HomeMy WebLinkAboutMINUTES - 01132009 - C.02 SE L,
TO: BOARD OF SUPERVISORS Contra`?
FROM: JULIA R. BUEREN, PUBLIC WORKS DIRECTOR
Costa
DATE: January 13, 2009 °sr` - `�� County
'4 COUTl'�
SUBJECT: Right of Entry Agreement between Union Pacific Railroad Company and Contra Costa County, Clyde
Area (District IV) [CP#02-101]
SPECIFIC REQUFST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDED ACTION:
APPROVE and AUTHORIZE the Public Works Director, or designee, to execute the Right of Entry Agreement
between Union Pacific Railroad Company (UPRR) and Contra Costa County effective January 13, 2009 through
January 31, 2009 for the use of UPRR property for soil tests, Clyde Area. (District IV)
FISCAL IMPACT:
No Financial Impact to the General Fund.
CON UED ON ATTACHMENT: El SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMEND ITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON Q&yy APPROVED AS RECOMMENDE OTHER
VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT
COPY OF AN ACTION TAKEN AND ENTERED ON
UNANIMOUS(ABSENT MINUTES OF THE BOARD OF SUPERVISORS ON THE
AYES: NOES: DATE SHOWN.
ABSENT: ABSTAIN:
AH:clerical
G:lTransEng12009\60-TE\BO_UPRR_ROE.docx ATTESTED / 6
D D TWA,CLERK E BOARD OF
SSUUPfE/ ISORS
Orig.Div:Public Works(TE Division)
Contact: (313-2305 )
cc: M.Carlson,TE
C.Lau,TE BY: DEPUTY
S.Kowalewski,TE T�
C.Peccianti,Real Property
C.Raynolds,PWAccounting
..J, '
SUBJECT: Right of Entry Agreement between Union Pacific Railroad Company and Contra Costa County,
Clyde Area (District IV) [CP#02-101]
DATE: January 13, 2009
PAGE: 2 of 2
REASONS FOR RECOMMENDATIONS AND BACKGROUND:
The Right of Entry Agreement will allow the County's consultant to complete soil testing on UPRR property
located in the Clyde area. The property is a linear parcel parallel to Port Chicago Highway bounded by Warwick
Street and Sussex Street. The additional testing will determine the extent and limits of hazardous materials
previously identified in the Phase I and Phase II Environmental Site Assessment which were conducted as part of
the County's inquiry to acquire the property for future use as a pedestrian trail. The results of the supplemental
testing that will be authorized under the Right of Entry Agreement will assist the County in determining the
appropriate course of action to address contaminants on the property should the County choose to construct the
Clyde Pedestrian Trail.
CONSEQUENCES OF NEGATIVE ACTION:
County will not be granted access to property and no additional soil sampling will be conducted.
t�YI 13102z d
CONTRACTORS ROE 980204 Folder No.:
Form Approved,AVP-Law
RIGHT OF ENTRY AGREEMENT
THIS AGREEMENT is made and entered into as of the_day of December, 2008 by and
between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation(hereinafter referred to
as the "Railroad'); and CONTRA COSTA COUNTY, a political subdivision of the State of California
(hereinafter referred to as the"Licensee"),
RECITALS:
Licensee, in connection with discussions with Railroad about the possible purchase by Licensee
of Railroad's property located in the Town of Clyde, County of Contra Costa, State of California,wishes
to have access to' the property for the purpose of environmental audits, soil tests, engineering and
feasibility studies. The property is depicted on Exhibit B attached hereto and hereby made a part hereof.
Any proposal by Licensee to purchase the property is being considered as a separate matter and
nothing contained in the Right of Entry Agreement shall in any way be construed as a commitment on
Railroad's part that said proposal shall be accepted and approved.
AGREEMENT:
NOW,THEREFORE, it is mutually agreed by and between the Railroad and Licensee, as
follows:
ARTICLE 1 -DEFINITION.OF LICENSEE
For purposes of this agreement,all references in this agreement to the Licensee shall include
the Licensee's contractors,subcontractors, officers, agents and employees,and others acting under its
or their authority.
ARTICLE.2-RIGHT GRANTED; PURPOSE
The Railroad hereby grants to the Licensee the right, during the term hereinafter stated and
upon and subject to each and all of the terms, provisions and conditions herein contained, to enter
upon and have ingress to and egress from the property described in the Recitals for the purpose of
performing any work described in the Recitals above.
ARTICLE 3-TERMS AND CONDITIONS CONTAINED IN EXHIBITS A and A-1
The terns and conditions contained in Exhibit A and Exhibit A-1, attached hereto,are hereby
made a part of this agreement.
