fe Railway Company, One Santa Fe Plaza, 5200 East Sheila Street, Lor Angelen, CA 90040. *. RAILROAD PROTECTIVE LIAB [LITY FORM (Name of Insurance Company) DECURATIONS Item 1. Named Insured: The Atchison, Topeka and Santa Fe Railway Company One Santa Fe Plaza, 5200 E. Sheila Street Loa Angeles, CA 90040 Item 2. Policy Period: From to 12:Ol a.m., Standard Time, at the designated job site stated herein. Tlw inwrnnce nffordrd in Only With rerpcct to such oi the Cal1owing covcragcr IO at. indicated in Ltem h hy specific premium charge or cbatgew. liability against such coverage or coverage# shall be ar stated herein, subject to all the terms of this policy having reference thereto. TIMI 7. The limit of the Company'r Cover age Limits of Liability A Bodily Injury Liability $2 million Combined Single Limit per occurrence, with an aggregate limit of $6 million for the term of the policy. R Property Damage Liability 6 C and Physical Damage to Property Ttem 4. N:ime ant1 Address of Contractor: Item 5. Name and Address of Governmental Authority for whom the work by the Contractor is being par f onncd : Item 6. Designation of the Job Site and Description of Work: I'rrmi um Rates pvr $100 of Cost Advance Premiums Ilaeer Coverage A Coverages B6C Coverage A Cove rages BbC Contract Rental (:ode $ t $ $ cost $ $ $ $ .................................................................................... Countersigned 19- BY (Name of Inrurance Company) 2. A insurance company, herein called the Company, agrees with the insured named in the Declarations made a part hereof, in coilsideration of the payment of the premium and in reliance upon the rtatements in the Declarations mad#. by the named insured and subject to a11 of the terms of this policy: INSURING AGREEW3EICS I. Coverage A - Bodily Injury Liability To pay on behalf of the insured all sums which the inrured shall become legally obligated to pay as damages because of bodily injury, sickners, or diream, including death at any time resulting therefrom, hereinafter called "bodily injury", either (1) sustained by any person arising out of acts or omissions at the designated job site which are related to or are in connection with the work described in Item 6 of the Declarations, or (2) sustained at the designated job rite by the contractor or any employe of the contractor or by any designated employe of the insured whether or not arising out of such acts or omissions. Coverage B - Property Damage Liab% To poy on hehalf of Che insured a11 sums whicli the insured rhall become legally obligated to pay ar damages becaure of physical injury to or destruction of property, including loss of ure of any property due to such injury or destruction, hereinafter called "property d.nuge", arising out of acts or omissions at the designated job site which are related to or are in connection with the work dercrihed in Item 6 of the Declarations. Coverage C - Phyrical Damage to Property To pay for direct and accidental losr of or damage io rolling stock and their contentr, mechnnical cnnstruction equipment, or motive power equipment, hereinafter called loss, arising out of acts or omissions at the designated job site which ar+? related to or are in connection with the work described in Item 6 of the Declarations; provided sttch property is ouned by the named iruured or is leased or entrusted to the named insured under a liaase or trust agreement. 11. Definitions (a) Insured - The unqualified word "insured" includes tlke named insured and also includes any executive officer, director or stockholder thereof while acting within the scope of his dutier as such. (b) Contractor - The word "contractor" means the contractor designated in Item 4 of the Declarations and includes all subcontractors of said contractor but shall not include the named insured. (c) I)csignntcd employee of the insured - The words "derignuced employe of the insured" mean: (1) any supervisory employe of the insured at the jlbaite, or (2) any employe of the insured while operating, attached to or engaged on Work trainr or other railroad equipment at the jobrite which are assigned exclusively to the contractor. (d) Contract - The word "contract" means any contract or agreement to carry a person or property for a consideration or any lease, trust, or interchange contract or agreement respecting motive pover, rolling stock or mechanical construction equipment. 111. Defense, Settlement, Supplementary Paymentr With respect to such insurance ar.is afforded by this policy under Coverages A and B, the Company shsl I : (e) defend any suit against the insured alleging such bodily injury or property damage and seeking damage. which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but tha! Company may make such investigation and settlement of any claim or suit as it deem expedient; 3. _-- (b) pay, in addition to the applicable limits of liability: (1) all expense. incurred by the Company, all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Company has paid or tendered or deposited in court that part of the judgment vhich does not exceed the limit of the Company'r liability thereon; premiitms on appeal bonds required in any such suit, premiums on bondr to release attachments for an amount not in excesr of the applicable limit of liability of thir policy, but without obligation to apply for or furnish any ruch bonds; expenses incurred