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HomeMy WebLinkAbout2005-01-18; City Council; 17947; Construction of Coastal Rail Trail Phase ICITY OF CARLSBAD - AGENDA BILL 4B# 17,947 JITG. 1/18/05 IEPT. ENG 0 w U 5 a a a z 0 F 0 d a 0 z 3 0 0 TITLE: ACCEPTING BIDS AND AWARDING CONTRACT FOR CONSTRUCTION OF THE COASTAL RAIL TRAIL PHASE I PROJECT, PROJECT NO. 3455, AND DECREASING APPROPRIATIONS AND APPROVING THE EASEMENT WITH NCTD AND EXECUTING THE EASEMENT AGREEMENT CITY MG- RECOMMENDED ACTION: Adopt Resolution No. 2005-01 5 accepting bids and awarding a contract for the construction of the Coastal Rail Trail Phase I, Project No. 3455, and decreasing appropriations. Adopt Resolution No. XNI5-016 Transit District and authorizing the Public Works Director to execute the easement. approving the Easement for Rail Trail with North County ITEM EXPLANATION: The Coastal Rail Trail is a multi-modal trail extending from San Luis Rey River in Oceanside to the Santa Fe Depot in San Diego. The trail is located within the railroad right-of-way and on City streets. North County Transit District (NCTD) controls the railroad right-of-way in Carlsbad. During the development of the Design Guidelines, the trail in Carlsbad was divided into two phases to accommodate the funding constraints. The first phase is either on City streets or more than fifty feet from the centerline of the existing tracks within NCTD right-of-way. Phase I of the Coastal Rail Trail includes signing and striping from the southern City limit north to the Poinsettia Coaster Station and construction of a multi-modal route within NCTD’s right-of-way between Tamarack Avenue and Oak Avenue. Phase I includes a variance from the NCTD Guidelines to: e 0 0 Include an existing drainage ditch within the proposed Coastal Rail Trail easement thus requiring a two-foot variance from NCTD’s operating right-of-way; Establishment of trees within the easement; Placement of benches within the easement; Establishment of a one-way trail portion to slow users approaching Tamarack Avenue. On November 23, 2004, the following twelve (12) sealed bids were received for construction of Phase I: I Page 2 of Agenda Bill No. 17,947 Staff has performed an analysis of the bids and found many bids contained math errors. The math errors did not change the lowest responsive bidder. The corrected bid amount appears in the column labeled “Actual Bid Amount”. The documents submitted by 3-D Enterprises, Inc., for the project have been reviewed and analyzed by engineering staff and found to be in order. Engineering staff, therefore, recommends the award of the construction contract for Project No. 3455, Coastal Rail Trail Phase I, to 3-D Enterprises, Inc. After review by the City Attorney, the easement was reviewed and approved by the NCTD Board. The easement allows the City to plan, construct, maintain and operate the rail trail within the easement. The railroad right-of-way between Oak Avenue and Tamarack Avenue is 200 feet wide. The existing single track is located in the middle of the right-of-way leaving approximately 100 feet on each side. The easement is 37 feet wide and allows a 12-foot path with 2-foot shoulders on each side. There will be landscaping and fencing on each side of the trail. Execution of this easement places the responsibility of all costs, liability, construction, and maintenance on the City. The easement language recognizes the recreational aspects of the allowed trail uses and ensures that the easement is not designated a park or recreation area. It is important that the trail not receive designation of a park or recreation area as Section 4(f) in the USDOT Act of 1966 would greatly limit the future use of the land. FHWA and CalTrans Local Assistance have reviewed the easement language and are satisfied with the Easement for Rail Trail. The easement requires fencing between the trail and the train tracks. The easement requires the contractor to obtain a right-of-way permit from NCTD and maintain appropriate insurance. Other provisions of the easement require the City to reimburse NCTD for all of its direct costs along with an administrative fee of 7.75% on these direct costs. NCTD has reviewed the land covered by the easement for both operational uses and future real estate possibilities. NCTD has determined that the trail is located within excess right-of-way. Should NCTD need to perform work that requires temporary use of the easement, provisions set forth in the document detail trail shut down requirements. The Rail Trail Easement for the trail portion within NCTD right-of-way provides that the allowed trail uses are as follows: The Carlsbad Coastal Rail Trail will provide a multi-modal, non-motorized trail for transportation and incidental recreational activities such as: *Bicyclists *Pedestrians *Roller Bladers *Skate Boarder *Other Non-Motorized Transportation Modes Staff recommends approval of the Easement for Rail Trail between the City and North County Transit District. ENVIRONMENTAL REVIEW: On April 17, 2001, the City Council approved a Mitigated Negative Declaration for the project. The Mitigated Negative Declaration was prepared in accordance with California Environmental Quality Act (CEQA) guidelines and it covers the project from the San Luis Rey River in Oceanside to the southern boundary of Del Mar. The City of San Diego chose to not be a part of the Mitigated Negative Declaration. As a result of the federal funding for the project, a National Environmental Protection Act (NEPA) federal environmental document is needed. CALTRANS prepared and processed the Categorical Exclusion in conformance with NEPA guidelines. The Federal Highway Administration approved the Categorical Exclusion on August 1, 2001. On February 18, 2004, the Planning Commission approved Coastal Development Permit Number 03-31 for Coastal Rail Trail Phase I. d Page 3 of Agenda Bill No. 17,947 1___ COASTAL RAtL TRAIL PHASE I ESTIMATED (PROJECT NO. 3455) COSTS Construction Cost (3-D Enterprises, Inc.) $1,691,832 Construction Contingencies $253,775 Inspection, Testing and Construction Management $1 66,671 TOTAL CONSTRUCTION COST $2,112,278 FISCAL IMPACT: Proiect Studv ReDort The total construction cost estimate for Phase I is shown in Table 1 $960.000 Design - NCTD Guidelines The total cost for design (both phases) and construction (phase I) of the Coastal Rail Trail is estimated at $4.7 million as shown in Table 2. $1 03,601 Construction - Phase I TOTAL COST $2,112,278 $4,711,761 SOURCES OF FUNDS Federal TEA Funds State TSM Funds TransNet Funds (in 04/05 CIP) APCD Grant TOTAL APPROPRIATED APPROPRIATIONS APPROPRIATION TO DATE REQUIRED DECREASE $4,349,946 $4,113,784 $(236,162) --- $1 92,000 $1 92,000 $221,801 $221,801 --- $184,176 $1 84,176 --- $4,947,923 $4,711,761 $(236,162) To date, $4.9 million has been appropriated as shown in Table 3. The Federal and State funds are drawn on a reimbursement basis; the TransNet funds were received in advance of expenditures. In addition, San Diego County has approved a reimbursement grant for Air Pollution Control District (APCD) matching funds totaling $1 84,176. Because CIP appropriations for the trail are higher than is now required for the project, staff is recommending that the federal appropriations be reduced by $236,162 to the required amount. EXHIBITS: 1. Location Map. 2. Resolution No. 2005-015 accepting bids and awarding a contract for the construction of 3. Resolution No. 2005-016 approving the Easement for Rail Trail with North County the Coastal Rail Trail Phase I, Project No. 3455, and decreasing appropriations. Transit District and authorizing the Public Works Director to execute the easement. 4. Easement for Rail Trail. DEPARTMENT CONTACT: Sherri Howard, (760) 602-2756, showa@ci.carlsbad.ca.us LOCATION MAP PROJECT COASTAL RAIL TRAIL NUMBER PROJECT NAME PHASE 7 3455 P EXHIBIT 7 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. 2005-01 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ACCEPTING BIDS AND AWARDING A CONTRACT FOR CONSTRUCTION OF COASTAL RAIL TRAIL PHASE I, PROJECT NO. 3455, AND DECREASING APPROPRIATIONS. WHEREAS, on July 6, 2004, the plans and specifications for Coastal Rail Trail Phase I, Project 3455, were approved by the City Council of the City of Carlsbad; and WHEREAS, the City Council of the City of Carlsbad, California, has determined it iecessary, desirable, and in the public interest to construct the Coastal Rail Trail Phase I; and WHEREAS, twelve (12) sealed bids were received November 23,2004 at 4:OO pm; and WHEREAS, the lowest responsive, responsible bid for the project was submitted by 3-D Enterprises, in the amount of $1,691,832; and WHEREAS, excess appropriations totaling $236,162 exist in the federal portion of the woject; and NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, Zalifornia, as follows 1. 2. That the above recitations are true and correct. That the low bid submitted by 3-D Enterprises, in the amount of $1,691,832 s hereby accepted and the Mayor is hereby authorized to execute a contract on behalf of the City 'or the construction of Coastal Rail Trail Phase I, Project No. 3455. 3. That the City Manager is hereby authorized to approve construction change orders .~p to $253,774.80. 4. b236,162. Yf Yf Yf 71 71 That the appropriations in the federal portion of the project are reduced by 5 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 5. That the award of this contract is contingent upon the bidder submitting the lowest ,esponsive bid executing the required contract and submitting the required bonds and insurance iolicies, as described in the contract, within twenty (20) days of adoption of this resolution. The City Manager may grant reasonable extensions of time. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council ield on the 18th day of JANUARY , 2005 by the following vote, to wit: AYES: Council Members Lewis, Kulchin. Packard, Sigafoose NOES: None ABSENT: None er Hall fATT HALL, Mayor Pro Tem 4TTEST -0RRAINE M. W (SEAL) 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. 2005-016 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE EASEMENT FOR RAIL TRAIL FOR COASTAL RAIL TRAIL PHASE I WITH NORTH COUNTY TRANSIT DISTRICT, AND AUTHORIZING THE PUBLIC WORKS DIRECTOR TO EXECUTE THE EASEMENT, PROJECT NO. 3455. WHEREAS, the City Council of the City of Carlsbad, California, has determined it necessary, desirable, and in the public interest to construct the Coastal Rail Trail Phase I; and WHEREAS, A portion of the Coastal Rail Trail will be constructed and operated on land controlled by North County Transit District; and WHEREAS, North County Transit District and the City of Carlsbad have negotiated an easement for the portion of the rail trail in North County Transit District right-of-way; and WHEREAS, the North County Transit District approved the Easement for Rail Trail at a regular meeting May 6, 2004; and NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows 1. 