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HomeMy WebLinkAboutUNION PACIFIC RAILROAD - 2003-08-04 Council/Agency Meeting Held: J T',ne- Deferred/Continued to: .e ,r proved ❑ Conditionally Approved ❑ Denied City Clerk's Sig ure Council Meeting Date: August 4, 2003 Department ID Number: PW 03-051 REQUEST FOR COUNCIL ACTION A SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: RAY SILVER, City Administrator 002 PREPARED BY: ROBERT F. BEARDSLEY, Director of Public Works - — CD SUBJECT: Adopt Resolution Authorizing Agreement Between the City ancfOnion Pacific Railroad Company for the Railroad Crossing Improvements on Warner Avenue k S C\) Statement of Issue,Funding Source, Recommended Action,Alternative Action,Analysis, Environmental Status,Attachment(s) Statement of Issue: Before the City and Union Pacific Railroad Company (Railroad) can begin the railroad crossing improvements on Warner Avenue, the City must adopt a resolution evidencing the authority of the Director of Public Works to execute the agreement on behalf of the City, and to execute all necessary documents to certify that funds have been appropriated and are available for payment in the amounts outlined in the agreement. Funding Source: Funds in the amount of $63,000 are budgeted in the Gas Tax Fund, Arterial Highway Rehabilitation Program Street Improvement Account No. 20790008.82300. Recommended Action: Motion to: 1. Adopt Resolution No. D003-Slo, authorizing the execution of the agreement with the Union Pacific Railroad Company. Alternative Action(s): Do not adopt Resolution or execute agreement and forego the railroad crossing improvements project. REQUEST FOR COUNCIL ACTION MEETING DATE: August 4, 2003 DEPARTMENT ID NUMBER: PW 03-051 i Analysis: The city of Huntington Beach and Union Pacific Railroad Company have agreed that the Warner Avenue Railroad Crossing is in need of repair. The City Attorney has prepared a resolution and agreement authorizing the City and the Railroad to combine efforts and resources to repair the railroad crossing at Warner Avenue. As a condition of the agreement, the City will fund 50% of the Railroad's project expenses; provided, however, that the total sum of the City's portion of costs shall not exceed $63,000. The Railroad will prepare and provide public notices and prepare a traffic plan and/or detour plan per City and state approval, obtain all licenses, permits, and furnish all labor, material, equipment and supervision for the project. The Railroad will replace the existing asphalt and wood tie-crossing surface with a concrete crossing surface, including but not limited to rail, ties and other track material and ballast at the railroad crossing. The subject improvements, once completed, will complement the Warner Avenue Rehabilitation Improvements, CC-1149 project currently under construction and tentatively scheduled for completion by September 2003. Public Works Commission Action: Not Required. Environmental Status: This project is Categorically Exempt pursuant to the California Environmental Quality Act, Section 15301 (C). Attachment(s): 1 Project Location Map 2 Resolution No.'�(Du)', r 14 , including Agreement LJT:jm G:1R C A12003103-051 Aug 4 Taite(City UPRR Resol Agreement).doc -2- 7/23/2003 3:33 PM ATTACHMENT # 1 PROJECT LOCATION : UNION PACIFIC RAILROAD CROSSING @ WARNER AVENUE ¢o. fBOLSA AVE. �co Mc FAD EN A . Z ul IEDINGER AVE. J o� N m zy W g J WL AVE. m z� WARNM AVE. TSIATER AVE. 1 405 TALBERT AVE. �f S A GMFI AVE. x 4 1 � Y RKT ADAMS AVE. x NINDWJAPDLIS AVE. TLMRA AvE. HAMILTON AVE. Cqs_ NI it CITY OF HUNTINGTON BEACH DEPARTMENT OF PUBLIC WORKS VICINITY M A P FILE: G:\ftM\TMTE\MASTER\PRdCT-MP ATTACHMENT #2 • . RESOLUTION NO. 2oo3-56 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH AUTHORIZING THE EXECUTION OF THE AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY WHEREAS, pursuant to the terms of the Agreement between the City of Huntington Beach and Union Pacific Railroad Company, the City Council must grant authority to enter into said agreement, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HL NTINGTON BEACH does hereby: I. Authorize the Director of Public Works to execute the Agreement on behalf of the City of Huntington Beach and to execute all necessary documents to certify that funds have been appropriated and are available for the payment of any sums agreed to be paid in connection with said Agreement. