HomeMy WebLinkAbout3455; North San Diego County Transit Development Board; 2005-0410965: EasementRECORDING 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.
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b
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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
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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
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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
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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
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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
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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
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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.
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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
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services reasonably necessary to conduct CITY’S permitted use of the Easement under
this Agreement.
12. Relocation of Facilities.
12.1
12.2
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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.
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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
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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.
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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
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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
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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:
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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
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EXHIBIT 2
Description of Easement
Exhibit 2
Page 1 of 3
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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" ___^ . . ... .... .- . . . ..-
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EXHIBIT 6
Description of Carlsbad-Phase I Coastal Rail Trail Variance
Exhibit 6
Page 1 Of 7
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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
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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
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... .. . _._._ ~ .. . ....... .. - . .
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
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C. MICHAEL Cowm
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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