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HomeMy WebLinkAboutCC Resolution 10418 (Second St. Widening Project)RESOLUTION NO. 10418 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL APPROVING GRANT OF EASEMENT AND AGREEMENT FOR SECOND STREET WIDENING PROJECT ON LAND OWNED BY GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT (GGBHTD). BE IT RESOLVED by the Council of the City of San Rafael as follows: WHEREAS, the City desires to widen Second Street on property owned by GGBHTD to improve traffic circulation in the central San Rafael area; and WHEREAS, GGBHTD is the owner of the certain real property which is located in the City of San Rafael, County of Marin, and more particularly described in Exhibit A and depicted on Exhibit B, which are attached hereto and incorporated herein; and WHEREAS, the City, upon completion of roadway, is willing to assume maintenance and repair of the structure thereafter; and WHEREAS, GGBHTD is willing to grant an easement to City on the Terms and conditions hereinafter set forth; and WHEREAS, the offer of $10,000 has been made to GGBHTD and accepted pending approval by the City; and WHEREAS, the Grant of Easement and agreement has been reviewed and approved by the City Attorney. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Rafael that the San Rafael City Council authorizes the City Manager to sign and ORIP�INAII � o0'% execute the documents and direct the Director of Financial Services to issue a check for $10,000 to GGBHTD. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on the 7"' day of June, 1999, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None JE . LEO�City Clerk GRANT OF EASEMENT AND AGREEMENT THIS AGREEMENT made as of this 7th day of JUNE , 1999 ("Effective Date"), by and between GOLDEN GATE BRIDGE, HIGHWAY & TRANSPORTATION DISTRICT, a public district, ("DISTRICT") and the City of San Rafael ("CITY"), a California charter city. RECITALS A. DISTRICT is the owner of that certain real property which is located in the City of San Rafael, County of Marin, State of California, and more particularly described in Exhibit A and depicted on Exhibit B, which are attached hereto and incorporated by this reference ("Property"). B. CITY desires to construct a roadway ("Roadway") on the Property to improve traffic circulation in the central San Rafael area. C. CITY, upon completion of the Roadway, is willing to assume maintenance and repair of the structure thereafter. D. DISTRICT is willing to grant an easement to CITY on the terms and conditions hereinafter set forth. FOR VALUABLE CONSIDERATION, the receipt of which is acknowledged, the parties agree as follows: 1. Grant of Easement. DISTRICT does hereby grant and convey to CITY, subject to the conditions and covenants of this Agreement, a nonexclusive, perpetual easement in gross containing approximately 1,628 square feet, together with necessary rights of access, in, under, across and along the easement area depicted on Exhibit B and described in Exhibit A attached hereto and incorporated by this reference (hereinafter "Easement"), to construct, maintain, repair, remove, replace and operate a roadway for transportation purposes. Nothing herein is intended to expand CITY's use of the easement area beyond those rights expressly contemplated herein. 2. Term of Easement. The term of this Easement shall commence upon the Effective Date of this Agreement. The Easement shall be in perpetuity provided the Roadway is constructed within said easement before June 30, 2000. In the event the Roadway is not constructed on or before said date, or in the event the Roadway is abandoned, the Easement shall be canceled and all rights shall revert to DISTRICT. The rights granted by this Agreement to CITY shall lapse and become void if the construction of the Roadway is not commenced before June 30, 2000. CITY's indemnity obligations set forth in Sections 9 and 13 shall survive termination of this Agreement. 3. Use by CITY. The Easement is limited to the following uses: the right to construct, maintain, repair, remove, replace and operate the Roadway in accordance with plans approved by DISTRICT together with reasonable rights of access for such purposes. 693519.3 d;u CITY's use of the Easement shall not materially interfere with DISTRICT's use of the Property. CITY agrees to give DISTRICT ten (10) calendar days' written notice prior to commencement of any work on the Roadway, except emergency repairs, in which event CITY shall notify DISTRICT's authorized representative by telephone. CITY agrees to keep the Property and the Roadway in good and safe condition, free from waste, so far as affected by CITY's operations, to the reasonable satisfaction of DISTRICT. If CITY fails to keep the Property and the Roadway in good and safe condition, free from waste, then DISTRICT may perform the necessary work at the expense of CITY, which expense CITY agrees to pay to DISTRICT upon demand. DISTRICT agrees to give CITY ten (10) calendar days' written notice prior to commencement of any repair work on Roadway, except emergency repairs, in which event DISTRICT shall notify CITY's Director of Public Works by telephone. CITY agrees to prohibit right turns on a red signal during peak hours from West Francisco Boulevard to Second Street and to create an all -red signal phase at the intersection of Second Street, West Francisco Boulevard and Tamalpais Avenue. CITY shall relocate the existing railroad crossing protection facilities that are located in the easement area at CITY's sole cost and expense. Such relocation shall include, but is not limited to, construction of new footings and reconnection to utilities lines. This Agreement shall not obligate DISTRICT to perform any additional work related to crossing protection. 