MEMO. NCRA Board of Directors. Executive Director Mitch Stogner. Date: March 12, Subject: Northwestern Pacific Rail Trail Project Phase 1

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MEMO To: From: NCRA Board of Directors Executive Director Mitch Stogner Date: March 12, 2014 Subject: Northwestern Pacific Rail Trail Project Phase 1 What follows is a summary of the issues regarding

1 MEMO To: From: NCRA Board of Directors Executive Director Mitch Stogner Date: March 12, 2014 Subject: Northwestern Pacific Rail Trail Project Phase 1 What follows is a summary of the issues regarding the Phase 1 Ukiah Trail Plan provided by the City's contract project manager, Merritt Perry. Staff Recommendation Receive a brief presentation of the City of Ukiah NWP Rail-Trail Phase I Project including the Corridor Management Plan and License Agreement and NCRA/NWP comments to the City of Ukiah's Consultant, Merritt Perry with GHD Approve a license agreement with the City of Ukiah to construct and maintain the NWP Rail Trail Phase I Project, with changes recommended by the Property Committee on March 3, (see attached redline license agreement with redline changes) Executive Summary The NCRA right of way through the City of Ukiah is frequently used as an informal transportation corridor by pedestrians throughout the City of Ukiah as it provides a direct route through the middle of the City. Trail projects within the NCRA right of way have been identified in the County's regional transportation plan and bike plan prepared by the Mendocino Council of Governments. The City of Ukiah applied for and received a Bicycle Transportation Grant to fund the design and construction of a trail within the NCRA right of way between Gobbi and Clara Streets. The City presented an overview of this project to the NCRA Board in the spring of 2013 and has been diligently working on the project since that time. The NCRA and NWP have reviewed the project deliverables at the various stages of

2 completion for consistency with rail with trail guidelines and railroad operation. The project generally includes: An 8-10' wide paved trail within the NCRA right of way along the west side of the NCRA right of way. The trail is typically 15 feet or more away from center line of the NCRA tracks. The trail design is consistent with the NCRA Rail with Trail guidelines. Widening of Perkins Street crossing within the NCRA right of way to allow for the construction of a pedestrian refuge island Crossing improvements at Gobbi Street, Perkins Street and Clara Street. A chain link fence between the proposed trail and the NCRA tracks Limited drought tolerant landscaping at the trail connections to city streets The deliverables produced by the City include Engineering Design Plans and Specifications Corridor Management Plan License Agreement CPUC Applications for the Project (GO 88B Applications) All deliverables listed above have been reviewed by David Anderson (NCRA's Engineer) and John Williams (NCRA Operator) The technical comments from both the NCRA and NWPCo. have largely been addressed by the City of Ukiah's Consultant (Merritt Perry with GHD) and only relatively minor comments remain that are anticipated to be addressed prior to an encroachment permit being granted by the NCRA. NWPCo has recommended compensation for the use of the right of way and upgrading of obsolete railroad controls by the City. The City is not proposing to provide mandatory compensation to NWPCo or replace the obsolete rail crossings as a part of the project. The city will, however, provide the in-kind contributions listed in #6 of the license agreement. The alignment of the trail between Perkins Street and Clara Ave has been designed to maximize the area between the proposed trail and Mason Street that was previously occupied by rail sidings to facilitate the potential for future development of this area. This has the potential to convert the area formerly used for rail sidings to developable land. The trail does not conflict with any anticipated rail uses by the NWP within the project limits. During the development of the design, the NWP considered the need for the future addition of a second track and identified that it could be located on the opposite side of the existing tracks. NWP Comments suggested that the trail be moved closer to the tracks along Mason Street to facilitate the potential redevelopment and for sale of that property. A diagnostic review was conducted with the City and the CPUC to review the proposed improvements for pedestrian safety at the rail crossings and within the