2. That the above recitations are true and correct. That the Easement for Rail Trail between North County Transit District and the City of Carlsbad is hereby approved. 111 111 111 111 111 VI 111 VI VI VI 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 3. That the Public Works Director is hereby authorized to execute the Easement for Rail Trail on behalf of the City. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 18th day of JANUARY , 2005 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Packard, Sigafoose NOES: None ABSENT: None 1 Member Hall MATT HALL, Mayor Pro Tem ATTEST (SEAL) RECORDING REQUESTED BY C. Michael Cowett and AFTER RECORDING MAIL TO: Best Best & Krieger LLP 402 West Broadway, Thirteenth Floor San Diego, CA 92101 THE ORIGINAL OF THIS DOCUMENT WAS RECORDED ON MAY 16,2005 DOCUMENT NUMBER 2005-041 0965 GREGORY J. SMITH, COUNTY RECORDER SAN DIEGO COUNTY RECORDERS OFFICE TIME: 3:31 PM (Space above this line for County Recorders Use Only) EASEMENT AGREEMENT FOR RAIL TRAIL 3 12295.1 EASEMENT FOR RAIL TRAIL This Easement Agreement (this “Agreement”) is made this 17th day of February, 2005 between the NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD, hereinafter referred to as “NCTD,” and the CITY OF CARLSBAD, hereinafter referred to as “CITY .” RECITALS A. NCTD owns the railroad right-of-way (the “Right-of-way”) more described in Exhibit 1 attached hereto and made a part hereof. The Burlington Northern Santa Fe Railroad owns an easement over 1 B. particularly ie Right-of- Way permitting it to conduct freight operations on the track located within the Right-of-way. CITY and other cities and agencies seek to construct a “coastal rail trail” (the “Rail Trail”) within the Right-of-way. C. D. NCTD and CITY have agreed that CITY may plan, construct, maintain and operate the Rail Trail within the easement pursuant to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties hereto agree as follows: 1. Grant of Easement. NCTD hereby agrees to grant CITY an easement (the “Easement”) within the Right-of-way for the purposes of and pursuant to conditions set forth in this Agreement. Location of Easement. The Easement is located in the Right-of-way within the City of Carlsbad as further described in Exhibit 2 attached hereto and made a part hereof. [The Rail Trail will be the subject of separate license agreements as it passes over public streets and railroad crossings.] 2. SDPUB\CMCL?74042 CMCV74042.1 I b 1 3. Limitation on Easement. Easement is subject to the following: a. All pre-existing rights, interests and easements affecting the use of the Right-of-way; and 1. CITY acknowledges that NCTD’s Right-of-way is an easement for railroad purposes granted to NCTD’s predecessor-in-interest pursuant to the General Right-of-way Act of 1875. The United States is the owner of the underlying fee interest in the Right-of- Way. The Right-of-way is subject to the right of reversion in the event the Easement is not utilized for appropriate purposes designated by acts of Congress. The Congress permits the “interim” use of such rights of way for permitted uses. The permitted uses could be modified by Federal law or judicial decision and upon such an adverse change this license would terminate. CITY acknowledges that the Easement (and the rights granted to CITY by this Agreement) is subject to a reserved bight easement in favor of the Burlington Northern and Santa Fe Railway Company as successor by merger to the Santa Fe and the terms and conditions of the San Diego County Shared Use Agreement by and between MTDB and NCTD and the Santa Fe dated October 30, 1992, as well as other rights and agreements that NCTD has entered into, or may enter into in the future concerning the use of the Right-of-way for railroad purposes. ClTY acknowledges that NCTD’s Right-of-way is the subject of leases with private parties and joint development agreements the terms and conditions of which enable the tenants to rights and accas to portions of the Right-of-way. ii. iii. 2 I‘ - I1 . b. A reservation of an easement in favor of NCTD to utilize the airspace above the Easement and subsurface of said Easement for uses not inconsistent with the City’s use of the Easement, including but not limited to, third party uses for utility purposes. 3.1 This Agreement shall have a term of fifty (50) years beginning on February 17‘h, 2005, (the “Commencement Date”) and ending on February 17‘h, 2055 or at an earlier date (the “Term”). 4. Payment of Use Fee. CITY shall pay a use fee to NCTD in the sum of one dollar ($1.00) as partial consideration for the Easement, payable in advance, on the first day of the Term. 5. Permitted Use. 5.1 During the Term, the Easement shall be used for the exclusive purpose of the construction, maintenance and operation of the Rail Trail and for uses normally incident to that purpose as set forth on Exhibit 3 attached hereto. CITY shall not use or permit the Easement to be used for any other purpose without the prior written consent of NCTD. CITY shall not commit or permit the commission by others of any damage, nuisance or waste on the Easement. CITY shall not place or permit to be placed upon the Easement any gasoline or any hazardous or explosive material, waste or substance. CITY’S use of the Easement shall not interfere with any railroad operations on the Right-of-way. If CITY, its successors or assigns, shall use the Easement for any purpose other than as stated in this Section 5, or fail to act in strict accordance with the provisions of this Agreement, then NCTD shall provide CITY with a timely written notice of any claim of default, meet and confer with CITY regarding said claim of default, and allow CITY an opportunity to cure said default so long as CITY proceeds expeditiously to cure said default. The timeliness of the notice will depend upon the nature of the default. It is acknowledged that, given the 5.2 SDPUB\CMCD74042 CMCV74042. I 3 safety issues involved, some defaults may require very expeditious cures. If CITY fails to cure said default in a timely manner, NCTD may exercise its remedies at law or equity against CITY including termination of this Agreement. 6. Development Standards and Approvals. The development of improvements on the Easement as a Rail Trail (“Improvements”) shall be planned and constructed by CITY at CITY’S expense subject to the following development standards: 6.1 6.2 6.3 6.4 6.5 The landscaping of the Easement shall be subject to the following conditions and restrictions: 1. No sprinklers or irrigation waters are permitted within the Right-of-way outside of the Easement; and Adequate drainage must be provided for the Easement so that at all times all water shall flow away fiom the rails and ties and other railroad facilities. 2. Portions of the Improvements may be lighted. CITY may install signage in connection with the Improvements. CITY shall install barrier fencing along the entire length of the Easement between the Rail Trail and NO’S adjacent railroad tracks. Said fence shall be designed and constructed in accordance with specifications set forth in Exhibit 4 attached hereto. ICrrU to prepare Exhibit 4 subiect to NCTD apm0vaI.j Plans for the deveIopment of the Improvements, including all vertical barriers, lighting and signage shall be subject to approval by NCTD prior to any construction, which approval shall not be unreasonably withheld or delayed. 7. Construction Matters. 7.1 CITY agrees that all work to be done hereunder by CITY and/or its contractors in the construction and/or maintenance of Improvements shall be performed in a good and workmanlike manner and in accordance with plans and specifications approved by NCTD. Changes or modifications to the project during construction SDPUBKMC3274042 CMCE74042.1 4 that affect the Easement or rail operations, improvements or equipment shall be subject to approval by NCTD, which approval shall not be unreasonably withheld or delayed. All work performed on, over, or under the Easement shall be done to the satisfaction of NO. In the construction of the Improvements CITY shall require its contractor, at the contractor’s expense, to: (a) 7.2 obtain a Right-of-Entry Permit fiom NCTD, a copy of which is attached hereto as Exhibit 5, and procure and maintain in force at all times during the construction of the Improvements, and for additional periods as described in the specifications for the construction of the Improvements, the insurance required by the Right-of-Entry Pdt. (b) 7.3 CITY shall reimburse NCTD within 30 days of invoice for all costs and expenses incurred by NCTD (including a 7.2% administrative fee which shall be equal to 7.2% of NCTD’s actual expenses) in connection with the planning, design and construction of the Improvements, including, but without limitation, consultants fees, mark out of railroad facilities, inspectors, security and flag protection as NCTD deems necessary, the installation and removal of false work beneath tracks, equipment rentals and restorations of the Right-of-way. Upon receipt of the Right of Entry Permit, CITY shall deposit with NCTD an amount equal to NCTD’s estimated costs and expenses projected to complete construction. Flag protection shall be required when construction of the Improvements and/or CITY’S operations on or adjacent to the Right-of-way present a danger to NCTD’s rail facilities. NCTD shall determine the need for Flag Protection in its sole discretion. CITY agrees to execute time cards as required by NCTD for personnel providing Flag Protection services. 7.4 SDPUBKMCX274042 CMCD74042.1 5 I’ - I, . 7.5 7.6 7.7 7.8 The following individuals shall be contacted prior to the start of construction of the Improvements and shall be the CITY’S contacts regarding work on the Easement: NCTD Contacts. Jim Cunningham, Manager of Real Estate North County Transit District 8 10 Mission Avenue Oceanside, CA 92054 (760) 966-6504 CITY Contact. City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 NCTD shall have the right to enter the Easement to post notices of non- responsibility. CITY shall not permit any mechanics’ or other liens to be filed against the Easement nor against CITY’S interest herein by reason of labor and materials fumished to the Easement at CITY’S insistence or request. If any such lien is filed against the Easement, CITY shall cause the same to be discharged of record, either by payment of the claim or by posting and recording the bond contemplated by California Civil Code 3143, within twenty (20) days after demand by NCTD. The requirements of this Agreement related to the construction of the Improvements shall be specifically identified in any project specifications and bidding documents prepared by CITY for the construction of all or any part of the Improvements, and shall be subject to approval by NCTD. Any contractor or subcontractor performing work on, or in connection with the CITY’S use of or entry onto the Easement pursuant to this Agreement, shalI be conclusively deemed to be the servant and agent of CITY, acting on behalf and SDPUB\CMC\274042 CMc\274042.1 6 within the scope of such contractor’s or subcontractor’s employment for CITY and subject to the provisions of this Agreement. Any and all construction work performed or caused to be performed by CITY on the Easement shall be performed in accordance with any and all applicable Federal, State and local agency laws, rules and regulations, including, but not 7.9 limited to, such rules and regulations as are established by NCTD. 8. Maintenance. 