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HomeMy WebLinkAboutCC Resolution 9416 (Rescinding Resolution 8980)EXHIBIT "A" RESOLUTION NO. 4416. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESCINDING RESOLUTION 8980 WHEREAS, on February 5, 1883, by Ordinance Number 114, the Trustees of the Town of San Rafael granted privileges to the San Francisco and North Pacific Railroad Company to lay down and use railroad tracks on Tamalpais Avenue subject to certain conditions; and WHEREAS, on December 1, 1884, by Ordinance Number 145, the Trustees of the Town of San Rafael granted additional privileges to the San Francisco and North Pacific Railroad Company to lay down, maintain and use railroad tracks on Tamalpais Avenue subject to certain conditions; and WHEREAS, on January 8, 1906, the Board of Trustees of the City of San Rafael ("City") granted additional privileges to the San Francisco and North Pacific Railroad Company to lay down and maintain for„steam railway purposes additional railroad tracks running along Tamalpais Avenue; and WHEREAS, The County of Marin ("County"), the District and the Marin County Transit District ("MCTD") are parties to a Cooperative Agreement dated October 12, 1982, and certain addenda thereto, pursuant to which they have agreed to work cooperatively to acquire public ownership of Northwestern Pacific Railroad Company's ("Northwestern") entire right-of-way in Marin County. Said right-of-way ran from Paradise Drive in Corte Madera to Highway 37 in the City of Novato; and WHEREAS, On or about June 29, 1990, the District, in furtherance of the Cooperative Agreement and on behalf of the County and MCTD, acquired from Northwestern 11.25 miles of right• - of -way and improvements located between Bellam Boulevard in Santa Rosa and Novato Creek in Novato. The District additionally acquired from Northwestern certain franchise rights to use certain city streets along said right-of-way within the City for railroad purposes (the "Franchise Rights"), including the franchise rights granted by Ordinances Number 114, 145 and 362 (the "Franchise Ordinances") to the San Francisco and North Pacific Railroad Company; and 178100.1 DRIGINAI q a7- / I- WHEREAS, on July 6, 1993, this Council adopted Resolution 8980, which declared a forfeiture of the District's Franchise Rights pursuant to the terms of the Franchise Ordinances. Resolution 8980 further declared that the District had "abandoned" the right to maintain and operate a railroad system in and on the streets of San Rafael on the ground that there had been no service on the line for the period of five years prior to the adoption of the resolution; and WHEREAS, an February 10, 1994, the County and the District filed their "Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief and Breach of Franchise Agreement" (Marin County Superior Court Action No. 159486) against both the Council and the City (the "Petition"). The Petition sought in part to have the Council's action voided on the ground that it effectuated an illegal forfeiture of the Franchise Rights. On or about March 9, 1994, the Council and the City filed an Answer to the Petition. In their Answer, the Council and the City alleged that the County and District did not have standing to object to Resolution 8980 since they had not received a proper conveyance of the Franchise Rights and that the rights under the Franchise Ordinances had been abandoned due to the failure to use the railroad tracks discussed by the Franchise Ordinances for a period of five years; and WHEREAS,, on April 22, 1994, the Court granted the County's and the District's Petition for Writ of Mandate, and voided Resolution No. 8980. Judgment has not yet been entered for the County and the District on the Petition; and WHEREAS, in order to resolve the issues between them raised by the Petition without resorting to further litigation, the parties have agreed to a Settlement Agreement, dated JULY 17 , 1995. According to the terms of that Settlement Agreement, the City has agreed to adopt a Resolution rescinding Resolution 8980 and declaring it void and of no effect. In addition, the City has agreed to grant to District an easement over the areas covered by the Franchise Rights. 178900.1 NOW, THEREFORE, BE IT RESOLVED THAT, effective the date of this Resolution, Resolution 8980 is rescinded and declared to be void and of no further force or effect. Adopted this 17th. day of JULY , 1995 by the following vote: AYES: COUNCILMEMBERS: Heller, Phillips and Vice -Mayor Cohen NAYS: COUNCILMEMBERS: None ABSENT: COUNCIL4EMBERS: None DISQUALIFIED: COUNCILMEMBERS':Zappetini and Mayor Boro JE E -M. AENCINI, City Clerk 178100.1 "EXHIBIT B" RECORDING REQUESTED BY: GOLDEN GATE HIGHWAY AND TRANSPORTATION DISTRICT 1."/ iiwi-14 9TKi7� 17 i17 :� STI Il i1�► ICI iia HANSON, BRIDGETT, MARCUS, VLAHOS & RUDY 3:33 lViarkct Strzet, Suite 2300 San Francisco, CA 94105-2173 Attn: David J. Miller EASEMENT GRANT AND AGREEMENT This Agreement is entered into as of the 17th day of JULY , 1995 by and between the Golden Gate Bridge, Highway and Transportation District ("District") and the City of San Rafael ("City"), a California charter city, with reference to the following: A. City is the owner of certain property, consisting of portions of Tamalpais Avenue, Third Street, Fourth Street, FifthAvenueand MissionAvenue in the City of San Rafael, which are described in Exhibit A and shown in Exhibit B hereto (the "Servient Tenement"). B. On February 5, 1883, by Ordinance Number 114, the Trustees of the Town of San Rafael granted privileges to the San Francisco and North Pacific Railroad Company to lay down and use railroad tracks on Tamalpais Avenue subject to certain conditions; and C. On December 1, 18840 by Ordinance Number 145, the Trustees of the Town of San Rafael granted additional privileges to the San Francisco and North Pacific Railroad Company to lay down, maintain and use railroad tracks on Tamalpais Avenue subject to certain conditions; and D. On January 8, 1906, the Board of Trustees of the City of San Rafael granted additional privileges to the San Francisco and North Pacific Railroad Company to lay down and maintain for steam railway purposes additional railroad tracks running along Tamalpais Avenue; and 186200.2 ._i E. The County of Marin ("County"), the District and the Marin County Transit District ("MCTD") are parties to a Cooperative Agreement dated October 12, 1982, and certain addenda thereto, pursuant to which they have agreed to work cooperatively to acquire public ownership of Northwestern Pacific Railroad Company's ("Northwestern") entire right- of-way in Marin County; and F. On or about June 29, 1990, the District, in furtherance of the Cooperative Agreement and on behalf of the County and MCTD, acquired from Northwestern 11.25 miles of right-of-way and improvements located between Bellam Boulevard in San Rafael and Novato Creek in Novato. The District additionally acquired from Northwestern certain franchise rights to use certain city streets along said right-of-way within the City for railroad purposes (the "Franchise Rights"), including