CONTRACTORS RDE 980204 PolderNo.:
Fomt Approved,AVP-Law
ARTICLE 4-ALL EXPENSES TO BE BORNE BY LICENSEE
The Licensee shall bear any and all costs and expenses associated with any work performed
by the Licensee,or any costs or expenses incurred by the Railroad relating to this agreement.
ARTICLE 5-TERM, TERMINATION
The grant of right herein made to Licensee shall commence on the date of this agreement,
and continue until January 31, 2009, or at such time.as Licensee has completed its work on
Railroad's property, whichever is earlier. Licensee agrees to notify the Railroad Representative in
writing when it has completed its work on Railroad property.
ARTICLE 6- CERTIFICATE OF INSURANCE
a) Before commencing any work,Licensee will provide Railroad with a Certificate issued by its
insurance carrier providing the insurance coverage required pursuant to Exhibit A-1 of this
agreement in a policy which contains the following type of endorsement:
Union Pacific Railroad Company is named as additional insured with respect to all liabilities
arising out of Insureds,as Licensee,performance of any work on the property of the Railroad.
b) Licensee warrants that this agreement has been thoroughly reviewed by its insurance
agent(s)/broker(s) and that said agent(s)/broker(s) has been instructed to procure insurance coverage
and an endorsement as required herein.
c) All insurance correspondence shall be directed to the Railroad Representative.
d) Notwithstanding the foregoing, Railroad Protective Liability Insurance shall not be
required hereunder, and Licensee may satisfy the remaining insurance requirements
set forth -in Exhibit A-1 through a certificate of self-insurance in a form acceptable to
Railroad.
ARTICLE 7-CHOICE OF LAW AND FORUM
This agreement shall be governed,construed and enforced in accordance with the laws of the state of
California. Litigation arising out of or connected with this agreement may be instituted and maintained in
the Superior Court of the State of California only, and the parties consent to jurisdiction over their person
and over the subject matter of any such litigation, in those courts, and consent to service of process issued
by such courts.
ARTICLE 8-CONFIDENTIALITY
Licensor acknowledges having been informed that Licensee must conduct itself in accordance with
all local,state,and federal laws, including the California Public Records Act.
Licensee will not disclose Confidential Information to any person without Licensor's specific written
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CONTRACTOR'S ROE 980204 FolderNo.:
Form Approved,AVP-Lew
authorization, except that Licensee may disclose Confidential Information on a need-to-know basis to
Representatives of Licensee without Licensor's specific written authorization. Notwithstanding anything
contained herein to the contrary,Licensee is a political subdivision of the State of California and is,
therefore,subject to the California Public Records Act(California Government Code Sections 6250 et seq.,
the"Act'). Any Confidential Information that Licensee may be obligated to disclose under California law
may be released and disclosed by Licensee pursuant to the Act, and any such release or disclosure shall not
in any way constitute a breach of this agreement,nor shall Licensee be liable to Licensor for such release or
disclosure. In the event Licensee receives a request for disclosure of Confidential Information,Licensee
shall provide licensor with written notice of such request(the"Notice of Request for Disclosure'). In the
event Licensor has a reasonable basis for contending that the disclosure of such Confidential Information is
not required by the Act,Licensor shall,within ten(10)days of the date of the Notice of Request for
Disclosure,notify Licensee in writing of its objection to disclosure and the basis therefore. In the event
Licensee determines that the information requested is not exempt from disclosure and intends to release the
requested information in compliance with the Act,then it shall provide written notice of such intent to
Licensor("Notice of Disclosure"), and Licensor shall then have fourteen(14)days from the date of the
Notice of Disclosure to seek relief from disclosure required under the Act in Superior Court of California,
County of Contra Costa. If Licensee receives no written objection from Licensor within fourteen(14)days
of the date of the Notice of Disclosure,Licensee may disclose the Confidential Information referenced in
the Notice of Disclosure.
Licensee agrees to provide written notice to the Railroad of any contacts or communications to any
governmental agency, department,, district or board, other than the Contra Costa County Public Works
Department,in connection with the activities authorized by this agreement.
ARTICLE 9—NOTICE
Licensee shall notify Railroad's representative at least 48 holm before any intrusive soil borings or
sampling is done on the property; Railroad may,at its option, have its environmental engineer present and
Licensee agrees that said engineer may obtain split samples. Upon completion of any work, all holes will be
filled to the surrounding ground level with clean,compacted earthen material.
IN WITNESS WHEREOF,the parties hereto have executed this agreement in duplicate as of the date fust
herein written.