8.1 NCTD shall have no obligation whatsoever to maintain or repair the Easement or the Improvements. CITY shall be solely responsible for maintenance and repair of all Improvements constructed on the Easement and all costs in connection therewith, including, but not limited to, the repair, resurfacing and resealing of the pedestrian path, repair of fencing and the watering and maintenance of landscaping, as necessary. CITY shall perform all maintenance and clean-up of the Easement and the Improvements thereon as necessary to keep both in good order and a safe condition and in accordance with all applicable Federal, State and local laws and regulations including NCTD Rules and Regulations. NCTD and other entities having rights and obligations in the Right-of-way may require use of the Right-of-way (including the Easement) to maintain and repair their Improvements on or within the Right-of-way. Accordingly, NCTD, and its agents, invitees, licensees and employees, shall have the right at any time to banicade any portion of the Easement and prevent public use thereof on a temporary basis as NCTD deems necessary for the duration of repair work. In the event such barricading is installed, NCTD shall provide prompt notice to CITY by phone or telefax and in accordance with Section 16, below. In the exercise of rights under this Section 8.2, NCTD shall ensure that adequate precautions are provided for the protection of the public. 8.2 SDPUB\CMC\274042 CMCU74M2. I 7 8.3 CITY shall provide security on the Easement as required and shall utilize its uniformed peace officers to enforce applicable rules and regulations on the Easement. 9. Indemnity. 9.1 In addition to and without limitation on any other provision of this Agreement, CITY hereby agrees to investigate, defend, indemnify and hold NCTD, its members, officers, agents and employees, and easement holder Burlington Northern and Santa Fe Railroad and Arntrak, harmless from any and all loss, damage, liability, claims, demands, detriments, costs, charges and expenses (including reasonable attorneys’ fees) and causes of action of whatever character which may be incurred, sustained or be subject to by any indemnified party on account of loss of or damage to or destruction of property and loss of use thereof, or for bodily injury to or death of any persons (including, but not Iimited to employees, subcontractors, easement holders, agents, servants, licensees, franchisees, and invitees of NCTD or the City, arising out of or in any way related, in whole or in part, to (i) the condition of the Easement, (ii) the use of the Easement by the CITY, including, but not limited to, the authorized or unauthorized use of the hprovements by any person, excepting trespassers outside the Easement, or (iii) the use of the Easement by the general public for cycling, jogging, walking, and all other activities, except to the extent that such claims or expenses arise fiom NCTD’s, BNSF’s or Amtrak’s negligence, combined negligence, or the negligence of their officers, employees, agents, servants, contractors, licensees, franchisees or other easement holders, or lessees. CITY shall have the right to select outside counsel (subject to approval of NCTD which may not be unreasonably withheld) to defend NCTD and all indemnified parties pursuant to this Paragraph. SDPUB\CMC\274042 CMCU74042.1 8 .. 9.2 Notwithstanding the foregoing, nothing in this Agreement is intended to abrogate or limit any statutory or common law immunities that would otherwise attach to the actions or undertakings of CITY or to those of NCTD. This indemnity shall not apply to bodily injury or death of any persons arising who are found to have been trespassing on the Right-of-way outside of the Easement at the time of their injury or death. 9.3 10. Condition of Easement. 10.1 CITY warrants that it has inspected the Improvements and accepts the Easement in an “AS IS, WHERE Is CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION” with all fault and with fill knowledge of (i) the physical condition of the Easement, (ii) all zoning and other land use laws and regulations affecting the Easement, (iii) all matters of record relating to the Easement and (iv) all other conditions, restrictions, encumbrances relating to the Easement. CITY hereby recognizes and acknowledges that railroad tracks are located on or adjacent to the Easement. CITY recognizes that the current and potential expanded fitme operation of trains over the Right-of-way and construction on the Right-of-way does and will produce vibrations, fumes, visual impacts and noise levels which may be considered objectionable by the employees, agents, residents or invitees of the CITY. With knowledge and understanding of these facts CITY hereby accepts the Easement as provided in this Article 10 and agrees that no legal action or complaint of any kind whatsoever shall be instituted against NCTD or other authorized users of the Right-of-way by CITY or on CITY’S behalf as result of such vibrations, fknes, visual impacts and noise levels or as a result of the operation of the Right-of-way. 10.2 11. Utilities. CITY shall arrange and pay before delinquency all charges for utilities, including without limitation, water, power, heat, garbage, communications and sewer SDPUB\CMC\274042 CMW74042.1 9 .. , services reasonably necessary to conduct CITY’S permitted use of the Easement under this Agreement. 12. Relocation of Facilities. 12.1 12.2 SDPUB\CMC\274042 CMcU74042.1 The Rail Trail has been sited and designed to avoid conflicts with all major Projects planned for the Right of Way for the next 20 years, thus, preserving the integrity of the Rail Trail for not less than 20 years by allowing for alternate equivalent routing whenever modifications are necessary. To the maximum feasible extent, all major Improvements to the Right of Way shall be designed to preserve the overall integrity of the Rail Trail. If NCTD determines that modifications to segments of the Rail Trail for the purposes set forth below are necessary, NCTD shall provide a written notice to the CITY or its assignees of the requirement to relocate specific Improvements. The purposes for which NCTD could require modifications to segments of the Rail Trail are as follobs: 1, Improvements necessary to ensure safety of Rail Trail users, railroad personnel and rail passengers; Operational improvements necessary to maintain rail and fieight service, including, but not limited to the addition of passing tracks, grade separations and other grade crossing improvements; Changes necessary to meet the requirements of regulatory authorities. Modifications to the Rail Trail set forth in this section shall be accompIished at the expense of CITY or its assignees. Unless the notice is given for the purpose of facilitating remediation caused by an emergency, CITY shall relocate the Affected Improvements within one hundred eighty (180) days of receipt of said notice. In the event the notice is to facilitate remediation of transit facilities resulting from an emergency NCTD may discontinue use of the easement pending relocation of the Improvements. 2. 3. 10 13. Insurance. 13.1 13.2 13.3 13.4 13.5 At all times while this Agreement is in effect, the CITY shall, at its sole expense, maintain commercial general liability insurance written through an insurance company having a Best's rating of B+13 or better and licensed to do business in the State of California, meeting the requirements stated in this Article 13 in a form satisfactory to NCTD for a policy amount of not less than Ten Million Dollars ($10,000,000) (stated on a per occurrence basis). The policy of commercial general liability insurance required by Paragraph 13.1 shall include the following provisions: (A) The insurance shall not be modifiable or cancelable or non-renewable without 30 days' prior written notice to NCTD (except in the case of cancellation for non-payment of premium in which case canceIlation shall not take effect until at least 10 days notice has been given to NCTD). This provision is hereinafter referred to as "Notice of Modification or Cancellation"; All policy or endorsement limitations relating specifically to operations on or near railroad property or track(s) shall be eliminated to the extent that they conflict with the obligations set forth in Paragraph 9 herein. A properly completed certificate of insurance executed by an authorized representative of the insurer or insurers shall be furnished to the other Party prior to the Commencement Date and upon each renewal. The requirements regarding the types and limits of insurance coverage to be maintained as required by this Article 13, and any approval of said insurance by the other Party andor its agents, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by either Party pursuant to this Agreement, including but not limited to, the provisions concerning indemnification contained in Article 9 of this Agreement. SDPUB\CMC\274042 CMW74042.1 11 . 13.6 CITY shall upon knowledge notify NCTD within twenty-four (24) hours after the occurrence of any accident or incident on the Easement or adjacent property which could give rise to a claim under any of the insurance policies required hereunder. Notwithstanding any other provision of this Agreement, the CITY may self-insure for any risk set forth in this Article 13 in the manner and to the extent that the CITY self-insures for similar risks with respect to its operations, equipment and property. To the extent the Certificates of Insurance provided pursuant to Paragraph 13.4 do not describe the self-insurance, the manner in which such self- insurance is provided and the extent of such self-insurance shall be set forth in a Certificate of Self Insurance, delivered to NCTD and signed by an authorized representative of the self-insured Party, which fully describes the self-insurance program and how the program covers the risks set forth in this Article 13. Insurance provided by a joint powers agency insurance pool shall be considered self-insurance for the purposes of this paragraph. If at any time during the term of this Agreement the CITY elects to not self-insure, CITY shall comply with all applicable provisions of this Article 13 to the extent it does not so self-insure. Workers' ComDensation and Emplover Liability. CITY and its contractors shall cover or insure under the applicable laws relating to workers' compensation insurance, all of their employees working on or about the Easement, and CITY shall defend, protect and save harmless NCTD, its directors, officers, employees, agents and volunteers from and against all claims, suits, and actions arising from any failure of the CITY or any of CITY'S contractors or assigns to maintain such insurance. Evidence of such insurance satisfactory to the NO will be delivered to the NCTD concurrent with execution of this Agreement or within ten (10) days thereafter or on such other date agreed to by NCTD in Writing. 