3 railroad right of way. The GO 88B applications prepared by the City will be reviewed and approved by the CPUC prior to an encroachment permit being issued by the NCRA. Future phases are envisioned within the NCRA right of way to connect destinations such as Mendocino College to the north and shopping and residential neighborhoods on Talmage Road to the south. This project is consistent with the NCRA mission statement to provide "a first class service working in partnership with others to build and sustain the economy of the region. Financial Impact The proposed trail project will likely result in reduced maintenance costs to the NCRA as the implementation of the trail will require the City to take maintenance responsibility for the portion of the right of way being used by the trail thereby reducing the maintenance responsibility of the NCRA. The trail will likely reduce vandalism, driving and uncontrolled use of the NCRA right of way. The development of the trail may facilitate the conversion of former sidings to developable property and would likely enhance and complement other uses, thereby resulting in increased value of NCRA property The City of Ukiah has paid the NCRA and NWP for all reviews of the project during the development of the design and will be required to do so until the project is completed as a requirement of the encroachment permit. Therefore, the NCRA is not incurring costs for NCRA review by Anderson- Penna or NWP. Recommended Action Recommend that the NCRA board approve a license agreement of the City of Ukiah Northwest Pacific Rail Trail Project Phase I Project - with the changes specified in the attached reline license agreement - and authorize the Executive Director to sign the agreement with the City upon final completion of the plans and issuance of an NCRA encroachment permit. Note: As directed by the Property Committee on March 3, Dave Anderson and Merritt Perry have discussed the issues of crossing signal improvements within the Phase 1 project area and recommend the following action with respect to signals: All of the existing signals and warning devices and controls will remain in place and will not conflict with the trail except for the crossing gate with flashing

4 lights to the southwest of the intersection of the RR and Perkins Street. The plans will be updated to show all of these devices to remain in place. The crossing gate with flashing lights to the southwest of the intersection of the RR and Perkins Street cannot remain as it will conflict with the trail improvements, specifically the roadway widening necessary to accommodate the planned pedestrian refuge crossing. This device also does not meet current standards and it would likely have to be replaced prior to rail service resuming as there are planned changes to that at-grade crossing associated with the planned court house facility that would necessitate a GO 88B application to the CPUC. A new crossing gate and flashing lights is proposed within the pedestrian refuge in the center of Perkins Street. This should not be constructed until rail service resumes, to be sure that it meets the standards at that time. The City should not have to bear the responsibility for this device as it will likely be required with or without the City s trail project, however, the City should pursue grant funding for this device in the coming years as a bike and pedestrian improvement project associated with the trail to assist the NCRA with the resumption of operations. It is likely the relocation of this device will qualify for funding for an Alternative Transportation Grant or Highway Safety Improvement Grant in one of the upcoming grant cycles prior to resumption of rail service. The control cabinet shown for removal near Clara Avenue will be relocated as a part of the project.

6 LICENSE AGREEMENT THIS LICENSE AGREEMENT ( Agreement ) is made as of this day of, 2014, by and between the North Coast Railroad Authority, a public agency formed pursuant to Government Code Section et seq. ( NCRA ) and the City of Ukiah, a municipal public entity ( City ). RECITALS A. NCRA is the property owner or easement holder of the railway right-of-way corridor ( Rail Corridor ) located in Mendocino County and under contract for operation with the Northwestern Pacific Railroad Company ( NWP ). B. In conjunction with NWP, NCRA adopted a Policy and Procedures Manual for the design, construction, safety, operations, and maintenance of shared use public trails located within the Rail Corridor ( Rails-with-Trails ). C. The City seeks to develop a Rails-with-Trails path within the Rail Corridor located in the City of Ukiah jurisdictional area consistent with said Rails-with-Trails Policy and Procedures Manual. D. NCRA desires to issue a license to the City to use the Rail Corridor for the Ukiah NWP Rail Trail Project, and the City desires to accept such license, on the terms and conditions set forth in this License Agreement. NOW THEREFORE, in consideration of the mutual covenants, conditions and agreements recited herein and made a material part hereof, the NCRA and City agree as follows: 1. Definitions. 2. Description of License Property. The property subject to this Agreement (the License Property ) is defined as that specific section of the Rail Corridor within the Ukiah City Limits beginning in the south at Norgard Lane, at or near Station and terminating in the north at Brush Street, at or near Station Use. NCRA hereby grants to the City a non-exclusive license to access and use the License Property to construct, install, maintain, reconstruct, remove, repair and manage a multi-modal public path, for shared use by, including but not limited to, bicyclists, pedestrians, wheelchairs, joggers, and other non-motorized uses. Motorized vehicles shall be permitted access and use as needed by the City, its agents and contractors, for construction and maintenance purposes, and by emergency response personnel. All use shall be consistent with the NCRA Rails-with-Trails Policy and Procedure Manual, adopted May 13, 2009, amended August 12, 2009, and all future amendments thereto.

