Loading...
HomeMy WebLinkAboutReso - CC - 041-1999RESOLUTION 41-1999 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING TECHNICAL MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY AND BAY AREA RAPID TRANSIT DISTRICT (BART) TO FACILITATE UTILITY RELOCATION AND REDUCE CONSTRUCTION IMPACTS OF PROPOSED BART TAILTRACKS AND AUTHORIZING EXECUTION BY CITY MANAGER RESOLVED, by the City Council of the City of Burlingame: WHEREAS, the Bay Area Rapid Transit District (BART) is pursuing an extension of its rail line to the City of Millbrae, which would involve the construction of tailtracks within the City of Burlingame; and WHEREAS, BART and its designee, SamTrans, has to acquire certain rights of way to construct those tailtracks, which includes a portion of a 25 -foot wide easement owned by the City of Burlingame for tree planting and drainage purposes and two small parcels of land also owned by the City; and WHEREAS, BART has told the City of Burlingame that it will use the power of eminent domain and court litigation to acquire this property; and 11.00 WHEREAS, the City does not endorse or approve the extension project or the tailtracks, the EIR's or EIS's prepared for the project or the tailtracks, or any aspect of the project or the tailtracks except as expressly compelled pursuant to the negotiated memoranda of understanding, executed deeds, and executed right of way contracts that are approved concurrently with this Resolution; and WHEREAS, after negotiation, BART and the City of Burlingame are prepared to enter into a series of memoranda and contracts that will provide compensation to the City for the removal of trees, implementation of a landscape barrier along the rail line, and reserve appropriate drainage easements for City purposes; and WHEREAS, a technical memorandum of understanding will allow the City to effectively work with BART, its designees and contractors in protecting City infrastructure, such as utilities and streets, and in ensuring that any utility relocation or disruption is properly done, and WHEREAS, this technical memorandum will provide a ready reference for those involved in the project to understand the City's concerns and expectations, NOW, THEREFORE, IT IS ORDERED: 1. The City Manager is authorized to execute the technical memorandum contained in Exhibit A hereto by and behalf of the City of Burlingame with such non -substantive changes as the Manager may deem necessary to effectuate the intent of the Council and subject to approval as to form by the City Attorney. 2. The City Clerk is directed to attest to the signature of the Manager. 3. The delivery of the technical MOU is expressly conditioned on the execution and delivery of the following by BART or its designee: A. Landscaping and Tree Replacement MOU approved by concurrent resolution of the Council. B. Right of Way Contract for Assessor Parcel Numbers 025-164-010 and 025-165-010 and payment by SamTrans of $1,000 pursuant to the right-of-way contract. C. Payment of $116,100 by SamTrans or BART as provided in the Landscaping and Tree Replacement MOU. 4. The City Director of Public Works is further authorized to execute and authorize the encroachment permits provided for in the technical MOU. MAYOR I, JUDITH A. MALFATTI, City Clerk of the City of Burlingame, do hereby certify that the foregoing resolution was introduced at a regular meeting of the City Council held on the 3 rd day of MAY ,1999, and was adopted thereafter by the following vote: AYES: COUNCILMEMBERS: GALLIGAN, JANNEY, KNIGHT, O'MAHONY, SPINELLI NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMEERS: NONE CITY CLERK C AWP51\FTLES\BARTNtechnicalmou. res.wpd 2 This Memorandum of Understanding (MOU) between the City of Burlingame, a general law city of the State of California (the "City"), and the San Francisco Bay Area Rapid Transit District ('BART") (collectively, the 'Parties"), which addresses technical issues arising between the Parties, is entered into this day of 1999 (the 'Effective Date"). RECITALS A. BART is constructing and intends to operate an 8.7 mile extension of its existing regional transit system from the Cohna Station to stations at the San Francisco International Airport and Millbrae, with tailtracks in the City, known as the BART -San Francisco Airport Extension (the 'Project"). B. BART, along with its co -lead agencies, the San Mateo County Transit District and the Federal Transit Administration, has completed a Final Environmental Impact Report/Final Environmental Impact Statement ("FERUFEIS") for the Project. BART has also adopted a Mitigation Monitoring and Reporting Plan ("MMRP") for the Project. C. BART and the City acknowledge that it will be necessary to develop procedures to ensure careful and continued cooperation between the Parties, including the following: (1) procedures to avoid unnecessary delays to either the contracting or construction process; (2) procedures for inspecting the construction, relocation, and replacement, as necessary, of City Utilities; (3) procedures to protect City Infrastructure and City Utilities during construction; and (4) procedures to provide for access to City Infrastructure and City Utilities for maintenance and repair. D. BART provided the bid documents and all addenda for the Line, Trackwork and Systems Contract, Contract No. 12YC-120, to the City for review, comment and approval, as appropriate, on December 6, 1996, February 15, 1997, July 5, 1997 and August 14, 1997. No comments were received from the City. E. Concurrently with the execution of this Technical MOU, BART and the City are entering into a Memorandum of Understanding regarding landscaping and tree replacement (the 6254.2 4/29199 -2- "Landscaping and Tree MOU"), and the City and BART will enter into a right-of-way contract ("Right -of -Way Contract") under which the City will convey deeds to certain properties to BART or its designee. AGREEMENT NOW, THEREFORE, BART and the City, for good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, agree as follows: TECHNICAL PROVISIONS SECTION I: DEFINITIONS The following definitions relate to key terms employed in this MOU, including without limitation, all Attachments hereto. A. "BART" B. "Betterment" C. "Bid Package" D. "City" E. "City Infrastructure" F. "City Standard Specifications" G. "City Utilities" H. "Contract Documents" 62542 4/29/99 -3- I. "District" J. "Plans and Specifications" K. "Project" L. "Utility Relocation Work" SECTION 2: PROJECT CONSTRUCTION WITHIN THE CITY10,000 A. City Review of Project Plans and Specifications: 1. Prior to construction of any phase or portion of the Project within the City, BART will provide to City the drawings, documents, plans, specifications, general and special conditions, and related construction documents for the Project (the "Plans and Specifications"). 2. Prior to construction of any phase or portion of the Project within the City, BART will provide the City for review and approval, which approval shall not be unreasonably withheld, with the Plans and Specifications showing the work to be performed directly affecting City Infrastructure. As used in this MOU, City Infrastructure shall mean city streets (including curbs, gutters and sidewalks), traffic control devices, utilities (including storm drains, sanitary sewers, water lines, and hydrants, and including City Utilities), electroliers, landscaping, irrigation systems, and all other public facilities and appurtenances. City approval of Plans and Specifications will be limited to elements of the Project directly affecting City Infrastructure, and other facilities and appurtenances owned by, or which will be conveyed to, the City pursuant to the terms and conditions of this MOU. With the exception of the City Utilities defined and identified in Section 2.E hereafter below, approval or disapproval of the Plans and Specifications must be delivered in writing to BART no later than fifteen (15) calendar days from the City's receipt of such Plans and Specifications. In the event that the City does not provide said written 6254.2 4/29/99 -4- approval or disapproval within the prescribed time, it will be deemed to have approved the Plans and Specifications. BART and the City may agree in writing to mutually convenient time extensions. 