by the insured for such itmediate medical and surgical relief to otherr as shall be imperative at the time of the occurrence; (2) (3) (4) all reasonable expenses, other than loss of earnings, incurred by the.insured at the Company's request. IV . Policy Period, Territory This policy applies only to occurrences and lorses during the policy period and within the United States of America, its territories or possessions, or Canada. EXCLUSXONS This policy does not apply: to liability assumed by the insured under any contract or agreement except a contract an defined herein; to bodily injury or property damage caused intentionally by or at the direction of the inrured; lo twlily iti.iirry, property tlamage or losr which occur8 after notification to the named insured or the acceptance of the work by the governmental authority, other than bodily injury, property damage or loso resulting from the existence or removal of tools, uninstalled equipment and abandoned or unused materials; under Coverages A(l), B and C, to bodily injury, property damage or loss, the role proximate cause of which is an act or omission of any insured other than acts or omissions of any designated employe of any insured; under Coverage A, to any obligation for which the iisured or any carrier as his insurer may be held liable under any workmen's cornpansation, unemployment compcnration or disability benefitr law, or under any similar law; provided that the Federal Employers' Liability Act, U.S. Code (1946). Title 45, Sections 51-60, aa ammded, shall for the purposes of this insurance be deemed not to be any similar law; under Coverage B, to injury to or destruction of property (1) owned by the named insured or (11) leased or entrurted to the named insured under a lease or trust agreement. 1. Under any Liability Coverage, to injury, sickncsr, disease, death or destruction: (a) with respect to which an insured under the policy is also an insured under a nuclear energy liability policy irruad by Nuclear Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any ruch policy but for its termination upon exhaustion of ita limit of liability; or resilltiny from the hazardous properties 01 nuclear material and vitti respect to which (I) any perron or organization ie r*.quired to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the insured is, or had this policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement enterad into by the United States of America, nr any agency thereof, with any person or organization. (h) 2. Unrler any medical Payments Coverage, or under any Supplementary-Paymentr provision relating to imdiate medical or rurgical relief, to expensea incurred with respect to bodily injury, sickness, diaeare or death resulting from the hazardous properties of nuclear material and ariaing out of the operation of a nuclear facility by any person or organization. 4. 17 3. 4. Under any Liability Coverage, to injury, sickness, disease, death or destruction resulting from the hazardous properties of nuclear material, if (a) the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (2) has been discharged or dispersed therefrom; the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or (b) (c) the injury, sickness, disease, death or destruction arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United Stater OF Ainerica, its territories or poeseesiona or Canada, this cxclusion (c) applies ouly to iiijury to or destruction of property at such nuclear facility. As used in this exclusion: "Hazardous propert ies" include radioactive, toxic or explosive properties; "nuclear material" means source material, special nuclear material or byproduct mterial; "eource material", "Special nuclear matariul", and "byproduct material" have the meanings given them in the Atomic Energy Act of 1954, or in any lau amendatory thereof. "spent fuel" means any fuel element or fuel component, solid or liquid, which har been used or exposed to radiation in a nuclear reactor; "waste" means any waste material: containing byproduct material and resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under Paragraph (a) or (b) thereof; lac i 1 i ty" means : any nuclear reactor any equipment or device designed or med for (1) separating the irotopar OE uraniilal nr pliitonium, (2) proccsning or utilizing spent fuel, or (3) handling, procesning or puckaging urate; any equipment or device used for thr processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235. any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, ell operations conducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustuin nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material; "injury". or "destruction" with respect to injury to or destruction of property, the word includes all forms of radioactive contamination of property. (h! under Coverage C, to loss due to nuclear reaction, nuclear radiation or radioactive contamination, or to any act or condition incident to any of the foregoing. CONDITIONS ('the conditions. except ctinditions 3, 4, 5, 7, 8, 9, 10, 11 and 12, apply to all coverages. Conditiims 3, 4, 5, 7, 8, 9, 10, 11 and 12 apply only to the coverages noted thereunder.) 