7 4. Term. The term of this Agreement shall be twenty five (25) years (the Term ) commencing on (the Commencement Date ), and, unless sooner terminated or extended as herein provided, shall terminate on. 5. Conditions Precedent. This Agreement shall be null and void in the event the City fails to obtain funding and all regulatory permits required for trail construction. 6. License Fee. City shall maintain the trail which will provide maintenance to the NCRA right-of way in lieu of a one-time license payment. The City shall track the annual maintenance of the trail / right-of-way. In lieu of either a one-time or annual license fee payment, the City shall provide maintenance to completed trail segments as follows: a.) maintain drainage structures between the center line of the railroad main line and the western edge of the main line right-ofway; b.) provide all vegetation management, including tree trimming and removal, between the center line of the railroad main line and the western edge of the main line right-of-way; c.) additionally, north of Perkins Street and south of Clara Avenue, provide vegetation management between the western edge of the main line right-of-way and the easterly line of Mason Street; d.) although not required, the City, at its sole discretion and expense, may perform such additional vegetation management as it deems appropriate within the License Property. 7. Trail Construction. (a) Trail Construction, Timing. The City may construct trail improvements in the License Property in segments as funding allows. Individual trail segments shall not be open for public use until completion of the trail improvement in said segment. Where required by permitting or other regulatory authorities, NCRA reasonably agrees to execute and deliver applications for permits, licenses or other authorizations relating to the Rail Corridor. Trail segments shall be constructed in accordance with approved Construction Plans, and all applicable laws, rules, regulations and permits. The City shall provide days advance written notice to NCRA prior to beginning construction on any trail segment. The City shall provide days advance written notice to the NCRA prior to opening any trail segment for public use. (b) Construction Plan Approval. The City shall submit detailed construction ready plans and specifications ( Construction Plans ) to the NCRA for review and approval prior to constructing any trail segment. Within one hundred twenty (120) days of receipt, the NCRA shall provide comments and input on the Construction Plans to the City. Failure to provide comments to the City within this time period shall be deemed approval by the NCRA of the Construction Plans. (c) Construction Plan Contents. Construction Plans shall include, but not be limited to, specifications for temporary construction fencing, permanent landscaping, fencing or other trail demarcation and setbacks, and signage. Construction Plans shall comply with all standards and conditions set forth in the Rails-with-Trails Policy and Procedures Manual. (d) Removal of Sidings. City shall co-ordinate with NWP Co. the removal of the freight sidings located north of Perkins Street and west of the main line with NWP Co to bear the cost of removal, retain salvageable materials for future railroad use, and dispose of unusable material. 8. Ongoing Maintenance.

8 (a) The City shall, during the Term, at its own cost and expense and without any cost or expense to NCRA: (i) Keep and maintain all trail improvements (subject to City's right to remove) in good and neat order and repair and shall allow no nuisances to exist or be maintained therein. NCRA shall not be obligated to make any trail repairs of any kind; and (ii) Comply with and abide by all applicable federal, state, and local laws and regulations affecting the License Property. 9. Trail Removal, Modification. The City shall reasonably remove, relocate or modify any trail improvement or portion thereof, at its own expense, in order to accommodate additional track or tracks or other railroad related facilities in the Rail Corridor. 10. Insurance. The City shall maintain general liability coverage in the amount of no less than $5,000,000 per occurrence and aggregate. Insurance shall be placed with a carrier having a current A.M. Best rating of at least A:VII or with the Redwood Empire Municipal Insurance Fund ( REMIF ). Evidence of coverage shall be provided to NCRA on request. 11. Indemnification. To the maximum extent allowed by law, the City agrees to indemnify, defend and hold harmless NCRA, including its officers, employees, operators, agents, contractors, successors and assigns, from and against all loss, liability (including liability with respect to death, injury and personal and property damage), claims, demands, suits, liens, claims of lien, damages, costs and expenses, arising out of or connected in any manner with the use or misuse of the License Property by the City, members of the public, or any act or omission by the city therewith,including claims which arise from utilization by the public of the NCRA right-of-way adjacent to the License Property, which utilization is presumed to be in conjunction with the trail. Such indemnity shall apply notwithstanding NCRA s active or passive negligence, and shall be deemed to apply to any and all losses resulting from the City s negligence, action or inaction, or any other cause other than willful misconduct or the sole negligence of NCRA. This provision shall survive any termination of the License for actions or inactions that may arise during the time this License is in effect. 12. Assumption of Risk and Waiver. To the maximum extent allowed by law, the City assumes any and all risk of loss, damage or injury. The City s assumption of risk shall include loss or damage to the City, its officers, employees, agents, contractors, assigns and successors. The City hereby waives all claims and demands against NCRA for such loss, damage or injury, and waives the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known to him must have materially affected his settlement with the debtor. 13. Abandonment. In the event of action by the City Council for the City of Ukiah to abandon the use of the License Property, or any part thereof, this Agreement shall terminate to the extent of the portion so abandoned or discontinued.

