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; NORTH COUNTY TRANSIT DISTRICT; 2010-0390107; Easement
RECORDING REQUESTED BY: Carlsbad City Clerk's Office WHEN RECORDED MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 DQCtt 2010-0390107 III !!• IIMH ••!•• ii-" --••• AUG02, 2010 12:53 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER FEES: 132.00 PAGES:40 SPACE ABOVE THIS LINE FOR RECORDER'S USE City of Carlsbad EASEMENT AGREEMENT FOR RAIL TRAIL FOR USE OF NORTH COUNTY TRANSIT DISTRICT RIGHT-OF-WAY 228.9-0610-EA-CAR ORIGINAL EASEMENT FOR RAIL TRAIL THIS EASEMENT FOR RAIL TRAIL agreement ("Agreement") is made this 28th day of June, 2010 between the NORTH COUNTY TRANSIT DISTRICT, 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 particularly described in Exhibit 1 attached hereto and made a part hereof. B. The Burlington Northern Santa Fe Railroad owns an easement over the Right-of- Way permitting it to conduct freight operations on the track located within the Right-of-Way. C. CITY and other cities and agencies seek to construct a "coastal rail trail" (the "Rail Trail") within the Right-of-Way. 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. 2. 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. 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 i. 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. Congress permits the "interim" use of such rights-of-way for permitted uses. The permitted uses SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR could be modified by Federal law or judicial decision and upon such an adverse change this license would terminate. ii. CITY acknowledges that the Easement (and the rights granted to CITY by this Agreement) is subject to a reserved freight 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. iii. CITY 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 access to portions of the Right-of-Way. 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 July 1, 2010, (the "Commencement Date") and ending on June 30, 2060 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. 5.2 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 SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 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 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 (the "Improvements") shall be planned and constructed by CITY at CITY's expense, subject to the following development standards: 6.1 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 2. Adequate drainage must be provided for the Easement so that at all times all water shall flow away from the rails and ties and other railroad facilities. 6.2 Portions of the Improvements may be lighted. 6.3 CITY may install signage in connection with the Improvements. 6.4 CITY shall install barrier fencing along the entire length of the Easement between the Rail Trail and NCTD's adjacent railroad tracks. Such fence shall be designed and constructed in accordance with specifications set forth in Exhibit 4 attached hereto. 6.5 Plans for the development 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 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 NCTD. SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 7.2 In the construction of the Improvements CITY shall require its contractor, at the contractor's expense, to: (a) obtain a Right-of-Entry Permit from NCTD, a copy of which is attached hereto as Exhibit 5; and (b) 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 Permit. 7.3 CITY shall reimburse NCTD within thirty (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 within NCTD an amount equal to the estimated costs and expenses projected to complete construction. 7.4 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. 7.5 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: (a) NCTD Contacts. Edward Singer, Real Estate Assets Administrator North County Transit District 810 Mission Avenue Oceanside, CA 92054 Tel: (760) 966-6556 (b) CITY Contact. Lisa Hildabrand, City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 Tel: (760) 434-2821 SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 7.6 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 furnished 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. 7.7 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. 7.8 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, shall be conclusively deemed to be the servant and agent of CITY, acting on behalf and within the scope of such contractor's or subcontractor's employment for CITY and subject to the provisions of this Agreement. 7.9 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 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. 8.2 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 barricade 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 SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 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. 