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of 2003. ATTEST: City Clerk Mayor REVIEWED AND APPROVED: APPROVED AS TO FORM: r City Ad nl5trator y Atto ey lNITI ED AND PROVED: Director of Public Works 02resoirai Iroad/2/7122M Res. No. 2003-56 STATE OF CALIFORNIA COUNTY OF ORANGE } ss: CITY OF HUNTINGTON-BEACH ) I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at an regular meeting thereof held on the 4th day of August, 2003 by the following vote: AYES: Sullivan, Coerper, Green, Boardman, Cook, Houchen, Hardy NOES: None ABSENT: None ABSTAIN: None City Cleric and ex-officio Clerk of the City Council of the City of Huntington Beach, Califomia �IND CUOUNTERPART AGREEMENT This Agreement is executed this Yam' day of 2003 by and between the City of Huntington Beach, a municipal corporation of the State of California, herein termed the "CITY," and Union Pacific Railroad Company, a Delaware corporation, having an address of 19100 Slover Avenue, Bloomington, CA 92316 herein termed the "RAILROAD." RECITALS WHEREAS, Warner Avenue crosses the Stanton Industrial Lead owned by RAILROAD (DOT#748 043M, Milepost BAA-520.59), City of Huntington Beach, Orange County, California; and The CITY by entering into this Agreement with RAILROAD, does not purport to own any interest in, or have any control over said industrial lead at the Warner Avenue (DOT#748 043M, Milepost BAA-520.59) crossing where said improvements are to be made, but CITY does own and control such street; and The CITY and RAILROAD have ascertained that the Warner Avenue crossing is in need of repair, and the RAILROAD has agreed to repair said Warner Avenue crossing(referred to herein as "the Project") upon terms and conditions hereinafter set forth, NOW, THEREFORE, in consideration of the mutual benefit to be derived by CITY and RAILROAD, it is hereby agreed as follows: 1. STATEMENT OF WORK The RAILROAD shall furnish all labor, material, equipment, and supervision for the Project, and shall replace the existing asphalt and/or wood tie crossing surface with a Concrete crossing surface, including, but not limited to rail, ties and other track material, and ballast, at the intersection of the RAILROAD's Stanton Industrial Lead and Warner Avenue at DOT#748 043M, Milepost BAA-520.59 in Huntington Beach, California. A detailed description of the work and materials is set forth as Exhibit A attached hereto and incorporated herein by this reference. 2. PAYMENT Upon RAILROAD's submittal of invoices for construction costs incurred at the Warner Avenue crossing, the CITY shall pay RAILROAD within thirty (30) days, 50% of the amount of the invoices, provided however that the total sum of the CITY's portion of the costs of the work performed by the RAILROAD,pursuant to Section 1 above, shall not exceed Sixty- Three Thousand Dollars ($63,000.00). The invoices shall detail all components of costs. 02agree/railroad/3/7/03 1 3. PERMITS The RAILROAD agrees to obtain all licenses and permits determined by CITY to be required for the Project, including state permits and permits and licenses for subcontractors prior to the CITY issuance of Notice to Proceed. However, the CITY agrees to process applications for the licenses and permits promptly and to waive all Public Works' encroachment fees. 4. PROJECT COMMENCEMENT/COMPLETION The RAILROAD agrees to commence the project within thirty(30)working days after the Notice to Proceed is issued and diligently prosecute the project to completion within three (3) calendar days from the day the Notice to Proceed is issued by the Director of Public Works. The notice to proceed shall be issued to the Railroad within fourteen(14) months from the date of execution of this Agreement. 5. SEVERABILITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any of the other provisions of this Agreement. 6. HOLD HARMLESS Neither the CITY nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by RAILROAD its officers, agents, employees and subcontractors under this Agreement. RAILROAD shall fully indemnify, defend and hold the CITY, and its officers, agents and employees harmless from and against any liability on account of bodily injury, death or personal injury of any person or for damage to or loss of risk of property, any environmental obligation, any legal fees and any claims for damages or any nature whatsoever arising out of (i) misuse of the Funds by RAILROAD or its officers, agents, employees or subcontractors; (ii) breach of the RAILROAD's obligation under the Agreement; or (iii) any act or omission of the RAILROAD or its officers, agents, employees or subcontractors in the performance of the work or the provision of the services, described in this Agreement. 7. JURISDICTION Litigation arising out of or connected with this Agreement may be instituted and maintained in the State or Federal District 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. Each party shall bear is own attorneys' fees. 02agree/railroad/317/03 2 r 8. AUDIT RAILROAD will keep full and detailed records only as may be needed for proper financial management of this Agreement. CITY will be afforded access at any reasonable time to audit all RAILROAD records relating to billing and quality of work to be performed, correspondence, instruction, drawings, receipts, vouchers and memoranda relating to this Agreement, and RAILROAD will preserve all such records and afford access to the RAILROAD for a period of three (3) years after final payment. 