Loading...
HomeMy WebLinkAboutReso 103-2018 (18-562)City of South San Francisco P.O. Box 711 (City Hall, 400 Grand Avenue) South San Francisco, CA • City Council ' Resolution: RES 103 -2018 File Number: 18 -562 Enactment Number: RES 103 -2018 RESOLUTION APPROVING BART /SOUTH SAN FRANCISCO UTILITIES AGREEMENT WITH THE SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT FOR THE REMOVAL, CONSTRUCTION, RECONSTRUCTION, PROTECTION IN PLACE, EXTENSION OF RELOCATION OF SOUTH SAN FRANCISCO OWNED UTILITIES AND CITY INFRASTRUCTURE IN CONNECTION WITH THE BAY AREA RAPID TRANSIT SFO AIRPORT EXTENSION. WHEREAS, staff recommends approval of the Bay Area Rapid Transit (BART) /South San Francisco Utilities Agreement with the BART District for the removal, construction, reconstruction, protection in place, extension of relocation of South San Francisco owned utilities and City infrastructure in connection with the BART SFO Airport Extension; and WHEREAS, the BART /South San Francisco Utilities Agreement sets forth the roles and responsibilities, as well as the general conditions between the City of South San Francisco and BART; and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that the City Council hereby approves the BART /South San Francisco Utilities Agreement between the City of South San Francisco and the BART. BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the BART /South San Francisco Utilities Agreement on behalf of the City Council of South San Francisco, subject to approval as to form by the City Attorney. At a meeting of the City Council on 6/27/2018, a motion was made by Mark Addiego, seconded by Pradeep Gupta, that this Resolution be approved. The motion passed. Yes: 4 Mayor Normandy, Mayor Pro Tem Matsumoto, Councilmember Gupta, and Councilmember Addiego Absent: 1 Attest City of South San Francisco Page 1 66633v1 AGREEMENT BETWEEN THE SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT AND THE CITY OF SOUTH SAN FRANCISCO FOR THE REMOVAL, CONSTRUCTION, RECONSTRUCTION, PROTECTION IN PLACE, EXTENSION OR RELOCATION OF SOUTH SAN FRANCISCO-OWNED UTILITIES AND CITY INFRASTRUCTURE IN CONNECTION WITH THE BART SFO AIRPORT EXTENSION This Agreement for the Removal, Construction, Reconstruction, Protection in Place, Extension and/or Relocation of South San Francisco-Owned Utilities and City Infrastructure in Connection with the BART SFO Airport Extension (the “Agreement”) is made and entered into this ____ day of June, 2018 (the “Effective Date”) between the San Francisco Bay Area Rapid Transit District (“BART”), a public transit district, and the City of South San Francisco (the “City”), a general law city of the State of California (collectively, the “Parties”). AGREEMENT NOW, THEREFORE, BART and the City, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, agree as follows: 1. BART or its contractors have removed, constructed, reconstructed, extended, and/or relocated the South San Francisco Utilities shown on Attachment “A” to the February 7, 1997 BART SFO Extension letter and referenced in the March 13, 1998 BART SFO Extension – Utilities Letter of Intent (the “Utilities Letters of Intent”), copies of which are attached hereto as Exhibit “A” and “B,” respectively, and incorporated herein. BART also performed work on additional City-owned utilities and City Infrastructure in completing the SFO Extension. 2. This Agreement is intended to apply to the City-owned utilities and City Infrastructure, as shown in their final configuration on the Record Drawings forwarded to the City by letters dated February 17, 2004 (Line, Track and Station 66633v1 Contract) and June 27, 2005 (South San Francisco Station Contract), copies of which are attached as Exhibits “C” and “D,” respectively. 3. Upon execution of this Agreement, the City agrees that it will be responsible for all maintenance, repair and/or other responsibility and liability associated with all of the City-owned utilities and City Infrastructure identified on Exhibits A, B, C and D. 4. BART and the City agree that the terms of the Comprehensive Agreement Between The San Francisco Bay Area Rapid Transit District and The City of South San Francisco Relating to the BART/SFO Airport Extension, dated November 4, 1998 (the “Comprehensive Agreement”) shall be and by this reference are incorporated into this Agreement. 5. BART accepted the work that is the subject of this Agreement in 2003. As a result, the warranty period for all such work has concluded. 