1. PremilaH The premium bases and rates for the hazards described in the Declarations, aro stated Lherein. Premium bases and rates for hazards not so described are those applicable in accordance with the manuals in use by the Company. total cost of a11 work dcscrihed in Item 6 of the Declarations. Thv ~erm "rental cost" means the total cost to the contractor for rental of work trains or other railroad equipment, including the remuneration of a11 ewloyes of the insured while The term "contract cost" means the - L. - .--__L_, L_ - .. > _L ___ ..- A .- The advance premium stated in the Declarations is an estimated premium only. Upon termination of this policy the earned premium shall be computed in accordance vith the Company'r ruler, CnLes, rating plans, premiums and minimum piemiumr applicable to this insurance. If the earned premium thur computed exceedr the estimated advance premium paid, the Company rhall look to the Contractor specified in the Declaration. for any such excess; if leer, the Company =ha11 return to the raid contractor the unearned portion paid. In no event shall payment of premium be an obligation of the named insured. Inspection The named insured shall make available to the Company records of information relating to the subject matter of thi8 insurance. 2. The Company shall be permitted to inspect all operations in connection with the work dercribed in ltem 6 of the Declarations. 3. Limits of Liability The limits of bodily injury liability rtated in the Declaration. as Coverage A of bodily injury sustained by one person as the result of any one occurrence; the limit of ruch liability stated in the Declarations as applicable to "each occurrence" is, rubject to the above provirions respecting each person, the total limit of the Company'# liability Cot all such damip,c arising out of bodily injury surtained by two or more person. ai the terult of my one occurrence. The limitr of liability under Coverage. B and C rtated Coverages B6C as applicable to "each occurrence" ir the total limit of the Company'r ariring out of phyrical injury to, dertruction or losr of a11 property of one or more persons or organizrtionr, including the loss of use of any property due to much injury or destruction under Coverage B, as the rerult of any one occurrence. applicable to "each person'' is the limit of the Company's liability for all damages, including damages for care and loor of services, aririw out 4. Subject to the above provisions respecting "each occurrence", the limit of liability under Coverages B and C stated in the Declaration or "asgregate" ir the total limit of the Company's liability €or all damages and a11 loso under Coverager B and C combined ariring out of phvsical injury to, destruction or loss of property, including the losr of ure of any property due to such injury or destruction under Coverage B. Under Coverage C, the limit of the Company's liability for loss shall not exceed the actual cash value of the property or if the loss is of a part thereof the actual cash value of such part, at time of loss. nor what it would then coat to repair or replace the property or such part thereof with other of like kind and quality. Sevrrality of Interests Coverages A60 5. The term "the insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limits of the Company's liability. 6. - Notice - -- respect to the time, place and circumstances thereof, and the name. and addresser of the injured and of available witnesrer, shall be given by or for the insured to the Company or any of its authorized agents as soon aa practicable. the insured, he shall idiately forward to the Company every demand, notice, supIponr or other process received by him or his representative. In the event of an occurrence or lorn, writtell notice containing particulars sulfisient to ident icy the insured aiid alyo reasonably obtainable information urth If claim is made or suit is brought againrt 7. Assistance and Cooperation o€ the Insured The insured shall cooperute vith the Company Coverages A60 and, upon the Company's requert, attend hearing8 and trialr and assirt in attendance of witnesses and in the conduct of suits. The insured shall not, except at hir own cost, voluntarily make any payment, AS~UIIK any obligation or incur any expense other than for such immediate medical and surgical relief to others an shall be imperative at the time of accident. making settlements, securing and giving evidence, obtaining the 8. Action Against Company No action shall lie againrt the Company unless. as a condition Coverages A6B obligation to pay shall have been finally determined either by judgment againrt the inrured after actual trial or by written agreement of the insured, the claimant and the Company. Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. right under ttiir policy to join the Company as a paity to any action against the inrured to determine the inrured'r liability. insured's estate shall not relieve the Company of any of it. obligationr hereunder. precedent thereto, the insured shall have fully complied with a11 the terms of thir policy, nor until the amount of the insured's No person or organization rhall have nny Bankruptcy or insolvency of the inrured or of the 6. c Coverage C No action shall lie against the Company, unlesr, as a condition precedent thereto, thirty dayr after proof of lorr ir filed and the atilount of lore is determined an provided in thir policy. there shall have been full compliance vith a11 the terms of thir policy nor until 9. Inrured's Duties in Event of Lorr In the event of losr the insured shall: Coverage C (A) protect the property, whether or not the 10.8 is covered by thir policy, and any further loss due to the insured's failure to protect shall not be recoverable under thir policy; reasonable expenses incurred at the Company'r requert; (h) file with the Company, as goon as practicable after losr, his sworn proof of losr in such form and including such information ar-the Company may reasonably require and shall, upon the Company'. request, exhibit the damaged property. 