Loading...
HomeMy WebLinkAboutReso 55-2003 RESOLUTION NO. 55-2003 CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION APPROVING A PERMIT BETWEEN BART, SAM TRANS AND THE CITY FOR OPERATING AND MAINTAINING MC LELLAN DRIVE WHEREAS, staff desires Council approval of a permit between BART, SamTrans and the City for operating and maintaining McLellan Drive. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San Francisco that the City Council hereby approves a permit between BART, Sam Trans and the City for operating and maintaining McLellan Drive. BE IT FURTHER RESOLVED that the City Manager is hereby authorizes to execute the agreement on behalf of the City of South San Francisco. I hereby certify that the foregoing Resolution was regularly introduced and adopted by the City Council of the City of South San Francisco at a regular meeting held on the 25th day of June 2003 by the following vote: AYES: Councilmembers Joseph A. Femekes, Richard A. Garbarino and Raymond L. Green, Mayor Pro Tem Karyl Matsumoto and Mayor Pedro Gonzalez NOES: None. ABSTAIN: None. ABSENT: None. ATTEST: / City Clerk CITY OF SOUTH SAN FRANCISCO 400 Grand Avenue South San Francisco, CA 94080-3634 PERMIT NO. W-18.6-001-SSF ROADWAY PERMIT Subject to the following covenants, terms, conditions and restrictions, the San Francisco Bay Area Rapid Transit District (hereinafter "District", or "BART") and the San Mateo County Transit District (hereinafter "SamTrans") hereby grant to the City of South San Francisco (hereinafter "Permittee") (collectively, the "Parties") permission to use property owned in fee by SamTrans and over which District has an exclusive operating easement (Parcels D-3370-1, D-3101-1, D-3151-1, and D-3372-1 ) and property over which SamTrans has a perpetual highway easement (Parcel D-3370X-2G), located on the area commonly known as McLellan Drive (D-3370X-2G and D-3372X-2A) between El Camino Real and Mission Road, in the City of South San Francisco, County of San Mateo, (hereinafter "Premises"), as shown on Exhibit "A", attached hereto and incorporated herein by reference, for purposes of constructing upon, owning, operating and maintaining a roadway, and all ancillary facilities associated therewith (hereinafter the "Permitted Use"). For purposes of this Roadway Permit, ancillary facilities shall include any and all improvements that are required for operation of the roadway. The operation, maintenance and use of the roadway subject to this Permit is necessary to the operation of the BART transit facility located in the City of South San Francisco. The parties desire to convey the roadway right of way to the City of South San Francisco within the next two (2) years. Until such time, this Permit is intended to grant to Permittee the right to use, operate and maintain the roadway in accordance with existing laws and regulations governing same. The Parties understand that this Permit does not create an obligation on behalf of the Permittee to accept the roadway or on behalf of either BART or SamTrans to convey the roadway, but grants to Permittee only a right to use, operate, construct upon and maintain the roadway during the term of this Permit. In the event that the roadway is constructed upon and Permittee does not accept conveyance of the roadway, the roadway shall be restored by Permittee in accordance with Section 17, below. The Parties also understand that Permittee may desire to construct certain improvements within the premises. In that event, Permittee agrees to obtain the written approval of District prior to commencement of any such construction. 1. Subject to Section 16 below, the term of this Permit shall commence on June 16, 2003, and end on November 30, 2005, provided, however, that at any time during the term, the Permit may be terminated by either BART or Permittee upon thirty (30) days Page 1 of 5 41062.l prior written notice to the other parties. The notice shall be sent certified mail, return receipt requested, to either: Permittee at the above address, Attention: City Manager, Project Manager; or to: BART at: Real Estate Services San Francisco Bay Area Rapid Transit District 1330 Broadway, Suite 1800 Oakland, California 94612-2517 Attention: Desha R. Hill, Department Manager With copy to SamTrans at: 1250 San Carlos Avenue San Carlos, CA 94070 Attention: Real Estate Department Manager The notice period shall begin to run upon receipt of the notice. 2. Because this Permit is for the public use of the Premises, all fees are hereby waived. 3. Permittee's right to use this area shall be non-exclusive and non-transferable, and shall be for the sole purpose of the Permitted Use. In no event shall District's or SamTrans' property be deemed to be a public right-of-way until such tirre as it is formally conveyed to Permittee. District and SamTrans shall work diligently to complete the acts required to transfer the property to the City for operation of apL blic road under conditions acceptable to the Parties. 4.a Permitted Use within the areas shown on said "Exhibit A" as D-3101-1 and D- 3151-1 shall be above a plane at elevation plus 68.00 feet (20.726 meters) NGVD 1929. The elevation of the current [2003] roadway surface is approxim~_tely p_lus 78.0 feet (23.77 meters) NGVD 1929. (Monument Records are appended hereto for reference purposes regarding these elevations.) 4.b Permittee shall receive written approval from the District prior to performing any type of excavation work on the Premises. 