6. BART shall be responsible for granting, or causing to be granted, an easement or other appropriate property right to the City equivalent to the property right held by City as of November 4, 1998, the Effective Date of the Comprehensive Agreement, allowing access to the constructed and/or relocated City-owned utilities and City Infrastructure for the purpose of operating, maintaining and repairing said utilities and infrastructure. 7. In the event that access over, under, or across BART’s right-of-way is required to perform the operation, maintenance or repair contemplated in this Agreement, City shall contact BART’s Real Estate and Property Development Department, prior to entering the BART right-of-way to coordinate access to said right-of-way and agree on the scope of work to be performed. (See, sample Permit to Enter attached hereto as Exhibit “E”). 8. In the event of an emergency involving the City-owned utilities or City Infrastructure, City shall, prior to entering the BART right-of-way, contact BART Operations Control Center, on duty Central Manager at (510) 834-1297 to advise of same and to coordinate access to said BART property. After said emergency maintenance or repair has been completed or the emergency has been stabilized, 66633v1 City agrees to immediately restore the surface grade of any BART property affected by the emergency to a safe, operable condition. 9. BART shall have the right of prior approval as to the manner in which all work is done over, under, or across the BART right-of-way. It is understood by City that any access over, under, or across the BART right-of-way is subject to the presence of a BART representative at all times at no cost to City in the case of routine maintenance or an emergency situation where urgency and timely action are required to protect life and/or property. This Agreement is made and entered into as of the Effective Date set forth above. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT By:_________________________ Grace Crunican General Manager APPROVED AS TO FORM: Office of the General Counsel By: BART Attorney THE CITY OF SOUTH SAN FRANCISCO By:_________________________ Mike Futrell City Manager APPROVED AS TO FORM: By:_______________________ South San Francisco Attorney EXHIBIT A February 7, 1997 BART SFO Extension Letter EXHIBIT B March 13, 1998 BART SFO Extension – Utilities Letter of Intent EXHIBIT C February 17, 2004 Letter (Line, Track and Systems) EXHIBIT D June 27, 2005 Letter (South San Francisco Station Contract) EXHIBIT E Sample Permit to Enter Page 1 of 6 PERMIT NO. PERMIT TO ENTER (WORK) Subject to the following covenants, terms, conditions and restrictions, the San Francisco Bay Area Rapid Transit District (hereinafter “District” or "BART") hereby grants permission to _______________________ (hereinafter "Permittee") (collectively, the “Parties”) to (hereinafter the "Work") upon BART property located between and and in the City of _______, County of______________, (hereinafter "Premises"), as shown on Exhibit "A,” ( ) attached hereto and incorporated herein by this reference. 1. Subject to Section 17 below, the term of this Permit shall commence on, ____________20___, and end on, ____________ 20___, provided, however, that at any time during the term, the Permit may be terminated by either party upon thirty (30) days prior written notice to the other party. Said notice shall be sent certified mail, return receipt requested, to: Attn: or Real Estate and Property Development Department San Francisco Bay Area Rapid Transit District 300 Lakeside Drive, 22nd Floor Oakland, California 94612 Attention: Sean Brooks, Manager The notice period shall begin to run upon receipt of said notice. 2. The fee for this Permit shall be calculated pursuant to the attached Fee Schedule in effect when staff time is expended, pursuant to the policy adopted by the BART Board of Directors in Resolution No. 4989. An application fee pursuant to such Fee Schedule has been paid prior to issuance of this Permit. Fees to reimburse BART for plan review and inspection will be billed to Permittee upon completion of the Work and shall be paid to BART within thirty (30) days of the invoice date. A 10% late fee will be assessed on the balance if payment is not received within said 30 Page 2 of 6 days of the invoice date. The late fee will be increased to 20% on the original balance if payment is not received within 60 days of the invoice date. BART reserves all rights to pursue all appropriate remedies to collect outstanding payments and penalties that have not been paid by Permittee within 90 days of the invoice date. 3. Permittee's right to use this area shall be non-exclusive and non- transferable, and shall be for the sole purpose of performing the Work. In no event shall BART's property be deemed to be a public right-of-way. Overnight parking is prohibited on BART’s property. 