Loading...
HomeMy WebLinkAbout1986-12-09; City Council; 8828; Avenida Batiquitos AT&SF railway bridge PUC appl.\B#~ dTG.* 1EPT.- Adopt Resolution No. gg9 7 approving an application to the Public Utilities Commission of the State of California for the construction of a bridge over the AT&SF Railway at Avenida Batiquitos. Adopt Resolution No. Pr? 98' approving a supplement a1 agreement to indemnify and hold harmless the City of Carlsbad. Adopt Resolution No. $7"99 approving an agreement for construction and maintenance of a grade separation structure at Avenida Batiquitos. TITLE: P.U.C. APPLICATION FOR HE BRIDGE OVER CITY MG R.z?+ AT&SF RAILWAY AT AVENIDA BATIQUITOS ITEM EXPLANATION As a condition of approval for the Batiquitos Lagoon Educational Park (Carlsbad Tract 85-37 and Carlsbad Tract 85-38), the developer is required to construct a bridge over the AT&SF Railway for Avenida Batiquitos. The construction the bridge requires that the City obtain the approval of the California Public Utilities Commission (PUC). The PUC application form has been prepared and is attached as Exhibit 4. In addition, the City must enter into a construction and maintenance agreement with the AT&SF Railway Company. The agreement has been prepared and is attached as Exhibit 8. of It is anticipated that an assessment district will be formed for the purpose financing the construction of the bridge and related arterial roadways in the vicinity. The construction contract will be managed by the developer on the bridge project. A supplemental agreement between the City and the developer (Sammis Properties) has been prepared which requires the developer to indemnify the City for their part of the construction of the bridge. In addition, the agreement provides for the developer's assumption of the bridge construction responsibilities in the event the assessment district fails. of FISCAL IMPACT No impact to the City. The bridge will be completely funded by the developer. The City must pay an up-front cost of $164,968.00 to the AT&SF Railway Company for railroad facility relocations and inspections. Prior to the City payment of this money, the developer will deposit that amount with the City. City staff time spent on the project will be charged to the assessment district and/or covered by normal plan check and inspection fees. -c-- c ? Page 2 of Agenda Bill No. fg2r EXHIBITS 1. Location Map. 2. Letter of request from developer's agent dated November 14, 1986. 3. Resolution No. 8897 approving an application to the Public Utilities Commission of the State of California for the construction of a bridge over the AT&SF Railway at Avenida Batiquitos. 4. P.U.C. Application. 5. Resolution No. 889r approving a supplemental agreement to indemnify and hold harmless the City of Carlsbad. 6. Supplemental Agreement between Sammis Properties and the City of Carlsbad. 7. Resolution No. f 89 9 approving an agreement for construction and maintenance of a' grade separation structure at Avenida Batiquitos. 8. Agreement between City of Carlsbad and the Atchison, Topeka and Santa Fe Railway Company. , LOCATION MAP PRO J. 'E XHlBl NO. PROJECT NAME: P u. c. fX?PL\C~TlON aa5-37 I I 1 ASSOCIATE COUNSEL F. MACKENZIE BROWN. INC WARREN 8. DIVEN THOMAS J. RUHRUP RONALD E. NULL P.O. eox a025 A PROFESSIONAL CORPORATION FAIRBANKS RANCH PLAZA RANCHO SANTA FE, CALIFORNIA 920G7 (619) 756-5994 LOS ANGELES 1213) 587-1915 ORANGE (7141 551-1915 RIVERSIDE (714) 359-5489 VENTURA (8051 653-1915 ,.ovember 14, 1986 Mr. Marty Orenyak Community Development Director City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008-1989 RE: Batiquitos Lagoon Educational Park; Sammis Properties Dear Mr. Orenyak: Upon the advice of Vince Biondo, City Attorney for the City of Carlsbad, we are writing this letter. We enclose for your use the following items: 1. Duplicate originals of the Construction and Maintenance Agreement executed by the Atchison, Topeka and Santa Fe Railway Company regarding the separated grade crossing at Avenida Batiqui tos. City of Carlsbad related to Batiquitos Lagoon Educational Park. Commission for approval of the crossing at separated grades. 2. Supplemental Agreement between Sammis Properties and the 3. Application to the California Public Utilities 4. A Resolution of the City Council of the City of Carlsbad Authorizing Application by the City to the Public Utilities Commission of the State of California for an Order Authorizing Construction of the Separation Structure over the Mainline Tracks of the Atchison, Topeka, Santa Fe Railway Company and Avenida Batiquitos. We ask that the above-referenced items be placed on the agenda for presentation to the Carlsbad City Council at the earliest opportunity. The Agreement between the City and the Railroad must be executed in duplicate and the copy marked "Santa Fe Original" must be returned to- the undersigned. RECEIVED NCv 1 rH986 CITY OF CARLSBAD Building Department c t < RONALD E. NULL A PROFESSIONAL CORPORATION c Mr. Marty Orenyak November 14, 1986 Page Two In order for appropriate submittals to be made to the Public Utilities Commission of the State of California, we must have 13 certified copies of all documentation. Should you have any questions or need any additional materials, please call. Please note that in addition to all of the enclosed documentation, the Railway requires a certified copy of the Minutes of the City Council wherein the Construction and Maintenance Agreement between the Railway Company and the City is approved. Please contact the undersigned if you have any questions. Very truly yours, RONALD E. NULL, INC. THOMAS J. RUHRUP TJR/jd Enclosures cc: Vince Biondo (w/enclosures) Jon Briggs (w/enclosures) Pat O'Day (w/enclosures) - 1 2 3 7 8 9 10 11 12 13 14 15 16 17 le 19 2c 21 2.2 2: 24 2: 2E 27 2€ - RESOLUTION NO. 88% '37 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD AUTHORIZING AN APPLICATION BY THE CITY TO THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA FOR AN ORDER AUTHORIZING CONSTRUC- TION OF THE SEPARATION STRUCTURE OVER THE MAIN LINE TRACKS OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AT AVENIDA BATIQUITOS. WHEREAS, the City of Carlsbad proposes to construct a railroad crossing at separated grades between Avenida Batiquitos and the railroad tracks of The Atchison, Topeka and Santa Fe Railway Com- pany: and WHEREAS, the actual construction of the crossing at separated grades will be performed by Sammis Properties and its contractors as part of the comprehensive development of the project known as Batiquitos Lagoon Educational Park; and WHEREAS, the City of Carlsbad will arrange financing through the formation of an assessment district and the sale of bonds: and WHEREAS, the tracks are the property of The Atchison, Topeka and Santa Fe Railway Company; and WHEREAS, no public road, highway or street may be constructed over and across the tracks of any railroad corporation without 'first having secured the permission of the California Public Utilities Commission; and WHEREAS, Streets and Highways Code Section No. 989 and Section Nos. 1800 -- et seq. provide that the City of Carlsbad shall have. jurisdiction over the construction and maintenance of all City streets in the City. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, as follows: 1. All of the above recitals are true and correct. ... Exhibit 3 4 5 9 10 11 12 13 14 15 15 17 18 19 20 21 22 23 24 25 26 27 28 2, The Mayor is hereby authorized to execute and verify on behalf of the City of Carlsbad, an Application by the said City to the Public Utilities Commission of the State of California for an Order authorizing construction of a separation structure over the mainline tracks of The Atchison, Topeka and - Santa Fe Railway Com- pany at Avenida Batiquitos. PASSED, APPROVED and ADOPTED at a regular meeting of the City Council held on the 9th day of December , 1986, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine and Mamaux NOES: None CLAUDE A. LEWIS, Mayor ATTEST: dmhL 4. 6,- ALETHA L. RAUTENKRANZ, City CleT (SEAL ) APPROVED AS TO FORM: APPROVED AS TO F. BIONDO, JR., CITY ATTORNEY I- e (2. LUJd R Vincent F, Biondo Jr., C -2- 1 \ 1 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 1E 19 2c 21 22 2: 24 25 26 27 28 RESOLUTION NO. 8898 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A SUPPLEMENTAL AGREEMENT BETWEEN SAMMIS PROPERTIES AND THE CITY OF CARLSBAD FOR THE CONSTRUCTION OF THE AVENIDA BATIQUITOS BRIDGE OVER THE ATCHISON, TOPEKA AND SANTA FE RAILROAD. WHEREAS, the City of Carlsbad has required Sammis Properties, as developer of the Batiquitos Lagoon Educational Park (Carlsbad Tract 85-37 and Carlsbad Tract 85-38>, to construct Avenida Batiquitos over the Atchison, Topeka and Santa Fe Railroad; and WHEREAS, the developer wishes to proceed with the construction of a bridge over the Atchison, Topeka and Santa Fe Railroad in satisfaction of the City imposed condition; and WHEREAS, the City, as responsible jurisdiction, must obtain approval of the California Public Utilities Commission (PUC) prior to the construction of said bridge; and WHEREAS, a prerequisite to obtaining PUC approval is execution of an agreement between the City and Atchison, Topeka and Santa Fe Railway Company regarding rights and liabilities of the parties during construction of the bridge; and WHEREAS, the City desires to have the developer assume certain of the construction responsibilities related to the construction of the bridge as provided in the Atchison, Topeka and Santa Fe Railway Company agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. The Mayor is hereby authorized to execute on behalf of the City of Carlsbad, a