4.c If Permittee terminates this Permit or the Permit is terminated for cause, per Permittee shall, at its sole expense, restore to its former condition any portion of the Premises or any BART facility which has been disturbed by Permitte, e ir ,acco,r.,dance with Section 16 of the attached General Terms and Conditions Relating.to Utidty Permits, except as otherwise provided in the Permit. 4.d Permittee agrees to provide police jurisdiction and traffic enforcement on Premises during the term of the Permit. ' 4.e Except as prohibited by Government Code Sections 810, et seq, 'to the extent caused by the use, maintenance, construction upon or operation of the 'oadway, the cost of repair and all losses caused by damage to any existing facility, of any type shall be at the sole expense of the Permittee. Any damage to BART facihties shall be Page 2 of 5 41062.l repaired by BART forces at Permittee's sole cost and expense. 5. Permittee shall have the duty and agrees to exercise reasonable care to properly maintain District's and SamTrans' property pursuant to this Permit, including, but not limited to, removing debris dumped or placed on the Premises during the term of this Permit, from any source, and to exercise reasonable care inspecting for and preventing any damage to any portion of District's or SamTrans' property. , 6. Permittee acknowledges that said Permitted Use constitutes an encroachment upon District's and SamTrans' property and agrees to the provisions of :his Permit, applicable provisions of the "General Terms and Conditions Relating to Utility Permits," attached hereto and incorporated herein by reference, and applicable state laws and local ordinances. Where there is a conflictbetween the prowsions of th s Permit and the "General Terms and Conditions Relating to Utility Permits," this Permit shall prevail. 7. Permittee agrees to notify. District's Construction Liaison, Edwin Kung at (510) 464-6445, at least 14 calendar ~lays prior to any use of the Premises. Perm~ttee shall not perform any work on District or SamTrans property until all necessa 'y permits, licenses and environmental clearances have been obtained, i 8. Permittee shall not use, create, store, allow, release or dispose of any hazardous materials and/or waste on the Premises. Hazardous materials or waste are materials, substances wastes, chemicals, or pollutants which pose a present or potential hazard to health, welfare or the environment or are listed, regulated or subject to permitting or warning requirements as hazardous by any federal, state or local governmental authority, including but not limited to those substances and wastes defir ed as hazardous pursuant to the Comprehensive Environmental Response, C~mpensation and Liability Act of 1980 (42 U.S.C. section 9601 et seq.) or the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.) or listed in the Hazardous Substances List, Title 8, California Code of Regulations, G.LS.O. Section 337-339, as m~ y be amended from time to time, or those which meet the toxicity, reactivity, corrosivity or flammability criteria of the above Code. 9. District and SamTrans shall at all times have the right to go upon and inspect the Premises and the operations conducted thereon to assure compliance with any of the requirements in this Permit. This inspection may include, but is not limited to, taking samples of substances and materials present for testing. 10. It is the intent of the parties hereto that the Permittee shall be responsible for and bear the entire cost of removal and disposal for hazardous materials or waste introduced by Permittee to the Premises during Permittee s period of us ~ and possession of the Premises. Permittee shall also be responsible for any cleanup and decontamination on or off the Premises necessitated by such materials'or waste. 11. To the extent that any pre-existing environmental condit'on is caused, contributed to or exace,rbated by Permittee's acts or omissions, Pe'mittee shall, at District's and SamTrans discretion, either (i) perform remediation of such pre-existing condition at Permittee's sole cost and expense, to the extent re_quired by and subject to the approval of a governmental agency with jurisdiction; or (ii) indemnify District and SamTrans against all costs incurred by District or SamTrans in performing remediation of such pre-existing environmental condition. 12. Permittee shall further indemnify and hold District, SamTrans and their respective directors, officers, employees, agents or representatives harmless from all responsibility, liability and/or claim for damages resulting from the introd action or use of Page 3 of 5 41062.l hazardous materials or waste on the Premises during Permittee's use o" possession of the Premises, or from actions by Permittee, its employees or agents that result in hazardous materials or waste being released into the environment or a ~re-existing environmental condition being exacerbated. 13. Permittee agrees to assume responsibility and liability for all dan'ages, loss or injury of any kind or nature whatever to persons or property, caused by or resulting from or in connection with this Permit, or which may arise out of failure of Permittee's performance of its obligations hereunder. 