8.3 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 Amtrak, 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 limited to employees, subcontractors, easement holders, agents, servants, licensees, franchisees, and invitees of NCTD, 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 Improvements 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 from 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. 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. 9.3 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. 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 SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR and with full 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. 10.2 CITY hereby recognizes and acknowledges that railroad tracks are located on or adjacent to the Easement. CITY recognizes that the current and potential expanded future 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, fumes, visual impacts and noise levels or as a result of the operation of the Right-of-Way. 11. Utilities. CITY shall arrange and pay before delinquency all charges for utilities, including without limitation, water, power, heat, garbage, communications and sewer services reasonably necessary to conduct CITY's permitted use of the Easement under this Agreement. 12. Relocation of Facilities. 12.1 The Rail Trail has been sited and designed to avoid conflicts with all major Projects planned for the Right of Way for the next twenty (20) years, thus preserving the integrity of the Rail Trail for not less than twenty (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. 12.2 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 follows: 1. Improvements necessary to ensure safety of Rail Trail users, railroad personnel and rail passengers; 2. Operational improvements necessary to maintain rail and freight service, including, but not limited to, the addition of passing tracks, grade separations and other grade crossing improvements; 3. Changes necessary to meet the requirements of regulatory authorities. Modifications to the Rail Trail set forth in this section shall be accomplished at the expense of CITY or its assignees. Unless the notice is SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 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 such 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. 4. Changes necessary to accommodate future transit oriented development. 13. Insurance. 13.1 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). 13.2 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 thirty (30) days' prior written notice to NCTD (except in the case of cancellation for non-payment of premium, in which case cancellation shall not take effect until at least ten (10) days' notice has been given to NCTD). This provision is hereinafter referred to as "Notice of Modification or Cancellation." 13.3 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. 13.4 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. 13.5 The requirements regarding the types and limits of insurance coverage to be maintained as required by this Article 13, and any approval of such insurance by the other Party and/or 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. 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. SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 13.7 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. 13.8 Workers' Compensation and Employer 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 any and 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 NCTD 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. 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 (4) as provided in paragraph 5.2, above. Upon termination of this Agreement, CITY shall leave 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 from 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 from any liability or obligation hereunder resulting from an event which occurred before termination. 15. 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 SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR 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. 16. 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. To NCTD at: North County Transit District Attn: Real Estate Department 810 Mission Avenue Oceanside CA 92054 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: Lisa Hildabrand, 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 Agreement. 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. 18. Invalidity 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 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. 19. Successors. This Agreement shall bind and inure to the benefit of both NCTD and CITY and their respective successors, heirs and legal representatives. SDPUB\PDESOUSA\395975.1 10 228.9-0610-EA-CAR IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above-written. NORTH COUNTY TRANSIT DISTRICT Matthew O. Tucker Executive Director roved as to fo . N^ichael Cowett General Counsel North County Transit District CITY OFCARLSBAD /;.