4. Conditions of Use: 4.a Permittee shall have Underground Service Alert and an independent utility locator service mark out the trench locations prior to digging. 4.b BART shall not be responsible for any impact to the Permittee’s work due to BART operations, acts of God, or the acts of third parties. 4.c Any change in the scope of this permit shall be subject to a separate amendment. 5. The cost of repair and any and all losses caused by Permittee’s damage to any BART property or facility, or resultant loss of service, shall be at the sole expense of Permittee. Any damage to BART property or facilities shall be repaired or remedied by Permittee or BART, at BART’s discretion, and at Permittee’s sole cost and expense. Permittee agrees to reimburse BART promptly for any such damage. 6. Permittee shall have the duty and hereby agrees to exercise reasonable care to properly maintain BART's 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 BART's property. 7. Permittee acknowledges that said Work constitutes an encroachment upon BART's property and agrees to perform said Work in accordance with and subject to the provisions of this Permit, applicable provisions of the "General Terms and Conditions Relating to Utility Permits," attached hereto as Exhibit “B” and incorporated herein by reference, and all applicable state and local laws. Where there is a conflict between the provisions of this Permit and the "General Terms and Conditions Relating to Utility Permits," Page 3 of 6 this Permit shall prevail. 8. Permittee agrees to notify BART's Construction Liaison in the Construction Services Division, Mr. John Fu at (510) 464-6439, at least 14 calendar days prior to any use of the Premises. Should Permittee require any utility hook- ups, Permittee must obtain any and all necessary permits and pay all fees in connection therewith. Permittee shall not perform any work on BART property until all necessary permits, licenses and environmental clearances have been obtained. 9. Permittee shall not (a) use, generate, or store, or allow its employees, contractors or agents to use, generate, or store any Hazardous Materials on the Premises, except for those materials required to perform the Work permitted under this Permit and in compliance with all federal, state and local laws and regulations for the protection of the environment, human health and safety, as now in effect or hereafter amended (hereinafter “Environmental Laws”); or (b) release or dispose of, or allow its employees, contractors or agents to release or dispose of, any Hazardous Materials on the Premises. “Hazardous Materials” are those materials now or hereafter (a) defined as hazardous substances or hazardous wastes pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. section 9601 et seq.) or the Resource Conservation and Recovery Act (42 U.S.C section 6901 et seq.); (b) listed in the Hazardous Substances List, Title 8, California Code of Regulations, G.I.S.O. Section 337-339, or those which meet the toxicity, reactivity, corrosivity or flammability criteria of the above Code; (c) characterized, regulated or subject to permitting or warning requirements as hazardous or toxic materials, substances, chemicals, pollutants, contaminants or wastes, or as materials for which removal, remediation or disposal is required, under any Environmental Laws; or (d) otherwise posing a present or potential hazard to human health, welfare or the environment. 10. BART 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. 11. Permittee shall be responsible for and bear the entire cost of removal and disposal, in compliance with Environmental Laws, for all Hazardous Materials and non-hazardous wastes introduced to the Premises during Permittee’s use and possession of the Premises. Permittee shall also be responsible for any remediation on or off the Premises necessitated by such Hazardous Materials or non-hazardous wastes. As used herein, Page 4 of 6 “remediation” includes any investigation or post-cleanup monitoring that may be necessary in compliance with Environmental Laws. For purposes of disposal, Permittee shall be the generator of any such Hazardous Materials and shall provide a generator identification number on manifests for such disposal as required by Environmental Laws. 12. To the extent that any New Environmental Condition is caused by, or any Pre-existing Environmental Condition is contributed to or exacerbated by, Permittee’s acts or omissions (including those of its employees, contractors