9. CITY OFFICIALS The Director of Public Works or his/her designee shall be the representative of the CITY for purposes of this Agreement and may issue all consents, approvals,directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement. 10. NOTICE All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U. S. Mail, postage prepaid, return receipt requested to the following addresses: CITY RAILROAD City of Huntington Beach Union Pacific Railroad Company 2000 Main Street 19100 Slover Avenue P. O. Box 190 Bloomington, CA 92316 Huntington Beach, CA 92648 Attn: Freddy Cheung„ Industry/Public Projects . Attn: Larry J. Taite, Civil Engineer Asst. The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or 48 hours after deposit in the U. S. Mail as reflected by the official U. S. postmark. Either party may change it address by giving notice in writing to the other party. 11. AUTHORITY TO BIND CITY. The CITY shall, when returning this Agreement to the RAILROAD (signed) cause same to be accompanied by such Order, Resolution or Ordinance of the governing body of the CITY passed and approved as prescribed by law, and duly certified, evidencing the authority of the person executing this Agreement on behalf of the CITY with the power to do so, and which will also certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by the CITY. 02agm-Jrailroad/3/7/03 3 12. COMMENCEMENT AND TERMINATION. This Agreement shall commence as of the date first herein written and continues for a term of three (3) years from the Effective Date unless terminated by either party on thirty (30) days written notice to the other party. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY CITY OF HUNTINGTON BEACH, a municipal corporation of the State of By: A=� - print name 7-t:7�� ITS. (circle one)Chairman/President/Vice President Director of Public Works AND JjjVED AS TO FORM- By �J �03 ity ttc int nam ITS, (circle sj Secretar Chief Financial Officer/Asst. VIEWED AND APPROVED: Secretary-Treasurer F 1.! CitrAdministrator ">lpprov d as to f usietant vice e"'Itat 02agree/railroad/317103 4 EXHIBIT A MATERIAL AND CONTRACT WORK ESTIMATE FOR THE UNION PACIFIC RAILROAD CROSSING IMPROVEMENTS AT WARNER AVENUE DESCRIPTION COST Balast $ 1,168 OTM 1,868 Rail 1,382 Rdxing 14,162 Project Traffic Control 5,000 Weld 398 XTIE 7,752 Per Diem 7,232 Home Line Freight 900 Company Equipment Usage 2,000 Contract Work 68,000 Equipment Rental 7,500 Foreign Line Frt 1,500 Sales Tax 1,067 Mad Store Expense 572 Other Items of Work* 5,499 *Other items of work include: • Prepare and provide Public Notices (per City approval) • Prepare Traffic Plan and/or Detour Plan (per City and State approval) 02agree/railroad/3/7/03 5 AGREEMENT This Agreement is executed this I/711h day of 7— , 2003 by and between the City of Huntington Beach, a municipal corporation of t e State of California, herein termed the "CITY," and Union Pacific Railroad Company, a Delaware corporation, having an address of 19100 Slover Avenue, Bloomington, CA 92316 herein termed the "RAILROAD." RECITALS WHEREAS, Warner Avenue crosses the Stanton Industrial Lead owned by RAILROAD (DOT#748 043M, Milepost BAA-520.59), City of Huntington Beach. Orange County, California; and The CITY by entering into this Agreement with RAILROAD, does not purport to own any interest in, or have any control over said industrial lead at the Warner Avenue (DOT #748 043M, Milepost BAA-520.59) crossing where said improvements are to be made,but CITY does own and control such street; and The CITY and RAILROAD have ascertained that the Warner Avenue crossing is in need of repair, and the RAILROAD has agreed to repair said Warner Avenue crossing (referred to herein as "the Project") upon terms and conditions hereinafter set forth, NOW, THEREFORE, in consideration of the mutual benefit to be derived by CITY and RAILROAD, it is hereby agreed as follows: 1. STATEMENT OF WORK The RAILROAD shall furnish all labor, material, equipment, and supervision for the Project, and shall replace the existing asphalt and/or wood tie crossing surface with a concrete crossing surface, including, but not limited to rail, ties and other track material, and ballast, at the intersection of the RAILROAD's Stanton Industrial Lead and Warner Avenue at DOT#f748 043M, Milepost BAA-520.59 in Huntington Beach, California. A detailed description of the work and materials is set forth as Exhibit A attached hereto and incorporated herein by this reference. 