Supplemental Agreement between said City and Sammis Properties regarding construction of a separation structure over the mainline tracks of 3 4 5 , Council held on the 9th day of December , 1986 by the following vote, to -- wit: AYES: Council Members Lewis, Kulchin, Pettine and Mamaux ATTEST: 7 ALETHA L. RAUTENKRANZ, City Clerk \ ABSENT: None 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2% CLAUDE A. LEWIS, Mayor 1 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 -- RESOLUTION NO. 8899 A RESOLUTION OF THE CITY COUNCIL' OF THE CITY OF CARLSBAD, CALIFORNIA, APPHOVING AN AGREEMENT BETWEEN ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND THE CITY OF CARLSBAD FOR THE CONSTRUCTION OF A GRADE SEPARATION STRUCTURE OVER THE ATCHISON, TOPEKA AND SANTA FE RAILROAD AT AVENIOA BATIQUITOS. WHEREAS, the City of Carlsbad has required Sammis Properties, as developer of the Batiquitos Lagoon Educational Park (Carlsbad Tract 85-37 and Carlsbad Tract 85-38), to construct Avenida Batiquitos over the Atchison, Topeka and Santa Fe Railroad; and WHEREAS, the developer and the City wish to proceed with the construction of a grade separation over the Atchison, Topeka and Santa Fe Railroad in satisfaction of the City imposed condition; and WHEREAS, the City, as responsible jurisdiction, must receive approval from the California Public Utilities Commission (PUC) prior to the construction of said grade separation structure; and WHEREAS, a prerequisite to obtaining PUC approval is execution of an agreement between the City and Atchison, Topeka and Santa Fe Railway Company regarding rights and liabilities of the parties during construction. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. The Mayor is hereby authorized to execute on behalf of the City of Carlsbad, an agreement between the City and Atchison, Topeka and Santa Fe Railway Company regarding rights and liabilities of the parties during /// /// /// _- I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 le 19 2c 21 22 22 24 25 26 27 2E -- construction of a separation structure over the mainline tracks of The Atchison, Topeka and Santa Fe Railway Company at Avenida Batiquitos. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 9th day of December , 1986 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine and Mamaux ATTEST : ALETHA L. RAUTENKRANZ, City Cle (SEAL ) 05000009-56 Avenida Batiquitos OH AGREEMENT, made this 2/ / day of d1JA , 19& between THE ATCHISON, TOPEKA AHD SWA FE RAILWAY COcIpIusy, a Delaware corporation, hereinafter called "Santa Fe" and the CITY OF CARLSBAD, a political subdivision of the State of California , hereinafter ref erred to as '*CITY*'. RE C I TAL S: Santa Fe owns and operates a line of railroad in and through the County of San Diego, State of California. City proposes to construct a crossing at separated grades, to be known as Avenida Batiquitos Overpass, so as to pass over by means of reinforced concrete and steel structure and approaches thereto, the right of way and tracks of Santa Fe in the City of Carlsbad, County of San Diego, State of California. The term "structure" as used in this agreement shall include the proposed overpass separation structure and approaches thereto, any and all necessary changes to telephone, telegraph, signal and electrical lines and appurtenances, all temporary and permanent track work, grading, drainage and all other work of every kind and character necessary to accomplish the construction of the Avenida Batiquitos Overpass at the location shown on print of Drawing C.E. lo. 5-06209, dated August 28, 1986, marked Exhibit "A" attached hereto and made a part hereof. The parties hereto desire to express in writing their understandings and agreement pursuant to which said structure is to be constructed, used and maintained. -1- AGREEMENT ARTICLE I I# COUSIDLRATIO# OF the covenants of City hereinafter contained and the faithful performance thereof, Santa Fe agrees: 1. To give and hereby gives permission and license to City, its successors and assigns, to enter that portion of Santa Fe's right of way shown shaded on said Exhibit "A" solely for the purpose of construction and maintenance of said structure as shown outlined bold on said Exhibit "A". This license and permission is subject to: a. All licenses, leases, easements, restrictions, reservations, conditions, covenants, encumbrances, rights and rights of way, liens and claims of title which may in any manner affect the said right of way. b. The prior and continuing right and obligation of Santa Fe, its successors and assigns, to use in the performance of its public duty as a comon carrier. This license and permission is given without warranty of title of any kind, express or implied. 2. To furnish all labor, material, tools and equipment and do railroad work required due to construction of said structure, such railroad work and the estimated cost thereof being as shown in Exhibit "B" attached hereto and made a part hereof. item of work incidental to those items listed in said Exhibit "B" but not specifically mentioned therein may be included as part of this agreement as an item of work upon written approval of City if practicable. structure will require work by Santa Fe as follows: Any Construction of said a. Hake such changes in the alignment, location and elevation of its telephone, telegraph, signal and/or wire lines and appurtenances along, over or under its tracks, and track changes as may become necessary by reason of the construction of said structure. -2- c b. Furnish such watchmen and flagmen as may be necessary for the safety of its property and the operation of its trains during the construction of said structure. c. Furnish Engineering and Inspection as required for construction of said structure. 3. To do all work herein provided to be done by Santa Fe in fulfillment of its obligations hereunder with its own employes, working under Railroad Labor Agreements and on a force-account basis. 4. To submit to City upon completion of the structure, a detailed statement of the final cost of work performed by Santa Fe, 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 shall be as set forth in the Federal Aid Highway Program Hanual, 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. ARTICLE I1 I# COUSIDERATIOBl of the covenants of Santa Fe herein contained and the faithful performance thereof, City agrees: 1. To prepare plans and specifications for said structure. Five sets of said plans, two copies of calculations, and three copies of specifications shall be submitted to Santa Fe for approval prior to commencement of construction. approved by both parties hereto, said plans and specifications are hereby adopted and incorporated into this agreement by reference. After having been 2. To make application to the Public Utilities Commission of the State of California for an order authorizing the construction of said structure and to furnish to said Commission plans of the proposed construction, approved by Santa Fe, together with a copy of this agreement. -3- 3, To acquire all rights of way necessary for the construction of said structure. 4. To do all necessary grading, to construct said structure, as shown on said Exhibit "A" print, provide suitable drainage, and do all work provided for in the plans and in the specifications for said structure, except such work as Santa Fe herein agrees to do. 5. To make any and all arrangements that may be necessary to secure the location or relocation of wire lines, pipelines and other facilities, owned by private persons, companies, corporations, political subdivisions or public utilities other than Santa Fe which it may be found necessary to locate or relocate in any manner whatsoever due to the construction of said structure. 6. To furnish all labor, materials, tools and equipment in doing the work it herein agrees to do. To do all work called for on its part in such manner as not to interfere with the safe operation of Santa Fe's line of railroad. 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. 8. To require its contractor, or contractors, to furnish to Santa Fe, for approval, four copies of plans and two sets of calculations of any shoring or cribbing that may be planned to be used over, under or adjacent to Santa Fe's tracks, and the use of such shoring or cribbing will conform to the standard side clearance as per General Order No. 26-D of the Public Utilities Commission of the State of California, governing such clearances. In case the use of such shoring will impair clearances requested by City in its application to the Public Utilities Commission of the State of California, City will apply to the Public Utilities Commission for approval of such impairment during the period of construction of said structure. 9. To incorporate in each prime contract for construction of structure, or the specifications therefor, the provisions, entitled "Relations with Railway Company" -4- set forth in Exhibits "C", "C-1", and "C-2", attached hereto and made a part hereof, and accepts responsibility of compliance by its prime contractor. 