3. BART will be responsible for reimbursing the City its reasonable costs incurred in review of the Plans and Specifications identified in Section 2.A.2, above. Said costs shall be the then -applicable City Fee Schedule; the usual and customary fees charged by the City for such review work, which will be based on time and materials; or the reasonable costs paid to a consultant selected by the City to perform such review work. The City will use best efforts to have such review work performed in an economical fashion. The hourly rates of City staff likely to be involved in such activities (as such rates may be adjusted annually by the City in accordance with the applicable collective bargaining agreement between the City and its employees) are listed in Attachment A. The City and BART shall agree on the rate structure to be paid to consultants retained by the City to review the Plans and Specifications referred to in Section 2.A.2. Prior to payment by the City, the City and BART shall jointly review the invoices submitted by the City's consultants referred to herein. The City's reasonable costs for review of Plans and Specifications are estimated at $10,000. B. Permits: 1. The City will issue all necessary City permits for work to be performed within the City, and will cooperate with BART in identifying all City permits necessary for work to be performed in connection with the Project. BART or its contractor will be responsible for reimbursing the City its reasonable costs incurred in connection with its activities related to permit issuance. Said costs shall be the then -applicable City Fee Schedule; the usual and customary fees charged by the City for. such permit activities, which will be based on time and materials; or the reasonable costs paid to a consultant selected by the City to perform such permit activities. The City will use best efforts to have such permit activities performed in an economical fashion. The hourly rates of City staff likely to be involved in such activities (as such rates may be adjusted 6254.2 4/29199 -5- annually by the City in accordance with the applicable collective bargaining agreement between the City and its employees) are listed in Attachment A. The City and BART shall agree on the rate structure to be paid to consultants retained by the City to perform the permit -related activities under this Section 2.B.1. Prior to payment by the City, the City and BART shall jointly review the invoices submitted by the City's consultants referred to herein. 2. BART shall be responsible for all construction management, inspection and testing necessary to ensure that all construction directly affecting City Infrastructure is performed in accordance with City Standard Specifications in effect as of August 8, 1997 for work to be performed within the City. BART shall provide all test results and construction documentation to the City on a timely basis to enable the City to review the adequacy of the work during construction and to allow timely acceptance of the completed work. 3. City will perform inspection oversight and/or testing of the construction directly affecting City Infrastructure. BART or its contractor will be responsible for reimbursing the City for reasonable costs incurred in conducting inspection oversight and/or testing of affected City Infrastructure. Said costs shall be the then -applicable City Fee Schedule; the usual and customary fees charged by the City for such activities, which will be based on time and materials; or the reasonable costs paid to a consultant selected by the City to perform such activities. The City will use best efforts to have such activities performed in an economical fashion. The hourly rates of City staff likely to be involved in such activities (as such rates may be adjusted annually by the City in accordance with the applicable collective bargaining agreement between the City and its employees) are listed in Attachment A. The City and BART shall agree on the rate structure to be paid to consultants retained by the City to perform inspection oversight and/or testing under this Section 2.B.3. Prior to payment by the City, the City and BART shall jointly review the invoices submitted by the City's. consultants referred to herein. The City retains the right to exercise full control over the employment, compensation, and discharge of its personnel performing any inspection oversight and/or testing services under this MOU. The City agrees to coordinate all inspection oversight and/or testing by the City personnel through the designated BART 6254.2 4/29/99 -6- representative. C. Construction Impacts to City Infrastructure Other Than Streets: BART will be responsible for the repair, relocation, reconstruction, or replacement, as appropriate under the terms set forth in this MOU, of City Infrastructure determined by BART and the City to have been damaged by BART or its contractors during construction of the Project, to a condition at least equal to that which existed prior to construction, subject to the limitations of Section 2.G hereinafter. Said repair, relocation, reconstruction, or replacement shall be performed in accordance with the then current City Standard Specification. As used in this MOU, "City Standard Specification" shall mean those standard construction details, drawings, general and special conditions, and construction methods usually and customarily utilized by the City for public works projects. D. Construction Impacts to City Streets: Coordination with City -Planned Street Improvements: In order to coordinate construction of the Project with City -planned street improvements, the City shall provide BART with its then -current street improvement plan identifying, among other things, all sources of funding for the improvements, whether federal, state or local. The City shall provide said street improvement plan to BART (and any applicable update) within thirty (30) days of BART's request. 2. Pre -Construction Pavement Survey: Prior to commencement of construction of the Project, BART and the City shall identify all public streets which both Parties agree will be potentially affected by the construction traffic of the Project. After the streets have been identified, BART, in consultation with the City, shall perform a pavement condition survey of those streets using industry standard methodologies, testing protocols and equipment satisfactory to the City (the "Pre -Construction Pavement Survey"), BART shall also make a pre -construction videotape of the potentially affected City streets, a copy of which will be made available to the 6254.2 4129/99 7- City. The purpose of the Pre -Construction Pavement Survey is to determine the condition of the pavement and sub -base sections and their remaining useful life. BART and the City shall agree to the conditions established in the Pre -Construction Pavement Survey for each phase or portion of the Project prior to commencement of construction of each such phase or portion of the Project, which agreement shall not be unreasonably withheld. 3. Pavement Survey During Construction: In the event that BART and the City determine that streets that were not identified in the Pre -Construction Pavement Survey are likely to be affected by construction of the Project, BART shall perform a supplemental Pre - Construction Pavement Survey, as described in Section 2.13.2, above, prior to use of said streets. 4. Post -Construction Pavement Survey: Upon completion of construction of the Project, BART, in consultation with the City, shall perform a pavement condition survey of those streets actually used by BART during construction, using the same industry standard methodologies, testing protocols and equipment identified in Section 2.D.2, above (the "Post - Construction Pavement Survey"). The purpose of the Post -Construction Pavement Survey is to determine the condition of the pavement and sub -base sections and their remaining useful life. BART and the City shall agree to the conditions established in the Post -Construction Pavement Survey, which agreement shall not be unreasonably withheld. 5. Repair and Reconstruction of City Streets: BART shall repair any street pavement, curbs, sidewalks or gutters determined by BART and the City to have been damaged by BART during construction to a condition at least equal to that which existed prior to construction, subject to the limitations of Section 2.G hereafter, as determined by the Pre -Construction and Post - Construction survey procedures defined in Sections 2.13.2 through 2.D.4, above. As used herein, street pavement repair may include, but is not limited to, crack sealing, slurry sealing, partial or full overlay, and/or partial or full reconstruction. Repair of City streets under this Section 2.D.5 shall be performed in accordance with the then -current City Standard Specifications. Correction of any damage to City streets shall commence as soon as practicable after the City provides written notice to BART of any claimed damage. Said notice by the City shall be given as soon as possible 6254.2 4/29/99 -8- after the City's receipt of BART's notice of substantial completion of the portion of the Project for which damage is claimed, but in no event shall notice of any claimed damage be made by the City or accepted by BART more than eleven (11) months after BART's notice of substantial completion of construction of the portion of the Project for which damage is claimed. E. Utility Construction and Protection: BART has determined that certain City -owned utilities identified in Attachment B traverse the property through which the Project will be constructed (collectively, the "City Utilities" and individually a "City Utility"). Removal, reconstruction, protection in place, extension, and/or relocation of the City Utilities is necessary in order to complete the Project. 