-^ Cyinhia Haas Deputy City Manager Approved as to form: le Mobaldi assistant City Attorney City of Carlsbad SDPUB\PDESOUSA\395975.1 11 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of SA<^ PlG6|O Ort Date personally appeared before me, Here Insert Name and Title of the Officer O(~AL- Name(s) of Signer(s) KRISHNA L. SHARLAND | Commission * 1842494 I Notary Public - California z San Diego County | My Comm. Expires Mar 28.2013 L" "*" -"-^^^^^^p^^w^^p^^ who proved to me on the basis of, satisfactory evidence to be the personj$ whose name(g) is/aile subscribed to the within instrument and acknowledged to me that he/shJ9/the^ executed the same in his/he|-/thef authorized capacity^), and that by his/h|r/thair signature^ on the instrument the person ffl or the entity upon behalf of which the person(3facted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS rrr Place Notary Seal Above Signature^—, 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 Title or Type of Document: Document Date: Of TR/VlUSA Signer(s) Other Than Named Above: . Number of Pages:. Capacity(ies) Claimed by Signer(s) Signer's Name: Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other:, Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb he ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402• www.NationalNotary.org Item #5907 Reorder: CallToll-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On personally appeared SHEILA RENAE COBIAN Commission * 1848471 Notary Public - California | San Diego County * My Comm. Expires May 10.20131 who proved to me on the basis of satisfactory evidence to be the person^ whose name(e}(i§$&fe-subscribed to the within instrument and acknowledged to me that executed the same in htiZneBtbeifr-authorized t, and that by histfj^theif signature^ on the instrument the person^, or the entity upon behalf of which the person(g) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature- OPTIONAL - Signature of Notary Public 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 Title or Type of Document: Document Date:Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D D D D Individual Corporate Officer — Title(s): Partner — D Limited D General Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 228.9-0610-EA-CAR EXHIBIT 1 Railroad Right-of-Way 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 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 RC. 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 SDPUB\PDESOUSA\395975.1 228.9-0610-EA-CAR EXHIBIT 2 Description of Easement SDPUB\CMC\273529 (01/21/03) EXHIBIT 2 SDPUB\PDESOUSA\395975.1 EXHIBIT "A" LEGAL DESCRIPTION ASSESSOR'S PARCEL NUMBERS: 155-200-11, 155-200-12 & 203-054-28 VESTING: NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD ALL THAT PORTION OF THAT PARCEL IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS DESCRIBED IN QUITCLAIM DEED RECORDED DECEMBER 15, 1992 AS DOCUMENT NO 1992-0802209 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWESTERLY TERMINUS OF THAT LINE LABELED S34° 01 '05"E 1222.51' AS SHOWN ON SHEET 2 OF RECORD OF SURVEY 14504 RECORDED APRIL 14, 1994 AS FILE NO. 1994-0247434 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY; THENCE ALONG SAID RECORD OF SURVEY SOUTH 34°01 '05" EAST 295.11 FEET; THENCE LEAVING SAID RECORD OF SURVEY SOUTH 55°58'55" WEST 22.06 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 33°55'07" WEST 375.95 FEET TO THE BEGINNING OF A TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°01 '42" A DISTANCE OF 78.56 FEET; THENCE SOUTH 56°03'11" WEST 103.80 FEET TO THE BEGINNING OF A TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 82°49'05" A DISTANCE OF 72.27 FEET; THENCE NORTH 41°07'44" WEST 188.97 FEET TO THE BEGINNING OF A TANGENT 70.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 27°09'38" A DISTANCE OF 33.18 FEET; THENCE NORTH 68°17'22" WEST 3.89 FEET TO THE BEGINNING OF A TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 29°19'10" A DISTANCE OF 25.59 FEET; THENCE NORTH 38°58'12" WEST 79.90 FEET TO THE BEGINNING OF A TANGENT 120.04 FOOT RADIUS CURVE, CONCAVE EASTERLY; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 53°43'34" A DISTANCE OF 112.56 FEET; THENCE NORTH 14°45'22" EAST 66.56 FEET TO THE NORTHEASTERLY RAILROAD RIGHT OF WAY AS SHOWN ON SAID RECORD OF SURVEY 14504; THENCE ALONG SAID RAILROAD RIGHT OF WAY NORTH 57°57'15" WEST 13.05 FEET TO THE BEGINNING OF A TANGENT 1332.39 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE CONTINUING ALONG SAID RAILROAD RIGHT OF WAY, NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0°20'24" A DISTANCE OF 7.91 FEET; THENCE LEAVING SAID RAILROAD RIGHT OF WAY, NON-TANGENT TO SAID CURVE, SOUTH 14°45'22" WEST 39.86 FEET; THENCE SOUTH 47°46'12" WEST 7.23 FEET; THENCE SOUTH 29° 13'32" WEST 22.20 FEET; THENCE SOUTH 18°58'35" WEST 27.29 FEET; THENCE SOUTH 06°49'21" WEST 12.65 FEET; THENCE SOUTH 11°59'53" EAST 17.80 FEET; THENCE SOUTH 36°38'59" EAST 21.99 FEET TO A POINT ON A NON-TANGENT 140.04 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY, A RADIAL FROM SAID POINT BEARS NORTH 77034-49.' EAST; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26°33'01" A DISTANCE OF 64.89 FEET; THENCE SOUTH 38°58'12" EAST 79.90 FEET TO THE BEGINNING OF A TANGENT 70.