Licensee: Licensor:
CONTRA COSTA COUNTY UNION PACIFIC RAILROAD COMPANY
By: l t
Title: Tit ���Pn;prl� ic-ct"t`c�ic4tlx+-1,e�1 �-(�PNPro��Ottn3p�
3
CONTRACTORS ROE 980204 Folder No.: -
Form Approved,AVP-Law -
EXHIBIT A TO LICENSEE'S RIGHT OF ENTRY AGREEMENT
Section 1. MECHANIC'S LIENS.
The Licensee shall pay in full all persons who perform labor or provide materials for the work to be
performed by Licensee. The Licensee shall not create,permit or suffer any mechanic's or materialmen's liens of
any kind or nature to be created or enforced against any property of the Railroad for any such work performed.
The Licensee shall indemnify and hold harmless the Railroad from and against such liens growing out of such
work done,labor performed,or materials furnished on behalf of Licensee.
Section 2. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
Fiber optic cable systems may be buried on the Railroad's property. Protection of the fiber optic cable
systems is of extreme importance since any break could disrupt service to users resulting in business
_interruption and loss of revenue and profits. Licensee shall telephone 1-800-336-9193 (a 24-hour, 7-day
number for emergency calls) during normal business hours (7 A.M. to 9 P.M., CST, Monday-Friday, except
holidays) to determine if fiber optic cable is buried anywhere on the Railroad's premises to be used by the
Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable
locator, make arrangements for relocation or other protection of the fiber optic cable, and will commence no
work on the right of way until all such protection or relocation has been accomplished.
Section 3. COMPLIANCE WITH LAWS.
In the prosecution of the work covered by this agreement, the Licensee shall secure any and all
necessary permits and shall comply with all applicable federal,state and local laws,regulations and enactments
affecting the work.The Licensee.shall use only such methods as are consistent with safety,both as concerns the
Licensee, the Licensee's agents and employees,the officers, agents,employees and property of the Railroad and
the public-in.general. The Licensee (without limiting the generality of the foregoing) shall comply with 9
applicable state and federal occupational safety and health acts and regulations. If any failure by the Licensee
• to comply with any such laws,regulations,and enactments,shall result in any fine,penalty,cost or charge being
assessed,imposed or charged against the Railroad,the Licensee shall reimburse and indemnify the Railroad for
any such fine, penalty, cost, or charge, including without limitation attorneys' fees, court costs and expenses.
The Licensee further agrees in the event of any such action,upon notice thereof being provided by the Railroad,
to defend such action free of cost,charge, or expense to the Railroad.
Section 4. INDEMNITY.
As a major inducement and in consideration of the license and permission herein granted,the Licensee
agrees to the extent allowable at law to indemnify and hold harmless the Railroad from any Loss which is due to
the work performed under this agreement, a breach of the agreement or the failure to observe the health and
safety provisions herein, or any activity, omission or negligence arising out of performance of this agreement.
Notwithstanding the foregoing, Licensee shall not be required to indemnify, defend and/or hold harmless
Licensor from any pre-existing hazardous or toxic materials or contamination upon or underneath the property
that may be discovered as a result of Licensee's testing or studies, except to the extent any pre-existing
condition is exacerbated by Licensee's sole negligence or willful misconduct.
4
CONTRACTORS ROE 980204 Folder No.:
Form Approved,AVP-LSW
Exhibit A-1
UNION PACIFIC RAILROAD
CONTRACT INSURANCE REQUIREMENTS
Third Party Licensees Right Of Entry Agreement
Licensee'Ishall, at its sole cost and expense, procure and maintain during the life of this Agreement the
following insurance coverage:
(a) General Liability insurance providing bodily injury including death, personal injury and
property damagelcoverage with a combined single limit of at least $2,000,000 each occurrence or claim and an
aggregate limit of at least $4,000,000. This insurance shall contain broad form contractual liability with a
separate general Jl aggregate for the project (ISO Fort CG 25 03 or equivalent). Exclusions for explosion,
collapse and underground hazard shall be removed. Coverage purchased on a claims made form shall provide
for at least a two (2) year extended reporting or discovery period if(a) the coverage changes from a claims
made form to an occurrence form, (b) there is a lapselcancellation of coverage, or (c) the succeeding claims
made policy retroactive date is different for the expiring policy.
(b) Automobile Llability insurance providing bodily injury and property damage coverage with a
combined single'limit of at least $2,000,000 each occurrence or claim. This insurance shall cover all motor
vehicles including hired and non-owned; and mobile equipment if excluded from coverage under the general
public liability insurance.
(c) Workers' Compensation insurance covering Licensee's statutory liability under the workers'
compensation laws of the state(s) affected by this Agreement, and Employers' Liability. If such insurance will
11
not cover the liability of Licensee in states that require participation in state workers' compensation fund,
11
Licensee shall comply with the laws of such states. If Licensee is self-insured, evidence of state approval must
be provided.