and agents) during its use and possession of the Premises, Permittee shall, at BART’s discretion, either (a) perform remediation of such New Environmental Condition or Pre-Existing Environmental Condition, at Permittee’s cost and expense, in compliance with Environmental Laws and subject to the approval of a governmental agency with jurisdiction; or (b) indemnify BART against all costs incurred by BART in performing remediation of such New Environmental Condition or Pre-Existing Environmental Condition. A “New Environmental Condition” is defined as the release or threatened release of Hazardous Materials on, about, under or emanating from the Premises as of the commencement date of this Permit. A “Pre-Existing Environmental Condition” is defined as the release or threatened release of Hazardous Materials on, about, under or emanating from the Premises prior to the commencement date of this Permit. 13. Permittee agrees to assume responsibility and liability for, and defend, indemnify and hold harmless BART, its directors, officers, agents and employees from all claims, demands suits, losses, damages, injury, and liability, direct or indirect (including any and all costs, fees and expenses in connection therewith) arising from the introduction on the Premises of any Hazardous Materials or non-hazardous wastes by Permittee (including its employees, contractors and agents) or from any New Environmental Condition caused by, or any Pre-existing Environmental Condition contributed to or exacerbated by, the acts or omissions of Permittee (including those of its employees, contractors and agents) during its use and possession of the Premises. 14. Permittee agrees to assume responsibility and liability for, and defend, indemnify and hold harmless BART, its directors, officers, agents and employees from all claims, demands, suits, losses, damages, injury, and liability, direct or indirect (including any and all costs, fees and expenses in connection therewith), caused by acts or omissions of Permittee, its employees, contractors and agents in connection with the Work done pursuant to this Permit, except to the extent such losses are caused by the gross negligence or willful misconduct of BART. Permittee agrees at its Page 5 of 6 own cost, expense and risk to defend any and all actions, suits, or other legal proceedings brought or instituted against BART, its directors, officers, agents and employees arising from the acts or omissions of Permittee, its employees, contractors and agents in connection with the Work done pursuant to this Permit, and to pay and satisfy any resulting judgments, settlements or other expenses associated therewith. 15. To the extent that a governmental agency with jurisdiction requires remediation of any Pre-Existing Environmental Condition that is discovered as a result of Permittee’s activities pursuant to this Permit, and is not contributed to or exacerbated by the acts or omissions of Permittee, its employees, contractors or agents, Permittee shall, at BART’s discretion, either (a) perform remediation of such Pre-Existing Environmental Condition, at Permittee’s cost and expense, in compliance with Environmental Laws and subject to the approval of a governmental agency with jurisdiction; or (b) indemnify BART against all costs incurred by BART in performing remediation of such Pre-Existing Environmental Condition. 16. Permittee agrees that no easement, lease or other property right is acquired by Permittee through this Permit. 17. Upon any use of BART property by Permittee other than that authorized by this Permit, or upon failure of the Permittee to conform to any of the terms and conditions of this Permit, BART may terminate this Permit immediately. 18. Insurance shall be provided by Permittee as stated in Exhibit “C,” attached hereto and incorporated herein by reference. Insurance shall be approved by BART’s Insurance Manager prior to any use of the Premises. 19. Permittee shall comply with the federal Clean Water Act of 1977 and all laws, ordinances, rules and regulations applicable to the Project (“Applicable Law”) including, without limitation, any building, zoning or environmental laws, including applicable Storm Water Pollution Prevention Plans (“SWPPP”). Permittee shall provide any notice(s) required by any Applicable Law. Permittee is responsible for identifying and implementing California Stormwater Quality Association (CASQA) Best Management Practices (BMPs) to prevent pollutant discharges to the storm drain system. Permittee shall not perform any work on BART property until all necessary permits, licenses and environmental clearances have been obtained. 