the franchise rights granted by Ordinances Number 114, 145 and 362 (the "Franchise Ordinances") to the San Francisco and North Pacific Railroad Company; and G. On July 6, 1993, this Council adopted Resolution 8980, which declared a forfeiture of the District's Franchise Rights pursuant to the terms of the Franchise Ordinances. Resolution 8980 further declared that the District had "abandoned" the right to maintain and operate a railroad system in and on the streets of San Rafael on the ground that there had been no service on the line for the period of five years prior to the adoption of the resolution; and H. On February 10, 1994, the County and the District filed their "Verified Petition for Writ of Mandate and Complaint for Declaratory and Injunctive Relief and Breach of Franchise Agreement" (Marin County Superior Court Action No. 159486) against both the Council and the City (the "Petition"). The Petition sought in part to have the Council's action voided on the ground that it effectuated an illegal forfeiture of the Franchise Rights. On or about March 9, 1994, the Council and the City filed an Answer to the Petition. In their Answer, the Council and the City alleged that the County and District did not have standing to object to Resolution 8980 since they had not received a proper conveyance of the Franchise Rights and that the rights under the Franchise Ordinances had been abandoned due to the failure to use the railroad tracks discussed by the Franchise Ordinances for a period of five years; and I. On April 22, 1994, the Court granted the County's and the District's Petition for Writ of Mandate, and voided Resolution No. 8980. Judgment has not yet been entered for the County and the District on the Petition; and J. In order to resolve the issues between them raised by the Petition without resorting to further litigation, the parties have agreed to a Settlement Agreement, dated July 17 , 1995. According to the terms of that Settlement Agreement, the City has agreed to adopt a Resolution rescinding Resolution 8980 and declaring it void and of no effect. In addition, the City has agreed to grant to District an easement over the areas described in Exhibit A and shown in Exhibit B. 186200.2 -2- K. The parties, in agreeing to the granting the easement, intend to recognize the District as having permanent property rights to utilize the area described in Exhibit A for railroad, transportation and communications purposes. THEREFORE, the parties agree as follows: 1. Grant of Easement. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City grants to District, a permanent, non-exclusive easement ("Easement") for the limited purposes hereinafter described. The Easement is granted as to the Servient Tenement which is real property owned by City that is described in Exhibit A and depicted in Exhibit B to this Agreement. Exhibits A and B are attached to this Agreement and incorporated into it by this reference. 2. Puri_ ose of Easement: The Easement is a permanent easement for railroad, transportation and communications purposes. This Easement is granted to acknowledge and confirm District's rights as the successor in interest to Northwestern's Franchise Rights as conferred by the Franchise Ordinances. 3. Exclusivitv. Although the District's use of the easement granted pursuant to this Agreement is non-exclusive, the City shall not grant or assign to others any right-of-way or easement over the Servient Tenement that would be inconsistent with the District's rights, provided, however, that the City shall retain the right to use (or allow others to use) the Servient Tenement for street and highway uses and related purposes, including communications, power and pipeline facilities. 4. Nature of Easement. The easement granted by this Agreement is an easement in gross personal to the District. Notwithstanding the fact that the public may make use of and benefit from the Easement, this Agreement may be amended or terminated by agreement in writing of the City and the District, and no consent, review or approval of the public shall be required except as otherwise specified in law. 5. Rg�ionsibility for Construction and Maintenance. The District shall be responsible for construction of any improvements on the Servient Tenement necessary for use of the easement granted by this Agreement. The District also shall be responsible for maintenance of any such improvements in reasonable condition. 6. Indemnification. District agrees to and shall defend, indemnify and hold harmless City, its councilmembers, officers, agents, and employees from and against any and all claims, demands, losses (including economic losses), damages, causes of action, suits, and liabilities of every kind whatsoever (including reasonable attorney's fees and court costs) arising out of or in connection with the use of the Easement by District which results from any negligent act or omission, or the intentional misconduct of the District, its agents, employees, consultants, contractors and invitees. 166200.2 -3- City agrees to and shall defend, indemnify and hold harmless District, the County of Marin and the Marin County Transit District, their respective directors, officers, agents, and employees from and against any and all claims, demands, losses (including economic losses), damages, causes of action, suits, and liabilities of every kind whatsoever (including reasonable attorney's fees and court costs) arising out of or in connection with the use of the Servient Tenement by City which results from any negligent act or omission, or the intentional misconduct of the City, its agents, employees, consultants, contractors and invitees. 7. Bindine Effect. This Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the District, as holders of interests in the Servient Tenement, and of the City. BRIDGE, GOLDEN GATTMGHWAY AND TRANSPORTATION DISTRICT By President Date By Secretary Date Approved as to form: By Rr *1H _ Attorney for Golden Gate/Highway Date and Transportation District CITY OF SAN RAFAEL By Pame.l a Ni.co 1, City Manager ATTEST: By �-ek k - Approved as to form: Jeanne M. Leoncini, City Clerk By Attorney for City of San Rafael 166200.2 -4- July 1.9. 1995 Date Date CALIFORNIA ALL-PURPOP- ACKNOWLEDGMENT WSW? WITNESS my hand and official seal. V` SIGNATURE OF NOTARY • OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. xt CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT V State of CALIFORNIA r �1 U/CORPO ATE OFFICER County of MARIN 1 i? On JULY 19, 1995 before me, JEANNE M. LEONCINI, NOTARY PUBLIC ❑ PARTNER(S) ❑ LIMITED �i DATE NAME. TITLE OF OFFICER • E.G.. -JANE DOE. NOTARY PUBLIC - ❑ GENERAL personally appeared PAMELA 4. N I COLAI ❑ ATTORNEY-IN-FACT NUMBER NAME(S) OF SIGNER(S) ❑ TRUSTEE(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence L ❑ GUARDIAN/CONSERVATOR to be the person(s) whose name(s) is/are £� ❑ OTHER: subscribed to the within instrument and ac- a, knowledged to me that he/she/they executed l t � the same in his/her/their authorized i SIGNER IS REPRESENTING: capacity(ies), and that by his/her/their l l J WNEAA•LEONCINI signature(s) on the instrument the person(s), , 0°"1°''x"950 < ; cad�oni -�. ��_ or the entity upon behalf of which the Y P t: Z ' r r . RAARIN COUNTY( �AN ��� �� person(s) acted, executed the instrument. 