2. PAYMENT Upon RAILROAD's submittal of invoices for construction costs incurred at the Warner Avenue crossing, the CITY shall pay RAILROAD within thirty(30) days, 50% of the amount of the invoices, provided however that the total sum of the CITY's portion of the costs of the work performed by the RAILROAD, pursuant to Section I above, shall not exceed Sixty- Three Thousand Dollars ($63,000.00). The invoices shall detail all components of costs. 02agte6 rai I road1317l03 I 3. PERMITS The RAILROAD agrees to obtain all licenses and permits determined by CITY to be required for the Project, including state permits and permits and licenses for subcontractors prior to the CITY issuance of Notice to Proceed. However, the CITY agrees to process applications for the licenses and permits promptly and to waive all Public Works' encroachment fees. 4. PROJECT COMMENCEMENTICOMPLETION The RAILROAD agrees to commence the project within thirty(30) working days after the Notice to Proceed is issued and diligently prosecute the project to completion within three (3) calendar days from the day the Notice to Proceed is issued by the Director of Public Works. The notice to proceed shall be issued to the Railroad within fourteen (14) months from the date of execution of this Agreement. 5. SEVERABILITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any of the other provisions of this Agreement. 6. HOLD HARMLESS Neither the CITY nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by RAILROAD its officers, agents, employees and subcontractors under this Agreement. RAILROAD shall fully indemnify, defend and hold the CITY, and its officers, agents and employees harmless from and against any liability on account of bodily injury, death or personal injury of any person or for damage to or loss of risk of property, any environmental obligation, any legal fees and any claims for damages or any nature whatsoever arising out of: (i) misuse of the Funds by RAILROAD or its officers, agents, employees or subcontractors; (ii) breach of the RAILROAD's obligation under the Agreement; or(iii) any act or omission of the RAILROAD or its officers, agents, employees or subcontractors in the performance of the work or the provision of the services, described in this Agreement. 7. JURISDICTION Litigation arising out of or connected with this Agreement may be instituted and maintained in the State or Federal District 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. Each party shall bear is own attorneys' fees. 02agree/railroad/3/7/03 2 1 8. AUDIT RAILROAD will keep full and detailed records only as may be needed for proper financial management of this Agreement. CITY will be afforded access at any reasonable time to audit all RAILROAD records relating to billing and quality of work to be performed, correspondence, instruction, drawings, receipts, vouchers and memoranda relating to this Agreement, and RAILROAD will preserve all such records and afford access to the RAILROAD for a period of three (3) years after final payment. 9. CITY OFFICIALS The Director of Public Works or hisiher designee shall be the representative of the CITY for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement. 10. NOTICE All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U. S. Mail, postage prepaid, return receipt requested to the following addresses: CITY RAILROAD City of Huntington Beach Union Pacific Railroad Company 2000 Main Street 19100 Stover Avenue P. O. Box 190 Bloomington, CA 92316 Huntington Beach, CA 92648 Attn: Freddy Cheung., Industry/Public Projects Attn: Larry J. Taite, Civil Engineer Asst. The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or 48 hours after deposit in the L. S. Mail as reflected by the official U. S. postmark. Either party may change it address by giving notice in writing to the other party. 11. AUTHORITY TO BIND CITY. The CITY shall, when returning this Agreement to the RAILROAD (signed) cause same to be accompanied by such Order. Resolution or Ordinance of the governing body of the CITY passed and approved as prescribed by law, and duly certified, evidencing the authority of the person executing this Agreement on behalf of the CITY with the power to do so, and which will also certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by the CITY. 02a.-reeirai1road!3i T03 3 12. COMMENCEMENT AND TERMINATION. This Agreement shall commence as of the date first herein written and continues for a term of three (3) years from the Effective Date unless terminated by either party on thirty (30) days written notice to the other party. IN WITLESS WHEREOF, the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY CITY OF HUNTINGTON BEACH, a municipal corporation of the State of Califo By: :L2-a�- print name ITS: /circle one)Chairman.!E'residentVice President Director of Public Works ND APPROVED AS TO FORM: �By: r , itv At rney ID t name ITS: (circle ecretarn Chief Financial Officer/Asst. REVIEWED AND APPROVED: Secretary-Treasurer r D City ministrator fh 02agreehaikroad.3/7103 4 EXHIBIT A