10. That, except as hereinafter otherwise provided, all work to be done hereunder by City in the construction of said structure will be done pursuant to a contract or contracts to be let by Sammis Properties, a California corporation (Sammis) pursuant to an agreement between City and Sammis to a contractor or contractors, and all work performed thereunder within the limits of said right of way shall be performed in a good and workmanlike manner and in accordance with plans and specifications approved by Santa Fe and only those changes or modifications during construction that affect Santa Fe shall also be subject to approval by Santa Fe and all such contracts shall provide: a. That a11 work performed over, under, or adjacent to the track of Santa Fe shall be done to the satisfaction o€ Santa Fe. b. That no work shall be commenced over or adjacent to Santa Fe tracks until each of the prime contractors employed in connection with said work shall have (i) executed and delivered to Santa Fe a letter agreement in the form of said Exhibit "C-le*, and (ii) delivered to and secured the approval by Santa Fe of the insurance required by said Exhibit "C-2". c. That if, in the opinion of City, it shall be for the best interest of City it may direct, that the construction of said structure be done by day labor under the direction and control of City, or if, at any time, in the opinion of City, the contractor has failed to prosecute with diligence and force the work specified in and by the terms of said contract, it may in the manner provided by law, terminate the contractor's control over said work and take possession of all or any part thereof, and proceed to complete same by day labor or by employing another contractor or contractors on informal contracts, provided that all such informal contracts shall require the contractor to comply with the obligations in favor of Santa Fe herein setout in Section 10 of this Article 11, and provided further, that if such construction is performed by day labor, City will, at its expense, procure and maintain in behalf of Santa Fe insurance required by said Exhibit "C-2". -5- 11. To make advance deposit to Santa Fe, prior to construction, the estimated cost of work to be performed by Santa Fe forces, as shown on said Exhibit "B" and, upon completion of structure, to reimburse Santa Fe all costs due them compiled in accordance with provisions of Article I, Section 4. In the event of overpayment to Santa Fe in accordance with said Exhibit "B", Santa Fe shall promptly refund the amount due City upon reconciliation of final actual costs. 12. To notify Santa Fe in writing within 30 days of completion of structure, the date on which City, its Contractor, and Santa Fe will meet for the purpose of making final inspection of said structure. ARTICLE I11 IN CONSIDERATION of the premises, it is mutually agreed: 1. 2. 3. 4. That all work contemplated in,this agreement shall be performed in a good and workmanlike manner and to the satisfaction of the parties hereto, and each portion shall be promptly commenced by the parties hereto obligated to do the same and thereafter diligently prosecuted to conclusion in its logical order and sequence. That the structure shall be constructed to accommodate the tracks of Santa Fe and to provide for a four-lane roadway and two sidewalks over the railroad, as shown on said Exhibit "A". The work shall be done in accordance with detailed plans approved by both parties and subject to approval by the Public Utilities Commission of the State of California, with minimum clearances of not less than those specified in General Order No. 26-D of said Commission. That City will bear the entire cost and expense incurred in connection with the construction of said structure, subject to the provisions set forth herein. That City will, out of funds made available to it for the construction of said structure, reimburse Santa Fe in full for all work done by it, subject, however, to the following conditions: -6- c a. Provided, that should some unforeseen condition or combination of conditions increase the cost of the work to be performed by Santa Fe in excess of the total cost, as set forth in the aforementioned estimate marked Exhibit "B", Santa Fe will not be obligated to incur any expenditures in excess of said total unless and until so authorized by City, it being the intent that Santa Fe be reimbursed for any and all expenditures allowed under this agreement, but insofar as is practicable it shall secure authority from City before exceeding the total cost as set forth in said Exhibit B"; and 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. 5. That the work of constructing said structure shall not be commenced until City shall have given written notice to the Assistant General Manager-Engineering of Santa Fe, stating the date that such work is to begin. 6. That the work by Santa Fe's forces provided for in this agreement will not be commenced at the structure site until authorization to proceed is made by City in writing. Santa Fe may purchase and stockpile material in advance of construction for work outlined in said Exhibit "B". 7. That the construction of said structure shall be performed and effected in such a manner as to interfere as little as possible with the safe operation of locomotives, trains and cars of Santa Fe over its tracks. 8. That after completion of the construction of said structure.as hereinabove described: a. Santa Fe will, at its sole cost and expense, maintain its roadbed, track, railroad drainage, and all other railroad facilities; provided, however, that -7- nothing herein contained shall relieve City of any liability which would otherwise be legally imposed upon it with respect to damage caused to said railroad facilities by negligent acts or omissions of City, its agents or employes. b. City will, at its sole cost and expense, maintain the overpass, lighting, highway drainage, highway approaches, and appurtenances, as shown on said Exhibit "A"; provided, however, that nothing herein contained shall relieve Santa Fe of any liability it would otherwise have with respect to damage caused to said structure by negligent act or omission of Santa Fe or its employes. 9. Before entering upon Santa Fe's property for maintenance purposes, City will notify the AGW-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. 10. 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 any person, including without limitation the employes of the parties hereto, (b) injury to property, including without limitation, the property of the parties hereto, (e) 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. -8- 11. That if Santa Fe shall deem it necessary or desirable in the future, in the performance of its duty as a common carrier, to raise or lower the grade or change the alignment of its tracks or to lay additional track or tracks or to build other facilities in connection with the operation of its railroad, Santa Fe shall, at its expense, have full right to make such changes or additions, provided such changes or additions do not change or alter the grade separation structure herein proposed to be constructed and provided further, however, that should it become necessary or desirable in the future to change, alter, widen or reconstruct said structure to accommodate railroad projects, the cost of such work, including any cost incidental to alteration of said structure, shall be divided between Santa Fe and City in such shares as may be determined by the Public Utilities Commission of the State of California. 12. That if City shall deem it necessary or desirable in the future, due to traffic conditions, to alter or reconstruct structure herein contemplated, it shall have full right to do so, cost of which shall be divided between Santa Fe and City in such shares as may be determined by them, subject to the jurisdiction of the Public Utilities Commission of the State of California; provided, however, that such alteration or reconstruction shall not encroach further upon nor occupy the surface of Santa Fe's property herein provided to a greater extent than is contemplated by the plans and specifications to be approved by Santa Fe as provided in Article 11, Section 1 hereof, without the prior written consent of Santa Fe, and execution of supplemental agreement. 13. In the event that construction has not begun for a period of three years from date of signing agreement, this agreement shall become null and void. 14. That the books, papers, records and accounts of the parties hereto, insofar as they relate to the items of expense €or labor and material or are in any way connected with the work herein contemplated, shall at all reasonable times be open to inspection and audit by agents and the authorized representatives of the parties hereto €or a period of not less than three years from the date of final payment. -9- 15. That the covenants and provisions of the foregoing instrument shall be binding upon and inure to the benefit of the successors and assigns of Santa Fe and the assigns of City. IN WITNESS WHEREOF the parties hereto have duly executed this agreement on the day and year first above written. ATTEST : THE ATCHISON, TOPEKA BY /r c - 4- ,,*->4 c , "; Assistant Secretary UU Its ~ECUTIVE WCE PREMOENT ATTEST : City Clerk 1 62367XH - 10 - - - E X H I BIT "A" THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY ATTACHED TO CONTRACT BETWEEN AND CWY CAR!S&ao CHICAGO, ILLINOIS SCALE: 1 IN. TO269 FT. DESCRIPTION APPROVED I DN. DWG. NO. DIV. FILE NO. G.M. FILE NO.