13.7 13.8 SDPUBKMC3274042 CMcV74042.1 12 14. Termination. This Agreement may be terminated: (1) at any time upon the mutual agreement of NCTD and the CITY; (2) upon the proper exercise of rights described in paragraph 3(a)(i); (3) upon the proper exercise of rights by Burlington Northern and Santa Fe Railway Company described in paragraph 3(a)(ii); or (3) as provided in paragraph 5.2, above. Upon temination of this Agreement, CITY shall Ieave the Easement in a neat and safe condition and all Improvements, made by CITY on the Easement pursuant to this Agreement shall be the property of NCTD and remain on the Easement. However, NCTD may, at NCTD’s option, by ninety (90) day written notice of its intent to terminate, require CITY to remove any Improvements fiom the Easement and to restore the Easement to its original condition (normal wear and tear excepted) prior to termination of this Agreement at CITY’S sole cost and expense. If CITY fails to do so, NCTD may perform such removal and restoration in which case CITY shall pay NCTD within ninety (90) days after demand therefor the cost of removal of such Improvements. NCTD will use reasonable diligence in the removal of such Improvements if it elects to do so. Termination of this Agreement shall not release either party fiom any liability or obligation hereunder resulting fiom an event which occurred before termination. Nonwaiver. The failure of either party to this Agreement to enforce or exercise its rights with respect to any term, covenant or condition of this Agreement shall not be construed as a waiver of that term, covenant or condition for any subsequent breach of the same or any other term, covenant or condition contained in this Agreement. Notices. All notices shall be in writing and shall be deemed to have been given when delivered personally or deposited in the United States Mail, registered or certified, postage prepaid, and addressed to the party to whom the notice is directed at the address set forth below. 15. . 16. SDPUBKMCU74042 cMm74042.1 13 To NCTD at: North County Transit District 8 10 Mission Avenue Oceanside CA 92054 Attn: Real Estate Department or to such other address as NCTD may designate by written notice to the other parties to this Agreement. To CITY at: City of Carlsbad Attn: Raymond R. Patchett, City Manager 1200 Carlsbad Village Drive Carlsbad, CA 92008 or to such other address as CITY may designate by written notice to the other parties to this Agreement. 17. Entire Anreement. This Agreement sets forth the entire agreement between the parties with respect to the Easement and supersedes all prior agreements, communications, and representations, oral or written, express or implied, since the parties intend that this be an integrated agreement. This agreement shall not be modified except by written agreement of the parties. Invaliditv of Particular Provisions. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall to any extent be invalid or 18. unenforceable, the remainder of this Agreement or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant and condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law Successors. CITY and their respective successors, heirs and legal representatives. 19. This Agreement shall bind and inure to the benefit of both NCTD and SDPUBKMCV274042 CMCV74042.1 14 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. NORTH SAN DlEGO COUNTY TRANSIT DEVELOPMENT BOARD CITY OF CARLSBAD BY Approved as to form: . Development Board SDPUBKMCU74042 CMCV74042.1 15 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } SS. county 5kn T[* e q~ personally appeared t@ J NWS) of signer(s) , Wersonally known to me 0 proved to me on the basis of satisfactory evidence to be the person@)'whose name(&'&& subscribed to the within instrument and acknowledged to me the same in capacity(4 and signaturepon the the entity upon behalf of which the person* acted. executed the instrument. WITNESS mv hand and official seal. dhM f Signature of Notary Pdlic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Signer@) Other Than Named Above: ", 0 Partner - 0 Limited 0 Gen&d s::*>. I ..---. ,iE:*$>s 0 Attorney-in-Fact . .:c=>-.*. 0 Trustee 0 Guardian or Conservator 0 Other: - U - ,- . -- __- Signer Is Representing: B 1999 NaWnal Notary Associatbn * 9350 De Solo Ave.. P.O. Box 2402 * Chalswur!h. CA 9131 3-2402 www.natimalndary.org Pmd. No. 5907 Reader: Call Toll-Free 1-800876-6827 EXHIBIT I Railroad Right-of-way Exhibit 1 Page 1 of2 ~ :. c PARCEL 20: THAT PORTION OF THAT CERTAIN 200 FOOT RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AS GRANTED TO CALIFORNIA SOUTHERN RAILWAY COMPANY UNDER THE PROVISIONS OF THE ACT OF CONGRESS OF RAILWAY COMPANY UNDER THE PROVISIONS OF THE ACT OF CONGRESS OF MARCH 3,1875 (18 STAT. 482) AND SHOWN ON THE MAP OF SAID RIGHT OF WAY FILED IN THE OFFICE OF THE SECRETARY OF THE INTERIOR MARCH 14,1881 AND APPROVED MAY 12,1881, LYING WITHIN SECTION 7, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. EXCEPT THEREFROM ANY PORTION LYING WITHIN THE BOUNDARY LINE OF RANCHO AGUA HEDIONDA, ACCORDING TO THE PARTITION MAP NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY NOVEMBER 16,1896. ALSO EXCEPT THEREFROM THAT PORTION OF SAID LAND, QUITCLAIMED TO R.C. PAYAN IN THAT CERTAIN DEED RECORDED MARCH 7,1929 IN BOOK 1608 PAGE 20 OF DEEDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Exhibit 1 Page 2 of 2 .. . . EXHIBIT 2 Description of Easement Exhibit 2 Page 1 of 3 .. EXH lBlT “A” COASTAL RAIL TRAIL EASEMENT NCTD A PORTION OF THAT CERTAIN 200-FOOT RIGHT-OF-WAY OF THE NORTH COUNTY TRANSIT DISTRICT AS GRANTED TO THE CALIFORNIA SOUTHERN RAILWAY COMPANY UNDER THE PROVISIONS OF THE ACT OF CONGRESS OF MARCH 3, 1875 (18 STAT. 482) ENTITLED “AN ACT GRANTING TO RAILROADS THE RIGHT OF WAY THROUGH THE PUBLIC LANDS OF THE UNITED STATES” STATES LAND OFFICE, LOS ANGELES, CALIFORNIA, MARCH 14, 1881 AND APPROVED BY THE SECRETARY OF THE INTERIOR, MAY 12,1881, LYING WITHIN SECTION 6, TOWNSHIP 12 SOUTH, RANGE 4 WEST, S.B.M. AND SECTION 7, LOCATED IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: AND SHOWN ON THE MAP OF SAID RIGHT-OF-WAY FILED IN THE UNITED TOWNSHIP 12 SOUTH, RANGE 4 WEST, S.B.M, SAID RIGHT-OF-WAY BEING BEGINNING AT THE INTERSECTION OF THE NORTHEASTERLY LINE OF SAID AVENUE AS SHOWN ON RECORD OF SURVEY MAP NO. 14504 FILED IN THE OFFICE OF THE COUNTY RECORDER ON APRIL 14,1994; NCTD RIGHT-OF-WAY WITH THE NORTHWESTERLY LINE OF TAMARACK 1. 2. 3. 4. 5. 6. 7. THENCE ALONG SAID NORTHEASTERLY RIGHT-OF-WAY LINE SOUTH THENCE LEAVING SAID RIGHT-OF-WAY LINE SOUTH 58”14’02” WEST 36.74 FEET TO THE BEGINNING OF A NON-TANGENT 5666.36-FOOT RADIUS CURVE 31”03’58 EAST 4.49 FEET; CONCAVE NORTHEASTERLY, THE RADIAL LINE TO SAID POINT WHICH BEARS SOUTH 54”5040” WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF l”07’54” A DISTANCE OF I1 1.92 FEET; THENCE NORTH 34”01’26” WEST 3548.46 FEET; THENCE NORTH 55’58’03” EAST 37.00 FEET TO SAID NORTHEASTERLY RIGHT-OF-WAY LINE ; THENCE ALONG SAID NORTHEASTERLY RIGHT-OF-WAY LINE SOUTH 34O01’26” EAST 3548.46 FEET TO THE BEGINNING OF A TANGENT 5629.36- FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE CONTINUING SOUTHEASTERLY ALONG SAID NORTHEASTERLY CENTRAL ANGLE OF l”06’29” A DISTANCE OF 108.87 FEET TO THE POINT OF BEGINNING. RIGHT-OF-WAY LINE AND ALONG THE ARC OF SAID CURVE THROUGH A AREA = 3.1 10 ACRES, MORE OR LESS. EXP. 3-31-Of u VICINITY MAP NO SCALE C COASTAL RAIL TRAIL EASEMENT LEGEND va AREA = 3.110 ACAES P.O.B. POINT OF BEGlNNlNG R/W RIGHT-OF-WAY EMSED BY: MA DATE: 2-15-05 NORTH COUNTY TRANSIT DISTRICT = 400' DOC. NO. 1RAWN BY: KA HECKED BY: MA DATE: 4-15-04 NCTO DWG. NO. LPPROVED BY: DATE: DATE: 4-13-04 CARLSBAD COASTAL RAIL TRAIL EASEMENT Exhibit 2 Page 3 of 3 EXHIBIT 3 Uses of Rail Trail Exhibit 3 Page 1 of2 EXHIBIT 3 Uses of Rail Trail The Carlsbad Coastal Rail Trail will provide a multi-modal, non-motorized trail for transportation and incidental recreational activities such as: *Bicyclists *Pedestrians *Roller Bladers *Skate Boarders *Other Non-Motorized Transportation Modes CMCUO5061.1 Exhibit 3 Page 2 of 2 EXHIBIT 4 Specification for Fence Exhibit 4 Page 1 of2 ._..-______. -- -.--- - - -- .- ---- - -. - 1 3 il P $1 @ f a I .*. .. .. . .. ... EXHIBIT 5 Right-of Entry Permit Form Exhibit 5 Page 1 ofl2 FUGHT OF ENTRY PERMIT THIS RIGHT OF ENTRY PERMIT ("Permit"), entered into as of ,2004 between the NORTH SAN DfEGO COUNTY TRANSIT DEVELOPMENT BOARD (''NSDCTDB' or ltBoardt') and ("Permittee"). RECITALS A. Board is the owner of certain railroad right-of-way assets extending f?om Orange County to San Diego and from Oceanside to Escondido (the "Riht-of-Way"). The Right-of-way is in active use for the operation of freight trains (by the Burlington Northern Santa Fe Railway Company ["BNSF"l), intercity passenger trains (by the National Railroad Passenger Corporation ["AMTW"]) and commuter trains (by Board). B. Permittee desires to enter onto and use that portion of the Right-of-way more particularly described in Exhibit A attached hereto (the "Permit Area"). C. Board is willing to allow Permittee to enter onto and use a portion of the Right-of-way, provided that Permittee's entry and use do not interfere with the Board's operations, including response to emergencies and routine maintenance, or the safe use of the Right-df-Way by Board, BNSF, and AMTRAK, and provided-that Permittee's entry and use are in strict accordance with terms and conditions set forth in this Permit. NOW, THEREFORE, BOARD AND PERMlTTEE AGREE AS FOLLOWS: 1. Basic Permit Terms. 1,1 Permit Fee: Five Hundred Dollars ($ 500.00). 1.2 Expense Reimbursement Deposit: Dollars ($ ). 1.3 Permit Expiration Date: ,2004 1.4 Permitted Use: 1.5 Board Permit Coordinator: Jim Cunningham, Manager of Real Estate Telephone number: (760) 966-6538 1.6 Permittee's Address: Telephone Number: I 1.7 Emergency Number: (800) 500-7346 Exhibit 5 Page 2 of 12 2. Grant of Permit. Board hereby permits Permittee to enter upon and use the Permit Area for the purpose and during the time periods set forth in this Permit. 3. Permit Fee. Permittee shall pay to Board, in advance, the non-refundable Permit Fee set forth in section 1.1 as partial consideration for the rights and privileges set forth in this Permit. The Permit Fee is payable to North San Diego County Transit Development Board on or before execution of this Permit. 