14. Permittee shall defend, indemnify and hold harmless District, SarrTrans and their respective directors, officers, agents and employees, from all claims, demands, suits, loss, damages, injury and liability, direct or indirect (including any and all costs and expenses in connection therewith), incurred by reason of or ~n connection with this Permit, or any act, or failure to act, of Permittee, its officers, agents, em ~loyees and contractors or any of them, under or in connection with this Permit. Per~ittee agrees at its own cost, expense and risk to defend any and all claims, actions, suks, or otl'ier legal proceedings brought or instituted against District, its directors, officers, agents and employees arising out of this Permil, and to pay and satisfy any resulting judgments. 15. Permittee agrees that no easement, lease or other property right is acquired by Permittee through this Permit. 16. Upon any use of District property by Permittee other than that au:horized by this Permit, or upon failure of the Permittee to conform to any of the terms a~d conditions of this Permit, the District may terminate this Permit immediately. 17. Within 30 days of the expiration or earlier termination of a Permit, Permittee shall, at its sole expense, restore to its former condition all District or SamTrans property which has been disturbed by the Permittee, except as provide¢ otherwise in the Permit. Restoration shall include, but not be limited to, removal of new improvements, equipment, materials, debris and the like, and repair of any damage. If Permittee fails to restore District or SamTrans property as required herein, the District or SamTrans may perform such restoration at Permittee's sole expense. 18. Permittee agrees to reimburse the District and/or SamTrans pror~ptly for any damage done to District or SamTrans property in connection with this Permit, or with the restoration of the property. 19. Insurance shall be provided by Permittee as stated in Exhibit B a:tached hereto and incorporated herein by reference. The City is self-insured. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT By Date Desha R. Hill Department Manager, Real Estate Services SAN MATEO COUNTY TRANSIT DISTRICT By Page 4 of 5 Date 41062.1 Title ACCEPTED CITY OF SOUTH SAN FRANCISCO By Name Title C:\W-18.6-001 -SSF-V2.doc Date Page 5 of 5 41062.1 EXHIBIT "A" (copy of map or plans to be inserted here) Page 6 of 5 41062.1 ~T "B" INSURANCE At all times during the life of this Permit, or as may further be required by this Permit, Permittee at its own cost and expense, shall provide the insurance specified as follows: 1. Evidence Re(~uired At or before execution of this Permit, Permittee shall provide District and SamTrans with a certificate of insurance executed by an authorized representative of the insurer(s) evidencing that Permittee's insurance complies with this Article, including a copy of all required endorsements. A permit number (assigned by the District) shall be included in the space provided on the standard Certificate of Insurance form provided. 2. Notice of Cancellation, Reduction or Material Chanqe in Coveraqe. Policies shall be endorsed to provide thirty (30) days prior written notice of any cancellation, reduction or material change in coverage. Notices, including evidence of insurance, shall be forwarded to: San Francisco Bay Area Rapid Transit District Attention: Manager of Insurance P. O. Box 12688 Oakland, California 94604-2688 3. Qualifvin~l Insurers All policies shall be issued by California admitted companies which hold a current policy holders alphabetic and financial size category rating of not less than A:VIII according to Best's Insurance Reports. Insurance Re(~uired Commercial General Liability Insurance for bodily injury (including death) and property damage which provides limits of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate as applicable. Coverage included shall include: a) b) c) d) e) f) g) Premises and Operations; Products/Completed Operations; Broad Form Property Damage; Contractual liability; Personal Injury liability; and Cross-Liability and Severability of Interests. Explosion, Collapse and Underground (XCU) Such insurance shall include the following endorsements, copies of which shall be provided to BART: a) Inclusion of BART, SamTrans, their directors, officers, representatives, agents and employees as additional insured as respects to Permittee's operations in connection with this Permit; Page 7 of 5 41062.1 Co b) Stipulation that the insurance is primary insurance and that no insurance or self-insurance of BART or SamTrans will be called upon to contribute to a loss. Automobile Liability for bodily injury (including death) and property damage which provides a coverage limit of at least One Million Dollars ($1,000,000) combined single limit per occurrence applicable for all owned, non-owned and hired vehicles. Statutory Workers' Compensation and Employer's Liability Insurance for not less than One Million Dollars ($1,000,000) per accident applicable to Employer's Liability coverage for all employees engaged in services or operations under this Permit. The policy shall include broad form all-states/other states coverage. Special Provisions The foregoing requirements as to the types and limits of insurance coverage to be maintained by Permittee and any approval of said insurance by District or SamTrans is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Permittee pursuant to this Permit, including but not limited to the provisions concerning indemnification. Should any of the work be contracted, Permittee shall require each of its contractors of any tier to provide the aforementioned insurance. REV'D 3/7/03 Page 8 of 5 41062. l