20. Counterparts. This Permit may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and shall become effective when Page 6 of 6 there exist copies hereof which, when taken together, bear the authorized signatures of each of the parties hereto. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Permit. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT By Date Sean Brooks, Manager Real Estate and Property Development Department ACCEPTED By Date Title SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT GENERAL TERMS AND CONDITIONS RELATING TO UTILITY PERMITS EXHIBIT “B” All Utility Permits issued by the San Francisco Bay Area Rapid Transit District to privately and publicly owned utilities relating to poles, wires, cables and other overhead structures, pipes, conduits, manholes and other miscellaneous underground facilities, railroad crossings, storm drains, flood control and minor work are subject to the following General Terms and Conditions contained herein as well as the specific conditions set forth on the face of the Permit. 1. DEFINITION: Each Utility Permit (hereinafter referred to as “Permit”) is issued by the San Francisco Bay Area Rapid Transit District (hereinafter referred to as BART) by the Manager of Real Estate and Property Development Department. Applicant (hereinafter referred to as “Permittee”) understands and agrees that except as otherwise provided, all Permits issued by BART are subject to the terms and conditions contained herein. 2. REVOCABILITY AND MODIFICATION: Any Permits issued hereunder are revocable upon thirty (30) days written notice by BART, and the terms and conditions thereof shall be subject to modification by BART at any time. Any Permit is revocable immediately in the event of any use other than that authorized by the Permit, or upon failure of the Permittee to conform to any of the terms and conditions of the Permit. 3. NEW WORK PERFORMED ON EXISTING PERMIT: No new work can be initiated by a Permittee based upon a prior Permit unless that Permit specifically sets forth the nature and method of such future work at the time of the original approval and if the prior Permit has not expired. If occupation of BART right-of-way is under easement or previous agreement with BART, new installations and work must be applied for to provide BART with notice and record of new work, and for inspection and approval by BART relating to construction and safety procedures. All prior rights shall be fully protected in such cases. 4. ACCEPTANCE OF PROVISIONS: It is understood and agreed by Permittee that doing any work under a Permit shall constitute an acceptance of the terms and conditions contained herein except as otherwise specifically provided in the Permit. 5. NO PRECEDENT ESTABLISHED: It is understood and agreed by Permittee that approval of a particular action under a Right of Entry or Permit shall not establish a precedent for similar future requests by Permittee. 6. NOTICE PRIOR TO STARTING WORK: Before starting work on which full inspection is required in the Permit, the Permittee shall notify BART’s Construction Liaison in the Construction Services Division in writing fourteen days in advance of the day work is to begin. Five days notice shall be given on Permits where partial inspection is specified. 7. PERMIT AT SITE OF WORK: The Permit or a copy thereof shall be available at the site of the work and must be shown to any representative of BART on demand. 8. PERMITS FROM OTHER AGENCIES: The party or parties to whom a Permit is issued shall, whenever the same is required by law, secure the written order or consent to any work under a Permit from the Public Utilities Commission of the State of California or any other public agency having jurisdiction and any Permit shall not be valid until such order or consent is obtained. 9. PROTECTION OF TRAFFIC WHEN APPLICABLE: Adequate provisions shall be made for the protection of the traveling public when construction affects cross streets along BART right-of-way. Warning signs, lights, safety devices and other measures required for the public safety shall conform to requirements of the Vehicle Code. 10. RAIL CLEARANCE AT OR NEAR GRADE: No construction material shall be stored, nor equipment parked within 10 feet, measured at right angles, from the outer edge of the BART aerial structure or BART right-of-way fence, whichever is greater. Construction equipment operating adjacent to BART tracks or facilities shall be so situated and restrained so as not to fail in a manner that would potentially damage BART facilities or to interfere with BART’s operating envelope. Any activity within 10 feet, measured at right angles, of BART’s aerial structure or rail shall be conducted during non- revenue service hours and shall be subject to Track Allocation clearance. 