2. BART proposes to remove, reconstruct, protect in place, extend and/or relocate the City Utilities in accordance with the description and map, also shown on Attachment B (the "Utility Relocation Work"). City acknowledges that it has reviewed the narratives and plat locations contained in Attachment A, and has approved the Utility Relocation Work as provided therein. 4. City authorizes BART or its contractor to perform the Utility Relocation Work, but only as expressly provided in this MOU, including in Attachment B. 5. Both before and after construction, BART, in consultation and cooperation with the City, shall perform a survey of City Utilities. These surveys shall include videotaping and inspection of those City Utilities which BART and the City determine may be impacted by Project construction activities, including those City Utilities which may be affected by above -ground storage of construction materials and movement of heavy equipment. The pre -construction utility survey shall be completed, and affected City Utilities protected, before any loads are placed or construction is commenced within ten (10) feet of them. 6. BART or its contractor will obtain all of the permits, easements, rights of access or other authorizations (the "Rights") necessary in order to effect the removal, reconstruction, protection in place, extension, and/or relocation of the City Utilities. City authorizes BART or its 6254.2 4/29/99 -9- contractor to obtain said Rights, and City further agrees to assist BART in obtaining said Rights, as appropriate. 7. BART or its contractor will notify City, in writing, twenty-four (24) hours prior to the removal, reconstruction, protection in place, extension, and/or relocation of City Utilities. F. Maintenance, Repair, and Emergency Access: 1. During construction of the Project, BART will require its contractor to protect the rearranged, relocated or protected -in-place City Utilities from any damage by BART or its contractor, except that the City shall be responsible for all maintenance and repair of any City Utility unless and until such time that the Utility Relocation Work is commenced on a particular City Utility. BART shall provide access to City necessary for City to effectuate such maintenance and repair, and City will coordinate its maintenance and repair activities with BART or BART's designee. 2. BART will assume responsibility for maintaining, or causing to be maintained, all City Utilities during any Utility Relocation Work performed on them. 3. Upon City acceptance of Utility Relocation Work for a particular City Utility, City shall be responsible for all maintenance and repair on said City Utility. 4. If necessary, BART shall be responsible for granting, or causing to be granted, to the City, an easement or other appropriate property right, equivalent to the property right held by the City as of the Effective Date of this MOU, allowing access to each of the relocated City Utilities for the purpose of maintaining and repairing said City Utility. Concurrent with the City's acceptance of this easement or other property right, the City shall quitclaim to BART, or BART's designee, all its rights, title and interest in the area of the original location of the relocated City Utilities . 5. Normal Maintenance or Repair. This Section 5 and Section 6 hereafter apply following BART's acceptance of the work under BART Contract No. 12YC-120. In the event that access over, under, or across BART's operating right-of-way is required to perform the 6254.2 4/29199 -10- maintenance or repair of any City Utility, the City shall contact BART's Chief Engineer, Maintenance and Engineering Department, or other authorized designee, prior to entering the BART right-of-way to coordinate access to said right-of-way. 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. Notwithstanding any other provision of this MOU, it is understood by the 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. 6. Emereencv Maintenance or Repair. In the event that access over, under, or across the BART right-of-way is required to perform emergency maintenance or repair, the City shall, concurrent with dispatching a City crew to said emergency, contact BART Power & Way at (510) 464-6615 to advise of same and to coordinate access to said BART right-of-way. Thereafter, BART shall immediately dispatch a BART employee to the site. After said emergency maintenance or repair has been completed or the emergency has stabilized, the City agrees to immediately restore the surface grade of any BART property affected by the emergency to a safe and operable condition. G. Betterments: General: Notwithstanding any provision of this MOU to the contrary, including Sections 2.0 and 2.D.5, improvement of City Infrastructure beyond that which is necessary to fulfill the Project Plans and Specifications, or repair, relocation, reconstruction or replacement of City Infrastructure beyond that necessary to effect a condition equal to the existing City Infrastructure, shall constitute a Betterment. BART shall not pay for any Betterment. The City shall reimburse or credit BART for the value of any such Betterment, including a 25 % fee for BART's administration and oversight of construction of any such Betterment. In that event, BART and the City shall agree on the nature and extent of any Betterment, including related Plans and Specifications, and on the amount of credit due to BART, prior to commencement of construction of any such Betterment. Credit for any salvage value of facilities which were either 6254.2 4129199 -11- removed or retained by the City during replacement, modification, enlargement or expansion shall be based on the resale value of these facilities, less selling expenses. Notwithstanding the terms set forth in this Section 2.G, BART and the City may agree in writing, with supporting documentation, on a case-by-case basis, where construction of the Project will preclude future economical access to, or repair, improvement or construction of, City Utilities, that inclusion of methods to avoid such future detriment shall not be construed to be a Betterment. 2. City Water Line: City currently owns a 12 inch diameter cast iron pipe ("CIP") water line located as shown on Attachment B (the "Water Line"). In order to construct the Project, the Water Line needs to be relocated. City desires to upgrade the Water Line to a 16 inch diameter ductile iron pipe ("DIP") encased in a steel pipe casing, including additional appurtenances. The Parties agree that said upgrade constitutes a Betterment. The City shall reimburse or credit BART for the value of said Betterment, including a 25 % fee for BART's administration and oversight of construction of said Betterment. 3. The City shall reimburse BART for all Betterments within thirty (30) days from the date of receipt of a BART invoice, in writing and calculated according to the credit provisions set forth above, delivered or mailed to the City as follows: City of Burlingame 501 Primrose Road Burlingame, CA 94010 Attention: Director of Public Works Telefax No. (650) 685-9310 H. Completion and Acceptance of City Utilities: Upon completion of the Utility Relocation Work on a particular City Utility, BART or its contractor will notify the City, in writing, that the Utility Relocation Work said City Utility has been completed. The City shall accept such City Utility in a timely fashion and in accordance with the City's usual and customary practice if, after inspection by the City, it is determined that the work, including any work performed pursuant to a change order, has been performed in accordance with the Plans and Specifications and the City Standard Specifications in effect as of 6254.2 4129199 -12- August 8, 1997. If, after inspection by the City, it is determined that the work has not been so performed, the City shall notify BART of any claimed deficiency within ten (10) working days of said inspection. Thereafter, BART will investigate and, if BART agrees with the City's determination, BART will correct the work. In such event, BART will notify the City, in writing, that the work has been corrected, and the City shall be deemed to have accepted the work if it fails to respond to such second notice within ten (10) working days of the date of such notice. Any dispute between the Parties as to whether the work has been performed in accordance with the Plans and Specifications and the City Standard Specifications in effect as of August 8, 1997, shall be referred to the dispute resolution process referenced in Section 12 herein. Except for warranty work, the City will become responsible for the City Utilities upon acceptance. I. Record Drawings for City Utilities: Upon completion of any and all work by BART on City Utilities, and acceptance by the City