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HomeMy WebLinkAboutAgenda Packet - Ma 15, 2006 - CCTO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUCE COLEMAN, DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F.M. DELACH, CITY MANAGER /A!a ` BY: ROY BRUCKN JECT MANAGER DATE: MAY 15, 2006 SUBJECT: APPROVAL OF CONSTRUCTION AND MAINTENANCE AGREEMENTS FOR CITRUS AVE. AND PALM DRIVE UNDERCROSSINGS, CITRUS AVE. MAINTENANCE SHARING AGREEMENT, DETENTION BASIN MOU WITH THE CITY OF GLENDORA AND OTHER AGENCIES, AND JOINT COMMUNITY FACILITIES AGREEMENT, ALL RELATED TO THE ROSEDALE PROJECT RECOMMENDATION It is recommended that the City Council approve the following agreements, and authorize their execution: 1. A Memorandum of Understanding Regarding Maintenance and Construction of Detention Basins. 2. Citrus Ave. Maintenance Sharing Agreement 3. Construction and Maintenance Agreement for the Citrus Ave. Undercrossing 4. Construction and Maintenance Agreement for the Palm Drive Undercrossing 5. Joint Community Facilities Agreement for the construction of certain improvements under City of Azusa Community Facilities District No. 2005-1 (Rosedale). BACKGROUND The Monrovia Nursery project site interfaces with the City of Glendora along the east side of the site's boundary. This interface area requires the City of Glendora's cooperation and approval for various items, including construction of graded and landscaped slopes, detention basins, utility connections and relocations, street extensions, and the Citrus Ave. underpass. Glendora Staff has reviewed and approved the concept and construction plans for these facilities. Similarly, the Glendora Planning Commission has approved necessary grading and drainage improvements. Connected with the aforementioned Facilities are construction and maintenance agreements, which have been reviewed and were approved by the Glendora City Council on May 9. 2006. In addition, other agencies that are party to two of the four agreements have approved and executed them. The City of Azusa must now execute said agreements as well. A description of the agreements, which are attached, is as follows: I. Detention Basin Memorandum of Understanding. (�f This MOU was originally struct red f execution between ALP and Glendora. Its purpose is to set forth the understanding that ALP will construct three detention basins and that ALP or Monrovia Nursery will maintain them. One basin will be located along the Azusa - Glendora boundary just south of Sierra Madre Ave. (Area D Detention Basin), another will be located just east of the Dhammalcaya Meditation Center, straddling the City boundary (Citrus Detention Basin), while the third basin will be located entirely in Glendora near Calera Ave. (Hicrest Basin). Monrovia Nursery and ALP agreed to construct the Hicrest Basin to assist in a local drainage problem in the Calera Ave. area. The MOU sets forth drainage standards, and requires ALP to construct the improvements consistent with the drainage standards. In addition, the MOU describes maintenance standards and responsibilities, with ALP responsible for the Area D and Citrus basins, Monrovia Nursery for the Hicrest Basin, and the City of Azusa responsible for only the inlet structures at the Area D and Citrus Ave. Basins. ALP plans to convey the Citrus and Area D Basins along with the maintenance responsibilities to the Rosedale Homeowners Association after construction. The City of Glendora has requested that the City of Azusa be made a party to the agreement, in order to facilitate the City of Azusa's enforcement if for some reason the HOA fails to provide adequate maintenance. Azusa's City Attorney has requested that enforcement and indemnification provisions be added to the MOU, which has been done. 2. Citrus Ave. Maintenance 6greement. The extension of Citrus Ave. from Foothill Blvd. into the Rosedale project will serve only the City of Azusa at this time, since no Glendora streets are planned to connect. The street alignment straddles the border between the two cities, and a large portion of the right-of-way is situated on the Glendora side. Since Glendora did not want the responsibility for maintaining a street that does not serve its citizens, the attached maintenance agreement was drafted that essentially provides for the following: a. As long as Glendora does not use the Citrus Ave. extension, Azusa will pay 100% of the maintenance cost of the street and related facilities. b. When significant Glendora traffic begins using the subject street, or a Glendora street is connected to the Citrus Ave. extension, a traffic study would be prepared to determine fair share responsibility for maintenance cost, with appropriate maintenance cost adjustments made. The cost of the study would be shared by both cities. c. Glendora will maintain the street, and would bill the City of Azusa. d. Azusa may at any time audit Glendora's maintenance cost records. 3. Citrus Ave. Bridge Agreement. This agreement pertains to the railroad underpass that will be constructed by ALP pursuant to their entitlements. This bridge over Citrus Ave. straddles the City boundary, with one bridge abutment located in Azusa, and the other in the City of Glendora. For this reason, both cities must execute the agreement, along with the SCRRA (Southern California Regional Rail Authority, who maintains all railroad facilities for MTA), Pasadena Blue Line Construction Authority (constructing the Gold Line), and Azusa Land Partners. The agreement generally provides for the following: a. ALP will provide all construction and arrange for funding necessary to build the bridge structure. The construction will be funded via the CFD. b. Azusa and Glendora will both be granted easements for roadway purposes for the street right of way below the bridge. c. The Los Angeles to Pasadena Blue Line Construction Authority will own the underpass after construction, and will be responsible for the maintenance of the bridge structure and abutments. 4. Palm Drive Brid e Aareemenr. This agreement is identical to the Citrus Ave bridge agreement, except that it applies to the underpass that will be constructed over Palm Drive. Glendora is not a party to this agreement. 5. [pint Community Facilities Agreement J1CFA]. The Community Facilities District to be formed will finance various improvements that ultimately will be conveyed and maintained by other agencies. In order to accomplish this, JCFAs must be executed with the affected agencies. This agreement provides for the construction and conveyance of certain improvements to the City of Glendora, including the Citrus Ave. utility and street improvements, the Sierra Madre Ave. water line, and a possible traffic signal at Citrus Ave. and Foothill Blvd., should one be necessary. The bridge designs have been plan checked and are ready to be approved from a structural standpoint. However, the aesthetic design of both bridges must still be submitted by ALP for approval by both cities. FISCAL IMPACT The execution of these agreements would bind the City to ongoing maintenance of Citrus Ave. and its related facilities, and maintenance of the detention basin inlets. However, these maintenance items are not extraordinary, and would exist even without these agreements, were it not for the multi - jurisdictional issues. The cost of maintaining the public rights of way of the project was included in the Monrovia Nursery Fiscal Impact Study, which assumed that the General Fund would fund this City service through increased revenues generated by the new Rosedale development. COST SHARING AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF AZUSA AND THE CITY OF GLENDORA (EXTENSION OF CITRUS AVENUE AND RELATED IMPROVEMENTS) 1. PARTIES AND DATE. This Cost Sharing and Maintenance Agreement ("Agreement") is made and entered into this __15th_ day of Ma , 2006 by and between the City of Azusa, a California municipal corporation located at 213 East Foothill Boulevard, Azusa, California 91702, ("Azusa") and the City of Glendora, a California municipal corporation located at 116 East Foothill Boulevard, Glendora, California 91741 ("Glendora"). Azusa and Glendora are sometimes individually referred to as "Party" and collectively as "Parties" in this Agreement 2. RECITALS. 2.1 Monrovia Nursery Project. On February 3, 2003, the Azusa City Council certified the EIR for the Monrovia Nursery Specific Plan, for development of the approximate 489 - acre Monrovia Nursery site primarily located in the City of Azusa. The Specific Plan provides for development of up to 1,250 dwelling units, 50,000 square feet of commercial space, parks, open space and a school ("Project"). 2.2 Settlement Agreement. In response- to concerns expressed by the City of Glendora, Azusa agreed to incorporate certain modifications and conditions to the Project including the construction of a railroad bridge and grade -separated crossing of the Citrus Ave. extension. On or about March 18, 2003, Azusa, Monrovia Nursery Company, and Glendora entered into a Settlement Agreement addressing Glendora's concerns regarding the EIR. 2.3 Citrus Avenue Extension and Improvements. The developer of the Monrovia Nursery Project ("Developer") desires to develop the Project in accordance with the approved entitlements and the Settlement Agreement. One of the conditions of approval of the Settlement Agreement requires the Developer to construct certain street improvements, including an extension of an existing street known as "Citrus Avenue" and other street improvements ("Citrus Avenue Extension and Improvements") within the corporate boundaries of the City of Glendora, in a manner acceptable to the Glendora City Engineer. Furthermore, the Project also includes the construction of a grade -separated railroad crossing and bridge structure. 2.4 Additional Benefits to Glendora. The Citrus Avenue Extension and Improvements are meant to accommodate southeasterly access to the proposed Project, and will also accommodate and benefit future development in the City of Glendora. 2.5 General Purpose of Agreement. Since the Citrus Avenue Extension and Improvements will (1) require immediate acceptance into the Glendora street system by the City of Glendora; and (2) require immediate maintenance by the City of Glendora prior to the time Glendora directly benefits from the Citrus Avenue Extension and Improvements, the Parties have agreed to enter into an agreement to delineate the timing and apportionment of the maintenance ORANGE\MXMI7480.1 I obligations for the Citrus Avenue Extension and Improvements upon the terms and conditions set forth in this Agreement. 3. DEFINITIONS. 3.1 "Citrus Avenue Extension and Improvements." "Citrus Avenue Extension and Improvements," as used in this Agreement refers to the portion of Citrus Ave. to be extended from the future Monrovia Place to Foothill Blvd. 3.2 "Maintenance" or "Maintain." "Maintenance" or "Maintain," as used in this Agreement, means repair, replacement or removal of any of the following items related to the Citrus Avenue Extension and Improvements: sidewalks, retaining walls, sump pumps, pavement, curb & gutter, catch basins, graffiti, parkways, lighting, striping, sewer and storm drain. 3.3 "Maintenance Costs" "Maintenance Costs" as used in this Agreement, means the costs associated with the repair, replacement or removal of any of the following items related to the Citrus Avenue Extension and Improvements, including, but not limited to maintenance, repair or replacement of sidewalks, retaining walls, pavement, curb & gutter, catch basins, graffiti, parkways, lighting, striping, sump pumps, sewers and storm drains. 4. TERMS. 4.1 Recitals. The Parties agree that the Recitals stated above are true and correct. The Recitals and Exhibits are hereby incorporated herein and made an operative part of this Agreement. 4.2 Acceptance by Glendora. Glendora shall undertake all actions necessary to secure acceptance of the Citrus Avenue Extension and Improvements and related rights-of-way located within the boundaries of the City of Glendora into the Glendora street system. Glendora's acceptance of the Citrus Avenue Extension and Improvements shall be contingent upon finding that the Citrus Avenue Extension and Improvements were constructed in accordance with Glendora's standard specifications for such streets and improvements, as approved by the Glendora City Engineer in accordance with the Settlement Agreement. Glendora's acceptance shall not be unreasonably withheld. 4.3 Cost Sharing. The Parties agree to share the Maintenance Costs of the Citrus Avenue Extension and Improvements as set forth below: 4.3.1 Azusa. Azusa shall pay one hundred percent (100%) of the Maintenance Costs for the Citrus Avenue Extension and Improvements beginning on the date of acceptance by the City of Glendora of the Citrus Avenue Extension and Improvements into the Glendora street system. Azusa's obligation to pay one hundred percent of the Maintenance Costs shall remain in effect until such time that traffic generated by Glendora commences use of the Citrus Avenue Extension and Improvements. In order to determine this, a traffic study shall be performed that apportions the traffic that may be using the Citrus Avenue Extension and Improvements ("Traffic Study") between traffic generated in Azusa and traffic generated in Glendora, as a basis to ascertain a fair share allocation of maintenance cost. The Traffic Study shall be prepared by a qualified consultant acceptable to Azusa and Glendora and shall be prepared at any time after, ORANGE\MXM\17480.1 2 but no sooner than, the one-year anniversary of the acceptance by Glendora of the Citrus Avenue Extension and Improvements into the Glendora street system, but not later than the two-year anniversary of such acceptance. The total costs of the Traffic Study shall be shared by Azusa and Glendora on an equal basis and both Parties shall provide input into the preparation of such Traffic Study prior to its preparation. Thirty days (30) after the completion of the Traffic Study, Glendora and Azusa shall share the Maintenance Costs in accordance with the percentage of traffic generated in each jurisdiction as identified in the Traffic Study. 4.3.2 Glendora. Notwithstanding section 4.3.1, above, the traffic study to determine apportionment of maintenance cost shall be undertaken when Glendora constructs a street within its jurisdiction with a direct or indirect connection and access to the Citrus Avenue Extension. 4.3.3 Determination of Maintenance Cost. A Maintenance Cost Study shall be prepared in conjunction with the Traffic Study referenced in Section 4.3.1 to determine the cost to maintain the Citrus Avenue Extension and Improvements. The Maintenance Cost Study may be prepared by a qualified consultant or by or on behalf of the designated representatives identified in Section 4.7 and 4.8 of this Agreement at the discretion of the designated representatives. If the Maintenance Cost Study is undertaken by a consultant, the same cooperative procedure for undertaking the Traffic Study described in Section 4.3.1 shall be used in undertaking the Maintenance Cost Study. 4.3.4 Request for Reapportionment StudX Either party may from time to time request a Traffic Study and associated Maintenance Cost Study as described above, to reevaluate the apportionment of the maintenance costs. The parties shall each pay its proportionate share of the cost of such studies. 4.4 Term. The term of this Agreement shall be twenty years from May 15, 2006, unless earlier terminated as provided herein. The Parties shall meet all the responsibilities established under this Agreement. 4.5 Responsibilities of Azusa. 4.5.1 Pa ent. Azusa agrees to pay to Glendora its portion of the Maintenance Costs within sixty (60) days of receipt of an invoice from Glendora. The invoice shall reflect a payment obligation that is in compliance with Section 4.3. 4.6 Responsibilities of Glendora. 4.6.1 Maintenance. Glendora agrees to maintain the Citrus Avenue Extension and Improvements using the same maintenance standards as other similar streets in Glendora, and in accordance with the standards set forth in the Maintenance Study described in Section4.3.3. ORANGE\MXM&17480.1 3 4.6.2 Billing. Glendora agrees to submit quarterly invoices to Azusa which detail (i) the total maintenance costs for the preceding quarter and (ii) Azusa's due and payable apportioned share of those Maintenance Costs in accordance with Section 4.3. 4.6.3 Maintenance and Inspection. Glendora shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Glendora shall allow a representative of Azusa during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Glendora agrees to allow inspection of all work, data, documents, proceedings, and activities related to the Agreement. 4.6.4 Standard of Care, Performance of Employees. Glendora shall perform all maintenance obligations under this Agreement in a skillful and competent manner, consistent with the standards employed for other streets in the Glendora street system. Glendora represents and warrants that it will use employees, contractors and subcontractors that possess the skill in the professional calling necessary to perform the maintenance obligations required under this Agreement. Finally, Glendora agrees and represents that it, its employees, contractors and subcontractors shall be required to have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the maintenance obligations. 4.7 Azusa's Representative. Azusa hereby designates its City Manager or designee to act as its representative for the performance of this Agreement ("Azusa's Representative"). Azusa's Representative shall have the power to act on behalf of the Azusa for all purposes under this Contract. Glendora shall not accept direction or orders from any person other than the Azusa's Representative. 4.8 Glendora's Representative. Glendora hereby designates its City Manager, or his or her designee, to act as its representative for the performance of this Agreement ("Glendora's Representative"). Glendora's Representative shall have full authority to represent and act on behalf of the Glendora for all purposes under this Agreement. 4.9 Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: GLENDORA: City of Glendora 116 East Foothill Blvd. Glendora, CA 91741 Attn: City Manager ORANGE\MXM\17480.1 4 AzuSA: City of Azusa 213 East Foothill Boulevard, Azusa, CA 91702 Attn: City Manager Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the parry at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 4.10 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 4.11 Indemnification. (a) Azusa shall defend, indemnify and hold Glendora, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of the Azusa, its officials, officers, employees, agents, consultants and subcontractors arising out of or in connection with the performance of the this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Azusa shall defend, at Azusa's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Glendora, its directors, officials, officers, employees, agents or volunteers. Azusa shall pay and satisfy any judgment, award or decree that may be rendered against Glendora or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Azusa shall reimburse Glendora and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Azusa shall not be required to indemnify and hold harmless Glendora for liability attributable to the sole fault of Glendora, provided such fault is determined by agreement between the Parties or the findings of a court of competent jurisdiction. In cases where it has been shown that Glendora is shown to have been at fault and where Glendora's fault accounts only for a percentage of the liability involved, the obligation of Glendora will be for that entire portion or percentage of liability not attributable to the fault of the Azusa. (b) Glendora shall defend, indemnify and hold Azusa, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions or willful misconduct of Glendora, its officials, officers, employees, agents, consultants and subcontractors arising out of or in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Glendora shall defend, at Glendora's own cost, ORANGE\MXM\17480.1 5 expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Azusa, its directors, officials, officers, employees, agents or volunteers. Glendora shall pay and satisfy any judgment, award or decree that may be rendered against Azusa or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Glendora shall reimburse Azusa and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Glendora's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Azusa, its directors, officials officers, employees, agents or volunteers. Glendora shall not be required to indemnify and hold harmless Azusa for liability attributable to the sole fault of the Azusa, provided such fault is determined by agreement between the Parties or the findings of a court of competent jurisdiction. In cases where it has been shown that the Azusa is shown to have been at fault and where the Azusa's fault accounts only for a percentage of the liability involved, the obligation of the Azusa will be for that entire portion or percentage of liability not attributable to the fault of the Glendora. 4.12 Attorneys' Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs and expenses of such action. 4.13 Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may only be modified in writing signed by both Parties. 4.14 Governing Law; Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a court of competent jurisdiction situated in Los Angeles County, California. 4.15 Construction; References; Captions. Since the Parties or their agents have participated fully in preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 4.16 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 4.17 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 4.18 Authority to Enter Contract. Each Party represents that they are fully competent and capable to execute, deliver, and perform this Agreement. ORANGE\MXM\17480.1 6 4.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. CITY OF AZUSA CITY OF GLENDORA By: By: Mayor Mayor Attest: Attest: L ' City Clerk C t Cle Approved as to Form: Approved as to -Form: By: V' City Attorney City Attorney ORANGEWXIvT\17480.1 7 4.19 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. CITY OF AZUSA CITY OF GLENDORA By: Mayor Mayor Attest: Attest: City Clerk City Clerk Approved as to Form: By: _7�- P.'(yMmplt,a- City Attorney Approved as to Form: ORANGE\bAM17480.1 7 City Attorney JOINT COMMUNITY FACILITIES AGREEMENT (CITY OF GLENDORA) THIS JOINT COMMUNITY FACILITIES AGREEMENT (the "Agreement") is entered into this 15th day of May, 2006, by and among the CITY OF AZUSA, a general law city existing under the laws of the State of California ("Azusa"), the CITY OF GLENDORA, a general law city existing under the laws of the State of California ("Glendora"), and AZUSA LAND PARTNERS, LLC, a Delaware limited liability company ("Company"), and relates to the proposed formation of a Community Facilities District for the Rosedale Project (the "CFD") for the purpose of financing certain public facilities, including facilities to be ultimately owned and operated by Glendora. RECITALS A. The Company is developing approximately 1,250 residential units on approximately 317 acres of land commonly known as the "Rosedale Project" (the "Property") located in Azusa. B. The Company has requested that the City Council of Azusa initiate proceedings to form the CFD pursuant to the provisions of the Mello -Roos Community Facilities Act of 1982, Chapter 2.5 (commencing with Section 53311) of Part 1 of Division 2 of Title 5 of the California Government Code (the "Act"). C. The Company has requested and proposed that the CFD be formed for the purpose of providing the means of financing the acquisition of, among other things, the public facilities described in Exhibit A hereto, together with appurtenances and appurtenant work (the "Acquisition Facilities"). Upon the construction of the Acquisition Facilities by or on behalf of the Company and the inspection and the acceptance thereof by Glendora, the Acquisition Facilities will be owned and operated by Glendora. D. Glendora will maintain the Sierra Madre — 30" Waterline following the transfer of ownership thereto. The parties will maintain the other Acquisition Facilities pursuant to the Cost Sharing and Maintenance Agreement Between the City of Azusa and the City of Glendora (Extension of Citrus Avenue and Related Improvements). E. The Company has not yet determined that it will finance any or all of the Acquisition Facilities, and the parties acknowledge that this Agreement is for the purpose of meeting the requirements of the Act. F. Upon execution of this Agreement, the Company shall make a one-time deposit with Glendora in the amount mutually agreed to by the Company and the City to cover the costs of the review of the Plans and Specifications (as defined herein) and inspection by or on behalf of Glendora, which deposit shall be reimbursed to the Company by the CFD as part of the purchase price of the Acquisition Facilities (the "Inspection Deposit"). A-1 G. The Act provides that the CFD may finance the Acquisition Facilities only pursuant to a joint community facilities agreement adopted pursuant to Government Code Section 53316.2. H. Azusa and Glendora have determined that entering into a joint community facilities agreement to enable the CFD to finance some or all of the acquisition of the Acquisition Facilities will be beneficial to the residents of each entity and, therefore, desire to enter into this joint community facilities agreement pursuant to Government Code Section 53316.2. I. Nothing'contained herein shall be construed as requiring the Company to take any specific action or deliver any specific Acquisition Facility or for Azusa to form the CFD and issue special tax bonds, provided that the purchase price for the Acquisition Facilities shall only be paid pursuant to the terms of this Agreement. J. Nothing contained herein alters the Company's obligation to construct the Acquisition Facilities pursuant to its development approvals and the Settlement Agreement (Monrovia Nursery Specific Plan and Environmental Impact Report) dated March 18, 2003, by and among Glendora, Azusa and Monrovia Nursery Company, a California corporation (the predecessor in interest to the Company). AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein the parties hereto agree as follows: 1. Recitals. Each of the above recitals is incorporated herein and is true and correct. 2. Proceedings for the Formation of CFD; Costs of Formation. The City Council of Azusa shall have the jurisdiction to and shall be solely responsible for undertaking the proceedings to consider the formation of the CFD and the authorization for the CFD to levy special taxes within the CFD and to incur a bonded indebtedness pursuant to the Act. The CFD may be formed in one or more improvement areas (each an "Improvement Area"). Glendora is not directly or indirectly approving or responsible in any way whatsoever for the levy of special taxes within the CFD nor is Glendora directly or indirectly approving or responsible in any way whatsoever for the issuance of bonds by the CFD. Glendora shall not be responsible in any way whatsoever for the costs of formation of the CFD. 3. Construction. The Company will complete the design of the Acquisition Facilities that the parties later determine will be acquired and the plans and specifications for the construction of such Acquisition Facilities (the "Plans and Specifications") with a portion of the proceeds of the CFD Bonds (the "Bonds") or with the special taxes collected in the CFD (the "Special Taxes"). Upon approval of the Plans and Specifications by Glendora, the Company shall provide Glendora with a copy of the completed Plans and Specifications. Notwithstanding any sale of Bonds, Glendora may draw upon the Inspection Deposit to pay any fees incurred to review the Plans and Specifications. Construction of the Acquisition Facilities shall be in public rights-of-way or on land that will be deeded, with Acceptable Title (as defined herein), upon OA completion and acceptance. Any facility constructed pursuant to this Agreement shall remain the property of the Company until accepted by Glendora. The Company may proceed with the construction of the Acquisition Facilities in accordance with the provisions of Section 4 hereof. The Bonds may be issued in one or more series, within one or more Improvement Areas. The "Actual Costs" of the Acquisition Facilities are eligible to be paid from the proceeds of the sale of the Bonds or the Special Taxes. The term "Actual Costs" means the substantiated cost of an Acquisition Facility, which costs may include: (i) the costs incurred by the Company for the construction of such Acquisition Facility, (ii) the costs incurred by the Company in preparing the Plans and Specifications for such Acquisition Facility and the related costs of environmental evaluations of the Acquisition Facility, (iii) the fees paid to governmental agencies for obtaining permits, licenses or other governmental approvals for such Acquisition Facility, (iv) a construction and project management fee of five percent (5%) of the costs described in clause (i) above incurred for the construction of such Acquisition Facility, (v) professional costs incurred by the Company associated with such Acquisition Facility, such as engineering, legal, accounting, inspection (including the Inspection Deposit), construction staking, materials testing and similar professional services; and (vi) costs directly related to the construction and/or acquisition of an Acquisition Facility, such as costs of payment, performance and/or maintenance bonds, and insurance costs (including costs of any title insurance required hereunder), all as authorized under the Act. Glendora shall not be responsible for conducting any environmental, archaeological, biological or cultural studies or any mitigation requirements that may be requested by appropriate Federal, State and/or local agencies. Any such work shall be paid for and conducted by Company. 4. Public Works Requirements. In order to insure that the Acquisition Facilities will be constructed as if they had been constructed under the direction and supervision, or under the authority of, Glendora, so that they may be acquired by Glendora pursuant to Government Code Section 53313.5, the Company shall comply with all of the following requirements with respect to any Acquisition Facilities to be financed with proceeds of the Bonds or the Special Taxes: (a) The Company shall publicly advertise for bids from firms reasonably determined by Company to be qualified to construct the Acquisition Facilities in conformance with the Plans and Specifications. (b) The contract or contracts for the construction of the Acquisition Facilities shall be awarded to the responsible bidder(s) submitting the lowest responsive bid(s) for the construction of the Acquisition Facilities. (c) The Company shall require, and the specifications and bid and contract documents shall require, all such contractors to pay prevailing wages and to otherwise comply with applicable provisions of the Labor Code, the Government Code and the Public Contract Code to the extent expressly applicable to a non-governmental entity constructing infrastructure to be acquired by a public entity. 3 (d) Said contractors shall be required to furnish labor and material payment bonds and contract performance bonds in an amount equal to 100% of the contract price naming the Company and Glendora as obligees. Rather than requiring its contractors to provide such bonds, the Company may elect to provide same for the benefit of its contractors. (e) All such contractors shall meet the insurance requirements described in Section 15 throughout the term of the construction of the Acquisition Facilities which they will construct in conformance with the approved Plans and Specifications. The Company shall furnish certificates of insurance and endorsements for each contractor at least five (5) days prior to the contractor entering the job site, or the Company shall furnish an endorsement including all contractors as insureds under its policies. (f) The Company and all such contractors shall comply with such other requirements relating to the construction of the Acquisition Facilities to the extent required as a result of changes in applicable laws, during the progress of construction thereof. The Company shall be deemed the awarding body and shall be solely responsible for compliance and enforcement of the provisions of the Labor Code, the Government Code and the Public Contract Code to the extent expressly applicable to a non-governmental entity constructing infrastructure to be acquired by a public entity. (g) All responsibility for compliance with this Section 4 lies with the Company. Notwithstanding anything to the contrary contained herein, the requirements of this Section 4 are conditions for financing an Acquisition Facility with the proceeds of the Bonds or the Special Taxes, but should the Company elect not to finance an Acquisition Facility with the proceeds of the Bonds or the Special Taxes, the Company shall not be required to comply with this Section 4. 5. Inspection; Completion of Construction. Glendora shall have primary responsibility for providing inspection of the work of construction of the Acquisition Facilities to insure that the work of construction is accomplished in accordance with the Plans and Specifications. Glendora's personnel shall have access to the construction site at all reasonable times for the purpose of accomplishing such inspection. Upon the completion of the construction of the Acquisition Facilities, the Company shall notify Glendora in writing that the construction of the Acquisition Facilities has been completed in accordance with the Plans and Specifications. For each such notice, Glendora shall pay all related inspection fees by drawing upon the Inspection Deposit. Glendora shall maintain written records of all such draws. As an Actual Cost, the CFD will include the full amount of the Inspection Deposit in the purchase price of the Acquisition Facilities. If, for any reason, the Acquisition Facilities are not purchased by the CFD, the full amount of the Inspection Deposit remaining unexpended shall be remitted to the Company. Upon receiving such written notification from the Company, and upon receipt of written notification from its inspectors, and upon Glendora being satisfied that construction of the Acquisition Facilities has been completed in accordance with the Plans and Specifications and Glendora's standard requirements, Glendora shall, within 15 calendar days, notify the Company in writing that the construction of the Acquisition Facilities has been satisfactorily completed. 4 Upon receiving such notification, the Company shall file with the County Recorder of the County of Los Angeles (the "County Recorder") a Notice of Completion pursuant to the provisions of Section 3093 of the Civil Code. The Company shall furnish to Glendora a duplicate copy of each such Notice of Completion showing thereon the date of filing with the County Recorder. 6. Liens. Upon the expiration of the time for the recording of claim of liens as prescribed by Sections 3115 and 3116 of the Civil Code, the Company shall provide to Glendora evidence that all persons, firms and corporations supplying work, labor, materials, supplies and equipment for the construction of the Acquisition Facilities have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm or corporation. Rather than await the expiration of the said time for the recording of claims of liens, the Company may elect to provide to Glendora a title insurance policy or other security guaranteeing that no such claims of liens will be recorded or become a lien upon the property. 