-C.E. FILE NO.B-007-- TG8 EXH I BIT FORCE ACCOUNT ESTIMATE I' B " THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY In connection with construction of grade separation, Avenida Batiquitos, San Diego County, Mile Post 234.4 at Ponto, California. Place 4,550 feet of the existing overhead signal wires in underground cable and provide necessary engi neeri ng. .......................................... QUANTITY MATE RIAL : P.V.C., 3" dia. 4 , 550 Cable, 4-cond., #9 5,000 Cable, 2-cond. , #9 5 , 000 Cable, 12- cond. , #14 5,000 Doubl earm crossarms & fittings 4 Deade nd 20 Arm guy 2 Cabl e drop, 12 conductor 2 Pole & arrestor box 2 U.G. pull box 14 Cabl e splicing 16 Ar re s te rs 20 Conduit 3" x 10' 32 Conduit el bow 4 Handling: 25% x $68,124 Sales taxes Transportation on mater1 a1 Total Materi a1 LABOR : FijET supervisor engineering (construction) Signal Department 1 abor Supervision 38.7% x $19,080 Payroll associated costs: 57.9% x $20,988 Subsistence OTHER: ment rental - Railway Co. Total Labor Total Other Billing and accounting Add for contingencies Total Estimated Cost UNIT LF LF LF LF EA EA EA EA EA EA EA EA EA EA SUBTOTALS TOTAL COST 7,524 12,237 6 , 394 15,819 27 3 73 95 1,268 1,102 18,520 2,646 11 0 1,834 229 17,031 5,158 81 7 91,130 1,908 19,080 7,384 12,152 7,632 9.200 48,156 9,200 1,485 14,997 164 , 968 The A.T. & S.F. Railway Company Chief Engineer System - Chicago April 16, 1985 - 76-007-00086 Revised: June 25, 1985 AKP /1748e EXHIBIT "C" I(t,:I .Ai'InN:; WT'rH RAILWAY COMPANY -1.111 General.--The Contractor, as a prerequisite for award, shall be satisfactory as to his resl'onsibility and ability to perform the work over and across the property and over or under the tl-ack'; of Ttie Atchison, Topeka and Santa Fe Railway Company. IC is c=xlwcte(t that The Atchison, Topeka and Santa Fe Railway Company will cooperate with the r~ltractor to the end that the work may be handled in an efficient manner, but the Contractor shall have IIO claim for damaqes or extra compensation in the event his work is held up by the work of the Railway Company forces. -1.02 Agreement.--Before doing any work on Railway right of way, or property, the Contractor will be required to execute and deliver to The Atchison, Topeka and Santa Fe Railway Company a letter agree- ment, in the form attached hereto, obligating the Contractor to provide and keep in full force and cffect the insurance called for under "insurance" of these special provisions. -1.03 Railway Requirements.-The Contractor shall cooperate with The Atchison, Topeka and Santa Fe Railway Company where work is over or under the tracks, or within the limits of Railway property in order to expedite the work and to avoid interference with the operation of Railway equipment. The Contractor shall comply with the rules and regulations of Railway or the instructions of its representatives in relation to the proper manner of protecting the tracks and property of Railway and the traffic moving on such tracks, as well 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 much 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. The Contractor shall take protective measures necessary to keep Railroad facilities, including track ballast, free of sand or debris resulting from his operations. resulting from contractorls 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 estimates. Any damage to Railroad facilities 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: 10'-0" 22"" 27'-0" Vertically above top of rail for electric wires carrying lesn than 750 volts. ?.8'-0" 30'-0" Vertically above top of rail for electric wires carrying 15,000 volts to 34'-0" Vertically above top of rail for electric wires carrying more than 20,000 Horizontally from center line of track. Vertically above top of rail Vertically above top of rail for electric wires carrying 150 volts to 15,000 volts. 20,000 volts. volts. Any infringement on the above clearances or walkways due to the Contractor's operations shall be submitted to the Railway and to the Engineer and shall not be undertaken until approved by the Railway, and until the Enqineer has obtained any necessary authorization from the Public Utilities Commission for tlic infrinqcment. No extrd compensation will be allowed in the event the Contractor's work is delayed pending Railway approval, and Public Utilities Commission authorization. In the case of impaired vertical clearance above top of rail, Railway shall have the option of installing 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 submitted 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 ex- pense of the Contractor. The Contractor shall, upon completion of the work covered by this contract to de performed by the Contractor upon the premises or over or beneath the tracks of Railway, promptly remve from the premises of Railway all of Contractor's tools, implements and other materials, whether brought upon said premises by said Contractor or any Sub-contractor, employee or agent of Contractor or of any Sub-contractor, and cause said premises to be left in a clean and presentable condition. 1. L .. -1.04 Protection of Railroad Facilities:- Upon advance notification of not less than 24 hours by contractor, Railroad representatives, con- ductors, flagmen or watchmen will be provided by railroad to protect it facilities, property and movements of its trains or engines. protective services: (a) In general, Railroad will furnish such personnel or other laen any part of any equipment is standing or being operated within 10 feet, measured hori- zontally, from centerline of any track on which trains may operate, or when any erection or construction activities are in progress vithin such lMts, regardless of elevation above or below track. For any excavation below elevation of track eubgrade if, in the opinion of Railroad's repre- (bl .. sentative, track or other railroad facilities may be subject to settlement of movement. (c) For any clearing, grubbing, grading, or blasting in proximity to Railroad facilities which, in the opinion of Railroad's representative, play endanger Railroad facilities or operations. Railroad will furnish such parsonnel or other protective services when, in the opinion of Rail- road's representative, Railroad facilities, including, but not limited to, tracks, buildings, signals, wire lines or pipe lines, may be endangered. Information as to the Railroad employees which may be required to provide protection to Railroad facilities is as follows: (a) Inspector $250.00 per day plus expenses (b) Plapn $200.00 per day plus expenses The above rates are for .estimating only, and rates in effect at the time of used for overtime, number of hours to be paid for, and travel, meal and lodging allowances will be in accordance with labor union agreements in effect at the time the work is performed. 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 Billi.ng. Tho cost of all Railroad personnel, equipment, and facilities deemed necessary by the Railway and provided by 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 impaired clearance shall be borne by the City/County. The Contractor shall be responsible for paymeot of all costs incurred for any damages to Railroad roadbed, track and/or appurtenances thereto, resulting from use, occupancy, presence of its employees or agents on or -ut the construction site. construction will be (4) Railroad will submit its final bills for flagging and related services to City/County after com- pletion of the project. City/County will pay all flagging charges. -1.05 Work by Railway Company. - Railroad will rearrange its tracks, telephone, telegraph, and signal lines and appurtenances, and will perfonn any other work in connection therewith, except grading to bo done by others. 2. EXHIBIT "C-1" aqreement between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND THE CONTRACTOR IN CONNECTION WITH The Atchison, Topeka and Santa Fe Railway Company One Santa Fe Plaza, 5200 E. Sheila Street Los Angeles, CA 90040 Attention: General Manager Gentlemen: The undersigned has entered into a contract dated , 19-, with the , for the performance of certain work in connection with in the performance of which work the undersigned will necessarily be required to conduct ope.rations within your right of way and property. 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 rhall have provided insurancc: of thc 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 agreement for the firm. The Contract provides that no work shall be canmenced within Accordingly, as one of the inducements to and as part of the consideration for your granting 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 indemnify and Bave harmless the Santa Fe, its agents and employees against all liability, claims, demands, damages, or costa 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 same, arising in any manner out of (1) use, occupancy or presence of the undersigned, subcontractors, 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. 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. 