of such work, BART will submit to the City, within ninety (90) days of BART's receipt from its contractor(s), one hard -copy reproducible set and autocad files on electronic media of record drawings (including parts, operations, and maintenance manuals) showing the work in place. Such record drawings shall be in sufficient detail as the City customarily requires of the City's own public works contractors. SECTION 3: ASSURANCES The Assurances set forth in Section 3.A are based on the Mitigation Monitoring and Reporting Plan ("MMRP") for the Project, and are described in this MOU as the MMRP Assurances. The California Environmental Quality Act requires that each significant adverse environmental impact of a project be identified in the Project's Environmental Impact Report and that feasible mitigation measures or alternatives be identified and implemented. The mitigations set forth in Section 3.A below are not intended to constitute a comprehensive list of mitigations, but are described in this MOU because they are of particular concern to the City. A comprehensive list of mitigations 6254.2 4129/99 -13- associated with the Project is set forth in the MMRP. The Assurances described in Section 3.B represent technical issues of particular concern to the City, and are described in this MOU as the Additional Assurances. Accordingly, BART makes the following assurances to the City with regard to Project activities occurring during construction and/or possible impacts to the City as a result of those activities: A. NIMRP Assurances: Transportation/Traffic Control: a. Wherever possible, access to construction sites shall be from the Project right-of-way to minimize impacts to local streets. b. Vehicle routes from staging areas to construction sites and to fill disposal sites shall be coordinated and predetermined by agreements with City prior to construction. Routes shall follow streets and highways that provide the safest route and have the least impact on existing traffic. C. During construction, additional traffic control such as signals, warning signs or flaggers shall be used to smooth traffic movement at major thoroughfares. 2. Air Quality Control and Construction -Related Emissions: a. BART shall require its construction contractor to configure parking to minimize traffic interference. b. BART shall require its construction contractor to provide temporary traffic control during all phases of construction. C. BART shall require its construction contractor to develop a construction traffic management plan in consultation with the City that reroutes construction traffic off congested streets, consolidates truck deliveries, and provides dedicated tum lanes, where feasible, for movement of construction vehicles and equipment on and off the site. d. BART shall require its construction contractor to keep equipment engines maintained and in proper tune to minimize air emissions. e. BART shall require its construction contractor to use best construction 6254.2 4129/99 -14- practices and methods to minimize fugitive PMIO emissions. BART shall coordinate closely with Community Relations representative to convey dust complaints to contractor. 3. Utility Coordination: BART shall coordinate utility work in a manner that does not disrupt service. Service interruptions are not anticipated; however, where accidental or unavoidable service interruptions occur, each responsible utility shall be contacted to arrange alternate means of providing service, where necessary. Residents may be notified of upcoming activities, delays, or other construction - related issues. 4. Hydrology and Water Quality: Specific mitigation measures to reduce the impact of stormwater discharge will be defined by the requirements of the National Pollution Discharge Elimination System ("NPDES") permit, issued by the Regional Water Quality Control Board for implementation by BART and the construction contractors. Contractor compliance is required to meet the requirements of the NPDES permit, including development of a Stormwater Pollution Prevention Plan ("SWPPP"). At a minimum, BART shall require use of sandbag dikes, silt fences, straw bale dikes, or equivalent control practices for all construction sites where stormwater runoff could travel off-site to a natural drainage -way or stormwater drain. 5. Hazardous Materials Management: a. Prior to right-of-way acquisition, BART shall conduct further geotechnical analysis to determine the presence of hazardous materials. If a site is found to be contaminated to an extent that disturbance could pose a significant hazard, the site will be avoided, contained or cleaned up. Prior to construction, BART and its contractors will develop a hazardous materials contingency plan which will contain specific emergency response procedures to be followed in the event of discovery of previously undetected contaminants. b. In the event that previously undetected contamination is encountered during project construction, BART will take soil and/or groundwater samples to determine the nature and extent of contamination. If levels of contaminants exceed regulatory criteria, BART will proceed 6254.2 4129/99 -15- with construction only when risk to public and worker health and safety and environmental health is reduced to acceptable levels as defined by California Occupational Safety and Health Administration ("OSHA") Standards. If site remediation is found necessary, BART's contractor, with oversight from BART's Safety Department, will prepare a site-specific Safety and Health Plan for hazardous materials and waste operations and submit it to the San Mateo County Department of Health Services, Environmental Services Division before site activities proceed, pursuant to federal and California OSHA regulations for hazardous waste site Safety and Health Plans. C. BART will manage hazardous materials as prescribed by Materials Safety Data Sheets issued by chemical manufacturers and importers, pursuant to the federal OSHA's Hazard Communication Standard. BART shall manage hazardous materials pursuant to CCR Title 22, Division 4.5, Chapter 20, Environmental Health Standards for the Management of Hazardous Waste. B. Additional Assurances: 1. Soil Erosion Control/Drainage: a. BART shall require its construction contractor(s) to develop and implement an erosion control plan for the construction site within City boundaries. BART will provide three (3) copies of the erosion control plan to the City. BART shall require its construction contractor(s) to use watering trucks as needed during the summer months and during heavy construction and earth -moving activities to minimize dust and wind erosion. On City streets used by BART's contractor(s), BART shall require the contractor(s) to remove all construction -related debris. Such cleaning shall be performed in accordance with BART's contract documents. 2. Construction Hours and Work Days: Normal work hours for on-site construction work shall be between 7:00 a.m. and 7:00 p.m., Monday through Friday. On-site construction work shall include, but is not limited to, 6254.2 4/29199 -16- equipment maintenance, site preparation and deliveries. In the event that on-site construction work within City boundaries needs to be performed outside of the above specified normal work hours, BART will contact the City for approval of such work, which approval shall not be unreasonably withheld. 3. Traffic Maintenance and Detours: a. BART shall assume full responsibility for maintaining in service, or causing to be maintained in service, all traffic detours within the City during BART construction of the Project in a manner reasonably satisfactory to the City, subject to and consistent with all Caltrans requirements. All traffic control, lane closure and detour plans affecting City streets shall be submitted to the City for approval prior to commencement of any phase of construction requiring either traffic control or detour(s), which approval shall not be unreasonably withheld. Movement of all construction traffic shall be in accordance with Caltrans standards for state highways. b. BART shall, to the greatest extent practicable, maintain in service, or cause to be maintained in service, during BART construction, all City streets and related City Infrastructure within the limits of the Project area in a manner reasonably satisfactory to the City. The City recognizes and agrees that certain City streets will, of necessity, be closed, in whole or in part, for some periods during construction. C. In its contract documents, BART shall require its contractor(s) to submit traffic plans showing haul routes, temporary closures, and the method of traffic maintenance and staging to the City for approval. The City shall approve or disapprove the plans no later than ten (10) working days following the City's receipt of such plans and shall, under no circumstances, unreasonably withhold approval. d. In its contract documents, BART shall, prior to the temporary closure to traffic of all or part of any street, sidewalk, or other public access within the City, require that its contractor(s) provide at least ten (10) working days notice of such closure to the City. Deviation from this ten (10) working day requirement may be permitted in bona fide emergency situations as 6254.2 4/29199 -17- jointly determined by BART and the City. 4. Construction Lighting: BART shall provide construction lighting with internal shielding and positioned to prevent light spill in the direction of neighboring residential and commercial properties. If construction lighting is needed for special circumstances, the Contractor shall submit to the City its construction lighting plans along with its request for permission to work between the hours of 7:00 p.m. to 7:00 a.m. 5. Construction Site Fencing: BART will submit its construction fencing plan(s) to the City for review and comment prior to construction of any phase or portion of the Project requiring such construction fencing within the City or affecting City facilities. 