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 29°19'10" A DISTANCE OF 35.82 FEET; THENCE SOUTH 68°17'22" EAST 3.89 FEET TO THE BEGINNING OF A TANGENT 50.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 25°01 '07" A DISTANCE OF 21.83 FEET; THENCE NON-TANGENT TO SAID CURVE SOUTH 24°48'43" WEST 11.64 FEET; THENCE SOUTH 51°42'57" EAST 58.06 FEET; THENCE SOUTH 41°07'44" EAST 35.75 FEET; THENCE SOUTH 19°42'16" EAST 5.48 FEET; THENCE SOUTH 41°07'44" EAST 88.17 FEET TO THE BEGINNING OF A TANGENT 72.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 82°49'05" A DISTANCE OF 104.07 FEET; THENCE NORTH 56°03'11" EAST 101.80 FEET TO THE BEGINNING OF A TANGENT 32.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°01 '42" A DISTANCE OF 50.28 FEET; THENCE SOUTH 33°55'07" EAST 371.95 FEET; THENCE NORTH 56°04'53" EAST 20.00 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING WITHIN THE LAND DESCRIBED IN DONATION AND QUITCLAIM DEED FROM THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY TO CITY OF CARLSBAD RECORDED DECEMBER 9, 1983 AS FILE NO. 83-449256. CONTAINING 0.447 ACRES MORE OR LESS. ATTACHED HERETO AND MADE A PART HEREOF IS A PLAT LABELED EXHIBIT 'B'. THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT. SIGNA1 DATE LICENSED LAND SURVEYOR 4 EXHIBIT VICINITY MAP NO SCALE QUITCLAIM DEED TO THE CITY OF CARLSBAD RECORDED DECEMBER 9. 1983 AS FILE NO. 83-449256 P.O.C. T.P.O.B. THIS PLAT WAS PREPARED BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR'S ACT f _ MICHAEL L SCHLUMP8ERGER, PLS 77*30 ' DENOTES AREA OF EASEMENT ACQUISITION 0.447 ACRES MORE OR LESS Right-Of-Way Engineering Services, Inc. 615 South Tremont Street • Oceanside, CA 92054 (760) 637-3700 FAX (760) 637-2701 Drawing file name: NCTD Easement Plat 1-27-2010 revision Job No.: 0909-0048-01 CITY OF CARLSBAD EASEMENT PLAT VESTING: NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD DATE: FEBRUARY 2. 2010 SHEET 1 OF 3 ttEXHIBIT B SCALE CURVE TABLE CURVE C1 C6 DELTA 82t49'05" 90'01'42" RADIUS 50.00' 32.00' LENGTH 72.27' 50.28' QUITCLAIM DEED TO THE CITY OF CARLSBAD RECORDED DECEMBER 9. 1983 AS FILE NO. 83-449256 APN: 203-054-28 T.P.O.B. ^^^ DENOTES AREA OF EASEMENT \//A ACQUISITION 0.447 ACRES MORE OR LESS CITY OF CARLSBAD EASEMENT PLAT VESTING: NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD DATE: FEBRUARY 2. 2010 SHEET 2 OF 3 EXHIBIT "B" \ \ o5 § A=0'20'24" ?=1332.39' L=7.91' N57'57'15"W 13.05' SCALE 1"=80' UNE TABLE LINE L1 L2 L3 L4 L5 L6 L7 L8 L9 L10 L11 L12 L13 BEARING N68*17'22"W S14'45'22"W S47'46'12"W S29'13'32"W S18'58'35"W S06*49'21"W S1T59'53"E S36'38'59"E S68'17'22"E S24'48'43"W S5T42'57"E S4r07'44"E S19'42'16"E LENGTH 3.89' 39.86' 7.23' 22.20' 27.29' 12.65' 17.80' 21.99' 3.89' 11.64' 58.06' 35.75' 5.48' S33O CURVE TABLE CURVE C1 C2 C3 C4 C5 DELTA 82'49'05" 27'09'38" 29'19'10" 29'19'10" 25'01'07" RADIUS 50.00' 70.00' 50.00' 70.00' 50.00' LENGTH 72.27' 33.18' 25.59' 35.82' 21.83' ^^^ DENOTES AREA OF EASEMENT \//A ACQUISITION 0.447 ACRES MORE OR LESS CITY OF CARLSBAD EASEMENT PLAT VESTING: NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT BOARD DATE: FEBRUARY 2. 2010 SHEET 3 OF 3 228.9-0610-EA-CAR 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 EXHIBIT 3 SDPUB\PDESOUS A\3 95975.1 228.9-0610-EA-CAR EXHIBIT 4 Specification for Fence !rJ OK SDPUB\PDESOUSA\395975. \ EXHIBIT 4 MP-MoYr-USE-Pmtee EXHIBIT 5 RIGHT OF ENTRY PERMIT THIS RIGHT OF ENTRY PERMIT ("Permit"), entered into as of 2010 between the NORTH COUNTY TRANSIT DISTRICT ("NCTD") and , ("Permittee"). RECITALS A. NCTD is the owner of certain railroad right-of-way assets extending from Orange County to San Diego and from Oceanside to Escondido (the "Right-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"]), intercity passenger trains (by the National Railroad Passenger Corporation ["AMTRAK"], and Southern California Regional Rail Authority r"METROLINK"1X and commuter trains (by NCTD). 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. NCTD 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 NCTD's operations, including response to emergencies and routine maintenance, or the safe use of the Right-of-Way by NCTD or its agents, BNSF, AMTRAK, and METROLINK, and provided that Permittee's entry and use are in strict accordance with terms and conditions set forth in this Permit. NOW THEREFORE NCTD and Permittee agree as follows: 1. Basic Permit Terms. 1.1 Permit Fee: Dollars. 1.2 Expense Reimbursement Deposit: Dollars. 