7. Acquisition Acceptable Title, Acquisition Price; Source of Funds. (a) Provided the Company has complied with the requirements of this Agreement, Glendora agrees to acquire any Acquisition Facilities constructed by the Company. Notwithstanding the above, nothing herein shall be construed as requiring Company to construct or deliver any Acquisition Facility. The price to be paid by the CFD for the acquisition of the Acquisition Facilities shall be the total of the Actual Costs incurred by the Company to design, engineer and construct the Acquisition Facilities, including a 5% construction management cost and the Inspection Deposit. As a condition to the payment of such acquisition price, the Company shall (i) transfer ownership of the Acquisition Facilities to Glendora by grant deed, bill of sale or such other documentation as appropriate; and (ii) deliver a copy of the recorded documents conveying to Glendora "Acceptable Title" (as defined below) to the real property on, in or over which such Acquisition Facility is located. "Acceptable Title" shall mean title to land or interest therein, in form acceptable to Glendora, which title or interest is free and clear of all liens, taxes, assessments, leases, easements and encumbrances, whether or not recorded, unless any such liens or exceptions are determined by Glendora as not interfering with the actual or intended use of the land or interest therein. Notwithstanding the foregoing, an irrevocable offer of dedication may constitute land with an "Acceptable Title" if such offer is in a form acceptable to Glendora. Upon the request of Glendora, the Company shall furnish to Glendora a preliminary title report for land with respect to Acquisition Facilities to be acquired by Glendora and not previously dedicated or otherwise conveyed to Glendora, for review and approval at least fifteen (15) calendar days prior to the transfer of Acceptable Title of an Acquisition Facility to Glendora. Glendora shall approve the preliminary title report unless it reveals a matter which, in the judgment of Glendora, could materially affect the Glendora's use and enjoyment of any part of the property or easement covered by the preliminary title report for the purpose for which the property or easement is being conveyed. In the event Glendora does not approve the preliminary title report, Glendora shall not be obligated to accept title to such Acquisition Facility and the CFD shall not be obligated to pay the purchase price for such Acquisition Facility until the Company has cured such objections to title to the satisfaction of Glendora. Wi Upon the transfer of ownership of the Acquisition Facilities, Glendora shall promptly authorize Azusa in writing (which shall be a requisition form required by Azusa) to pay to the Company the purchase price of the Acquisition Facilities. (b) Upon completion of the construction of the Acquisition Facilities, the Company shall deliver to the CFD and Glendora copies of the contract(s) with the contractor(s) who have constructed the Acquisition Facilities or other relevant documentation with regard to the payments made to such contractor(s) for the construction of the Acquisition Facilities, and shall also provide to the CFD and Glendora invoices and purchase orders with respect to all supplies and materials purchased for the construction of the Acquisition Facilities. (c) Notwithstanding the preceding provisions of this section, the sole source of funds for the acquisition by Glendora of the Acquisition Facilities or any portion thereof shall be the proceeds from the sale of the Bonds (if sold for such purpose) made available by the CFD for such purpose pursuant to Section 2 above or the Special Taxes. (d) Azusa, Glendora and the Company acknowledge that (i) to the extent the Company has constructed and Glendora has accepted (for payment purposes) all or any part of the Acquisition Facilities, the Company may submit to Azusa a requisition for payment (a "Requisition") for such Acquisition Facilities for reimbursement from the proceeds of the initial series issuance of the Bonds; (ii) the Company may be constructing Acquisition Facilities prior to the issuance of any Additional Bonds the proceeds of which will be used to reimburse the Company for those Acquisition Facilities not funded from the initial series of the Bonds; (iii) the Company may be submitting Requisitions to Azusa in advance of such an issuance of the additional Bonds, with knowledge that there may be insufficient funds then available for reimbursement; (iv) irrespective of the availability of amounts available to the CFD to pay for such Acquisition Facilities, Glendora shall inspect and review the Acquisition Facilities as set forth in this Agreement, and, if such Acquisition Facilities are acceptable, Glendora will provide written acknowledgment (the "City Acknowledgment") that the Acquisition Facilities have been completed in accordance with the approved Plans and Specifications and this Agreement; and (v) the payment of any Requisitions will be deferred until the date, if any, on which there are amounts available to make all or part of such payment, at which time Azusa will direct the Fiscal Agent to wire transfer (or pay in another mutually acceptable manner) to the payee(s) identified in such Requisitions. The Requisitions may be (i) paid in increments as funds become available from Bond or special tax proceeds, and (ii) paid out of the proceeds of any series of Bonds or Special Taxes collected in any Improvement Area. The Company may pay for the Acquisition Facilities prior to the issuance of Bonds or when there are insufficient funds to reimburse the Company for such payment. Any Acquisition Facilities constructed by the Company shall be made with the understanding that, upon acceptance of such Acquisition Facilities by Glendora, such Acquisition Facilities shall be reimbursed from (i) the proceeds of the Bonds if, and when, Bonds are issued, (ii) Special Taxes levied in the CFD, or (iii) funds otherwise available in the applicable funds of the CFD. The acceptance by Glendora of the Acquisition Facilities prior to the issuance of Bonds or when there are insufficient funds to reimburse the Company for such payment, shall not be construed as a dedication or gift of the Acquisition Facilities, or a waiver of reimbursement of such Acquisition Facilities. Z 8. Easements and/or Fee Title Ownership Deeds. The Company shall, at the time Glendora acquires the Acquisition Facilities as provided in Section 7 hereof, grant Acceptable Title to Glendora, by appropriate instruments prescribed by Glendora, all easements across private property and/or fee title ownership deeds which may be necessary for the proper operation and maintenance of the improvements, or any part thereof. 9. Maintenance. On or before the acceptance date of the Acquisition Facilities, the Company shall assign to Glendora all of the Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent obligations of third persons with respect to such Acquisition Facilities. The Company shall provide a warranty bond reasonably acceptable in form and substance to the City Manager of Glendora for one-year after the acceptance date of the Acquisition Facilities, to insure that defects, which appear within said period will be repaired, replaced, or corrected by the Company, at its own cost and expense, to the satisfaction of the City Manager of Glendora. The Company shall commence to repair, replace or correct any such defects within thirty (30) days after written notice thereof by Glendora to the Company, and shall complete such repairs, replacement or correction as soon as practicable. After such one-year period, the warranty bond shall be released. Prior to the transfer of ownership of the Acquisition Facilities by the Company to Glendora, as provided in Section 7 hereof, the Company shall be responsible for the maintenance thereof and shall maintain and transfer the Acquisition Facilities to Glendora in as good condition as the Acquisition Facilities were in at the time the Company notified Glendora that construction of same had been completed in accordance with the Plans and Specifications. Upon the transfer of ownership of the Citrus Avenue Water, Sewer, Storm Drain, and Street Improvements and the Citrus/Foothill Traffic Signal, the maintenance and inspection thereof will be governed by the Cost Sharing and Maintenance Agreement Between the City of Azusa and the City of Glendora (Extension of Citrus Avenue and Related Improvements). Upon the transfer of ownership of the Sierra Madre — 30" Waterline, Glendora shall be responsible for the maintenance thereof. 10. Inspection of Records. Glendora and Azusa shall have the right to review all books and records of the Company pertaining to costs and expenses incurred by the Company for the design and construction of the Acquisition Facilities during normal business hours by making arrangements with the Company. The Company shall have the right to review all books and records of Glendora pertaining to costs and expenses incurred by Glendora by making arrangements with Glendora. Company shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information that relate to the performance of services under this Agreement. Company shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. 11. Ownership of Facilities. Notwithstanding the fact that some or all of the Acquisition Facilities may be constructed in dedicated street rights-of-way or on property which has been or will be dedicated to Glendora, the Acquisition Facilities shall be and remain the 7 property of the Company until acquired by Glendora as provided in Section 7 hereof. Such ownership by the Company shall likewise not be affected by any agreement which the Company may have entered into or may enter into with Azusa pursuant to the provisions of the Subdivision Map Act, Section 66410 et seq. of the Government Code, and Company warrants that nothing in this Agreement is contrary to any contractual agreements Company has with Los Angeles County. 12. Improvement Security; Maintenance Bond. Notwithstanding the provisions of this Agreement, the Company shall be required to secure the construction and completion of construction of the Acquisition Facilities as required by Section 66499 through 66499.10 of the Government Code. The Company's obligations pursuant to this section may be satisfied through the contract performance bonds to be provided by the Company's contractor(s) pursuant to Section 4(d) hereof. 13. Independent Contractor. In performing this Agreement, the Company is an independent contractor and not the agent of Azusa or Glendora. Neither Azusa nor Glendora shall have any responsibility for payment to any contractor or supplier of the Company. It is not intended by the parties that this Agreement create a partnership or joint venture among them and this Agreement shall not otherwise be construed. The personnel performing the services under this Agreement on behalf of Company shall at all times be under Company's exclusive direction and control. Neither Azusa, Glendora, nor any of their officers, employees or agents shall have control over the conduct of Company or any of Company's officers, employees or agents, except as set forth in this Agreement. Company shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of Azusa or Glendora. Company shall not incur or have the power to incur any debt, obligation or liability whatever on behalf of or against Azusa or Glendora, or bind Azusa or Glendora in any manner. 14. Indemnification. Company represents that it will employ professionals that are skilled in the professional calling necessary to perform the services and duties agreed to hereunder by Company, and Glendora relies upon the representation that the Company will employ parties with such skills and knowledge. Company shall perform, or cause to be performed, such services and duties consistent with the standards generally recognized as being employed by professionals performing similar services in the State of California. Glendora, its elected and appointed officials, officers, agents, employees and volunteers (individually and collectively, "Indemnitees") shall have no liability to Company or to any other person for, and Company shall indemnify, defend, protect and hold harmless the Indemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively, "Claims"), which the Indemnitees may suffer or incur or to which the Indemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of the acts or omissions of Company, its agents, officers, directors or employees, in performing any of the services under this agreement. 8 If any action or proceeding is brought against the Indemnitees by reason of any of the matters against which Company has agreed to indemnify the Indemnitees as above provided, Company, upon notice from Glendora, shall defend the Indemnitees at Company's expense by counsel acceptable to Glendora. The insurance required to be maintained by Consultant under Section 15 shall ensure Company's obligations under this Section 14, but the limits of such insurance shall not limit the liability of the Company hereunder. The provisions of this Section 14 shall survive the expiration or earlier termination of this agreement. Notwithstanding the foregoing, the Company shall not be obligated to indemnify or hold harmless any Indemnitee for the negligence or willful misconduct of Glendora, its elected and appointed officials, officers, agents, employees and volunteers. 15. Insurance. Prior to the commencement of construction of the Acquisition Facilities, and at all times 'during construction of the Acquisition Facilities, the Company agrees to maintain, or cause its contractors to maintain, the following insurance with a current A.M. Best's rating of no less than A:VII: (a) Worker's Compensation insurance covering employees of the Company in such amounts as required by law. (b) Commercial General Liability insurance in the amount of Five Million Dollars ($5,000,000), naming Glendora as an additional insured. (c) Errors and Omissions liability insurance maintained by consultants providing professional services in the amount of One Million Dollars ($1,000,000) per occurrence. (d) Automobile liability insurance in the amount of Two Million Dollars ($2,000,000) per accident for bodily injury and property damage. (e) The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. Glendora, its officers, officials, employees and volunteers to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Company; products and completed operations of the Company; premises owned, occupied or used by the Company; or automobiles owned, leased, hired or borrowed by the Company. The coverage shall contain no special limitations on the scope of protection afforded to Glendora, its officers, officials, employees or volunteers. 2. For any claims related to this project, the Company's insurance coverage shall be primary insurance as respects Glendora, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the Company, its officers, officials, employees or volunteers shall be excess of the Company's insurance and shall not contribute with it. 9 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to Glendora, its officers, officials, employees or volunteers. 4. The Company's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after 30 day's prior written notice by Certified Mail, Return Receipt Requested, has been given to Glendora. (f) Company shall furnish the Glendora City Manager annually with original endorsements affecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms acceptable to Glendora. All endorsements are to be received and approved by Glendora before work commences. As an alternative to the Glendora forms, the Company's insurer may provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications in the form of a Certificate of Insurance. (g) The Company's obligations pursuant to this section shall cease upon the acquisition of the Acquisition Facilities by Glendora as provided in Section 7 hereof. 16. Governmental Use of Facilities. Glendora shall use the Acquisition Facilities in a manner that will not cause interest on the Bonds to become included in gross income of the holders thereof for federal income tax purposes. Glendora represents the following with respect to the use of the Acquisition Facilities: (a) In General. The Acquisition Facilities will be used for "General Public Use" only. The term "General Public Use" exists only if the property is intended to be available to members of the general public on an equal basis and is in fact reasonably available for use on the same basis by natural persons not engaged in a trade or business. Should Glendora wish to change such use, it will first obtain an opinion of bond counsel to the effect that the exemption of interest from gross income of the Bonds will not be adversely affected. As of the date hereof, no portion of the Acquisition Facilities is expected to be used to provide property subject to contracts or other arrangements with persons or entities engaged in a trade or business (other than governmental units) that involve the management of property or the provision of services. 17. Assam. The Company may assign its rights pursuant to this Agreement to one or more purchasers of the Property (other than individual homeowners) who shall be the owner of all or a portion of the Acquisition Facilities and to whom the Company shall assign the right to receive payment of the acquisition price for the Acquisition Facilities. Such a purchaser and assignee shall, as a condition to receiving payment of such acquisition price, enter into an assignment agreement with Glendora and Azusa, in a form acceptable to Glendora and Azusa, 10 whereby such purchaser agrees, except as may be otherwise specifically provided therein, to assume the obligations of the Company pursuant to this Agreement and to be bound thereby. Notwithstanding the foregoing, this Section 17 shall not apply to the sale of any residence to a homeowner. 18. Non-Discrinination Clause. Company shall not discriminate, in any way, against any person on the basis of race, religious creed, color, national origin, ancestry, sex, age, physical handicap, medical condition or marital status in connection with or related to the performance of this Agreement and shall comply with the provisions of the State Fair Employment Practices Act as set forth in Part 4.5 of the Division 2 of the California Labor Code; the Federal Civil Rights Act of 1964, as set forth in Public Law 88-352, and all amendments thereto; Executive Order No. 11246; and all administrative rules and regulations issued pursuant to such acts and order. 19. UFiautliorized Aliens. Company hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. & 1101, et seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Company so employ such unauthorized aliens for the performance of work and/or services covered by this contract, and should the Federal Government impose sanctions against Glendora for such use of unauthorized aliens, Company hereby agrees to, and shall, reimburse Glendora for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by Glendora in connection therewith. 20. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or 72 hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: Azusa/CFD: City of Azusa 213 E. Foothill Blvd. PO Box 1395 Azusa, California 91702 Attention: City Manager Glendora: City of Glendora 116 E. Foothill Boulevard Glendora, California 91741 Attn: City Manager Company: Azusa Land Partners, LLC 19 Corporate Plaza Newport Beach, CA 92879-1314 Attn: President Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties hereto. 11 21. No Obligation. Subject to the posting of the Inspection Deposit and the payment of fees and costs provided in paragraph 3 herein, the parties agree that the Company has no obligations hereunder until or unless Azusa issues special tax bonds with a portion of the proceeds specifically designated for payment for the Acquisition Facilities. 22. Amendment. This Agreement may be amended at any time but only in writing signed by each party hereto. 23. Entire AgELqmeiit. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein and supersedes all prior agreements and negotiations between the parties with respect to the subject matter of this Agreement. 24. Exhibits. All exhibits attached hereto are incorporated into this Agreement by reference. 25. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 26. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other parties hereto, or the failure by a party to exercise its rights upon the default of another parry, shall not constitute a waiver of such parry's right to insist and demand strict compliance by such other parties with the terms of this Agreement thereafter. 27. No Thud Pggy Beneficiaries. No person or entity shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than Glendora, Azusa, the CFD and the Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 28. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. 29. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 30. Authorily to Execute. The person or persons executing this Agreement on behalf of Parties hereto warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of his/her/their corporation/public corporation and warrants and represents that he/she/they has/have the authority to bind the Parties to the performance of its obligations hereunder. 12 IN WITNESS WIIEREOF, the parties have executed this Agreement as of the day and year written above. CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA By: Mayor City of Azusa Attest: City Clerk City of Azusa Attest: rf Glendora CITY OF GLENDORA COUNTY OF LOS ANGELES STATE OF CALIFORNIA By:Z7� Mor etof Glendora AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its Administrative Member 13 Chris Gibbs, President AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its Administrative Member By: G Chris Gibbs, President 14 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above. Attest: r City Clerk City of Azusa Attest: 4w&( t-, 9i Cl C' of lendora CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA By: 'L Mayor City of Azusa CITY OF GLENDORA COUNTY OF LOS ANGELES STATE OF CALIFORNIA By: ayor City of Glendora AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its Administrative Member 13 Chris Gibbs, President AZUSA LAND PARTNERS, LLC a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company Its Administrative Member By: Chris Gibbs, President 14 EXHIBIT A DESCRIPTION OF THE ACQUISITION FACILITIES The type of Acquisition Facilities eligible to be financed by the CFD under the Act are as follows: "Acquisition Facilities" means those capital facilities constructed by or on behalf of the Company which are needed by Glendora in order to provide services to the Property. The Acquisition Facilities listed below are anticipated to be financed by the CFD. Detailed scope and limits of specific projects will be determined as appropriate, consistent with the standards of Glendora. • Sierra Madre — 30" Waterline • Citrus Avenue Water, Sewer, Improvements • Citrus/Foothill Traffic Signal A-1 Storm Drain, and Street TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUCE COLEMAN, DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F.M. DELACH, CITY MANAGER /6"Y BY: ROY BRUCI(N JECT MANAGER DATE: MAY 15, 2006 SUBJECT: APPROVAL OF CONSTRUCTION AND MAINTENANCE AGREEMENTS FOR CITRUS AVE. AND PALM DRIVE UNDERCROSSINGS, CITRUS AVE. MAINTENANCE SHARING AGREEMENT, DETENTION BASIN MOU WITH THE CITY OF GLENDORA AND OTHER AGENCIES, AND JOINT COMMUNITY FACILITIES AGREEMENT, ALL RELATED TO THE ROSEDALE PROJECT RECOMMENDATION It is recommended that the City Council approve the following agreements, and authorize their execution: 1. A Memorandum of Understanding Regarding Maintenance and Construction of Detention Basins. 2. Citrus Ave. Maintenance Sharing Agreement 3. Construction and Maintenance Agreement for the Citrus Ave. Undercrossing 4. Construction and Maintenance Agreement for the Palm Drive Undercrossing 5. Joint Community Facilities Agreement for the construction of certain improvements under City of Azusa Community Facilities District No. 2005-1 (Rosedale). BACKGROUND The Monrovia Nursery project site interfaces with the City of Glendora along the east side of the site's boundary. This interface area requires the City of Glendora's cooperation and approval for various items, including construction of graded and landscaped slopes, detention basins, utility connections and relocations, street extensions, and the Citrus Ave. underpass. Glendora Staff has reviewed and approved the concept and construction plans for these facilities. Similarly, the Glendora Planning Commission has approved necessary grading and drainage improvements. Connected with the aforementioned facilities are construction and maintenance agreements, which have been reviewed and were approved by the Glendora City Council on May 9, 2006. In addition, other agencies that are party to two of the four agreements have approved and executed them. The City of Azusa must now execute said agreements as well. A description of the agreements, which k are attached, is as follows: ri 1 1. Detention Basin Memorandum of Understanding. This MOU was originally struct redi IF 0 execution between ALP and Glendora. Its purpose is to set forth the understanding that ALP will construct three detention basins and that ALP or Monrovia Nursery will maintain them. One basin will be located along the Azusa — Glendora boundary just south of Sierra Madre Ave. (Area D Detention Basin), another will be located just east of the Dhammakaya Meditation Center, straddling the City boundary (Citrus Detention Basin), while the third basin will be located entirely in Glendora near Calera Ave. (Hicrest Basin). Monrovia Nursery and ALP agreed to construct the Hicrest Basin to assist in a local drainage problem in the Calera Ave. area. The MOU sets forth drainage standards, and requires ALP to construct the improvements consistent with the drainage standards. In addition, the MOU describes maintenance standards and responsibilities, with ALP responsible for the Area D and Citrus basins, Monrovia Nursery for the Hicrest Basin, and the City of Azusa responsible for only the inlet structures at the Area D and Citrus Ave. Basins. ALP plans to convey the Citrus and Area D Basins along with the maintenance responsibilities to the Rosedale Homeowners Association after construction. The City of Glendora has requested that the City of Azusa be made a party to the agreement, in order to facilitate the City of Azusa's enforcement if for some reason the HOA fails to provide adequate maintenance. Azusa's City Attorney has requested that enforcement and indemnification provisions be added to the MOU, which has been done. 2. Citrus Ave. Maintenance A;reement. The extension of Citrus Ave. from Foothill Blvd. into the Rosedale project will serve only the City of Azusa at this time, since no Glendora streets are planned to connect. The street alignment straddles the border between the two cities, and a large portion of the right-of-way is situated on the Glendora side. Since Glendora did not want the responsibility for maintaining a street that does not serve its citizens, the attached maintenance agreement was drafted that essentially provides for the following: a. As long as Glendora does not use the Citrus Ave. extension, Azusa will pay 100% of the maintenance cost of the street and related facilities. b. When significant Glendora traffic begins using the subject street, or a Glendora street is connected to the Citrus Ave. extension, a traffic study would be prepared to determine fair share responsibility for maintenance cost, with appropriate maintenance cost adjustments made. The cost of the study would be shared by both cities. c. Glendora will maintain the street, and would bill the City of Azusa. d. Azusa may at any time audit Glendora's maintenance cost records. 3. Citrus A_ve. Bricjge 6greement. This agreement pertains to the railroad underpass that will be constructed by ALP pursuant to their entitlements. This bridge over Citrus Ave. straddles the City boundary, with one bridge abutment located in Azusa, and the other in the City of Glendora. For this reason, both cities must execute the agreement, along with the SCRRA (Southern California Regional Rail Authority, who maintains all railroad facilities for MTA), Pasadena Blue Line Construction Authority (constructing the Gold Line), and Azusa Land Partners. The agreement generally provides for the following: a. ALP will provide all construction and arrange for funding necessary to build the bridge structure. The construction will be funded via the CFD. -, b. Azusa and Glendora will both be granted easements for roadway purposes for the street right of way below the bridge. c. The Los Angeles to Pasadena Blue Line Construction Authority will own the underpass after construction, and will be responsible for the maintenance of the bridge structure and abutments. 4. Palm Drive Bridge Agreement. This agreement is identical to the Citrus Ave bridge agreement, except that it applies to the underpass that will be constructed over Palm Drive. Glendora is not a party to this agreement. 5. Joint Community Facilities Agreement {]CFA). The Community Facilities District to be formed will finance various improvements that ultimately will be conveyed and maintained by other agencies. In order to accomplish this, jCFAs must be executed with the affected agencies. This agreement provides for the construction and conveyance of certain improvements to the City of Glendora, including the Citrus Ave. utility and street improvements, the Sierra Madre Ave. water line, and a possible traffic signal at Citrus Ave. and Foothill Blvd., should one be necessary. The bridge designs have been plan checked and are ready to be approved from a structural standpoint. However, the aesthetic design of both bridges must still be submitted by ALP for approval by both cities. FISCAL IMPACT The execution of these agreements would bind the City to ongoing maintenance of Citrus Ave. and its related facilities, and maintenance of the detention basin inlets. However, these maintenance items are not extraordinary, and would exist even without these agreements, were it not for the multi - jurisdictional issues. The cost of maintaining the public rights of way of the project was included in the Monrovia Nursery Fiscal Impact Study, which assumed that the General Fund would fund this City service through increased revenues generated by the new Rosedale development. CONSTRUCTION AND MAINTENANCE AGREEMENT for the CITRUS AVENUE UNDERCROSSING THIS Construction and Maintenance Agreement (the "Agreement") is entered into on the 15th day of May, 2006, by and between AZUSA LAND PARTNERS, LLC, a Delaware limited liability company ("ALP"); the CITY OF AZUSA, a general law city and municipal corporation ("AZUSA"); the CITY OF GLENDORA, a general law city and municipal corporation ("GLENDORA"); the SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY ("SCRRA"), a joint powers authority existing under the laws of the State of California; and THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, a public agency existing under the authority of the laws of the State of California, as Trustee of the Los Angeles - Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 ("AUTHORITY"), doing business as METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY. ARTICLE I RECITALS Section 1.01 The Parties enter into this Agreement with reference to the following facts, objectives, and understandings: A. AUTHORITY owns the 'Railroad ROW" (as defined below); B. SCRRA maintains the railroad and appurtenances upon the Railroad ROW and dispatches trains thereon; C. BNSF Railway Company, a Delaware corporation ("BNSF") operates a common carrier railroad service upon the-Bailr_Qad-RDW;._. D. ALP proposes to construct (1) a segment of Citrus Avenue lying within both AZUSA and GLENDORA that will pass beneath the Railroad ROW and (2) the Structure (as defined below); E. AZUSA proposes to maintain those segments of Citrus Avenue lying within its boundaries as more particularly described herein; and F. GLENDORA proposes to maintain those segments of Citrus Avenue lying within its boundaries as more particularly described herein. IN CONSIDERATION of the mutual terms, conditions and covenants herein contained, the Parties agree as follows: FAFILEMP5101-131AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 ARTICLE II DEFINITIONS Section 2.01 "Additional Railroad ROW" means the area depicted on Exhibits A-5 and A-6 attached hereto and which shall be conveyed to AUTHORITY in accordance with Section 4.05(C) below. Section 2.02 "Application" means that certain California Public Utilities Commission Application submitted by the City of Azusa and the City of Glendora for Closing North Rockvale Private Grade Crossing, for constructing a Grade Separation at the existing Palm Drive Crossing No. 101 PA -1 16.05-X and for constructing a Grade Separation at Citrus Avenue MP 115.86. Section 2.03 "Project" means all work of every kind and character to be performed hereunder and required in connection with the construction of the segment of Citrus Avenue, the re -alignment of the Railroad ROW and the railroad track therein, the construction of the Structure and the relocation of affected wire, pipe and/or other utility lines all as shown on Exhibit A attached hereto and as generally described in the Application. Section 2.04 "Project Work" means the work to be performed by ALP hereunder for the construction of the Project in accordance with the Exhibits listed in Section 2.03 above. Section 2.05 "Railroad ROW" means that portion of the railroad right-of-way, more particularly described below which lies between Mile Post 115.5 and Mile Post 116.6 and all railroad improvements located within such portion, which is owned by AUTHORITY, maintained by SCRRA and upon which BNSF operates a common carrier railroad and SCRRA dispatches trains: That portion of said land conveyed to the San Bernardino and Los Angeles Railway Company, a California corporation, by Deed recorded on June 1, 1887, as Instrument No. 136 in Book 239, Page 1 of Deeds, together with that portion of said --land conveyed—to--Souther-n--California—Railway-.Company, a California corporation, by Deed recorded February 24, 1890, as Instrument No. 32 in Book 626, Page 166 of Deeds, together with that portion of land conveyed to the San Bernardino and Los Angeles Railway Company, a California corporation, by Deed recorded March 21, 1887, as Instrument No. 17 in Book 200, Page 601 of Deeds. Section 2.06 "Structure" means the grade separated crossing structure (including any amenities, support structure and/or facilities required in connection therewith) to be constructed within the Railroad ROW at Citrus Avenue as part of the Project. ARTICLE III AUTHORITY AND SCRRA RESPONSIBILITIES Section 3.01 Right of Entry - ALP. A. AUTHORITY hereby grants to ALP a license to enter upon and use that portion of the Railroad ROW needed to undertake and complete the Project Work. This license F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04124/06 2 is not exclusive and does not prevent AUTHORITY, or any other third party acting with the approval of AUTHORITY, to use the Railroad ROW. B. The license granted to ALP above includes the right to undertake and complete the Project Work [including any related facilities and/or amenities and the grant on behalf of AUTHORITY of one (1) or more utility easements to the applicable utility provider(s) as necessary for completion of the Project Work] on, over and/or under the surface of the Railroad ROW. C. This license is given without warranty of title of any kind, express or implied, and no covenant of warranty of this title will be implied. In case parties owning or claiming title to any interest in the Railroad ROW evict ALP, AUTHORITY will not be liable to ALP for any damages; provided, however, that ALP shall have no liability to AUTHORITY, SCRRA, GLENDORA and/or AZUSA for any failure of ALP to perform its obligations hereunder resulting from any such eviction. The granting of similar rights to others, subsequent to the date of this Agreement, will not significantly impair or interfere with the license granted to ALP pursuant to this Agreement. Section 3.02 Right of Entry - GLENDORA and AZUSA. A. AUTHORITY hereby grants to GLENDORA and AZUSA non-exclusive licenses to enter upon and use that portion of the Railroad ROW needed to inspect and maintain those Citrus Avenue roadway improvements lying within the Railroad ROW as more particularly provided in Sections 6.01(B) and (C) below. This license is not exclusive and does not prevent AUTHORITY, or any other third party acting with the approval of AUTHORITY, to use the Railroad ROW. B. The licenses granted to GLENDORA and AZUSA include the right to inspect, maintain, repair and replace such roadway improvements and all amenities, facilities and/or utilities related thereto. C. This Iicense-i& given, without-warranty-of-titi"f-,ar4.y-kind—e press --or ........ -- -- ----- implied, and no covenant of warranty of this title will be implied. In case parties owning or claiming title to any interest in the Railroad ROW evict GLENDORA and/or AZUSA, AUTHORITY will not be liable to GLENDORA or AZUSA, as the case may be, for any damages; provided, however, that GLENDORA or AZUSA shall have no liability to AUTHORITY, SCRRA and/or ALP for any failure of GLENDORA or AZUSA, as the case may be, to perform its respective obligations hereunder resulting from any such eviction. The granting of similar rights to others, subsequent to the date of this Agreement, will not significantly impair or interfere with the licenses granted to GLENDORA and AZUSA pursuant to this Agreement. Section 3.03 Easement to GLENDORA. By not later than completion of the Project, AUTHORITY will grant GLENDORA a permanent and nonexclusive easement for (i) a depressed roadway, (ii) a pump station, if any, (iii) utilities and (iv) drainage across and beneath that portion of the Railroad ROW as described in Exhibits A-2 and A-3 attached hereto lying within the legal boundaries of GLENDORA (the "Glendora Easement') including, in the case of utilities, the right and power to transfer the same to the applicable utility provider. The Glendora Easement will ensure the unrestricted and uninterrupted right of GLENDORA (and/or its transferee) to operate, repair, maintain, and replace these elements of the Project. F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 3 Section 3.04 Easement to AZUSA. By not later than completion of the Project, AUTHORITY will grant AZUSA a permanent and nonexclusive easement for (i) a depressed roadway, (ii) a pump station, if any, (iii) utilities and (iv) drainage across and beneath that portion of the Railroad ROW as described in Exhibits A-2 and A-3 attached hereto lying within the legal boundaries of AZUSA (the "Azusa Easement") including, in the case of utilities, the right and power to transfer the same to the applicable utility provider. ' The Azusa Easement will ensure the unrestricted and uninterrupted right of AZUSA (and/or its transferee) to operate, repair, maintain, and replace these elements of the Project. Section 3.05 Engineering Review and Construction Oversight by AUTHORITY. AUTHORITY will furnish, at ALP's cost and expense (provided that ALP's written consent is obtained prior to incurring any such cost or expense), all labor, materials, tools and equipment to perform engineering reviews of the plans and specifications, periodic oversight inspection of the construction, and substantial completion and final acceptance construction inspection of the Structure. Section 3.06 AUTHORITY Work. AUTHORITY agrees to furnish all labor, materials, tools and equipment, and to do, the work, described on Exhibit B attached hereto in accordance with the Project Work schedule prepared by ALP pursuant to Section 4.05(A) below. Section 3.07 Engineering Review and Construction Oversight by SORRA. SCRRA will perform engineering review of the plans and specifications, furnish inspectors and flagmen, and provide other support services at ALP's cost and expense (provided that ALP's written consent is obtained prior to incurring any such cost or expense), which in SCRRA's and/or AUTHORITY's opinion, will be reasonably required for the protection of AUTHORITY's facilities, BNSF's train operations and employees safety or the safety of ALP's employees or contractors. Section 3.08 SCRRA Work. SCRRA agrees to furnish all labor, materials, tools and equipment, and to do, the work, described on Exhibit C attached hereto in accordance with the Project Work schedule prepared by ALP pursuant to Section 4.05(A) below. Section 3.09 Plan Review by AZUSA. GLENDORA and SCRRA/No Liability. ALP acknowledges and agrees that any review and/or approval by AZUSA, GLENDORA and/or SCRRA of any Project plans and specifications does not constitute approval for engineering design, accuracy of stress calculations, soils suitability, drainage or set backs and by approving any such plans and specifications, neither AZUSA, GLENDORA and/or SCRRA, nor any designated representatives or agents thereof, shall be liable in damages to anyone, by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the review, approval or disapproval, or failure to review, approve or disapprove, any such plans and specifications, or for any defect in any improvements (including the Structure) constructed from such plans and specifications. F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 4 ARTICLE IV ALP RESPONSIBILITIES Section 4.01 Promect Construction. ALP agrees to furnish all labor, materials, tools, and equipment, and do the Project Work. Should Project construction not begin within six (6) months from the effective date of this Agreement, ALP may, in its sole and absolute discretion, revise the cost estimates of the Project Work, which will then become part of this Agreement. A. The principal elements of the Project Work to be performed by ALP in the construction of the Project are: Engineering design and construction document preparation; 2. Constructing the Structure and the depressed roadway improvements to Citrus Avenue; 3. Required grading, staking and paving for the new track and drainage north of the new track; and 4. Construction of new embankment and re -alignment of the track, protection of the existing track during construction and, upon completion of the re -aligned track, removal of the abandoned portion of the existing track. B. ALP will perform the Project Work as detailed in Exhibits listed in Section 2.03 above. C. ALP will make all arrangements to secure any location or relocation of utilities and other facilities owned by persons other than AUTHORITY as necessitated by the Project Work. D. ALP will furnish all labor, materials, tools, and equipment in performing the Project Work. The Project Work will be performed at such times that do not endanger or toe ere wtth tFre safe-aml"t[mely operations-of-BNSi"'s trains, or AttTHORiT-Y-�s-tr-aek"r-other AUTHORITY facilities existing within the Railroad ROW. E. ALP will reimburse AUTHORITY and/or SCRRA for emergency repairs caused by ALP's performance of the Project Work, which AUTHORITY deems is reasonably necessary for the immediate restoration of railroad operations or for the protection of persons or AUTHORITY property. AUTHORITY and/or SCRRA may perform such emergency repairs without ALP's prior approval; provided, however that prior to performing any such emergency repairs, AUTHORITY and/or SCRRA shall notify ALP of the emergency. ALP agrees to reimburse AUTHORITY and/or SCRRA for the reasonable cost of such emergency repairs. AUTHORITY and/or SCRRA will provide ALP with a detailed invoice within twenty-one (21) days following such emergency repairs. F. ALP will notify SCRRA and AUTHORITY at least five (5) working days before working on AUTHORITY facilities within the Railroad ROW and will request a flagman from SCRRA (or provide a licensed flagman pre -approved by AUTHORITY and SCRRA) when working within 25' of the centerline of the existing railroad track within the Railroad ROW or as per requirements included in SCRRA Form No. 6, Temporary Right -of -Entry Agreement, a copy of which is attached hereto as Exhibit D (the "Temporary Right -of -Entry Agreement"). F:\FILES\WP51\DLBWZUSA\CITRUS AVE BRIDGE AGMT DOC 04/24/06 5 G. ALP will provide AUTHORITY and SCRRA with four (4) copies of plans and two (2) sets of calculations of all permanent or temporary structures or facilities proposed to be used over, under, or adjacent to the Railroad ROW for approval. Use of such permanent or temporary structures or facilities will conform to the standard side clearance set forth in Federal Railroad Administration (FRA) or Public Utilities Commission (PUC) requirements that govern such clearance. Should the shoring impair clearance, ALP will ensure that application is made to the FRA or PUC for approval of such impairment during the Project construction. H. ALP agrees to design and construct the Project Work in substantial conformance with SCRRA's Engineering Standards and Standard Specifications, except where deviations or variances are agreed in writing between SCRRA, AUTHORITY, and ALP. I. ALP agrees to execute and deliver to SCRRA, prior to commencing any work within the Railroad ROW, the Temporary Right -of -Entry Agreement, and deliver and secure approval of the insurance required by the two exhibits attached thereto (available on SCRRA's website at www.metrolinktrains.com). ALP's employees, agents, contractors, representatives and invitees will comply with SCRRA's safety requirements included in the SCRRA Form "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property," a copy of which is attached hereto as Exhibit E. Section 4.62 Contract Provisions. Contracts executed by ALP for any of the Project Work will include the following provisions: A. All work within the boundaries of the Railroad ROW will be performed in a good and workmanlike manner and in accordance with plans and specifications approved by AUTHORITY and SCRRA. Those changes or modifications during construction that affect safety, design or construction methods shall require AUTHORITY's and SCRRA's approval. B. No work will be commenced within the Railroad ROW by a prime contractor until such contractor has (i) executed and delivered to AUTHORITY the Temporary Right-Qf� ry�Xg-reemeni—a—nd-(ti) delivered to, and securer-AtJTHORt-fY1s-separate approval of, the insurance coverage required thereby. The railroad track construction must be done by a contractor or subcontractor who has experience in railroad construction. ALP will obtain approval of the track contractor or subcontractor from AUTHORITY and SCRRA. C. ALP's employees, agents, contractors, representatives and invitees will wear personnel protective equipment ("PPE") when on AUTHORITY's rail corridor. Existing AUTHORITY PPE requirements are: (i) safety glasses; permanently affixed side shields; no yellow lenses; (ii) hard hats with high visibility orange cover; (iii) safety shoes with hardened toe, above the ankle lace up and a defined heel; and (iv)high visibility reflective orange vests. Hearing protection, fall protection arid respirators will be worn as required by state and federal regulations. D. If an ALP contractor performs work on the Project inconsistent with the Project plans and specifications, works in a manner SCRRA or AUTHORITY reasonably deems to be hazardous or if any insurance policy is canceled during the course of the Project Work, then SCRRA or AUTHORITY may direct the work to be stopped until the problems are resolved to the satisfaction of SCRRA or AUTHORITY. SCRRA or AUTHORITY may stop the Project Work by written notice to ALP and its contractor until additional insurance has been delivered to FAFILESMP5101-BWZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 6 and accepted by SCRRA or AUTHORITY. Such work interruption will not give rise to or impose upon SCRRA or AUTHORITY any liability to ALP or to any ALP contractor. The right of SCRRA or AUTHORITY to stop the work is in addition to any other rights SCRRA or AUTHORITY may have. In the event that SCRRA or AUTHORITY wish to stop Project Work, SCRRA and AUTHORITY will give immediate detailed written notice thereof to ALP, upon the receipt of which ALP shall have not less than two (2) business days in which to resolve such matter. Section 4.03 Inspection and Supervision. ALP agrees to supervise and inspect the operations of all ALP contractors to assure compliance with the plans and specifications, the terms of this Agreement and all safety requirements of SCRRA and AUTHORITY. If at any time during the Project Work, SCRRA or AUTHORITY determines that proper supervision or inspection is not being performed by ALP, SCRRA or AUTHORITY will have the right to stop construction within or adjacent to the Railroad ROW and to require that ALP correct the situation before construction is allowed to proceed. This direction will be in the form of a letter, either faxed or by electronic mail, signed by the CEO of AUTHORITY and SCRRA, or their designates. If SCRRA or AUTHORITY believes the situation is not being corrected in an expeditious manner, AUTHORITY and SCRRA will immediately notify ALP in writing requesting ALP to issue a STOP WORK NOTICE to its contractor so that the respective Project Work can be corrected to the satisfaction of the parties. Section 4.04 As -Built Plans. ALP will furnish AUTHORITY four (4) sets of as -built plans, upon completion of the Project Work, at no cost to SCRRA or AUTHORITY, prepared in U.S. Customary Units, plus one set of computer compact disks, containing as -built CAD drawings of the Structure identifying the software used for the CAD drawings. The "as -built plans" will include plan and profile, structural bridge drawings and specifications, and drainage plans. AUTHORITY will furnish one (1) set of these as -built documents to SCRRA. Section 4.05 Protect Comptetion. A. ALP will develop and maintain a Project Work schedule for the full scope f the-Project-ALP-will-be--responsible-far-coordinating-all-work-to-achieve-the-timel-� completion of the Project Work. B. Within thirty (30) days after completing the Project Work, ALP will give written notice to SCRRA and AUTHORITY of the Project's completion date and the date on which ALP will meet with SCRRA and AUTHORITY for the purpose of final inspection and acceptance. C. Within thirty (30) days after final inspection and acceptance, ALP will convey the Additional Railroad ROW to AUTHORITY. D. The Structure and relocated track shall be completed and operational, including the removal of the existing timber ties, running rail, other track material, and ballast, on or before May 15, 2008. Any delay beyond this date may be reason for AUTHORITY to claim damages from ALP for delays to AUTHORITY's project concerning the extension of light rail service upon and through the Railroad ROW; provided however, that ALP shall have no liability hereunder for any delays caused by or due to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, freight embargoes or lack of transportation, weather -caused delays, inability to secure necessary labor, materials or tools, acts (other than F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 7 as required by, and then in accordance with, the terms of this Agreement) or the failure to act of AUTHORITY, acts or the failure to act of any public, governmental or quasi -governmental agency or entity and/or any other causes beyond the control or without the fault of ALP. Section 4.06 Cost of Performance. A. ALP will perform all of the Project Work (other than any portions thereof to be performed by SCRRA and/or AUTHORITY hereunder) at its own cost and expense; subject, however, to reimbursement, if any, under such joint community facilities agreements or other reimbursement arrangements as ALP may enter into or which may benefit ALP with respect to the Project. B. ALP agrees to reimburse SCRRA the actual costs and expenses incurred by SCRRA, including any provisional overhead rates representing SCRRA's costs for administration and management, and its contractors and consultants for all services and work performed in connection with the Project Work. ALP and SCRRA shall agree to periodic Work Order tasks and cost amounts and ALP agrees to deposit with SCRRA mutually agreeable amounts for SCRRA's cost and expense for its services for the Project Work. AUTHORITY shall receive a copy of each approved Work Order. ARTICLE V AZUSA AND GLENDORA FINANCIAL RESPONSIBILITIES Section 5.01 Payments. Neither AZUSA or GLENDORA shall have any responsibility or obligation hereunder to pay ALP for any costs incurred by ALP with respect to the Project Work; provided, however, that nothing herein shall prevent ALP and AZUSA and/or GLENDORA from entering into any joint community facilities agreements and/or establishing any community facilities districts or other tax -based source of funds for the purpose of reimbursing ALP for some or all of the Project costs incurred by ALP. ARTICLE VI RESPONSIBILITIES FOLLOWING CONSTRUCTION Section 6.01 Responsibilities Following Construction. After the Project Work is completed, the following shall apply: A. AUTHORITY will own the Structure and, at its sole cost and expense, will maintain or cause to be maintained (i) the Structure, (ii) the railway roadbed, (iii) the track, (iv) all railroad drainage and (v) all other railroad facilities situated within the Railroad ROW; B. Subject to such cost sharing arrangements as may be entered into by and between GLENDORA and AZUSA as provided in Section 6.02 below, GLENDORA, at its cost and expense, will repair, replace or remove any of the Citrus Avenue roadway improvements and facilities, including any sidewalks, retaining walls (other than those portions of the Structure which constitute or act in the place of retaining walls), sump pumps, pavement, curb and gutter, catch basins, graffiti, parkways, slope areas, lighting, striping, sewer and storm drains, lying within the legal boundaries of GLENDORA; C. Subject to such cost sharing arrangements as may be entered into by AZUSA and GLENDORA as provided in Section 6.02 below, AZUSA, at its cost and expense, will F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 13 repair, replace or remove any of the Citrus Avenue roadway improvements and facilities, including any sidewalks, retaining walls (other than those portions of the Structure which constitute or act in the place of retaining walls), sump pumps, pavement, curb and gutter, catch basins, graffiti, parkways, slope areas, lighting, striping, sewer and storm drains, lying within the legal boundaries of AZUSA; D. GLENDORA will, before entering upon the Railroad ROW for maintenance purposes, notify AUTHORITY and/or SCRRA to obtain prior authorization and, if work is contracted, GLENDORA will require its prime contractor(s) to comply with the obligations in favor of SCRRA and AUTHORITY as set forth in the Temporary Right -of -Entry Agreement; provided, however, that neither GLENDORA or its prime contractor(s) shall be liable for payment for any flagmen engaged by or on behalf of AUTHORITY and/or SCRRA in connection with any work performed by GLENDORA or its prime contractor(s) upon or within the Railroad ROW; and E. AZUSA will, before entering upon the Railroad ROW for maintenance purposes, notify AUTHORITY and/or SCRRA to obtain prior authorization and, if work is contracted, AZUSA will require its prime contractor(s) to comply with the obligations in favor of SCRRA and AUTHORITY as set forth in the Temporary Right -of -Entry Agreement; provided, however, that neither AZUSA or its prime contractor(s) shall be liable for payment for any flagmen engaged by or on behalf of AUTHORITY and/or SCRRA in connection with any work performed by AZUSA or its prime contractor(s) upon or within the Railroad ROW. Section 6.02 Cost Sharing Arrangements Between GLENDORA and AZUSA. Nothing in Section 6.01 above shall prevent GLENDORA and AZUSA from agreeing as among themselves to share or allocate the performance and/or costs of the maintenance to be performed under Sections 6.01(B) and (C) above upon such terms and conditions as GLENDORA and AZUSA may agree; provided, however, any such sharing agreement shall not affect the ultimate responsibility for the performance of such maintenance obligations insofar as the parties to this Agreement are concerned. ARTICLE VII INDEMNIFICATION Section 7.01 Indemnification of AUTHORITY SCRRA GLENDORA and AZUSA b ALP. Neither AUTHORITY, SCRRA, GLENDORA and AZUSA, nor any of AUTHORITY'S, SCRRA's, GLENDORA's and AZUSA's, board members, member agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of ALP under or in connection with any work, authority or jurisdiction delegated to ALP under this Agreement. ALP shall indemnify, defend and hold harmless AUTHORITY, SCRRA, GLENDORA and AZUSA, as well as their respective board members, member agencies, officers, agents, volunteers, contractors, and employees ("AUTHORITY, SCRRA, GLENDORA and AZUSA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AUTHORITY, SCRRA, GLENDORA and AZUSA Indemnitees arising out of or connected with any negligent acts or omissions on the part of ALP, its officers, agents, contractors or employees, under or in connection with any work, authority or jurisdiction delegated to ALP under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will F:\FILES\WP51\DLBWZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 9 indemnify AUTHORITY, SCRRA, GLENDORA and AZUSA or their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.02 Indemnification of ALP by AUTHORITY, SCRRA, GLENDORA and AZUSA. Neither ALP, nor its officers, agents, contractors or employees shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of AUTHORITY, SCRRA, GLENDORA and/or AZUSA under or in connection with any work, authority or jurisdiction delegated to AUTHORITY, SCRRA, GLENDORA and/or AZUSA under this Agreement. AUTHORITY, SCRRA, GLENDORA and AZUSA shall each indemnify, defend and hold harmless ALP, as well as ALP's officers, agents, contractors and employees ("ALP Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the ALP Indemnitees arising out of or connected with any negligent acts or omissions on the part of AUTHORITY, SCRRA, GLENDORA and/or AZUSA, or any of their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to any of them under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify ALP or its respective officers, agents, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.03 Indemnification of AUTHORITY and SCRRA by GLENDORA. Neither AUTHORITY and SCRRA, nor any of AUTHORITY'S and SCRRA's board members, member agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to GLENDORA under this Agreement. GLENDORA shall indemnify, defend and hold harmless AUTHORITY and SCRRA, as well as their respective board members, member agencies, officers, agents, volunteers, contractors, and employees ("AUTHORITY and SCRRA Indemnitees"), from any and all liability, Ince expe so ing-reasonableattor-na�es-a-nd-other defense- costs),demands- sits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AUTHORITY and SCRRA Indemnitees arising out of or connected with any negligent acts or omissions on the part of GLENDORA, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to GLENDORA under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AUTHORITY and SCRRA, or their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.04 Indemnification of AUTHORITY and SCRRA by AZUSA. Neither AUTHORITY and SCRRA, nor any of AUTHORITY'S and SCRRA's board members, member agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to AZUSA under this Agreement. AZUSA shall indemnify, defend and hold harmless AUTHORITY and SCRRA, as well as their respective board members, member agencies, officers, agents, volunteers, contractors, and F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 10 employees ("AUTHORITY and SCRRA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AUTHORITY and SCRRA Indemnitees arising out of or connected with any negligent acts or omissions on the part of AZUSA, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to AZUSA under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AUTHORITY and SCRRA, or their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.05 Indemnification of AZUSA and GLENDORA by AUTHORITY. Neither AZUSA and GLENDORA, nor any of AZUSA'S and GLENDORA's elected officials, agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to AUTHORITY under this Agreement. AUTHORITY shall indemnify, defend and hold harmless AZUSA and GLENDORA, as well as their respective elected officials, agencies, officers, agents, volunteers, contractors, and employees ("AZUSA and GLENDORA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AZUSA and GLENDORA Indemnitees arising out of or connected with any negligent acts or omissions on the part of AUTHORITY, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to AUTHORITY under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AZUSA and GLENDORA, or their respective elected officials, agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.06 Indemnification of AZUSA and GLENDORA by SCRRA. Neither AZUSA and GLENDORA, nor any of AZUSA'S and GLENDORA's elected officials, agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to SCRRA under this Agreement. SCRRA shall indemnify, defend and hold harmless AZUSA and GLENDORA, as well as their respective elected officials, agencies, officers, agents, volunteers, contractors, and employees ("AZUSA and GLENDORA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AZUSA and GLENDORA Indemnitees arising out of or connected with any negligent acts or omissions on the part of SCRRA, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to SCRRA under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AZUSA and GLENDORA, or their respective elected officials, agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT DOC 04/24/06 11 ARTICLE VIII MISCELLANEOUS PROVISIONS Section 8.01 Automatic Termination. In the event that construction of the Project has not begun for a period of three (3) years from the date of this Agreement, this Agreement will become null and void. Section 8.02 Assignment. The Parties agree that they will not assign or transfer any portion of or interest in this Agreement without the prior written permission of all other Parties. Any attempt to assign or transfer any portion of this Agreement without the prior written permission of all other Parties will be void. Section 8.03 Severabilit . If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. Section 8.04 Successors. All the terms, conditions and covenants of this Agreement will inure to the benefit of and be binding upon the Parties' successors and assigns. The provisions of this Section will not be deemed as a waiver of any of the conditions against assignment as set forth in Section 8.02. Section 8.05 Notices. All notices provided for herein will be in writing. Any notice permitted or required to be served upon party may be served upon that party at: ALP: c/o PLC Land Company 19 Corporate Plaza Drive Newport Beach, CA 92660 Attn: President Telephone: (949) 721-9777 Facsimile: (949)-729=1-2-14 AUTHORITY: Foothill Extension Construction Authority 406 East Huntington Drive Suite 202 Monrovia, CA 91016 Attn: Chief Executive Officer Telephone: (626) 471-9050 Facsimile: (626) 471-9049 AZUSA: City of Azusa 213 E. Foothill Boulevard P.O. Box 1395 Azusa, CA 91702 Attn: City Manager Telephone: (626) 812-5200 Facsimile: (626) 334-6538 GLENDORA: City of Glendora F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04124/05 12 116 E. Foothill Boulevard Glendora, CA 91741 Attn: City Manager Telephone: (626) 914-8200 Facsimile: (626) 914-8221 SCRRA: Manager of Public Projects Southern California Regional Rail Authority 700 South Flower Street - 26th Floor Los Angeles, CA 90017 Telephone: (213) 452-0249 Facsimile: (213) 452-0423 Section 8.06 Governing Law. This Agreement was executed in, and will be construed in accordance with the laws of, the State of California and exclusive venue for any action involving this Agreement will be in Los Angeles County. Section 8.07 Headings. The headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provisions of this Agreement. Section 8.08 Rules of Construction. This Agreement has not been drafted or prepared by either party hereto, the same being a fully negotiated Agreement. Thus, the parties expressly agree that any rule of construction regarding interpretation in favor of one or the other party by reason of the party drafting the Agreement will not apply. Section 8.09 Records. The Parties will maintain full and accurate records with respect to all services and matters covered under this Agreement. Each Party will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. The Parties will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement. Section 8.10 Exhibits. All Exhibits attached hereto are hereby incorporated into this Agreement as if fully set forth herein. F:XFILEMWP5I1J)LBIAZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 13 Section 8.11 Acceptance of Facsimile Signatures/Counterparts. A. The Parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed by a Party when the signature of such Party is delivered to another Party by facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. B. This Agreement may be executed in any number or counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date. Section 8.12 Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes any prior or concurrent written or oral agreement between said parties concerning the subject matter contained herein. [Balance of this page intentionally left blank] F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 14 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: l _ Its: i'_ e s ident AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY David Solow Chief Executive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles By: Deputy F:\FILES\WP51\DLBWZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 15 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: Its: AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its.. [ Approved as to Form:~ AUTHORITY Counsel SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY David Solow Chief Executive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles M Deputy FAFILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 15 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. -AZUSA-LAND PARTNERS -LLQ - a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: Its: AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHEFN CALIFORNIA REGIONAL RAIL AUTHORITY David Sffilow Chief Mecutive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles By: Deputy F:\FILES\WP51\DLBWZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 15 AZUSA: OF AZUSA Di ne Chagnon, Mayor ff, ST: Vera Mendoza, City Clerk APPROVED AS TO FORM: c Sonia R. Carvalho, City Attorney GLENDORA: CITY OF GL O Mayor ATTEST: l Cit Cle F:\FILES\WP51\DLBWZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 16 LIST OF EXHIBITS Exhibit A Project Plans and Specifications consisting of Sheets marked T-01, C-04, C-05, C-06, C-07, S-1 and S-21 (Section 2.03) Exhibit B Description of AUTHORITY's Work (Section 3.06) Exhibit C Description of SCRRA's Work (Section 3.08) Exhibit D Temporary Right -of -Entry Agreement [Sections 4.01(F), 4.01(1), 4.02(B) and 6.01(D) and (E)] Exhibit E General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property [Section 4.01(1)] F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 17 PROJECT PLANS AND SPECIFICATIONS (Section 2.03) F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 (See Attached) Exhibit A I2 ° < = n� IOP:iT J a � �anprp ,!ari+i.n4i J 6 r G ■ iter "G �qa� � Q Q w 1� H n g a ��i Gyp — r W 0. 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CL w `I o A W 4 I 1 I Ir �-� ii J .'pn-wiwpM 1^aF.l•�^+W-JJAi vkf 9us�':� N! 71.3 npl man e•r-m-•�•IISM+.a�+�•I� ••'vsys..r�•lo b6�sna 7n3 �.. _.. _.. .._.._ c --i__got O H W g aU cc JwYJ d m Z V J rnQ a ff LU Oma w co 00 0 4 x nn � � NNNNNNNN�Vn7'n�n7nn^�f In CL J �. - Y s � NNNNNInNNN NNNInNN Ntii O _ o a i r w ggg� +. J iaaC a —All �}}�}} jjgi{{ : j¢z C ..e 1 lf _ N m 4E S�7B ------------------ S3kvM1 Yhilf .P-. 1. � ETD .G-.WI • rTm Qu 1 i I u •i � � ]II-.s ya rc E W - r• ` 3ar,e,pN ' J I i71a3A 4d8 GI �� Mao mra3 / "'Ir I Y y i 1 I w -j lid N µ 1IE I LC 1 ! F Fl level w3sn DESCRIPTION OF AUTHORITY's WORK (Section 3.06) 1. Review and comment on ALP drawings and specifications with respect to bridge, retaining walls, and all railroad construction, including working and shop drawings related to the bridge permanent materials and trackwork materials, compaction reports, bridge pile driving reports, concrete and reinforcing steel test reports; 2. Review and acceptance of construction methodologies, including but not limited to embankment completion and trackwork installation at the two (2) track tie-in points; 3. Approve bridge and trackwork contractor selection; 4. Provide periodic oversite inspection of all bridge and railroad facilities construction; and 5. Provide engineering/construction personnel for final inspection(s). F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 Exhibit B DESCRIPTION OF SCRRXS WORK (Section 3.08) 1. Review and comment on ALP drawings and specifications with respect to bridge, retaining wall, and all railroad construction; 2. Provide construction safety inspection for all activities within the Railroad ROW at track elevation or where construction equipment is working in the grade separation and adjacent to the operating (active) track; 3. Approve trackwork contractor selection; 4. Provide flagging personnel and trackwork inspection; 5. Provide engineering personnel for final inspection(s); and 6. Remove or relocate all existing railroad communications lines, facilities and equipment as needed that are within the Railroad ROW and within the boundaries of the grade -separation excavation and backfill limits. FAFILES\WP510LB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04124/06 Exhibit C SCRRA FORM NO. 6 [Sections 4.01(F) and (1), 4.02(6), 6.01(D) and (E)] Temporary Right -of -Entry Agreement F:\FILES\WP51\DLBWZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 (See Attached) Exhibit D TEMPORARY RIGHT -OF -ENTRY AGREEMENT SCRRA FORM NO.6 I SCRRA File No. I I SCRRA Project/Task No. Subdivision Mile Post Thomas Guide Location This Temporary Right -of -Entry Agreement ("Agreement") is between the Southern California Regional Rail Authority (hereinafter referred to as "SCRRA") and (hereinafter referred to as "Contractor"). This Agreement is for entry upon, over and under SCRRA and Member Agency right of way ("Right of Way") at or near in the City of or in the Unincorporated County of (as such location is more specifically identified above) for the purpose of shown on attached drawings). Definitions A. Contractor is an individual, firm, partnership or corporation or combination thereof, private, municipal or public, including joint ventures, which are referred to throughout this document by singular number and masculine gender. For purposes of this agreement, Contractor also includes any subcontractor, supplier, agent or other individual entering the Right of Way during performance of work. B. Indemnitees are SCRRA, Member Agencies and Operating Railroad and their respective officers, commissioners, employees, agents, successors and assigns. C. Operating Railroad is/are that specific passenger or freight -related railroad company(s) validly operating on SCRRA and Member Agency track(s). Operating Railroads are any combination(s) of the SCRRA (METROLINK), the National Railroad Passenger Corporation (AMTRAK), the Union Pacific Railroad Company (UPRR) and the BNSF Railway Company. D. Property and Right of Way is defined herein to mean the real and/or personal property of SCRRA and/or Member Agencies. E. SCRRA is a five -county joint powers authority, created pursuant to State of California Public Utilities Code Section 130255 and California Government Code Section 6500 et seq., to build and operate the "Metrolink" commuter train system in the five -county area on rail rights -of -ways owned by the Member Agencies. The five -county Member Agencies are comprised of the following: Los Angeles County Metropolitan Transportation Authority (MTA), Ventura County Transportation Commission (VCTC), Orange County Transportation Authority (OCTA), San Bernardino Associated Governments (SANBAG), and Riverside County Transportation Commission (RCTC). F. SCRRA Railroad Employee (SRE) is a Southern California Regional Rail Authority employee or contractor (SCRRA General Code of Operating Rules and Territory Qualified) providing warning to Public Agency or Contractor personnel of approaching trains or on track equipment and who has the SCRRA FORM NO. 6 Page 1 of 13 09/25/05 authority to halt work and to remove personnel from the Right of Way to assure safe work. G. SCRRA Safety Training Officer is a Southern California Regional Rail Authority employee (SCRRA General Code of Operating Rules qualified) authorized by the SCRRA Director of Engineering and Construction to provide Contractor training. 2. References When working on the Right of Way, the Contractor must comply with the rules and regulations contained in the current editions of the following documents which are "references" incorporated in this document as if they were set out in full in this paragraph. The Contractor, by its signature on this Agreement, acknowledges receipt of these documents and agrees to abide by said rules and regulations at all times when on the Right of Way. A. Rules and Requirements for Construction on Railway Property, SCRRA Form No. 37. B. General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Right of Way. Entry Onto Right of Way No verbal approvals will be granted. The Contractor shall not enter onto the Right of Way unless Contractor has arranged for SCRRA safety training as well as protective services (SCRRA Railroad Employee (SRE) and/or other protective services to be determined by SCRRA) and has paid all charges and fees. A fully executed copy this Form 6 must be in the possession of the contractor at the job site and must be produced by Contractor upon request by SCRRA, a law enforcement officer or Member Agency's representative. If said Agreement is not produced, SCRRA has the right to suspend work in the Right of Way until Contractor demonstrates possession of Agreement at the job site. Termination of A reement SCRRA or Member Agency reserves the right to terminate or revoke this temporary Agreement at any time upon two hours notice; however, in the event of an unsafe condition on the Right of Way, SCRRA shall have the right - to- terminate this Agreement immediately, without any advanced notice. _Unless subsequently modified, extended, terminated or revoked by SCRRA, this temporary Agreement shall extend until the work authorized hereunder is completed or accepted by SCRRA. In any event, however, the Agreement shall be automatically terminated if or when the insurance that the Contractor is required to maintain hereunder lapses or expires. The Contractor agrees to notify SCRRA, in writing and orally, when use of the Right of Way or work is completed (see Section 18 of this Agreement for SCRRA contact). Under no circumstances shall the temporary right of entry provided for under this Agreement be construed as granting to the Contractor or its Subcontractors and agents any right, title or interest of any kind or character in, on or about any Property. At the request of SCRRA or Member Agency, Contractor shall remove from the Right of Way any employee or other individual who has not completed safety training or otherwise fails to conform to the instructions of SCRRA's or Member Agency's representative in connection with work on the Right of Way. Any right of Contractor to enter upon the Right of Way shall be suspended until such request of SCRRA or Member Agency is met. Contractors shall defend, indemnify and hold harmless SCRRA and Member Agency against any claim arising from the removal of any such employee or other individual from the Right of Way. 5. Indemnification Contractor, on behalf of itself and its employees, subcontractors, agents, successors and assigns, agrees to SCRRA FORM NO. 6 Page 2 of 13 09/25/05 indemnify, defend, by counsel satisfactory to SCRRA and Member Agency, and hold harmless "Indemnitees", and each of them to the maximum extent allowed by law, from and against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including incidental consequential damages), costs and expenses (including, without limitation, any fines, penalties, judgments, actual litigation expenses and experts' and actual attorneys' fees), that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the acts or omissions of the Contractor or its officers, directors, affiliates, subcontractors or agents or anyone directly or indirectly employed by them or for whose acts the foregoing persons are liable (collectively, "Personnel") in connection with or arising from the presence upon or performance of activities by the Contractor or its Personnel with respect to the Right of Way, (ii) bodily and/or personal injury or death of any person (including without limitation employees of Indemnitees) or damage to or loss of use of Property resulting from such acts or omissions of the Contractor or its Personnel or (iii) non-performance or breach by Contractor or its Personnel of any term or condition of this Agreement, in each case whether occurring during the term of this Agreement or thereafter. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused by the sole negligence or willful misconduct of Indemnitees, and is in addition to any other rights or remedies, which Indemnitees may have under the law or under this Agreement. Claims against the Indemnitees by the Contractor or its Personnel shall not limit the Contractor's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any limitation of the amount or type of damages, compensation or benefits payable by or for the Contractor or its Personnel under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance. The provisions of this section shall survive the termination or expiration of this Agreement. 