01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 t,• WITNESS my hand and official seal. V` SIGNATURE OF NOTARY • OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. xt CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ' ❑ EASEMENT GRANT AND AGREEMENT BY AND BET. r �1 U/CORPO ATE OFFICER GOLDEN GATE BRIDGE, HIGHWAY & TRANSPORTA- TION DISTRICT AND CITY OF SAN RAFAEL CITY MANAGER TmE(S) TITLE OR TYPE OF DOCUMENT ❑ PARTNER(S) ❑ LIMITED i. ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER l ❑ TRUSTEE(S) OF PAGES ❑ GUARDIAN/CONSERVATOR ❑ OTHER: JDLY 17, 199.5 DATE OF DOCUMENT l SIGNER IS REPRESENTING: l l NAME OF PERSON(S) OR ENTITY(IES) 1 CTTY OF SAN RAFAEL SIGNER(S) OTHER THAN NAMED ABOVE 1 GC -N Ll n 01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 STATE OF CALIFORNIA COUNTY OF MARIN On , 1995, before me, , Notary Public, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/ their authorized capacity(ies), and that by his/her/their signatures on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and seal. Notary Public STATE OF CALIFORNIA COUNTY OF MARIN On , 1995, before me, , Notary Public, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and seal. Notary Public 196200.2 -5- 10,14:11:39 DESCRIPTION OF PROPERTY All that certain real property situate in the City of San Rafael, County of Marin, State of California and more particularly described in following: AN EASEMENT fifty (50) feet in width extending from the northerly boundary of Mission Street southerly over a portion of Tamalpais Avenue to the southerly line of Fourth Street as E-hown upon the Map of the Townsite of the Town of San Rafael, made by H. Austin Esq. filed October 14, 1873 Rack 1 Sheet 4 Marin County Records and being that portion of right of way granted by the City of San Rafael to lay down and use railroad tracks on Tamalpais Avenue by Ordinance Number 114 on February 5, 1883, Ordinance Number 145 on December 1, 1884, Ordinance Number 362 on January 8, 1906 and including the continuing right as previously granted which states "after leaving said avenue to cross any street or streets said track(s) may intersect." 186200.2 —6— 12/21/94 15:52 $415 499 3645 COUNTY OF WRIN r EXHIBIT B MA. IF PROPERTY g COURT o ' TO r\l N o °L007E NS_ PL. _ i O t01e _ - V ..•. I I N d I .]' N N :� ZI I`�; IV yr CT — I PC ' ��,1(li I Ca t� •� :rip) r�I W N .I�WN t v Cb N V O ,N• � GARDEN LANE S Lo - LINCOLN ��ate AVE. f4 � 4 • ; 1 -4 = , C h C-1 Mo - — - I - .- L � 8 .TAMALPAIS ;. AVE 1 I I rI . ' 1 i ,z 'I i-••��`�` - + •' - JN��' � e i,,-y}'ir;�•�}jI�r�;.7�'�y1� p�, U004/004 " a 1 It• _ O 1� N EXHIBIT "C" EASEMENT AGREEMENT This Agreement is entered into this 17th day of JULY, 1995 by and between the Golden Gate Bridge, Highway and Transportation District ("District"), a public entity organized and existing under the laws of the State of California, and the City of San Rafael ("City"), a California charter city, with reference to the following: A. District is the owner of that certain real property located within the City of San Rafael, County of Marin, California and more particularly described in the attached Exhibit 1 incorporated -in this Agreement (the "Servient Tenement"). B. City desires to construct a public road to facilitate movement of traffic in the central San Rafael area (the "Andersen Drive Extension"). The Andersen Drive Extension is planned to be located, in part, on the Servient Tenement. The City desires to obtain and the District desires to grant an easement over the Servient Tenement to facilitate the construction and use of the Andersen Drive Extension. THEREFORE, the parties agree as follows: 1. Grant of Easement. For valuable consideration receipt of which is hereby acknowledged, the District hereby grants to the City an easement over the Servient Tenement. The easement shall be for the construction, maintenance and use of a public street over the Servient Tenement along with facilities directly related to the roadway, including curbs, gutters, sidewalks, landscaping and utilities. It is the intent and purpose of this Agreement that the City will allow the public to make use of and enjoy the benefits of the easement granted pursuant to this Agreement. 2. Limit of Riahts. The rights herein granted are expressly limited vertically and shall not extend beyond a plane parallel with and twenty (20) feet above the roadway surface of the road as it will be constructed, except that lighting fixtures and similar roadway appurtenances may extend above said plane, provided that any such facilities will be removed or rearranged within thirty (30) days after notification from District that such facilities interfere with District's intended use of the space above said plane. 3. Prior Rights. This grant is subject and subordinate to the prior and continuing right of District, its successors and assigns, to use the Servient Tenement in the performance of its duty as a common carrier, and to that end, 177978.3 ,o) 0 �l there is reserved unto District, its successors and assigns, the right to construct, reconstruct, maintain, use and remove existing and future transportation, communication, power and pipeline facilities in, upon, over, under across or along the Servient Tenement. The District, its successors and assigns may continue to utilize the Servient Tenement for railroad, transportation, communications and other incidental purposes, including, but not limited to, the construction of additional tracks, at grade, over the crossing. Any new construction shall accommodate the street improvements contemplated by City. In the event District's trackage facilities are removed from the Servient Tenement, District shall not be obligated to make any change in the grade of said road, nor shall such removal affect District's title to the underlying property. 4. Other Installations. This grant shall not be construed as conveying or otherwise vesting in City or in any public or private utility the right to install or to authorize the installation of any ditches, pipes, drains, sewer or underground structures, or the facilities of any telegraph, telephone, fiber optic or electric power lines in, upon, over, under, across or along the Servient Tenement, except as necessary for maintenance of said road. 5. Permits and ADDrovals. City shall obtain all necessary governmental permits and approvals prior to constructing, reconstructing, maintaining and using said road. Any contractor performing work on the Servient Tenement shall execute District's standard form of contractor's agreement prior to commencing any work on District's premises in the form attached hereto as Exhibit 2. District shall have the right to review and approve City's plans and specifications. Such approval shall not be unreasonably withheld or delayed. District's review of the City's plans shall include consideration of the suitability of the roadway alignment and design for compatibility with construction of a railroad grade separation structure. 