MATERIAL AND CONTRACT WORK ESTIMATE FOR THE UNION PACIFIC RAILROAD CROSSING IMPROVEMENTS AT WARNER AVENUE DESCRIPTION COST Balast $ 1,168 OTM 1,868 Rail 1,382 Rdxing 14,162 Project Traffic Control 5,000 Weld 398 XTIE 7,752 Per Diem 7,232 Home Line Freight 900 Company Equipment Usage 2.000 Contract Work 68,000 Equipment Rental 7,500 Foreign Line Frt 1,500 Sales Tax 1,067 Matl Store Expense 572 Other Items of Work* 5,499 *Other items of work include: • Prepare and provide Public Notices (per City approval) • Prepare Traffic Plan and/or Detour Plan (per City and State approval) 02agree/railroad/N 03 5 c RCA ROUTING SHEET INITIATING DEPARTMENT: Public Works SUBJECT: Adopt Resolution Authorizing Agreement between the City and Union Pacific Railroad Company for the Railroad Crossing Improvements on Warner COUNCIL MEETING DATE: August 4, 2003 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if a licable Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached Tract Map, Location Map and/or other Exhibits Attached Contract/Agreement (wlexhibits if applicable) (Signed in full by the City Attome Not Applicable Subleases, Third Party Agreements, etc. (Appv9ved as to form by City Attome Not Applicable Certificates of Insurance (Approved by the City Attome ) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Find in s/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator Initial ( ) City Administrator Initial City Clerk EXPLANATION FOR RETURN OF ITEM: o 6 a 1 T1 W, a- Q- a l,,1-t,- r •��� Space . Only) RCA Author: I_Taite CITY OF HUNTINGTON EACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK August 14, 2003 Union Pacific Railroad Company 19100 Slover Avenue Bloomington, CA 92316 Attn: Freddy Cheung, Industry/Public Works Enclosed is a duly executed copy of the Agreement between the City of Huntington Beach and union Pacific Railroad Company relative to railroad crossing improvements on Warner Avenue. Also enclosed is a certified copy of Resolution No. 2003-56 adopted by the City Council on August 4, 2003 that authorized execution of said agreement. Should you have any questins please call Larry Taite, Civil Engineering Assistant, Public Works Department at (714) 536-5431. Sincerely, Connie Brockway CMC City Clerk Enc: Resolution No. 2003-56 (certified copy) Certified Copy of aforementioned agreement I Telephone: 714.536-5227) i r RESOLUTION NO. Zo03-56 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH AUTHORIZING THE EXECUTION OF THE AGREEMENT WITH UNION PACIFIC RAILROAD COMPANY WHEREAS, pursuant to the terms of the Agreement between the City of Huntington Beach and Union Pacific Railroad Company, the City Council must grant authority to enter into said agreement, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH does hereby: 1. Authorize the Director of Public Works to execute the Agreement on behalf of the City of Huntington Beach and to execute all necessary documents to certif}that funds have been appropriated and are available for the payment of any sums agreed to be paid in connection with said Agreement. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of Q'v psi ,2003. : ATTEST:' _ . City Clerk Mayor REVIEWED AND APPROVED: APPROVED AS TO FORM: City A rustrator y Attorhey ' INIT D AND PROVED: . Director of Public Works 01-m/rai I roadr2r7R2/03 • Res. No. 2003-56 STATE OF CALIFORNIA COUNTY OF ORANGE ) ss: . CITY OF HUNTINGTON BEACH } . I, CONNIE BROCKWAY, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at an regular meeting thereof held on the 4th day of August, 2003 by the following vote: AYES: Sullivan, Coerper, Green, Boardman, Cook, Houchen, Hardy NOES: None ABSENT: None ABSTAIN: None 400'La� City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach, California Tfw kwegokv I lowent b a correct copy of ttw W%*W on fk In this offloe. Attest , 20.6-- ti U1 t e w x- o e c t o Council of the City of Huntington Beach, Calrornk By 6U&6Deputy mi? z q I� AGREEIv1ENT This Agreement is executed this day of � 512003 by and between the City of Huntington Beach, a municipal corporation of the State of California,herein termed the"CITY,"and Union Pacific Railroad Company, a Delaware corporation, having an address of 19100 Slover Avenue,Bloomington, CA 92316 herein termed the "RAILROAD." RECITALS WHEREAS,Warner Avenue crosses the Stanton Industrial Lead owned by RAILROAD (DOT#748 043M,Milepost BAA-520.59), City of Huntington Beach, Orange County, California; and The CITY by entering into this Agreement with RAILROAD, does not purport to own any interest in, or have any control over said industrial lead at the Warner Avenue (DOT#748 043M,Milepost BAA-520.59) crossing where said improvements are to be made,but CITY does own and control such street; and The CITY and RAILROAD have ascertained that the Warner Avenue crossing is in need of repair, and the RAILROAD