4. Non-exclusive Easement. DISTRICT retains the right to make any use of the land over and across the Easement, including the right to grant easements in the Property to third parties, that does not interfere unreasonably with CITY's free use and enjoyment of the Easement for the purposes stated herein. 5. Prior Rights. This grant is made subject and subordinate to the prior and continuing right and obligation of DISTRICT, its successors and assigns, to use all of the property described in this Agreement in the performance of its transportation operations. There is reserved unto DISTRICT, its successors and assigns, the right to construct, reconstruct, maintain and use existing and future facilities and appurtenances, including, without limitation, existing and future transportation, communication, railroad tracks and pipeline facilities and appurtenances in, upon, over, under, across and along the Property. It is expressly agreed by the parties that DISTRICT, its successors and assigns may in the future construct additional railroad tracks or other transportation facilities on the right-of-way that may require the use of all or a portion of the Property, that this work may increase CITY's costs of maintenance of the Roadway, and that any additional costs of maintaining the Roadway subsequent to and resulting from such construction shall be borne by CITY. This agreement is made subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens and claims of title which may affect the Property in effect as of the Effective Date. The word "grant" shall not be construed as a covenant against the existence of any of these. 2 693519.3 6. Scope of the Easement. The Easement includes incidental rights of maintenance, repair and replacements. In exercising these rights, CITY must use reasonable care and may not unreasonably increase the burden on the Property or make any material changes to the Property. 7. Fiber Optics Svstems. The rights granted by this Agreement are subject to the rights of DISTRICT (or anyone acting with the permission of DISTRICT) to construct, reconstruct, maintain and operate fiber optic and other telecommunications systems ("systems") in, upon, along, across and beneath the Property and rights -of -ways of DISTRICT, including the property on which the Roadway shall be constructed. In addition to other provisions of this Agreement requiring CITY to give notice prior to commencing work, CITY shall telephone Underground Service Alert at 1-800-642- 2444 (a 24-hour number) to determine if a telecommunications systems is buried anywhere on or about the Property defined or included in this Agreement. If there is, CITY will telephone the owner of the system designated by DISTRICT, arrange for a cable locator and make arrangements for relocation or other protection for the system prior to beginning any work on the Property. 8. Claims. Claims, injuries, deaths, property damages and losses arising out of CITY's use of the Easement shall be investigated, adjusted, defended and, if necessary, paid by CITY. 9. Indemnitv and Insurance. CITY shall release, indemnify and defend (with counsel reasonably satisfactory to the DISTRICT) the Golden Gate Bridge, Highway and Transportation DISTRICT, the County of Marin, the Marin County Transit DISTRICT, the successors and assigns of any of them, any railroad company operating on the Property, and their respective directors, officers, employees and agents (collectively, "Indemnittees") 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 Property by CITY, its agents, employees, contractors, subcontractors or invitees; or CITY's breach of these provisions. The duty of CITY to indemnify and save harmless the Indemnitees 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 9, that CITY will indemnify and hold harmless the Indemnitees from any and all claims, suits or actions arising from any cause whatsoever as set forth above, other than the active negligence, willful misconduct or criminal acts of the Indemnitees. CITY waives any and all rights to any type of express or implied indemnity against the DISTRICT for CITY's use of or activities on the Property except for indemnification of the CITY for liability and loss arising out of the active negligence, willful misconduct or criminal acts of the Indemnities. This indemnity shall survive termination of this Agreement. It is the intention of the parties that should any term of this indemnity provision be found to be void or unenforceable, the remainder of the provision shall remain in full force and effect. Any person, firm or corporation CITY authorizes to work upon the Property, including any subcontractor, shall be deemed to be CITY's agent and shall be subject to all the 91 693519.3 applicable terms of this Agreement. Prior to entry upon the Property 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 Property 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 