6. Expenses. Except as herein otherwise provided, City shall bear the entire expense of constructing, reconstructing and maintaining said road and crossing, including the cost of installing crossing warning devices, as may be required by the California Public Utilities Commission. The crossing of District's tracks over said road may, in District's sole discretion, be constructed and maintained at the grade of said tracks now or hereafter existing. After the construction or reconstruction of said road has been completed, District shall maintain the surface of that portion of said road between lines two (2) feet outside the rails of each track located thereon. Should District abandon tracks leading to said road, District may abandon its rails, ties and appurtenant materials and leave same 177978.3 - 2 - in place. In such event, District shall not be liable for maintenance of the portion of said road specified above. 7. Indemnification. City agrees to and shall defend, indemnify and hold harmless District, the County of Marin and the Marin County Transit District, their respective directors, officers, agents, and employees from and against any and all claims, demands, losses (including economic losses), damages, causes of action, suits, and liabilities of every kind whatsoever (including reasonable attorney's fees and court costs) arising out of or in connection with the use of the easement over the Servient Tenement by City which results from any negligent act or omission, or the intentional misconduct of the City, its agents, employees, consultants, contractors and invitees. District agrees to and shall defend, indemnify and hold harmless City, its councilmembers, oi-iL;eis, agrants, and employees from and against any and all claims, demands, losses (including economic losses), damages, causes of action, suits, and liabilities of every kind whatsoever (including reasonable attorney's fees and court costs) arising out of or in connection with the use of the Servient Tenement by District which results from any negligent act or omission, or the intentional misconduct of the District, its agents, employees, consultants, contractors and invitees. 8. Insurance. Any person, firm or corporation City authorizes to work upon the Servient Tenement, including any subcontractor, shall be deemed to be City's agent and shall be subject to all the applicable terms of this Agreement. Prior to entry upon the Servient Tenement by such agents, City shall provide District with satisfactory evidence (e.g. in the form of a Certificate of Insurance) that it and/or its contractors or other agents who will obtain access to the Servient Tenement pursuant to this Agreement are insured in accordance with the following, which insurance shall remain in effect throughout the term of this Agreement and shall be at the sole cost and expense of City (or its agents). Prior to the start of the work or entry. onto the Servient Tenement, City agrees require its contractor(s) to procure and maintain, at its (or its contractors') sole cost and expense (and to prove to District's reasonable satisfaction that it remains in effect throughout the work), the kinds of insurance described below: (a) Workers' Compensation and Emolovers' Liabilitv Insurance. City shall require its contractor(s) to procure the payment of Workers' Compensation and/or Federal Employers' Liability Act Coverage (FELA) (whichever is applicable) to its employees, as required by the Federal Employers' Liability Act of 1908 applying to instate railroad employees or as required by 177978.3 - 3 - Section 1860 of the California Labor Code (Chapter 1000, Statutes of 1965), or any subsequent amendments or successor acts thereto governing the liability of employers to their employees. If Workers' Compensation applies, it shall be in accordance with the provisions of Section 3700 of the California Labor Code (and any amendments thereto or successor acts or statutes) and the City shall furnish Licensor with a certificate evidencing such coverage together with a verification thereon as follows: "I am aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against a liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of work under this Agreement." If the California Labor Code requiring Workers' Compensation applies, the City shall also maintain Employer's Liability coverage with minimum limits of $5,000,000.00. If FELA applies, it shall be in accordance with federal statutes and have minimum limits of $5,000,000 per occurrence. The City shall provide evidence of coverage or self-insurance together with a verification thereon as follows: "I am aware of the provisions of the Federal Employers' Liability Act, and I will comply with such provisions before commencing the performance of work under this Agreement." Whether FELA or Workers' Compensation applies, the City shall furnish the District with the Certificate(s) of Insurance required hereunder prior to the commencement of work. The Certificate shall also provide that the City's policy will not be cancelled or have coverage reduced without thirty (30) days' prior written notice. (b) Commercial General Liabilitv Insurance. City shall, at its own cost and expense, also procure and maintain and/or require its contractors, at their own cost and expense, to procure and maintain Commercial General Liability insurance which shall include as additional insureds the District, the County of Marin and the Marin County Transit District, their respective directors, officers, employees and agents while acting in such capacity, and their successors or 177978.3 - 4 - assignees, as they now, or as they may hereafter be constituted, singly, jointly or severally. This insurance shall provide bodily injury and property damage coverage with a combined single limit of at least $2,000,000.00 each occurrence or claim and a general aggregate limit of at least $2,000,000.00. This insurance shall include but not be limited to premises and operations; contractual liability covering the indemnity provisions contained in this Agreement; personal injury; explosion, collapse, and underground coverage, products and completed operations, and broad form property damage. Prior to commencing work or entering onto the Servient Tenement, City shall require its contractor(s) to file a Certificates) of Insurance with the District evidencing coverage, and upon request, a certified d•iplicate original of the policy. Said Certificate(s) shall stipulate: (1) The insurance company(ies) issuing such policy(ies) shall give written notice to the District of any material alteration, or reduction in aggregate limits, if such limits apply, and provide at least thirty (30) days' notice of cancellation. (2) That the policy(ies) is Primary Insurance and the insurance company(ies) providing such policy(ies) shall be liable thereunder for the full amount of any loss or claim which contractor is liable for under this Section, up to and including the total limit of liability, without right of contribution from any other insurance effected