1.3 Permit Expiration Date: 1.4 Permitted Use: 1.5 NCTD Permit Coordinator: Edward J. Singer, Real Estate Asset Administrator Telephone number: (760) 966-6556 1.6 Permittee's Address: Telephone Number: 1.7 Emergency Number: (760) 967-6700 Revised 12-04-09 Page 1 MP-MoYr-USE-Pmtee 2. Grant of Permit. NCTD 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 NCTD, 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 County Transit District on or before execution of this Permit. 4. Cost Reimbursement. In addition to the Permit Fee, Permittee shall reimburse NCTD for all costs and expenses incurred by NCTD 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 NCTD the Expense Reimbursement Deposit amount set forth in section 1.2. NCTD may deduct the costs and expenses from the Expense Reimbursement Deposit as such costs and expenses are incurred. Costs of services provided by NCTD employees will be charged at the employees' fully loaded productive hourly rate (monthly salary and benefits divided by 150 hours). Services provided by NCTD consultants, equipment rentals, and other third party costs will be charged at cost plus a 7.2% administrative fee. Upon demand by NCTD, Permittee shall make any additional deposits that NCTD determines are necessary to reimburse NCTD for the costs and expenses incurred by NCTD. In the event that the costs and expenses incurred by NCTD exceed the amounts deposited, Permittee shall reimburse NCTD 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 Permit 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 Permit Area or any Right-of-Way until Permittee has paid the Permit Fee set forth in section 1.1, 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 NCTD the evidence of insurance set forth in section 8. b. Permittee shall deliver to NCTD 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 NCTD's Manager of Maintenance of Way. In 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 provided. NCTD shall use reasonable Revised 12-04-09 Page 2 MP-MoYr-USE-Pmtee efforts to provide flag protection on the dates and times of Permittee's requested entries, provided that any work by NCTD or its agents, BNSF, AMTRAK or METROLINK that requires flag protection shall take priority. NCTD 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. c. The NCTD'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 5:00 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. Permittee has no right to use any portion of the Right-of-Way other than the Permit Area for any purpose. b. No use by Permittee shall interfere with or delay any railroad operations on the Right-of-Way or interfere with or cause damage to any railroad facilities. c. Permittee shall protect all railroad facilities, public and private improvements, utilities, communication lines, survey and subdivision monuments, and other facilities of like character, existing or 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 NCTD or any other owner. Any repair or replacement shall be to the satisfaction, and subject to the approval of NCTD or the owner of the improvements or facilities. d. 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 NCTD or the NCTD'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, Class 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 NCTD's safety requirements will be at the expense of the Permittee. Revised 12-04-09 Page 3 MP-MoYr-USE-Pmtee 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. Permittee shall not cause or permit any hazardous material to be used, stored, transported, generated, or disposed in or about the Right-of-Way by Permittee, Permittee's agents, employees, contractors, licensees, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste which is or becomes regulated by any local governmental entiry, the State of California, or the United States government under any law, regulation or ordinance. g. 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). 5.4 As-Built Drawings. Permittee shall provide NCTD with a set of as-builts, hard copy, and electronic file, if available, within 30 days of acceptance of work. No excess deposited funds will be released until as-builts are submitted and signed by a licensed engineer in the State of California. 6. Improvements 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 NCTD 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 NCTD, in NCTD'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. 