6. Assumption of Liability To the maximum extent allowed by law, the Contractor releases Indemnitees from and assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, the Property and/or Right of Way and any other property of or under the control or custody of, the Contractor or its personnel in -connection- with anyacts undertaken under or in connection with this Agreement. The Contractor's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvements (including easement, lease or license agreements for other existing improvements and utilities) on the Right of Way, accident or fire or other casualty on the Right of Way or electrical discharge, noise or vibration resulting from SCRRA, Member Agency and Operating Railroad transit operations on or near the Right of Way and any other persons or companies employed, retained or engaged by SCRRA or Member Agency. The Contractor, on behalf of itself and its Personnel (as defined in Section 5, "Indemnification") as a material part of the consideration for this Agreement, hereby waives all claims and demands against the Indemnitees for any such loss, damage or injury of the Contractor and/or its Personnel. The Contractor waives the benefit of California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The provisions of this Section shall survive the termination or expiration of this Agreement. Insurance The Contractor, at its sole cost and expense, shall obtain and maintain in full force. and effect during the term of this Agreement insurance as required by SCRRA or Member Agency in the amounts, coverage, and terms and conditions specified, and issued by insurance companies as described on Exhibit "A". SCRRA FORM NO. 6 Page 3 of 13 09/25/05 SCRRA or Member Agency reserve the right, throughout the term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement. Prior to entering the Right of Way or performing any work or maintenance on the Right of Way, the Contractor shall furnish SCRRA with insurance endorsements or certificates in the form of Exhibit "B", evidencing the existence, amounts and coverage of the insurance and signed by a person authorized by the insurer to bind coverage on its behalf. In most instances, SCRRA and Member Agency do not allow self-insurance; however, if the Contractor can demonstrate assets and retention funds meeting SCRRA and Member Agency self-insurance requirements, SCRRA and Member Agency may in SCRRA's sole and absolute discretion permit the Contractor to self -insure. The right to self -insure with respect to any coverage required hereunder may be granted or revoked at the sole and absolute discretion of SCRRA or any Member Agency. SCRRA or Member Agency shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by the Contractor under this Agreement. Contractor affirms that all subcontractors covered by this Agreement are insured to the same limits required of the Contractor or included in Contractor's policy. Prior to the expiration of any policy, the Contractor shall furnish SCRRA with certificates of renewal or "binders" thereof. Each certificate shall expressly state that such policies shall not be cancelable or otherwise subject to modification except after thirty (30) days prior written notice to SCRRA and Member Agency. No Assiomen# The Contractor shall not assign this Agreement or any right hereunder without SCRRA's and Member Agency's prior written consent. 9. Compliance by Contractor The Contractor shall take all steps necessary to assure that its subcontractors comply with the terms and conditions of this Agreement and applicable laws and regulations. The Contractor shall assure that no lien is placed against the Right of Way arising from performance of work hereunder by Contractor or any subcontractor, and in the event of such a lien, Contractor shall immediately remove or cause to be removed such lien. - 10- _ Safety Orientation Class_ _ The Contractor and his subcontractors shall be required to attend a SCRRA Safety Orientation Class prior to receiving permission to enter the Right of Way. 11. SCRRA Safety and Protective Services The Contractor must request and arrange for on track safety protection satisfactory to SCRRA in the following circumstances: A. When Contractor's personnel or equipment encroach onto the Right of Way unless specifically exempted by SCRRA due to physical separation between tracks and Contractor's operation; B. When any part of any equipment is standing or being operated within or adjacent to the Right of Way or when any erection or construction activities are in progress within such limits; C. For any excavation within the railroad Right of Way; D. For any clearing, grubbing, grading or blasting in proximity to the Right of Way which, in the opinion of SCRRA or Member Agency's representative, may endanger the Right of Way or operations; SCRRA FORM NO. 6 Page 4 of 13 09/25/05 E. For any street construction and maintenance activities, located within the Right of Way or in the vicinity of an at -grade crossing, requiring temporary work area traffic control; F. For any work activity on or adjacent to the Right of Way as required by the Maintenance of Way (MOW) office. The Contractor shall notify the SCRRA Training Officer (909-859-4113) to schedule mandatory safety training. Upon completion of safety training, the Contractor shall notify the SCRRA Maintenance of Way office (909-392-4506) a minimum of five (5) working days prior to beginning work on the Right of Way and secure any protection SCRRA deems necessary. This prior notification does not guarantee the availability of on track safety protection for the proposed date of construction. To the full extent of Paragraph 5 above (Indemnification), Contractor agrees to indemnify SCRRA against any and all claims resulting from sickness or any other absence. 12. Reimbursement of Costs and Expenditures The Contractor agrees to reimburse SCRRA or Member Agency for all cost and expense incurred by SCRRA or Member Agency in connection with said work, including without limitation the expense of engineering plan review, staff costs to process approvals and agreements, safety training, furnishing an SCRRA Railroad Employee and protective services as SCRRA deems necessary. Contractor agrees to reimburse SCRRA for all construction related services including but not limited to installation and removal of falsework beneath tracks, restoration of railroad roadbed and tracks, installation of appropriate protective devices, temporary and permanent repairs of signal or communication equipment, restoration of the Right of Way to a condition satisfactory to SCRRA's and Member Agency's representative. The Contractor agrees to reimburse SCRRA or Member Agency actual cost and expense reasonably incurred for all services and work performed in connection with said work, including SCRRA's allocated overhead and fringe benefits. SCRRA will charge the Contractor four hours minimum for the mandatory safety training class and for other services four hours or less in duration. SCRRA will charge the Contractor for eight hours minimum if the Contractor cancels SCRRA services after SCRRA Railroad Employee or SCRRA Safety Training Officer is on site on the day of the appointment. The Contractor also agrees to reimburse SCRRA, Member Agency and/or Operating Railroad for any and all cost and expense incurred as a result of Contractor's work which may result in (i) unscheduled delay to the trains or interference in any manner with the operation of trains, (ii) unscheduled disruption to normal - train operation, (iii) unreasonable inconvenience to the public or private user of the system, (iv) loss of revenue and (v) alternative method of transportation for passengers. SCRRA will submit final bills to the Contractor for cost incurred. Prior to commencement of work, the Contractor shall deposit with SCRRA the sum of dollars (S) representing the estimated expense to be incurred by SCRRA and Member Agency in connection with said work. As the work progresses, SCRRA may require additional progress payments as the scope of work changes or becomes clearer. SCRRA may discontinue services to Contractor pending receipt of progress payments. The deposit and progress payments shall be applied to SCRRA's and Member Agency's actual costs and expenditures. The Contractor shall be responsible to pay any amount exceeding the above payments upon receipt of notice or invoice by SCRRA. SCRRA shall exercise its best efforts to provide final invoicing to Contractor within 90 days following completion of the work; however, Contractor acknowledges that it shall be responsible for payment of all expenses incurred by SCRRA and Member Agency in connection with the work even if the final invoicing is provided to Contractor thereafter. Upon satisfactory completion of all work, any payments in excess of SCRRA's and Member Agency's costs and expenditures shall be returned to the Contractor within reasonable time. If there is no amount indicated in the blank space provided above for the deposit to be made by the SCRRA FORM NO. 6 Page 5 of 13 09/25/05 Contractor, and if prior SCRRA written approval is obtained, in lieu of such deposit, Contractor shall cause surety bond to be executed by a reliable surety acceptable to SCRRA and Member Agency, conditioned upon the faithful performance of the provisions of this Agreement. 13. Ternvorary Traffic Control Temporary traffic control shall be used when a maintenance or construction activity is located on the Right of Way or when the activity is located in the vicinity of a highway -rail grade crossing, which could result in queuing of vehicles across the railroad tracks. Refer to SCRRA's "Temporary Traffic Control Guidelines" for further information on definitions, referenced standards, traffic control plans, submittals, traffic control elements and responsibility/authority for temporary traffic control at highway -rail grade crossings. The guidelines provide acceptable alternatives and procedures, which prescribe appropriate temporary traffic control measures at highway -rail grade crossings and are available on the SCRRA website. (littn://www.metrolinktraiiis.com/Public Projects Site/PDF Files/TernporM Traffic Control Guidelines, d 14. Environmental Health and Safety Plan Contractor shall immediately notify SCRRA and the appropriate regulatory agency (ies) of any spill, release, discharge or discovery of any hazardous material or contaminants in, on or under the Property. After providing such notice to SCRRA and the appropriate regulatory agency (ies), any contaminated soils or hazardous materials which are spilled, released, discharged or discovered by the Contractor, shall be promptly removed and disposed of by Contractor in accordance with all the applicable laws at Contractor's sole cost and expense. To the extent preexisting contamination or hazardous material, which was not caused or contributed to by Contractor, is discovered or unearthed by Contractor, Contractor shall only be obligated by this provision to removing and disposing of that portion of the contaminated soils or hazardous materials that are unearthed or otherwise disturbed during Contractor's operations. Prior to entry onto the Property, Contractor (s) performing trenching, excavations or soil borings may be required by SCRRA to submit a "Hazardous Materials Work Plan." If required, said plan shall include Contractor's site-specific health and safety plan and any other information that SCRRA may require. Contractor shall ensure that all documentation for transportation or disposal of contaminated soils of hazardous materials is prepared in the Contractor's name only and that neither SCRRA nor Member Agency shall have any responsibility or liability therefor. Contractor shall defend and indemnify SCRRA for any spill,_release or discharge_ of contaminants or hazardous materials by Contractor in connection with activities hereunder in accordance with Section 5 Indemnification (Page 2 of 12) 15. Warranty for Plan Review Review and or approval of the plans and calculations by SCRRA shall not relieve the Contractor of responsibility for full compliance with contract requirements, correctness of design drawings and details, proper fabrication and construction techniques and coordination with other government and private permitting agencies, nor shall such review or approval by SCRRA in any way relieve Contractor from, or otherwise modify, Contractors' indemnity obligations (Section 5) or assumption of liability obligations (Section 6). Execution of this right of entry does not imply design warranty or responsible charge on the part of SCRRA engineering employees. The parties expressly agree that SCRRA makes no warranty of any kind and assumes no responsibility therefore. 16. Miscellaneous Wherever the context of this document so requires, words used in the masculine gender shall include the feminine and neuter genders; words used in the neuter gender shall include the masculine and feminine genders; words in the singular shall include the plural; and words in the plural shall include the singular. SCRRA FORM NO. 6 Page 6 of 13 09/25/05 17. Emergency Teleiphone Numhers The Contractor must immediately contact SCRRA in case of accidents, personal injury, defect in track, bridge or signals or any unusual condition that may affect the safe operation of the railroads. The following are SCRRA's emergency numbers: Signal emergencies and grade crossing problems (888) 446-9721 Metrolink Chief Dispatcher (909) 593-0661 or (888) 446-9715 Metrolink Sheriffs Dispatcher (323) 563-5280 Signal and Communications Cable Location (909) 392-8476 18. Notices Except as otherwise provided in this agreement, all notices, statements, demands, approvals or other communications to be given under or pursuant to this agreement will be in writing, addressed to the parties at their respective addresses as provided below and will be delivered in person or by certified or registered mail, postage paid or by telegraph or cable, charges pre -paid. SCRRA: Manager Public Projects Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600 Los Angeles, CA 90017-4101 Attn: Right of Way Engineer 213/452-0256 Contractor: Contractor's address is shown below. 19. California Law This agreement shall be construed and interpreted in accordance with and governed by the laws of the State of California. SCRRA FORM NO 6 Page 7 of 13 09/25/05 The Contractor hereby agrees to the terms as set forth in this Agreement and hereby acknowledges receipt of this Agreement and of the insurance certificate forms (Exhibits A & B) herein provided. (Name of Contractor) (Address) (Telephone) (Signature) (Print Name) (Title) (Contractor's State License No.) (Fax) Receipt of the foregoing agreement and certificated of insurance furnished by the Contractor are hereby acknowledged on this day of 20 SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY By: Right of Way Engineer By: Manager Public Projects [Approved As To Form By Legal Counsel] SCRRA FORM NO. 6 Page 8 of 13 09/25/05 EXHIBIT "A" INSURANCE REQUIREMENTS FOR RIGHT OF ENTRY AGREEMENTS Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to Property, which may arise from or in connection with the performance of the work by the Contractor, his agents, representatives, employees or subcontractors. Miniinum Scopeoflnsurance Coverage shall be at least as broad as: Z Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). ❑D Insurance Services Office form No. CA 0001 (Ed. 1/87) covering Auto. Liability, code 1(any auto). Worker's Compensation insurance as required by the State of CA. & Employer's Liability Insurance. ❑ Course of Construction insurance form providing coverage for "all risks" of loss. ❑ Property insurance against all risks of loss to any tenant improvements or betterment. ❑ Contractor's Pollution Liability 2. Minimum Limits of Insurance Contractor shall maintain limits no less than: ❑x General Liability: $2,000,000 per occurrence for bodily injury, personal injury and Property damage. ❑x If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. ❑D Automobile Liability: $1,000,000 per accident for bodily injury and Property damage. Employer's Liability: $1,000,000 per accident for bodily injury or disease. ❑ Course of Construction: Completed value of the project. ❑ Property Insurance: Full replacement cost with no coinsurance penalty provision. ❑ Contractor's Pollution Liability: $1,000,000 per occurrence/$2,000,000 annual aggregate Certificate Halder/Additional Insured Certificate holder and/or insured will be the following: Southern California Regional Rail Authority (SCRRA) Additionally Insured will be the following: Los Angeles County Metropolitan Trans. Auth. (MTA) Burlington Northern Santa Fe Corp. (BNSF) Orange County Transportation Authority (OCTA) Union Pacific Railroad Company (UPRR) Riverside County Transportation Commission (ROTC) National Railroad Passenger Corporation (Amtrak) San Bernardino Associated Government (SANBAG) Ventura County Transportation Commission (VCTC) 4. Railroad Protective Liability Insurance 0 Railroad Protective Liability Insurance The Contractor shall provide, with respect to the operations they or any of their subcontractors perform on the Property, Railroad Protective Liability Insurance, AAR-AASHTO (ISO/RIMA) in the name of the railroads and Member Agencies shown in Section 3 above. SCRRA FORM NO. 6 Page 9 of 13 09/25/05 The policy shall have limits of liability of not less than $2 million per occurrence, combined single limit, for coverage and 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. A $6 million annual aggregate shall apply. If coverage is provided on the London claims -made form, the following provisions shall apply: A. The limits of liability shall be not less than $3 million per occurrence, combined single limit. A $9 million aggregate may apply. B. Declarations item 6, extended claims made date, shall allow an extended claims made period no shorter than the length of the original policy period plus one year. C. If equivalent or better, wording is not contained in the policy form, the following endorsement must be included: It is agreed that "physical damage to Property" means direct and accidental loss of or damage to rolling stock and their contents, mechanical construction equipment or motive power equipment, railroad tracks, roadbed, catenaries, signals, bridges or buildings. For certain low -hazard activity, Contractor may request that the SCRRA and Member Agency waive the requirement to provide the Railroad Protective Liability Insurance. If the exposure to the track is physically separated by a building, floor or a continuous fence (no thoroughfares) and the employees of the Contractor are explicitly notified that they are not permitted to have any contact with the track, the Railroad Protective Liability Insurance requirement may be waived by SCRRA's Manager Public Projects or his/her designated representative. Deductibles and Self -Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by SCRRA and Member Agency. At the option of SCRRA, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects SCRRA and Member Agency, its officials and employees or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 6. Other Insurance ProViglsins. The General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions: A. SCRRA and Member Agency, its subsidiaries, officials and employees are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; premises owned, occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to SCRRA and Member Agency, its subsidiaries, officials and employees. B. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects SCRRA and Member Agency, its subsidiaries, officials and employees. Any insurance or self-insurance maintained by SCRRA and Member Agency, its subsidiaries, officials and employees shall be excess of the Contractor's insurance and shall not contribute with it. C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCRRA and Member Agency, its subsidiaries, officials and employees. D. The Contractor insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. SCRRA FORM NO. 6 Page 10 of 13 09/25/05 E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to SCRRA and/or Member Agency. Course of Construction policies shall contain the following provisions: A. SCRRA and Member Agency shall be named as loss payee. B. The insurer shall waive all rights subrogation against SCRRA and Member Agency. Accentability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise approved by SCRRA and Member Agency. Verification of Covera Contractor shall furnish SCRRA with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by SCRRA. All endorsements are to be received and approved by SCRRA before work commences. As an alternative to SCRRA's forms, the Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. Subcontractors Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. 10. Train Services Approximate daily train traffic is passenger trains and freight trains. 11. Submittal The original insurance policy (s) shall be submitted to: Manager Public Projects Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600 Los Angeles, CA 90017-4101 Attn: Right of Way Engineer 213/452-0256 SCRRA FORM NO. 6 Page 11 of 13 09/25/05 EXHIBIT "B" RAILROAD PROTECTIVE LIABILITY POLICY DRC I ARATION POLICY Insurance Company: Policy Number: Policy Period: From: To: 12:0 lam Standard time at location CERTIFICATE HOLDER AND ADDITIONALLY INSURED Certificate Holder/Insured: Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600, Los Angeles, CA 90017-4101 Additionally Insured: Los Angeles County Metropolitan Transportation Authority (MTA) Burlington Northern Santa Fe Corporation (BNSF) Orange County Transportation Authority (OCTA) Union Pacific Railroad Company (UPRR) Riverside County Transportation Commission (RCTC) National Railroad Passenger Corporation (Amtrak) San Bernardino Associated Governments (SANBAG) Ventura County Transportation Commission (VCTC) LIMITS OF INSURANCE Aggregate Limit $6,000,000 Each Occurrence Limit $2,000,000 DESCRIPTION OF WORK AND JOB LOCATIONS) NAME AND ADDRESS OF DESIGNATED CONTRACTOR -NAME-AND ADDRESS -OF WVOL•YED GOVERNMENT -AUTHOR- OR.OTHER.CONTRACTING PARTV PREMIUM Contract Cost Premium Base Rate per 1,000 of Advance Premium FORM OF ENDORSEMENT Title Number COUNTERSIGNATURE Countersigned by Date (Authorized Representative) SCRRA FORM NO.6 Page 12 of 13 09/25/05 EXHIBIT "B" CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY) Southern California Regional Rail Authority (SORRA) PRODUCER THIS CERTIFICATE OF INSURANCE IS NOT AN INSURANCE POLICY AND DOES NOT AMEND, EXTEND OR ALTER THIS COVERAGE AFFORDED BY THE POLICY BELOW. COMPANIES AFFORDING COVERAGE COMPANY A LETTER COMPANY B LETTER INSURED COMPANY C LETTER COMPANY D LETTER COMPANY E LETTER COVERAGES THIS 1S TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENTS, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR DATE (MM/DD/YY) DATE (MM/DD/YY) GENERAL LIABILITY GENERAL AGGREGATE S ❑ COMMERCIAL GENERAL LIABILITY PRODUCTS-COMPIOP AGG. S ❑ CLAIMS MADE ❑ OCCUR. PERSONAL & ADV. INJURY S El OWNERS & CONTRACTOR'S PROT, EACH OCCURRENCE FIRE DAMAGE (Any one fire) 5 S ❑ OTHER MED, EXPENSE S (Any one person) AUTOMOBILE LIABILITY COMBINED $ ❑ ANY AUTO SINGLE LIMIT ❑ ALL OWNED AUTO ❑ SCHEDULED AUTOS BODILY INJURY (Per person) S ❑ HIED AUTOS ❑ NON -OWNED AUTOS BODILYINJURY 9 ❑ GARAGE LIABILITY (Per accident) PROPERTY DAMAGE S EXCESS LIABILITY EACH OCCURRENCE $ ❑ UMBRELLA FORM ❑ OTHER THAN UMBRELLA FORM AGG'REG'ATE $ Pr'R�OPERTY INSURANCE AMOUNT OF INSURANCE $ .,.t��QI �-CF OF COIysTBIL�TT9� _ WORKER'S COMPENSATION STATUARY LIMITS AND EACH ACCIDENT $ EMPLOYER'S LIABILrrY DISEASE -POLICY LIMIT $ DISEASE -EACH EMPLOYEE S DESCRIPTION OF OPERATIONS/LOCATIONSIVEHICLES/SPECIAL ITEMS THE FOLLOWING PROVISIONS APPLY: 1. None of the above-described policies will be canceled, limited in scope of coverage or nonrenewed until after 30 days' written notice has been given to SCRRA at the address indicated below. 2. As respects operations of the named insured performed on bobalf of SCRRA, the following are added as additional insured on all liability insurance policies listed above: SCRRA, its Member Agencies, Operating Railroads, its subsidtnries, of icials and employees. 3. It is agreed that any insurance of self-insurance maintained by SCRRA will apply in excess of and not contribute with, the insurance described above. 4. SCRRA is named a loss payee on the property insurance policies described above, if any. 5- All rights of subrogation under the property insurance policy listed above have been waived against SCRRA. 6. Any failure by the'insurcd to Comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCRRA, its Member Agsnaies, its subsidiaries, affrciais and employees. 7. The worker's compensation insurer named above, if any, agrees to waive all rights of subrogation against SCRRA for injuries to employees of the insured resulting from work for SCRRA or use of Member Agencies premises or facilities. CERTIFICATE HOLDER AUTHORIZED REPRESENTATIVE Southern California Regional Rail Authority (SCRRA) 700 South Flower St., Suite 2600, Los Angeles, CA 90017-4101 SIGNATURE ADDITIONAL INSURED TITLE MTA, OCTA, RCTC, SANBAG, VCTC BNSF, UPRR, AMTRAK PHONE NO. SCRRA FORM NO. 6 Page 13 of 13 09/25/05 SCRRAFORM [Section 4.01(1)] General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property F:\FILES\WP51\DLB\AZUSA\CITRUS AVE BRIDGE AGMT.DOC 04/24/06 (See Attached) Exhibit E SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY 11 �IIMETROLINK -General Safety- Regulations for Third Party Construction and Maintenance Activity on SCRIZA Member Agency Property 2002 ii TABLE OF CONTENTS ACKNOWLEDGEMENT OF THE RECEIPT i I. OVERVIEW 1 - ------- ------ III. II_ Right -of -Way Encroachment Approval Procedures_ - ` F-•-----_-�^-��--� - - - - 3 - I A. - REVIEW PROCESS 3 1 �- --------•------- - - - _ - �._ _ _.._ __.. --- - - -- --- -� _ - ---•------------ --- - - -._ I ! B APPROVAL PROCESS ! 3 ! L-------------'------------------------------------ .------J ! C. Documentation and Identification 14 i 1-------------------------------------•-------------------------------- — _ --- _.. .— ---- - -r --- --� III. General Responsibilities and Safety ---- .__-_ A.__.- OVERVIEW -- - - - - - - B. EMPLOYEE IN CHARGE (EIC) C. JOB BRIEFINGS ` ._._._. D. �^ ~General Safety ------ ------- E. Right -of -Way Safety F. i------- M Personal Protective Equipment ---- --- --..._.._-_.. _---------'--- — G. House Keeping }------------•------- -- --- -------------------------- i H. Electrical I. HAND TOOLS 4 4 4 5 !6 ' _— -----__._..------------- --------- .-. i .--.------------------ __ L 6 _._. ,g -� -------------------------------------------- - _i8.� i -------- --•----------- -------- ---------- --------}-------� --------------------•---------------------------•{ 9 - --•� J. EMERGENCY SITUATIONS i 10 I K. RAILROAD FLAGGING/PROTECTION ----------- - _____-_Work Equipment IV. DEFINITIONS 11 12 13 ._-_____-__ _ _ 1--- _.--_-_--- ---------- ------------------------------- w_-»._...._...- -- ______.____�_�___l__._-_.1 All Contractors' employee(s), regardless of gender, whose duties are affected by them, must comply with these rules. They supersede all previous General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property. iii Acknowledgement of the receipt of GENERAL SAFETY REGULATIONS FOR THIRD PARTY CONSTRUCTION AND MAINTENANCE ACTIVITY ON SCRRA MEMBER AGENCY PROPERTY Southern California Regional Rail Authority (SCRRA) is a joint powers authority of five county transportation authorities, organized under the provisions of the Joint Powers Act, Section 6500 et sea. of the California Government Code and Section 130255 of the California Public Utilities Code, that builds, maintains, and operates Metrolink commuter railway system within Los Angles, Orange, Riverside, San Bernardino and Ventura Counties. The rules published herein are for the benefit of the third party contractor personnel and others who are involved in construction, maintenance or other activities while on SCRRA member agency property. Employees must be knowledgeable of and obey these rules and instructions at all times. If in doubt as to the meaning, they must ask their supervisor for an explanation. Violation of any of these safety rules subjects the Cotractor to work stoppage until compliance is reached. These rules coincide with the General Code of Operating Rules for Maintenance of Way Employees. These rules and instructions supersede any previous safety rules and regulations governing third party contractors working on SCRRA member agency property. In addition, affected employees must observe the applicable portions of all other rules with any other applicable or subsequent instruction. The intention of these safety rules is to advise third party contractor personnel working on SCRRA member agency property that Safety is of the utmost importance. For this reason, employees to whom these rules and regulations apply shall: • Be furnished a copy of the "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property". • Be required to read and study these rules and regulations as furnished. • Know and understand their application. ■ Have a copy of these rules and regulations in their possession while on duty or on SCRRA member agency property. • Immediately call to the attention of a supervisor and the SCRRA EIC any action not in compliance with these rules and regulations. ■ Hold daily safety meetings and/or job briefings prior to beginning work; change in work — --and/or-fouling-the track. All Third Party Contractor personnel working on or about SCRRA property shall attend a Safety class given by SCRRA prior to beginning work. SCRRA management will regularly make observations and checks and advise the Training Manager or Supervisor to take the necessary action(s) to ensure compliance with the Safety Rules and Regulations. Director of Engineering and Construction This is to certify that I have been issued a copy of the "General Safety Regulations for Third Party Construction. and Maintenance Activity on SCRRA Member Agency Property". Print Employee Name .Signature Company Date GENERAL SAFETY REGULATIONS FOR THIRD PARTY CONSTRUCTION AND MAINTENANCE ACTIVITY ON SCRRA MEMBER AGENCY PROPERTY I. Overview Southern California Regional Rail Authority (SCRRA) is a joint powers authority of five county transportation authorities, organized under the provisions of the Joint Powers Act, Section 6500 et sea. of the California Government Code and Section 130255 of the California Public Utilities Code, that builds, maintains, and operates Metrolink commuter railway system within Los Angles, Orange, Riverside, San Bernardino and Ventura Counties. The rules published herein are for the benefit of the third party contractor personnel and others who are involved in construction, maintenance or other activities while on SCRRA member agency property. Employees must be knowledgeable of and obey these rules and instructions at all times. If in doubt as to the meaning, they must ask their supervisor for an explanation. Violation of any of these safety rules subjects the Contractor to work stoppage until compliance is reached. These rules coincide with the General Code of Operating Rules for Maintenance of Way Employees. These rules and instructions supersede any previous safety rules and regulations governing third party contractors working on SCRRA member agency property. In addition, affected employees must observe the applicable portions of all other rules with any other applicable or subsequent instruction. The intention of these safety rules is to advise third party contractor personnel working on SCRRA member agency property that Safety is of the utmost importance. For this reason, employees to whom these rules and regulations apply shall: • Be furnished a copy of the "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property". • Be required to read and study these rules and regulations as furnished. • Know and understand their application. • Have a copy of these rules and regulations in their possession while on duty or on SCRRA member agency property. • Immediately call to the attention of a supervisor and the SCRRA EIC any action not in comp fiance with t ese rules ana regulations. ■ Hold daily safety meetings and/or job briefings prior to beginning work; change in work and/or fouling the track. All Third Party Contractor personnel working on or about SCRRA property shall attend a Safety class given by SCRRA prior to beginning work. SCRRA management will regularly make observations and checks and advise the Training Manager or Supervisor to take the necessary action(s) to ensure compliance with the Safety Rules and Regulations. Director of Engineering and Construction 2 GENERAL SAFETY REGULATIONS FOR THIRD PARTY CONSTRUCTION AND MAINTENANCE ACTIVITY ON SCRRA MEMBER AGENCY PROPERTY H. RIGHT-OF-WAY ENCROACHMENT APPROVAL PROCEDURES. Contact must be made by the Third Party Contractor with the appropriate SCRRA representative who will cooperatively work with the Contractor to ensure that all appropriate documents, plans and agreements have been submitted, reviewed, approved and executed. These procedures can also be found by visiting the Metrolink website at www.metrolinktrains.com under Public Projects/Engineering. A. REVIEW PROCESS 1. SCRRA reviews engineering plans for compliance to technical and safety regulations, which include but are not limited to: ■ Location of work, • Horizontal and vertical clearances to tracks, ■ Shoring, jacking and false work, ■ Any issue determined to impact safety or railroad operations, • Maintainability, • Drainage impacts, • Access to member agency property, • Compatibility with future plans for rail improvements or use of rail roadway, • Existing underground railroad utilities (signal & communications lines). 2. Member Agency (MTA, OCTA, etc) Real Estate Department will review applications for use of the right -of way. Right of entry cannot be granted until both SCRRA and member agency real estate approvals are complete. B APPROVAL PROCESS 1. The Contractor shall submit a right-of-way encroachment application with three (3y e pies-uf` pp ftal5ledeftff urmmt7ructim-ftwiYr "Hal prints of 24"x36" drawings are generally acceptable.) 2 SCRRA will provide written comments on all submittals. If there are no comments requiring corrections, SCRRA will advise the applicant in writing and will then advise the Contractor of the requirements to obtain the Right -of -Entry from SCRRA. 4. Real Estate Agreement (Lease, License or Easement) from SCRRA member agency. The approved SCRRA Right -of -Entry document consists of: • Right -of -Entry Agreement (Form 6) or, • Indemnification and Assumption of Liability (Form 5) or, ■ Agreement for House Moving (Form 4). These form demonstrate approval by SCRRA of the technical aspects of the work and the insurance and indemnification certifications. In addition to the above form(s) the complete Right -of -Entry package will include reference to the approved drawings and to any unique instructions, specifications, MOU or other requirements of the SCRRA. 6. When all required agreements have been executed, (including Right -of - Entry) the Contractor must contact SCRRA Right -of -Way Engineer, or designee, to obtain a SCRRA EIC for the work to be done. C. DOCUMENTATION AND IDENTIFICATION All Third Party Contractors working on SCRRA property must have a Right of Entry or other approved document(s) with them at all times when on property. In addition, all individuals working or otherwise entering SCRRA member agency property must have: Approved picture identification Picture ID can be: current valid driver license, employer issued identification, etc. • Must be SCRRA safety trained annually. • Must display current safety trained sticker on their hard hat. Please note that failure to have approved Right -of -Entry document, picture identification and SCRRA safety trained sticker, is grounds for removal from property. III. GENERAL RESPONSIBILITIES AND SAFETY A. Overview These safety regulations govern your activities while on SCRRA member agency property regardless if on or off duty. Any work performed without obtaining proper authorization or compliance with these rules will permanently jeopardize your ability to be allowed on railroad right-of-way. These rules cover unique requirements and general workplace safety. B. Employee In Charge 1. Duties and Responsibilities: On -Track Safety. Work performed by any contractor is regulated by Title 49 Part 214 of the Code of Federal Regulations, as specified in SCRRA's General Code of Operating Rules (GCOR) and as administered by a SCRRA EIC. A SCRRA EIC is referred to as providing "Flag" protection against trains. SCRRA EICs have been trained and qualified in GCOR and the characteristics of the SCRRA territory. They will provide selected training, job briefings, and flag protection to assure both the contractor's safe work environment and the safe passage of trains. The SCRRA EIC has the authority to temporarily or permanently halt work and to remove contractor's employee(s) from the right -of- way in order to assure safe work. In all cases the contractor's employees must comply immediately with the instructions of the EIC. 4 2. Appeals: Right To Challenge Contractor employees may, during the job briefing process, request clarification of the protection against trains being provided by the EIC. If the Contractor employee does not believe that the protection against trains is sufficient, the employee may, in good faith, challenge the EIC's form of protection and must remain clear of all tracks until the challenge is resolved. The EIC, Contractor Supervisor and the SCRRA Supervisor will resolve the challenge before work can begin. 3. Appeals: EIC Decisions If the Contractor has concerns about instructions of the EIC, the Contractor and Contractor's employees are to immediately comply with the EIC's instructions. After employees are clear of tracks, Contractor may contact EIC's Supervisor to resolve concerns. In other words, "comply, then complain." C. Job Briefings Job briefings, as given by the EIC, are meetings of all who are or will be involved in a particular task or job at the same work site and are required prior to beginning work each day. 2. All information related to On -Track -Safety must be given in the job briefing to any worker who will enter railroad property. In addition to other safety issues, the minimum On -Track Safety information must include: ■ Designation of the Employee In Charge (EIC), ■ Type of track protection, • Time limits of the protection, • Track(s) that may be fouled, • Status of other track(s) at worksite, • A designated place of safety where workers clear for trains, • A designated assembly place in case of an emergency, • Designated work zones, • Specific job(s) to be done or equipment moves(s) to be made, • Responsibilities of each worker, • Method of notification (e.g. air horn) of approach of trains. Additional instructions may include an unusual or a specific reminder due to a hazardous condition or unusual practice. Additional job briefings will be given when: • Working conditions or procedures change, • Workers arrive late or new workers enter working limits, ■ When the main track protection or time allowed to foul the track changes, • When visitor(s) enter the work site. D. General Safety SAFETY IS PARAMOUNT AND ALWAYS TOP PRIORITY. Safety takes precedence over deadlines, production schedules, and all other considerations. When uncertainty arises, take the safe course. Remember accidents are a result of carelessness, unsafe practices, lack of attention or complacency. Any accident can be avoided. 