has agreed to repair said Warner Avenue crossing (referred to herein as "the Project")upon terms and conditions hereinafter set forth, NOW,THEREFORE,in consideration of the mutual benefit to be derived by CITY and RAILROAD, it is hereby agreed as follows: 1. STATEMENT OF WORK The RAILROAD shall furnish all labor,material, equipment, and supervision for the Project, and shall replace the existing asphalt and/or wood tie crossing surface with a concrete crossing surface, including,but not limited to rail, ties and other track material, and ballast, at the intersection of the RAILROAD's Stanton Industrial Lead and Warner Avenue at DOT#748 043M,Milepost BAA-520.59 in Huntington Beach, California_ A detailed description of the work and materials is set forth as Exhibit A attached hereto and incorporated herein by this reference. 2. PAYMENT Upon RAILROAD's submittal of invoices for construction costs incurred at the Warner Avenue crossing,the CITY shall pay RAILROAD within thirty(30)days, 50%of the amount of the invoices,provided however that the total sum of the CITY's portion of the costs of the work performed by the RAILROAD,pursuant to Section l above, shall not exceed Sixty- Three Thousand Dollars ($63,000.00). The invoices shall detail all components of costs. 02a,aredrailroad/3/7/03 1 3: PERMITS The RAILROAD agrees to obtain all licenses and permits determined by CITY to be required for the Project, including state permits and permits and licenses for subcontractors prior to the CITY issuance of Notice to Proceed. However,the CITY agrees to process applications for the licenses_ and permits promptly and to waive all Public Works' encroachment fees. 4. PROTECT COMMENCEMENT/COMPLETION The RAILROAD agrees to commence the project within thirty(30)working days after the Notice to Proceed is issued and diligently prosecute the project to completion within three (3)calendar days from the day the Notice to Proceed is issued by the Director of Public Works. The notice to proceed shall be issued to the Railroad within fourteen(14)months from the date of execution of this Agreement. 5. SEVERABILITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any of the other provisions of this Agreement. 6.- HOLD HARMLESS Neither the CITY nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by RAILROAD its officers, agents, employees and subcontractors under this Agreement. RAILROAD shall fully indemnify, defend and hold the CITY, and its officers, agents and employees harmless from and against any liability on account of bodily injury, death or personal injury of any person or for damage to or loss of risk of property, any environmental obligation, any legal fees and any claims for damages or any nature whatsoever arising out of: (i)misuse of the Funds by RAILROAD or its officers, agents, employees or subcontractors; (ii) breach of the RAILROAD's obligation under the Agreement; or (iii) any act or omission of the RAILROAD or its officers, agents, employees or subcontractors in the performance of the work or the provision of the services, described in this Agreement. 7. JURISDICTION Litigation arising out of or connected with this Agreement may be instituted and maintained in the State or Federal District Court of the State of Califomia 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. Each party shall bear is own attorneys' fees. 02agreelrallmd/317103 2 8. AUDIT RAILROAD will keep full and detailed records only as may be needed for proper financial management of this Agreement. CITY will be afforded access at any reasonable time to audit all RAILROAD records relating to billing and quality of work.to be performed,. correspondence, instruction, drawings, receipts, vouchers and memoranda relating to this Agreement, and RAILROAD will preserve all such records and afford access to the RAILROAD for a period of three (3) years after final payment. 9. CITY OFFICIALS The Director of Public Works or hiss'her designee shall be the representative of the CITY for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement. 10. NOTICE All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U. S. Mail, postage prepaid, return receipt requested to the following addresses: CITY RAILROAD City of Huntington Beach Union Pacific Railroad Company 2000 Main Street 19100 Slover Avenue P. O. Box 190 Bloomington, CA 92316 Huntington Beach, CA 92648 Attn: Freddy Cheung„ Industry/Public Projects Attn: Larry J. Taite, Civil Engineer Asst. The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or 48 hours after deposit in the U. S. Mail as reflected by the official U. S. postmark. Either party may change it address by giving notice in writing to the other party. 