2. That the undersigned will procure, and maintain in force, insurance meeting all of the requirements outlined in the slwcidl 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 East Sheila Street, Los 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. liability to the Railway Company herein under Paragraph 1, will not in any way be limited to the amount of insurance obtained and carried by the undersigned in connection with said contract. It is further distinctly understood and agreed by the undersigned that its 3. That the undersigned will obeerve and comply with all the provisions, obligations and limita- tions to be observed by Contractor which are contained in the sub-division of the specifications of the contract referred to in the second paragraph hereof, entitled "Relations with Railway Company", and shall include, but not be limited to, payment of all costs incurred for any damages to Railroad roadbed, tracks, and/or property, resulting from use, occupancy, presence of its employees or agents on or about the construction site. 1. AT&SF Railway CO. Date : 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 between us. Yours truly, Receipt of the foregoing letter and of the policies and certificates of insurance herein provided to be furnished is hereby acknowledged this day of v 19-1 THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COUPANY 2. EXHIBIT "C-2" RAILROAD PROTECTIVE INSURANCE In addition to any other form of insurance or bonds required under the terms of the contract and specifications, the Contractor will be required to carry insurance of the kinds and in the amounts hereinafter specified. Such insurance shall be approved by: THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY hereinafter called "Railroad" before any work is performed on Railroad property and shall be carried until all 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 all tools, equipment and material have been removed from Railroad's property and such property is left in a clean and presentable condition. certified copies of all policies as hereinafter specified shall be furnished to the Engineer, The insurance herein required shall be obtained by the successful bidder, and the original and The Contractor shall furnish the Engineer with one (1) certified copy of each of the executed policies required by 1, 2, and 3 below, and in addition, shall furnish Railroad through the Engineer, one (I) certificate reflecting the existence of the executed policies required by 1 and 2 and the orig- inal policies of the insurance required by 3 below. A certification on such copies of insurance shall guarantee that the policy under 1 and 2 will not be amended, altered, modified, or canceled insofar as the coverage Contemplated hereunder is concerned, without at least thirty (30) days notice mailed by registered mail to the Engineer and to Railroad. described hereinafter shall be considered as included in the prices paid for the various items of work to be performed under the contract, and no additional allowance will be made therefor or for additional premiums which may be required by extensions of the policies of insurance. road's tracks to the total estimated contract cost is 0.---. Full compensation for all premiums which the Contractor is required to pay on all the insurance The approximate ratio of the estimated cost of the work over or under or within 50 feet of Rail- ' 1. Contractor's Public Liability and Property Damage Liability Insurance The Contractor shall, with respect to the operations he performs within or adjacent to Railroad's property, carry regular contractor's Public Liability and Property Damage Liability Insurance providing for the same limits as specified for Railroad's Protective Public Liability and Property Damage Lia- bility Insurance to be furnished for and in behalf of Railroad as hereinafter provided. If any part of the work within or adjacent to Railroad's property is subcontracted, the Contractor in addition to carrying the above insurance, shall provide the above insurance in behalf of the subcon- tractors to cover their operations. 2. Contractor's Protective Public Liability and P-nperty Damage Liability Insurance 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's property, have issued and furnished separately, policy or policies of insurance in the Railroad Protective Lia- bility Form as hereinafter specified in favor of The Atchison, Topeka and Santa Fe Railway Company, One Santa Fe Plaza. 5200 East Sheila Street, Los Angeles. CA 90040. 1. -. Railroad Protective Liability Fonn (Name of Insurance Company) DECLARA'T I ONS : It 1'111 I . Item 2. Item 3. Ndrrictl I nsurcvl : The Atchison, Topeka and Santa Fe Railway Company One Santa Fe Plaza, 5200 East Sheila Street Cos Angeles, CA 90040 Pol icy Period: From to 12:Ol a.m., Standard Time, at the designated job site as stated herein. The insurance afforded is only with respect to such of the following coverages as are indicated in Item 6 by specific premium charge or charges. company's liability against such coverage or coverages shall be as stated herein, subject to all the terns of this policy having reference thereto. The limit of the Coveranes Limits of Liability Item 5. Name and address of Government Authority for whom the work by the Contractor is being performed: Item 6. Designation of the Job Site and Description of Work: Countersigned 19- BY A insurance company, herein called the Company, agrees with the insured named in the declarations made a part hereof, in consideration of the payment of the premium and in re- liance upon the statements in the declarations made by the named insured and subject to all of the terms of this policy: 2. INSURING AGREEMENTS r. 11. 111. t,,?y .I,: Lt.?ni~vit%., h*,:.?ii::,. ,>f l\<,dily iiilury, :jiG-hiLc:<!;, or tIi!:,.n::~., iti~.ludi~ltl kk,.itli nL .UI~ t LIIIR~ rL.sultllwj tlicrctrom, 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 site by the cmicractor or any employee of the contractor or by any designated employee of the insured whether or not arising out of such acts or omissions. Coverage B - Property Damage Liability To pay on behalf of the insured all sums which the insured shall become leqally obligated to pay as damages because of physical injury to or destruction of property, including loss of use of any property due to such injury or destruction, hereinafter called "property damage", 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 dclarations. Coverage C - Physical Damage to Property 'ro pay for direct and accidental loss of or damage to rolling stock and their contents, mechan- ical construction equipment, or motive power equipment, hereinafter called loss, arising out of acts or omissions at the designated job site wb+ch are related to or are in connection with the work described in Item 6 of the declarations; provided such property is owned by the named insured or is leased or entrusted to the named insured under a lease or trust agreement. Definitions Insured - The unqualified word "insured" includes the named insured and also includes any executive officer, director or stockholder thereof while acting within the scope of his duties as such. Contractor - The word "contractor" means the contractor designated in Item 4 of the declara- tions and includes all subcontractors of said contractor but shall not include the named insured. Designated employee of the insured - The words "designated employee of the insured" man: (1) any supervisory employee of the insured at the jobsite. (2) any employee of the insured while operating, attached to or engaged on work trains or other railroad equipment at the jobsite whkh are assigned exclusively to the con- tractor, or 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 power, rolling stock or mechanical construction equipment. Defense, Settlement, Supplementary Payments With respect to such insurance as is afforded by this policy under coverages A and 8, the Company shall : (a) defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the tenns of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claims or suit as it deems expedient: in addition to the applicable limits of liability: all expenses 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 which does not exceed the limit of the Company's liability thereon : premiums on appeal bonds required in any such suit, premiums on bonds to release attach- ments for an amount not in excess of the applicable limit of liability of this policy, but without 3bligation to apply for or furnish any such bonds; expenses incurred by the insured for such inmediate medical and surgical relief to others as shall be imperative at the time of the occurrence; all reasonable expenses, other than loss of earnings, incurred by the insured at the Company's request. 3. IV. Policy Period, Territory This policy applies only to occurrences and losses durinq the policy period and within the United States of Rmerica, its territories or possessions, or Canada. EXCLUSIONS 'l'l,,.. (U*I "'y #lIM , 1,111 ,,I,{ ly: ('11 11.1111 11 1 y .?:;!.,llIlt%~ Ily (1lC III:.IICL'd U1~tt.K Ally Coli! I A<'( 111 L~~l~~~~lll~'llL <,Xt,tbk3t 6% ~'~~LlLl~lc~l d:: cik,€ined herein; (1,) to bodily injury or property damage caused intentionally by or at the direction of the insured; (c) to bodily inlury, property damage or loss which occurs after notification to the named insured ,I€ the acceptance of the work by the governmental authority, other than bodily injury, pro- perty damacje or loss resulting from the existence or removal of tools, uninstalled equipment and abandoned or unused materials; (d) IJnder Coverages A(]), B and C, to bodily injury, property damage or loss, the sole proximate cause of which is an act or omission of any insured other than acts or omissions of any desig- nated employee of any insured; (e) under Coverage A, to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law; provided that the Federal Employers' Liability Act, U.S. Code (1946) Title 45, Sections 51-60, as amended, shall for the purposes of this insurance be deemed not to be any similar law; (f) under Coverage B, to injury to or destruction of property (I) owned by the named insured or (11) leased or entrusted to the named insured under a lease or trust agreement. (911. under any Liability Coverage, to injury, sickness, disease, death or destruction: (a) with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or (b) resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required 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 entered into by the United States of America, or any agency thereof, with any person or organization. 2. tinder any medical Payments Coverage, or under any Supplementary-Payments provision relating to sickness, disease or death resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization. ' immediate medical or surgical relief, to expenses incurred with.respect to bodily injury, 3. 