6. Landscaping: BART shall require its contractor to comply with BART's Plans and Specifications regarding protection of City trees and landscaping. 7. Emergency Notification: Prior to commencement of construction of the Project, BART shall provide the City with an emergency response plan outlining BART's general procedures for responding to an emergency on the Project construction site within the City. BART shall also provide the City with a list of BART personnel to be contacted in the event of an emergency. A BART representative is available for emergencies twenty-four (24) hours a day at (650) 222-0701. A City representative is available at (650) 692-8440. 8. Handling of Inquiries Regarding Construction: During construction of the Project, BART will assign a lead representative to handle inquiries related to Project activities within the City, including inquiries regarding noise and vibration, from City residents, City officials, or City staff. BART will provide written notice to the City and shall publicize the telephone number, fax number and e-mail address of the lead representative. BART will ensure that said representative makes an initial response to all health 6254.2 4/29/99 -18- and safety-related inquiries within a reasonable period of time, not to exceed eight (8) hours. In addition, BART will make an initial response to all other inquiries within are reasonable period of time not to exceed seventy-two (72) hours. Follow-up of inquiries will be completed within a reasonable time following initial contact. BART will take all reasonable actions to ensure that corrective actions, where necessary, are implemented within a reasonable period of time following the initial contact. The BART lead representative will coordinate with City staff to provide such reasonable reports and information as are requested by the City. 9. Erosion Control Plan: BART will provide an erosion control plan to retain sediments on site in accordance with BART's permits. All stockpiled earthwork shall be protected from wind and water erosion. Dust control shall be undertaken in accordance with BART Plans and Specifications and the MMRP. BART will provide its erosion control plan(s) to the City for review. 10. Miscellaneous Documents: Upon request, BART will provide to the City a copy of the SWPPP referenced in Section 3.A.4 and a copy of the hazardous materials contingency plan referenced in 3.A.5.a. LEGAL PROVISIONS SECTION 4: CONTRACT DOCUMENTS INDEMNITY For any work performed on City Infrastructure, BART shall require all of the Project's construction contractors to defend, indemnify and hold the City, its officers and employees harmless against any liability arising out of the acts or omissions of each such contractor, and such contractor shall include the City, its elective and appointed officers, employees and agents as additional insurers in any insurance policies obtained by them at no cost to the City. SECTION 5: INDEMNIFICATION A. Neither the City nor any officer, agent or employee of the City is responsible for any damages or liability occurring by reason of anything done or omitted to be done by BART, its 6254.2 4/29/99 -19- directors, officers, agents, employees and consultants, under or in connection with any work, authority or jurisdiction assumed by or assigned to BART under this MOU. Pursuant to Government Code Section 895.4, BART will fully indemnify, hold harmless and defend in any claim or litigation, the City, its officers, agents and employees from any damage or liability occrring by reason of anything done or omitted to be done by BART, its directors, officers, agents, employees and consultants under or in connection with any work, authority or jurisdiction assumed by or assigned to BART under this MOU. The duty of BART to indemnify and hold harmless, as set forth above, shall include the duty to defend as set forth in Section 2778 of the California Civil Code, provided, however, that nothing herein shall be construed to require BART to indemnify the City, its officers, agents, and employees against any responsibility or liability in contravention of Section 2782 of the California Civil Code. B. Neither BART nor any director, officer, agent or employee of BART is responsible for any damages or liability occurring by reason of anything done or omitted to be done by the City, its officers, agents, employees and consultants, under or in connection with any work, authority or jurisdiction assumed by or assigned to the City under this MOU. Pursuant to Government Code Section 895.4, the City will fully indemnify, hold harmless and defend in any claim or litigation, BART, its directors, officers, agents and employees from any damage or liability occurring by reason of anything done or omitted to be done by the City, its officers, agents, employees, and consultants under or in connection with any work, authority or jurisdiction assumed by or assigned to the City under this MOU. The duty of the City to indemnify and hold harmless, as set forth above, shall include the duty to defend as set forth in Section 2778 of the California Civil Code, provided, however, that nothing herein shall be construed to require the City to indemnify BART, its directors, officers, agents, and employees against any responsibility or liability in contravention of Section 2782 of the California Civil Code. SECTION 6: DESIGNATED AGENT OF THE PARTIES 6254.2 4/29/99 -20- The City contact person for all matters related to this MOU shall be the City Manager or his or her designee. BART's contact person for all matters related to this MOU shall be the Executive Manager for West Bay Extensions or his or her designee. SECTION 7: INSURANCE BART shall include in its contract documents a requirement that the City be named an additional insured in the master insurance program obtained during construction of the Project, also known as the Owner Controlled Insurance Program. SECTION 8: WARRANTIES BART shall require warranties from all of its contractors for all work performed and for all contractor -installed equipment and materials supplied in connection with the Project. BART acceptance of all work performed and for all contractor -installed equipment and materials supplied in connection with Utility Relocation Work and repair of City Infrastructure shall be predicated upon City acceptance of such work, equipment, and materials. All BART warranties to the City shall be for a period of twelve (12) months from acceptance by the City, except where the manufacturer's usual warranty is for a longer period. In that event, the longer period, less thirty (30) days, will apply. If necessary, upon written request by the City, BART will pursue all of its available remedies under those warranty provisions for correction of any defects in materials and/or workmanship discovered within the warranty period. Correction of such defects in the work performed for the City shall commence within sixty (60) working days of written notification to BART by the City, at no cost to the City, so long as the notification is within the warranty period. SECTION 9: NOTICES All notices required hereunder, except as otherwise provided in Section 2.G.I I and 2.G.12, may be given by personal delivery, US Mail, courier service (e.g. Federal Express) or telecopier 6254.2 4/29199 -21- transmission. Notices shall be effective upon receipt at the following addresses. To BART by U.S. Mail: San Francisco Bay Area Rapid Transit District Box 12688 Oakland, CA 94604-2688 Attention: General Manager Telefax (510) 464-6009 cc: San Francisco Bay Area Rapid Transit District Broadway Millbrae, CA 94030 Attention: Executive Manager Telefax (415) 689-8321 To BART by personal delivery or special delivery to: San Francisco Bay Area Rapid Transit District Madison Street Oakland, CA 94604-2688 Attention: General Manager cc: San Francisco Bay Area Rapid Transit District Broadway Millbrae, CA 94030 Attention: Executive Manager To City: City of Burlingame 501 Primrose Road Burlingame, CA 94010 Attention: Dennis Argyres City Manager Telefax (650) 342-8386 SECTION 10: PAYMENT A. Payment by BART of City invoices pursuant to Section 2.A.2 of this MOU will be made within thirty (30) days of receipt of an acceptable invoice supported by such evidence as 6254.2 4/29199 -22- BART may reasonably require. All invoices shall be made in writing and delivered or mailed to 171914ffmi.71Gm The San Francisco Bay Area Rapid Transit District West Bay Extensions 800 Madison Street P.O. Box 12688 Oakland, California 94604-2688 Attention: Assistant Controller Telefax (510) 464-6915 With a copy to: The San Francisco Bay Area Rapid Transit District West Bay Extensions 979 Broadway Millbrae, California 94030 Attention: Group Manager, Design & Construction Engineering Support Telefax No. (650) 689-2083 B. The City agrees to perform all work under this MOU in accordance with rates which are (i) reasonable and (ii) usually and customarily charged by the City for work performed by the City in the normal course of its business. The City agrees that only actual allowable, allocable, necessary and reasonable costs are reimbursable by BART. Whether work is performed by the forces of the City or by a third party, no City profit is allowed. The City's costs (excluding third party costs) shall comply with OMB Circular A-87 and 49 CFR Part 18, and the City will conform with the applicable requirements of FTA Circulars 5010.B and 4220.113. In the event third parties perform work on behalf of the City under this MOU, the cost principles set forth in OMB Circular A-87 or, as appropriate, 48 CFR Part 31 shall be used to determine the allowability, allocability, and reasonableness of costs subject to reimbursement by BART. SECTION 11: RECORD RETENTION AND AUDIT A. Record Maintenance: 6254.2 4129199 -23- The City agrees to establish and maintain, and to require its contractor(s) to establish and maintain, records pertaining to the fiscal activities of the Project, which records shall show the actual time devoted and the costs incurred by the City with respect to any work performed under this MOU. The accounting systems of the City and its contractor(s) shall conform to generally accepted accounting principles, and all records shall provide a breakdown of total costs charged to the Project, including properly executed payrolls, time records, invoices and vouchers. Upon written request, the City shall, at a mutually convenient time, permit BART, the Secretary of Transportation, the Comptroller General of the United States, and their authorized representatives, to inspect, examine, re-examine, and copy the City's books, records, accounts, and any and all data relevant to this MOU for the purpose of auditing and verifying statements, invoices or bills submitted by the City pursuant to this MOU, and shall provide such assistance as may be reasonably required in the course of such inspection. The City shall, at BART's request, provide a letter of representation concerning its usual and ordinary charges for work similar to the work to be performed under this MOU, as well as the accounting systems utilized by the City for work to be performed under this MOU. B. Record Retention: BART reserves the right, for itself, the Secretary of Transportation, the Comptroller General of the United States, and their authorized representatives, to examine and re-examine such books, records, payrolls, accounts and data during the three (3) year period after final payment under this MOU and until all pending matters are closed, and the City shall in no event dispose of said books, records, payrolls, accounts and data in any manner whatsoever for three (3) years after the final payment under this MOU or until all pending matters are closed, whichever is later. C. Audit and Examination: Pursuant to California Government Code Section 8546.7, the Parties shall be subject to the examination and audit of the State Auditor, at the request of BART or as part of any audit of BART by the State Auditor, for a period of three (3) years after final payment under this MOU. The examination and audit shall be confined to those matters connected with the performance of 6254.2 4/29/99 -24- this MOU, including but not limited to the cost of administering the MOU. SECTION 12: RESOLUTION OF DISPUTES If any dispute under this MOU cannot be resolved by the Parties, upon the written request of either of the Party, the dispute shall be resolved in accordance with the terms set forth in Attachment C. SECTION 13: MISCELLANEOUS LEGAL PROVISIONS A. Parties Not Co -Venturers: Nothing in this MOU is intended to nor does it establish the Parties as partners, co - venturers or principal and agent with one another. B. Non -Liability of Officials, Employees and Agents: No director, member, official, employee or agent of the City or BART shall be personally liable to any party to this MOU or to any successor in interest in the event of any default or breach of this MOU or for any amount which may become due on any obligation under the terms of this MOU. C. Applicable Law: This MOU shall be interpreted under and pursuant to the laws of the State of California. The Parties agree that the jurisdiction and venue of any dispute between the Parties to this MOU shall be the Superior Court of San Mateo County. D. Severability: If any term, provision, covenant or condition of this MOU is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. E. Binding Upon Successors: This MOU shall be binding upon and inure to the benefit of the transferees, successors and 6254.2 4129/99 -25- assigns of each of the Parties to it, except that there shall be no transfer of any interest by any of the Parties to this MOU except pursuant to the terms of the MOU. F. Remedies Not Exclusive: No right or remedy conferred upon or reserved to BART or the City under this MOU is intended to be exclusive of any other right or remedy, except as expressly stated in this MOU, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given under this MOU or now or hereafter existing at law or in equity or by statute, except such rights or remedies as are expressly limited in this MOU. G. Force Majeure: In addition to specific provisions of this MOU, performance by either party shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, quarantine restrictions, casualties, acts of God, acts of the public enemy, epidemic, government restrictions on priorities, freight embargoes, shortage of labor or materials, unusually inclement weather, lack of transportation, court order, or any other similar causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any cause will be deemed granted if notice by the party claiming such extension is sent to the other party within thirty (30) days from the commencement of the cause and such extension is not rejected in writing by the other party within thirty (30) days of receipt of the notice. Time of performance under this MOU may also be extended by mutual written agreement, signed by both Parties. H. Conditions: This MOU shall not be effective without the execution by both Parties and delivery, under due legal authority, of the Landscaping and Tree MOU and the Right -of -Way Contract, and the delivery to BART or its designee of the executed deeds referenced therein. I. Integration: This MOU represents the full, complete and entire agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other communications, representations, 6254.2 4/29/99 -26- proposals, understandings or agreements, whether written or oral, between the Parties hereto with respect to such subject matter. This MOU may not be modified or amended, in whole or in part, except by a writing signed by an authorized officer or representative of each of the Parties hereto. 6254.2 4/29/99 -27- This MOU is made and entered into as of the date set forth above. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT By: Thomas E. Margro General Manager APPROVED AS TO FORM Office of the General Counsel By: BART Legal Counsel 6254.2 4129199 10 [NY11911011TH911WH:M1al Mayor of the City of Burlingame APPROVED AS TO FORM Office of the City Attorney Attachments: A. City Staff Rates B. City Utilities and Utility Relocation Work C. Resolution of Disputes 6254.1 4/29/99 -28- ATTACHMENTS ATTACHMENT A City Staff Rates ATTACHMENT B City Utilities and Utility Relocation Work ATTACHMENT C Resolution of Disputes ATTACHMENT A Attachment A CITY STAFF RATES Labor Hourly Rates + 25% Labor Benefits = Total Labor Cost Add City of Burlingame 15% Administrative Fee to Total Labor Cost City of Burlingame Technical MOU Attachment A 04/29/99 City Rate Add 25% Total Class Title Schedule Hourly Labor Labor # Date Rate Benefits Cost * A600 Senior Civil Engineer 2-3-99 $ 37.83 $9.46 $ 47.29 A607 Senior Public Works 2-3-99 $ 30.72 7.68 38.40 Inspector B500 Assistant Water 7-15-98 $ 31.35 7.84 39.19 Superintendent B602 City Engineer 7-15-98 $ 45.49 11.37 56.86 8607 Assistant Street & Sewer 7-15-98 $ 31.35 7.84 39.19 Superintendent S500 Water Supervisor 7-15-98 $ 26.16 6.54 32.70 S501 Water Maintenance 7-15-98 $ 22.36 5.59 27.95 Leadworker S600 Street & Sewer 7-15-98 $ 26.16 6.54 32.70 Supervisor S601 Street & Sewer 7-15-98 $ 22.36 5.59 27.95 Leadworker Labor Hourly Rates + 25% Labor Benefits = Total Labor Cost Add City of Burlingame 15% Administrative Fee to Total Labor Cost City of Burlingame Technical MOU Attachment A 04/29/99 ATTACHMENT B Attachment B CITY UTILITIES AND UTILITY RELOCATION WORK PROTECT - IN - PLACE UTILITIES Utility Type Utility ID No. Size & Type Utility Relocation Other Features and Work Comments Sanitary Sewer COB #5 12" dia. CIP Protect in place. City to reimburse BART COM #31 39" dia. Protect, Monitor & West of Bayshore Sanitary Sewer COB #3 Force Main Repair if damaged. Parcel Area. Jointly removed and relocated. owned by Cities of Millbrae and Burlingame. Storm Drain COB #6 48" dia. RCP Protect in place. maintenance access COB #38 72" dia. Protect in place. over Trousdale Canal. UTILITY REMOVAL, RELOCATION AND/OR MODIFICATION Utility Type Utility ID No. Size & Type Utility Relocation Other Features and Work Comments Water COB #1 12" dia. CIP Protect in place until City to reimburse BART removed and relocated to upgrade to 16" dia. Sanitary Sewer COB #3 8" dia. CIP Protect in place until BART will provide removed and relocated. removable 8'-0" wide pedestrian -type steel bridge for City maintenance access over Trousdale Canal. Storm Drain COB #2 60" dia. RCP Protect in place and Extended portion will (outflow extend outflow portion include about 35' of portion only) with approx. 20 feet of headwall structure. 72" RCP into Trousdale Canal. COB #4 24" dia. CMP Protect in place, remove Only inlet and first 10 and reconstruct inlet feet pipe is COB. connections. coB #9 12" dia. RCP Protect in place, remove Only catch basin and & and replace catch basin about 10' of pipe is Drainage Inlet and ipe connection. COB. City of Burlingame Technical MOU page - 1 Attachment B 04/27/99 Attachment B CITY UTILITIES AND UTILITY RELOCATION WORK ATTACHMENT B-1 COB #5: 12" Diameter CIP Sanitary Sewer COB # 5 will be protected in place. This lateral branches off from the California Drive sanitary sewer line and runs easterly. It is located approximately 180 feet south of the BART tailtrack security wall and will be located within the BART fenced area. COB #6: 48" Diameter RCP Storm Drain COB # 6 will be protected in place. The storm drain crosses California Drive and the BART alignment at a location south from the end of the BART tailtracks. Approximately 85 feet of the 48" storm drain will be protected in place within the fenced area south of the BART tailtrack security wall. ATTACHMENT B - 2 COB # 1: 12" Diameter CIP Water with City of Burlingame Upgrade to 16" Diameter COB # 1 will be protected in place until it is removed and relocated. It is located at Trousdale Drive and California Drive and extends across the BART alignment. Approximately 300 feet of pipeline will be removed and/or abandoned. The relocated 12" waterline would be approximately 50 feet to the north and encased in an 18" diameter steel pipe casing within the JPB and BART right-of- ways. In accordance with the City of Burlingame's request, BART will change the relocated pipe size to a 16" diameter DIP with 30" casing and other specified COB appurtenances. The City of Burlingame will reimburse BART for all associated costs with respect to the City's requested upgrade. COB #2: Extend 60" Diameter RCP Storm Drain COB # 2 will be protected in place and extended. It is located at Trousdale and California Drives, extends across the BART alignment and outflows into Trousdale Canal. Approximately 110 feet of the storm drain will be protected in place to sustain design and construction loads. A new 72" diameter RCP will be extended approximately 20 feet with a new headwall in the Trousdale Canal. ATTACHMENT B - 3 COB #3: 8" Diameter CIP Sanitary Sewer COB # 3 will be protected in place until it is removed and relocated to the south of its existing alignment. It crosses California Drive and the BART alignment approximately 525 feet north of Trousdale Drive. Approximately 450 feet of 8" dia. CIP and 2 manholes will be removed or abandoned. The realignment will run approximately 100 feet south on California Drive from the existing manhole, traverse approximately 280 feet across the JPB and BART right-of-ways and siphon under the Trousdale Canal to connect into the existing SS line. A new manhole will be located and each side of the Trousdale Canal. An 8'-0" wide removable prefabricated steel bridge with pressure treated hardwood deck will span across the Trousdale Canal to provide the City of Millbrae maintenance access to the relocated sanitary sewer line manholes.. The reinforced concrete bridge abutments will clear the concrete lining of the existing channel and allow for easy removal of the bridge for canal maintenance. Stairs with handrails will allow access to the bridge from both sides of the canal. City of Burlingame Technical MOU page - 2 Attachment B 04/27/99 Attachment B CITY UTILITIES AND UTILITY RELOCATION WORK COB #4: Portion of 24" Diameter Storm Drain COB #4, a 24" diameter corrugated metal (CMP) storm drain, will be protected in place until approximately 60 feet is removed under the BART alignment. The City of Burlingame owns the portion of the pipe within the Trousdale Canal, which is approximately 20 feet. The remainder of the 24" diameter CMP shall be refilled with cement slurry, its entrance to the channel removed, and the channel lining repaired. COB #9: 12" Diameter RCP Storm Drain COB # 9 is located on California Drive. The City of Burlingame owns approximately 10 feet of the 12" pipe within California Drive, including the drainage inlet and catch basin. The City of Burlingame connects its 12" pipe segment to an existing storm drain line which traverses under the JPB right -of way and which is owned by others. The existing 12" diameter will be replaced by a large drainage structure. The COB connection will be relocated to tie into to this new drainage structure. ATTACHMENT B — 4 COB #38: 72" Diameter Storm Drain COB # 38 will be protected in place. It is located at the downstream end of the Trousdale Canal and is the drainage outflow culvert for the Trousdale Canal. ATTACHMENT B — 5 and ATTACHMENT B - 6 COM #31: 39" Diameter Sanitary Sewer Force Main (West of Bayshore Area) The portion of COM # 31 located in the West of Bayshore area will be protected in place, monitored and repaired if damaged. The project work will traverse the sanitary sewer pipe at the construction access road along the northern edge of Cupid Row and at the BART aerial -Wye structure. The City of Burlingame and the City of Millbrae, in the West of Bayshore area, jointly own COM #31. City of Burlingame Technical MOU page - 3 Attachment B 04/27/99 Z -,f 1N3V4H3VllV 33S 3NEI HOii V Vq. -7 it? 1 A�\ Vn 1 Irkit in "Aj ol t t it "Zi i k" i ti t vt it it tt A z 2 t ;j w m it t, t % r— Foot ZO t - 'o - it vi, I \V" it it ti V, to 1 it i0i t ti z It it it Ln k it z 1 lI'i i1i 1 t•`I (1 11, 1 , 1. ca It wg, 0 % Ld fit t OM< J, ill,.,i zM: it e, iN LLJ z < 1 ilAce 1�04�ix tt _SS '•M I ka; it 1 iN tv� iiiwAk 1 .•\\'.\ . OD tt� R i V", It LIn CA it it % '48 it A to it t . .. . . ..... V tvk tit i IA IM" t t A I • (n % i it <M ..... ............. . < C-8 1N3V4HOViiV 33S 3N11 HOiVV`1 S–' Inq 12I 11 J i 4 41is J A —j 1 M D 1, Q111 1,fj 9, sP 1:1 t 4. : it i 1; . — I I IS 11 p- I!; ill III V25t t "ail ilmll, io C) I �Imi -! im, � zo till o P 4. it; ss'I is 1161 y Li 11 1p T11 I! i V) z WHI z sl M-11 I EL k C14 zir ly ijl� a ; -Ri. i 03ii -4 : i 1 < -C,4 LTJ z It A 12. i0: u - iA i A'AA "Mal V �C) 0 1, lW I 94 Ail I D PC s � A, A jIA tis Pj s Nl 'SI ..A 4-8 1N3V4HOViiV 33S 3NI-1 HDiVV4 P II I I 1 1 11 1 � P 1 • •• , • � LI%//I%/1A'/I/.//jri9C/Iiae91• 11 N q• 10 mo ozw '14 ki 'AAL MW • \�1ARA`A Ln 'A rw/riieiLv/�Jrr'vi 'V.Ar9VIr: '_��•�.�iiiivi✓i.miiiira// a• . '9sA.�Frsi�riezigivwm...... Pryg V � • 1 SAA`\A1,�e AdAALY�r ���__ 9w 0 A�`dAA ad./iiiiirzviivriii✓ii//v i�.dge P woo l • ,P �i9iVii. res: �@�yJ • MY'�'�""�_ d�117BDriJ�u.;i�ii r/lieu/ilio LLJi 7�►Adef-m�--`----�e. ri�iviv�oiiii � • 4dA 1//JA' A�\gyErriv✓i.��'�.��m.mm Jr/rrdlYjrJ/L///rrepArV.n� 0 I ' i 1 • II a • P • u • x9 • .__ I Y � Q I'VV! t• 1 ,I, lir u �,r } it n iI 1 r 1 1� i if in n 0: 1 ; I' I \ Itis ! , ^ il;� '!•'''i '' (/' ';i 1 1 li 1 1 It i I'�,i 0 i fm it e ' W I� ; jifM_�� ti 1 if ij Off 0it ) [LIL]1 1 r 1: iLL if it EY r C-8 1N31NHOdl1b' 33 G jl 1 a 1 'y I p 5/x.1 �I� NRI 3Nn HXVN I + r � l)I I 1 ) I � - ,It jl If . I rd I II ISI I f i I ij r ii I 1 it I 1 s it it = i:•` m i'I "�;: i HWS " i N_,' it it If 1"3it t`•1- 1 ;i rn=H.', r'ilil jl .__ I Y � Q I'VV! t• 1 ,I, lir u �,r } it n iI 1 r 1 1� i if in n 0: 1 ; I' I \ Itis ! , ^ il;� '!