11. AUTHORITY TO BIND CITY. The CITY shall, when returning this Agreement to the RAILROAD (signed) cause same to be accompanied by such Order, Resolution or Ordinance of the governing body of the CITY passed and approved as prescribed by law-, and duly certified, evidencing the authority of the person executing this Agreement on behalf of the CITY with the power to do so, and which will also certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by the CITY. 02agreelrailroad/3/7:03 3 12. COMMENCEMENT AND TERMINATION. This Agreement shall corn hence as of the date first herein written and continues for a term of three (3) years from the Effective Date unless terminated by either party on thirty (30) days written notice to the other party. IN WITNESS WHEREOF, the parties hereto have dul}•executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY CITY OF HUNTINGTON BEACH, a municipal corporation of the State of By: -Ljp -� Polk OG96 print name ITS: (circle one)Chairman/President/vice President Director of Public R'orks AND JAPP OVED AS TO FORM: B - c ntham �0S�it3'' ttorn. y ITS: (circle e)Secre Chief Financial Officer/Am VIEWED AND APPROVED: Secretary-Treasurer 1 Administrator ipprov d as4-e , }saiatacea 02agreelrailroadW103 4 ------------ • i EXHIBIT A MATERIAL AND CONTRACT WORK ESTIMATE FOR THE UNION PACIFIC RAILROAD CROSSING IMPROVEMENTS AT WARNER AVENUE DESCRIPTION COST Balast $ 1,168 OTM 1,868 Rail 1,382 Rdxing 14,162 Project Traffic Control 5,000 Weld 398 XTIE 7,752 Per Diem 7,232 Home Line Freight 900 Company Equipment Usage 2,000 Contract Work 68,000 Equipment Rental 7,500 Foreign Line Frt .1,500 Sales Tax -1,067 Mad Store Expense' 572 Other Items of Work* 5,499 *Other items of work include: • Prepare and provide Public Notices(per City approval) • Prepare Traffic Plan and/or Detour Plan(per City and State approval) 02agrce/rai Iroad/317/03 5 AGREEMENT This Agreement is executed this yam' day of T , 2003 by and between the City of Huntington Beach, a municipal corporation of the State of California,herein termed the"CITY,"and Union Pacific Railroad Company, a Delaware corporation, having an address of 19.100 Slover Avenue,Bloomington, CA 92316 herein termed the "RAILROAD." RECITALS WHEREAS, Warner Avenue crosses the Stanton Industrial Lead owned by RAILROAD (DOT#748 043M,Milepost BAA-520.59), City of Huntington Beach, Orange County, California; and The CITY by entering into this Agreement with RAILROAD, does not purport to own any interest in, or have any control over said industrial lead at the Warner Avenue (DOT#748 043M,Milepost BAA-520.59) crossing where said improvements are to be made,but CITY does own and control such street; and The CITY and RAILROAD have ascertained that the Warner Avenue crossing is in need of repair, and the RAILROAD has agreed to repair said Warner Avenue crossing(referred to herein as"the Project")upon terms and conditions hereinafter set forth, NOW, THEREFORE,in consideration of the mutual benefit to be derived by CITY and RAILROAD, it is hereby agreed as follows: 1. STATEMENT OF WORK The RAILROAD shall furnish all labor,material, equipment, and supervision for the Project, and shall replace the existing asphalt and/or wood tie crossing surface with a concrete crossing surface, including, but not limited to rail,ties and other track material,and ballast, at the intersection of the RAILROAD's Stanton Industrial Lead and Warner Avenue at DOT 4748 043M, Milepost BAA-520.59 in Huntington Beach, California. A detailed description of the work and materials is set forth as Exhibit A attached hereto and incorporated herein by this reference. 2. PAYMENT Upon RAILROAD's submittal of invoices for construction costs incurred at the Warner Avenue crossing, the CITY shall pay RAILROAD within thirty(30)days, 50%of the amount of the invoices,provided however that the total sum of the CITY's portion of the costs of the work performed by the RAILROAD,pursuant to Section I above, shall not exceed Sixty- Three Thousand Dollars ($63,000.00). The invoices shall detail all components of costs. 02agree'rai Iroad/3/7/03 1 3. PERMITS The RAILROAD agrees to obtain all licenses and permits determined by CITY to be required for the Project, including state permits and permits and licenses for subcontractors prior to the CITY issuance of Notice to Proceed. However,the CITY agrees to process applications for the licenses and permits promptly and to waive all Public Works' encroachment fees. 4. PROJECT COMMENCEMENT/COMPLETION The RAILROAD agrees to commence the project Mthin thirty (30)working days after the Notice to Proceed is issued and diligently prosecute the project to completion within three (3) calendar days from the day the Notice to Proceed is issued by the Director of Public Works. The notice to proceed shall be issued to the Railroad within fourteen(14)months from the date of execution of this Agreement. 5. SEVERABILITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any of the other provisions of this Agreement. 