11. LIMIT OF EXCAVATION AT OR NEAR GRADE: No excavation is to be made closer than 10 feet, measured at right angles, from the edge of rail except as specified in the Permit. Depth of excavation shall be subject to inspection and approval by BART’s Construction Liaison in the Construction Services Division. 12. STANDARDS OF CONSTRUCTION: All work performed within BART right-of-way shall conform to Civil and Structural Design Criteria, latest revision, by this reference made a part hereof. 13. APPROVAL BY BART: All work shall be subject to inspection and approval by BART. The type of inspection will be specified in each Permit. 14. CLEAN UP OF RIGHT-OF-WAY: Upon completion of the work, the right-of-way shall be left in the same condition as existed before work started. 15. MAINTENANCE: Permittee agrees, by acceptance of a Permit, to exercise reasonable care to properly maintain any installation placed in BART right-of-way and to exercise reasonable care in preventing damage to any portion of right-of- way or to BART’s facilities as a result of work done under a Permit. 16. RESTORATION: Within 30 days of the expiration or earlier termination of a Permit, Permittee shall, at its sole expense, restore to its former condition any portion of the right-of-way or of any BART facility which has been disturbed by Permittee, except as provided otherwise in the Permit. Restoration shall include, but not be limited to, removal of improvements, equipment, materials, debris, and the like, and repair of any damage. If Permittee fails to restore BART property as required herein, BART may perform such restoration at Permittee’s sole expense. 17. CARE OF DRAINAGE: If the work contemplated in any Permit interferes with established drainage, provision shall be made by Permittee to re-establish equal drainage conditions as may be directed by BART, at Permittee’s sole expense. 18. SUBMISSION OF PLANS: For installation of all underground facilities and surface work, Permittee shall submit for approval a plan showing location and details with its application. Three sets of as-built plans shall be filed with BART upon completion and approval of work. Any substantial change from plans submitted with the application must be approved by BART prior to commencement of work. 19. EXPENSE OF INSPECTION, PREPARATION, AND ADMINISTRATION: On installations made under request of Permittee which require the presence of any employee of BART as inspector, the cost of such inspection during the work shall be paid by Permittee upon presentation of bills therefor. In addition, Permittee agrees to promptly pay BART for costs involved in the preparation, administration and processing of the Permit and its provisions upon presentation of bills therefor per the fee schedule in Resolution No. 4989, adopted by the District’s Board of Directors. 20. LIABILITY FOR DAMAGES: Permittee agrees to assume responsibility and liability for all damage, loss or injury of any kind or nature whatever to persons or property, caused by or resulting from or in connection with work done by Permittee under a Permit or which may arise out of failure on Permittee’s part to perform their obligations under any Permit. In the event any claim of such liability is made against BART, or any department, officer, or employee thereof, Permittee shall defend, indemnify and hold them, and each of them harmless from such claim, and pay and satisfy any resulting judgments. At its sole discretion, BART may require that Permittee obtain a bond and/or insurance in connection with the Permit. 21. FUTURE MOVING OF INSTALLATIONS: It is understood by Permittee that whenever BART construction, re-construction or maintenance work on BART right-of-way may be required, and upon request by BART, the Permittee’s installation shall be immediately moved by and at the sole expense of Permittee except as otherwise provided for by a specific Permit provision. 22. ROUTINE MAINTENANCE OF PERMITTEE’S FACILITIES: Permittee may perform routine work maintenance on Permittee’s facilities in accordance with the Terms and Conditions set forth in the Permit. It will be necessary to provide fourteen days’ prior written notice, unless otherwise stated, to BART’s Construction Liaison prior to commencing any work within the property boundaries of BART. In emergencies, the Permittee shall notify BART’s Construction Liaison by telephone and then follow up by confirming letter relating to the emergency and the disposition of the emergency. 