10. Appraisal If the insured and the Company fail to agree as to the amount of lors, either may, Coverage C within 60 days after the proof of loss ir filed, deund an appraisal of the loss. competent appraiser, and the apprairerr rhall select a competent and dirinterested -ire. The apprairers aha11 state separately the actual cash value and the amount of lorr and failing to agree rhall rubmit their differences to the umpire. determine the amount of loss. The inrured and the Company shall each pay his chosen appraiser and shall bear equally the other expenses of the appraisal and umpire. In such event the insured and the Company shall each relect a An award in writing of any two shall The Company shall not be held to have waived any of its rights by any act relating to appra iral. 11. Payment of Loss Coverage C The Company may pay for the loss in wney but there shall be no abandonment of the damaged proparty to the Company. - 12. No Benefit to Sailee The inrutancc afforded by thir policy shall not inure directly or named insured, liable for lorr to the property. Coverage C indirectly to the benefit of any carrier or bailee, other than the 13. Subrogation In the event of any payment under this policy, the Company shall be subrogated to all the innured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do vhatever else is necessary to secure such rights. prejudice such rights. The insured shall do nothing after loss to 14. Application of Inrurance The insurance afforded by this policy is primary inrurance. 15. Three-Year Policy A policy period of three years is comprised of three consecutive annual periods. Computation and adjustment of earned premium shall be made at Aggregate limitr of liability as stated in this policy shall the end of each annual period. apply separately to each annual period. 16. Changes Notice to any agent or knowledge poisenred by any agent or by any other perron shall not effect a waiver or a change in any part of this policy or stop the Company from asserting any right under the terw of this policy; nor shall the terms of this policy be waived or changed, except by cndorraunt isrued to form a part of thir policy. Araigm?iit of interert' under thio policy wliall not bind the Company until ita conrent ir endorred hereon. 17. &igniuc-ai 18. Cancellation This policy my be cancelled by the na-d insured by mailing to the Company written notice rtating when thereafter the cancellation aha11 be This policy may be cancelled by the Company by mailing to the named insured. effective. contractor and governmental authority at the respective addresses shown in this policy written noLice stating when not less than thirty dayr thereafter such cancellation shall be effective. The mailing of notice as aforesaid rhall be sufficient proof of notice. The effective date and hour of cancellation stated in the notice shall become the end of the policy period. shall be equivalent to mailing. Delivery of ruch written notice either by the named inrurad or by the Company If the named insured cancel., earned premium dull be computed in accordance vith the If the Company cancels, earned premium shall be customary short rate table and procedure. computed pro rata. or as aoon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. Premium adjustment may be made either at the time cancellation is effected 7. _- A 19. Declarrtionr By rcceptancc of thir policy che named inrured agrees that such rtatewnt in the Declarationr am are made by him are hir agreaoantr and representationr, that thir policy is isrucd in reliance upon the truth of such reprercntationr and that thir policy embodier dl agreementr existing between hiuelf and the Company or any of its agrntr relating to thir insurance. IN WITNESS WHEREOF, the Indemnity Company ha# caured thir policy to be rigned by its prcrident and a racretary at countersigned on the Daclarationr page by a duly authorized agent of the Company. and (FACSIMILE OF SIGNATURE) Secretary (FACSIHILE OF SIGNATURE) Pre r ident 8. CITY OF CARLSBAD / Attachments: )< Reply Requested: Signature: Date: Signature: 10/83 The Atcbison,Topeka and Santa Fe Railway Company A Sanle ff /ndd/crf,c< Covfidvpr -- One Santa Fe Plaza, 5200 East Sheila Street, Los Angeles, California 90040 213/267-5406 February 24, 1984 File: 435-Ponto-56 (Poinsettia Lane O.H.) Mr. A1 bert A. Kercheval Kercheval and Associates, Inc. 9420 Farnham Street Suite 113 San Diego, CA 92123 Dear Mr. Kercheval : The Supplemental Construction and Maintenance Agreement for Poinsettia Lane in the City of Carlsbad has been executed on behalf of Santa Fe. Enclosed are duplicate originals of the Agreement to be executed by the City. When executed, please return the Santa Fe Original , along with the Resolution and/or Minutes excerpt which gives those signing this Agreement authority to do so. Very truly yours, 1 -- Q4L A. H. Renne Assistant General Manager Engineering