2. Using, possessing, or working under the influence of alcohol and /or drugs is not permitted while working anywhere on railroad property. This includes prescription drugs that cause drowsiness or otherwise impair one's ability to perform their as$igned task. The use or possession of unauthorized radio equipment is forbidden. Use of personal radios, portable tape cassette players or portable disc or record players while working is prohibited. 4. Horseplay, physical altercations, running or jumping are forbidden. Firearms or other deadly weapons, including knives with a blade in excess of three (3) inches are prohibited on SCRRA member agency property. Work on public streets, roadway crossings, and highway bridges should be performed with due regard for the convenience and safety of the public. All employees must look in both directions before crossing any track or roadway. Only authorized employees are allowed on engines, cars, cabooses, track cars or other railroad equipment. en using cellular priones you must remain afleast 2 - ee om he nearest running rail E. RIGHT-OF-WAY SAFETY When on or near the tracks, the following precautions must be taken: 1. Keep clear of all tracks unless an SCRRA EIC protects them. 2. Before crossing tracks look both ways. Expect movement of locomotives, railroad cars or on -track equipment in either direction at any time. (Remember: there could be an uncontrolled movement.) 4. Always step over the rails when crossing the tracks. Never walk, stand, or sit on the rails. The rail surface can be extremely slippery. Stay away from track switches. The switch points can move unexpectedly and with enough force to crush ballast rock! Stand 150 feet from track switches when trains are approaching, make sure that you face approaching trains at all times. Stay away from any other railroad device you are not sure of. When crossing the tracks in a group, walk single file. 7. Never stand between adjacent tracks in multiple track territory when a train is passing. When crossing tracks occupied by standing engines, railroad cars, or on - track equipment workers must provide at least 20 feet clearance from the end of any piece of equipment. 9. Do not cross track(s) if there is less than 50 feet between trains, cars, or equipment. 10. Employees must not cross tracks by going underneath, over or through cars, engines or on -track equipment. 11. Work is not allowed within 50 feet of the track centerline while trains are passing the work site. Always stand as far back as possible to prevent injury from flying debris or loose rigging. Face the direction from which the trains or on -track equipment is approaching 12. Visually inspect all passing trains. If you detect a dangerous condition, inform your EIC immediately. The EIC will warn the train crew to stop their train. If the train does not stop immediately, the EIC will notify the train dispatcher. 13. Never remain in a vehicle that is within 20 feet of the nearest running rail of a passing train. Stop your vehicle on the approach of a moving train. Move vehicles away from the track at least 20 feet or park the vehicles away from the tracks and, if safety permits, get out of your vehicle and walk to a safe location away from the tracks. 14. Equipment must be stopped while train is passing through your working limits. No movement will be allowed toward an approaching train that would cause the engineer to believe the track was going to be fouled. 15. Trains are traveling faster than they appear and are relatively quiet. Moving trains are to be expected on any track at anytime from either direction. Engines can push or pull a train. Employees should not rely on past experiences to determine train schedule. Train's schedules are unpredictable and trains are subject to schedule changes or delays. F. PERSONAL PROTECTIVE EQUIPMENT All employees working on SCRRA member agency property will be required to wear the following protective equipment (except in offices and motor vehicles): Hard hats that meet the requirements of ANSI Z89.1 or ANSI Z89.2, as specified by CAL/OSHA and /or Fed/OSHA must be worn. Metallic hard hats shall not be worn on any SCRRA project 2. Eye protection that meets the requirements of ANSI Z87.1 is required on SCRRA property. Eye protection with side shields which meets the requirements of ANSI Z89.1 is required for those employees or contractors falling under 49CFR 214. Orange vest with reflective tape for night work must be worn. An orange T-shirt, sweatshirt, jacket may be worn during the day. Footwear that provides ankle support has soles thick enough to give good traction and to withstand punctures from sharp objects and is a lace type boots at least 8" high with a defined heal. Steel toe boots are required for those employees who fall under 49 CFR 214 and are recommended for all. 5. Proper attire when working on SCRRA member agency's right-of-way includes: • Waist length shirts, with sleeves and ankle -length pants. • Clothing must not interfere with vision or hearing, and must allow free use of hands and feet. ■ Loose or ragged clothing must not be worn at anytime. ■ Neckties, or loose jewelry must not be worn while operating or working on machinery. • Shoes constructed without a defined heel, open toed, lounginor ing type shoes, unlaced shoes or unbuckled overshoes, badly worn with loose sole shoes must not be worn on SCRRA property. G. HOUSE KEEPING CPUC General Order 260 and 118 require that lateral and vertical clearance around a railroad track and a safe walkway parallel to both sides of the track be maintained. The EIC will observe construction and material storage activities and may direct contractor's employee(s) to correct conditions not in compliance with the CPUC General Orders. Keeping premises, tools and equipment in a clean and orderly condition is essential to safety and is the responsibility of the contract's employee(s). Material must not be stored closer than 20 feet of the closest rail. 4. Contractor's employee(s) must be aware of areas with spilled oil or grease and apply sand or an equivalent (approved) material to minimize slipping hazards. Contractor must remove all unused materials and debris created by the construction project. Clear site immediately of all tripping hazards such as wire, loose material, etc. Flammable materials, petroleum products, paints, caustics, acids and solvents must be stored in designated areas and in containers which are provided for them. Contractor is responsible for restoring the property to its previous condition or a condition of betterment, making repairs to drainage facilities, fences, gates, or buildings damaged or removed by the Contractor or its forces. H. ELECTRICAL Electric wires must be considered live at all times. Employees shall not depend on the insulation of wires for their safety. Employees must keep away from all overhead and underground wires they may come in contact with. 2. When using power cords, they must be placed 2 -inches below base of rail. Employees must not place any metal objects across rails. 4. Signal cables/conduits may be encountered or damaged while undergoing excavations aalon�i hr--of--way. Call -f e1 i signald-eS1K prior to excavations to have cable and conduits located. (888.446.9720) 5. Excavation is not permitted until: • Dig Alert (USA) — identification is complete, • SCRRA Signals Department has identified signal conduits. I. HAND TooLs Employees must inspect tools, machinery and equipment for defects before using. 2. Employees must use all tools and appliances in the manner intended and for the purpose designed and only those employees qualified and authorized to operate equipment and machinery can do so in the performance of duty. Tools and appliances must not be altered from their intended use. J. EMERGENCY SITUATIONS When persons are injured, everything possible must be done for their care. 2. If equipment was involved in the accident it must be examined to make sure the equipment was in proper working order. Any defective tools, machinery and equipment is prohibited from use. Report to the EIC by the first available means of communication any accidents, personal injuries, defects in tracks, bridges, signals utilities or communication facilities or any unusual condition that may affect the safe operation of the Railroad. 4. Employees must exercise care to prevent injury to themselves or others. They must be alert and attentive at all times when performing their work and plan their work to avoid injury. In case of personal injury, loss of life, or damage to property, the Foreman (Supervisor or others in charge) must immediately secure the names, addresses and occupation of all persons involved, including all persons at the scene regardless of whether these persons admit knowing anything about the accident. This information should be included in reports covering each occurrence. 6. If an accident causes personal injury or death, all tools, machinery and other equipment involved, including premises where such accident occurred must be promptly inspected by the Foreman or by other competent inspectors. Tools, equipment and machinery must be secured until Foreman, Safety Officer, or other competent inspector has completed. inspection. A report of such inspection, stating the conditions found and names of personsmaking he inspection, mus a promptly forwarded" o SCRRA and the supervising officer of person making the inspection. Information concerning accidents or personal injuries occurring to persons who are not employees, must not be given to anyone except authorized representatives of the SCRRA or an officer of the law. 8. Prior to starting work the EIC will have available on site, a list of these emergency phone numbers: • Ambulance, • Police, • SCRRA's and/or its operating contractors representative, • Metrolink Operation Center (MOC), • Signals emergency number. 10 K. RAILROAD FLAGGING/PROTECTION The Contractor's Foremen working on or about the tracks are responsible for the safety of their crews and must guard their crews against impending danger or injury. They shall bear in mind that Safety is the first and most important consideration. Contractor's Foreman must be advised of train, engine and on - track equipment movements and that protection has been furnished as required by On -Track Safety rules. The contractor must request and arrange for flagging services from SCRRA's authorized representatives five (5) working days before the work begins for the following conditions: 1. A railroad flagger is required for your protection any time you are on SCRRA member agency property. On -track protection will be provided by a flagger when the following work is being performed, but not limited to: • When any part of equipment is standing or being operated within 20 feet of the nearest track or has the potential to foul the track, ■ When any erection or construction activities are in progress within such limits, regardless of elevation above or below track, • For any excavation in or around the tracks that, in the opinion of SCRRA or it's member agency representative, may subject the tracks or other property to settlement or movement, ■ For any clearing, grubbing, or demolition in proximity to the property which, in the opinion of SCRRA, may endanger the property or operation, ■ For any street construction and maintenance activities requiringtemporary work area traffic control. All activities that change the flow of traffic across a railroad crossing, e.g., traffic cones, etc., must be protected. SCRRA must approve traffic control plans before work can begin. 2. A job briefing must be conducted prior to beginning any work and/or anyone fouling the track. A new job briefing will be conducted each time conditions of the protection change and/or new personnel arrive. Everyone must have a working knowledge of. The limits and time of the protection, Location of where everyone is to clear for all trains or on -track equipment. Good communication between the contractor and the EIC is imperative! The EIC is responsible for clearing all workers and/or equipment near or on the main track. 11 L. WORK EQUIPMENT 1. Equipment operators must be properly trained and qualified before operating equipment on railroad right-of-way, and must operate equipment in a safe, skillful and reliable manner. 2. Operators are responsible for knowing that their machines are in safe, operating condition before starting and must assure themselves that proper protection is being afforded their operations. Operators must make a running brake test before actual operations of work equipment when operating on the main track. The appropriate equipment must be used and operated for each task as per the manufacturer's instructions. 3. Do not engage in reckless operations of vehicles while on the railroad's right- of-way. The speed limit on the right-of-way is not more than 15mph and may be lowered if conditions warrant. Offenders may be asked to leave the railroad's right-of-way by any railroad employee or representative observing unsafe behavior. 4. Audible backup warning devices are required on all heavy equipment. 5. Operator must make sure that the equipment manual is on their machine. 6. While trains, engines or on -track equipment are passing: • Machines must be stopped, • Vehicles must be stopped, • Brakes must be set, • Buckets and shovels or clams must be lowered to rest, • Machines without buckets must have their load line tightened to prevent movement. 7. Operators are responsible for seeing that unauthorized persons are not carried on equipment and must know that persons qualified to be on equipment are properly positioned before movement is made. Do not transport passengers in truck beds or on heavy equipment. 8. Use of equipment such as loaders and backhoes to raise or lower people is strictly forbidden. 9. Operators of equipment must know the locations of overhead and underground utilities. Operator must have a clear understanding of how to protect utility lines before operating machinery. 10. NEVER move equipment across the tracks except at established road crossings. Tracked or rubber tire equipment will require the supervision of a SCRRA EIC any time railroad tracks are crossed. 11. NEVER move tracked or rubber tire equipment across railroad bridges or through tunnels. 12 12. When equipment is left unattended: • Motor must be stopped and ignition must be locked, • Parking or hand brake must be securely set, • Keys must be in possession of operator or authorized employee, • Wheels must be securely blocked on grades, • Equipment secured in a highly visible area. IV. DEFINITIONS Ballast — The rock that supports the track and ties. This rock is groomed to keep the track in place, drain water away from the track, and to distribute the weight of trains to surrounding soil. DO NOT DISTURB OR PLACE SOIL, SAND, OR DEBRIS ON IT. California Public Utilities Commission (CPUC) - The State Agency that administers certain rule regulations of the railroad industry. Center Line of Track — An imaginary line, that runs down the center of the two rails of a track. Confined Space — A space that is large enough and so configured that an individual can enter and perform assigned work. The space has limited or restricted means for entry or exit and is not designed for continuous individual occupancy. This would include but not limited to tanks, vessels, silos, storage bins, hoppers, vaults and pits. Contractor — Any Third Party Contractor's authorized worker, other than a railroad employee, who is working on railroad property. Derailment - A potentially dangerous condition, whereby rail cars or engines leave the tracks. Directional Bore — A method that controls the direction of boring and eliminates the need for multiple conventional bore pits allowing for a longer bore length than conventional methods. Directional bores utilizes pressurized bentonite to auger and T slurry to backfill the bore. Excess bentonite must be contained. Employee -In -Charge (EIC or SCRRA EIC) — A roadway worker designated to provide On -Track -Protection for one or more work groups. Engine — A unit propelled by any form of energy or more than one of these units operated from a single control typically referred to as a locomotive. Excavation — Any removal of earth. Any excavation and/or shoring, no matter how large or small requires prior approval from SCRRA Engineer. Fall Protection — A requirement of the FRA and SCRRA, that ensures training and protection for work performed on any bridge structure that is at a height of 10 feet or more above water or ground and/or while working at a height of 10 feet or more. Fill — A section of earth built up to support the railroad's track structure. 13 Foul the ballast — Anything that contaminates the ballast section of the roadbed and inhibits the ballast from supporting the track, draining water, or suppressing weed growth. In most cases ballast is fouled by excavated material being placed on the ballast. Foul the track — Placement of an individual or a piece of equipment in such a proximity to a track that the individual or equipment could be struck by a moving train or track equipment. SCRRA fouling distance is defined as within 20 feet from the nearest running rail. General Code of Operating Rules (GCOR) — The rules that govern the use of railroad tracks by trains, maintenance employees, contractors and others. Hy -rail Vehicle - This vehicle is considered on -track equipment. It is typically driven on highways, but has specially manufactured attachments that allow the vehicle to travel on railroad tracks. They are viewed as trains and only authorized railroad personnel may operate them. Industry Track — A secondary track designated to allow access to industries along the main track. Job Site — Any area where work is performed, where materials and equipment are stored, or which employees access during the project. Mainline (main track) — The primary track used by trains. Some of the routes have more than one track. Member Agency- is that specific county transportation Member Agency(s), whose Property is directly affected by the Contractor's actions. The five county transportation Member Agencies are the Los Angles County Metropolitan Transportation Authority, the Orange County Transportation Authority, the Riverside County Transportation Coiiuntgs off th-e7,Swi 8emrdiwAnuafated-Goremnznm, m -d- lre VvttmTCuunty Transportation Commission. Mileposts — Field indicators of approximate distance from a specific point the Railroad system used for approximate locations of Railroad facilities. They are not to be used for field surveys. MOU- is a memorandum of understanding. On -Track Equipment - Maintenance of Way machines such as track cars, Hy -rail vehicles, tampers, ballast regulators, etc. which may be operated on the track. On -Track Safety - A set of safety rules, developed and promulgated by the FRA, that must be complied with to work on or near railroad property. Specific training and obedience to these rules is a requirement of the FRA and is managed by SCRRA for its' member agencies. The GCOR embodies the FRA On -Track Safety Rules. When SCRRA rules are more stringent those rules shall apply. Loss of your privilege to work on SCRRA member agency right-of-way can result from the violation of these rules. 14 Roadbed - A graded area beneath and on either side of the track structure that provides support and drainage of the track. Roadway Worker — Any employee of the railroad or any contractor on a railroad right- of-way, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway machinery on or near track, or with the potential of fouling a track. Safety Training - A session conducted by a qualified SCRRA representative at which On -Track Safety and Railroad Rules and Regulations are discussed. Safety Sticker - An emblem that indicates completion of Railroad Training. The non transferable "Safety Trained' emblem is to be placed on each individual's hard hat so it is visible when working on the Railroad's Right -of Way. Shoring — Methods and materials used to prevent the collapse of the earthen walls of excavations. Shoring in close proximity to the tracks requires design pursuant to Cooper E-80 loading. In all cases, shoring drawings require approval prior to construction. Siding — A secondary track used for the passing of trains on single-track routes. Signal - Railroad facility used to inform Railroad personnel of track conditions. Spur Track — A secondary track designated to allow access to industries along the main track. Tracks — The rails, ties, and ballast that composes the traveling surface by trains. Track Structure — The rails, ties ballast, and roadbed that compose the traveling surface used by trains. Trains — One or more engines coupled together, with or without cars, which use the Railroad track. Train Movement — Any motion of engines and/or cars over the railroad tracks. Yard- A collection of secondary tracks used to store equipment (cars, engines, maintenance machines, etc.), for assembling or disassembling trains, and/or conducting other railroad operations. 15 Suggested for your use. RAILROAD EMERGENCY RESPONSE FORM Location (Subdivision & Milepost) Closest City and Directions from it to the job site or nearest crossing if job site is inaccessible from roadway. Location of the closest hospital and directions from job site. Or nearest crossing if job site is inaccessible from roadway Nearest emergency Services: Ambulance: Fire Police Railroad Contacts: Name Nextel Emergency Numbers Grade Crossing Hot Line Manager, Maintenance -of -Way (Cell phone) Public Projects Right -of -Way Engineer Cell phone 16 888.446.9721 213.792.7904 213.452.0256 213.305.8508 Southern California Regional Rail Authority Third Party Contractor Zero Toleraiace Safety Rules ➢ All third party contractors must have a Right -of -Entry or approved document to work on SCRRA right-of-way. ➢ Drinking alcoholic beverages, being under the influence of any drug or medication or having them in your possession at any time on SCRRA property will not be tolerated. ➢ All third party contractor personnel must have been SCRRA Roadway Worker Safety trained and have a valid SCRRA safety sticker on their hard hat or they will not be allowed on SCRRA property. ➢ All third party contractor personnel must wear a hard hat, safety glasses, orange vest with reflectorized tape long pants, and lace type boot not less than 8" high. ➢ WORKING ON OR AROUND TRACKS: 1. All work within 20 feet of the nearest running rail must be coordinated with the Right -of -Way Engineer so that positive protection can be provided for personnel. 2. Do not foul the track with any piece of equipment without a flagger and positive prat�ction: ➢ Do not stand on the track or within 10 feet of the centerline of the track. The track is not an observation platform. ➢ Do not leave open holes or trenches unattended. ➢ Do not disturb or foul the ballast at any time. VILOATION OF ANY OF THESE RULES WILL RESULT IN REMOVAL FROM THE PROPERTY AND MAY CAUSE THE JOB TO BE SHUT DOWN. 17 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: BRUCE COLEMAN, DIRECTOR OF ECONOMIC AND COMMUNITY DEVELOPMENT VIA: F.M. DELACH, CITY MANAGER /` 4A( � BY: ROY BRUCKN JECT MANAGER DATE: MAY 15, 2006 SUBJECT: APPROVAL OF CONSTRUCTION AND MAINTENANCE AGREEMENTS FOR CITRUS AVE. AND PALM DRIVE UNDERCROSSINGS, CITRUS AVE. MAINTENANCE SHARING AGREEMENT, DETENTION BASIN MOU WITH THE CITY OF GLENDORA AND OTHER AGENCIES, AND JOINT COMMUNITY FACILITIES AGREEMENT, ALL RELATED TO THE ROSEDALE PROJECT RECOMMENDATION It is recommended that the City Council approve the following agreements, and authorize their execution: 1. A Memorandum of Understanding Regarding Maintenance and Construction of Detention Basins. 2. Citrus Ave. Maintenance Sharing Agreement 3. Construction and Maintenance Agreement for the Citrus Ave. Undercrossing 4. Construction and Maintenance Agreement for the Palm Drive Undercrossing 5. Joint Community Facilities Agreement for the construction of certain improvements under City of Azusa Community Facilities District No. 2005-1 (Rosedale). BACKGROUND The Monrovia Nursery project site interfaces with the City of Glendora along the east side of the site's boundary. This interface area requires the City of Glendora's cooperation and approval for various items, including construction of graded and landscaped slopes, detention basins, utility connections and relocations, street extensions, and the Citrus Ave. underpass. Glendora Staff has reviewed and approved the concept and construction plans for these facilities. Similarly, the Glendora Planning Commission has approved necessary grading and drainage improvements. Connected with the aforementioned facilities are construction and maintenance agreements, which have been reviewed and were approved by the Glendora City Council on May 9, 2006. In addition, other agencies that are party to two of the four agreements have approved and executed them. The City of Azusa must now execute said agreements as well. A description of the agreements, which i are attached, is as follows: 1. Detention Basin Memorandum of UnderstandinS. This MOU was originally struct red f L. i �- �y execution between ALP and Glendora. Its purpose is to set forth the understanding that ALP will construct three detention basins and that ALP or Monrovia Nursery will maintain them. One basin will be located along the Azusa - Glendora boundary just south of Sierra Madre Ave. (Area D Detention Basin), another will be located just east of the Dhammakaya Meditation Center, straddling the City boundary (Citrus Detention Basin), while the third basin will be located entirely in Glendora near Calera Ave. (Hicrest Basin). Monrovia Nursery and ALP agreed to construct the Hicrest Basin to assist in a local drainage problem in the Calera Ave. area. The MOU sets forth drainage standards, and requires ALP to construct the improvements consistent with the drainage standards. In addition, the MOU describes maintenance standards and responsibilities, with ALP responsible for the Area D and Citrus basins, Monrovia Nursery for the Hicrest Basin, and the City of Azusa responsible for only the inlet structures at the Area D and Citrus Ave. Basins. ALP plans to convey the Citrus and Area D Basins along with the maintenance responsibilities to the Rosedale Homeowners Association after construction. The City of Glendora has requested that the City of Azusa be made a party to the agreement, in order to facilitate the City of Azusa's enforcement if for some reason the HOA fails to provide adequate maintenance. Azusa's City Attorney has requested that enforcement and indemnification provisions be added to the MOU, which has been done. 2. Cirrils Ave. Maintenance A greement. The extension of Citrus Ave. from Foothill Blvd. into the Rosedale project will serve only the City of Azusa at this time, since no Glendora streets are planned to connect. The street alignment straddles the border between the two cities, and a large portion of the right-of-way is situated on the Glendora side. Since Glendora did not want the responsibility for maintaining a street that does not serve its citizens, the attached maintenance agreement was drafted that essentially provides for the following: a. As long as Glendora does not use the Citrus Ave. extension, Azusa will pay 100% of the maintenance cost of the street and related facilities. b. When significant Glendora traffic begins using the subject street, or a Glendora street is connected to the Citrus Ave. extension, a traffic study would be prepared to determine fair share responsibility for maintenance cost, with appropriate maintenance cost adjustments made. The cost of the study would be shared by both cities. c. Glendora will maintain the street, and would bill the City of Azusa. d. Azusa may at any time audit Glendora's maintenance cost records. 3. Citrus Ave. Bridge Agreement. This agreement pertains to the railroad underpass that will be constructed by ALP pursuant to their entitlements. This bridge over Citrus Ave. straddles the City boundary, with one bridge abutment located in Azusa, and the other in the City of Glendora. For this reason, both cities must execute the agreement, along with the SCRRA (Southern California Regional Rail Authority, who maintains all railroad facilities for MTA), Pasadena Blue Line Construction Authority (constructing the Gold Line), and Azusa Land Partners. The agreement generally provides for the following: a. ALP will provide all construction and arrange for funding necessary to build the bridge structure. The construction will be funded via the CFD. -- b. Azusa and Glendora will both be granted easements for roadway purposes for the street right of way below the bridge. c. The Los Angeles to Pasadena Blue Line Construction Authority will own the underpass after construction, and will be responsible for the maintenance of the bridge structure and abutments. 4. Palrn Di ire B rid e A�reemenr. This agreement is identical to the Citrus Ave bridge agreement, except that it applies to the underpass that will be constructed over Palm Drive. Glendora is not a party to this agreement. 5. Joint Community Facilities Agreement (JCFA). The Community Facilities District to be formed will finance various improvements that ultimately will be conveyed and maintained by other agencies. In order to accomplish this, JCFAs must be executed with the affected agencies. This agreement provides for the construction and conveyance of certain improvements to the City of Glendora, including the Citrus Ave. utility and street improvements, the Sierra Madre Ave. water line, and a possible traffic signal at Citrus Ave. and Foothill Blvd., should one be necessary. The bridge designs have been plan checked and are ready to be approved from a structural standpoint. However, the aesthetic design of both bridges must still be submitted by ALP for approval by both cities. FISCAL IMPACT The execution of these agreements would bind the City to ongoing maintenance of Citrus Ave. and its related facilities, and maintenance of the detention basin inlets. However, these maintenance items are not extraordinary, and would exist even without these agreements, were it not for the multi - jurisdictional issues. The cost of maintaining the public rights of way of the project was included in the Monrovia Nursery Fiscal Impact Study, which assumed that the General Fund would fund this City service through increased revenues generated by the new Rosedale development. CONSTRUCTION AND MAINTENANCE AGREEMENT for the PALM DRIVE UNDERCROSSING THIS Construction and Maintenance Agreement (the "Agreement") is entered into on the 15th day of May, 2006, by and between AZUSA LAND PARTNERS, LLC, a Delaware limited liability company ("ALP"); the CITY OF AZUSA, a general law city and municipal corporation ("AZUSA"); the SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY ("SCRRA"), a joint powers authority existing under the laws of the State of California; and THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, a public agency existing under the authority of the laws of the State of California, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 ("AUTHORITY"), doing business as METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY. ARTICLE I RECITALS Section 1.01 The Parties enter into this Agreement with reference to the following facts, objectives, and understandings: A. AUTHORITY owns the "Railroad ROW" (as defined below); B. SCRRA maintains the railroad and appurtenances upon the Railroad ROW and dispatches trains thereon; C. BNSF Railway Company, a Delaware corporation ("BNSF"); operates a common carrier railroad service upon the Railroad ROW; D. ALP proposes to reconstruct (1) a segment of Palm Drive lying within AZUSA that will pass beneath the Railroad ROW and (2) the Structure (as defined below); and E. AZUSA proposes to maintain those segments of Palm Drive lying within its boundaries as more particularly described herein. IN CONSIDERATION of the mutual terms, conditions and covenants herein contained, the Parties agree as follows: ARTICLE II DEFINITIONS Section 2.01 "Additional Railroad ROW" means the area depicted on Exhibits A-5 and A-6 attached hereto and which shall be conveyed to AUTHORITY in accordance with Section 4.05(C) below. Section 2.02 "Application" means that certain California Public Utilities Commission Application submitted by the City of Azusa and the City of Glendora for Closing North Rockvale Private Grade Crossing, for constructing a Grade Separation at the existing Palm Drive FAFILEMP51OLBWZUSMPALM DRIVE BRIDGE AGMT.DOC 04/24/06 Crossing No. 101 PA -1 16.05-X and for constructing a Grade Separation at Citrus Avenue MP 115.86. Section 2.03 "Project' means all work of every kind and character to be performed hereunder and required in connection with the construction of the segment of Palm Drive, the re -alignment of the Railroad ROW and the railroad track therein, the construction of the Structure and the relocation of affected wire, pipe and/or other utility lines all as shown on Exhibit A attached hereto and as generally described in the Application. Section 2.04 "Project Work" means the work to be performed by ALP hereunder for the construction of the Project in accordance with the Exhibits listed in Section 2.03 above. Section 2.05 "Railroad ROW" means that portion of the railroad right-of-way, more particularly described below which lies between Mile Post 115.5 and Mile Post 116.6 and all railroad improvements located within such portion, which is owned by AUTHORITY, maintained by SCRRA and upon which BNSF operates a common carrier railroad and SCRRA dispatches trains: That portion of said land conveyed to the San Bernardino and Los Angeles Railway Company, a California corporation, by Deed recorded on June 1, 1887, as Instrument No. 136 in Book 239, Page 1 of Deeds, together with that portion of said land conveyed to Southern California Railway Company, a California corporation, by Deed recorded February 24, 1890, as Instrument No. 32 in Book 626, Page 166 of Deeds, together with that portion of land conveyed to the San Bernardino and Los Angeles Railway Company, a California corporation, by Deed recorded March 21, 1887, as Instrument No. 17 in Book 200, Page 601 of Deeds. Section 2.06 "Structure" means the grade separated crossing structure (including any amenities, support structure and/or facilities required in connection therewith) to be constructed within the Railroad ROW at Palm Drive as part of the Project. ARTICLE III AUTHORITY AND SCRRA RESPONSIBILITIES Section 3.01 Riqht of Entry - ALP. A. AUTHORITY hereby grants to ALP a license to enter upon and use that portion of the Railroad ROW needed to undertake and complete the Project Work. This license is not exclusive and does not prevent AUTHORITY, or any other third party acting with the approval of AUTHORITY, to use the Railroad ROW. B. The license granted to ALP above includes the right to undertake and complete the Project Work [including any related facilities and/or amenities and the grant on behalf of AUTHORITY of one (1) or more utility easements to the applicable utility provider(s) as necessary for completion of the Project Work] on, over and/or under the surface of the Railroad ROW. FAFILEMP5101-MAZUSA\PALM DRIVE BRIDGE AGMT DOC 04/24/06 2 C. This license is given without warranty of title of any kind, express or implied, and no covenant of warranty of this title will be implied. In case parties owning or claiming title to any interest in the Railroad ROW evict ALP, AUTHORITY will not be liable to ALP for any damages; provided, however, that ALP shall have no liability to AUTHORITY, SCRRA or AZUSA for any failure of ALP to perform its obligations hereunder resulting from any such eviction. The granting of similar rights to others, subsequent to the date of this Agreement, will not significantly impair or interfere with the license granted to ALP pursuant to this Agreement. Section 3.02 Right of Entry - AZUSA. A. AUTHORITY hereby grants to AZUSA non-exclusive license to enter upon and use that portion of the Railroad ROW needed to inspect and maintain those Palm Drive roadway improvements lying within the Railroad ROW as more particularly provided in Sections 6.01(B) and (C) below. This license is not exclusive and does not prevent AUTHORITY, or any other third party acting with the approval of AUTHORITY, to use the Railroad ROW. B. The license granted to AZUSA includes the right to inspect, maintain, repair and replace such roadway improvements and all amenities, facilities and/or utilities related thereto. C. This license is given without warranty of title of any kind, express or implied, and no covenant of warranty of this title will be implied. In case parties owning or claiming title to any interest in the Railroad ROW evict AZUSA, AUTHORITY will not be liable to AZUSA, as the case may be, for any damages; provided, however, that AZUSA shall have no liability to AUTHORITY, SCRRA and/or ALP for any failure of AZUSA, as the case may be, to perform its respective obligations hereunder resulting from any such eviction. The granting of similar rights to others, subsequent to the date of this Agreement, will not significantly impair or interfere with the licenses granted to AZUSA pursuant to this Agreement. Section 3.03 Easement to AZUSA. By not later than completion of the Project, AUTHORITY will grant AZUSA a permanent and nonexclusive easement for (i) a depressed roadway, (ii) a pump station, if any, (iii) utilities and (iv) drainage across and beneath that portion of the Railroad ROW as described in Exhibits A-2 and A-3 attached hereto lying within the legal boundaries of AZUSA (the "Azusa Easement") including, in the case of utilities, the right and power to transfer the same to the applicable utility provider. The Azusa Easement will ensure the unrestricted and uninterrupted right of AZUSA (and/or its transferee) to operate, repair, maintain, and replace these elements of the Project. Section 3.04 Engineering Review and Construction Oversight by AUTHORITY. AUTHORITY will furnish, at ALP's cost and expense (provided that ALP's written consent is obtained