4. Cost Reimbursement. Jn addition to the Permit Fee, Permittee shall reimburse Board for all costs and expenses incurred by Board in the review of Permittee's request for this Permit, Permittee's entry upon and use of the Permit Area, and review and inspection of any work performed in the Permit Area; markout of railroad facilities; inspection, flagging, and security services; and installation, removal, repair, and restoration of the Right-of Way and railroad facilities. Upon execution of this Permit, Permittee shall deposit with the Board the Expense Reimbursement Deposit amount set forth in section 1.2. Board may deduct the costs and expenses fiom the Expense Reimbursement Deposit as such costs and expenses are incurred. Costs of services provided by Board employees will be charged at the employees' fully loaded productive hourly rate (monthly salary and benefits divided by 150 hours). Services provided by Board consultants, equipment rentals, and other third party costs will be charged at cost plus a 7.2% administrative fee. Upon demand by Board, Permittee shall make any additional deposits that Board determines are necessary to reimburse Board for the costs and expenses incurred by Board. In the event that the costs and expenses incurred by Board exceed the amounts deposited, Permittee shall reimburse Board for all such costs and expenses within 30 days of invoice. 5. Use of Right of Way. 5.1 Permitted Use. Permittee's entry upon and use of the Pennit Area is solely for the purpose set forth in section 1.4. 5.2 Time of Use. a. Permittee shall not enter upon or use the Pennit Area or any Right-of-way until Permittee has paid the Pennit Fee set forth in section 1 .l, paid the Expense Reimbursement Deposit set forth in section 1.2, satisfied the safety conditions set forth in section 5.3(d), and delivered to Board the evidence of insurance set forth in section 8. b. Permittee shall deliver to Board a written Flag Protection Right-of-way Work Request, in the form attached as Exhibit B, not less than three (3) business days prior to each entry upon the Permit Area. The need for flag protection shall be determined in the sole discretion of the Board's Manager of Maintenance of Way. Tn the event that the Manager of Maintenance of Way determines that flag protection is necessary, Permittee shall not enter upon or use the Permit Area until flag protection has been Exhibit 5 Page 3 of 12 Page 2 5/6/2004 provided. Board shall use reasonable efforts to provide flag protection on the dates and times of Permittee's requested entries, provided that any work by Board, BNSF, or AMTRAK that requires flag protection shall take priority. Board shall not be liable for any costs, expenses, or claims if flag protection is not provided on Permittee's requested dates or times of entry. e. The Board's Manager of Maintenance of Way has the right to approve the dates and times that Permittee may use the Permit Area. d. This Permit and Permittee's rights hereunder shall terminate automatically upon the completion of the purpose stated in section 1.4, or at 5:OO p.m. on the Permit Expiration Date set forth in section 1.3, which ever is first to occur. 5.3 Restrictions on Use. a. b. C. d. Pennittee has no right to use any portion of the Right-of-way other than the Permit Area for any purpose. No use by Permittee shall interfere with or delay any railroad operations on the Rght- of-Way or interfere with or cause damage to any railroad facilities. Permittee shall protect all railroad facilities, pubIic improvements, public utilities, communication lines, survey and subdivision monuments, and other facilities of like character, existing OT constructed during the term of this Permit upon, over, under, or across the Right-of-way from damage from Permittee's use. Permittee shall promptly replace or repair all such improvements or facilities which are destroyed or damaged as a result of any entry by Permittee under this Permit. Permittee shall bear the entire cost of replacement or repairs of any and all improvements and facilities damaged or destroyed by reason of Permittee's use under this Permit, whether such improvements or facilities are owned by Board or any other owner. Any repair or replacement shall be to the satisfaction, and subject to the approval of, the Board or the owner of the improvements or facilities. Every individual who will be entering upon the Right-of-way under this Permit, before entering onto the Right-of-way, shall first attend a class conducted by the Board or the Board's designee on Railroad Worker Protection Safety rules and regulations. Permittee shall comply with the SDNR rules and regulations of the San Diego Northern Railway and the Track Safety Standards, Part 213, Subpart A-F, CIass of tracks 1-5, Federal Railroad Administration (FRA) at all times while on the Right-of-way. Such rules and regulations include, but are not limited to, the wearing of hard hats, protective goggles, reflective vests and steel-toed (or equivalent) shoes at all times while working on the Right-of-way. All costs of the safety training and of complying with the Board's safety requirements will be at the expense of the Permittee. Exhibit 5 Page 4 of 12 Page 3 5/6/2004 . " -1 : !: e. Permittee shall be solely responsible for compliance with all federal, state, and local laws, regulations, rules, and orders applicable to Permittee's entry upon and use of the Right-of-way. Permittee shall obtain all federal, state, and local permits and approvals applicable to Permittee's entry upon and use of the Right-of-way. f. No object which can be moved by two persons shall be left on the Right-of-way unattended. This requirement also applies to objects above and/or outside the Right- of-Way on the uphill side which can be thrown or rolled downhill onto the track(s). 6. Irnprovements and Work. 6.1 No Permanent Improvements. This Permit does not authorize Permittee to place any improvements or facilities in the Right-of-way that will remain in the Right-of-way after the termination of this Permit. Any such improvements or facilities can be authorized only by a separate written license or agreement between Board and Permittee or the owner of the improvements or facilities, which license or agreement shall contain such other terms, conditions, covenants, representations, and warranties as Board, in Board's sole and absolute discretion, determines to be appropriate, including, without limitation, provisions relating to maintenance, term, payments for use of the Right-of-way, relocation, indemnity, and insurance. b. Amroval of Work. Permittee shall deliver to Board, for Board's review and approval, drawings, specifications, and other construction documents describing any proposed work in the Permit Area in sufficient detail to enable Board to determine the scope and nature of the proposed work and the potential effect of such work on the Right-of-way and the train operations. Board may approve or disapprove any work in Board's sole and absolute discretion, and Board may require such changes ox impose such conditions as Board, in its sole and absolute discretion, deems necessary or appropriate. In the event that Board approves any proposed work, the work by Permittee in the Pennit Area shall be done in compliance with the drawings, specifications, and documents approved by Board, with the terms and conditions set forth in this Permit, and with all applicable federal, state, and local laws, des, regulations, permits, and orders. Pennittee shall only use a contractor approved by Board. Board shall have the right inspect the work to determine whether the work is performed in accordance with the terms and conditions of this Permit and to order Permittee to correct or remove any work that does not comply with the terms and conditions of this Permit. Permittee shaII reimburse Board for the costs of inspections and costs of furnishing any flag protection for the work. 6.3 No Representation or Warranties Regarding Work. Board's review and inspection of the drawings, specifications, construction documents, and work is for the purpose of examining the general arrangement, design, and details of the work for potential impact on the Right-of-way and railroad operations. Board and Board's employees, consultants, and agents asme no responsibility for and make no representations or warranties, express or implied, as to the design, condition, workmanship, or adequacy of the drawings, specifications, construction documents, or work. No review, comments, Page 4 5/6/2004 ". ~. Exhibit 5 Page 5 of 12 \ requirements, or inspection shall relieve Pemittee or Permittees engineers, contractors, subcontractors, or consultants fiom the entire responsibility for the errors or omissions in the drawings, specifications, or construction documents, or for the quality or adequacy of the work. 6.4 Permittee's Notification Requirements. a. Permittee shall contact the Board Permit Coordinator named in section 1.5 of the Basic Permit Terms prior to the start of any construction work for a markout of Board facilities. Please be advised that Board is not a member of Dig Alert. b. Permittee shall contact Dig-Alert at (800) 422-4133 prior to any excavation in the Right-of-way. c. Permittee shdl contact MCI Telecommunications Corporation at (888) 258-0808 prior to any excavation in the Right-of-way. 7. Exculpation and Indemnity 7.1 7.2 Exculuation of Board. Board shall not be liable to Permittee for any damage to Permittee or Permittee's property from any cause. Permittee waives all claims against Board, BNSF, AMTRAK and their respective directors, officers, employees, and agents for damage to person or property arising for any reason. Pennittee acknowledges that the Right-of-way is used for operation of trains operating at high speeds. Indemnity. Permittee hereby indemnifies, defends, and holds the Board, BNSF, AMTRAK, and their respective directors, officers, employees, and agents, harmless fiom and against any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatsoever character, nature and kind, whether directly or indirectly arising fiom or connected with an act or omission of Permittee, or any employee, agent, invitee, contractor of Permittee, or other person acting by or on behalf of Permittee on or about the Right-of-way, including, but not limited to, liability, expense, and claims for: bodily injury, death, personal injury, or property damage; provided, however, that nothing herein shall relieve any party indemnified hereunder fiom liability to the extent that such liability arises from such party's sole established negligence or willful misconduct. This indemnity shall not require payment of a claim by the Board, BNSF, AM-, or any of their respective directors, officers, employees, ox agents as a condition precedent to the Board's recovery hereunder. Permittee's obligation to indemnify hereunder shall not be restricted to insurance proceeds, if any, received by Board, BNSF, AMTRAK, or their respective directors, officers, employees, or agents. 