9 14. Surrender. Upon termination of this Agreement, including but not limited to a termination resulting from expiration of the license term, breach, or abandonment of all or a portion of the trail improvements, the City may remove, at its own cost and expense, any and all trail improvements. Upon removal of any trail improvements, the City may, with the concurrence of NCRA, in its sole discretion, (i) reasonably restore the affected portion of the License Property to a state or condition as it existed prior to the construction of trail improvements, (ii) leave all or a portion of the trail improvements in place, or (iii) replace the trail improvements with comparable improvements approved by NCRA. 15. Breach. In the event the City breaches, or fails to keep, observe or perform any covenant, term or condition of this Agreement, in addition to all other rights and remedies of NCRA provided hereunder or by law, after written notice or demand, and the City s failure to cure the breach within thirty (30) days of notice, or fewer days in the event the breach impacts public health, welfare or safety, unless the breach cannot be cured within that time in the exercise of reasonable diligence, in that event the City must commence to cure the breach within 30 days and complete the cure as soon as reasonably practical, NCRA may terminate this Agreement and thereafter recover possession of the License Property by lawful means. 16. Waiver. No waiver of any default under this Agreement shall constitute or operate as a waiver of any subsequent default hereunder, and no delay, failure or omission in exercising or enforcing any right, privilege, or option under this Agreement shall constitute a waiver, abandonment or relinquishment thereof or prohibit or prevent any election under or enforcement or exercise of any right, privilege, or option hereunder. 17. Notices. Except as otherwise provided hereunder; any notice or communication to NCRA, or the City shall be in writing and be mailed by postage prepaid. Notices or communications shall be addressed to the parties at the following addresses, which may be changed at any time by notice to the other party: To NCRA: Executive Director North Coast Railroad Authority To City: Director of Public Works City of Ukiah 419 Talmage Road, Ste M 300 Seminary Avenue Ukiah, CA Ukiah, CA Any notice mailed in the manner above set forth shall be deemed to have been received unless returned to the sender by the post office. Notice may be sent by when simultaneously provided using one of the methods set forth above.

10 18. Severability. In case any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Lease, but this Lease shall be construed as if such invalid, illegal, or unenforceable provisions had not been contained herein. 19. Time of the Essence. Time is of the essence of each and all of the agreements, covenants, and conditions of this Lease. 20. Consents. Whenever in this Lease the consent or approval of either NCRA or City is required or permitted, the party requested to give such consent or approval will act promptly and will not unreasonably withhold its consent or approval. 21. Attorneys Fees. In the event of any action or proceeding at law or in equity between NCRA and City to enforce any provision of this Lease or to protect or establish any right or remedy of either party hereunder, each party shall pay its own costs and expenses, including attorney s fees.in the event of any action or proceeding at law or in equity between NCRA and City to enforce any provision of this Lease or to protect or establish any right or remedy of either party hereunder, the unsuccessful party to such litigation shall pay to the prevailing party all costs and expenses, including reasonable attorney's fees, incurred therein by such prevailing party, and if such prevailing party shall recover judgment in any such action or proceeding, such costs, expenses and attorney's fees shall be included in and as a part of such judgment. 22. Integration. This instrument constitutes the entire agreement between NCRA and City with respect to the subject matter hereof and supersedes all prior offers and negotiations, oral or written. This Lease may not be amended or modified in any respect whatsoever except by an instrument in writing signed by NCRA and City. 23. Amendments. This Lease may be modified only in writing and only if signed by the parties at the time of the modification. 24. Assignment and Subletting. City may assign this Agreement, or any interest herein, at any time provided that, (i) NCRA has consented to the assignment, (ii) the assignment shall be in writing, duly executed and acknowledged by City and the assignee, in form satisfactory to NCRA, providing that the assignee assumes and agrees to perform and observe all the agreements, covenants and conditions of this Lease on the part of City to be performed and observed, and (iii) an executed original of such assignment shall be delivered to NCRA. 25. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

11 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. NORTH COAST RAILROAD CITY OF UKIAH: AUTHORITY: By: Name: It s: Date: By: Name: It s: Date:

EQUIPMENT LEASE AGREEMENT

EQUIPMENT LEASE AGREEMENT THIS AGREEMENT is made and entered into on, by and between Utility Energy Systems, Inc., a Minnesota Corporation, hereinafter referred to as Lessor, and, hereinafter referred