23. PIPES, CONDUITS AND MISCELLANEOUS FACILITIES: BART’s Civil and Structural Design Criteria, latest revision, sets forth specification for installation and maintenance of all underground facilities within BART right-of-way. In addition to BART criteria, all installation and maintenance procedures by Permittee shall be in accordance with the applicable orders of the Public Utilities Commission of the State of California. When abandonment of facilities is contemplated, Permittee shall notify BART. 24. POLES, WIRES, CABLES AND OVERHEAD STRUCTURES: Poles shall be located as specifically directed in the Permit. In addition to BART’s Civil and Structural Design Criteria, latest revision, all clearances and types of construction shall be in accordance with the applicable orders of the Public Utilities Commission of the State of California. Whenever it is necessary to secure permission from abutting property owners, such authority must be secured by Permittee prior to commencing work. Where removal of old poles, guys and stubs is necessary, the entire length of the abandoned pole, guy or stub shall be removed from the ground and the hole backfilled and thoroughly tamped. 25. CLEARANCE OF TREES: All new pole line construction must allow sufficient vertical clearance for trees 40 feet in height. At locations where growing trees are in place, or Permittee’s facilities are already in place, normal construction standards may be followed at the option of Permittee with the ultimate provision to clear a 40-foot tree. Protected cable, tree wire, or plastic tree wire guards may be used on telephone lines through trees provided neither the tree nor its appearance will be damaged. No guy wires are to be attached to trees or BART structures. 26. TRIMMING OF TREES: Trimming of trees will be permitted only where specifically stated in a Permit. Except when specifically authorized in the Permit, removal of trees will generally be prohibited since all trees within BART right-of-way have been placed as landscaping. Permittee shall be required to conduct tree trimming at no cost to BART. In general, only light trimming of branches two inches or less in diameter will be permitted. The shapeliness of the trees must be preserved. If the permit requires inspection by BART during progress of the work, the cost of inspection shall be borne by the Permittee. 27. SERVICE CONNECTIONS: These terms and conditions do not authorize installation of utility service connections within BART right-of-way regardless of location of Permittee’s facilities. All such service connections or excavations to abandon services must be covered by individual Permits. GT&CUTIL.PER REV. 04/96 AAA INSURANCE TEMPLATE (10-7-14).doc EXHIBIT "C" Permit No. Permit Description: Permittee: 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 Required At or before execution of this Permit, Permittee shall provide District 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. Permit number ( ) shall be included in the space provided on the standard Certificate of Insurance form provided. 2. Notice of Cancellation, Renewal, Reduction or Material Change in Coverage. All policies shall be endorsed to provide District with thirty (30) days prior written notice of any cancellation, reduction or material change in coverage. Notices shall be sent to the Department Manager, Insurance, San Francisco Bay Area Rapid Transit District, P. O. Box 12688, Oakland, California 94604-2688. The Permittee shall annually submit to the District’s Department Manager, Insurance, certifications confirming that the insurance required has been renewed and continues in place (if required). 3. Qualifying 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. 4. Insurance Required A. Commercial General Liability Insurance for bodily injury (including death) and property damage which provides limits of not less than AAA INSURANCE TEMPLATE (10-7-14).doc Three Million Dollars ($3,000,000) per occurrence and Three Million Dollars ($3,000,000) annual aggregate as applicable. Exhibit C Page 3 of 5 AAA INSURANCE TEMPLATE (10-7-14).doc 1. Coverage shall include: a) Premises and Operations; b) Products/Completed Operations; c) Broad Form Property Damage; d) Blanket contractual liability coverage; e) Personal Injury liability; and f) Cross-Liability and Severability of Interests. g) Explosion, Collapse and Underground (XCU) * 2. Such insurance shall include the following endorsements: a) Inclusion of District, its directors, officers, representatives, agents and employees