prior to incurring any such cost or expense), all labor, materials, tools and equipment to perform engineering reviews of the plans and specifications, periodic oversight inspection of the construction, and substantial completion and final acceptance construction inspection of the Structure. F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 3 Section 3.05 AUTHORITY Work. AUTHORITY agrees to furnish all labor, materials, tools and equipment, and to do, the work, described on Exhibit B attached hereto in accordance with the Project Work schedule prepared by ALP pursuant to Section 4.05(A) below. Section 3.06 Engineerinq Review and Construction Oversight by SCRRA. SCRRA will perform engineering review of the plans and specifications, furnish inspectors and flagmen, and provide other support services at ALP's cost and expense (provided that ALP's written consent is obtained prior to incurring any such cost or expense), which in SCRRA's and/or AUTHORITY's opinion, will be reasonably required for the protection of AUTHORITY's facilities, BNSF's train operations and employees safety or the safety of ALP's employees or contractors. Section 3.07 SCRRA Work. SCRRA agrees to furnish all labor, materials, tools and equipment, and to do, the work, described on Exhibit C attached hereto in accordance with the Project Work schedule prepared by ALP pursuant to Section 4.05(A) below. Section 3.08 Plan Review by AZUSA and SCRRA /No Liability. ALP acknowledges and agrees that any review and/or approval by AZUSA and/or SCRRA of any Project plans and specifications does not constitute approval for engineering design, accuracy of stress calculations, soils suitability, drainage or set backs and by approving any such plans and specifications, neither AZUSA, SCRRA, nor any designated representatives or agents thereof, shall be liable in damages to anyone, by reason of mistake in judgment, negligence or nonfeasance arising out of or in connection with the review, approval or disapproval, or failure to review, approve or disapprove, any such plans and specifications, or for any defect in any improvements (including the Structure) constructed from such plans and specifications. ARTICLE IV ALP RESPONSIBILITIES Section 4.01 Proiect Construction. ALP agrees to furnish all labor, materials, tools, and equipment, and do the Project Work. Should Project construction not begin within six (6) months from the effective date of this Agreement, ALP may, in its sole and absolute discretion, revise the cost estimates of the Project Work, which will then become part of this Agreement. A. The principal elements of the Project Work to be performed by ALP in the construction of the Project are: Engineering design and construction document preparation; 2. Constructing the Structure and the depressed roadway improvements to Palm Drive; 3. Required grading, staking and paving for the new track and drainage north of the new track; and 4. Construction of new embankment and re -alignment of the track, protection of the existing track during construction and, upon completion of the re -aligned track, removal of the abandoned portion of the existing track; and FAFILESMP5101-BWZUSA\PALM DRIVE BRIDGE AGMT DOC 04/24/06 4 5. Prior to any construction, the Palm Drive at -grade crossing shall be closed to all traffic. B. ALP will perform the Project Work as detailed in'Exhibits listed in Section 2.03 above. C. ALP will make all arrangements to secure any location or relocation of utilities and other facilities owned by persons other than AUTHORITY as necessitated by the Project Work. D. ALP will furnish all labor, materials, tools, and equipment in performing the Project Work. The Project Work will be performed at such times that do not endanger or interfere with the safe and timely operations of BNSF's trains, or AUTHORITY's tracks or other AUTHORITY facilities existing within the Railroad ROW. E. ALP will reimburse AUTHORITY and/or SCRRA for emergency repairs caused by ALP's performance of the Project Work, which AUTHORITY deems is reasonably necessary for the immediate restoration of railroad operations or for the protection of persons or AUTHORITY property. AUTHORITY and/or SCRRA may perform such emergency repairs without ALP's prior approval; provided, however that prior to performing any such emergency repairs, AUTHORITY and/or SCRRA shall notify ALP of the emergency. ALP agrees to reimburse AUTHORITY and/or SCRRA for the reasonable cost of such emergency repairs. AUTHORITY and/or SCRRA will provide ALP with a detailed invoice within twenty-one (21) days following such emergency repairs. F. ALP will notify SCRRA and AUTHORITY at least five (5) working days before working on AUTHORITY facilities within the Railroad ROW and will request a flagman from SCRRA (or provide a licensed flagman pre -approved by AUTHORITY and SCRRA) when working within 25' of the centerline of the existing railroad track within the Railroad ROW or as per requirements included in SCRRA Form No. 6, Temporary Right -of -Entry Agreement, a copy of which is attached hereto as Exhibit D (the "Temporary Right -of -Entry Agreement"). G. ALP will provide AUTHORITY and SCRRA with four (4) copies of plans and two (2) sets of calculations of all permanent or temporary structures or facilities proposed to be used over, under, or adjacent to the Railroad ROW for approval. Use of such permanent or temporary structures or facilities will conform to the standard side clearance set forth in Federal Railroad Administration (FRA) or Public Utilities Commission (PUC) requirements that govern such clearance. Should the shoring impair clearance, ALP will ensure that application is made to the FRA or PUC for approval of such impairment during the Project construction. H. ALP agrees to design and construct the Project Work in substantial conformance with SCRRA's Engineering Standards and Standard Specifications, except where deviations or variances are agreed in writing between SCRRA, AUTHORITY, and ALP. I. ALP agrees to execute and deliver to SCRRA, prior to commencing any work within the Railroad ROW, the Temporary Right -of -Entry Agreement, and deliver and secure approval of the insurance required by the two exhibits attached thereto (available on SCRRA's website at www.metrolinktrains.com). ALP's employees, agents, contractors, representatives and invitees will comply with SCRRA's safety requirements included in SCRRA F:\FILES\WP51\DLBWZUSA\PALM DRIVE BRIDGE AGMT. DOC 04/24/06 5 Form, "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property," a copy of which is attached hereto as Exhibit E. Section 4.02 Contract Provisions. Contracts executed by ALP for any of the Project Work will include the following provisions: A. All work within the boundaries of the Railroad ROW will be performed in a good and workmanlike manner and in accordance with plans and specifications approved by AUTHORITY and SCRRA. Those changes or modifications during construction that affect safety, design or construction methods shall require AUTHORITY's and SCRRA's approval. B. No work will be commenced within the Railroad ROW by a prime contractor until such contractor has (i) executed and delivered to AUTHORITY the Temporary Right -of -Entry Agreement and (ii) delivered to, and secured AUTHORITY's separate approval of, the insurance coverage required thereby. The railroad track construction must be done by a contractor or subcontractor who has experience in railroad construction. ALP will obtain approval of the track contractor or subcontractor from AUTHORITY and SCRRA. C. ALP's employees, agents, contractors, representatives and invitees will wear personnel protective equipment ("PPE") when on AUTHORITY's rail corridor. Existing AUTHORITY PPE requirements are: (i) safety glasses; permanently affixed side shields; no yellow lenses; (ii) hard hats with high visibility orange cover; (iii) safety shoes with hardened toe, above the ankle lace up and a defined heel; and (iv)high visibility reflective orange vests. Hearing protection, fall protection arid respirators will be worn as required by state and federal regulations. D. If an ALP contractor performs work on the Project inconsistent with the Project plans and specifications, works in a manner SCRRA or AUTHORITY reasonably deems to be hazardous or if any insurance policy is canceled during the course of the Project Work, then SCRRA or AUTHORITY may direct the work to be stopped until the problems are resolved to the satisfaction of SCRRA or AUTHORITY. SCRRA or AUTHORITY may stop the Project Work by written notice to ALP and its contractor until additional insurance has been delivered to and accepted by SCRRA or AUTHORITY. Such work interruption will not give rise to or impose upon SCRRA or AUTHORITY any liability to ALP or to any ALP contractor. The right of SCRRA or AUTHORITY to stop the work is in addition to any other rights SCRRA or AUTHORITY may have. In the event that SCRRA or AUTHORITY wish to stop Project Work, SCRRA and AUTHORITY will give immediate detailed written notice thereof to ALP, upon the receipt of which ALP shall have not less than two (2) business days in which to resolve such matter. Section 4.03 Inspection and Supervision. ALP agrees to supervise and inspect the operations of all ALP contractors to assure compliance with the plans and specifications, the terms of this Agreement and all safety requirements of SCRRA and AUTHORITY. If at any time during the Project Work, SCRRA or AUTHORITY determines that proper supervision or inspection is not being performed by ALP, SCRRA or AUTHORITY will have the right to stop construction within or adjacent to the Railroad ROW and to require that ALP correct the situation before construction is allowed to proceed. This direction will be in the form of a letter, either faxed or by electronic mail, signed by the CEO of AUTHORITY and SCRRA, or their FAFILES\WP51\DLBWZUSA\PALM DRIVE BRIDGE AGMT DOC 04/24/06 designates. If SCRRA or AUTHORITY believes the situation is not being corrected in an expeditious manner, AUTHORITY and SCRRA will immediately notify ALP in writing requesting ALP to issue a STOP WORK NOTICE to its contractor so that the respective Project Work can be corrected to the satisfaction of the parties. Section 4.04 As -Built Plans. ALP will furnish AUTHORITY four (4) sets of as -built plans, upon completion of the Project Work, at no cost to SCRRA or AUTHORITY, prepared in U.S. Customary Units, plus one set of computer compact disks, containing as -built CAD drawings of the Structure identifying the software used for the CAD drawings. The "as -built plans" will include plan and profile, structural bridge drawings and specifications, and drainage plans. AUTHORITY will furnish one (1) set of these as -built documents to SCRRA. Section 4.05 Project Completion. A. ALP will develop and maintain a Project Work schedule for the full scope of the Project. ALP will be responsible for coordinating all work to achieve the timely completion of the Project Work. B. Within thirty (30) days after completing the Project Work, ALP will give written notice to SCRRA and AUTHORITY of the Project's completion date and the date on which ALP will meet with SCRRA and AUTHORITY for the purpose of final inspection and acceptance. C. Within thirty (30) days after final inspection and acceptance, ALP will convey the Additional Railroad ROW to AUTHORITY. D. The Structure and relocated track shall be completed and operational, including the removal of the existing timber ties, running rail, other track material, and ballast, on or before May 15, 2008. Any delay beyond this date, may be reason for AUTHORITY to claim damages from ALP for delays to AUTHORITY's project concerning the extension of light rail service upon and through the Railroad ROW; provided however, that ALP shall have no liability hereunder for any delays caused by or due to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, freight embargoes or lack of transportation, weather -caused delays, inability to secure necessary labor, materials or tools, acts (other than as required by, and then in accordance with, the terms of this Agreement) or the failure to act of AUTHORITY, acts or the failure to act of any public, governmental or quasi -governmental agency or entity and/or any other causes beyond the control or without the fault of ALP. F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 7 Section 4.06 Cost of Performance. A. ALP will perform all of the Project Work (other than any portions thereof to be performed by SCRRA and/or AUTHORITY hereunder) at its own cost and expense; subject, however, to reimbursement, if any, under such joint community facilities agreements or other reimbursement arrangements as ALP may enter into or which may benefit ALP with respect to the Project. B. ALP agrees to reimburse SCRRA the actual costs and expenses incurred by SCRRA, including any provisional overhead rates representing SCRRA's costs for administration and management, and its contractors and consultants for all services and work performed in connection with the Project Work. ALP and SCRRA shall agree to periodic Work Order tasks and cost amounts and ALP agrees to deposit with SCRRA mutually agreeable amounts for SCRRA's cost and expense for its services for the Project Work. AUTHORITY shall receive a copy of each approved Work Order. ARTICLE V AZUSA FINANCIAL RESPONSIBILITIES Section 5.01 Payments. AZUSA shall not have any responsibility or obligation hereunder to pay ALP for any costs incurred by ALP with respect to the Project Work; provided, however, that nothing herein shall prevent ALP and AZUSA from entering into any joint community facilities agreements and/or establishing any community facilities districts or other tax -based source of funds for the purpose of reimbursing ALP for some or all of the Project costs incurred by ALP. ARTICLE VI RESPONSIBILITIES FOLLOWING CONSTRUCTION Section} 6.01 Responsibilities Following Construction. After the Project Work is completed, the following shall apply: A. AUTHORITY will own the Structure and, at its sole cost and expense, will maintain or cause to be maintained (i) the Structure, (ii) the railway roadbed, (iii) the track, (iv) all railroad drainage and (v) all other railroad facilities situated within the Railroad ROW; B. AZUSA, at its cost and expense, will repair, replace or remove any of the Palm Drive roadway improvements and facilities, including any sidewalks, retaining walls (other than those portions of the Structure which constitute or act in the place of retaining walls), sump pumps, pavement, curb and gutter, catch basins, graffiti, parkways, slope areas, lighting, striping, sewer and storm drains, lying within the legal boundaries of AZUSA; C. AZUSA will, before entering upon the Railroad ROW for maintenance purposes, notify AUTHORITY and/or SCRRA to obtain prior authorization and, if work is contracted, AZUSA will require its prime contractor(s) to comply with the obligations in favor of SCRRA and AUTHORITY as set forth in the Temporary Right -of -Entry Agreement; provided, however, that neither AZUSA or its prime contractor(s) shall be liable for payment for any flagmen engaged FAFILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 n by or on behalf of AUTHORITY and/or SCRRA in connection with any work performed by AZUSA or its prime contractor(s) upon or within the Railroad ROW. ARTICLE VII INDEMNIFICATION Section 7.01 Indemnification of AUTHORITY, SCRRA. and AZUSA by ALP. Neither AUTHORITY, SCRRA or AZUSA, nor any of AUTHORITY'S, SCRRA's and AZUSA's, board members, member agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of ALP under or in connection with any work, authority or jurisdiction delegated to ALP under this Agreement. ALP shall indemnify, defend and hold harmless AUTHORITY, SCRRA and AZUSA, as well as their respective board members, member agencies, officers, agents, volunteers, contractors, and employees ("AUTHORITY, SCRRA and AZUSA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AUTHORITY, SCRRA and AZUSA Indemnitees arising out of or connected with any negligent acts or omissions on the part of ALP, its officers, agents, contractors or employees, under or in connection with any work, authority or jurisdiction delegated to ALP under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AUTHORITY, SCRRA and AZUSA or their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.02 Indemnification of ALP by AUTHORITY SCRRA and AZUSA. Neither ALP, nor its officers, agents, contractors or employees shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of AUTHORITY, SCRRA and/or AZUSA under or in connection with any work, authority or jurisdiction delegated to AUTHORITY, SCRRA and/or AZUSA under this Agreement. AUTHORITY, SCRRA and AZUSA shall each indemnify, defend and hold harmless ALP, as well as ALP's officers, agents, contractors and employees ("ALP Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the ALP Indemnitees arising out of or connected with any negligent acts or omissions on the part of AUTHORITY, SCRRA and/or AZUSA, or any of their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to any of them under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify ALP or its respective officers, agents, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.03 Indemnification of AUTHORITY and SCRRA by AZUSA. Neither AUTHORITY or SCRRA, nor any of AUTHORITY'S or SCRRA's board members, member agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to AZUSA under this Agreement. AZUSA shall indemnify, defend and hold harmless AUTHORITY and SCRRA, as well as their FIFILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 N respective board members, member agencies, officers, agents, volunteers, contractors, and employees ("AUTHORITY and SCRRA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AUTHORITY and SCRRA Indemnitees arising out of or connected with any negligent acts or omissions on the part of AZUSA, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to AZUSA under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AUTHORITY and SCRRA, or their respective board members, member agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.04 Indemnification of AZUSA by AUTHORITY. Neither AZUSA nor any of its elected officials, agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to AUTHORITY under this Agreement. AUTHORITY shall indemnify, defend and hold harmless AZUSA, as well as its elected officials, agencies, officers, agents, volunteers, contractors, and employees ("AZUSA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AZUSA Indemnitees arising out of or connected with any negligent acts or omissions on the part of AUTHORITY, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to AUTHORITY under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AZUSA, or its elected officials, agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. Section 7.05 Indemnification o_f_AZUSA by SCRRA. Neither AZUSA nor any of its elected officials, agencies, officers, agents, volunteers, contractors, or employees, shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of under or in connection with any work, authority or jurisdiction delegated to SCRRA under this Agreement. SCRRA shall indemnify, defend and hold harmless AZUSA, as well as its elected officials, agencies, officers, agents, volunteers, contractors, and employees ("AZUSA Indemnitees"), from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), demands, suits, liens, damages, costs, claims, including but not limited to, claims for bodily injury, death, personal injury, or property damage, that are incurred by or asserted against the AZUSA Indemnitees arising out of or connected with any negligent acts or omissions on the part of SCRRA, or any of its board members, member agencies, officers, agents, volunteers, contractors, or employees, under or in connection with any work, authority or jurisdiction delegated to SCRRA under this Agreement. This indemnity shall survive termination of this Agreement. Nothing contained in this provision will indemnify AZUSA, or its elected officials, agencies, officers, agents, volunteers, contractors, or employees, for their gross negligence, willful misconduct or intentional wrongdoing. ARTICLE VIII MISCELLANEOUS PROVISIONS FAFILEMP5101-MAZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 10 Section 8.01 Automatic Termination. In the event that construction of the Project has not begun for a period of three (3) years from the date of this Agreement, this Agreement will become null and void. Section 8.02 Assignment. The Parties agree that they will not assign or transfer any portion of or interest in this Agreement without the prior written permission of all other Parties. Any attempt to assign or transfer any portion of this Agreement without the prior written permission of all other Parties will be void. Section 8.03 Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. Section 8.04 Successors. All the terms, conditions and covenants of this Agreement will inure to the benefit of and be binding upon the Parties' successors and assigns. The provisions of this Section will not be deemed as a waiver of any of the conditions against assignment as set forth in Section 8.02. Section 8.05 Notices. All notices provided for herein will be in writing. Any notice permitted or required to be served upon party may be served upon that party at: ALP: c/o PLC Land Company 19 Corporate Plaza Drive Newport Beach, CA 92660 Attn: President Telephone: (949) 721-9777 Facsimile: (949) 729-1214 AUTHORITY: Foothill Extension Construction Authority 406 East Huntington Drive Suite 202 Monrovia, CA 91016 Attn: Chief Executive Officer Telephone: (626) 471-9050 Facsimile: (626) 471-9049 AZUSA: City of Azusa 213 E. Foothill Boulevard P.O. Box 1395 Azusa, CA 91702 Attn: City Manager Telephone: (626) 812-5200 Facsimile: (626) 334-6538 SCRRA: Manager of Public Projects Southern California Regional Rail Authority FAFILES\WP510LBWZUSATALM DRIVE BRIDGE AGMT.DOC 04/24/06 11 700 South Flower Street - 26th Floor Los Angeles, CA 90017 Telephone: (213) 452-0249 Facsimile: (213) 452-0423 Section 8.06 Governing Law. This Agreement was executed in, and will be construed in accordance with the laws of, the State of California and exclusive venue for any action involving this Agreement will be in Los Angeles County. Section 8.07 Headings. The headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provisions of this Agreement. Section 8.08 Rules of Construction. This Agreement has not been drafted or prepared by either party hereto, the same being a fully negotiated Agreement. Thus, the parties expressly agree that any rule of construction regarding interpretation in favor of one or the other party by reason of the party drafting the Agreement will not apply. Section 8.09 Records. The Parties will maintain full and accurate records with respect to all services and matters covered under this Agreement. Each Party will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. The Parties will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement. Section 8.10 Exhibits. All Exhibits attached hereto are hereby incorporated into this Agreement as if fully set forth herein. Section 8.11 Acceptance of Facsimile Signatures/Counterparts. A. The Parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed by a Party when the signature of such Party is delivered to another Party by facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. B. This Agreement may be executed in any number or counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date. Section 8.12 Entire Agreement. This Agreement contains the entire agreement between the parties hereto and supersedes any prior or concurrent written or oral agreement between said parties concerning the subject matter contained herein. [Balance of this page intentionally left blank] F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT. DOC 04/24/06 12 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: (!� 6 !/L— Its: President AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY David Solow Chief Executive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles By: Deputy F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 13 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: Its: AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Propert rus U/D/T August 19, 1999 By: Its: ft7 Approved as to Form: J AUTHORITY Counsel SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY David Solow Chief Executive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles By: Deputy FAFILEMP51OLMAZUSATALM DRIVE BRIDGE AGMT.DOC 04/24/06 13 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: Its: AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHEPIN CALIFORNIA REGIONAL RAIL AUTHORITY Davidow Chief Jelcutive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles By: Deputy FAFILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT DOC 04/24/06 13 AZUSA: CITY OF AZUSA C�\ Diane agnon, Mayor ATTEST: Vera Mendoza, City Clerk APPROVED AS TO FORK e Sonia R. Carvalho, City Attorney FAFILEMP51\DLBWZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 14 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: (r C/Ax, Its: Progidpnt AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY David Solow Chief Executive Officer APPROVED AS TO FORM: RAYMOND G.-FORTNER, JR. County Counsel — County of Los Angeles By: Deputy FIFILESMID51\13LBWZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 13 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: Its: AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Gc� Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY David Solow Chief Executive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel — County of Los Angeles as Deputy FAFILEMP5101-MAZUSXPALM DRIVE BRIDGE AGMT.DOC 04/24/06 13 IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and year first hereinabove written. ALP: AZUSA LAND PARTNERS, LLC, a Delaware limited liability company By: PLC Azusa Land Investment, LLC, a Delaware limited liability company, its Administrative Member By: Its: AUTHORITY: THE LOS ANGELES TO PASADENA BLUE LINE CONSTRUCTION AUTHORITY, as Trustee of the Los Angeles -Pasadena Metro Blue Line Governmental Purpose Property Trust U/D/T August 19, 1999 By: Its: Approved as to Form: AUTHORITY Counsel SCRRA: SOUTHERY4 CALIFORNIA REGIONAL RAIL AUTHORITY David low— Chief ERecutive Officer APPROVED AS TO FORM: RAYMOND G. FORTNER, JR. County Counsel – County of Los Angeles Dgputy FAFILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 13 AZUSA: CITY OF AZUSA Diane Chagnon, Mayor ATTEST: V ra Mendoza, City Clerk APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney FAFILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 14 LIST OF EXHIBITS Exhibit A Project Plans and Specifications consisting of Sheets marked T-01, C-04, C-05, C-06, C-07, S-1 and S-21 (Section 2.03) Exhibit B Description of AUTHORITY's Work (Section 3.06) Exhibit C Description of SCRRA's Work (Section 3.08) Exhibit D Temporary Right -of -Entry Agreement [Sections 4.01(F), 4.01(1), 4.02(B) and 6.01(D) and (E)] Exhibit E General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property [Section 4.01(1)] FAFILEMP510MAZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 15 PROJECT PLANS AND SPECIFICATIONS (Section 2.03) F:\FILES\WP51\DLBWZUSA\PALM DRIVE BRIDGE AGMT DOC 04/24/06 (See Attached) Exhibit A fir.«_ 7r"_.... s I.4:;.::�;: 4. �-- e ZI •■ i 5ennrr�,� +R`i'�i�i li ^�n�R: rxr{ a � . i—. �i� � �!: � ��,y �.:! r v_'__•.'�i wr til iE�.l •.'...... 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"qs r�- { 1 � Ca I y C p I a . t' a�}w • �•�- 1'r I ---L.� y m i 7 taN t4AT RR em o O N 16 R � � F;l 5 5 c�i Zi R 5_ m I 1 � ax 1 L_ Gxi 1 __ _ -- Q- € 1 r 6 i R o 1 f •klyd� ; - w I S• N � 0 ,r,Rm,I i lip N ��g Ch m 0 i lz �% r H v NInN NNN NNN NInNNfn lnNNul 1 1 1 1 1 1 111 IOVNN�IiN� m�au��v.o Z m m `' 3 4 x r x 6 �q� 11114 l o a b Z mm O ai 00 � ^R� 9 aa� m x �� �2 z w GS�C� m s0 2 om P O C ^"GGG ?c z�• n a r, a icy N a R A a D r z O Zg DVG Y%A"WL.01.r�'+C�hl:lr�.ely� pNu+RM: -�.d y USER IB]BI DATE. Ilb Oe. " S'lf- +IFlTyfrrv�.eY elA �yA�n rtI } PAIN ORNE iifill jS F XI o l IS �p g O NN NNNNNNNNNNNN � vZ 11 Il 11 lml IIIII I 1 tl 0Fg,gyc�� �Q-n m mm 71 = 00 mit% n ESL] mm X BGG ;s y F. zm = n O C �aoo .a a �M r N z n 11m z Z N z O Z rtI } PAIN ORNE iifill jS F XI o g O NN NNNNNNNNNNNN � vZ 11 Il 11 lml IIIII 0Fg,gyc�� �Q-n m mm 71 = 00 mit% n ESL] mm X BGG ;s y F. zm = n O C �aoo .a a �M r N z n 11m z Z N z O Z n O z DESCRIPTION OF AUTHORITY's WORK (Sectio6 3.06) 1. Review and comment on ALP drawings and specifications with respect to bridge, retaining walls, and all railroad construction, including working and shop drawings related to the bridge permanent materials and trackwork materials, compaction reports, bridge pile driving reports, concrete and reinforcing steel test reports; 2. Review and acceptance of construction methodologies, including but not I'imited to embankment completion and trackwork installation at the two (2) track tie-in points; 3. Approve bridge and trackwork contractor selection; 4. Provide periodic oversite inspection of all bridge and railroad facilities construction; and 5. Provide engineering/construction personnel for final inspection(s). F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 Exhibit B DESCRIPTION OF SCRRXs WORK (Section 3.08) 1. Review and comment on ALP drawings and specifications with respect to bridge, retaining wall, and all railroad construction; 2. Provide construction safety inspection for all activities within the Railroad ROW at track elevation or where construction equipment is working in the grade separation and adjacent to the operating (active) track; 3. Approve trackwork contractor selection; 4. Provide flagging personnel and trackwork inspection; 5. Provide engineering personnel for final inspection(s); 6. Remove the at -grade crossing equipment at Palm Drive as necessary for the Project Work; and 7. Remove or relocate all existing railroad communications lines, facilities and equipment as needed that are within the Railroad ROW and within the boundaries of the grade -separation excavation and backfill limits. F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 Exhibit C SCRRA FORM NO. 6 [Sections 4.01(F) and (1), 4.02(B), 6.01(D) and (E)] Temporary Right -of -Entry Agreement F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 (See Attached) Exhibit D TEMPORARY RIGHT -OF -ENTRY AGREEMENT SCRRA FORM NO.6 SCRRA File No. SCRRA Proj ect/Task No. Subdivision Mile Post Thomas Guide Location This Temporary Right -of -Entry Agreement ("Agreement") is between the Southern California Regional Rail Authority (hereinafter referred to as "SCRRA") and (hereinafter referred to as "Contractor"). This Agreement is for entry upon, over and under SCRRA and Member Agency right of way ("Right of Way") at or near in the City of or in the Unincorporated County of (as such location is more specifically identified above) for the purpose of as shown on attached drawings). Definitions A. Contractor is an individual, firm, partnership or corporation or combination thereof, private, municipal or public, including joint ventures, which are referred to throughout this document by singular number and masculine gender. For purposes of this agreement, Contractor also includes any subcontractor, supplier, agent or other individual entering the Right of Way during performance of work. B. Indemnitees are SCRRA, Member Agencies and Operating Railroad and their respective officers, commissioners, employee , dgelits, SUCCors-and-asst C. Operating Railroad is/are that specific passenger or freight -related railroad company(s) validly operating on SCRRA and Member Agency track(s). Operating Railroads are any combination(s) of the SCRRA (METROLINK), the National Railroad Passenger Corporation (AMTRAK), the Union Pacific Railroad Company (UPRR) and the BNSF Railway Company. D. Property and Right of Way is defined herein to mean the real and/or personal property of SCRRA and/or Member Agencies. E. SCRRA is a five -county joint powers authority, created pursuant to State of California Public Utilities Code Section 130255 and California Government Code Section 6500 et seq., to build and operate the "Metrolink" commuter train system in the five -county area on rail rights -of -ways owned by the Member Agencies. The five -county Member Agencies are comprised of the following: Los Angeles County Metropolitan Transportation Authority (MTA), Ventura County Transportation Commission (VCTC), Orange County Transportation Authority (OCTA), San Bernardino Associated Governments (SANBAG), and Riverside County Transportation Commission (RCTC). F. SCRRA Railroad Employee (SRE) is a Southern California Regional Rail Authority employee or contractor (SCRRA General Code of Operating Rules and Territory Qualified) providing warning to Public Agency or Contractor personnel of approaching trains or on track equipment and who has the SCRRA FORM NO.6 Page 1 of 13 09/25/05 authority to halt work and to remove personnel from the Right of Way to assure safe work. G. SCRRA Safety Training Officer is a Southern California Regional Rail Authority employee (SCRRA General Code of Operating Rules qualifier!) authorized by the SCRRA Director of Engineering and Construction to provide Contractor training. References When %vorking on the Right of Way. the Contractor must comply with the rules and regulations contained in the current editions of the following documents which are "references" incorporated in this document as if they were set out in full in this paragraph. The Contractor, by its signature on this Agreement, acknowledges receipt of these documents and agrees to abide by said rules and regulations at all times when on the Right of Way. A. Rules and Requirements for Construction on Railway Property, SCRRA Form No. 37. B. General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Right of Way. Entry Onto Rial►t of Wav No verbal approvals will be granted. The Contractor shall not enter onto the Right of Way unless Contractor has arranged for SCRRA safety training as well as protective services (SCRRA Railroad Employee (SRE) and/or other protective services to be determined by SCRRA) and has paid all charges and fees. A fully executed copy this Form 6 must be in the possession of the contractor at the job site and must be produced by Contractor upon request by SCRRA, a law enforcement officer or Member Agency's representative. If said Agreement is not produced, SORRA has the right to suspend work in the Right of Way until Contractor demonstrates possession of Agreement at the job site. 4. Termination of Agreement SCRRA or Member Agency reserves the right to terminate or revoke this temporary Agreement at any time upon two hours notice; however, in the event of an unsafe condition on the Right of Way, SCRRA shall havediefight-to--terminate-t*-Ag-r-eerr ent-- m. Mediately., without.any--a&.anGed- u lic& Unless subsequently modified, extended, terminated or revoked by SCRRA, this temporary Agreement shall extend until the work authorized hereunder is completed or accepted by SCRRA. In any event, however, the Agreement shall be automatically terminated if or when the insurance that the Contractor is required to maintain hereunder lapses or expires. The Contractor agrees to notify SCRRA, in writing and orally, when use of the Right of Way or work is completed (see Section 18 of this Agreement for SCRRA contact). Under no circumstances shall the temporary right of entry provided for under this Agreement be construed as granting to the Contractor or its Subcontractors and agents any right, title or interest of any kind or character in, on or about any Property. At the request, of SCRRA ar Member Agency, Contractor shall remove from the Right of Way any employee or other individual who has not completed safety training or otherwise fails to conform to the instructions of SCRRA's or Member Agency's representative in connection with work on the Right of Way. Any right of Contractor to enter upon the Right of Way shall be suspended until such request of SCRRA or Member Agency is met. Contractors shall defend, indemnify and hold harmless SCRRA and Member Agency against any claim arising from the removal of any such employee or other individual from the Right of Way. 5. Indemnification Contractor, on behalf of itself and its employees, subcontractors, agents, successors and assigns, agrees to SCRRA FORM NO. 6 Page 2 of 13 09/25/05 indemnify, defend, by counsel satisfactory to SCRRA and Member Agency, and hold harmless "Indemnitees", and each of them to the maximum extent allowed by law, from and against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including incidental consequential damages), costs and expenses (including, without limitation, any fines, penalties, judgments, actual litigation expenses and experts' and actual attorneys' fees), that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the acts or omissions of the Contractor or its officers, directors, affiliates, subcontractors or agents or anyone directly or indirectly employed by them or for whose acts the foregoing persons are liable (collectively, "Personnel") in connection with or arising from the presence upon or performance of activities by the Contractor or its Personnel with respect to the Right of Way, (ii) bodily and/or personal injury or death of any person (including without limitation employees of Indemnitees)' or damage to or loss of use of Property resulting from such acts or omissions of the Contractor or its Personnel or (iii) non-performance or breach by Contractor or its Personnel of any tern or condition of this Agreement, in each case whether occurring during the term of this Agreement or thereafter. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused by the sole negligence or willful misconduct of Indemnitees, and is in addition to any other rights or remedies, which Indemnitees may have under the law or under this Agreement. Claims against the Indemnitees by the Contractor or its Personnel shall not limit the Contractor's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any limitation of the amount or type of damages, compensation or benefits payable by or for the Contractor or its Personnel under workers' compensation acts, disability benefit acts or other employee benefit acts or insurance. The provisions of this section shall survive the termination or expiration of this Agreement. 