or which may be effected by District, the County of Marin and the Marin County Transit District. (3) The policy shall also stipulate: Inclusion of District, the County of Marin and the Marin County Transit District as additional insureds shall not in any way affect their rights either as respects any claim, demand, suit or judgment made, brought or recovered against the City or its contractors. Said policy shall protect the City, its contractors and the District, the County of Marin and the Marin County Transit District in the same manner as though a separate policy had been issued to each, but nothing in said policy shall operate to increase the insurance company's liability as set forth in its policy beyond the amount or amounts shown or to which the insurance company would have been liable if only one interest had been named as an insured. Required: (c) Railroad's Protective Liability Insurance. Yes x No_ The City shall provide and/or require its contractors to provide, with respect to the operations it or any 177978.3 — 5 of its contractors perform above the railroad tracks or within fifty (50) feet horizontally of the railroad tracks, Railroad's Protective Liability Insurance with either the AASHO policy form or the ISO/RIMA form with pollution coverage for job site fuels and lubricants. The named insureds shall be District, the County of Marin and the Marin County Transit District and shall cover all other railroads operating on the right-of-way. The policy shall have limits of liability of not less than $ 2,000,000.00 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. Prior to commencing work or entering onto the Servient Tenement, City shall file an original or a duplicate original of the policy for Railroad Protective Liability with the District. Required: (d) Automobile Liability insurance. Yes x No_ City shall, at its own cost and expense, procure and maintain and/or require its contractor(s), at their own cost and expense, to procure and maintain Automobile Liability insurance providing bodily injury and property damage with a combined single limit of at least $1,000,000.00 per occurrence for all owned, non -owned and hired automobiles. This insurance shall provide contractual liability covering all motor vehicles and mobile equipment to the extent coverage may be excluded from general liability insurance. Such insurance shall include as additional insureds the District, the County of Marin and the Marin County Transit District and their respective directors, officers, employees and agents while acting in such capacity, and their successors or assignees, as they now or as they may hereafter be constituted, singly, jointly or severally. Required: (e) Property Insurance. Yee x No_ City shall, at its own cost and expense, procure and maintain and/or require its contractor(s), at their own cost and expense, to procure and maintain property insurance to protect its interest in the equipment to be used in performance of this Agreement and the District's interest in materials or property to be installed, covering all risks of physical loss or damage to such equipment. The coverage under such policy shall have limits of liability adequate to protect the value of the equipment and property to be installed. If desired, City may choose to self -insure this exposure, but in no instance shall the District be responsible for such loss or damage, unless caused by its sole negligence. All insurance specified above shall remain in force until all work to be performed is satisfactorily completed, all of City's personnel and equipment have been removed from the railroad property, and the work has been formally accepted. The 177978.3 — 6 — failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement. If any insurance specified above shall be provided on a claim -made basis, then in addition to coverage requirements above, such policy shall provide that: (a) Policy retroactive date coincides with or precedes the City's start of work (including subsequent policies purchased as renewals or replacements). (b) City will make every effort to maintain similar insurance during the term of the Agreement following project completion, including the requirement of adding all additional insureds. (c) If insurance is terminated for any reason, City agrees to purchase an extended reporting provision of at least two years to report claims arising from work performed in connection with this Agreement or Permit. (d) Policy allows for reporting of circumstances or incidents that might give rise to future claims. In addition to the requirements described above, any additional coverages required by the United States Department of Transportation, the Environmental Protection Agency and/or related state and local laws, rules and regulations shall be complied with. The City and/or its contractors shall obtain all permits, licenses and other forms or documentation which are required and forward them to the District with the required evidence of insurance. All policies will be issued by insurers acceptable to District. Upon evidence of financial capacity satisfactory to Licensor, City's obligation hereunder may be satisfied in whole or in part by adequately funded self-insurance. 9. nature of Easement. The easement granted by this Agreement is a easement in gross personal to the City. Notwithstanding the.fact that the public may make use of and benefit from the easement, this Agreement may be amended or terminated by agreement in writing of the City and the District, and no consent, review or approval of the public shall be required except as otherwise specified in law. 10. Assianment. Except for allowing use by the public as specified in Paragraph 1 above, the City shall not assign this Agreement or the rights under this Agreement without the consent of the District. The District may sell, assign or otherwise transfer the Servient Tenement; in connection with such sale, 177978.3 - 7 - assignment or other transfer, the District shall inform the transferee of the existence of this Agreement, but the failure of the District to so inform the transferee shall not affect the enforceability of this Agreement against the transferee. 11. Bindinu Effect. This Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the District, as holders of interests in the Servient Tenement, and of the City. Attest: Attest: (jBy: Jeanne M. Leoncini City Clerk ACKNOWLEDGMENTS GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT By: CITY OF SAN RAFAEL �. ,liG( J By: Pam Nicolfai City Manager 177978.3 - 8 - Ne. 5907 State of CALIFORNIA County of MAW i) JEANNE M. LEONCINI, NOTARY PUBLIC ,, On JULY 1 Q, 1995 before me, � li DATE NAME TITLE OF OFFICES • E.G.. *JANE DOE. NOTARY PUSUC' ;c personally appeared PAMELA J. N I COLAI` NAMES) OF SIGNES(S) Xl personally known to me - OR - C proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are £. subscribed to the within instrument and ac- a, knowledged to me that he/she/they executed ?� the same in his/her/their authorized L capacity(ies), and that by his/her/their hL, signature(s) on the instrument the person(s),jmM ,. 