7.3 DeIay/Cancellation of Trains, Without limiting the indemnity set forth in section 7.2, Pennittee agrees to pay all costs associated with the delay or cancellation of trains caused by Permittee. Delay charges are estimated to be $2,000 per passenger train delayed over Exhibit 5 Page 6 of 12 Page 5 5/6/2004 30 minutes and may include the cost of busing passengers around the work area, if necessary. 7.4 hdemnitv Not Limited to Insurance Coverase. The requirements as to the types and limits of insurance coverage to be maintained by Permittee as required by section 8, and any approval of such insurance by Board, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Permittee pursuant to this Permit, including but not limited to the provisions concerning indemnification. 8. Insurance. Permittee, at Permittee's sole cost and expense, shall procure and maintain the following insurmce: 8.1 Railroad Protective Liability Insurance. a Railroad Protective Liability Insurance covering the operations performed by Pennittee or any subcontractor of Permittee within fifty (50) feet vertically or horizontally of railroad tracks. b. The AAR-AASHTO (ISO/RIMA) Occurrence Form (claims-made forms are unacceptable) shall be issued in the names of the North San Diego'County Transit Development Board, San Diego Northern Railroad, Burlington Northem Santa Fe Railway Company, and National Railroad Passenger Corporation. c. The Railroad Protective Liability Insurance policy shall have limits of liability of not less than $5 million per occurrence, combined single limit, for Coverages A and 3, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, including the loss of use thereof. Additionally, Policy Endorsement CG 28 3 1 - Pollution Exclusion Amendment, is required to be endorsed onto the policy. A $5 million annual aggregate shall apply. d. The original Railroad Protective Liability Insurance Policy must be submitted to NCTD prior to any entry upon the right-of-way 8.2. Commercial General Liability Insurance. a. Commercial General Liability Insurance covering liability of the Permittee with respect to all operations to be performed and all obligations assumed by the Permittee under the terns of this Permit. Products-completed operations, independent contractors, and contractual liability coverages are to be included, with the contractual exclusion related to constructioddemolition activity within fifty (50) feet of the railroad and any X-C-U exclusions deleted. b. Coverage for commercial general liability shall be at least as broad as Insurance Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). Exhibit 5 Page 7 of 12 Page 6 5/6/2004 \ . c. The commercial general liability policy must name North San Diego County Transit Development Board, San Diego Northern Railroad, Burlington Northern Santa Fe Railway Company, National Railroad Passenger Corporation and their respective directors, officers, employees, contractors and agents as additional insureds. d. Limits shall be no less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other fonn with a general aggregate limit is used, either the general aggregate limit shall apply to the Right-of-way (with the IS0 CG 2503, or IS0 CG 2504, or insurer's equivalent endorsement provided to Board) or the general aggregate limit shall be twice the required occurrence limit. 8.3 Automobile Liability. a. b. C. d. Automobile liability insurance covering the liability of Permittee arising out of the use of all owned, non-owned, and hired vehicles which bear, or are required to bear, license plates according to the laws of California and which are not covered under the Permittee's Commercial Genera1 Liability insurance. Coverage under this policy shall have limits of liability of not less than $2 million per occurrence, combined single limit, for bodily injury and property damage (including loss of use) liability. Coverage shall be at least as broad as Insurance Services Office Automobile Liability Coverage (Form CA OOOl), covering Symbol 1 (any auto). The automobile liability policy must name North San Diego County Transit Development Board, San Diego Northern Railroad, Burlington Northern Santa Fe Railway Company, National Railroad Passenger Corporation and their respective directors, officers, employees, contractors and agents as additional insureds. Limits shall be not less than one million dollars ($1,000,000) for bodily injury and property damage each accident limit. 8.4 Workers' Compensation and Emdover's Liability Insurance. a. Workers' compensation and employer's liability insurance complying will the requirements of all applicable laws relating to workers' compensation insurance, covering or insure all of the Permittee's employees working on or about the Right-of- Way. b. Limits shall be no less than than one million dollars ($1,000,000) per accident for bodily injury and disease. c. By hisher signature hereunder, Permittee certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be Exhibit 5 Page 8 of 12 Page 7 5/6/2004 insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it will comply with such provisions in connection with any work performed on the Site. d. Any persons providing services with or on behalf of Permittee shall be covered by workers' compensation (or qualified self-insurance). 8.5 Policv Forms. All of the insurance shall be provided on policy forms and through companies reasonably satisfactory to Board. 8.6 Acceptabilitv of Insurers. Insurance is to be placed with insurers having a current A.M. Best rating of no less than A-, VII or equivalent or as otherwise approved by Board. 8.7 Evidences and Cancellation of Insurance. a. Prior to entry on the Right-of-way, Permittee shall file with the Pemit Coordinator a certificate of insurance for the commercial general liability and automobile liability policies required by sections 8.2 and 8.3, with an original signature of the insurer's representative . An endorsement shall be attached to the certificate demonstrating that the policy was changed to reflect the additional insured requirements. b. Each insurance policy required by this clause shall state or be endorsed to state that coverage shall not be amended or canceled, except after thirty (30) days prior written notice by US. mail has been given to Board. 9. Default: Termination. 9.1 Default. If Permittee uses the Right-of-way for any other purpose than as stated in section 1 :4 of the Basic Permit Terms, or fails to act strictly in accordance with the terms and conditions of this Permit, then Board may immediately and without prior notice to Pennittee terminate this Permit and prevent Permittee fi-om using or remaining upon the Right-of-way, with or without process of law. In the event that Permittee fails to perfom any obligation under this Permit, Permittee shall pay all costs and expenses incurred by Board in obtaining perfonname of such obligations, including costs of suit and ., reasonable attorney's fees. 9.2 Removal of Work. If Permittee fails to complete any work in accordance with the terms and conditions of this Permit, Board may remove such work and restore the Right-of-way at the expense of Permittee, and Permittee shall be liable to Board for all costs and damages occasioned thereby. 9.3 Permittee's Obligations on Termination. Upon termination of this Permit, and at Permittee's sole expense, Permittee shall remove any and all equipment, tools, vehicles, materials, and other personal property, placed on the Right-of-way or used in connection Exhibit 5 Page 9 of 12 Page 8 5/6/2004 ... . . . . . ,. , . . . . . . with Pennittee's entry onto or use of the Right-of-way and Permittee shall restore the Right-of-way in a manner satisfactory to Board. Should Permittee fail or refuse to comply with the terms of this section, Board may, at its option, perform such work. Permittee shall reimburse Board for the cost so incurred. Failure on the part of Board to perform the obligations of Permittee shall not release Permittee from liability hereunder for loss or damage occasioned thereby. 9.4 Continuing Obligations of Permittee. No termination or cancellation of this Permit shall relieve or release Permittee fiom any liability or obIigation (whether of indemnity, payment of costs, or otherwise) which may have attached or accrued previous to or which may be accruing at the time of such termination or cancellation. 10. Notices. Except as otherwise provided in this Pennit, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified or registered mail, and shall be deemed sufficiently given if delivered or addressed to Tenant at the address in section 1.6 of the Basic Permit Terms or to Board at North San Diego County Transit Development Board, 8 10 Mission Avenue, Oceanside, CA 92054, Attention: Manager of Real Estate. Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight hours following deposit in the mail, postage prepaid, whichever first occurs. Either party may by notice to the other specify a different address for notice purposes. 1 1. Permittee's Agents. Any contractor or subcontractor performing work on, or in connection with the Permittee's use of or entry onto the Right-of-way pursuant to this Permit, shall be conclusively deemed to be the servant and agent of Permittee, acting on behalf and within the scope of such contractois or subcontractor5 employment for Permittee. 12. Board Agents. Except as otherwise provided in this Permit, the term Board shall include Board's staff and employees. 13. Board Contacts. The Board Permit Coordinator named in section 1.5 serves as a liaison between Board staff and Permittee to assist Board staf'f in the coordination of the reviews, approvals, and scheduling of Board activities in connection with this Permit. The Board Permit Coordinator does not have the authority make agreements on behalf of Board or bind Board to any decision. 14. Covenant of Non-Discrimination. Permittee covenants for itself, and its successors and assigns, and all persons claiming under and through Permittee, that there shall be no discrimination or segregation of any person or group of persons on account of sex, marital status, race, color, creed, religion, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of any portion of the Right-of-way. 15. No Partnership. Joint Venture or Principal-Agent Relationship Nothing contained in this Permit shall be deemed or construed to create the relationship of principal and agent, or of joint venture, or of partnership between Permittee and Board. Exhibit 5 Page 10 of 12 Page 9 5/6/2004 .. . - . . . 16. General Provisions. 