6. Assumption of Liability To the maximum extent allowed by law, the Contractor releases Indemnitees from and assumes any and all risk of loss, damage or injury of any kind to any person or property, including without limitation, the. Property and/or Right of Way and any other property of or under the control or custody of, the Contractor or its personnel in curuiuction vvith-MY-act-s-undertakewuildg"r ix4-s mcction-with-xhisAgreement. The Contractor's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvements (including easement, lease or license agreements for other existing improvements and utilities) on the Right of Way, accident or fire or other casualty on -the Right of Way or electrical discharge, noise or vibration resulting from SCRRA, Member Agency and Operating Railroad transit operations on or near the Right of Way and any other persons or companies employed, retained or engaged by SCRRA or Member Agency. The Contractor, on behalf of itself and its Personnel (as defined in Section 5, "Indemnification") as a material part of the consideration for this Agreement, hereby waives all claims and demands against the Indemnitees for any such loss, damage or injury of the Contractor and/or its Personnel. The Contractor waives the benefit of California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The provisions of this Section shall survive the termination or expiration of this Agreement. Insurance The Contractor, at its sole cost and expense, shall obtain and maintain in full force. and effect during the term of this Agreement insurance as required by SCRRA or Member Agency in the amounts, coverage, and terms and conditions specified, and issued by insurance companies as described on Exhibit 'A . SCRRA FORM NO. 6 Page 3 of 13 09/25/05 SCRRA or Member Agency reserve the right, throughout the term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement. Prior to entering the Right of Way or performing any work or maintenance on the Right of Way, the Contractor shall furnish SCRRA with insurance endorsements or certificates in the form of Exhibit "B", evidencing the existence, amounts and coverage of the insurance and signed by a person authorized by the insurer to bind coverage on its behalf. In most instances, SCRRA and Member Agency do not allow self-insurance; however, if the Contractor can demonstrate assets and retention funds meeting SCRRA and Member Agency self-insurance requirements, SCRRA and Member Agency may in SCRRA's sole and absolute discretion permit the Contractor to self -insure. The right to self -insure with respect to any coverage required hereunder may be granted or revoked at the sole and absolute discretion of SCRRA or any Member Agency. SCRRA or Member Agency shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by the Contractor under this Agreement. Contractor affirms that all subcontractors covered by this Agreement are insured to the same limits required of the Contractor or included in Contractor's policy. Prior to the expiration of any policy, the Contractor shall furnish SCRRA with certificates of renewal or "binders" thereof. Each certificate shall expressly state that such policies shall not be cancelable or otherwise subject to modification except after thirty (30) days prior written notice to SCRRA and Member Agency. 8. No Assignment The Contractor shall not assign this Agreement or any right hereunder without SCRRA's and Member Agency's prior written consent. 9. Compliance by Contractor The Contractor shall take all steps necessary to assure that its subcontractors comply with the terms and conditions of this Agreement and applicable laws and regulations. The Contractor shall assure that no lien is placed against the Right of Way arising from performance of work hereunder by Contractor or any subcontractor, and in the event of such a lien, Contractor shall immediately remove or cause to be removed such lien. #� [ ntatiorr-Ct The Contractor and his subcontractors shall be required to attend a SCRRA Safety Orientation Class prior to receiving permission to enter the Right of Way. 11. SCRRA Safety and Protective Services The Contractor must request and arrange for on track safety protection satisfactory to SCRRA in the following circumstances: A. When Contractor's personnel or equipment encroach onto the Right of Way unless specifically exempted by SCRRA due to physical separation between tracks and Contractor's operation; B. When any part of any equipment is standing or being operated within or adjacent to the Right of Way or when any erection or construction activities are in progress within such limits; C. For any excavation within the railroad Right of Way; D. For any clearing, grubbing, grading or blasting in proximity to the Right of Way which, in the opinion of SCRRA or Member Agency's representative, may endanger the Right of Way or operations; SCRRA FORM NO. 6 Page 4 of 33 09/25/05 E. For any street construction and maintenance activities, located within the Right of Way or in the vicinity of an at -grade crossing, requiring temporary work area traffic control; F. For any work activity on or adjacent to the Right of Way as required by the Maintenance of Way (MOW) office. The Contractor shall notify the SCRRA Training Officer (909-859-4113) to schedule mandatory safety training. Upon completion of safety training, the Contractor shall notify the SCRRA Maintenance of Way office (909-392-4506) a minimum of five (5) working days prior to beginning work on the Right of Way and secure any protection SCRRA deems necessary. This prior notification does not guarantee the availability of on track safety protection for the proposed date of construction. To the full extent of Paragraph 5 above (Indemnification), Contractor agrees to indemnify SCRRA against any and all claims resulting from sickness or any other absence. 12. Reirtibursement of Costs and Expenditures The Contractor agrees to reimburse SCRRA or Member Agency for all cost and expense incurred by SCRRA or Member Agency in connection with said work, including without limitation the expense of engineering plan review, staff costs to process approvals and agreements, safety training, furnishing an SCRRA Railroad Employee and protective services as SCRRA deems necessary. Contractor agrees to reimburse SCRRA for all construction related services including but not limited to installation and removal of falsework beneath tracks, restoration of railroad roadbed and tracks, installation of appropriate protective devices, temporary and permanent repairs of signal or communication equipment, restoration of the Right of Way to a condition satisfactory to SCRRA's and Member Agency's representative. The Contractor agrees to reimburse SCRRA or Member Agency actual cost and expense reasonably incurred for all services and work performed in connection with said work, including SCRRA's allocated overhead and fringe benefits. SCRRA will charge the Contractor four hours minimum for the mandatory safety training class and for other services four hours or less in duration. SCRRA will charge the Contractor for eight hours minimum if the Contractor cancels SCRRA services after SCRRA Railroad Employee or SCRRA Safety Training Officer is on site on the day of the appointment. The Contractor also agrees to reimburse SCRRA, Member Agency and/or Operating Railroad for any and all cost and expense incurred as a result of Contractor's work which may result in (i) unscheduled delay to the trains or interference in any manner with the operation of trains, (ii) unscheduled disrup Ton to norma train operation, (iii) unreasonable inconvenience to the public or private user of the system, (iv) loss of revenue and (v) alternative method of transportation for passengers. SCRR.A. will submit final bills to the Contractor for cost incurred. Prior to commencement of work, the Contractor shall deposit with SCRRA the sum of dollars ($) representing the estimated expense to be incurred by SCRRA and Member Agency in connection with said work. As the work progresses, SCRRA may require additional progress payments as the scope of work changes or becomes clearer. SCRRA may discontinue services to Contractor pending receipt of progress payments. The deposit and progress payments shall be applied to SCRRA's and Member Agency's actual costs and expenditures. The Contractor shall be responsible to pay any amount exceeding the above payments upon receipt of notice or invoice by SCRRA. SCRRA shall exercise its best efforts to provide final invoicing to Contractor within 90 days following completion of the work; however, Contractor acknowledges that it shall be responsible for payment of all expenses, incurred by SCRRA and Member Agency in connection with the work even if the final invoicing is provided to Contractor thereafter. Upon satisfactory completion of all work, any payments in excess of SCRRA's and Member Agency's costs and expenditures shall be returned to the Contractor within reasonable time. If there is no amount indicated in the blank space provided above for the deposit to be made by the SCRRA FORM NO. 6 Page 5 of 13 09/25/05 Contractor, and if prior SCRRA written approval is obtained, in lieu of such deposit, Contractor shall cause surety bond to be executed by a reliable surety acceptable to SCRRA and Member Agency, conditioned upon the faithful performance of the provisions of this Agreement. 13. TemRorary Traffic Control Temporary traffic control shall be used when a maintenance or construction activity is located on the Right of Way or when the activity is located in the vicinity of a highway -rail grade crossing, which could result in queuing of vehicles across the railroad tracks. Refer to SCRRA's "Temporary Traffic Control Guidelines" for further information on definitions, referenced standards, traffic control plans, submittals, traffic control elements and responsibility/authority for temporary traffic control at highway -rail grade crossings. The guidelines provide acceptable alternatives and procedures, which prescribe appropriate temporary traffic control measures at highway -rail grade crossings and are available on the SCRRA website. om/Publie Pro'ects Site/PDF Files/Temporary Traffic C ntrol Guidelines d 14. Environmental Health and Safety Plan Contractor shall immediately notify SCRRA and the appropriate regulatory agency (ies) of any spill, release, discharge or discovery of any hazardous material or contaminants in, on or under the Property. After providing such notice to SCRRA and the appropriate regulatory agency (ies), any contaminated soils or hazardous materials which are spilled, released, discharged or discovered by the Contractor, shall be promptly removed and disposed of by Contractor in accordance with all the applicable laws at Contractor's sole cost and expense. To the extent preexisting contamination or hazardous material, which was not caused or contributed to by Contractor, is discovered or unearthed by Contractor, Contractor shall only be obligated by this provision to removing and disposing of that portion of the contaminated soils or hazardous materials that are unearthed or otherwise disturbed during Contractor's operations. Prior to entry onto the Property, Contractor (s) performing trenching, excavations or soil borings may be required by SCRRA to submit a "Hazardous Materials Work Plan." If required, said plan shall include Contractor's site-specific health and safety plan and any other information that SCRRA may require. Contractor shall ensure that all documentation for transportation or disposal of contaminated soils of hazardous materials is prepared in the Contractor's name only and that neither SCRRA nor Member Agency shall have any responsibility or liability therefor. Contractor shall defend and indemnify SCRRA fbi my spill, r lease or 5 nn er—herd 1a, Contractor in connection with activities hereunder in accordance with Section 5 Indemnification (Page 2 of 12) 15. Warranty for Plan Revie Review and or approval of the plans and calculations by SCRRA shall not relieve the Contractor of responsibility for full compliance with contract requirements, correctness of design drawings and details, proper fabrication and construction techniques and coordination with other government and private permitting agencies, nor shall such review or approval by SCRRA in any way relieve Contractor from, or otherwise modify, Contractors' indemnity obligations (Section 5) or assumption of liability obligations (Section 6). Execution of this right of entry does not imply design warranty or responsible charge on the part of SCRRA engineering employees. The parties expressly agree that SCRRA makes no warranty of any kind and assumes no responsibility therefore. 16. Miscellaneous Wherever the context of this document so requires, words used in the masculine gender shall include the feminine and neuter genders; words used in the neuter gender shall include the masculine and feminine genders; words in the singular shall include the plural; and words in the plural shall include the singular. SCRRA FORM NO. 6 Page 6 of 13 09/25/05 17. Ernereencv Telephone Numbers The Contractor must immediately contact SCRRA in case of accidents, personal injury, defect in track, bridge or signals or any unusual condition that may affect the safe operation of the railroads. The following are SCRRA's emergency numbers: Signal emergencies and grade crossing problems (888) 446-9721 Metrolink Chief Dispatcher (909) 593-0661 or (888) 446-9715 Metrolink Sheriffs Dispatcher (323) 563-5280 Signal and Communications Cable Location (909) 392-8476 18. Notices Except as otherwise provided in this agreement, all notices, statements, demands, approvals or other communications to be given under or pursuant to this agreement will be in writing, addressed to the parties at their respective addresses as provided below and will be delivered in person or by certified or registered mail, postage paid or by telegraph or cable, charges pre -paid. SCRRA: Manager Public Projects Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600 Los Angeles, CA 90017-4101 Attn: Right of Way Engineer 213/452-0256 Contractor: Contractor's address is shown below. 19. California Law This agreement shall be construed and interpreted in accordance with and governed by the laws of the State of California. SCRRA FORM NO. 6 Page 7 of 13 09/25/05 The Contractor hereby agrees to the terms as set forth in this Agreement and hereby acknowledges receipt of this Agreement and of the insurance certificate forms (Exhibits A & B) herein provided. (Nance of Contractor) (Address) (Telephone) (Fax) (Signature) (Print Name) (Title) (Contractor's State License No.) Receipt of the foregoing agreement and certificated of insurance furnished by the Contractor are hereby acknowledged on this day of h0 SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY Lin 0 Right of Way Engineer Manager Public Projects [Approved As To Form By Legal Counsel] SCRRA FORM NO. 6 Page 9 of 13 09/25/05 EXHIBIT "A" INSURANCE REQUIREMENTS FOR RIGHT OF ENTRY AGREEMENTS Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to Property, which may arise from or in connection with the performance of the work by the Contractor, his agents, representatives, employees or subcontractors. 1. Minimum Scope of insurance Coverage shall be at least as broad as: 0 Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 0 Insurance Services Office form No. CA 0001 (Ed. 1/87) covering Auto. Liability, code 1(any auto). 0 Worker's Compensation insurance as required by the State of CA. & Employer's Liability Insurance. ❑ Course of Construction insurance form providing coverage for "all risks" of loss. ❑ Property insurance against all risks of loss to any tenant improvements or betterment. ❑ Contractor's Pollution Liability Minimum Limits of Insurance Contractor shall maintain limits no less than: ❑x General Liability: $2,000,000 per occurrence for bodily injury, personal injury and Property damage. ❑ if Commercial General Liability Insurance or other forth with a general aggregate limit is used, either the general aggregate limit shall apply separately to this projectllocation or the general aggregate limit shall be twice the required occurrence limit. ❑x Automobile Liability: $1,000,000 per accident for bodily injury and Property damage. ❑x Employer's Liability: $1,000,000 per accident for bodily injury or disease. ❑ Course df Construction: Completed value of the project. ❑ Property Insurance: Full replacement cost with no coinsurance penalty provision. ❑ Contractor's Pollution Liability: $1,000,000 per occurrence/$2,000,000 annual aggregate Certificate Holder/Additional Insured Certificate holder and/or insured will be the following: Southern California Regional Rail Authority (SCRRA) Additionally Insured will be the following: Los Angeles County Metropolitan Trans. Auth. (MTA) Burlington Northern Santa Fe Corp. (BNSF) Orange County Transportation Authority (OCTA) Union Pacific Railroad Company (UPRR) Riverside County Transportation Commission (RCTC) National Railroad Passenger Corporation (Amtrak) San Bernardino Associated Government (SANBAG) Ventura County Transportation Commission (VCTC) 4. Railroad Protective Liability Insurance ❑x Railroad Protective Liability Insurance The Contractor shall provide, with respect to the operations they .or any of their subcontractors perform on the Property, Railroad Protective Liability Insurance, AAR-AASHTO (ISO/RIMA) in the name of the railroads and Member Agencies shown in Section 3 above. SCRRA FORM NO. 6 Page 9 of 13 09/25/05 5. The policy shall have limits of liability of not less than $2 million per occurrence, combined single limit, for coverage and 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. A $6 million annual aggregate shall apply. If coverage is provided on the London claims -made form, the following provisions shall apply: A. The limits of liability shall be not less than $3 million per occurrence, combined single limit. A $9 million aggregate may apply. B. Declarations item 6, extended claims made date, shall allow an extended claims made period no shorter than the length of the original policy period plus one year. C. If equivalent or better, wording is not contained in the policy form, the following endorsement must be included: It is agreed that "physical damage to Property" means direct and accidental loss of or damage to rolling stock and their contents, mechanical construction equipment or motive power equipment, railroad tracks, roadbed, catenaries, signals, bridges or buildings. For certain low -hazard activity, Contractor may request that the SCRRA and Member Agency waive the requirement to provide the Railroad Protective Liability Insurance. If the exposure to the track is physically separated by a building, floor or a continuous fence (no thoroughfares) and the employees of the Contractor are explicitly notified that they are not permitted to have any contact with the track, the Railroad Protective Liability Insurance requirement may be waived by SCRRA's Manager Public Projects or his/her designated representative. Deductibles and Self -Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by SCRRA and Member Agency. At the option of SCRRA, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects SCRRA and Member Agency, its officials and employees or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 6 Wherlosurance Provisions The General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions; A. SCRRA and Member Agency, its subsidiaries, officials and employees are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; premises owned, occupied or used by the Contractor, or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to SCRRA and Member Agency, its subsidiaries, officials and employees. B. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects SCRRA and Member Agency, its subsidiaries, officials and employees. Any insuFance or self-insurance maintained by SCRRA and Member Agency, its subsidiaries, officials and employees shall be excess of the Contractoes insurance and shall not contribute with it. C. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCRRA and Member Agency, its subsidiaries, officials and employees. D. The Contractor insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. SCRRA FORM NO. 6 Page 10 of 13 09/25/05 E. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in Iimits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to SCRRA and/or Member Agency. Course of Construction policies shall contain the following provisions: A. SCRRA and Member Agency shall be named as loss payee. B. The insurer shall waive all rights subrogation against SCRRA and Member Agency. Acceptability of insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANII, unless otherwise approved by SCRRA and Member Agency. Verification of Covera e Contractor shall furnish SCRRA with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by SCRRA. All endorsements are to be received and approved by SCRRA before work commences. As an alternative to SCRRA's forms, the Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. Suivcontractors Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. 10. Train Services Approximate daily train traffic is passenger trains and freight trains. 11. Submittal The original insurance policy (s) shall be submitted to: Manager Public Projects Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600 Los Angeles, CA 90017-4101 Attn: Right of Way Engineer 213/452-0256 SCRRA FORM NO. 6 Page 11 of 13 09/25/05 EXHIBIT "B" RAILROAD PROTECTIVE LIABILITY POLICY DECLARATION POLICY Insurance Company: Policy Number: Policy Period: CERTIFICATE HOLDER AND ADDITIONALLY INSURED From: To: 12:0 lam Standard time at location Certificate Holder/Insured: Southern California Regional Rail Authority (SCRRA) 700 South Flower Street, Suite 2600, Los Angeles, CA 90017-4101 Additionally Insured: Los Angeles County Metropolitan Transportation Authority (MTA) Orange County Transportation Authority (OCTA) Riverside County Transportation Commission (RCTC) San Bernardino Associated Governments (SANBAG) Ventura County Transportation Commission (VCTC) LIMITS OF INSURANCE Aggregate Limit $6,000,000 DESCRIPTION OF WORK AND JOB LOCATION(S) NAME AND ADDRESS OF DESIGNATED CONTRACTOR PREMIUM Contract Cost Premium Base FORM OF ENDORSEMENT Title COUNTERSIGNATURE Countersigned by Rate per 1,000 of (Authorized Representative) Burlington Northern Santa Fe Corporation (BNSF) Union Pacific Railroad Company (UPRR) National Railroad Passenger Corporation (Amtrak) Each Occurrence Limit $2,000,000 Number Date Advance Premium SCRRA FORM NO. 6 Page 12 of 13 09/25/05 EXHIBIT "Brr CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY) Southern California Regional Rail Authority (SCRRA) PRODUCER THIS CERTIFICATE OF INSURANCE IS NOT AN INSURANCE POLICY AND DOES NOT AMEND, EXTEND OR ALTER THIS COVERAGE AFFORDED BY THE POLICY BELOW, COMPANIES AFFORDING COVERAGE COMPANY A LETTER COMPANY B LETTER INSURED COMPANY C LETTER COMPANY D LETTER COMPANY E LETTER COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENTS, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LHAITS LTR DATE (MM/DD/YY) DATE (MM/DD/YY) GENERAL LIABILITY GENERAL AGGREGATE S ❑ COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG. S El CLAIMS MADE El OCCUR. PERSONAL & ADV. INJURY EACH OCCURRENCE 5 $ ❑ OWNER'S & CONTRACTOR'S PROT. FIRE DAMAGE (Any one fire) $ ❑ OTHER MED.EXPENSE S (Any one person) AUTOMOBILE LIABILITY ❑ ANY AUTO COMBINED SINGLE LIMIT $ ❑ ALL OWNED AUTO BODILY INJURY S ❑ SCHEDULED AUTOS (Per person) ❑ HIRED AUTOS ❑ NON -OWNED AUTOS BODILY INJURY S ❑ GARAGE LIABILITY (Per accident) PROPERTY DAMAGE $ EXCESS LIABILITY EACH OCCURRENCE $ ❑ UMBRELLA FORM AGGREGATE $ C1 OTHER THAN UMBRELLA FORM PROPERTY INSURANCE AMOUNT OF INSURANCE $ .,.�_.. �_COURS��F �9N.�TRLICTION WORKER'S COMPENSATION STATUARY LIMITS AND EACH ACCIDENT $ EMPLOYER'S LIABILITY DISEASE -POLICY LIMIT $ DISEASE -EACH EMPLOYEE $ DESCRIPTION OF OPERATIONS/LOCATIONSIVEHICLES/SPECIAL ITEMS THE FOLLOWING PROVISIONS APPLY: 1. None of the above-described policies will be canceled, limited in scope of coverage or nonrenewed until after 30 days' written notice has been given to SCRRA at the address indicated below. 2. As respects operations of the named insured performed on bcbalf of SCRKA, the following are added as additional insured on all liability insurance policies listed above: SCRRA, its Member Agencies, Operating Railroads, its subsidiaries, officials and employees. 3. It is agreed that any insurance of self-insurance maintained by SCRRA will apply in excess of and not contribute with, the insurance described above. 4. SCRRA is named a loss payee on the property insurance policies described above, if any. 5. All rights of subrogation under the property insurance policy listed above have been waived against SCRRA. 6. Any failure by the insurcd to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to SCRRA, its Member Ageumcs, its subsidiaries, officials and employees. 7. The worker's compensation insurer named above, if any, agrees to waive all rights of subrogation against SCRRA for injuries to employees of the insured resulting from work for SORRA or use of Member Agencies promises or facilities. CERTIFICATE HOLDER AUTHORIZED REPRESENTATIVE Southern California Regional Rail Authority (SCRRA) 700 South Flower St., Suite 2600, Las Angeles, CA 90017-4101 SIGNATURE ADDITIONAL INSURED TITLE MTA, OCTA, RCTC, SANBAG, VCTC BNSF, UPRR, AMTRAK PHONE NO. SCRRA FORM NO. 6 Page 13 of 13 09/25/05 SCRRAFORM [Section 4.01(1)] General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property F:\FILES\WP51\DLB\AZUSA\PALM DRIVE BRIDGE AGMT.DOC 04/24/06 (See Attached) Exhibit E SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY I ( J I METRQLIN K General Safety Regulations-for T-herd Party Construction and Maintenance Activity on SCRRA Member Agency Property 2002 TABLE OF CONTENTS ACICN0IVLEDGEIVIENT OF THE RECEIPT.- - - - .�._ _ _�._ ----� r----------------- - - - - I. ^ OVERVIEW II.^~ Right -of -Way Encroachment Approval Procedures -�------- A.�----- REVIEW PROCESS ----- B ------- ^-.--------M_------ APPROVAL PROCESS l..IJOCUMCHL21LLUll 2111U AUVIILll i------------------------ •---------- ------ - -III. -General Responsibilities and Safety A. OVERVIEW B. EMPLOYEE IN CHARGE (EIC) '- C. JOB BRIEFINGS D. --- General Safety -- - E. Right -of -Way Safety F. - Personal Protective Equipment G. ----__House Keeping -----____-- H.- - Electrical I. HAND TOOLS J. EMERGENCY SITUATIONS f - K RAILROAD FLAGGING/PROTECTION Work Equipment t ------------ ---- - - IV. DEFINITIONS All Contractors' employee(s), regardless of gender, whose duties are affected by them, must comply with these rules. They supersede all previous General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property. iii 0 Acknowledgement of the receipt of GENERAL SAFETY REGULATIONS FOR THIRD PARTY CONSTRUCTION AND MAINTENANCE ACTIVITY ON SORRA MEMBER AGENCY PROPERTY Southern California Regional Rail Authority (SCRRA) is a joint powers authority of five county transportation authorities, organized under the provisions of the Joint Powers Act, Section 6500 et seg. of the California Government Code and Section 130255 of the California Public Utilities Code, that builds, maintains, and operates Metrolink commuter railway system within Los Angles, Orange, Riverside, San Bernardino and Ventura Counties. The rules published herein are for the benefit of the third party contractor personnel and others who are involved in construction, maintenance or other activities while on SCRRA member agency property. Employees must be knowledgeable of and obey these rules and instructions at all times. If in doubt as to the meaning, they must ask their supervisor for an explanation. Violation of any of these safety rules subjects the Cotractor to work stoppage until compliance is reached. These rules coincide with the General Code of Operating Rules for Maintenance of Way Employees. These rules and instructions supersede any previous safety rules and regulations governing third party contractors working on SCRRA member agency property. In addition, affected employees must observe the applicable portions of all other rules with any other applicable or subsequent instruction. The intention of these safety rules is to advise third party contractor personnel working on SCRRA member agency property that Safety is of the utmost importance. For this reason, employees to whom these rules and regulations apply shall: • Be furnished a copy of the "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property". • Be required to read and study these rules and regulations as furnished. ■ Know and understand their application. ■ Have a copy of these rules and regulations in their possession while on duty or on SCRRA member agency property. • Immediately call to the attention of a supervisor and the SCRRA EIC any action not in compliance with these rules and regulations. • Hold daily safety meetings and/or job briefings prior to beginning work; change in work All Third Party Contractor personnel working on or about SCRRA property shall attend a Safety class given by SCRRA prior to beginning work. SCRRA management will regularly make observations and checks and advise the Training Manager or Supervisor to take the necessary action(s) to ensure compliance with the Safety Rules and Regulations. Director of Engineering and Construction This is to certify that I have been issued a copy of the "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property". Print Employee Name Signature Company Date GENERAL SAFETY REGULATIONS FOR THIRD PARTY CONSTRUCTION AND MAINTENANCE ACTIVITY ON SCRRA MEMBER AGENCY PROPERTY I. Overview Southern California Regional Rail Authority (SCRRA) is a joint powers authority of five county transportation authorities, organized under the provisions of the Joint Powers Act, Section 6500 et seg. of the California Government Code and Section 130255 of the California Public Utilities Code, that builds, maintains, and operates Metrolink commuter railway system within Los Angles, Orange, Riverside, San Bernardino and Ventura Counties. The rules published herein are for the benefit of the third party contractor personnel and others who are involved in construction, maintenance or other activities while on SCRRA member agency property. Employees must be knowledgeable of and obey these rules and instructions at all times. If in doubt as to the meaning, they must ask their supervisor for an explanation. Violation of any of these safety rules subjects the Contractor to work stoppage until compliance is reached. These rules coincide with the General Code of Operating Rules for Maintenance of Way Employees. These rules and instructions supersede any previous safety rules and regulations governing third party contractors working on SCRRA member agency property. In addition, affected employees must observe the applicable portions of all other rules with any other applicable or subsequent instruction. The intention of these safety rules is to advise third party contractor personnel working on SCRRA member agency property that Safety is of the utmost importance. For this reason, employees to whom these rules and regulations apply shall: • Be furnished a copy of the "General Safety Regulations for Third Party Construction and Maintenance Activity on SCRRA Member Agency Property". • Be required to read and study these rules and regulations as furnished. • Know and understand their application. • Have a copy of these rules and regulations in their possession while on duty or on SCRRA member agency property. • Immediately call to the attention of a supervisor and the SCRRA EIC any action not in compliance with these rules and regulations. Hold daily safety meetings and/or job briefings prior to beginning work; change in work and/or fouling the track. All Third Party Contractor personnel working on or about SCRRA property shall attend a Safety class given by SCRRA prior to beginning work. SCRRA management will regularly make observations and checks and advise the Training Manager or Supervisor to take the necessary action(s) to ensure compliance with the Safety Rules and Regulations. Director of Engineering and Construction 2 GENERAL SAFETY REGULATIONS FOR THIRD PARTY CONSTRUCTION AND MAINTENANCE ACTIVITY ON SORRA MEMBER AGENCY PROPERTY II. RIGHT-OF-WAY ENCROACHMENT APPROVAL PROCEDURES. Contact must be made by the Third Party Contractor with the appropriate SCRRA representative who will cooperatively work with the Contractor to ensure that all appropriate documents, plans and agreements have been submitted, reviewed, approved and executed. These procedures can also be found by visiting the Metrolink website at www.metrolinktrains.corn under Public Projects/Engineering. A. REVIEW PROCESS 1. SCRRA reviews engineering plans for compliance to technical and safety regulations, which include but are not limited to: • Location of work, • Horizontal and vertical clearances to tracks, • Shoring, jacking and false work, • Any issue determined to impact safety or railroad operations, • Maintainability, ■ Drainage impacts, • Access to member agency property, • Compatibility with future plans for rail improvements or use of rail roadway, • Existing underground railroad utilities (signal & communications lines). 2. Member Agency (MTA, OCTA, etc) Real Estate Department will review applications for use of the right -of way. Right of entry cannot be granted until both SCRRA and member agency real estate approvals are complete. B APPROVAL PROCESS 1. The Contractor shall submit a right-of-way encroachment application with tnree copse 'on drawings. (H. f s►z' - prints of 24"x36" drawings are generally acceptable.) 2 SCRRA will provide written comments on all submittals. 3. If there are no comments requiring corrections, SCRRA will advise the applicant in writing and will then advise the Contractor of the requirements to obtain the Right -of -Entry from SCRRA. 4. Real Estate Agreement (Lease, License or Easement) from SCRRA member agency. The approved SCRRA Right -of -Entry document consists of • Right -of -Entry Agreement (Form 6) or, ■ Indemnification and Assumption of Liability (Form 5) or, ■ Agreement for House Moving (Form 4). These form demonstrate approval by SCRRA of the technical aspects of the work and the insurance and indemnification certifications. In addition to the above form(s) the complete Right -of -Entry package will include reference to the approved drawings and to any unique instructions, specifications, MOU or other requirements of the SCRRA. 6. When all required agreements have been executed, (including Right -of - Entry) the Contractor must contact SCRRA Right -of -Way Engineer, or designee, to obtain a SORRA EIC for the work to be done. C. DOCUMENTATION AND IDENTIFICATION All Third Party Contractors working on SCRRA property must have a Right of Entry or other approved documents) with them at all times when on property. In addition, all individuals working or otherwise entering SCRRA member agency property must have: Approved picture identification Picture ID can be: current valid driver license, employer issued identification, etc. Must be SCRRA safety trained annually. Must display current safety trained sticker on their hard hat. Please note that failure to have approved Right -of -Entry document, picture identification and SCRRA safety trained sticker, is grounds for removal from property. III. GENERAL RESPONSIBILITIES AND SAFETY A. Overview These safety regulations govern your activities while on SCRRA member agency property regardless if on or off duty. Any work performed without obtaining proper authorization or compliance with these rules will permanently jeopardize your ability to be allowed on railroad right-of-way. These rules cover unique requirements and general workplace safety. B. Employee In Charge 1. Duties and Responsibilities: On -Track Safety. Work performed by any contractor is regulated by Title 49 Part 214 of the Code of Federal Regulations, as specified in SCRRA's General Code of Operating Rules (GCOR) and as administered by a SCRRA EIC. A SCRRA EIC is referred to as providing "Flag" protection against trains. SCRRA EICs have been trained and qualified in GCOR and the characteristics of the SCRRA territory. They will provide selected training, job briefings, and flag protection to assure both the contractor's safe work environment and the safe passage of trains. The SCRRA EIC has the authority to temporarily or permanently halt work and to remove contractor's employee(s) from the right -of- way in order to assure safe work. In all cases the contractor's employees must comply immediately with the instructions of the EIC. 4 Appeals: Right To Challenge Contractor employees may, during the job briefing process, request clarification of the protection against trains being provided by the EIC. If the Contractor employee does not believe that the protection against trains is sufficient, the employee may, in good faith, challenge the EIC's form of protection and must remain clear of all tracks until the challenge is resolved. The EIC, Contractor Supervisor and the SCRRA Supervisor will resolve the challenge before work can begin. 3. Appeals: EIC Decisions If the Contractor has concerns about instructions of the EIC, the Contractor and Contractor's employees are to immediately comply with the EIC's instructions. After employees are clear of tracks, Contractor may contact EIC's Supervisor to resolve concerns. In other words, "comply, then complain." C. Job Briefings job briefings, as given by the EIC, are meetings of all who are or will be involved in a particular task or job at the same work site and are required prior to beginning work each day. 2. All information related to On -Track -Safety must be given in the job briefing to any worker who will enter railroad property. In addition to other safety issues, the minimum On -Track Safety information must include: • Designation of the Employee In Charge (EIC), • Type of track protection, • Time limits of the protection, ■ Track(s) that may be fouled, ■ Status of other track(s) at worksite, • A designated place of safety where workers clear for trains, • A designated assembly place in case of an emergency, • Designated work zones, • Specific job(s) to be done or equipment moves(s) to be made, • Responsibilities of each worker, • Method of notification (e.g. air horn) of approach of trains. Additional instructions may include an unusual or a specific reminder due to a hazardous condition or unusual practice. Additional job briefings will be given when: • Working conditions or procedures change, • Workers arrive late or new workers enter working limits, • When the main track protection or time allowed to foul the track changes, • When visitor(s) enter the work site. D. General Safety SAFETY IS PARAMOUNT AND ALWAYS TOP PRIORITY. Safety takes precedence over deadlines, production schedules, and all other considerations. When uncertainty arises, take the safe course. Remember accidents are a result of carelessness, unsafe practices, lack of attention or complacency. Any accident can be avoided. 