Property for each construction project, CITY agrees to 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, which may be adjusted from time to time prior to each such project at DISTRICT's reasonable discretion. a. Workers' Compensation and Emplovers' Liabilitv Insurance. CITY shall require its contractor(s) to procure the payment of Workers' Compensation Coverage to its employees, as required by Section 1860 of the California Labor Code (Chapter 1000, Statutes of 1965), or any subsequent amendments or successor acts thereto governing the liability or employers to their employees. Workers' Compensation 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 DISTRICT with a certificate evidencing such coverage. The CITY and/or its contractor shall also maintain Employer's Liability coverage with minimum limits of $1,000,000.00. 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 contractor's policy will not be canceled 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 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. 4 693519.3 Prior to commencing work or entering onto the Property, CITY shall require its contractor(s) to file a Certificate(s) of Insurance with the DISTRICT evidencing coverage, and upon request, a certified duplicate 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. (3) The policy shall also stipulate: Inclusion of 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 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. C. Railroad's Protective Liabilitv Insurance. The CITY shall provide and/or require its contractors to provide, with respect to construction projects it or any of its contractors perform above the railroad tracks or within fifty (50) feet horizontally of the railroad tracks during any period when rail service is active on the line, Railroad's Protective Liability Insurance with either the AASHTO policy form or the ISO/RIMA form with pollution coverage for job site fuels and lubricants. The named insureds shall be 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 Property, CITY shall file an original or a duplicate original of the policy for Railroad Protective Liability with the DISTRICT. d. Automobile Liabilitv Insurance. 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, and its 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. 5 693519.3 e. General Insurance Provisions. All of the contractor's 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 failure to procure or maintain required insurance and/or an adequately funded self-insurance program will constitute a material breach of this Agreement. 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. f. Claims Made Coverage. 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: (1) Policy retroactive date coincides with or precedes the CITY's start of work (including subsequent policies purchased as renewals or replacements). (2) 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. (3) 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. (4) Policy allows for reporting of circumstances or incidents that might give rise to future claims. g. Self Insurance. CITY is insured and participates with other cities and public entities as a member of the California Joint Powers Risk Management Authority (CJPRMA) for excess coverage in the amount of $10,000,000, over its $500,000 self-insured retention for commercial general liability coverage. Upon completion of the Roadway, CITY shall provide DISTRICT with a Certificate of Coverage from CJPRMA naming the Insureds as additional insureds in the amount of $9,500,000 above its self-insured retention, and upon request, a duplicate original of the Memorandum of Coverage. Said Certificates shall stipulate: (1) Thirty days advance written notice shall be given the General Manager of the DISTRICT prior to cancellation or non -renewal of coverage. 6 693519.3 (2) That the policy is Primary Insurance and the insurer shall be liable thereunder for the full amount of any loss or claim which CITY is liable for under this Section 9 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 Insureds. CITY shall provide, and may self -insure, Worker's Compensation and Employers' Liability Insurance Coverage in compliance with the limits in Section 9(a) above. 10. Assumution of Risk/"As Is" Transfer. CITY shall assume all risk of damage to the Roadway and appurtenances and to any other property of CITY, or any property under the control or custody of CITY while upon or near the Property of DISTRICT incident to the construction or maintenance of the Roadway, caused by or contributed to in any way by the construction, operation, maintenance or presence of DISTRICT's operations at the Property; provided, however, such assumption by CITY shall not include any damage caused by the active negligence, willful misconduct or criminal acts of DISTRICT, its agents or employees. At CITY's request, DISTRICT shall grant to CITY a right of entry onto the Property to conduct such physical inspections of the Property (as CITY deems necessary or appropriate) to establish the condition of the Property, including without limit the presence of Hazardous Materials thereon, and to determine the suitability of the Property for CITY's proposed use thereof. The right of entry shall be in a form agreeable to both parties. CITY expressly acknowledges that (i) CITY is acquiring the Easement in an "as is," "where is" and "with all faults" condition, and assumes any and all risks and liabilities respecting its condition, use and utility and that the same was a part of the consideration for this transfer and (ii) CITY has not relied on any warranties, promises, understandings or representations, express or implied, of any kind by DISTRICT or any agent of DISTRICT relating to the Property, or any Lease or any other document relating to the Property. 