4\My COWA •0 or the entity upon behalf of which thez No1�IPub10—Cailiolli MARINCOUNTY persons) acted, executed the instrument. Comm. Expka JAN 12.1001 )�: � a • Vii, WITNESS my hand and official seal. �. '-,�1GNATURE OF NOTARY OPTIONAL � Though the data below is not re uirea b law. it may rove valuable to persons relying on the document and could prevent 1 l� 4 q Y YP P Y 9 fraudulent reattachment of this form. i CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT EASEMENT AGREEMENT BY AND BET. GOLDEN BRIDGE, GHIGHWAY W& �OFFiCER DIST.ANDCITYOFSANRAATRANSPORTATION EL CITY MANAGER TITLE OR TYPE OF DOCUMENT T111.E15) RE: "ANDERSEN DRIVE EXTENSION" 1 C PARTNER(S) C LIMITED EASEMENT OVER THE. SERVIENT TENEMENT U C GENERAL l' C ATTORNEY-IN-FACT NUMBER OF PAGES u C TRUS,,Efs) C GUARDIAN/CONSERVATOR OTHER,. JULY 17, 1935 GATE OF DOCUMENT 1 l SIGNER IS REPRESENTING: t NAME OF PERSON(S) OR ENTnY(IES) 1 CITY OF SAN RAFAEL SIGNER(S) OTHER THAN NAMED ABOVE . .L Il+i ►A~� �, _— � �r "7���J ��i�rri�.r����i- '.�iLY ►ii'-%!1�'�]�'���J��J;� �,.::.J is .♦ ` C1993 NATIONAL NOTARY ASSOCIATION 0 8238 Remmet Ave.. P.O. Box 7184 • Canoga Park. CA 91309.7184 EXHIBIT "A" DESCRIPTION PORTION LANDS CONVEYED TO THE t)OLDEN GATE BRIDGE HIGHWAY TRANSPORTATION D1STRfCT AS DESCRIBED IN OFFICIAL RECORDS INSTRUMENT NO. 90-38199 hIARIN COUNTY RECORDS CITY OF SAN RAFAEL MAR IN COUNTY CALIFORNIA Beginning at a point: 42 feet perpendicular to. and southwesterly of. Engineers' cont.erliue station "A 73+30.85", as shown upon tho "Andersen Drive F.xtc,nsion right-of-wav drawings. to conjunction with the Plan and Prolile drawings. pr•ppared be TAMS Consultants. Inc.. Seattle. WA.. on file with the CAv of San Rafael Public Works Department. (said centerline configuration also being recorded July 7, 19yb, in Book 33 of Surveys, at Pale 93, Marin CorrnVy Records); thence leaving said point South 46-12'30" Last. 224.0 Leet. and South 47452'30" East 72.7 feet, more or less, to the northeasterly line of a right) -ot-way, 60 feet in width, being the second tract of laud described in agreement bvtwev" William T. Coleman and Lhe Northwestern Pacific Ra i I road Company. recorded Sept ember 7. 11192. in Book 24. of Deeds at Pate 22. Marin Cuuuty Records: thence along said right-of-way North 40'22'28" West (called North 43..10' WAL) 341.2 feet. more or less. to the northvastarly c:ornor of t h1, beginning point: of said second tract: thence leaving said corner. at a right angle. Soutf 49-37'32" West 5.0 feet, more or less, to this southcrk and easterly termines of the first tract, being the northeastNrI v terminer, of :a fi 1Ly-fout right. -of -way as described in said agreement to the Nort hwent eru Pacific Railroad; thence leaving said point. :.along the northeasterly line of said fifty -foot right-of-way, lir•:.t IlWnLione'd. North 40 22'28" West (called North 41'30' West) 370.0 fret. more or less, to .a point which bears South 53"05' East 19b.1 Iret, mora or less. from a point 37 leeL nor•theasip rly of, and radially to. Engineers' vvnterline station "A 67+30", as show" ulmu th1• said "Andersen Drive Ext.rusiou right.-uf-way dr•awinl;a: thrnce leaving said line North 53`05' West. 196.1 feet, more or less, to a puint 37 fent northeasterly of. and radially to. Engineers cruterline sLaLiou "A 67fin". as shown said map the "Andersen Drive Extension" right-ol-wad' drawings: thence leaving said point: North 54-33' Wost 28.0 fpPt, more or less. to the su"thwesterly line of said titty-foot right-of-way, first mentioned ill agreement to the tfort hwest ern Pacific Railroad Cornpanv : thence along said line South 40-22'20" East_ (called Scut h 43'30' East 1 490.9 feet, more or 1 ebs , to a point which bears North 49'23' Wvsr 144.7 telt, nwr•e or less, from the lwinL of beginning; Lhence le•avinn said line, South 49-23' East 144.7 levi . more or Ivuh. to the point of beginning. The bearings and drstances used in the above description are based upon Lhe Califurnia Cuurdin:aLe System le,ne Thrvp, NAD 1927. To obtain gruund distances. multiply all distances by 1.0000638. Exhibit. B is attached alld u1:.rde a part hereto. Revised Easement: GGBTD Lo The City of San Rafael .luly 10, 1995 Survey No. 336.540 Prepared by Phillip A. Danskin & Associates Land Surveyor Sonoma. Cali.forni..a hillip A: DNA No. 4794 Expires 9-30-9 /Af .1j111 JUI J( B / A Sl' 33' F p / 23 o t G RICE / 3700-OR-229 / y / o � / / (FORVERLY 442-O)?-155) � 2 IT morn � 66 0 G 0 s �G� i 1 POIAT OF Z [v BEC/NN/NG 0 SCALE 1"= 100' s� : IIIA GRA�Il logo `�, y OF LAND ACQUISITION BY TILE CITE' OF SAA' RAFAEL I b r < NEW COUNTY C4LIFORA'14 � � PREPARED BY PHILLIP A DAYSAM d.• ASSOCIATE'S LAND S11RIT)IO4 SO.1MM CALIFORNIA 1 EXHIBIT 2 June 10, 1994 Re: RIGHT -OF -ENTRY PERMIT - .. . RIGHT-OF-i'vAI, MILEPOST Dear FOR CONSTRUCTION ACCESS AT NORTHWESTERN PACIFIC RAILROAD The Golden Gate Bridge, Highway & Transportation District ("District" or "Permittor") hereby permits •- ("Permittee") to enter upon the Northwestern Pacific Railroad (NWPRR) Riqht-of-Way at or near Milepost adjacent to and Highway 101 in the City of County of Marin, State of California, in the locations marked on the enclosed Exhibit A ("Premises"), which is incorporated by this reference, subject to all licenses, easements, encumbrances and claims of title affecting the Premises and upon the following terms and conditions: 1. This permit' is issued exclusively to the Permittee for the sole purpose of construction access and to facilitate the construction of This permit is not assignable. In -no manner is this permit intended to constitute an abandonment of the Northwestern Pacific Railroad Right -of -Way. 2. This permit shall be effective from the above date until March 1, 1996, and then shall automatically terminate unless extended by mutual agreement. The District reserves the right to revoke or modify this permit upon 30 days advance notice to the Permittee. - 3. The Permittee shall notify the District forty-eight hours prior to the commencement of work at the site._ Please contact Daniel E. Mohn, District Engineer, at (415) 923- 2250 prior to entry. June 10, 1994 Page 2 4. Upon completion of said improvements, or upon termination or revocation of this permit, the Permittee shall completely remove any and all stored materials and equipment and shall restore the site, including trackage, to its condition prior to entry. If the Permittee fails to perform said measures, the Permittor, after two (2) weeks advance notice to the Permittee, may execute said measures at the expense of the Permittee. 5. All sections of the enclosed Right -of -Entry Permit General Provisions are included as part of this permit and shall be strictly enforced. The Permittee's attention is directed to Section 15, "Responsibility for Damages and Insurance Requirements," and Section 21, "Permit Fee and Costs," of the General Provisions. In the event of a conflict between this letter and the General Provisions, the provisions of this letter shall govern. 