2. Using, possessing, or working under the influence of alcohol and /or drugs is not permitted while working anywhere on railroad property. This includes prescription drugs that cause drowsiness or otherwise impair one's ability to perform their assigned task. The use or possession of unauthorized radio equipment is forbidden. Use of personal radios, portable tape cassette players or portable disc or record players while working is prohibited. 4. Horseplay, physical altercations, running or jumping are forbidden. Firearms or other deadly weapons, including knives with a blade in excess of three (3) inches are prohibited on SCRRA member agency property. 6. Work on public streets, roadway crossings, and highway bridges should be performed with due regard for the convenience and safety of the public. 7. All employees must look in both directions before crossing any track or roadway. 8. Only authorized employees are allowed on engines, cars, cabooses, track cars or other railroad equipment. 9. When using cellular phones you must remain at least 254M from the nearest running rail E. RIGHT-OF-WAY SAFETY When on or near the tracks, the following precautions must be taken: Keep clear of all tracks unless an SCRRA EIC protects them. 2. Before crossing tracks look both ways. 3. Expect movement of locomotives, railroad cars or on -track equipment in either direction at any time. (Remember: there could be an uncontrolled movement.) 4. Always step over the rails when crossing the tracks. Never walk, stand, or sit on the rails. The rail surface can be extremely slippery. 5. Stay away from track switches. The switch points can move unexpectedly and with enough force to crush ballast rack! Stand 150 feet from track switches when trains are approaching, make sure that you face approaching trains at all times. Stay away from any other railroad device you are not sure of. 6. When crossing the tracks in a group, walk single file. 7. Never stand between adjacent tracks in multiple track territory when a train is passing. 8. When crossing tracks occupied by standing engines, railroad cars, or on - track equipment workers must provide at least 20 feet clearance from the end of any piece of equipment. 9. Do not cross track(s) if there is less than 50 feet between trains, cars, or equipment. 10. Employees must not cross tracks by going underneath, over or through cars, engines or on -track equipment. 11. Work is not allowed within 50 feet of the track centerline while trains are passing the work site. Always stand as far back as possible to prevent injury from flying debris or loose rigging. Face the direction from which the trains or on -track equipment is approaching 12. Visually inspect all passing trains. If you detect a dangerous condition, inform your EIC immediately. The EIC will warn the train crew to stop their train. If the train does not stop immediately, the EIC will notify the train dispatcher. 13. Never remain in a vehicle that is within 20 feet of the nearest running rail of a passing train. Stop your vehicle on the approach of a moving train. Move vehicles away from the track at least 20 feet or park the vehicles away from the tracks and, if safety permits, get out of your vehicle and walk to a safe location away from the tracks. 14. Equipment must be stopped while train is passing through your working limits. No movement will be allowed toward an approaching train that would cause the engineer to believe the track was going to be fouled. 15. Trains are traveling faster than they appear and are relatively quiet. Moving trains are to be expected on any track at anytime from either direction. Engines can push or pull a train. Employees should not rely on past experiences to determine train schedule. Train's schedules are unpredictable and trains are subject to schedule changes or delays. F. PERSONAL PROTECTIVE EQUIPMENT All employees working on SCRRA member agency property will be required to wear the following protective equipment (except in offices and motor vehicles): 1. Hard hats that meet the requirements of ANSI Z89.1 or ANSI Z89.2, as specified by CAL/OSHA and /or Fed/OSHA must be worn. Metallic hard hats shall not be worn on any SCRRA project 2. Eye protection that meets the requirements of ANSI 287.1 is required on SCRRA property. Eye protection with side shields which meets the requirements of ANSI Z89.1 is required for those employees or contractors falling under 49CFR 214. 3. Orange vest with reflective tape for night work must be worn. An orange T-shirt, sweatshirt, jacket may be worn during the day. 4. Footwear that provides ankle support has soles thick enough to give good traction and to withstand punctures from sharp objects and is a lace type boots at least 8" high with a defined heal. Steel toe boots are required for those employees who fall under 49 CFR 214 and are recommended for all. Proper attire when working on SCRRA member agency's right-of-way includes: • Waist length shirts, with sleeves and ankle -length pants. • Clothing must not interfere with vision or hearing, and must allow free use of hands and feet. • Loose or ragged clothing must not be worn at anytime. • Neckties, or loose jewelry must not be worn while operating or working on machinery. • Shoes-censt cted wiihauLaAafined heel, open toed�launging or jogging - type shoes, unlaced shoes or unbuckled overshoes, badly worn with loose sole shoes must not be worn on SCRRA property. G. HOUSE KEEPING CPUC General Order 260 and 118 require that lateral and vertical clearance around a railroad track and a safe walkway parallel to both sides of the track be maintained. The EIC will observe construction and material storage activities and may direct contractor's employee(s) to correct conditions not in compliance with the CPUC General Orders. 2. Keeping premises, tools and equipment in a clean and orderly condition is essential to safety and is the responsibility of the contract's employee(s). 3. Material must not be stored closer than 20 feet of the closest rail. 8 4. Contractor's employee(s) must be aware of areas with spilled oil or grease and apply sand or an equivalent (approved) material to minimize slipping hazards. 5. Contractor must remove all unused materials and debris created by the construction project. 6. Clear site immediately of all tripping hazards such as wire, loose material, etc. 7. Flammable materials, petroleum products, paints, caustics, acids and solvents must be stored in designated areas and in containers which are provided for them. Contractor is responsible for restoring the property to its previous condition or a condition of betterment, making repairs to drainage facilities, fences, gates, or buildings damaged or removed by the Contractor or its forces. H. ELECTRICAL Electric wires must be considered live at all times. Employees shall not depend on the insulation of wires for their safety. Employees must keep away from all overhead and underground wires they may come in contact with. 2. When using power cords, they must be placed 2 -inches below base of rail. Employees must not place any metal objects across rails. 4. Signal cables/conduits may be encountered or damaged while undergoing excavations along the rig t -o -way.a e signa desk prior to excavations to have cable and conduits located. (888.446.9720) 5. Excavation is not permitted until: • Dig Alert (USA) — identification is complete, ■ SCRRA Signals Department has identified signal conduits. I. HAND TOOLS 1. Employees must inspect tools, machinery and equipment for defects before using. 2. Employees must use all tools and appliances in the manner intended and for the purpose designed and only those employees qualified and authorized to operate equipment and machinery can do so in the performance of duty. Tools and appliances must not be altered from their intended use. 6 J. EMERGENCY SITUATIONS When persons are injured, everything possible must be done for their care. 2. If equipment was involved in the accident it must be examined to make sure the equipment was in proper working order. Any defective tools, machinery and equipment is prohibited from use. Report to the EIC by the first available means of communication any accidents, personal injuries, defects in tracks, bridges, signals utilities or communication facilities or any unusual condition that may affect the safe operation of the Railroad. 4. Employees must exercise care to prevent injury to themselves or others. They must be alert and attentive at all times when performing their work and plan their work to avoid injury. Gel In case of personal injury, loss of life, or damage to property, the Foreman (Supervisor or others in charge) must immediately secure the names, addresses and occupation of all persons involved, including all persons at the scene regardless of whether these persons admit knowing anything about the accident. This information should be included in reports covering each occurrence. If an accident causes personal injury or death, all tools, machinery and other equipment involved, including premises where such accident occurred must be promptly inspected by the Foreman or by other competent inspectors. Tools, equipment and machinery must be secured until Foreman, Safety Officer, or other competent inspector has completed. inspection. A report of such inspection, stating the conditions found and names of persons in—Wing a insp ion, must be promptlyfo-rWarr to SCRRA and the supervising officer of person making the inspection. Information concerning accidents or personal injuries occurring to persons who are not employees, must not be given to anyone except authorized representatives of the SCRRA or an officer of the law. 8. Prior to starting work the EIC will have available on site, a list of these emergency phone numbers: ■ Ambulance, ■ Police, • SCRRA's and/or its operating contractors representative, • Metrolink Operation Center (MOC), • Signals emergency number. 10 K. RAILROAD FLAGGING/P.ROTECTION The Contractor's Foremen working on or about the tracks are responsible for the safety of their crews and must guard their crews against impending danger or injury. They shall bear in mind that Safety is the first and most important consideration. Contractor's Foreman must be advised of train, engine and on - track equipment movements and that protection has been furnished as required by On -Track Safety rules. The contractor must request and arrange for flagging services from SCRRA's authorized representatives five (5) working days before the work begins for the following conditions: 1. A railroad flagger is required for your protection any time you are on SCRRA member agency property. On -track protection will be provided by a flagger when the following work is being performed, but not limited to: ■ When any part of equipment is standing or being operated within 20 feet of the nearest track or has the potential to foul the track, • When any erection or construction activities are in progress within such limits, regardless of elevation above or below track, For any excavation in or around the tracks that, in the opinion of SCRRA or it's member agency representative, may subject the tracks or other property to settlement or movement, ® For any clearing, grubbing, or demolition in proximity to the property which, in the opinion of SCRRA, may endanger the property or operation, + For any street construction and maintenance activities requiring temporary work area traffic control. All activities that change the flow of traffic across a railroad crossing, e.g., traffic cones, etc., must be protected. SCRRA must approve traffic control plans before work can begin. A job briefing must be conducted prior to beginning any work and/or anyone fouling the track. A new job briefing will be conducted each time conditions of the protection change and/or new personnel arrive. Everyone must have a working knowledge of: The limits and time of the protection, ■ Location of where everyone is to clear for all trains or on -track equipment. Good communication between the contractor and the EIC is imperative! The EIC is responsible for clearing all workers and/or equipment near or on the main track. 11 L. WORK EQUIPMENT Equipment operators must be properly trained and qualified before operating equipment on railroad right-of-way, and must operate equipment in a safe, skillful and reliable manner. 2. Operators are responsible for knowing that their machines are in safe, operating condition before starting and must assure themselves that proper protection is being afforded their operations. Operators must make a running brake test before actual operations of work equipment when operating on the main track. The appropriate equipment must be used and operated for each task as per the manufacturer's instructions. 3. Do not engage in reckless operations of vehicles while on the railroad's right- of-way. The speed limit on the right-of-way is not more than 15mph and may be lowered if conditions warrant. Offenders may be asked to leave the railroad's right-of-way by any railroad employee or representative observing unsafe behavior. 4. Audible backup warning devices are required on all heavy equipment. 5. Operator must make sure that the equipment manual is on their machine. 6. While trains, engines or on -track equipment are passing: ■ Machines must be stopped, • Vehicles must be stopped, • Brakes must be set, • Buckets and shovels or clams must be lowered to rest, • Machines without buckets must have their load line tightened to prevent movement. 7. Operators are responsible for seeing that unauthorized persons are not carried on equipment and must know that persons qualified to be on equipment are properly positioned before movement is made. Do not transport passengers in truck beds or on heavy equipment: 8. Use of equipment such as loaders and backhoes to raise or lower people is strictly forbidden. 9. Operators of equipment must know the locations of overhead and underground utilities. Operator must have a clear understanding of how to protect utility lines before operating machinery. 10. NEVER move equipment across the tracks except at established road crossings. Tracked or rubber tire equipment will require the supervision of a SCRRA EIC any time railroad tracks are crossed. 11. NEVER move tracked or rubber tire equipment across railroad bridges or through tunnels. 12 12. When equipment is left unattended: • Motor must be stopped and ignition must be locked, Parking or hand brake must be securely set, • Keys must be in possession of operator or authorized employee, • Wheels must be securely blocked on grades, • Equipment secured in a highly visible area. IV. DEFINITIONS Ballast — The rock that supports the track and ties. This rock is groomed to keep the track in place, drain water away from the track, and to distribute the weight of trains to surrounding soil. DO NOT DISTURB OR PLACE SOIL, SAND, OR DEBRIS ON IT. California Public Utilities Commission (CPUC) - The State Agency that administers certain rule regulations of the railroad industry. Center Line of Track — An imaginary line, that runs down the center of the two rails of a track. Confined Space — A space that is large enough and so configured that an individual can enter and perform assigned work. The space has limited or restricted means for entry or exit and is not designed for continuous individual occupancy. This would include but not limited to tanks, vessels, silos, storage bins, hoppers, vaults and pits. Contractor — Any Third Party Contractor's authorized worker, other than a railroad employee, who is working on railroad property. Derailment - A potentially dangerous condition, whereby rail cars or engines leave the tracks. Directional Bore — A method that controls the direction of boring and eliminates the need for multiple conventional bore pits allowing for a longer bore length than conventional methods. Directional bores utilizes pressurized bentonite to auger and slurry to backfill the bore. Excess bentonite must be contained. Employee -In -Charge (EIC or SCRRA EIC) — A roadway worker designated to provide On -Track -Protection for one or more work groups. Engine — A unit propelled by any form of energy or more than one of these units operated from a single control typically referred to as a locomotive. Excavation — Any removal of earth. Any excavation and/or shoring, no matter how large or small requires prior approval from SCRRA Engineer. Fall Protection — A requirement of the FRA and SCRRA, that ensures training and protection for work performed on any bridge structure that is at a height of 10 feet or more above water or ground and/or while working at a height of 10 feet or more. Fill — A section of earth built up to support the railroad's track structure. 13 Foul the ballast — Anything that contaminates the ballast section of the roadbed and inhibits the ballast from supporting the track, draining water, or suppressing weed growth. In most cases ballast is fouled by excavated material being placed on the ballast. Foul the track — Placement of an individual or a piece of equipment in such a proximity to a track that the individual or equipment could be struck by a moving train or track equipment. SCRRA fouling distance is defined as within 20 feet from the nearest running rail. General Code of Operating Rules (GCOR) — The rules that govern the use of railroad tracks by trains, maintenance employees, contractors and others. Hy -rail Vehicle - This vehicle is considered on -track equipment. It is typically driven on highways, but has specially manufactured attachments that allow the vehicle to travel on railroad tracks. They are viewed as trains and only authorized railroad personnel may operate them. Industry Track — A secondary track designated to allow access to industries along the main track. Job Site — Any area where work is performed, where materials and equipment are stored, or which employees access during the project. Mainline (main track) — The primary track used by trains. Some of the routes have more than one track. Member Agency- is that specific county transportation Member Agency(s), whose Property is directly affected by the Contractor's actions. The five county transportation Member Agencies are the Los Angles County Metropolitan Transportation Authority, the Orange County Transportation Authority, the Riverside County Transportation issiorrthe-San-Bernardino-Associated-Fovernmenti,-an theAtentur-a-feu Transportation Commission. Mileposts — Field indicators of approximate distance from a specific point the Railroad system used for approximate locations of Railroad facilities. They are not to be used for field surveys. MOU- is a memorandum of understanding. On -Track Equipment - Maintenance of Way machines such as track cars, Hy -rail vehicles, tampers, ballast regulators, etc. which may be operated on the track. On -Track Safety - A set of safety rules, developed and promulgated by the FRA, that must be complied with to work on or near railroad property. Specific training and obedience to these rules is a requirement of the FRA and is managed by SCRRA for its' member agencies. The GCOR embodies the FRA On -Track Safety Rules. When SCRRA rules are more stringent those rules shall apply. Loss of your privilege to work on SCRRA member agency right-of-way can result from the violation of these rules. 14 Roadbed - A graded area beneath and on either side of the track structure that provides support and drainage of the track. Roadway Worker — Any employee of the railroad or any contractor on a railroad right- of-way, whose duties include inspection, construction, maintenance or repair of railroad track, bridges, roadway, signal and communication systems, electric traction systems, roadway facilities or roadway machinery on or near track, or with the potential of fouling a track. Safety Training - A session conducted by a qualified SCRRA representative at which On -Track Safety and Railroad Rules and Regulations are discussed. Safety Sticker - An emblem that indicates completion of Railroad Training. The non transferable "Safety Trained' emblem is to be placed on each individual's hard hat so it is visible when working on the Railroad's Right -of Way. Shoring — Methods and materials used to prevent the collapse of the earthen walls of excavations. Shoring in close proximity to the tracks requires design pursuant to Cooper E-80 loading. In all cases, shoring drawings require approval prior to construction. Siding — A secondary track used for the passing of trains on single-track routes. Signal - Railroad facility used to inform Railroad personnel of track conditions. Spur Track — A secondary track designated to allow access to industries along the main track. Tracks — The rails, ties, and ballast that composes the traveling surface by trains. Track Structure — The rails, ties ballast, and roadbed that compose the traveling surface used by trains. Trains — One or more engines coupled together, with or without cars, which use the Railroad track. Train Movement — Any motion of engines and/or cars over the railroad tracks. Yard- A collection of secondary tracks used to store equipment (cars, engines, maintenance machines, etc.), for assembling or disassembling trains, and/or conducting other railroad operations. 15 Suggested for your use. RAILROAD EMERGENCY RESPONSE FORM Location (Subdivision & Milepost) 'Closest City and Directions from it to the job site or nearest crossing if job site is inaccessible from roadway. Location of the closest hospital and directions from job site. Or nearest crossing if job site is inaccessible from roadway, Nearest emergency Services: Ambulance: Fire Police Railroad Contacts: Name Nextel Emergency Numbers Grade Crossing Hot Line 888.446.9721 Manager, Maintenance -of -Way (Cell phone) 213.792.7904 Public Projects Right -of -Way Engineer 213.452.0256 Cell phone 213.305.8508 16 Southern California Regional Rail Authority Third Party Contractor Zero Tolerance Safety Rules ➢ All third party contractors must have a Right -of -Entry or approved document to work on SCRRA right-of-way. ➢ Drinking alcoholic beverages, being under the influence of any drug or medication or having them in your possession at any time on SCRRA property will not be tolerated. ➢ All third party contractor personnel must have been SCRRA Roadway Worker Safety trained and have a valid SCRRA safety sticker on their hard hat or they will not be allowed on SCRRA property. ➢ All third party contractor personnel must wear a hard hat, safety glasses, orange vest with reflectorized tape long pants, and lace type boot not less than 8" high. ➢ WORKING ON OR AROUND TRACKS: 1. All work within 20 feet of the nearest running rail must be coordinated with the Right -of -Way Engineer so that positive protection can be provided for personnel. 2. Do not foul the track with any piece of equipment without a flagger and -pos i tivz4 tection. _. ➢ Do not stand on the track or within 10 feet of the centerline of the track. The track is not an observation platform. ➢ Do not leave open holes or trenches unattended. ➢ Do not disturb or foul the ballast at any time. VILOATION OF ANY OF THESE RULES WILL RESULT IN REMOVAL FROM THE PROPERTY AND MAY CAUSE THE JOB TO BE SHUT DOWN. 17 00 1100 AZUSA CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: ANN GRAF GAYNOR DIRECTOR OF INFORMATION TECHNOLOGY VIA: F.M. DELACH eake CITY MANAGER DATE: MAY 15, 2006 SUBJECT: UPGRADE TO AVAYA AND VERIZON PHONE SYSTEMS (CITY HALL TELEPHONE SYSTEM REPAIR AND UPGRADE) RECOMMENDATION 1. It is recommended that the City Council waive formal sealed bids in accordance with Azusa Municipal Code Section 2-522(c) due to the fact that Spenser Communications is covered under the California Multiple Award Schedule CMAS agreement number 3-01-70-1488A which allows cities to waive formal bidding. 2. It is recommended that the City Council approve the upgrade of the Avaya Phone System and approve the issuance of a purchase order to Spenser Communications in an amount not to exceed $13,557.72. BACKROUND The City has been working with Verizon and Avaya to upgrade our existing 20 year old legacy trunking infrastructure. This is a series of cables and trunks that bridge the City's phone system to the outside world. The legacy components that make up our phone system will be changed, and all analog feeds will be converted to digital before being processed by our phone system. We will be converting to digital trunking at the Verizon end and upgrading the City's phone system to operate entirely over digital trunking. Technically this gives us a more secure system that should eliminate any "party line" or "cross talk" type of activity that can occur, and calls made to the city will display the caller ID. It is imperative that we phase out all of the analog technology, in order to keep current on our support agreements, and to take advantage of the benefits of digital trunking. FISCAL IMPACT This project was not anticipated in the adopted FY2005-06 Budget. Therefore, staff requests that Council appropriate the required $13,557.72 from Undesignated General Fund Reserves. II SPENSER COMMUNICATIONS,INC. Quote Number:1030620 Date:5/3/06 Shipment Method:FOB Origin SCI Quote Valid for 30 Days 800 E.Mow Highway Covina,CA 91722 Account Executive:Dave Cerwinskl Customer. Direct:626.593,3144 City of Azusa Inside Sales Support:Michele Green 213 E.Foothill Blvd Direct:626.593.3147 Azusa,CA 91702 Fax:626.593 3247 'PartNum6e[.'; - DescrfpHon. ;`1QuantHy-<. .dLTsfPrice. '.€. . s`UnitPrice �1 FxtPrice>` Material 185446 AVAYA COMMUNICATIONS SOLUTION $000 $000 $000 700350259 CP TN464HP DSI INTFC 3 $4.345 00 $3 108 26 $9.324 78 700287683 CBL 120A1 CSU TO NTWK SMARTJACK 25FT 1 $2000 $19 14 $19 14 179890 INTEGRATED CSU I $1.79500 $1,28408 $1 284 08 107988867 DEF DSI LOOPBACK JACK 700A I $12400 $88 71 $88 71 'Re'ource , Description .. : Holm_ _ <is . _ ,`,, ITo_udy Rate. :_ Extended; Services Initial Installation $331 88 $331 88 Technician-Onsite Additional Testing $500 00 $500 00 Technician-Remote Support $1 000 00 $1.00000 Hardware Total $10,716.71 Accepted By: Services 51.831 88 Tax $88413 Dote: Freight $125.00 Gran_d Total $.13 557 72. PO Number: Terms and Conditions Apply This document and the information hereon is both Confidential and Proprietary Spenser Commurccatlons Inc I'Spenser)owns such information and only the party for whom or for which Otis document was prepared may use the information for purposes that Spenser expressly authorized Any unauthorized use of such information without the prior express written consent of Spenser is strictly prohibited.Failure to obtain Spersers written consent to disclose this document or the information heron may cause the breaching party to be Oxrble to Spenser for damages.including,but not limited to,lees for designs that Spenser prepared THE DELIVERY OF THIS DOCUMENT AND THE INFORMATION HEREON TO THE INTENDED RECIPIENT DOES NOT MAKE ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD 10 ANY PRODUCTS OR SERVICES OR OTHERWISE BY SPENSER COMMUNICATIONS NOR ITS LICENSORS OR SUPPLIERS.SPENSER DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND NOIIINFRINGEMENT Proprietary and Confidential.For use only by addressee. 010443 a I r AZUSA. CONSENT CALENDAR TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: ANN GRAF DIRECTOR OF INFORMATION TECHNOLOGY VIA: F.M. DELACH /2 (3 CITY MANAGER DATE: MAY 15, 2006 SUBJECT: PURCHASE OF CALL LOGGER FROM CAPTURE TECHNOLOGIES (POLICE DEPARTMENT TELEPHONE SYSTEM UPGRADE) RECOMMENDATION 1. It is recommended that the City Council waive formal sealed bids in accordance with Azusa Municipal Code Section 2-522(c) due to the fact Capture Technologies is covered under the California Multiple Award Schedule CMAS agreement number 3-03-70-1799B which allows cities to waive formal bidding. 2. It is recommended that the City Council approve the equipment replacement of the Voice Logger system and approve the issuance of a purchase order to Capture Technologies in an amount not to exceed $33,746.00. BACKROUND In the Police Department dispatch center a 24 hour computerized call logger recorder is used to record all phone and radio calls received by the police department dispatch center. This includes emergency 911 lines, business lines, in house phone lines as well as any outgoing calls made from the dispatch center. Azusa primary radio channel, channel 2, Glendora Police Department's primary channel, and the Azusa/Glendora tactical channel are also tapped. As mentioned, the recorder runs 24 hours a day 7 days a week. The recordings are used to assist the District Attorney in the prosecution of crimes., to assist the City attorney during civil suits, and are also used to assist in training of both police officers and dispatchers The existing call logger is 9 years old, far past the traditional replacement for this type of equipment, and is no longer covered under a maintenance contract. It is imperative that we replace this with current technology. FISCAL IMPACT This is budgeted in the current year in account 46499410007142 ' ME COM /i'ar•air;par�'tr=r=araligill A California Certified Small Business 12761 Serving California since 1948 GSA# GS-35F-0146N Oakland,Los Angeles.Sacramento.Oregon CMAS# 3-03-701799B Corporate-3575 Alameda Ave DATE 4/24/2006 Oakland.Ca 94601 800 544 5050 x179 Fax 510 534 0202 PROPOSAL cwllliams(ulraotureteorn a Azusa Police Department 725 N.Alameda Ave. Azusa,Ca 91702-3295 8///To: Joyce C.Gurbada $/ih'To: Same jaurbadatThci,azusa,ca.us • Location PHONE# FAX# (626)812-3295 I PO# .(626)812-3295 PART ID I DESCRIPTION OF ITEMS . :.:.: QTY . ....'..:PRICE . ... ....:E7IT AMT :::. MERCOM HARDWARE AND SOFTWARE LICENSING ALMAXPno-ruu-TAP-t*A.0.32 .. .. 32 Channel Audlolog MAX-PRO with Analog Passive Tap Interfaces,without Archive Drives Dual Hot Swap Mirrored 16068 Hard Drives(Fun RAID Level 1 �' • Redundancy Standard) ,Fac--- - •Dual tint Swap 300 Watt Power Supplies •Pentium IV CPU 2.4 or Hiphrx•6-Slot PCI based Recording Motherboard-512MB Memory-Windows XP PRO•Mkrosott SQL Server 2000(MSDE)Database •4U Rack-Mount Chassis-10/100 Ethernet NIC(Network Interface Card) •Beep tone Insertion for analog interlace loggers Yc` •Audiolag 3.3 Software Suite ..k( X1‘2'74;"•1 •Caller ID(for analog telephony Interface only) 1 $19.000 $ 19,000 00 •Channel inactivity Monitor entails alerts! •►Single 4-Channel Playback license •►Single Instant Recall License-Dispatdrers •►Single Administrator raceme •Dual Het-Swap 16000 hard drive provides eelensiee recording storage: o 20,000+channel-hours 0 24 Kbps a 30.000+clanneh•hours#13 Kbps o 75,000+channel-hours Ca EKbps o 100,000+channel-hours 0 5 3 Kbps CDRW Included ADO On•ITSET-TAPeA6Ex n 8 Channel Digital Set-Tap Base Card Add-on with 8 channel t $4,675 $ 4,875 00 licenses(requires 1 available PCI Slot)-64100 2 wire • Total For Hardware and Software Licensing .- - $ 23,875.00 MERCOM SOFTWARE,ACCESSORIES,OPTIONS Remote-Moint Remote maim.Package incl.External Modem and PCAnywltcre 1 S 250.00 S 250.00 CA03-CA20 install KitrCnhlint.0 nrarerinlsl 1 $ 150.00 S 150.00 ALNA54lpload•licmco Audiolon NAS Upload license f NAS location Provided/determined 1 $ 1,200 00 $ 1.20000 inti the client) Audioloo Record-on-Demand License(ROONI1:10 Pack of Seal ALRODNI.10 of License-Record-On-Demand application for Detective- I $ 1.700.00 S 1.700 00 initiated recording control and Reference Text Insertion. 911-10 Software Puckagc""-includes: •(10)Concurrent Seals for client workstation playback modules capable of up to 4 Channel playback simultaneously!! fC idl accru and terries/tis L,l A`workuraian!14/,1ICI'4CL, •(10)Concurrent Scats for Instant Recall (last!Mina(k Trannnisriaasr 141.110 9f1•a-PSAP Client License bundlo1 $ 99900 Sineludvdl (I)live Monitor license for instant call monitoring Mt RAN •(I)Remote Admin L'cense aiAlC, (Remote configuration and system monitoring) •(I)Reporting Package license enabling user to create graphs and analyte and track Chatted activity ((Mailed RIport(1',,.t,{t,i Cassano Recording tins TEAC W-500R Double Cassette Deck Recorder f Player fpr 1 = 250 00 S 25000 eouivilent) Total For Hardware and Software Licensing S 3,550.00 MERCOM Hardware and Software Maintenance - -Complete Hanlwan,Coverage.6800 Ilelptinc Suppun&Onsite Toch with 4 FirstYear Sondra Support hours respnnsc time htan•Fri 8x5 1 Slectuded SInduded Hardware Mainlonanco 2417 Upgrade Upgrade 1st Year Support to 24/7 coverage. 1 S 2,000.00 S 2,000.00 Total For Hardware k Software Maintenance Support - S 2,000.00 PROFESSIONAL SERVICES Sara! lnslallmion 1 S 1,800.00 $ 1,800.00 aging Application Training-On Site 1 Sindudod 'Included Wage Electronic Waste Recycling Fee 1 S 8.00 $ 8.00 sa N Shipping and Handling 1 5 250.00 $ 250.00 Total For Professional Services5 2,058,00 PRODUCT SUBTOTAL $ 27,425.00 SERVICE SUPPORT $ 4,058.00 TAXES n.8.25% $ 2,262.56 ***Includes a Tradefn Value towards existing Racal Recording boards TOTAL INVESTMENT Including InstaUation-Training-TAX and 24/7 Service support $ 33,745.56 SPECIAL NOTES&COMMENTS Delivery Is 3 to 4 weeks from receipt of purchase order Name:(Please Print) If you have any questions regarding this quote please call Chris Williams©800-544-5050 eat 179 Signature: Dale: ITerms&Conditions 1 installation lime frame to be finalized upon receipt of the purchase order&delivery date 2 Annual Service support 24/7 covers Hardware and telephone support as well as onsite technical assistance 3 Price quotations are valid for 30 days 4 Physical location must be set to the specifications of the site survey guide 5 Customers must supply the proper audio and data inputs to the systems physical location 8 Customer is responsible for supplying the necessary LAN and telephony switch components to interface with the Audiolog System 7 Customer is responsible for maintenance of all cable 8 wiring associated with this equipment 8 System must be Installed&certified by Audioiog Systems designate 9 Customer is responsible for Installing AnlVeus software on the Logger with direction from Capture Technologies 10 Terms 50%Down-Balance Not 30 From:510 5001448 Page:2/3 Date:4/18/2006 8:29:08 AM State of California • Department of General Services • Gray Day s,Governor PROCUREMENT DIVISION 707 Third Street,2nd Floor.West Sacramento,California 68605•`811•(91e)375- 4400 February 28,2003 AlAR - 7 27Q3 Mr.Kevin P. Grant Capture Technologies,Inc. 3575 Alameda Avenue Oakland, CA 94601 Subject: Capture Technologies,inc.'s California Multiple Award Schedule((MAS) CIMS#3.03-70-17985 - Contract Term: February 28.2003 through January 31,2009 GSA#GS-35F-0146N - Recording Equip-Digital Logging Recording Equip-Audio Recording Equip-Communications Recording Equip-Digital Audio Recording Equip-Radio Recording Equip-Telephone The state is pleased to accept your offer to establish a California Multiple Award:chedule(CMAS), which we have assigned the above CMAS contract number. This number must bo shown on each invoice rendered. Agencies may procure their products and/or services from your CMAS during the term of this agreement. This acceptance letter,the attached CMAS contract Including orderir g instructions as well as terms and conditions,and your award schedule catalog(s)or listing(s)shall be considered part of the agreement. It is the responsibility of your firm to furnish,upon request,copies of this CMAS prtckage to state and local agencies. A complete CMAS contract includes copies of the following; 1) CMAS cover sheets(signature page,ordering instructions as prepared by the^:MAS Unit,Std.204 Payee Data Record), 2) CMAS contract terms and conditions, 3) Federal terms and conditions,and 4) product/service listing and prices. The CMAS Unit strongly recommends to al,government aciencies that they place orders with suppliers who provide ALL of the contract elements described above. Contractors are required to submit a detailed report on a quarterly basis(refer to.;MAS Terms and Conditions,General Provision, Paragraph 59)to the DGS Procurement Division,CMAS Unit,707 Third Street,2nd Floor,West Sacramento,CA 95805-2811,Attention:Quarterly Report Processing. A separate report is required for each contract,as differentiated by alpha suffix and shall include the activity of the contractor's respective authorized CMAS resellers wher applicable. This report is required within two weeks of the end of March,June,September,and December of each calendar year, A report Is required even when there Is no activity. THE FiRST QUARTERLY REPORT DUE FOR THiS CONTRACT iS Q1-2003(JANUARY-MARCH), DUE BY APRIL 15,2003. This fax was received by GFI FAXmaker fax server For more information,visit:http://www gfi corn From:510 500 1448 Page:313 Date:4/18/2006 8:29:08 AM Mr.Kevin P.Grant -2- Feb uary 28,2003 If your firm has an electronic Bulletin Board System(BBS)available to state departments for online inquiry of current catalog or listing updates,or your catalog(s)or Iisting(s)are ava.lable on CO ROM, please inform our agencies of how they may avail themselves of these options. This letter shall not be construed as a commitment to purchase any or all of our r':quirements from your firm. We remind you that approval is required from the state for all news releases regarding this CMAS contract. Also,it is not acceptable to Include any products or services on CMAS which are not approved for your Federal GSA award schedule. The state will procure new information technology equipment. All equipment must be new and the latest model in current production. Used,shopworn,demonstrator,prototype,or liscontinued models are not acceptable. You may contact me at 918/375.4384 if you have any questions. Thank you for y)ur continued cooperation eJVW � � TERRI LOPEZ, Progra Anal California Multiple Award S.--dules Unit -„/ Attachments This fax was received by GFI FAXmaker fax server For more information,visit:http://www gfi corn