11. Workine Procedures; Repair and Maintenance. CITY shall bear the entire cost and expense of operating, repairing and maintaining the Roadway on the Property. This maintenance obligation shall survive the termination of this Agreement. CITY agrees that all work upon or in connection with the Roadway shall be done at such times and in such manner as not to interfere in any way whatsoever with the operations of DISTRICT, its tenants or licensees. The plans for constructing, repairing, reconstructing or altering the Roadway shall be subject to the approval of DISTRICT. Approval by DISTRICT shall not constitute a warranty by DISTRICT that such plans conform with applicable federal, state, and/or local codes and regulations. CITY agrees to give DISTRICT and the operator of any freight or passenger rail service ("Operator") ten (10) calendar days' written notice prior to commencement of any work on the Roadway, except emergency repairs, in which event CITY shall notify DISTRICT's authorized representative by telephone. CITY agrees to keep the Property and the Roadway in good and safe condition, free from waste, so far as affected by CITY's operations, to the reasonable satisfaction of DISTRICT. If CITY fails to keep the Property and Roadway in good and safe condition, free from waste, then DISTRICT, may perform the 7 693519.3 necessary work at the expense of CITY, which expense CITY agrees to pay to DISTRICT upon demand. CITY shall comply with the regulations of DISTRICT and/or Operator and the instructions of their representatives relating to the proper manner of protecting the tracks, pipelines, wire lines, signals and all other property at said location, the traffic moving on such tracks and the removal of tools, equipment and materials. All work by CITY upon the Property shall be performed in a good and workerlike manner satisfactory to DISTRICT. Since there is the possibility of the existence of pipelines or other structures beneath the Property, if CITY should excavate or drill, then CITY's forces shall explore such structures with hand tools to a depth of at least eight feet (8') below the surface of the ground or, at CITY's option, use suitable detection equipment prior to drilling or excavating with mechanized equipment. Absence of markers does not constitute a warranty by DISTRICT of no subsurface installations. It shall be CITY's responsibility to determine the existence of any underground facilities and CITY shall call Underground Service Alert at 1-800-642-2444 prior to beginning any work on the Property. Any open holes shall be satisfactorily covered at all times when CITY's forces are not physically working in the actual vicinity. Upon completion of work, all holes will be filled in to meet the surrounding ground level with clean, compacted, earthen material and the property left in a neat and safe condition reasonably satisfactory to DISTRICT. Under no condition shall CITY be permitted to place or store any mechanized equipment, tools or other materials within twenty-five feet (25') of the center line of DISTRICT's nearest railroad tracks. CITY shall not be permitted to cross DISTRICT's tracks located on or adjacent to the Property to gain access to and from the Roadway. Access shall be by use only of designated public streets or crossings. CITY agrees to reimburse DISTRICT for the cost and expense to DISTRICT of furnishing any materials or performing any labor in connection with the construction and maintenance or removal of the Roadway, including, but not limited to, the installation and removal of such false work and other protection beneath or along the railroad tracks, and the furnishing of such security persons, flaggers and inspectors as DISTRICT deems necessary. Prior to incurring any cost or expense, DISTRICT shall reasonably notify CITY of the same. Said reimbursement shall be paid by CITY to DISTRICT within thirty (30) days after presentation of a bill. CITY shall fully pay for all materials joined or affixed to the Property, and shall pay in full all persons who perform labor on the Property. As DISTRICT is a public entity, its property is not subject to mechanics' or materialmen's liens, and nothing in this Agreement shall be construed to make its property subject to such liens. However, if any such liens are filed, or as a result of CITY's failure to pay for any such materials or labor, CITY shall immediately remove them at CITY's own expense, and shall pay any judgment which may be entered. Should CITY fail, neglect, or refuse to do so, DISTRICT, after 48 hours E 693519.3 prior notice to CITY, shall have the right to pay any amount required to release any such liens, or to defend any action brought, and to pay any judgment entered. CITY shall be liable to DISTRICT for all costs, damages, reasonable fees, and any amounts expended in defending any proceedings