6. HOLD HARMLESS Neither the CITY nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by RAILROAD its officers, agents, employees and subcontractors under this Agreement. RAILROAD shall fully indemnify, defend and hold the CITY, and its officers, agents and employees harmless from and against any liability on account of bodily injury, death or personal injury of any person or for damage to or loss of risk of property-, any environmental obligation, any legal fees and any claims for damages or any nature whatsoever arising out of. (i) misuse of the Funds by RAILROAD or its officers;agents, employees or subcontractors; (ii) breach of the RAILROAD's obligation under the Agreement; or(iii) any act or omission of the RAILROAD or its officers, agents, employees or subcontractors in the performance of the work or the provision of the services, described in this Agreement. 7. JURISDICTION Litigation arising out of or connected with this Agreement may be instituted and maintained in the State or Federal District 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. Each party shall bear is own attorneys' fees. 02aeree(railroad/3/7/03 2 8. AUDIT RAILROAD will keep full and detailed records only as may be needed for proper financial management of this Agreement. CITY will be afforded access at any reasonable time to audit all RAILROAD records relating to billing and quality of work to be performed, correspondence, instruction, drawings, receipts,vouchers and memoranda relating to this Agreement, and RAILROAD will preserve all such records and afford access to the RAILROAD for a period of three(3) years after final pa--ment. 9. CITY OFFICIALS The Director of Public Works or his/her designee shall be the representative of the CITY for purposes of this Agreement and may issue all consents, approvals,directives and agreements on behalf of the CITY, called for by this Agreement, except as otherwise expressly provided in this Agreement. 10. NOTICE All notices and written communications sent by one party to the other shall be personally delivered or sent by registered or certified U. S. Mail,postage prepaid,return receipt requested to the following addresses: CITY RAILROAD City of Huntington Beach Union Pacific Railroad Company 2000 Main Street 19100 Slover Avenue P. O.-Box 190 Bloomington, CA 92316 Huntington Beach. CA 92648 Attn: Freddy Cheung„ Industry;'Public Projects Attn: Larry J.Taite, Civil Engineer Asst. The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, or 48 hours after deposit in the U. S. Mail as reflected by the official U. S. postmark. Either party may change it address by giving notice in writing to the other party. 11. AUTHORITY TO BIND CITY. The CITY shall, when returning this Agreement to the RAILROAD(signed) cause same to be accompanied by such Order,Resolution or Ordinance of the governing body of the CITY passed and approved as prescribed by law, and duly certified, evidencing the authority of the person executing this Agreement on behalf of the CITY with the power to do so,and which will also certify that funds have been appropriated and are available for the payment of any sums herein agreed to be paid by the CITY. 02agree/railroad/3/7/03 3 12. COMMENCEMENT AND TEIZNIMI ATION. This Agreement shall commence as of the date first herein written and continues for a term of three (3) years from the Effective Date unless terminated by either party on thirty (30) days written notice to the other party. IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement as of the date and year first hereinabove written. UNION PACIFIC RAILROAD COMPANY CITY OF HUNTINGTON BEACH, a municipal corporation of the State of Califo By: Tale oCr ,,Ct,u ` print name ITS: (circle one)Chairman/PresidentNice President Director of Public Works D APPROVED AS TO FORM: By: - el .fir Lo,� ity A mey ,+p`. . . ITS: (circle o �ecre=Chief Financial Officer/Asst. REVIEWED ANT APPROVED: Secretary-Treasurer City Affministrator �fi i S G�{'i Eire� 5/.•�// �'���%l«r; 'i% ��f � f . 02a9ree/rai1r0ad/317 03 4 EXHIBIT A MATERIAL AND CONTRACT WORK ESTIMATE FOR THE UNION PACIFIC RAILROAD CROSSING IMPROVEMENTS AT WARNER AVENUE DESCRIPTION COST Balast $ 1,168 OTM 1,868 Rail 1,382 Rdxina 14,162 Project Traffic Control 5,000 Weld 398 XTIE 7,752 Per Diem 7,232 Home Line Freight 900 Company Equipment Usage 2,000 Contract Work 68,000 Equipment Rental 7,500 Foreign Line Frt . -1,500 Sales Tax: 1,067 Matl-Store Expense 572 Other Items of Work* 5,499 *Other items of work include: • Prepare and pro%ide Public Notices (per City approval) • Prepare Traffic Plan and/or Detour Plan(per City and State approval) The f wegokV irn wwt is■co "k* copy of title a'ipl w an He in this office. Attest 2t w Nir QtY Clark an o Mark att Counell 0 the MY of Hur%hV n Beech, cwftrn4L By Ala Losputy 02aaree/railroad/317/03 5