as additional insured as respects to Permittee's ongoing and completed operations in connection with this Permit; b) Stipulation that the insurance is primary insurance and that no insurance or self-insurance of District will be called upon to contribute to a loss. 3. For all applications involving construction or demolition work within 50 feet, vertically or horizontally, of the BART trackway and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing, the General Liability Insurance must not exclude coverage therein. In cases where this coverage is excluded from the policy, the following policy coverage is required: a) Railroad Protective Liability for bodily injury (including death), property damage, and physical damage, including loss of use thereof, to railroad property with limits of not less than TWO MILLION DOLLARS ($2,000,000) per occurrence and SIX MILLION DOLLARS ($6,000,000) in the aggregate annually applicable to all operations of Permittee and its contractors or subcontractor(s) within 50 feet vertically or horizontally of BART’s trackway. BART shall have the right to approve of the policy wording. The named insured shall be San Francisco Bay Area Rapid Transit District. Prior to commencing work or entering BART property, Permittee or its contractor shall file the original copy of the policy with BART’s Department Manager, Insurance. This coverage shall be maintained for the term of this Agreement (Permit). B. 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. 1. With respect to the removal and transport of hazardous material or hazard-containing material, the policy shall include: a. Coverage for the accidental release of hazardous Exhibit C Page 4 of 5 AAA INSURANCE TEMPLATE (10-7-14).doc waste defined in California Health and Safety Code (H & S) Section 25117 and listed in Title 22 California Code of Regulations Section 66260.10 and consequential containment, cleanup, disposal and penalties associated therewith. b. Pollution Liability - Broadened coverage for covered autos which includes "covered pollution costs or expenses," which mean any cost or expense arising out of: (1) Any request, demand or order; or (2) Any claim or suit by or on behalf of a governmental authority demanding that the insured or others test for, monitor, clean-up, remove, contain, treat, detoxify, or neutralize, or in any way respond to, or assess the effects of pollutants. C. 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. Coverage shall be specifically endorsed to include the insurer’s waiver of subrogation in favor of the District, its directors, officers, representatives, agents and employees. Should any such work be subcontracted, Permittee shall require each subcontractor of any tier to similarly comply with this Article, all in strict compliance with federal and state law. D. Pollution Liability Insurance for bodily injury (including death) and property damage, including natural resource damage and third party diminution in value claims. Coverage limits shall not be less than One Million Dollars ($1,000.000.) per occurrence for accidental release of hazardous materials as defined in California Health and Safety Code (H&S) Section 25117 and listed in the Title 22 California Code of Regulations Section 66260.10 and consequential containment, clean-up, disposal and penalties associated therewith. 5. Special Provisions A. 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 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. B. The District acknowledges that some insurance requirements contained in this article may be fulfilled by a funded self-insurance program of the Permittee. However, this shall not in any way limit liabilities assumed by the Permittee under this Permit. Any self-insurance program must be approved by the District. C. Should any of the work be contracted, Permittee shall require each of its contractors or subcontractors of any tier to provide the Exhibit C Page 5 of 5 AAA INSURANCE TEMPLATE (10-7-14).doc aforementioned coverage. D. District reserves the right to terminate or suspend the Permit in the event of non-compliance with the insurance requirements of this Article. In no event shall any suspension entitle Permittee to an extension of the term of the Permit specified in this Article. * (Note: XCU coverage (Section 4.A.1.g);Transport of hazardous material or hazard-containing material (Section 4.B.1); and Pollution Liability Insurance (Section 4.D) are only required when applicable (excavation, borings, etc.). Coverage limits may be increased, at the discretion of the District’s Risk Manager, relative to risk involved).