16.1 No Further Rights. a. This Permit constitutes a permit only to enter upon and use the Right-of-way for the purpose set forth in section 1.4 of the Basic Permit Terms and shall not be construed as granting to Pennittee any right-of-possession, estate, title or interest whatsoever in or to the Right-of-way, or any part thereof. b. Permittee hereby acknowledges that it has been informed that Board is a public entity and that the subject property has previously been acquired by Board for a public purpose. Permittee further acknowledges that any rights acquired under this Permit arose after the date of acquisition of the subject property and that such rights are subject to termination when the property is needed by Board for the public purpose. Permittee hereby acknowledges and agrees that at the time of termination of this Permit by Board, Permittee will not be a "displaced person" entitled to any of the relocation assistance or benefits offered to displaced persons under State or Federal law. 16.2 Modification of Perrnit. This Permit and any provision, covenant, condition, or restriction contained herein may be extended, modified, or amended with the unanimous consent of the Parties. No such extension, modification or amendment will be effective until a written instrument setting forth its terms has been executed by Board and Permittee. 16.3 Captions The captions of this Pennit are inserted only as a matter of convenience and for reference. It does not define, limit or describe the scope of intent of this Permit, and they shall not affect the interpretation thereof. 16.4 Ameement for Exclusive Benefit of Parties Except where expressly provided otherwise in this Permit, the provisions of this Permit are for the exclusive benefit of the Parties hereto and not for the benefit of any other person nor shall this Permit be deemed to have conferred any rights, express or implied, upon any other person. Neither Permittee, its heirs, legal representatives, successors or assigns, nor any subsequent assignee, shall assign this Perrnit or any interest herein, without first securing the written consent of Board in each instance, and that at the option of Board, this Pennit shall be forfeited by any such unauthorized assignment, transfer or Iease or by any assignment or transfer thereof by operation of law. 16.5 Waiver of Default A waiver by any Party of any default by another Party must be in writing, and no such waiver shall be implied fiom any omission by a Party to take any action in respect of such default. No express written waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more written waivers of any default in the Page 10 5/6/2004 Exhibit 5 Page 11 of 12 ........ ~ .~. ... . . performance of any provision of this Permit shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provisions contained herein. The consent or approval by a Party to or of any act or request by another Party requiring consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar acts or requests. 16.6 Successors. This Permit shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns of the parties. 16.7 Governing Laws. This Permit shall be construed, interpreted, governed and enforced in accordance with the laws of the State of California. 16.8 Time of Essence. Time is of the essence with respect to the performance of each of the covenants and agreements contained in this Permit. 16.9 Severability. If any clause, sentence, or other portion of the terms, conditions, covenants, and restrictions of this Permit becomes or is declared to be illegal, null, or void for any reason, or be held by any court of competent jurisdiction to be so, the remaining portions of this Permit will remain in full force and effect. EmerPencv Number. Permittee shall immediately notify the Dispatcher at the Emergency Number set forth in section 1.7 if the tracks become fouled in any way. NORTH SAN DEGO COUNTY Permittee: TRANSIT DEVELOPMENT BOARD Karen H. King Executive Director By: Title: Exhibit 5 Page 12 of 12 Page 11 5/6/2004 _I" ___^ . . ... .... .- . . . ..- . EXHIBIT 6 Description of Carlsbad-Phase I Coastal Rail Trail Variance Exhibit 6 Page 1 Of 7 . EXIDBIT 6 COASTAL RAIL TRAfL CARLSBADA’HASE I VARIANCE This variance was approved by the NCTD Board of Directors on April 15,2004. Variances As set forth in the Carlsbad-Phase 1 Coastal Rail Trail Variance Request Package, dated March 17,2004, the City of Carlsbad is requesting variances for the following four (4) items: e Inclusion of the existing drainage ditch within the proposed CRT easement; Establishment of trees within the proposed CRT easement; Placement of benches within the proposed CRT easement; and Establishment of a one-way trail portion near Tamarack Avenue. e 0 Inclusion of Existinn Drainage Ditch The City is requesting a 2-foot variance from Guideline Section 6.2.1, Track Footprint, for the entire length of the Carlsbad - Phase 1 bike trail so as to include an existing drainage ditch into a 37-foOt wide bike trail easement. In this portion of the NCTD railroad right-of-way, Board Policy and Guideline Section 6.2.1 dictate that a 65-foot Operating Right-of-way clear zone be established on either side of the existing track centerline for the future 20-year Improvement Envelope and the Operating Right-of-way Track Footprint, which provides for: a) the horizontal distance between centerlines of the existing single track and a future double track; b) trackbed and trainmen’s walkway section; c) embankment slope; d) maintenance/emergency access roadwork staging area; and e) drainage ditch. Board Policy also sets forth in Resolution No. 03-06, Section l(a) that, “the Rail Trail should be located as far from the tracks as practicable.” As such, the City of Carlsbad Phase 1 Variance Request Package should have provided for a variance request from the Board Policy set forth in Section l(a) as it is practicable to maintain the entire alignment of the bike trail within a 35-foot easement, which would be outside of the NCTD Operating Right-of-way footprint alongside the eastern edge of the right-of-way line. To be in compliance with Board Policy, Section l(a) would dictate that the City redesign the bike trail alignment to be located outside of the NCTD operating Right-of-way within a 35-foot easement. The total width of the NCTD railroad right-of-way in this location is 2OO-feet, with approximately 1 00-feet existing on either side of the existing single track centerline. With a 65-foot clear zone being required on the east side of the existing track, and after consulting with CMCD95871.1 Exhibit 6 Page 2 of 7 the Real Estate and Security Departments for potential conflicts,'the 35 feet located to the eastern edge of the railroad right-of-way was determined to be "remaining NCTD right-of-way". Although an executed easement agreement is already in place between NCTD and the City of Carlsbad for the existing storm drain system and the maintenance thereof, the City indicates that granting a variance fkom Guideline Section 6.2.1 so as to include the existing drainage ditch into the bike trail easement would produce significant benefits for the bike trail, City, and NCTD. One such benefit would be the enabling of City maintenance personnel to access the existing storm drain inlets f?om within the bike trail easement. The City states that such access to the storm drain inlets would prevent City crews fiom being exposed to NCTD operational movements within the Operating Right-of-way, and thus decrease risks associated with such exposure. NCTD acknowledges that City flagging costs associated with the maintenance of the storm drain system would also be avoided should such maintenance be conducted fbm the bike trail easement. In addition, the City states that an objective of this project is to restrict drainage of the bike trail from leaving the easement area and interfering with NCTD operations. Throughout the design process, and in the initial Variance Request Package, the City requested that a 5-fOOt variance fiom Guideline Section 6.2.1 be granted. A 5-foot variance would have provided for a &foot wide easement, which would have encroached 5-feet into the NCTD Operating Right-of-way. Throughout the design process NCTD made known their concerns to the City regarding such an encroachment and upon receipt of the Variance Request Package on March 17,2004 reiterated such concerns to the City. Since then, NCTD and the City of Carlsbad have held numerous discussions so as to reach an agreement as to the finalized content of the Carlsbad-Phase 1 Variance Request Package. While NCTD looks to preserve the space necessary for safe and efficient railroad operations, both for what is needed today and in the reasonably foreseeable future over the next 20 years, NCTD also looks to unite efforts with the City in developing sohtions that are acceptable to both parties. Mer much discussion, NCTD and the City of Carlsbad have come to an agreement that a 2-foot variance/37-foot easement will provide for NCTD's railroad operational needs, as well as City interests associated with the maintenance of the existing storm drain system. The City has since amended their variance request to provide for a 2-foot variance from Guideline Section 6.2.1, which would provide for a 37-foot wide easement. Per Resolution No. 03-06, variances may be granted for special circumstances applicable to specific portions of the Right-of-way. One such circumstance mentioned in Resolution No. 03-06 is where mitigation measures could be provided to mitigate safety and rail operation issues. Under these special circumstances, the portion of NCTD railroad right-of-way at issue in the Carlsbad-Phase 1 Variance Request Package is ZOO-feet in width. As such, NCTD is not as constrained in this location as it would be in other instances along the railroad right-of-way where the width may be less than 200-feet. NCTD has determined that the increased safety of City personnel whom maintain the storm drain system and the City's assumption of responsibility for railroad drainage is sufficient mitigation for the justification of a 2-foot encroachment into the NCTD Operating Right-of-way. cMc\295871.1 Exhibit 6 Page 3 of 7 h accordance with Resolution No. 03-06, a 2-foot variance will be granted pending approval of the North San Diego County Transit Development Board of Directors during their April 15,2004 full Board meeting, fiom Guideline Section 6.2.1 Track Footprint for the 0.70-mile Carlsbad - Phase I variance segment from Oak Avenue to Tamarack Avenue. The validity of this variance is contingent upon strict adherence to the following conditions and agreements that were reached during variance process meetings and discussions between NCTD and the City of Cadsbad 1. As is set forth in the Variance Request Package, drainage fiom the remaining railroad right-of-way will be the responsibility of, and maintained by, the City. The existing storm drain system will continue to accept and maintain drainage fiom the area of the proposed easement, remaining NCTD property, and f3om areas adjacent to NCTD property. As is set forth in the Variance Request Package, the existing drainage ditch and associated storm drain system will be the responsibility