6. The effectiveness of this permit is conditioned upon receipt by the District of the fully endorsed copy of this letter and General Provisions and evidence of the insurance coverages required in this permit. If the Permittee agrees to the foregoing terms and to the terms of the enclosed "Right -of -Entry Permit General Provisions," please have the Permittee's authorized officers endorse the Permittee's acceptance on the attached copy of this letter and return to the undersigned. If the endorsed copy is not received within ten (10) days from the date of this letter, this permit shall automatically terminate. Very truly yours, Carney J. Campion General Manager A June 10, 1994 Page 3 AGREED TO AND ACCEPTED THIS day of , 1994 By: Name: Title: CJC/JWM/ j d Enclosures c: ADWard MChun DEMohn/MCGiacomini/NAStampfli/JWMcKim/GSShishido/ 5.6.5 MP 5-14.8 . GOLDEN GATE BRIDGE, HIGHWAY, AND TRANSPORTATION DISTRICT RIGHT OF ENTRY PERMIT GENERAL PROVISIONS 1. Acceptance of Provisions. No work shall commence on the Premises until Permittee accepts this Right -of Entry Permit ("Permit"). The doing of any work under this Permit shall constitute an acceptance of the provisions of this Permit and .all attachments. 2. Notice Prior to Starting Work. Before starting work under the Right -of -Entry Permit, the Permittee •shall notify the designated District representative two (2) working days prior to initial start of work. When work has been interrupted for more than five (5) working days, an additional 24-hour notification is required before restarting work unless a pre- arranged agreement has been made with the District's representative. Unless otherwise specified, all work shall be performed on weekdays and during normal working hours of the District representative. 3. Inspection and Approval by the District. All work on the Premises shall be performed in accordance with plans submitted to the District for its prior approval and such work shall be subject to monitoring and inspection by the District. 4. Keep Permit on the Work Site. The Right -of -Entry Permit or a copy thereof, shall be kept at the site of the work and must be shown to any representative of the District or any law enforcement officer on demand. WORK MAY BE SUSPENDED IF PERMIT IS NOT AT JOB SITE AS PROVIDED. 5. Permit from Other Agencies. The party or parties to whom a permit is issued, shall, whenever required by law, secure the written authorization for any work that must be approved by the Public Utilities Commission (PUC) of the State of California, CAL -OSHA, or any other public agency having jurisdiction. 6. Provisions for Pedestrians. Where facilities exist, a minimum sidewalk and bikepath width of four feet (4') shall be maintained at all times for safe passage through the work area. At no time shall pedestrians be diverted onto a portion of the street used for vehicular traffic. At locations where adjacent alternate walkways cannot be provided, appropriate signs and barricades shall be installed at the limits of construction and in advance of the closure at the nearest crosswalk or intersection to divert pedestrians across the street. 7. Protection of Traffic. Adequate provisions shall be made for the protection of the travelling public. warning signs, lights and safety devices, and other measures required for the Page 1 public safety, shall conform to the requirements of the Caltrans Manual of Traffic Controls. Nothing in the permit is intended, as to third parties, to impose on Permittee any duty, or standard of care, greater than or different than the duty or standard of care imposed by law. S. Minimum Interference with Traffic. All work shall be planned and carried out so that there will be the least possible inconvenience to the travelling public. The Permittee shall contact the appropriate authorities for approval of a traffic control plan prior to beginning any work. Traffic shall not be unreasonably delayed. 9. Care of Drainage. If the work contemplated in any Right -of - Entry Permit shall interfere with the established drainage, ample provision shall be made by the Permittee to provide for adequate drainage as may be directed by the District. 10. Location and Protection of Underground Facilities. It shall be the Permittee's responsibility to determine the existence of any underground facilities, utility or structures. Repair or replacement of any facility, utility or structure damaged as a result of the work is solely the responsibility of the Permittee. Ii. Making Repairs. In every case, the Permittee shall be responsible for restoring to its former conditions, as nearly as may be possible, any portion of the facility which has been excavated or otherwise disturbed by Permittee. The Permittee shall maintain the surface over any facilities or structures placed upon the Premises. 12. Clean Up Site. Upon completion of the work, all brush, timber, scraps, material, etc. shall be entirely removed and the site shall be left in as presentable a condition as existed before work started. If Permittee fails to perform cleanup, the District, after 24-hour advance notice to Permittee, may execute cleanup at the expense of the Permittee. 13. Cost of Work. All costs incurred for work on the'Premises, pursuant to this Permit shall be borne by the Permittee, and Permittee hereby waives all claims for indemnification or contribution from the District for such work. Permittee shall fully pay for all materials, joined or affixed, to the Premises, and shall pay in full all persons who perform labor on the Premises. As a public entity, the property of the District is subject to neither mechanics' no material men's liens, and nothing contained in this Permit shall be construed to make any property of the District subject to such liens. However, if any such liens are filed, Permittee shall remove them immediately at Permittee's own expense, and shall pay any judgement which shall be entered. Should Permittee fail, neglect or refuse so to do, District, after 48 hours' prior Page 2 notice to Permittee, shall have the right to pay any amount required to release any such liens, or to defend any action brought, and to pay any judgement entered. Permittee shall be liable to the District for all costs, damages, reasonable attorneys' fees, and any amounts expended in defending any proceedings or in the payment of any of said liens or any judgement. District may post and maintain upon the Premises notices of non -responsibility as provided by law. 14. submit Plans. For installation of all underground facilities, and all surface work or other activity of consequence, the Permittee shall furnish two (2) sets of plans showing location and construction or other activity with its application. Thirty (30) days after completion and approval of the work, one (1) set of as -built plans shall be submitted to the District. 