(d) Railroad Protective Liability insurance naming the Railroad as the insured with a combined
single limit of $2,000,000 per occurrence with a $6,000,000 aggregate. The policy shall be broad foam
coverage for "Physical Damage to Property" (ISO Form CG 00 35 or equivalent) and include pollution arising
out of fuels and lubricants brought to the job.site(ISO Form CG 28 31 or equivalent). A binder of insurance for
Railroad Protective Liability must be submitted to the Railroad and the original policy or a certified duplicate
origz,nal policy must be forwarded to the Railroad when available.
Licensee and its insurers shall endorse the required insurance policy(ies) to waive their right of
subro ation against Railroad. Licensee and its insurers also waive their right of subrogation against Railroad
for loss of its owned or leased property or property under its care, custody and control. Licensee's insurance
shall be primary with respect to any insurance carried by Railroad. The policy(ies) required under (a) and (b)
above shall provide severability of interests and shall name Railroad as an additional insured.
Prior to commencing the Work, Licensee shall furnish to Railroad certificate(s) of insurance evidencing
the required coverage and endorsements and upon request, a certified duplicate original of any required policy.
The certificate(s) shall contain a provision that obligates the insurance eompany(ies)issuing such policy(ies) to
notify Railroad in writing of any material alteration including any change in the retroactive date in any"claims-
made" policies orlisubstantial reduction of aggregate limits, if such limits apply, or any cancellation at least
thirty(30)days prior thereto.
1
i
CONTRACTORS ROE 950204 Folder No.:
Form Approved;"AW-aw
Section 5. WAVER OF BREACH.
Waiver by the Railroad of the breach of any condition, covenant or agreement herein contained to be
kept, observed and performed by the Licensee shall in no way impair the right of the Railroad to avail itself of
any remedy for allIT subsequent breach thereof
Section 6. ASSIGNMENT-SUBCONTRACTING.
The Licensee shall not assign, sublet or subcontract this agreement, or any interest therein, without the
written consent of the Railroad and any attempt to so assign, sublet or subcontract without the written consent
of.the Railroad shall be void. If the Railroad gives the Licensee permission to subcontract all or any portion of
the work herein;described, the Licensee is and shall remain responsible for all work of subLicensees and all
work of subLicensees shall be governed by the terms of this agreement.
{
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CONTRACTOR'S ROE 960200. Folder No.:
Form Approved.AVP-law
The insurance policy(ies) shall be written by a reputable insurance company(ies) acceptable to Railroad
or with a current Best's Insurance Guide Rating of B and Class VII or better, and authorized to do business in
the state(s)in which the Job Site is located.
Licensee WARRANTS that this Agreement has been thoroughly reviewed by Licensee's insurance
agent(s)/broker(s), who have been instructed by Licensee to procure.the insurance coverage required by this
Agreement.
If Licensee fails to procure and maintain insurance as required,Railroad may elect to do so at the cost of
Licensee.
The fact that insurance is obtained by Licensee shall not be deemed to release or diminish the liability of
Licensee, including,without limitation, liability under the indemnity provisions of this Agreement. Damages
recoverable by Railroad shall not be limited by the amount of the required insurance.coverage.
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Union Pacific Railroad Company
CERTIFICATE OF ASSISTANT SECRETARY
(,(�• SflYl a/1 S Assistant Secretary of UNION PACIFIC RAILROAD
COMPANY,a Delaware corporation(the"Company"),do hereby certify that the possible sale by the
Company of certain property situated in Contra Costa County,State of California,described in that
certain Right of Entry Agreement from the Company to Contra Costa County, has been duly
authorized in accordance with the By-Laws of the Company as amended on July 1, 2005 and the
"Management Policy Statement Covering Capital Expenditures, Lease Commitments and
Dispositions of Property"as amended by the Board of Directors of the Company on November 16,
2007, and that by general and specific delegations of authority pursuant thereto,Tony K.Love, as
Assistant Vice President-Real Estate of the Company,J.Michael Hemmer,as Senior Vice President-
Law and General Counsel of the Company,and Lawrence E. Wzorek,as Assistant Vice President-
Law of the Company,or any of them,have been delegated the requisite authority on behalf of the
Company to approve, execute and deliver any and all documents related to Real Estate contractual
commitments.
IN WITNESS WHEREOF, I have hereunto subscribedy name and affixed the seal of
UNION PACIFIC RAILROAD COMPANY thi�,C/day of > 2008.
Assis ant cretary
(SEAL)
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