or in the payment of any of said liens or any judgment. DISTRICT may post and maintain upon the Property notices of nonresponsibility as provided by law. CITY shall cooperate with DISTRICT in making any tests DISTRICT requires of any installation by CITY which in DISTRICT's reasonable judgment may have an adverse effect on any of the facilities of DISTRICT. All costs incurred by the tests, or any corrections required as a result of such tests, shall be borne by CITY. CITY shall take protective measures necessary to keep DISTRICT's facilities, including track ballast, free of sand or debris resulting from its operations. Any damage to DISTRICT's facilities resulting from CITY's operations will be repaired or replaced by DISTRICT, at CITY's sole cost and expense, which CITY shall pay to DISTRICT promptly upon demand. CITY shall provide all barriers, directions, signage and other forms of notice to the public to assure the smooth and uninterrupted flow of traffic around the Property. CITY shall not pile or store any materials or park any equipment, when not in use, closer to the center of nearest railroad track then permitted by the following permanent clearances: (i) 25'-0" horizontally from center line of track; and (ii) 22'-6" vertically above top of rail. The placement of piles, forms, bracing, shoring falsework, or other construction supports shall be in accordance with the current Caltrans Trenching and Shoring Manual, Appendix C. CITY shall notify DISTRICT the date the work is completed. Upon completion of the work, CITY shall promptly remove from Property all tools, equipment and materials placed thereon by CITY or its agents. Except for the construction and improvements authorized herein, CITY shall restore said Property to the same state and condition as when CITY entered thereon and shall leave said Property in a clean and presentable condition. 12. Damage and Destruction. In the event that the whole or any part of the tracks, signal facilities or operating equipment of DISTRICT the wires, cables, fiber optics or other facilities of the communications carriers with facilities located on the Property, or the Roadway or other improvements of Grantee are damaged or destroyed by any cause related to the presence of the Roadway on the Property and such damage or destruction is not proximately caused by the negligent acts or omissions and/or wilful misconduct of DISTRICT, the County of Marin and the Marin County Transit District, their respective directors, officers, agents or employees, Grantee at its cost and expense, shall restore the said tracks, signals facilities, operating equipment, wires, cables, fiber optics, or other communication facilities, to their pre-existing condition. 9 693519.3 13. Compliance: Hazardous Materials. CITY shall, at its expense, comply with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal and waste and air quality, and furnish satisfactory evidence of such compliance upon request of DISTRICT. Other than minor amounts of material necessary for the construction work to be performed on the Property, no hazardous materials shall be handled at any time upon the Property. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or arise on the Easement as a result of CITY's use or operations, CITY shall at its expense be obligated to repair all property affected thereby. With respect to any property owned or controlled by DISTRICT, DISTRICT may, at its sole option, clean DISTRICT's property of hazardous materials caused by or resulting from CITY's use of Property ; if DISTRICT elects to do so, CITY shall pay the cost of such cleanup promptly upon the receipt of a bill therefor. CITY agrees to investigate, release, indemnify and defend Indemnitees from and against all liability, cost and expense (including without limitation, any fines, penalties, judgments, litigation costs and reasonable attorneys' fees) incurred by Indemnitees as a result of any such discharge, leakage, spillage, emission or pollution arising from use of the Property by CITY, its officers, agents or employees, regardless of whether such liability, cost or expense arises during the time this Agreement is in effect or thereafter, unless such liability, cost or expense is proximately caused by the active negligence, willful misconduct or criminal acts of Indemnitees, their officers, agents or employees. This indemnity shall not apply to pre-existing contamination on the Property. This section shall survive the termination of this Agreement. 14. Consideration: Costs. Upon execution hereof, in consideration for this easement CITY shall (a) pay DISTRICT Ten Thousand Dollars ($10,000). In addition, the CITY shall, upon demand, pay the reasonable costs and expenses of DISTRICT for any required future review of maintenance, repair and replacement plans and any inspection of construction. 15. Notices. All notices required or permitted to be given hereunder shall be in writing and mailed postage prepaid by certified or registered mail, return receipt requested, or by personal delivery, or by overnight courier, to the appropriate address indicated below or at such place or places as either DISTRICT or CITY may, from time to time, respectively, designate in a written notice given four (4) days after the date of mailing thereof or upon personal delivery. TO CITY: City of San Rafael Box 151560 San Rafael, CA 94915-1560 TO DISTRICT: Golden Gate Bridge, Highway and Transportation District Box 9000, Presidio Station San Francisco, CA 94129-0601 10 693519.3 Attn: General Manager with copy to: Hanson, Bridgett, Marcus, Vlahos & Rudy 333 Market Street, Suite 2300 San Francisco, CA 94105 Attn: Madeline Chun, Esq. 16. Governing Law. The rights and liability of the parties under this Agreement shall be interpreted in accordance with the laws of the State of California. 