6.2 Approval of Work. Permittee shall deliver to NCTD, for NCTD's review and approval, drawings, specifications, and other construction documents describing any proposed work in the Permit Area in sufficient detail to enable NCTD 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. NCTD may approve or disapprove any work in NCTD's sole and absolute discretion, and NCTD may require such changes or impose such conditions as NCTD, in its sole and absolute discretion, deems necessary or appropriate. In the event that NCTD approves any proposed work, the work by Permittee in the Permit Area shall be done in compliance with the drawings, specifications, and documents approved by NCTD, Revised 12-04-09 Page 4 MP-MoYr-USE-Pmtee with the terms and conditions set forth in this Permit, and with all applicable federal, state, and local laws, rules, regulations, permits, and orders. Permittee shall only use a contractor approved by NCTD. NCTD 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 shall reimburse NCTD for the costs of inspections and costs of furnishing any flag protection for the work. 6.3 No Representation or Warranties Regarding Work. NCTD'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. NCTD and NCTD's employees, consultants, and agents assume 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, requirements, or inspection shall relieve Permittee or Permittees engineers, contractors, subcontractors, or consultants from 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 NCTD Permit Coordinator named in section 1.5 of the Basic Permit Terms prior to the start of any construction work for a markout of NCTD facilities. Please be advised that NCTD 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 shall contact Underground Service Alert for MCI Telecommunications installations at (800) 227-2600 prior to any excavation in the Right-of-Way. d. Permittee shall immediately stop work and notify NCTD Permit Coordinator if Permittee encounters any Hazardous Materials or suspected Hazardous Materials in the Permit Area. Permittee shall not take any remedial action in response to the presence of any Hazardous Materials in or about the Permit Area, nor enter into any settlement, consent decree, or other compromise in respect to any claims relating to any Hazardous Materials, without NCTD's prior written consent. Revised 12-04-09 Page 5 MP-MoYr-USE-Pmtee 7. Exculpation and Indemnity. 7.1 Exculpation of NCTD. NCTD shall not be liable to Permittee for any damage to Permittee or Permittee's property from any cause. Permittee waives all claims against NCTD or its agents, Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Transit America Services, Inc. (TASI), Veolia Transportation, Kabler Construction, and their respective directors, officers, employees, and agents for damage to person or property arising for any reason. Permittee acknowledges that the Right-of-Way is used for operation of trains operating at high speeds. 7.2 Indemnity. Permittee hereby indemnifies, defends, and holds NCTD and its agents, Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Transit America Services, Inc. (TASI), Veolia Transportation, Kabler Construction and their respective directors, officers, employees, and agents, harmless from 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 from 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 from 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 NCTD or its agents, Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Transit America Services, Inc. (TASI), Veolia Transportation, Kabler Construction, or any of their respective directors, officers, employees, or agents as a condition precedent to the NCTD's recovery hereunder. Permittee's obligation to indemnify hereunder shall not be restricted to insurance proceeds, if any, received by NCTD or its agents, Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Transit America Services, Inc. (TASI), Veolia Transportation, Kabler Construction, or their respective directors, officers, employees, or agents. 7.3 Delay/Cancellation of Trains. Without limiting the indemnity set forth in section 7.2, Permittee 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 30 minutes and may include the cost of busing passengers around the work area, if necessary. 7.4 Indemnity Not Limited to Insurance Coverage. 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 NCTD, are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise Revised 12-04-09 Page 6 MP-MoYr-USE-Pmtee 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 insurance: 8.1 Railroad Protective Liability Insurance. a. Railroad Protective Liability Insurance covering the operations performed by Permittee or any subcontractor of Permittee within fifty (50) feet vertically or horizontally of railroad tracks. b. The AAR-AASHTO (ISO/REVIA) Occurrence Form (claims-made forms are unacceptable) shall be issued in the primary name of the North County Transit District. Additional named insured are: Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Veolia Transportation and Transit America Services, Inc. (TASI). 