of, and maintained by, the city. As is set forth in the Variance Request Package, storm drain inlets will be inspected once a month and after each storm event as outlined in the project's storm water pollution prevention plan. As is set forth in the Variance Request Package, inspection will locate obstructions or standing water and will require immediate action if found. As is set forth in the Variance Request Package, daily litter control will be required under the City Stormwater Management Plan. As is set forth in the Variance Request Package, the activities of storm drain inspection and maintenance would occur behind the welded wire mesh fence separating the bike trail from the NCTD operational area, thus preventing interference between City maintenance personnel and NCTD rail operations. As is set forth in the Variance Request Package, NCTD access in the vicinity of Tamarack Avenue will be maintained through the relocation of the existing maintenance-of-way driveway and gate by the City. As is set forth in the Variance Request Package, NCTD access along the length of the bike trail will be maintained through the inclusion of access gates at regular intervals along the proposed fence line by the City. As is set forth in the Variance Request Package, the existing NCTD access at Oak Avenue will not be altered by the construction of the bike trail or the acquisition of the proposed variances. If at any time any portions of the bike trail impede NCTD operational activities, the City will be responsible for correcting the situation to the satisfaction of NCTD according to the procedures set forth in the Easement Agreement. 2. 3. 4. 5. 6. I 7. 8. 9. 10. Establishment of Trees The City is requesting a variance fiom past NCTD plan review comments so as to allow for tree establishment within the proposed CRT easement. The City is proposing to locate 25 New CMcU95871.1 Exhibit 6 Page 4 of 7 -, ... .. ... ... .. .. 4 . Zealand Christmas Trees (h4etrosideros Excelsa) Within th variance request sets forth that this proposed tree type grows to be 20-feet high with a 12- to 15-foot wide canopy and is drought tolerant with low irrigation needs. The City proposes to plant the trees 30- to 35-feet east of the proposed CRT easement boundary, which would be approximately 95-feet east of the nearest track centerline. In accordance with Resolution No. 03-06, a variance will be granted pending approval of the North San Diego County Transit Development Board of Directors during their April 15,2004 full Board meeting, for the establishment of trees within the CRT easement as is set forth in the Carlsbad - Phase 1 Variance Request Package dated March 17,2004 and "Exhibit A, LDP. 1-2" of said Package. The validity of this variance is contingent upon strict adherence to the following conditions and agreements: 1. As is set forth in the Variance Request Package, all 25 proposed New Zealand Christmas trees shall be planted on the east side of the proposed CRT bike trail and easement boundary. As is set forth in the Variance Request Package, should the proposed trees grow to such a size that their debris interferes with NCTD maintenance activities andor operations, the City would remove such trees at NCTD's request with any associated costs being borne by the City. As is set forth in the Variance Request Package, the proposed tree type grows to be 20-feet in height. As such, the height of the 25 proposed New Zealand Christmas trees shall be maintained by the City to remain at or below a maximum height of 20-feet. The branches of the 25 trees shall not extend over the vertical plane of the western limits of the easement boundary, the bike trail fence, which separates the bike trail from the remainder of the railroad right-of-way. 2. 3. , 4. Placement of Benches The City is requesting a variance from past NCTD plan review comments so as to allow for the placement of eight (8) benches within the proposed CRT easement, as is set forth in "Exhibit A" of the Carlsbad - Phase 1 Variance Request Package, dated March 17,2004. In accordance with Resolution No. 03-06, a variance will be granted pending approval of the North San Diego County Transit Development Board of Directors during their April 15,2004 full Board meeting, for the placement of eight (8) benches within the CRT easement. The validity of this variance is contingent upon strict adherence to the following conditions and agreements: 1. As is set forth in the Variance Request Package, NCTD requested that the City design such benches to be of a sufficient mass and fixity so as to prohibit their movement into the NCTD Operating Right-of-way. As such, the City has set forth in the Variance Request Package that the eight (8) proposed benches shall weigh approximately thee (3) tons each, including a nine (9) -foot by three (3)- foot base weighmg 1.6 tons. CRT easement. Th CMCU95871.1 Exhibit 6 Page 5-of '7 r. ... .. . _._._ ~ .. . ....... .. - . . 2. As was recently discussed with the City, all eight (8) proposed benches shall be located on the east side of the proposed CRT bike trail and easement boundary, As such, the two (2) benches proposed to be located on the west-side of the trail at the Chestnut Avenue entrance shall be redesigned to be located on the east-side of the trail. As is set forth in the Variance Request Package, proposed benches shall not have any Ioose parts, and construction joints shall be secured with reinforcing steel. As is set forth in the Variance Request Package, vagrancy that should occur in the vicinity of installed benches shall be mitigated by the City through the provision of police patrols. 3. 4. Establishment of a One-way Trail Portion The City is requesting a variance fiom past NCTD plan review comments so as to establish a short one-way portion of the bike trail, termed "SBl", in the vicinity of Tamarack Avenue. SB 1 is proposed to be a separate 195-foot serpentine path located on the western side of the easement closest to the railroad tracks, wbich would stem from the bike trail's main alignment along the eastern edge of the right-of-way. Board Policy set forth in Resolution No. 03-06, Section l(a) states that, "the Rail Trail should be located as far &om the tracks as practicable." As such, the City of Carlsbad -Phase 1 Variance Request Package should have provided for a variance request fiom the Board Policy set forth in Section l(a) as it is practicable to maintain the entire alignment of the bike trail along the eastern edge of the right-of-way. To be in compliance with Board Policy, Section l(a) would dictate that the City redesign the one-way trail portion termed SB 1 so that the entire bike trail is located along the eastern edge of the right-of-way. The City states in their Variance Request Package that the one-way trail portion termed SB 1 is intended to physically encourage southbound trail bicycle users to reduce their speed before coming to the trail's mid-block termination at Tamarack Avenue. The alignment of SB 1 is favored by the City of Carlsbad Traffic Engineering Department as it is intended to promote safety amongst southbound trail bicycle users. The City states that accidents have occurred in similar locations elsewhere in Carlsbad, where bicycle riders enter a roadway uncontrolled. The Variance Request Package proposes that the serpentine southbound bail design of SB 1 will alert southbound bicycle riders to become aware of the changed conditions he/she will encounter at the mid-block Tamarack Avenue intersection and encourage them to slow down and stop before entering the street. Per Resolution No. 03-06, variances may be granted for special circumstances applicable to specific portions of the Right-of-way. One such circumstance mentioned in Resolution No. 03-06 is where a short or minor variance would produce significant benefits for the Rail Trail. Upon review of this variance request, NCTD supports the City of Carlsbad Traffic Engineering Department's position that the proposed alignment of SB1 would promote safety amongst southbound trail users. While NCTD takes no position as to the soundness of the proposed SBl design in relation to trail user safety, NCTD does take the position that under these special CMCU95871.1 Exhibit 6 Page 6 of 7 .. ... -. .. . circumstances a short 195-foot variance from Board Policy would have the potential to produce significant benefits for the rail trail and its users. In accordance with Resolution No. 03-06, a variance will be granted pending approval of the North San Diego County Transit Development Board of Directors during their April 15,2004 full Board meeting, for the establishment of the 1 !%foot one-way trail portion termed "SB 1 'I in the vicinity of Tamarack Avenue within the CRT easement, as is set forth in "Exhibit A" of the Carlsbad - Phase 1 Variance Request Package, dated March 17,2004. These variances become effective on the date of approval by the North San Diego County Transit Development Board. Notice of the action taken by the Board during their April 15,2004 full Board meeting will be provided to you. Since January, 2004, NCTD and the City of Carlsbad have held numerous meetings and discussions so as to reach an agreement on the finalized content of the Carlsbad - Phase I CRT Variance Request Package. NCTD would like to thank the City of Carlsbad, and particularly Lloyd Hubbs, for the level of cooperation and coordination #at has been provided during the past few weeks of the variance request process. NCTD joins the City of Carlsbad in their anticipation for the construction of the Carlsbad-Phase 1 Coastal Rail Trail and looks forward to similar cooperative efforts with the City on on-going and future projects. Sincerely, Karen H. King Executive Director, NCTD cc: Lloyd Hubbs, Public Works Director, City of Carlsbad Tom Lichteman, Director of Rail Services, NCTD Kate Stonelake, Rail Project & Environmental Coordinator, NCTD CMCU95871.1 Exhibit 6 Page 7 of 7 BEST BEST & KRIEGER LLP A CALIFORNIA LIMITED LUBILIIY PARTNERSHIP INCWDINO PROFESSIONAL CORPORATIONS LAWYERS 402 WEST BROADWAY, I3Tn FLOOR (6 I 9) 5 25- I 300 BBKLAW.COM SAN DIEW. CALIFORNIA 82 IO 1-3542 (6 I 8) 2336 I I8 FAX RIVERSIDE (95 I) 686- I 450 INDIAN WELLS (760) 568-26 I I - C. MICHAEL Cowm (6 19) 525- I336 MICHAEL. COWET@BBKUW. COM FILE No. 60 172.00003 May 18,2005 Ms Jane Mobaldi Assistant City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008- 1989 ONTARIO (QOQ) 869-8584 ORANGE COUNTY (949) 283-2600 SACRAMENTO (8 16) 325-4000 - - Re: Easement Agreement between North San Diego County Transit DeveloDment Board and the City of Carlsbad Dear Ms. Mobaldi: Enclosed please find conformed copy of the above Agreement which was just returned to us by the County Recorder’s Office. The original Agreement will be returned to our offices in the near future. Please let me know if I can be of any further assistance to you. of BEST BEST & KRIEGER LLP CMC:mod SDPUB\MARGARET.ODONNELL\3 1268 1.1