1:nder 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; (b) the nuclear material is contained in spent fuel or waste any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or (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 States of America, its territories or possessions or Canada, this exclusion (c) applies only to injury to or destruction of property at such nuclear facility . 4. As used in this exclusion: "Hazardous properties" include radioactive, toxic or explosive properties ; "nuclear material" means source material, special nuclear material or byproduct materiali "source material", "Special nuclear material", and "byproduct material" have the meanings given them in the Atomic Energy Act of 1954, or in any law amendatory thereof - 4. C 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) there- of; facility" means : any nuclear reactor any equipment or device designed or used for (1) separating the isotopes of .xranium or plutonium, (2) processing or utilizing spend fuel, or (3) handling, processing or packaging waste; any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total mount 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, all operations conducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclearfission in a self- supporting chain reaction or to contain a critical mass of fissionable material; includes all forms of radioactive contamination of property. "injury" or "destruction", with respect to injury to or destruction of property, the word (h) under coverage C, to loss due to nuclear reaction, nuclear radiation or 'radioactive contam- ination, or to any act or condition incident to any of the foregoing. CONDITIONS (The conditions, except conditions 3, 4, 5, 7, 8, 9, 10, 11 and 12, apply to all coverages. Con- ditions 3, 4, 5, 7, 8, 9, 10, 11 and 12 apply only to the coverage noted thereunder.) 1. premium The Premiw bases and rates for the hazards described in the delcarations, are stated therein. Premium bases and rates for hazards not so described are those applicable in accordance with the manuals in use by company. The term "contract cost" means the total cost of all work described in Item 6 of the declarations. The term "rental cost" means the total cost to the contractor for rental of work trains or other railroad equipment, including the remuneration of all employees of the insured while operating, attached to or engaged thereon. The advance premium stated in the declaration is an estimated premium only. Upon term- ination of this policy the earned premium shall be computed in accordance with the company's rules, rates, rating plans, premiums and minimum premiums applicable to this insurance. If the earned premium thus computed exceeds the estimated advance premium paid, the company shall look to the contractor specified in the declarations for any such excess; if less, the company shall return to the said contractor the unearned portion paid. In no event shall payment of premium be an obligation of the named insured. 2. Inspection The named insured shall make available to the company records of information relating to the subject matter of this insurance. The company shall be permitted to inspect all operations in connection with the work described in Item 6 of the declarations. 3. Limits of Liability The limits of bodily injury liability stated in the declarations as Coverage A applicable to "each person" is the limit of the company's liability for of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to "each Occurrence" is, subject to the above provisions respecting each person, the total limit of the company's liability for all such damage arising out of bodily injury sustained by two or more persons as the result of any one occurrence. all damages, including damages for care and loss of services, arising out 4. Limits of Liability The limit of liability under Coverages B and C stated in the declarations Coverages B&C as applicable to *each occurrence" is the total limit of the company's 5. arising out of physical injury to, destruction or loss of all property of one or more persons or orqanizations, including the loss of use of any property due t.0 such injury or destruction under Coveraye D, ,is the result of any one occurrence, Subject to the above provisions respecting "each occurrence", the limit of liability :Iiicic-c Covrraqcs R and c +;tat4 in the declaration as "agtreqatc-" is the total limit of thc cxwi(jaiiv':. I iahi 11 ty t(,r .?I I ci.ini*vit-s .lnd a1 1 lo.;s iiiiaia*r (.c~v(~i-.i~irs I1 .lmi (' ,:oml>iiitvi 4irisiiiti trill ,>< pliys~cal 1iijuL.y tu, dct:truction or loss of prukwrty, irlcliidiiiq Lhc loss ui ust. ot 6111' 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 propercy 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 cost to repair or replace the property or such Dart thereof with other of like kind and quality. 5. Sevcrality of Interests The term "the insured" is used severally and not collectively, but Coverages AhB the inclusinq herein of more than one insured shall not operate to increase the limits of the company's liability. G. Notice In the event of an occurrence or loss, written notice containing particulars Suffi- cient to identify the insured and also reasonably obtainable information with re- spect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. If claim is made or suit is brought aqainst the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative. 7. Assjstance and Cooperation of the Insured The insured shall cooperate with the company and, Coverayes A&B upon the company's request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident 8. Action Against Companx No action shall lie against the company unless, as a condition pre- Coverages ASB cedent thereto;the insured shall have fully complied with all the tenas of this policy, nor until the amount of the insured's obliga- tion to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the inswed, the claimant and the company. my 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. NO person or organization shall have any right under this policy to join the company as a party to any action against the insured to determine the insured's liability. Bankruptcy or insolvency of the in= sured or of the insured's estate shall not relieve the company of any of its obligations hereunder. Coveraqe C No action shall lie against the company unless, as a condition precedent there- to, there shall have been full compliance with all the tern of this policy nor mtil thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy. 9. Insured's Duties in Event of Loss In the event of loss the insured shall: Coverage C (a) protect the property, whether or not the loss is covered by this policy, and any further loss due to the insured's failure to protect shall not be recoverable under this policy; reasonable expenses in= curred at the corapany's request; (b) file with the company, as soon as practicable after loss, his sworn proof of loss in such form and including such information as the company may reasonably require and shall, upon the company's request, exhibit the damaged property. 10. Appraisal If the insured and company fail to agree as to the amount of loss, either may, Coverage C within 60 days after the proof of loss is filed, demand an appraisal of the appriaser, and the appraisers shall select a competent and disinterested umpire. The ap- praisers shall state separately the actual cash value and the amount of loss and failing to agree shall submit their differences to the wire. An award in writing of any two shall determine the amount of loss. and shall bear equally the other expenses of the appraisal and umpire. loss. In such event the insured and the company-sha-11 each select a competent The insured and the company shall each pay his chosen appraiser The company shall not be held to have waived any of its rights by any act relating to appraisal. 6. a Ll. 12. 13. 14. 15. 16. 17. 18. 19. Payment of Loss The company may pay €or the loss in money but there shall be no abandonment Coverage C OE the damaged property to the company. No Benefit eo Bailee coverage c indirectly to the benefit ofany carrier or bailee, other than the The insured afforded by this policy shall not inure directly or named insured, liable for loss to the property. Subrogation In the event of any payment under this policy, the company shall be subrogated to all the insured's right of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. prejudice such rights. The insured shall do nothing after loss to Application of Insurance The insurance insurance. afforded by this policy is primary Three Year Policy periods. period. Aggregate limits of liability as stated in this policy shall apply separately to each annual period. Changes A policy period of three years is comprised of three consecutive annual Computation and adjustment of earned premium shall be made at the end of each annual Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy. Assignment Assignment of interest under this policy shall not bind the company until its consent is endorsed hereon. 