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 B, for losses arising out of injury to or death of all persons, and for physical loss or damage to or destruction of property, including the loss of use thereof. Additionally, Policy Endorsement CG 28 31 - Pollution Exclusion Amendment, is required to be endorsed onto the policy. A $5 million annual aggregate shall apply. d. At NCTD's request, Permittee shall submit the original Railroad Protective Liability Insurance Policy to NCTD prior to 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 terms of this Permit. Products-completed operations, independent contractors, and contractual liability coverages are to be included, with the contractual exclusion related to construction/demolition 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). c. Coverage for completed operations on Form CG 2037 10, for a period not less than two (2) years after construction of permanent facilities installed over, under, upon or across NCTD property. Revised 12-04-09 Page 7 MP-MoYr-USE-Pmtee d. The commercial general liability policy must name North County Transit District, Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Transit America Services, Inc. (TASI), Veolia Transportation, Kabler Construction, and their respective directors, officers, employees, contractors and agents as additional insureds. e. 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 form with a general aggregate limit is used, either the general aggregate limit shall apply to the Right-of-Way (with the ISO CG 2503, or ISO CG 2504, or insurer's equivalent endorsement provided to NCTD) or the general aggregate limit shall be twice the required occurrence limit. 8.3 Automobile Liability. a. 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 General Liability insurance. Coverage under this policy shall have limits of liability of not less than $1 million per occurrence, combined single limit, for bodily injury and property damage (including loss of use) liability. b. Coverage shall be at least as broad as Insurance Services Office Automobile Liability Coverage (Form CA 0001), covering Symbol 1 (any auto). c. The automobile liability policy must name North County Transit District, Burlington Northern Santa Fe Railway Company, Pacific Sun (WATCO), Transit America Services, Inc. (TASI), Kabler Construction, and their respective directors, officers, employees, contractors and agents as additional insureds. d. 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 Employer'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 up to the statutory limits.. b. Employer's Liability Insurance Limits shall be no less than one million dollars ($1,000,000) per accident for bodily injury and disease. Revised 12-04-09 Page 8 MP-MoYr-USE-Pmtee c. By his/her 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 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 Policy Forms. All of the insurance shall be provided on policy forms and through companies reasonably satisfactory to NCTD. 8.6 Acceptability 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 NCTD. 8.7 Evidences and Cancellation of Insurance. a. Prior to entry on the Right-of-way, Permittee shall file with the Permit Coordinator a certificate of insurance for the commercial general liability, automobile liability, and railroad protective liability policies required by section 8, 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 U.S. mail has been given to NCTD. 8.8 Self Insurance. Notwithstanding any other provision of this License, Licensee may self-insure for any risk set forth in this Section 8 in the manner and to the extent that Licensee self-insures for similar risks with respect to its operations, equipment, and property. The manner in which such self-insurance is provided and the extent of such self-insurance shall be set forth in a letter of self insurance, delivered to NCTD and signed by an authorized representative of Licensee, which fully describes the self-insurance program and how the program covers the risks set forth in this Section 8. Insurance provided by a joint powers authority or insurance pool shall be considered self-insurance for the purposes of this paragraph. If, at any time during the term of this License, Licensee elects not to self-insure, Licensee shall comply with all applicable provisions of this Section 8 to the extent that Licensee does not so self-insure. 8.9 Subrogation. The Parties hereby waive subrogation rights against each other, and agree to require their respective insurers to waive subrogation rights against the other Party and such other Party's insurers, to the extent any liability for Revised 12-04-09 Page 9 MP-MoYr-USE-Pmtee property damage, bodily injury (including death), or other loss may be covered by the proceeds of insurance 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 NCTD may immediately and without prior notice to Permittee terminate this Permit and prevent Permittee from using or remaining upon the Right-of-Way, with or without process of law. In the event that Permittee fails to perform any obligation under this Permit, Permittee shall pay all costs and expenses incurred by NCTD in obtaining performance 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, NCTD may remove such work and restore the Right-of-Way at the expense of Permittee, and Permittee shall be liable to NCTD 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 with Permittee's entry onto or use of the Right-of-Way and Permittee shall restore the Right-of-Way in a manner satisfactory to NCTD. Should Permittee fail or refuse to comply with the terms of this section, NCTD may, at its option, perform such work. Permittee shall reimburse NCTD for the cost so incurred. Failure on the part of NCTD 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 from any liability or obligation (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 Permit, 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 Permittee at the address in section 1.6 of the Basic Permit Terms or to NCTD at North County Transit District, 810 Mission Avenue, Department R, Oceanside, CA 92054. 