17. Integration. This Agreement constitutes the complete expression of the agreement between the parties and supersedes any prior agreements, whether written or oral, concerning the subject matter of this Agreement, which are not fully expressed in this Agreement. Any modification of or addition to this Agreement must be in a writing signed by both parties. 18. Headings. The headings of the sections of this Agreement are inserted for convenience only and do not constitute part of this Agreement and shall not be used in its construction. 19. Severabilitv. Each provision of this Agreement is intended to be severable. If any term or provision shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity of the remainder of this Agreement. 20. No Waiver. No waiver of any default or breach of any covenant of this Agreement by either party shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and then the waiver shall be operative only for the time and to the extent stated. Waivers of any covenant, term or condition by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by either party to or of any act by either party requiring further consent or approval shall not be deemed to waive or render unnecessary their consent or approval to or of any subsequent similar acts. 21. Successors and Assigns. CITY shall not assign nor sublet, in whole or in part, any rights covered by this Agreement, or permit any other person, firm or corporation to use, in whole or in part, any of the rights or privileges granted pursuant to this Agreement, without first obtaining the written consent of the DISTRICT. 22. Attornevs' Fees. If any legal proceeding should be instituted by either of the parties to enforce the terms of this Agreement or to determine the rights of the parties under this Agreement, the prevailing party in the proceeding shall receive, in addition to all court costs, reasonable attorneys' fees. 11 693519.3 23. Condemnation. In the event all or any portion of the Agreement is condemned for public use, CITY shall receive compensation only in the amount awarded for the taking and damaging of CITY's Roadway. Any compensation for damages for taking the Property or CITY's Easement interest thereon awarded to CITY shall be assigned to DISTRICT. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. CITY: City of San Rafael 617y Manager ATTEST: Ci �rk DISTRICT: Golden Gate Bridge, Highway and Transportation District President, Board of Directors ATTEST: Secretary 12 6935193 Date: September 8, 1998 File: 4.870.03 ROADWAY EASEMENT DESCRIPTION PORTION OF A.P.N. 11-279-02 EXho-IT A COMMENCING at the most southerly corner of the parcel of land conveyed to the Greyhound Corporation by Deed, recorded March 14, 1941 in Book 410 at Page 140, Official Records of Marin County; thence northerly along the easterly line of said Parcel, North 12'53'22" East, 13.08 feet to the True Point of Beginning on the southerly line of the public highway easement being further identified as 2nd Street, conveyed to the State of California by Grant of Easement recorded March 5, 1970, in Book 2359, Page 276, Marin County Records; thence northerly along said easement line 10.03 feet; thence leaving said easterly line of Greyhound, and along said southerly line of 2nd Street, South 81 °29'39" East, 142.01 feet; thence along a curve to the right, tangent to the preceding course, having a radius of 50.00 feet, through a central angle of 36'52'10", an arc length of 32.17 feet; thence leaving said southerly line of 2nd Street, North 81 °29'39" West, 172.79 feet to the Point of Beginning. Contains 1,628.31 square feet or 0.0374 acres, more or less. Uerver95 nndatalwPfi OWED cA3.31.99.8 70 G.G.B.H.T.D. O.R. 90-038197y. ` a ; PORTION A.P.N. 11-279-02 A.P.N. A.P.N. 11-279-10/V 11-279-03 LAJ i ,N 1 M :nC' 2 CQNO ST. N0.0353'22" E 81'29'39" E � 142.01' POINT OF BEGINNING 8 812g POINT OF COMMENCEMENT 172.79' S } 00 SECOND STREET EASEMENT —PROPOSED 10' EASEMENT 0 = 36'52'10° R = 50.00' L = 32.17' PORTION A.P.N. 11-279-02 CITY OF SAN RAFAEL A.P.N. 11-279-01 sw NO SCALE CCSW/STUBER—STROEH -SEPT 1998 JOB# 4.870.03 [St]2 ENGINEERING GROUP, INC. cry OF SAN RAFAEL CONSULTING ENGINEERS GOLDEN GATE B. H. T. D. 790 DeLong Ave., Novato, CA. 94945-3246 EASEMENT (415) 892-4763 FAX (415) 892-4502 O 1995 SAN RAFAEL MARIN COUNTY CAI IFnRNIA a A CERTIFICATE OF ACCEPTANCE The City of San Rafael hereby accepts the Grant of Easement conveyed in the attached Grant of Easement and Agreement, from the Golden Gate Bridge Highway and Transportation District. The Grant of Easement and Agreement is attached hereto and incorporated herein. Resolution No. 10418 authorizing the City Manager and City Clerk to execute the Certificate of Acceptance, was adopted by the City Council on Monday, June 7, 1999. CITY OF SAN RAFAEL Dated: ROD GOULD, City Manager ATTEST: JEANNE M. LEONCINI, City Clerk