'This policy may be cancelled by the named insured by mailing to the company written notice stating when thereafter the cancellation shall be effective. Cancellation This policy may be cancelled by the company by mailing to the named insured, contractor and governmental authority at the respective addresses shown in this policy written notice stating when not less than thirty days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancellation stated in the notice shall becane the end of the policy period. Delivery of such written notice either by the named insured or by +&e ccmpany shall be equivalent to mailing. If the named insured cancels, earned premium shall be computed in accordance with the If the company cancels, earned premium shall be customary short rate table and procedure. computed pro rata. Premium adjustment may be made either at the time cancellation is effected or as smn as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. Declarations that this policy is issued in reliance upon the truth of such representations and that this policy embodies a11 agreements existing between himself and the company or any of its agents relating to this insurance. By acceptance of this policy the named insured agrees that such statements in the declarations as are made by him are his agreements and representations, IN WITNESS WHEREOF, the Indemnity Company has caused this policy to be signed by its president and a secretary at ~ arid countersigned on the declarations page by a duly authorized agent of the company. (FACSIMILE OF SIGNATURE) (FACSIMILE OF SIGNATURE) Secretary President . 7. BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA Application of the City of Carlsbad ) for an Order authorizing construction ) between Avenida Batiquitos and the track of The Atchison, Topeka and Santa Fe Railway Company, sometimes ) referred to as the Avenida Batiquitos ) Overpass. 1 of a crossing at separated grades 1 APPLICATION The application of the CITY OF CARLSBAD, 1200 Elm Avenue, Carlsbad, California 92008 respectfully shows that: 1. The City of Carlsbad, herein sometimes referred to as "Applicant," is, and at all times herein mentioned was, the duly constituted political subdivision of the State of California, created and existing under the laws of the State of California and has jurisdiction over all city functions, including the construc- tion, reconstruction and maintenance of a system of city streets within the City of Carlsbad which are necessary for the public convenience (Streets h Highways Code S989 and $31800 -- et seq.). The Applicant is now engaged in such construction, reconstruction and maintenance of said system of city streets. 2. This Application and the relief sought herein are under Section 1201-1205, inclusive, of the California Public Utilities Code. - 3. All correspondence, notices, orders and other papers relative to this Application should be addressed to the City of Carlsbad Engineering Department, Attention: David Hauser, EXHIBIT 4 - - Assistant City Engineer, 1200 Elm Avenue, Carlsbad, California 92008, Telephone No. (619) 438-5541 which is the address of the Applicant. Copies of such correspondence, notices, orders, and other papers should also be addressed to O'Day Consultants, 7750-28 El Camino Real, Carlsbad, California 92008, which is the name and address of the consulting engineers for the Applicant; and to Ronald E. Null, Esq., Ronald E. Null, Inc., P.O.Box 8025, Rancho Santa Fe, CA 92067, which is the name and address of counsel for the Applicant. 4. The Atchison, Topeka and Santa Fe Railway Company is a Delaware corporation doing business as a common carrier operating a standard gauge railroad system in the State of California and said corporation owns or leases and operates a railroad track at the location of the project herein proposed to be constructed. 5. The City of Carlsbad proposes to construct a crossing at separated grades between Avenida Batiquitos and the track of said railroad, as described and shown on Exhibits "A" and "B," attached hereto, and by this reference made a part hereof. 6. The information required pursuant to Title 20, California Administrative Code Section 38 (Rule 38) is set forth in Exhibit "A," sheets 1 and 2 and Exhibit "B," 1 to 4, inclusive. 7. Preliminary plans for the proposed project have been prepared by Applicant in cooperation with said railroad. Applicant and said railroad are in agreement with respect to the necessity for said construction. It is the intention of Applicant to arrange financing through the formation of an assessment district ~ and the sale of bonds. The expense of said work will be divided between the parties following the guidelines of Section 1202.5 of the California Public Utilities Code, or as otherwise provided by law. 8. Temporary track relocation will not be required during construction. 9. An Environmental Impact Report (EIR) was prepared for the Batiquitos Lagoon Educational Park Project. The Avenida Bati- quitos Overpass will be constructed as part of the Educational Park Project. The EIR was certified on October 1, 1985 pursuant to Resolution No. 2486 of the City of Carlsbad. The time period for filing an action to challenge the EIR expired on or about November 7, 1985.. A full copy of the EIR is attached hereto as Exhibit "C". 10. A public needs exists for the construction of the grade separation crossing. Construction of the proposed overpass is necessary for the development of an adequate network of major City arterials to carry pedestrians, bicyclists, vehicular traffic, school, buses and emergency vehicles to serve the Educational Park. It is necessary for Avenida Batiquitos to be separated to provide a dependable east-west major arterial not subject to disruption by rail movements. Construction of the grade separation crossing is consistent with the circulation element of the Carlsbad General Plan. WHEREFORE, Applicant requests that: 1. The California Public Utilities Commission issue its Order authorizing construction of said Aveniada Batiquitos crossing at separated grades pursuant to the provisions under Sections 1201-1205, inclusive, of the California Public Utilities Code. 2. Such Order shall authorize said project upon the terms and conditions and division of costs and expenses as may be pro- vided for in an agreement to be entered into between Applicant and said railroad, or, in the event the parties fail to agree, that such costs be determined as provided by law. 3. Such Order shall provide three years from the effective the project herein pro- date thereof within which to complete and orders posed. 4. Such other relief necessary and just. DATED at Carlsbad, Ca 1986. VINCENT J. BIONDO City Attorney City of Carlsbad n the Commission deems ifornia, Lis 10th day of December * CLAUDE A. LEWIS, Mayor ATTEST : By: R. L.4 1200 Elm Avenue Carlsbad, CA 92008 Telephone No.(619) 438-5531 By: ALETHA L. RAUTENKRANZ 1 v City Clerk VERIFICATION I am the Mayor of the City of Carlsbad, a political subdivi- sion of the State of California, the Applicant herein. I make this verification for and on behalf of the City of Carlsbad, pur- suant to Resolution No. 3S.X 8897 of the City Council of the City of Carlsbad. I have read the foregoing Application; I know the contents thereof; and the same is true of my own knowledge except as to those matters which are therein stated upon information or belief, and as to those matters I believe them to be true. I declare under penalty of perjury that the foregoing is true and correct. A Executed on December 10, -CLAUDE A. LEWIS, Mayor DECLARATION OF MAILING I, the undersigned, am a citizen of the United States and a resident of San Diego County, over the age of eighteen years and not a party to the within proceeding; my business address is: Law Offices of Ronald E. Null, Inc., P.O. Box 8025, Fairbanks Ranch Plaza, Rancho Santa Fe, California 92067. That on the day of , 1986, I served the within Application on the persons or parties listed below by placing a true copy thereof and by then sealing the envelope, properly addressed and with postage prepaid, and by then depositing the same in the United States mail, and there is delivery service by United States mail at the place so addressed. A.H. RENNE, Assistant General Manager The Atchison, Topeka and Santa Fe Railway Company One Santa Fe Plaza 5200 E. Sheila Street Los Angeles, CA 90020 I declare under penalty of perjury that the foregoing is true and correct. Executed on , 1986, at Rancho Santa Fe, California. (Signed) EXHIBIT "A" I. GENERAL INFORMATION The City of Carlsbad proposes to construct an overpass at Avenida Batiquitos, over the tracks of The Atchison, Topeka and Santa Fe Railway Company (from Los Angeles to San Diego). The proposed structure is sometimes referred to as the "Avenida Batiquitos Overpass." 