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. Revised 12-04-09 Page 10 MP-MoYr-USE-Pmtee 11. 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 contractor's or subcontractor's employment for Permittee. 12. NCTD Agents. Except as otherwise provided in this Permit, the term "NCTD" shall include NCTD's staff and employees. 13. NCTD Contacts. The NCTD Permit Coordinator named in section 1.5 serves as a liaison between NCTD staff and Permittee to assist NCTD staff in the coordination of the reviews, approvals, and scheduling of NCTD activities in connection with this Permit. The NCTD Permit Coordinator does not have the authority make agreements on behalf of NCTD or bind NCTD 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 NCTD. 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 Permittee 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 NCTD is a public entity and that the subject property has previously been acquired by NCTD 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 NCTD for the public purpose. Permittee hereby acknowledges and agrees that at the time of termination of this Permit by NCTD, 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. Revised 12-04-09 Page 11 MP-MoYr-USE-Pmtee 16.2 Modification of Permit. 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 NCTD and Permittee. 16.3 Captions The captions of this Permit 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 Agreement 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 Permit or any interest herein, without first securing the written consent of NCTD in each instance, and that at the option of NCTD, this Permit shall be forfeited by any such unauthorized assignment, transfer or lease 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 from 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 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. Revised 12-04-09 Page 12 MP-MoYr-USE-Pmtee Emergency 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 COUNTY TRANSIT DISTRICT PERMITTEE By: By:. Brett Rekola Chief Rail Officer Title: Revised 12-04-09 Page 13 MP-MoYr-USE-Pmtee EXHIBIT "A" Permit Area SCALE VICINITY MAP NO SCALE QUITCLAIM DEED TO THE CITY OF CARLSBAD RECORDED DECEMBER 9, 1983 AS FILE NO. 83-449256 P.O.C. T.P.O.B. Revised 12-04-09 Page 14 MP-MoYr-USE-Pmtee Exhibit B Job Name: Billable Party: _ Control Number: Hours Authorized: FLAG PROTECTION RIGHT-OF-WAY WORK REQUEST f. Work performed on the NCTD RIGHT-OF-WAY which involves personnel or equipment must have an NCTD-supplied flagperson for duration of the work, unless specifically waived by NCTD. Cost of the flag person shall be borne by the party requesting the the work. Depending on the extent of the work, NCTD may require the requesting party to provide a deposit to cover the estimated cost of the flag protection. 2.Work Request form MUST BE FILLED OUT COMPLETELY AND RETURNED TO NCTD A MINIMUM OF 72 HOURS PRIOR TO THE BEGINNING OF THE WORK. PLEASE RETURN FORM TO: North County Transit District 810 Mission Avenue Oceanside, CA 92054 Attention: ED SINGER PHONE: (760)966-6556 FAX: (760) 754-0644 3, Depending on the nature of the work, NCTD may request a meeting at the job site prior to approving the work request. 4. Contractor shall sign time cards of personnel providing flag protection. 5. Contractor requesting a flag person will be charged a minimum of four hours show-up time if no Contractor personnel is on the jobsite at the time and date specified in this request. NAME OF CONTRACTOR: BILLABLE PARTY: Address: City: PHONE: State: CA Zip: PURPOSE OF WORK:LOCATION OF WORK: EQUIPMENT TO BE USED: WORK START DATE:_ COMPLETION DATE:" TIME:_ TIME:" PERSON IN CHARGE AT WORK SITE: CONTRACTOR'S SIGNATURE:DATE: APPROVED BY: _ PRINT NAME:" DATE: MP #: Revised 12-04-09 Page 15 CERTIFICATION FOR ACCEPTANCE OF DEED This is to certify that the interest in real property conveyed by the EASEMENT AGREEMENT FOR RAIL TRAIL dated June 28.2010 from North County Transit District, to the City of Carlsbad, California, a municipal corporation, is hereby accepted by the City Council of the City of Carlsbad, California, pursuant to Ordinance No. NS-422, adopted on September 16,1997, and the grantee consents to the recordation thereof by its duly authorized officer. DATED: July 29. 2010 SlylERRWREISINGER/^eputy Clerk (SEAL)