15. Responsibility for Damage and Insurance Requirements. Permittee shall release, defend (with counsel satisfactory to the District) and indemnify the District from and against all liability, cost and expense for loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party) when arising or resulting from the use of the Premises by Permittee, its agents, employees, contractors, subcontractors or invitees; or Permittee's breach of these provisions. The duty of Permittee to indemnify and save harmless includes the duties to defend as set forth in Section 2778 of the Civil Code. It is the express intent of the parties under this Section 15, that Permittee will indemnify and hold harmless District, its directors, officers, employees, and agents from any and all claims, suits or actions arising from any cause whatsoever as set forth above regardless of the existence or degree of fault or negligence on the part of the District, Permittee or any subcontractor or employee of any of these, other than the active negligence, wilful misconduct or criminal acts of the District, its directors, officers, employees and agents. Permittee waives any and all rights to any type of express or implied indemnity against the District, its directors, officers, employees or agents. This indemnity shall survive termination of this Permit. Prior to entry upon the Premises, Permittee shall provide the District with satisfactory evidence, in the form of a Certificate of Insurance, in accordance with the following, which insurance shall remain in effect throughout the term of this Permit: a. Workers' Comaensation and Emnlovers' Liabilitv Insurance. Permittee shall procure and maintain Workers' Compensation Insurance and Employers' Liability Irisurance in accordance with laws of the State of California. Employers' Liability Insurance shall have coverage for a minimum liability of TWO MILLION DOLLARS ($2,000,000) Page 3 covering Contractor's employees engaged in the work. Permittee shall insure the procurement and maintenance of such insurance by all contractors or subcontractors engaged on the work. Prior to commencement of any work hereunder,, Permittee o shall deliver to the District a Certificate f Insurance which shall stipulate that 30 days advance written notice of cancellation, non -renewal or reduction in limits shall be given to the District. b. Personal Iniury and Pronertv Damage Liabilitv Insurance. Permittee shall also procure and maintain Personal Injury and Property Damage Liability Insurance which shall include as an additional insured the "Golden Gate'Bridge, Highway and Transportation District, and its respective directors, officers, employees and agents" while acting in such capacity, and its successors or assignees, as they now or as they may hereafter be constituted, singly, jointly, or severally. Said insurance shall include Automobile Bodily Injury and Property Damages coverage, including owned, hired and non -owned vehicles. Said insurance shall be subject to a combined single limit of liability of not less than Five Million Dollars ($5,000,000). A Certificate of Insurance shall be filed with the Secretary of the District prior to the start of any work under this Permit which shall inter alia stipulate: i) Thirty days advance written notice shall be given to the General Manager of the District prior to cancellation non -renewal or reduction in limits. ii) That the policy is Primary Insurance and the insurance company providing such policy shall be liable thereunder for the full amount of any loss or claim which Permittee is liable for under Sections 15 and 16, up to and including the total limit of liability, without right of contribution from any other insurance effected or which may be effected by the Golden Gate Bridge, Highway and Transportation District. iii) The policy shall also stipulate: Inclusion of Golden Gate Bridge, Highway and Transportation District as an additional insured shall not in any way affect its right either as respects any claim, demand, suit or judgement made, brought or recovered against the Permittee. Said policy shall protect Permittee and Golden Gate Bridge, Highway and Transportation District, in the same manner as though a separate policy had been issued to each, Page 4 but nothing in said policy shall operate to increase the insurance company's liability as set forth in its policy beyond the amount or amounts shown or to which the insurance company would have been liable if only one interest had been named as an insured. 16. Permittee shall comply, at Permittee's expense, with all applicable laws, regulations, rules and orders with respect to the use of the Premises, regardless of when they become or became effective, including, without limitation, those relating to construction, grading, signage, health, safety, noise, environmental protection, hazardous materials, waste disposal and water and air quality, and furnish satisfactory evidence of such compliance upon request from the District. Should any discharge, leakage, spillage, emission, or pollution of any type occur upon or from the Premises due to Permittee's use and occupancy thereof, Permittee, at Permittee's expense, shall clean all affected property to the satisfaction of the District and any governmental body having jurisdiction. Permittee shall indemnify, hold harmless and defend the District against all liability, cost and expense (including, without limitation, any fines, penalties, judgements, litigation costs, reasonable attorneys fees and consulting, engineering and construction costs) incurred by the District as a result of Permittee's breach of this section or as a result of any such discharge, leakage, spillage, emission or pollution by Permittee, regardless of whether such liability, cost or expense arises during or after the term of this Permit. Permittee shall pay all amounts due to the District under this section within ten (10) business days after the District has submitted the same to Permittee for payment. 17. Any person, firm or corporation Permittee authorizes to work upon the Premises shall be deemed to be the Permittee's agent and shall be subject to all the applicable terms hereof. 18. Upon termination of this Permit, Permittee, at its own expense, shall remove from the Premises all property it owns or controls and restore the ground terrain to a condition reasonably satisfactory to the District. Upon Permittee's failure to do this, the District, upon 48 hours prior notice to Permittee, may perform such work at Permittee's expense. 19. If any provision of this Permit shall be for any reason unenforceable, in any respect, such unenforceability shall not affect the other provisions of this Permit. Page 5 VC 20. If any legal proceeding should be instituted by either of the parties to enforce the terms of this Permit or to determine the rights of the parties under this Permit, the prevailing party in the proceedings shall receive, in addition to all court costs, reasonable attorney's fees. 21. Permit Fee and Costs. In consideration of the rights conveyed hereunder and to reimburse the Permittor for its costs for review of the permit application, design and construction plans and preparation of the agreement, Permittee agrees to pay to Permittor a permit fee in the amount of In addition, Permittee agrees to pay upon demand expenses incurred by Permittor for inspection of construction, if any. AGREED TO AND ACCEPTED THIS DAY OF , 1994 PERMITTEE By: Name: Title: Disk: NNt? ROW U PN: RIGHTOFE.TRYf)d Page 6