•'''i '' (/' ';i 1 1 li 1 1 It i I'�,i 0 i fm it e ' W I� ; jifM_�� ti 1 if ij Off 0it ) [LIL]1 1 r 1: iLL if it EY r C-8 1N31NHOdl1b' 33 G jl 1 a 1 'y I p 5/x.1 �I� NRI 3Nn HXVN I l Lit 1 I I�1 l•1' l;l I Or t�tit"...lit fI FI I l PI LI I' 1 I lit (l Cl 1 1 IA LP! FI 1 W Y� tJil I O Q 7 j' a e:i'.:'\ 1Y�'.1'J .ice l lit 1i13 1 I 1 mo oil m 3 lit1 4 x y. 0 M I 1 o r o xo fly11 l 1 a7 mQum v :..+•- I I C F o w ,. os it Itl 1 NSU ifl lit� lit I Irl l'1 lit j I 3 i w 'r•;� a why^ rylt ,'�s .l,l_•_ 11 + La v, r ta, N > a 8Q o w lit lit '(I . 4 s ' .r1 0- r, litIll � .: J �I. lit Ill ISI I A 5; l Q z °' J lil 1. 4f 1 , .. 4,.,; �^ • d' a i• JJ •Irl ¢ Plit1. Fll• I u // W w tit I[ ' � l y ry t Y! op �• 1i' l I r l 1 i £', y 7 y s u �� �i • ! 11 j'I 1 t i { ( h,% y ?h5�h1'le/•' , Vii' IiI � � ". !111 l l;I lil +; E. Ill 1lit lit 1IiI �I 1 ' lit LII j ;;i .�'SA `•: i i lit ��� �Jla j S t t -S:'= -- IST '4rpl �^,Ivi I �. � �• nJ 111 1! j11 t �.'-- A' 111 �[I ISI lif I ' �'• cxi� F III til III 1 ! i 5� "� 1 11 UJ I.I I a , • • m 1 �/• III 1'1 1 I Ol, Il 1!1 111 w . / I1 I J 1 D j1 'I 111 1- i m IiII:f 1'11 I / j . 11 lit 1: ATTACHMENT C ATTACHMENT C RESOLUTION OF DISPUTES A. Level: Each party will designate project staff or individuals to be the initial person or persons to discuss any apparent dispute or disagreement between the parties and initiate this procedure. Each such designated first level person may contact his or her counterpart at the same level at any time to raise any apparent disagreement related to the Project. For the City, the first level person shall be designated by the City at the time of execution of this Agreement. For BART, the first level person, unless BART shall designate otherwise in writing, shall be the BART -SFO Extension Project Manager. Urgent Matters: For any matter designated by the initiating party as "urgent," the other party shall make its first response within twenty-four hours, or within such other period as the first level persons may agree. 2. Non -Urgent Matters: Unless a matter is designated "urgent' by the initiating party, the other party shall respond with in five (5) working days, or within such other period as the first level persons may agree. B. Second Level: Each party will designate individuals to whom matters not resolved at the first level shall be referred. Each such designated second level person may contact his or her counterpart at the same level at any time to raise any apparent disagreement related to the Project. For the City, the second level person shall be designated by the City at the time of execution of this Agreement. C. For BART, the second level person, unless BART shall designate otherwise in writing, shall be the Executive Manager, West Bay Extensions. 1. Urgent Matters: For any matter designated by the initiating party as "urgent," the other party shall make its first response within twenty-four hours, or within such other period as the second level persons may agree. 2. Non -Urgent Matters: Unless a matter is designated `urgent' by the initiating party, the other party shall respond within three work days, or within such other period as the second level persons may agree. Third Level: Each party will designate individuals to whom matters not resolved at the second level shall be referred. These designated third level persons shall constitute the final internal level within BART and the City for resolution of issues between the parties. Each such designated third level person may contact his or her counterpart at the same level at any time to raise any apparent disagreement related to the Project. For the City, the third level person shall be designated by the City at the time of execution of this Agreement. For BART, the third level person, unless BART shall designate otherwise in writing, shall be the General Manager. Response: The initiating third level person will request a response from his or her counterpart and that response will be made within a time period agreed between the third level persons. D. Alternative Dispute Resolution Board: If the designated third level individuals are unable to reach resolution, upon written request of either of the parties, the matter shall be presented to an Alternative Dispute Resolution Board ("ADRB") as follows: 1. Composition of the ADRB: The ADRB shall consist of one member selected by BART and one member selected by the City. These two members shall, within 40 days of their selection, choose the third member who will chair the ADRB. If the two members cannot agree on the third member, either member may request the American Arbitration Association in San Francisco to appoint the third member. It is desirable that all ADRB members be experienced with the type of construction involved in this Agreement, and interpretation of Contract Documents. No member of the ADRB shall have any conflict of interest, which would prevent the member from impartially serving on the ADRB. No member shall have a financial interest in the Agreement, except for payment for services on the ADRB. No member shall have been an employee, within a period of one year prior to the Effective Date of this Agreement, of any entity with a financial interest in the Agreement; except that service as a member of other Alternative Dispute Review Boards on other BART contracts will not preclude a member from serving on the ADRB for this Agreement. No member shall have been a contractor to or attorney for either the City or BART within a period of one year prior to the effective date of this MOU, except that service as a member of other Alternative Dispute Review Boards on other BART contracts will not preclude a member from serving on the ADRB for disputes under this MOU. All prospective members of the ADRB shall make full disclosure of all financial interest in, or other involvement with, the work contemplated under this Agreement and any entities associated with the work, including any close professional or personal relationships. Each member of the ADRB shall file a written disclosure with both BART and the City, describing all income in excess of $500 received from BART or the City during the previous thirty-six (36) months. 2. Cost of the ADRB: BART and the City shall pay compensation for fees and expenses for the ADRB member each has selected. BART and the City shall each pay one-half of all compensation for fees and expenses for the Chair. 3. Hearing on Disputes: When a written notice of a dispute is referred to the ADRB, a hearing shall be held within thirty (30) days of referral. The ADRB may request written documentation and arguments from both parties prior to the hearing. A party furnishing written documentation to the ADRB must furnish a copy to the other party at least fifteen (15) days before the hearing begins. 4. Hearing Procedure: BART and the City shall be represented at all hearings by their respective project management. Lawyers may participate only by agreement of both parties. BART and the City shall each be afforded an opportunity to be heard by the ADRB and to offer evidence. The ADRB members may ask questions, seek clarification, or request further data. The ADRB may request from either party documents or information that would assist the ADRB in making its findings and recommendations. A refusal by a party to provide information requested by the ADRB may be considered by the ADRB in making its findings and recommendations. Additional hearings may be necessary in order to consider all evidence presented by both parties. The ADRB may make any other rules applicable to its proceedings, which it deems necessary. 5. Post -Hearing Procedures: After the hearings are concluded, the ADRB shall meet in private and reach a conclusion supported by two or more members. As soon as practicable thereafter, its findings and recommendations, together with its reasons, shall be submitted as a written report to both parties, at the addresses indicated in Section 18, below. If a unanimous decision proves impossible, the dissenting member may prepare a minority report. 6. Nonbinding Nature of ADRB Recommendations: Although both parties should strongly consider the ADRB recommendations, such recommendations are not binding. Either party may appeal to the ADRB for reconsideration of a recommendation when there is new evidence to present. If the ADRB's recommendations do not resolve the dispute, however, it is the intent of the parties that all documents submitted to it and its hearing record and written report pertaining to the dispute will be admissible as evidence, to the extent permitted by applicable law, in any subsequent proceeding. The Parties expressly acknowledge that the foregoing provisions of this Section 17 are the sole and exclusive administrative or non judicial remedies which must be exhausted prior to seeking any remedy provided at law or equity for a default hereunder. Notwithstanding the above, nothing in this Section shall prevent either Party from seeking an interim remedy in extraordinary circumstances.