11. SPECIFIC INFORMATION - CROSSING TO BE SEPARATED The proposed crossing of the Atchison, Topeka and Santa Fe Railway Company main line is approximate railroad M.P. 234.3, in the County of San Diego, as shown on Exhibit B, sheet 1. (a) The proposed overcrossing structure will carry Avenida Batiquitos over the Atchison, Topeka and Santa Fe Railway Company one main line track and one spur track, by means of a reinforced concrete bridge. Total length of the bridge will be about 246 feet from abutment to abutment. Plan of the proposed structure is shown on Exhibit B, sheet 2, attached. The deck, abutments, retaining walls and piers will be of reinforced concrete. (b) The bridge structure will consist of four 12-foot wide vehicular lanes, two 5-fOOt sidewalks and a landscaped median varying in width from 5 to 14 feet, as shown on Exhibit B, sheet 3. Gas, electric, telephone, cable television and water lines will also be carried by the structure. (c) Legal Description - The proposed project will be located within an easement, as described in Exhibit "B", Sheet 4, to be conveyed by said railroad to Applicant. EXHIBIT A Page 2 of 2 - - (d) The nearest public crossing to the north of the proposed crossing is P.U.C. No. 2-233.4-A at Poinsettia Lane, approximately 0.9 miles distant, and the nearest grade crossing to the south is P.U.C. No. 2-235.1-A at La Costa Avenue, approximately 0.8 miles distant. Locations of said grade crossings are shown on Exhibit "B", Sheet 1. (e) Construction of the proposed overpass is necessary for the development of an adequate network of major City arterials to carry pedestrians, bicyclists, vehicular traffic, school buses and emergency vehicles to serve the Educational Park. It is necessary for Avenida Batiquitos to be separated to provide a dependable east-west major arterial not subject to disruption by rail movements. (f) Necessary reconstruction and relocation of existing signal and communication lines, and other work to accommodate construction of the overcrossing is proposed to be covered in the Construction 61 Maintenance Agreement. (9) Plan, elevation, typical section, and Vicinity Map are shown on Exhibit "B", Sheets 1, 2, and 3. (h) Public vehicular traffic will utilize Poinsettia Lane and La Costa Avenue during construction. O'Day Consultants 7750-28 El Camino Real Carlsbad, CA 92008 (619) 944-1010 2 a v) 0 c 0 4 4 P 3 F: m a U 0 iL a > c 2 1 c: (II CL 2 Ct a a E a z -- 0 1. il I i I i I I I i I i I _- I 84-2019 PUBLIC UTILITIES COFMISSION EXHIBIT "B". SHEET 4 A.T. & S.F.R.R. EASEMENT FOR AVENIDA BATIQUITOS OVERCROSSING AN EASEMENT FOR RIGHT-OF-WAY AND INCIDENTS THERETO FOR A PUBLIC STREET, UTILITIES AND INCIDENTAL PURPOSES UPON, OVER AND ACROSS THE FOLLOWING DESCRIBED PROPERTY. A PORTION OF THE NW1/4 OF THE NW1/4 OF SECTION 33, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA AND WITHIN THE 200-FOOT WIDE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY RIGHT-OF-WAY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF LOT 2 OF PARCEL MAP NO. 13653 RECORDED JANUARY 31, 1985 AS FILE NO. 85-033316, SAID CORNER BEING ON THE EASTERLY LINE OF THE SAID 200-FOOT WIDE ATCHISON, TOPEKA AND SANTA FE RAILWAY RIGHT-OF-WAY; THENCE SOUTHERLY ALONG SAID EASTERLY LINE S 21° 08' 29" E 1238.72 FEET TO THE TRUE POINT OF BEGINNING AND THE BEGINNING OF A 587.00-FOOT RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE THROUGH THIS POINT BEARS N 8O 33' 31" W; THENCE WESTERLY ALONG THE ARC OF SAID 587.00-FOOT RADIUS CURVE 59.80 FEET THROUGH A CENTRAL ANGLE OF 50 50' 12"; THENCE TANGENT TO SAID 587.00-FOOT -US CURVE S 87O 16' 41" W 150.09 FEET TO A POINT ON THE WESTERLY LINE OF SAID ATCHISON, TOPEKA AND SANTA FE RAILWAY RIGHT-OF-WAY; THENCE ALONG SAID WESTERLY LINE S 21° 08' 29" E 123.72 FEET; THENCE LEAVING SAID WESTERLY LINE N 84O 25' 44". E 108.59 FEET TO THE BEGINNING OF A TANGENT 931.00-FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID 931.00-FOOT, RADIUS CURVE 97.78 FEET THROUGH A CENTRAL ANGLE OF 6O 01' 03" TO A POINT ON THE SAID EASTERLY LINE OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY RIGHT-OF-WAY, A RADIAL LINE THROUGH THIS POINT BEARS N 1l0 35' 19" W; THENCE ALONG SAID EASTERLY LINE N 210 08' 29" W 110.72 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 0.54 ACRES MORE OR LESS. SUPPLEMENTAL AGREEMENT (Sammis Property/City of Carlsbad) THIS AGREEMENT is entered into thic@lay of ,&& 2, 1986, between the City of Carlsbad, a municipal corporation (hereinafter referred to as "City") and Sammis Properties, a California corporation (hereinafter referred to as "Sammis" ). RECITALS A. Sammis is planning on constructing a project known as the Batiquitos Lagoon Educational Park, currently described as set forth on Exhibit A attached hereto, located in the City, for which the necessary land use permits are presently being processed through the City. B. In the process of development, certain public improvements will be required and it is contemplated that such public improvements will be financed through the formation of an assessment district and the sale of bonds. C. A portion of the public improvements will be the con- struction of a crossing at grade separation over the tracks of the Atchison, Topeka and Santa Fe Railway Company (the "Railway Company" ) . D. The construction of a grade separation crossing as described above requires the approval of the California Public Utilities Commission. E. A prerequisite to obtaining PUC approval is in agreement executed by the City and the Railway Company regarding the rights and liabilities of the parties during the construction of the grade separation crossing. , -_ 4 F. The-agreement between the City and the Railway Company requires the City to indemnify the Railway Company with respect to construction activities. G. The actual construction of the grade separation crossing will be done by Sammis by and through its contractors. H. City is willing to enter into the agreement with the Railway Company if Sammis will enter into an agreement with City indemnifying City to the extent legally possible regarding construction activities. AGREEMENT For good and valuable consideration, and based upon the mutual promises and covenants set forth herein, the parites hereto agree as follows: 1. All of the above recitals are true and correct. 2. Obligations of Sammis: 2.01. Sammis assumes the obligations of the City under the agreement between the City and the Railway Company to the extent that Sammis is legally able to do so, but only insofar as said responsibili- ties relate to the construction and equipping of the grade separation crossing. 2.02. Sammis agrees to indemnify and hold City, its officers, agents, employees and representatives harmless from liability for damage or claims or damage which may arise from its direct or indirect operations or those of its contractors, subcon- tractors, agents, employees, or other persons -2- . acting on its behalf which relate to the construc- tion and equipping of the grade separation crossing. 2.03. In the event that the assessment district is not formed, the obligations regarding the construction of public improvements, including the grade separ- ation crossing, shall be those of Sammis and its successors and assigns. 3. Obligations of the City: 3.01. City agrees to take such action as necessary and appropriate to obtain PUC approval of the grade separation crossing, including, but not limited 'to, execution of the agreement between City and Railway Company, and any and all documents required by PUC. 3.02. City agrees to take such action as necessary and appropriate and conduct the necessary proceedings to form an assessment district to finance the construction of the required public improvements, including but not limited to, the grade separation crossing in a timely fashion. 4. Time is of the essence. City agrees to expedite the approval of the City and Railway Company agreement, and any and all documentation required by the PUC. 5. Should any action be brought in any court of competent jurisdiction to enforce this Agreement, the prevailing party in any such action shall be entitled to all reasonable attorneys' fees, court costs and necessary disbursements in connection with such litigation. -3- 6. The rights and obligations under this Agreement shall bind and inure to the benefit of the parties' successors-in- interest, 7. Any notice required or provided for under this Agreement shall be in writing and will be deemed to have been duly delivered upon personal delivery, or as of the second business day after mailing by the United States Post Office, certified mail, return receipt requested, postage prepaid, and addressed as follows: Frank Aleshire City Manager City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 Notice required to be given to Sammis shall be addressed under the same terms as follows: Mr. Jon D. Briggs Sammis Properties 2650 Camino Del Rio North, Suite 100 San Diego, CA 92108 IN WITNESS WHEREOF, the parties execute this Agreement on the day, month, and year above written, at , County of San Diego, California, ATTEST: SAMMIS PROPERTIES, a California corporation n By: -4- P e LEGAL DESCRIPTION PROJECT SITE THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COCMTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: ALL OF LOTS 1, 2, 3 AM) 4 OF PARCEL MAP NO. 13653, TOGETHER WITH THAT PORTION OF THE WEST HALF OF SECTION 33, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SPN BERNARDINO SASE AN) MERIDIAN, BEING DESCRIBED AS FOLLOWS: BEGIWINC AT THE NORTHWEST CORNER OF SAID SECTION 33, AS SHMN ON STATE HIGHWAY NORTH 89O 59' 04" EAST 233.90 FEET TO A POINT ON THE SOUTHWESTERLY BOUNDARY LINE LINE); THENCE ALONG SAID SOUTHWESTERLY BOUNDARY LIVE, SOUTH 21O 08' 29" EAST 1739.82 FEET TO THE BEGINNING OF A TANGElrlT 11,359.20 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY AND SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF So 26' 00'' A DISTANCE OF 1077.19 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 1S0 42' 29: EAST 125.14 FEET; THENCE LEAVING SAID SOUTHWESTERLY BocM>ARY LINE SOUTH 46O 05' 21" WEST 204.03 FEET; THENCE SOUTH 71° 53' 21' WEST 195.12 FEET; THENCE NORTH 74O 32' 39" WEST 243.94 FEET TO A POINT ON THE EASTERLY LINE OF SAID STATE HIGHWAY NORTH 17O 30' 57'' WEST 1972.19 FEET; THENCE NORTH 4' 41' 37" WEST 913.85 FEET; THENCE NORTH Oo 09' 13" EAST 110.33 FEET TO THE POINT OF BEGINNINC. MAP NO. XI-SD ROUTE 2 - SECTION 8; THENCE ALONG THE NORTHERLY BOUNDARY THEREOF OF THE RIGHT-OF-WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILROAD COMPANY (COAST LINE OF SAID STATE HIGHWAY XI-SD ROUTE 2 - SECTION B; THENCE ALONG SAID EASTE!?LY "EXCEPTING ANY PORTION OF THE HEREINDESCRIBEDPROPERTY WHICH IS OR WAS EVER TIDE- LANDS BELOW THE ELEVATION OF NATURAL, ORDINARY HIGH TIDE'' (APPLIES ONLY TO THAT PORTION DESIGNATED AS LOT 3 ON MAP OF BATIQUITOS POINTE, CARLSBAD TRACT NO. CT 82-18/C.P. 214). EXHIBIT A